text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CODY MIX, Defendant and Appellant.
    No. 88-274.
    Submitted on Briefs July 7, 1989.
    Decided Oct. 16, 1989.
    781 P.2d 751.

      James G. Hunt, Helena, for defendant and appellant.
    Marc Racicot, Atty. Gen., Peter Funk, Asst. Atty. Gen., Helena, Marvin Quinlan, County Atty., Gary A. Ryder, Deputy County Atty., Forsyth, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the Sixteenth Judicial District, Rosebud County, Montana, of a conviction of deliberate homicide, a felony, following a jury trial. The appellant appeals his sentence of 100 years for the deliberate homicide and an additional ten-year sentence for the use of a weapon in the commission of the crime. We affirm.

On September 2, 1987, the body of Sarah Sloan was found on the banks of the Yellowstone River near the town of Forsyth, Montana. Investigating officers found that the victim’s body had suffered numerous chest wounds. In addition they found considerable evidence around the body including a fresh tire track, a fresh shoe print, a bloody fingerprint, and drag marks which indicated that the victim’s body had been dragged from a vehicle to the spot on the river bank.

Because the romantic relationship between the victim and the appellant was well known in the small town of Forsyth, officers went to the appellant’s residence. There they observed the tires on the appellant’s car were similar to the tire tracks found by the victim’s body. The officers also observed what appeared to be blood on the ground near the car. As a result of this investigation, the appellant was questioned early that afternoon. He was later released by local officials. On September 4, 1987, a search warrant was obtained for the appellant’s residence and car. As a result of this search, and based upon the observations of the investigating officers, the appellant was arrested later that day and charged with deliberate homicide. Following his arrest, the appellant maintained his innocence, claiming he and the victim had been drinking at several bars, but they had parted company in the early hours of September 2, 1987, following a minor argument.

On September 21, 1987, counsel for the appellant filed a Notice of Intent to rely upon the defense of mental disease or defect. Thereafter the appellant was committed for psychiatric examination. After undergoing several months of pretrial psychiatric evaluation, the appellant returned for trial. He testified at trial that some time in January of 1988 he began to regain his memory. At that time, he admitted he caused the death of Sarah Sloan but claimed he acted in self-defense.

The evidence indicates appellant and Sarah had visited several bars during the evening of September 1, 1987, before they returned to his address about 1 o’clock the following morning. Appellant testified that in preparing to go to bed, he was in the process of taking off his shoes when Sarah attacked him with a plastic fan base. He further testified that he went out of his bedroom and down the hall as Sarah continued to hit him about the head and neck. Appellant testified he proceeded to the kitchen where he picked up a knife from the kitchen sink and stabbed her in the chest. He further testified that after the initial stabbing, Sarah continued to attack him in the same manner, and he continued to stab her until she collapsed.

At trial, Dr. K.H. Mueller, the pathologist who performed the autopsy, testified that the victim’s death was caused by five stab wounds to her chest area. He testified one of the wounds was inflicted with enough force to pierce the victim’s sternum and another was deep enough to penetrate her spine. In addition, Sarah had multiple blunt force facial injuries and a defensive knife wound on one hand.

Appellant testified at trial that after the stabbing, he dragged Sarah out to his car, drove to an area by the Yellowstone River, dumped Sarah’s body and returned to his home. He testified he then cleaned the kitchen floor, rinsed off the knife used to kill Sarah and went to bed.

Various law enforcement officials who testified stated that some twelve hours after the alleged confrontation, the appellant showed no signs of having been in a life-and-death struggle and that he made no mention of Sarah’s attack on the night of the crime. In addition, the appellant’s home showed no signs of a violent struggle. An investigating officer testified that the plastic fan base allegedly used by Sarah in the claimed attack on the appellant did not contain her fingerprints. Appellant testified at trial that the fan base was essentially undamaged.

During the trial, appellant attempted to establish that Sarah was an aggressive, domineering and impulsive woman. The State submitted rebuttal testimony to establish that the appellant had beaten Sarah in the past and that she was afraid of his propensity for violence.

Five issues are presented on appeal:

1. Whether the trial court committed reversible error when it did not grant appellant’s motion for mistrial based on the prosecution’s opening statement.

2. Whether the trial court committed reversible error when it allowed three prosecution rebuttal witnesses to testify to an alleged prior act of appellant.

3. Whether the trial court committed reversible error when it denied the admission of certain medical records of the victim.

4. Whether the trial court committed reversible error when it denied the admission of a statement allegedly made by the victim.

5. Whether the trial court committed reversible error when it allowed the prosecution’s forensic scientist to testify as an expert about the velocity and direction of blood splatters found in appellant’s kitchen, and when it allowed an investigating officer to testify that the location of the victim’s death evidenced a struggle.

As to the first issue, the appellant alleges that three improper comments were made by the deputy county attorney, comments which were highly prejudicial, made in bad faith and each statement was so prejudicial to the appellant that a mistrial was warranted. The statements referred to, made by the deputy county attorney in his opening statement, are as follows:

“On September 2nd, 1987, the body of Sarah Sloan was found discarded along the banks of the Yellowstone River, west of Forsyth.
“That very day, the Defendant was arrested for murder and twice denied any involvement. On January 15th, 1988, for the first time, he filed a notice of self defense. This was approximately 135 days after the body of Sarah Sloan was found.
“To be very honest with you, I was surprised when [appellant’s attorney] told the jury, during selection ...”

At this point appellant’s attorney objected, to which the District Judge sustained the objection and advised that “Counsel will be restricted to their opening statement as to facts that they intend to prove and not what Counsel was surprised at.”

The second comment cited by appellant as the basis for reversal, was also stated during the prosecution’s opening statement:

“The man sitting at the Defendant’s table, at this point, is presumed to be innocent. He has the right to a jury trial, he has a right to remain silent, he has the right to a court appointed counsel.”

The third statement made by the counsel for the prosecution during his opening statement, to which appellant’s attorney objected and which is the final basis of claimed error, is the following:

“After reviewing this evidence, you will have decisions to make, whether this Defendant is mentally ill, you’ll be instructed on the law in that area. Whether the Defendant was acting . . .”

It is appellant’s contention that the first statement regarding the delayed notice of a theory of self-defense is both an improper comment on the appellant’s silence and is prohibited by Griffin v. California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; and Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. It is appellant’s position that any reference made to a delay of notice of filing a theory of defense; the fact that he had court appointed counsel; the defense of mental defect or disease; and finally the cumulative effect of improper statements made during trial, all necessitate a reversal of his conviction.

In State v. Johnson (Mont. 1988), [233 Mont. 473,] 760 P.2d 760, 45 St.Rep. 1653, this Court spoke to the problem of improper remarks made by counsel during trial. The Johnson opinion reviewed Griffin, supra, and a number of cases which previously discussed this problem in Montana including State v. Gladue (1984), 208 Mont. 174, 677 P.2d 1028; State v. Wilkins (Mont. 1987), [229 Mont. 78,] 746 P.2d 588, 44 St.Rep. 1794; and State v. Gonyea (Mont. 1987), 225 Mont. 56, 730 P.2d 424, 44 St.Rep. 39. In those cases this Court has warned the prosecution and discussed the risk of reversal in the event the prosecution makes improper comments either in opening statements or in witness examinations. The appellant notes, and we agree, that only overwhelming direct evidence against a defendant prevents these kinds of remarks from becoming reversible error.

The comments by the prosecution were improper and unnecessary to the trial of this case. While the record does not suggest any intentional comment was made regarding the change of defense or the silence of the defendant, we conclude the remarks were objectionable. In view of the compelling evidence, and with no significant contradictory evidence, we find there was no need for any comments of the nature referred to above. We again admonish counsel not to comment, even indirectly, on the silence of the accused.

Having found these remarks objectionable, we must consider the Chapman rule to determine if the error was harmless beyond a reasonable doubt. The testimony evidence submitted by the State, including the extensive and unrebutted testimony of all of the witnesses, including the testimony of the appellant, clearly established the appellant’s guilt. We will not address all of the evidence of this crime. The evidence clearly indicates an unprovoked attack on Sarah, and that in all probability, and one of the five stab wounds could have caused her death. We emphasize here that the evidence of appellant’s guilt is overwhelming. The District Court gave numerous instructions during the course of the trial concerning the State’s burden of proof. The admonition to the jury concerning the remarks made following the motion for mistrial shows the trial court’s effort to impress upon the jury the right of the defendant to remain silent.

We conclude that the evidence in this case was so overwhelming that the comments can be classified as harmless error beyond a reasonable doubt. In so doing we uphold the District Court’s denial of a motion for mistrial.

The second issue is whether the District Court erred when it allowed rebuttal witnesses to testify to an alleged prior act of appellant.

As part of his defense, the appellant testified that his general character is one of a peace loving man who found it necessary to kill Sarah Sloan because she had viciously attacked him without provocation. As a result of the extreme force used by Sarah, the appellant claimed it was necessary for him, in self-defense, to pick up a knife and stab her five times to protect his own life. Anticipating this defense, the State filed a Just notice in advance of the trial, (State v. Just (1979), 184 Mont. 262, 602 P.2d 957), and a precautionary instruction was given at the time of the introduction of the claimed improper evidence, and another precautionary instruction was read to the jury at the end of the trial.

Testimony objected to by appellant was that of the prosecution’s rebuttal witness, Lois Taylor:

“Q. Do you recall an incident on May 20, 1987, concerning papers that she [Sarah] had drawn up?
“A. I don’t know what date it was but I know that I had — she come into the cafe with some papers. There’d been something happen the night before, the police had been called. So she came in and she had her three days off and she came in and she was very upset and she said,’ Lois, would you —
“[Defense counsel]: Objection, hearsay.
“Q. Okay, Lois, if you could just explain what she did —
“A. Okay, she handed me some papers and asked if I would take —
“[Defense Counsel]: Object as hearsay.
“THE COURT: Anything that she said is hearsay and the objection will be sustained.”

Our review of the transcript shows this is the only statement, within the meaning of Rule 801, M.R.Evid., made by any of the witnesses identified by the appellant as having testified to hearsay. The testimony at issue was properly admissible as evidence of “other crimes,” and was properly admissible under Rule 404(a)(1), M.R.Evid., and did not include inadmissible hearsay.

The objection of the defense was first apparent and contests basically what was admitted as evidence, claiming that the evidence of “other crimes” should have been excluded; second the appellant contests the evidence was hearsay and should have been excluded.

This Court has long recognized the principle embodied in Rule 404(b), M.R.Evid., which provides:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” (Emphasis added.)

The admissibility of such evidence is also governed by specific substantive and procedural rules. Those substantive requirements are: (1) similarity between the crime charged and the previous crime testified to; (2) nearness in time between the crimes charged and the previous crime; (3) tendency to establish one of the purposes detailed in Rule 404(b), Montana Rules of Evidence; and (4) determination that the probative value of the evidence outweighs any potential prejudice to the defendant. State v. Jensen (1969), 153 Mont. 233, 239, 455 P.2d 631, 634.

The procedural requirements are: (1) notice to the defendant prior to trial that evidence of other crimes, wrongs or acts will be introduced; (2) an admonition by the judge to the jury when the evidence is introduced that it is admitted solely for one or more of the accepted purposes stated in Rule 404(b); and (3) a cautionary jury instruction providing that the evidence is admitted for the purpose earlier stated and not to try and convict the defendant for prior wrongful conduct. Just, 184 Mont. at 274, 602 P.2d at 963-64.

Had the challenged evidence been introduced in the prosecution’s case-in-chief, the above substantive and procedural requirements would strictly apply. Here, however, the appellant was accused of the deliberate homicide of Sarah Sloan, and the evidence admitted concerned an alleged assault by the appellant on Sarah within six months of the homicide. Appellant had already denied any aggressive tendencies on his part toward the victim. Such evidence on rebuttal bore out his potential intent, knowledge, and absence of mistake or accident. In addition, the evidence was extremely probative as the appellant’s self-defense claim was based on his characterization of the victim as an aggressive, impulsive, domineering person. Under these circumstances, such evidence can hardly be viewed as prejudicial given the nature of the appellant’s defense. Rule 404(a), M.R.Evid.

While the precautionary instruction given at the time the evidence was admitted did not conform exactly to that suggested in Just, we do have both pretrial notice and a final jury instruction which are in strict compliance with all procedural requirements set forth in Just. In addition, this Court has clearly stated that any procedural irregularities occurring after the prosecution gives notice under Just will not be grounds for reversal unless objected to by a defendant. Here, no such objection was made.

As previously noted, the appellant’s testimony opened the door regarding his peaceful character. The prosecution had every right to delve into evidence which tended to discredit the appellant’s version of the critical events and his peaceful character, even if such evidence involved “other crimes.” See, State v. Austad (1982), 197 Mont. 70, 641 P.2d 1373; State v. Stroud (1984), 210 Mont. 58, 683 P.2d 459; and State v. Kutnyak (1984), 211 Mont. 155, 685 P.2d 901. In each of those cases, the defendants were charged with violent offenses and when they testified on their own behalf, they claimed, one way or another, to be generally peaceful people. In each of those cases, the prosecution, as a part of its rebuttal, presented evidence .to counter such an assessment, some of which focused on each defendant’s involvement in “other crimes” of a violent nature. This Court has consistently held that such evidence was not subject to the traditional Jenson-Just analysis, but rather was admissible under Rule 404(a)(1), M.R.Evid.

We note that however objectionable the testimony may have been because it was conclusory in nature, it, with the exception of the one exchange previously quoted (Lois Taylor’s testimony), it is clearly not hearsay and any other objection based on its conclusory nature has been waived. See, §§ 46-20-104(2), and 46-20-701(2), MCA. We fail to understand how these two examples of technical hearsay, which occurred during the examination of Taylor may have prejudiced the appellant. Section 46-20-701(1), MCA.

The third issue raised by the appellant is whether the trial court committed reversible error when it denied the admission of the victim’s medical records.

The trial court refused to admit certain medical records of the victim from the Veterans’ Administration Hospital of Miles City, Montana. According to the appellant, those medical records documented the violent and turbulent character of Sarah, and that her unstable personality eventually led her to attack the appellant, an attack so aggressive that it made him fear for his life.

Over a period of time Sarah had been treated by the Veterans’ Administration Hospital for severe asthma. This treatment period began long before the time of her death. Appellant sought to admit testimony of a psychologist regarding Sarah’s treatment and the psychologist’s opinion regarding the prognosis of her recovery. The trial court concluded that the offered evidence was too remote in time to be relevant to the appellant’s self-defense claim.

The record indicates that before the .trial court made its exclusionary ruling, it conducted an in camera inspection of the medical records at issue and, in chambers, carefully detailed its findings with counsel. In addition, this same issue was raised as part of the appellant’s motion for a new trial, which was filed some four days after the jury found the appellant guilty of deliberate homicide. The trial court, in its written order denying the motion, clearly detailed why it found that both instances of Sarah’s treatment were too remote in time and that the subject matter was irrelevant to the defense alleged. We can find no manifest abuse of discretion in the trial court’s ruling.

The fourth issue is whether the court committed error in denying the admission of a statement allegedly made by Sarah.

Testimony referred to is as follows:

“A. [By appellant]: We went out that evening. I thought best to get her out of the house a little bit, maybe cheer her up if I could. I don’t think we had more than two drinks, returned home. It was towards bedtime. Went in the bedroom, bent over to take my shoes off. Next thing I knew there was a — something hit me in the back of the head and I was knocked out. I came to, went in the living room, Sarah was sitting there. I asked her what that was for. ‘What had I done wrong?’ And she couldn’t explain it.
“Q. Did she say any more about that?
“A. Well, she mentioned to me I was pretty lucky —
“[By the prosecution]: Objection, hearsay.
“THE COURT: Sustained.”

The appellant argues that threats by a victim toward an accused should be allowed as an exception to the hearsay rule. He argues that his testimony would have been an attempt to establish that Sarah’s statement constituted a “threat.”

Under a reasonable construction of Rule 801, M.R.Evid., a portion of the testimony allowed is clearly subject to the hearsay objection. It appears no more than a recitation of a direct statement made by Sarah to which an objection could have been lodged. There is no indication in the record as to what the appellant’s full answer would have been had he been allowed to continue his testimony. We note, however, that the objection appears for the first time on appeal.

We have long held to the principle that an appellate court in reaching its decision will only consider material ascertainable from the record. State v. Pease (Mont. 1987), 227 Mont. 424, 740 P.2d 659, 661, 44 St.Rep. 1203, 1205; and State v. Dess (1984), 207 Mont. 396, 398, 674 P.2d 501, 502. Here, no offer of proof was made which would allow this Court to examine the type of hearsay exception claimed by the appellant. We find no merit in this issue.

The fifth issue is whether reversible error was committed when the District Court allowed the prosecution’s forensic scientist to testify concerning velocity and direction of blood splatters and when it allowed an investigating officer to testify that the location of the victim’s death evidenced a struggle.

The appellant argues that the prosecution’s forensic scientist, Ken Konzak, was not qualified as an expert on the interpretation of blood splatters. He alleges that because Mr. Konzak testified as a lay witness on this subject, any testimony admitted was not based on the witness’ personal knowledge since he was not present when the blood in question was splattered. We find this argument rather farfetched. Mr. Konzak is qualified as an expert witness in the field of forensic serology. In qualifying him as an expert, the following testimony was given at trial:

“Q. Okay. Your occupation is a forensic scientist; is that correct?
“A. Yeah, I specialize in the area of Forensic Serology.
“Q. Okay. Could you explain to us what forensic serology is?
“A. Forensic serology is the identification and typing of blood and body fluids. Determination of how those stains and materials are deposited and the factors that relate to those fluids, such as time of intercourse and things like that.
“Q. Could you relate to us, have you been qualified as an expert in testimony in regard to forensic serology?
“A. Yes, I have.
“Q. Do you recall how many times, possibly?
“A. 63, 64, somewhere in there.
“[Defense counsel]: Your Honor, we’d stipulate to the witness’s credentials as a Forensic Serologist.
“THE COURT: Very well. He’s qualified.” (Emphasis added.)

It is to the following testimony that the appellant claims his theory of self-defense was greatly prejudiced by the testimony on blood disposition.

“Q. [By the prosecution]: Okay. Do you see what appears to be some blood splatters in that photograph?
“A. [By Mr. Konzak]: Yes. The photograph depicts as it was described to me, the area in which several of these blood splatters I’ve just analyzed were taken from the kitchen door.
“Q. Okay. Can you — in looking at the photograph of those blood splatters, can you tell anything about direction or force or anything like that?
“A. We can tell — which I’d have to see obviously closer up when the time comes, that the splatters come from lower on the towards the floor up at an angle, a low angle, up to roughly about thirteen to seventeen inches on the side of the door, but come from down going up, as opposed to having been dropped from above down on to the lower part of the door.
“Q. So, is it fair to say, that would not be consistent with someone standing above the door and bleeding down upon it?
“A. That’s very true. Also, there are some smears over here which are caused as á small splatter up against it, which have been smeared by rubbing or some other means of smearing, that don’t necessarily show the direction that I was mentioning before.”

How this testimony is unfairly prejudicial to the appellant’s theory of self-defense is not understandable. Appellant testified that after he stabbed Sarah the final time, she fell to the floor directly in front of the door where the blood splatters were found. The testimony of Mr. Konzak is consistent with the opinion that the blood was deposited on the door as it traveled in an upward direction, deposited there by her body’s impact with the floor. The admission of such testimony can* hardly be characterized as unduly prejudicial to appellant’s theory of self-defense.

Appellant also claims that Detective Skillen improperly testified that a violent struggle had occurred in appellant’s residence the night of Sarah’s death because Detective Skillen was not qualified as an expert on such matters. A review of the record shows that the detective was, in fact, qualified as an expert on crime scene processing and investigation. Further, that Detective Skillen did not testify as to the existence of a violent struggle. In addition, the appellant specifically stated he had no objection to such a qualification. The only objection came when the detective testified to his findings, as follows:

“Q. [By the prosecution]: In your opinion as an expert in crime scene investigator [sic], did you see anything that appeared to be a struggle at that residence?
“[Defense counsel]: I’m going to object. I’m not sure, I don’t believe there’s been a foundation laid for that question. This witness might be able to testify as to what evidence he evaluated, but to draw that kind of a conclusion, I don’t believe that the foundation can be laid and certainly has not been.
“THE COURT: The objection will be overruled. And if the answer is in the affirmative, then I want to go into the foundation.
“Q. Would you answer the question.
“A. Yes, sir.
“Q. Okay. My question was did you see any sign of a struggle?
“A. Yes, sir.
“Q. What indicated to you that there was a struggle at that residence?
“A. The pattern of blood splatters and the area of the floor that had residue that appeared to have been a heavier deposit at one time on the kitchen floor.
“Q. Was there anything else at the defendant’s residence which indicated to you that there was a struggle at that residence?
“A. No, sir.
“Q. You didn’t see any furniture tipped over?
“A. No, sir.
“Q. Any objects that appeared to have been thrown through the house?
“A. No, sir.
“Q. Just the blood stains?
“A. Yes, sir.”

We find this testimony to be admissible by an expert who has been previously qualified.

The decision of the District Court is affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES GULBRANDSON, McDONOUGH and WEBER concur.

JUSTICE HUNT did not participate in this opinion.

JUSTICE SHEEHY specially concurs in the result.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    LYLE A. WATSON, d/b/a Law Realty, Plaintiff and Appellant, v. BASIL R. FULTZ, Defendant and Respondent.
    No. 88-469.
    Submitted on Briefs Aug. 31, 1989.
    Decided Oct. 17, 1989.
    Rehearing Denied Dec. 1, 1989.
    782 P.2d 361.

      K. Dale Schwanke, Jardine, Stephenson, Blewett & Weaver, Great Falls, for plaintiff and appellant.
    Linnell, Newhall & Martin; Norman L. Newhall, Great Falls, for defendant and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Plaintiff Watson sued defendant Fultz for a real estate commission on a sale of Fultz’s farm near Geraldine, Montana. Sitting without a jury, the District Court for the Eighth Judicial District, Cascade County, entered judgment for Fultz. Watson appeals. We affirm.

The issues are:

1. Did the District Court err in ruling that Watson was not éntitled to a real estate commission from Fultz?

2. Did the District Court err in awarding Fultz attorney fees and costs?

In June 1984, Fultz placed an ad in the Great Falls Tribune for the sale of his 5,000-acre farm. He intended to exchange his farm on a tax-free basis for another farm where he might pursue a cattle operation in addition to growing grain. Although Fultz did not list his farm with any realtors, several realtors, including Watson, attempted to locate purchasers for the farm.

By November of 1984, Fultz, with the assistance of a realtor other than Watson, had located a farm and ranch in Big Horn County which he wished to purchase. Fultz signed a Buy/Sell Agreement on the Big Horn County property on December 4, 1984. He entered into a standard listing contract with Watson for the sale of the Fultz farm two days later. As the District Court found, the contract included the following pertinent provisions:

“a. The selling price shall be ‘One Million Nine Hundred Thousand Dollars net to Seller and One Hundred Thousand Dollars to Law Realty for a total of Two Million Dollars.’
“b. The selling price shall be ‘paid in cash at time of close.’
“c. The agreement ‘begins on 12-6-84 and expires at midnight on 1-6-85.’
“d. This listing is subject to Fultz being able to satisfactory [sic] trade the above lands for lands in Big Horn Co. on a tax free exchange.
“e. This sale includes all lands.”

The listing contract was on a form supplied by Watson. Watson crossed out the standard form language providing for exclusivity of contract and typed in the words, “this is a non-exclusive listing.”

By December 6 and 7, 1984, Watson had obtained written offers to purchase portions of Fultz’s farm from Dan Roddy and Gene Mc-Keever, whom he had located before getting the listing contract with Fultz. These offers differed from the terms of sale in the listing contract in several aspects. They were offers to purchase less than all of Fultz’s farm and they both required Fultz to allow thirty days beyond January 15, 1985, for completion of financing. The offers also were contingent upon the buyers being able to obtain loans. Fultz signed counteroffers on December 14, 1984, which made the following changes to the offers: they deleted the provision allowing thirty days beyond January 15, 1985, for completion of financing; they inserted a provision that each sale was subject to all of Fultz’s farm land being sold; and they inserted a provision that the “Federal Land Bank must have a commitment from Spokane by December 31, 1984 [for financing].” McKeever refused to accept Fultz’s counteroffer.

On December 28 and 29, 1984, Watson obtained three new offers for a portion of the Fultz farm. The total acreage covered by these three offers did not include 800 acres of the farm. The offers, by their terms, were good for five days. Each of these provided that the offer was “subject to finance which will be confirmed by 15 Jan. 1985.” Fultz refused to accept the offers.

On January 4, 1985, Fultz called Watson’s office and left a message that he did not want Watson representing him any longer, that it was “taking too long.” Fultz met with Watson later that day.

On January 6, 1985, Watson was able to obtain an offer from John Bowman for the remaining 800 acres of the Fultz farm. The offer was contingent upon Watson taking a lesser commission on the sale and then making a resale of the property. This part of the agreement was not disclosed to Fultz. Watson was able to obtain extension agreements from two of his December 28 and 29 buyers, but the third buyer rescinded his offer in writing.

On January 8, 1985, Fultz met with his attorney and Watson. Fultz refused to sign the latest offers on his farm. This suit resulted. After a one-week trial, the District Court made comprehensive findings and conclusions and entered judgment for Fultz.

I

Did the District Court err in ruling that Watson was not entitled to a real estate commission from Fultz?

Watson makes several arguments under this issue. He first asserts that he is entitled to a commission because Fultz prematurely terminated his authority to sell Fultz’s farm.

The findings of the District Court contain nothing about Fultz’s call to Watson’s office on January 4, 1985, in which he allegedly terminated the contract. However, as Fultz points out, Watson testified that after his meeting with Fultz later that day, he went on with the understanding that the listing agreement was still in effect. Additionally, Fultz met with one of Watson’s buyers on January 6. We conclude that the District Court did not err in omitting any finding that Watson’s authority had been prematurely terminated.

The listing contract between Watson and Fultz contained the following clause which Watson typed in:

“This listing is subject to Fultz being able to satisfactory [sic] trade the above lands for lands in Big Horn Co. on a tax free exchange.”

Watson argues that an objective standard for a satisfactory trade should be used. The District Court found that since the listing contract was drafted by Watson, any ambiguities must be construed against him and in favor of Fultz. It found that “[t]he term ‘satisfactory’ is a subjective standard rather than a reasonable man standard.” We agree. Fultz testified that the trade arranged by Watson was not satisfactory to him because his accountant told him that the tax consequences to him of the exchange would be in the range of $80,000 to $100,000. We conclude that Fultz’s testimony was sufficient to show that the trade arrangement was not satisfactory to him and thus did not meet the contract requirement set forth in the clause printed above.

Watson’s next argument is that he did not breach his fiduciary duty to Fultz by failing to disclose his side agreement with Bowman. Under that agreement, Watson would forego $30,000 of his sales commission on the portion of Fultz’s farm sold to Bowman until he resold that portion of the farm for Bowman. The District Court found that Watson thereby breached his fiduciary duty to Fultz because he acquired a personal stake in the sale by which his “personal interests became paramount to the interests to Fultz.” This finding is supported by this Court’s statement in Lyle v. Moore (1979), 183 Mont. 274, 277, 599 P.2d 336, 337:

“This fiduciary relationship between a broker and his client has been found to encompass a ‘duty of full disclosure’ by a number of courts.”

We hold that the finding that Watson breached his fiduciary duty to Fultz is not clearly erroneous.

Watson’s final argument under this issue is that the offers he produced did not vary substantially from the terms of the listing contract. However, Watson did not find buyers for all of the farmland until after the listing agreement expired on January 6, 1985. Watson did not come up with a “satisfactory trade” on a “tax free exchange.” Watson did not arrange cash sales, but sales dependent upon financing which would not, by the terms of the offers, be certain until after the listing had expired. We agree with the District Court that these differences constituted substantial variation from the terms of the listing contract.

In summary, we hold that the District Court did not err in ruling that Watson was not entitled to a real estate commission from Fultz.

II

Did the District Court err in awarding Fultz his attorney fees and costs?

The listing contract between Watson and Fultz provided that,

“In case you engage an attorney’s services in regards to this contract, or in case of suit or action on this contract, I/we agree to pay collection costs, court costs and reasonable attorney fees, both trial and appellate, incurred by you, if you prevail.”

The contractual right to attorney fees is reciprocal. Section 28-3-704, MCA.

The hearing on attorney fees to be awarded to Fultz was set in the District Court’s findings, conclusions, and order. That document stated, on its final page:

“IT IS HEREBY ORDERED that a hearing to determine Defendant’s attorney’s fees is set for the 16th day of March, 1988, at 2:30 o’clock p.m. Thereafter, a final judgment will be entered.”

Watson’s attorney states that he did not notice this portion of the findings, conclusions, and order. He also did not notice the mention of the hearing date in Fultz’s March 3, 1988, motion to amend findings, with which he was served. When he failed to appear at the March 16 hearing, he was summoned to the courtroom. The court refused his request for a continuance and allowed Fultz to present his evidence in support of his claim for $27,888.75 in attorney fees and $637.60 in costs.

Watson argues that even if this Court upholds the lower court’s ruling on Issue I, it should reverse the award of attorney fees and costs to Fultz. He asks for a new trial on attorney fees. He argues that any negligence of his attorney in failing to notice that the hearing date had been set should not be imputed to him.

In Griffin v. Scott (1985), 218 Mont. 410, 413, 710 P.2d 1337, 1339, we held that the district court did not abuse its discretion in ruling that an attorney’s failure to read his mail for five weeks was not excusable neglect under which relief from judgment was available pursuant to Rule 60(b), M.R.Civ.P. Similarly, in this case we hold that the District Court did not abuse its discretion in ruling that Watson’s counsel’s failure to carefully read the court’s findings, conclusions, and order was not excusable neglect.

Watson also states that Fultz failed to supplement his answers to interrogatories with the name of the expert witness called to testify in support of the amount of attorney fees claimed. However, the interrogatories and the pre-trial order requiring supplemental answers to interrogatories were directed to witnesses at the trial in this matter, not to those at the post-trial hearing on attorney fees. We hold that Fultz was not required to supply Watson with the name of his witness at the hearing on attorney fees.

Affirmed and remanded to the District Court for a determination of the amount of attorney fees to be awarded to Fultz on the appeal, pursuant to the parties’ contract.

JUSTICES HARRISON, SHEEHY, McDONOUGH and GULBRANDSON concur.


author: JUSTICE HUNT

text:
    In the MATTER OF B.J., a Youth Under the Age of Eighteen.
    No. 89-052.
    Submitted on Briefs July 20, 1989.
    Decided Oct. 17, 1989.
    780 P.2d 1132.
    Timothy J. Lape, Poison, for appellant.
    Marc Racicot, Atty. Gen., Paul D. Johnson, Asst. Atty. Gen., Helena, Larry Nistler, County Atty., Robert Anderson, Deputy, Poison, for respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

B.J., a youth under the age of eighteen, appeals from the transfer of jurisdiction over his robbery charge under § 45-5-401 (1) (b), MCA, and his felony assault charge under § 45-5-202(2)(b), MCA, from Youth Court to the District Court of the Twentieth Judicial District, Lake County pursuant to § 41-5-206, MCA. We affirm.

The issue raised on appeal is whether substantial credible evidence supported the District Court’s order transferring jurisdiction from Youth Court to District Court.

On December 6, 1988, B.J. and two accomplices were alleged to have robbed the Holt family at gunpoint in violation of § 45-5-202(2)(b), MCA, and § 45-5-401(l)(b), MCA. Youth Court petitions were filed on December 7, 1988, and January 4, 1989, which charged B.J. with the offenses. Also on January 4, 1989, the State filed a motion to transfer the cause to District Court under § 41-5-206, MCA. A hearing on the motion was held on January 23, 1989. Testimony and evidence detailing the events of December 6, 1988, were presented at the hearing.

Holt, the robbery and assault victim, testified that on December 6, 1988, three men approached his home by driving a vehicle up his driveway, across his lawn, and up to his back door. Holt testified that his home was without lights due to a power outage that evening. Holt walked out of his home to investigate and was greeted by a man, he later identified as B.J., who placed a shotgun to Holt’s head. Holt then testified that he inquired as to the seriousness of the situation to which B.J. replied, “God damn serious,” and that they were going to kill Holt.

The three men then ordered Holt to tell his wife to open the door to the Holt residence or they would kill her. The Holts’ two young children were also in the home. The men entered the darkened home, tore the telephone off the wall and demanded “drugs, money, and the keys to your car.” Holt testified that he gave the men his wallet, told them that he did not have any drugs, and told them that the keys to his car were in the ignition. Holt started his car for the three men, who drove off in it leaving their original vehicle behind. Holt stated that during the entire ordeal, he was held at gunpoint and repeatedly threatened with his life.

Sheriff’s detective Michael Walrod testified at the hearing that he arrived at the Holt residence at approximately 12:30 a.m. shortly after the three men departed. He ran a check on the vehicle abandoned by the threesome and discovered that it was registered to B.J.’s mother. A sheath knife and a club was found therein.

Sanders County Sheriff Bill Alexander testified that on December 7, 1988, he stopped the stolen Holt vehicle after receiving a dispatch report of an armed robbery. He then arrested the occupants. A search of the vehicle revealed a military sheath knife, a sheath knife, 20 gauge shotgun shells, a .22 caliber pistol, and a shotgun. The weapons found in the vehicle were introduced as the State’s exhibits during the transfer hearing.

The chief juvenile probation officer for Lake County, David Mc-Dougall, testified as to his current file on B.J., stating that B.J. was seventeen years old at the time of the offense; that in 1983, B.J. was on juvenile probation for burglary; that B.J. was charged repeatedly with theft in 1986; that B.J. was placed unsuccessfully in youth homes from October 1986 through February 1988; that B.J. was expelled from high school in 1987; and, that in January 1988, B.J. was charged with intimidation and other minor offenses for which he was adjudged delinquent by the Youth Court in March of 1988. Mc-Dougall further testified that B.J. was ordered to Pine Hills School for boys for a 45 day psychological evaluation, which resulted in a negative report. McDougall stated that in his opinion, B.J. would not be an appropriate candidate for the Pine Hills School because he was too advanced in age, his criminal record was too serious, and he was too mature for the programs offered at the facility.

The deputy superintendent for program group living at Pine Hills, Don Lee, also testified at the hearing. He stated that given the serious nature of B.J.’s criminal record, he would oppose B.J.’s placement in Pine Hills School and, that the only institution suitable for placement of B.J. would be the state prison.

Upon consideration of the testimony and the evidence submitted, the court granted the State’s motion to transfer to District Court. B.J. argues that the motion was improperly granted because it was not predicated on substantial credible evidence. We disagree.

Section 41-5-206, MCA, sets forth, in part, the requirements which must be met before a Youth Court case can be transferred to District Court as follows:

“(1) After a petition has been filed alleging delinquency, the court may, upon motion of the county attorney, before hearing the petition on its merits, transfer the matter of prosecution to the district court if:
“(a)(ii) the youth charged was 16 years of age or more at the time of the conduct alleged to be unlawful and the unlawful act is. . .
“(C) aggravated or felony assault as defined in 45-5-202;
“(D) robbery as defined in 45-5-401;
“(d) the court finds upon the hearing of all relevant evidence that there is probable cause to believe that:
“(i) The youth committed the delinquent act alleged;
“(ii) the seriousness of the offense and protection of the community require treatment of the youth beyond that afforded by juvenile facilities; and
“(iii) the alleged offense was committed in an aggressive, violent, or premeditated manner.” (Emphasis ours.)

The statute also provides that the court may consider the sophistication and maturity of the youth as well as his record and previous history.

Here, the statutory requirements of § 41-5-206, MCA, were met. B.J. is seventeen years old, is alleged to have committed both felony assault and robbery, and the court found that the evidence presented at B.J.’s hearing was sufficient to establish probable cause as required under the statute.

The court’s findings of fact provided the following:

“The seriousness of the offenses alleged and the protection of the community require treatment of the youth beyond that afforded by juvenile facilities.”

The finding was supported by the court’s comments as reflected in the transcript. The court stated that the seriousness of the offenses were beyond treatment available in juvenile facilities of the state and that the only alternative to being placed in the state prison would be to place B.J. on probation, which has proved to fail in the past.

Substantial credible evidence supported the court’s findings. At the transfer hearing, testimony and evidence was presented. As previously noted, Holt, the robbery and assault victim, testified as to the events of December 6, 1988, and identified B.J. as one of the perpetrators; a sheriff’s detective testified as to his investigation of the crime in which weapons were found in the perpetrator’s abandoned vehicle; the Sanders County Sheriff testified as to the arrest of B.J. and his accomplices; the subsequent search of Holt’s stolen vehicle revealed various weapons (the weapons were introduced as the State’s evidence during the transfer hearing); the chief juvenile probation Officer for Lake County testified as to B.J.’s criminal history and to the negative test results of B.J.’s psychological evaluation; and the deputy superintendent for program living at Pine Hills testified that he would oppose B.J.’s placement at the facility. We hold that the testimony and evidence submitted during the transfer hearing was substantial and credible. The transfer of jurisdiction from Youth Court to District Court was proper.

Affirmed.

JUSTICES HARRISON, WEBER, McDONOUGH and SHEEHY concur.


author: JUSTICE HARRISON

text:
    STATE COMPENSATION INSURANCE FUND, Appellant, v. SKY COUNTRY, INC., Respondent.
    No. 89-72.
    Submitted on Briefs Aug. 31, 1989.
    Decided Oct. 17, 1989.
    780 P.2d 1135.
    Charles Adams, State Comp. Ins. Fund, Helena, for appellant.
    John P. Atkins, Bryan & Atkins, Bozeman, for respondent.
    Marc Racicot, Atty. Gen., Clay R. Smith, Solicitor, Helena, for amicus curiae.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This appeal results from a lengthy administrative process which culminated in the Workers’ Compensation Court. Respondent Sky Country, Inc., a Bozeman trucking firm, contested a finding by the Audit Bureau of the Department of Labor and Industry concluding that several of its drivers classified as “independent contractors” were actually “employees” for Workers’ Compensation insurance purposes. Further administrative proceedings affirmed the Audit findings, and Sky Country sought judicial relief in the Workers’ Compensation Court. The Workers’ Compensation Court held that Sky Country had been denied due process of law because the Division of Workers’ Compensation was the real party in interest as well as the prosecutor and adjudicator in the administrative process and reversed the administrator’s decision. From that decision, the State Compensation Insurance Fund appeals.

Sky Country is insured by the State Compensation Fund under Plan No. 3 of the Workers’ Compensation Act, as prescribed in § 39-71-2301, et seq. MCA. Following a February 1986 audit, the Department of Labor and Industry concluded that, for purposes of reporting for workers’ compensation and unemployment insurance, certain individuals were employees rather than independent contractors. Because the workers were reclassified as employees, it was determined that Sky Country owed an additional $2,907.59 for premium underpayment for its workers’ compensation insurance from July 1, 1984 through June 30, 1985.

In September 1986, Sky Country requested an administrative review of the audit determination. Upon review, which included an informal conference, the administrator of the Division of Workers’ Compensation agreed with the audit finding that the individuals were employees rather than independent contractors.

Sky Country next initiated contested case proceedings under the Montana Administrative Procedure Act, found at Title 2, Chapter 4, Part 6, MCA. In May 1987, an evidentiary hearing was held before Steven Shapiro, a hearing examiner and chief legal counsel for the Workers’ Compensation Division. Shapiro’s findings were also adverse to Sky Country, The administrator of the Division of Workers’ Compensation issued the Division’s Final Order which adopted the hearing examiner’s proposed decision.

Sky Country then sought relief in the Workers’ Compensation Court, filing a Petition for Appeal in September, 1988. Of the various grounds for reversal, Sky Country’s assertion that it was denied due process because the Workers’ Compensation Administrator’s decision was “tainted by the pecuniary interest the [Workers’ Compensation] Division has in the outcome” persuaded the Workers’ Compensation Court. The Workers’ Compensation Court reversed, holding that Sky Country had been denied due process of law in violation of Article II, Section 17, Mont. Const. (1972) “because the Division of Workers’ Compensation is the real party in interest . . . as well as the prosecutor and adjudicator[.]” The Workers’ Compensation Court explicitly noted that there was no evidence that either the hearing examiner or the Workers’ Compensation Administrator exhibited “any improper, arbitrary conduct in the hearing and decision-making process.”

The issues presented by the parties to this action focus on whether Article II, Section 17 of the Montana Constitution barred the Division of Workers’ Compensation from assuming jurisdiction of the underlying dispute concerning the employment status of the individuals working for Sky Country. Through an amicus curiae brief, the Montana Attorney General proffers a second, and we think more compelling, issue: Does § 39-71-415, MCA, require that the administrative proceeding be transferred from the Division of Workers’ Compensation to the Appeals Bureau of the Department of Labor and Industry as of July 1, 1987, thereby denying the Workers’ Compensation Court jurisdiction to determine the appeal from such proceeding?

Although the controversy over the status of Sky Country’s workers arose before the effective date of § 39-71-415, MCA, the statute nonetheless applies to this dispute. Section 39-71-415, MCA, which became effective on July 1, 1987, provides a procedure for resolving disputes regarding independent contractor status. Section 39-71-415(1), MCA, states:

“(1) If an individual, employer, or insurer has a dispute as to whether an individual is an independent contractor or an employee as defined in this chapter, any party may petition a department of labor and industry appeals referee for resolution of the dispute in accordance with 39-51-1109 and may appeal from a decision of the appeals referee in the same manner as prescribed in 39-51-2403 and 39-51-2404.”

The legislative intent is to create a single administrative procedure for settling disputes over the status of workers as employees or independent contractors for both unemployment compensation and workers’ compensation purposes. February 17, 1987, Minutes of Senate Labor and Employment Relations Committee at 1-4; March 13, 1987, Minutes of House Business and Labor Committee at 2-3. Sky Country’s quarrel with the audit finding that its workers were employees for insurance purposes fits squarely within the intent of § 39-71-415, MCA.

Section 1-2-109, MCA, provides that “[n]o law contained in any of the statutes of Montana is retroactive unless expressly so declared.” New legislation, such as in this case, which affects only procedural matters and does not relate to substantive rights of the parties does not fall within the ambit of § 1-2-109, MCA. Weiss v. State (1986), 219 Mont. 447, 449, 712 P.2d 1315, 1316.

The status of a worker as to whether he is an independent contractor or an employee implicates more than just collection of workers’ compensation premiums. It also involves the rights of the State to collect unemployment compensation contributions and has other State and Federal implications. Accordingly, a procedure before the Department of Labor was established by the legislature for a more comprehensive examination of the status of such workers. We conclude this is the appropriate procedure to follow.

We now remand and direct the controversy be resolved in accordance with the provisions of § 39-71-415, MCA. This matter is remanded to the Workers’ Compensation Court which shall vacate its order and dismiss the appeal. The Division of Workers’ Compensation shall then vacate its final order and transfer the matter to the Department of Labor and Industry for disposition, in accordance with §§ 39-71-415 and 39-51-1109, MCA, consistent with this opinion.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, Mc-DONOUGH, WEBER, GULBRANDSON and HUNT concur.


text:
    GARY ALLEN GIBSON, Plaintiff and Appellant, v. CHUCK SWANSON and Julie Swanson, Defendants and Respondents.
    No. 89-132.
    Submitted on Briefs Sept. 15, 1989.
    Decided Oct. 17, 1989.
    780 P.2d 1137.
    Gary Allen Gibson, Atlanta, Ga., pro se.
    Richard W. Heard, Columbus and Douglas C. Allen, Great Falls, for defendants and respondents.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Gary Allen Gibson brought this suit against the Swansons for breach of contract on a thoroughbred mare they sold him. Gibson failed to appear for trial. The District Court of the Eighteenth Judicial District, Gallatin County, entered judgment for the Swansons. Gibson appeals. We affirm.

Gibson states the issue as whether the District Court abused its discretion in granting judgment for the Swansons.

In November 1985, Gibson agreed to purchase a nine-year-old thoroughbred mare, What-a-Hurry, from the Swansons. The purchase price, arrived at after several months’ negotiations, was $12,000. In February 1986, the mare was transported by commercial carrier from Whitehall, Montana, near the Swansons’ farm in Gallatin Gateway, Montana, to Bohon Farm in Harrodsburg, Kentucky.

Gibson’s complaint alleged that What-a-Hurry was not sound for breeding when the Swansons sold her, although that was a condition of the sale. Gibson asked for damages including the contract price; boarding, transportation, and breeding fees for What-a-Hurry; punitive damages; and his costs and attorney fees in bringing this action.

Gibson retained counsel in Bozeman, Montana, for approximately six months after he filed his complaint. That attorney withdrew in September 1988, four months prior to trial. Gibson did not appear in person or by counsel at the January 1989 pretrial hearing, which had been scheduled three months in advance. At the pretrial hearing, the court entertained a written motion by Gibson to continue the trial date. The court reviewed the history of the case and ruled that “Plaintiff has had one year’s notice of the trial setting in this matter and his request to continue the same served three (3) days before the final Pretrial Conference is not timely nor justified.”

Gibson did not appear by counsel or in person at trial. Defendant Chuck Swanson testified that What-a-Hurry was in good condition and sound for breeding when transported from his farm. A.O. Chub Askins testified that he is a horse breeder who served as Gibson’s agent in fall 1985. He testified that he examined What-a-Hurry for Gibson at that time and found no problems, particularly relating to breeding. Dr. Sid Gustafson, a Bozeman veterinarian, also testified. He stated that he had treated What-a-Hurry in 1984 and 1985 and that he had discussed the mare’s medical history with Gibson in November 1985, giving his opinion that the mare was sound for breeding.

The court entered its findings of fact and conclusions of law, ruling that' the Swansons had complied with all their legal obligations under the terms of the sale to Gibson. It awarded the Swansons $80 as their costs of suit.

Gibson objects on appeal to the admission of A. O. Askins’ testimony into evidence. However, evidence is admissible unless a timely objection to its admission is raised. Rule 103, M.R.Evid. Because Gibson failed to appear for trial, he has waived any right to object to admission of evidence.

Gibson next argues that the court should have found that the Swansons defrauded him. He correctly sets out the nine elements of fraud. See McGregor v. Mommer (1986), 220 Mont. 98, 105, 714 P.2d 536, 540. However, this argument fails because Gibson presented no evidence at trial to support his claim.

Finally, Gibson argues that there was insufficient evidence to support that What-a-Hurry was sound for breeding at the time of the sale. The testimony of all three witnesses at trial supports the finding that What-a-Hurry was sound for breeding at the time of the sale. We note that Gibson did not produce any evidence that What-a-Hurry was not sound for breeding at the time of the sale. We hold that the District Court did not abuse its discretion in finding that What-a-Hurry was sound for breeding at the time of sale.

Affirmed.

JUSTICES HARRISON, SHEEHY, WEBER and McDONOUGH concur.


text:
    JEANETTE SLOAN, as conservator of the Estate of John P. Sloan, Plaintiff and Respondent, v. RICHARD FAUQUE and Ted Zenzius, Defendants and Appellants.
    No. 89-220.
    Submitted on Briefs Aug. 24, 1989.
    Decided Oct. 17, 1989.
    784 P.2d 895.
    Stephen C. Berg, Warden, Christiansen, Johnson & Berg, Kalispell, for defendants and appellants.
    Stephen D. Roberts, Bozeman, for plaintiff and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Richard Fauque and Ted Zenzius, defendants and appellants, appeal from a partial summary judgment entered in favor of plaintiff and respondent, Jeanette Sloan, as conservator of the estate of John P. Sloan, by the District Court of the Ninth Judicial District, Glacier County. We affirm and remand for proceedings pending before the District Court.

The sole question raised on appeal is whether the District Court properly granted a partial summary judgment pursuant to Rule 56(a), M.R.Civ.P., in favor of respondent on the issue of liability.

The facts of the case are undisputed. On April 5, 1987, Zenzius attended a “kegger” party in Shelby, Montana. Among the guests were Will Newberry, Mark Barnes, and Glen Gorman. Later that evening, the party moved to the Newberry home in Cut Bank. Zenzius transported the keg from the Shelby residence to the Cut Bank residence in his vehicle. The keg was taken into the Newberry home where it was made available for consumption. The party-goers proceeded to drink the contents of the keg.

On that same evening, Fauque, who was walking home from work, was approached by Barnes, who asked Fauque if he wanted to drink some beer. Fauque responded in the affirmative and the pair proceeded to the Newberry residence in the Barnes vehicle, where Fauque did in fact consume the beverage.

Shortly thereafter, some Shelby kids arrived at the party and wanted to take the keg. An argument ensued over the matter between Barnes, Gorman, and the Shelby kids. The Shelby kids took the keg and left the party in a vehicle driven by Jeffrey Hodges (the Shelby vehicle). As the vehicle departed, Gorman and Barnes yelled and screamed at the vehicle’s occupants.

Gorman returned to the Newberry residence and informed everyone that the Shelby kids had called them a derogatory name. He then encouraged the people in the house to go with him to “beat up” the Shelby kids. Fauque and Zenzius were present at that time.

Fauque and Zenzius voluntarily joined Gorman, Barnes, and New-berry in Barnes’s vehicle to pursue the Shelby vehicle. Zenzius later stated that he assumed that “we were going to get in a fight” when the group got into the vehicle and that the group was the type who would get into such a fight. Both Fauque and Zenzius were aware of the violent reputation of Gorman.

As Barnes was backing his vehicle out of the driveway, it became stuck on a fence. Fauque assisted Barnes in freeing the vehicle by stepping on the fence. Approximately five minutes had lapsed since the departure of the Shelby vehicle. Both Fauque and Zenzius were aware that the Barnes vehicle would have to speed to catch up to the Shelby vehicle. The Barnes vehicle did in fact travel 80-90 miles per hour on U.S. Highway 2 from Cut Bank to Shelby in pursuit of the Shelby vehicle.

The Barnes vehicle did catch up with the Shelby vehicle, at which time the two vehicles passed each other back and forth. Gorman leaned out the back window of the driver’s side of the Barnes vehicle and yelled at the kids in the Shelby vehicle. He then leaned out the window and opened the door of the Shelby vehicle. He also threw a piece of rubber at the vehicle. At no time did either Fauque nor Zenzius say anything to anyone about slowing down or abandoning the chase. As a consequence of the chase, a collision occurred between the two vehicles which resulted in serious and disabling injuries to John Sloan, a passenger in the Shelby vehicle.

The sole question raised on appeal is whether the District Court properly granted a partial summary judgment pursuant to Rule 56(a), M.R.Civ.P., in favor of respondent on the issue of liability.

A party moving for summary judgment must prove that he is entitled to summary judgment as a matter of law by demonstrating an absence of any genuine issue of material fact. Cereck v. Albertson’s, Inc. (1981), 195 Mont. 409, 637 P.2d 509. As noted, the facts of the case are not in dispute. The appeal centers around whether Fauque and Zenzius are liable as tortfeasors acting in concert — a question of law.

Fauque and Zenzius argue that their involvement in the action does not constitute a tort since they were not driving the vehicle involved in the accident but were merely passengers in the vehicle. The District Court, however, found that defendants did indeed act in concert as tortfeasors as defined in part in Restatement (Second) of Torts § 876 (1979) as follows:

“For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he
“(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself.”

While the issue raised is one of first impression in Montana, several other jurisdictions have determined that where two or more persons commit tortious acts in concert, all are liable for the tortious acts of anyone. Huckeby v. Spangler (Tenn. 1975), 521 S.W.2d 568. See also Herman v. Westgate (N.Y. App. Div. 1983), 94 A.D.2d 938, 464 N.Y.S.2d 315 (equal liability found where defendant participated in the concerted activity of throwing stag party guests from a barge); American Family Mutual Ins. Co. v. Grim (Kan. 1968), 201 Kan. 340, 440 P.2d 621 (joint and several liability found where defendant aided, abetted, and encouraged breaking into a church at night to steal sodas and, unknown to the defendant, his two friends lit torches to light the darkened church, which subsequently caused a fire therein).

Defendants argue that because they were not in control of the Barnes vehicle and did not make any encouraging statements to the driver, they should not be held liable for the resulting accident. We disagree. In Schiller v. Strangis (D. Mass. 1982), 540 F.Supp. 605, the court held that where the defendant knowingly joined in committing a tort and by his silence encouraged the tort, he was liable. The same holds true in the present case. Fauque and Zenzius voluntarily joined the group in the Barnes vehicle. They knew the vehicle would have to speed to catch up with the Shelby vehicle. They also knew that the purpose of the chase was to eventually assault the occupants of the vehicle. The silence of the defendants during the chase does not negate their involvement nor excuse their liability.

Further, Fauque and Zenzius acted affirmatively in the joint tortious plan to chase after the Shelby vehicle and assault its occupants. Both men responded to Gorman’s statement that they should “beat up” the Shelby kids by voluntarily joining the group in the Barnes vehicle for the common purpose of committing an intended assault; Fauque substantially assisted in freeing the Barnes vehicle from a fence in order for the chase to commence; and both defendants remained silent during the chase and did not make any demands of abandoning the chase nor slowing the vehicle to anyone therein. Fauque and Zenzius encouraged Barnes’s actions and gave him substantial assistance, thus, acting in concert with the occupants of the Barnes vehicle and are subject to liability. Summary judgment was proper.

Affirmed and remanded for proceedings pending before the District Court.

JUSTICES HARRISON, SHEEHY, WEBER and McDONOUGH concur.


text:
    In the MATTER OF H.R.B. and K.R.B., Youths in Need of Care.
    No. 89-277.
    Submitted on Briefs Sept. 27, 1989.
    Decided Oct. 17, 1989.
    780 P.2d 1139.
    J. Mayo Ashley, Helena, for appellant.
    Marc Racicot, Atty. Gen., Dorothy McCarter, Asst. Atty. Gen., Mike McGrath, County Atty., Leo Gallagher and Carolyn Clemens, Deputy County Attys., Helena, for respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from a ruling of the First Judicial District, Lewis and Clark County, terminating the mother’s legal custodial rights to H.R. and K.R.B. and transferring legal custody of the children to the State. The mother retained the right to supervised visitation with her children. We affirm.

Appellant presents a single issue for review: Did the District Court err in terminating the mother’s legal custodial rights to H.R. and K.R.B. and in transferring legal custody to the State?

On October 13,1987, Lewis and Clark County Family Services personnel removed H.R. and K.R.B. from their mother’s care and placed them at Shodair Hospital for evaluation. Both children had exhibited symptoms of emotional disturbance at school. The District Court subsequently issued an order for temporary investigative authority and protective services. During the investigative portion of these proceedings, Family Services discovered at least 32 referrals of the mother for abuse or neglect to Human Service agencies in Washington and Oregon. These agencies had intervened in the family and in 1981 the State of Washington removed the children from their mother for an extended time.

The mother has been evaluated by a number of mental health professionals since 1981 and all concur that the mother suffers from long-standing emotional problems that adversely affect her ability to parent. The children were evaluated at Shodair and both were found to be severely emotionally disturbed as a result of their mother’s extensive abuse and neglect. Prominent in the children’s history are incidents of sexual and physical abuse by the mother’s male friends and also their uncle. As a result of Shodair’s recommendations, H.R. was placed in a foster home and K.R.B. was placed at the Deaconess Home where she will remain for at least two years. Both children will require extensive therapy.

The District Court adjudicated these children as youths in need of care on February 23, 1988. A treatment plan was formulated and approved by the District Court on April 13, 1988. The treatment plan outlined a two phase program, Phase I of which carried a 180-day timetable. On November 17, 1988, the Lewis and Clark County Attorney petitioned for permanent custody of the children to be awarded to the State (Montana Department of Family Services).

The December 28, 1988 permanent custody hearing transcript reveals that the State held itself to the standard of proof required to terminate parental rights pursuant to § 41-3-609, MCA, even though it did not seek termination of all parental rights. The District Court utilized § 41-3-609 criteria in reaching its decision. In relation to children adjudged youths in need of care, § 41-3-609, MCA, sets forth the following criteria for termination of parental rights:

“41-3-609(1)(c) the child is an adjudicated youth in need of care and both of the following exist:
“(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
“(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.”

Because the parents’ right to custody is a fundamental interest, the State must show by clear and convincing evidence that the statutory criteria have been met. Matter of J.L.S. (Mont. 1988), [234 Mont. 201,] 761 P.2d 838, 840, 44 St.Rep. 1842, 1845. Our decisions hold that we will not reverse a district court’s decision regarding findings of fact unless the findings of fact are not supported by substantial credible evidence. Matter of A.H. (Mont. 1989), [236 Mont. 323,] 769 P.2d 1245, 1247, 45 St.Rep. 395, 397.

The District Court found that the mother had not complied with the treatment plan and that the treatment plan had not been successful. Further, the District Court found that the mother’s conduct was unlikely to change within a reasonable time.

Appellant contends that the District Court erred because the State did not present evidence that she failed to comply with the treatment plan. As well, appellant argues that the evidence does not support the conclusion that her behavior would not change within a reasonable time. We disagree.

At the hearing, the District Court heard evidence from the social worker supervising the treatment plan, one of H.R.B.’s foster parents, the four mental health professionals involved in the case, and the mother. At best, the testimony reveals that the mother had partially complied with the treatment plan. The District Court’s findings acknowledge that some progress had been made toward achieving the objectives of Phase I of the treatment plan. However, contrary to appellant’s apparent contention, partial compliance is not the same as the statutory criteria of compliance set forth in § 41-3-609(l)(c)(i), MCA. Also, appellant does not appear to challenge the District Court’s finding that the treatment plan was not successful which is an alternative choice under § 41-3-609(1) (c)(i), MCA. Instances of the mother’s noncompliance with the treatment plan appear in the record as well as instances of compliance. The record contains no evidence that the mother complied with the treatment plan in its entirety. Thus, the record supports the District Court’s finding that the mother had not complied with the treatment plan and that the treatment plan was unsuccessful.

Appellant next attacks the finding that the mother’s conduct is unlikely to change within a reasonable time, the second prong of the termination criteria in § 41-3-609(1)(c), MCA. In support of her argument, appellant cites her treating therapist’s testimony that she could “turn her(self) around” in eight months to a year, a reasonable time she contends. However, appellant mischaracterizes the therapist’s testimony. Although the therapist did testify that appellant might be able to change her conduct in eight to twelve months, the therapist’s prognosis was extremely guarded. He testified that the chances of the mother being able to take the children back sometime in the future were “not wonderful.”

Also appellant’s assertion that eight to twelve months is a reasonable time ignores the mandate of § 41-3-609(3), MCA. That mandate instructs the court to give primary consideration to the needs of the children when evaluating whether a parent’s conduct is likely to change within a reasonable time. Thus the inquiry really focuses on the mental and physical health of the children and the urgency of their needs. Similar to the child in Matter of D.S.N. (1986), 222 Mont. 312, 722 P.2d 614, experts in this case testified that H.R. and K.R.B. need stability and predictability in their lives now if they are ever to become emotionally healthy. As with D.S.N., experts testified that further delay in providing H.R. and K.R.B. with that stability and predictability would be highly detrimental to them. The testimony regarding the immediacy of the children’s needs and the extremely guarded prognosis regarding the likelihood that the mother’s conduct will change provided substantial credible evidence for the District Court’s decision.

In summary, the District Court found that the State met its burden of proof under § 41-3-609(l)(c), MCA. Substantial credible evidence in the record supports that decision. Thus, the District Court’s decision to transfer legal custody to the State was not an abuse of discretion.

We affirm the District Court.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, HUNT and BARZ concur.


author: JUSTICE BARZ

text:
    TOM M. FIELDS and Vicki J. Fields, Plaintiffs and Appellants, v. MAE WELLS, Defendant and Respondent.
    No. 89-344.
    Submitted on Briefs Sept. 15, 1989.
    Decided Oct. 17, 1989.
    Rehearing Denied Nov. 3, 1989.
    780 P.2d 1141.

      Tom and Vicki Fields, Mentor, Ohio, pro se.
    John H. Grant, Jackson, Murdo & Grant, Helena, for defendant and respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

Plaintiffs, Thomas M. and Vicki J. Fields, filed a complaint in the District Court of the First Judicial District, Lewis and Clark County, seeking monies allegedly due from defendant, Mae Wells. The District Court dismissed the complaint with prejudice. Plaintiffs appeal. We affirm.

On appeal, each party sets forth its own version of the issues. However, the germane issues raised on appeal are:

1. Whether the District Court abused its discretion in denying plaintiffs’ request for a continuance of the May 5, 1989 trial.

2. Whether the District Court erred in granting defendant’s motion to dismiss plaintiffs’ complaint.

3. Whether the District Court erred in denying plaintiffs’ requests to order defendant to post bond and to name others as codefendants in the action.

4. Whether defendant is entitled to her attorney fees that were incurred as a result of this action.

Thomas M. and Vicki J. Fields, plaintiffs, brought this action in January, 1987, alleging that Mae Wells, defendant, breached a contract for the sale of a mobile home and therefore owed them over $4,000. After a series of unforeseen delays, a scheduling conference was held on March 3, 1989 and the trial was set for May 5, 1989. The Fieldses, who currently reside in Mentor, Ohio, did not attend the scheduling conference. Therefore, pursuant to Montana Uniform District Court Rule No. 10, Wells sent the Fieldses a notice dated March 13, 1989, advising them of the trial date, the scheduling conference order, and that they should either appear at trial or hire an attorney to enter an appearance on their behalf. The Fieldses responded with a “Reply to Court Order filed Mar. 6, 1989” dated March 11, 1989 and “Various Motions” dated March 19, 1989. In these documents, the Fieldses informed the court that they felt confident that the court could fairly judge the case based upon their March 11, 1989 letter and without them being present for the May 5, 1989 trial.

In a March 30, 1989 letter to the Fieldses, the District Court stated explicitly that if they did not attend the May 5, 1989 trial, they would automatically lose and the case would be dismissed. The District Court further explained that although it may bend certain procedural rules for individuals not represented by attorneys, certain rules cannot be waived, including a party’s right to require the opponents to appear and to cross-examine them.

The Fieldses subsequently filed a letter with the court dated April 3, 1989, stating that they understood that they would automatically lose the case if they did not appear for the May 5, 1989 trial, but nonetheless asserted that they should not be required to appear. The Fieldses then filed a request for continuance dated April 24, 1989 with the District Court. A copy was not sent to Wells or her attorney. In their “motion for continuance,” the Fieldses stated that they have sought to obtain competent counsel but asserted that the attorneys they contacted “felt that the financial condition of the defendant and the size of the amount owed [could not] justify the cost that the court is asking [them] to incur.” The District Court denied the motion.

The Fieldses did not appear at the May 5, 1989 trial nor did an attorney appear on their behalf. The District Court therefore granted Wells’ motion to dismiss, stating that the Fieldses failed to file a pretrial order by April 24, 1989, as ordered by the court; they failed to appear for the May 5, 1989 trial; and they failed to comply with the court’s scheduling order. The court dismissed the complaint with prejudice and awarded Wells the costs of her suit. The Fieldses appeal.

The first issue raised on appeal is whether the District Court abused its discretion in denying the Fieldses’ request for a continuance of the May 5, 1989 trial.

Sections 25-4-501 and -503, MCA, are the two statutory grounds under which a district court is authorized to grant a continuance. Section 25-4-501, MCA, states that “[a] motion to postpone a trial on grounds of the absence of evidence shall only be made upon affidavit showing the materiality of the evidence expected to be obtained and that due diligence has been used to procure it.” Section 25-4-503, MCA, states that “[u]pon good cause shown and in furtherance of justice, the court may, in its discretion, postpone a trial or proceeding upon other grounds than the absence of evidence under such conditions as the court may direct.” The District Court denied the Fieldses’ motion for continuance on the grounds that they failed to provide a good reason.

On appeal, this Court’s function is to determine whether the District Court abused its discretion. In the present case, the Fieldses did not meet the requirements mandated in either of the statutes that allow postponement of a trial. The Fieldses submitted neither an affidavit that showed the materiality of the evidence that they expected to obtain nor did they demonstrate a good cause that would allow the District Court, in its discretion, to postpone the trial. The Fieldses merely stated that they were attempting to locate an attorney to represent them and then provided a list of attorneys they supposedly contacted.

The record reveals that the Fieldses had ample time in which to locate an attorney to represent them. They were first notified by a letter dated March 13, 1989 from Wells’ attorney suggesting they procure an attorney to represent them and then subsequently by a letter from the District Court dated March 30, 1989. The Fieldses did not set forth a good cause as to why they were unable to obtain a counsel. The District Court therefore did not abuse its discretion in denying Fieldses’ motion for a continuance.

The second issue raised on appeal is whether the District Court erred in granting Wells’ motion to dismiss the Fieldses’ complaint.

The District Court sent a letter to the Fieldses dated March 30, 1989, stating explicitly that they would automatically lose the case if they did not appear for the May 5, 1989 trial. The Fieldses did not appear at the required time set for the trial. The District Court therefore granted Wells’ motion to dismiss, stating that the Fieldses failed to appear at the time and place set for trial and that they also failed to comply with the court’s scheduling order regarding preparation and filing of a pretrial order.

The Fieldses argue that considering the excessive cost they “feel that unless [Wells] can demonstrate a need for [their] appearance at the hearing, there is no reason for it.” The Fieldses reason that the case rests upon the documents already submitted to the court, and that any questions about these documents can be answered either by mail or by checking the public repositories for such records.

Unfortunately, the Fieldses’ misunderstanding of the law and their decision to ignore court directives has resulted in a failed attempt to bring a successful lawsuit. The Fieldses insist that they did not need to attend the May 5, 1989 trial, however, the law dictates otherwise. The Fieldses rely upon their March 11, 1989 letter to the District Court as sufficient evidence upon which the District Court could “fairly judge” the case. An examination of the March 11, 1989 letter, however, demonstrates that it is replete with hearsay. Hearsay is defined in our statutes as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), M.R.Evid. The March 11, 1989 letter contains numerous statements regarding the sale of the mobile home to Wells. The unsworn written statements were made out of court and did not afford Wells the opportunity to confront the writers — the Fieldses — or to question them as to the veracity of the statements. Under Rule 802, M.R.Evid., “[h]earsay is not admissible except as otherwise provided by statute, these rules, or other rules applicable in the courts of this state.” No exceptions are applicable in this case. The District Court therefore did not abuse its discretion in granting Wells’ motion to dismiss the Fieldses’ complaint.

The third issue raised on appeal is whether the District Court erred in denying the Fieldses’ requests to order Wells to post bond and to name others as codefendants.

In light of the disposition of issues number one and two, we do not need to address this issue.

The last issue raised on appeal is whether Wells is entitled to her attorney fees that were incurred as a result of this action.

The contract underlying this dispute provides that “[i]f legal action is necessary to enforce any of the provisions of this agreement, the successful party is entitled to his costs and reasonable attorney fees as determined by a court of competent jurisdiction.” Wells requested her costs and attorney fees in her counterclaim that she filed with the court dated March 24, 1987. In its May 12, 1989 Memorandum and Judgment, the District Court ordered the case dismissed with prejudice and awarded Wells the costs of her suit, but did not address the issue of attorney fees.

We have previously stated that a party’s right to attorney fees is based upon either a statute or an underlying contract which provides for their recovery. Northwestern Nat’l Bank v. Weaver-Maxwell, Inc. (1986), 224 Mont. 33, 44, 729 P.2d 1258, 1264; Diehl and Assocs. v. Houtchens (1979), 180 Mont. 48, 53, 588 P.2d 1014, 1017. In this case, the underlying contract provides for the recovery of attorney fees for the successful party in the lawsuit. The District Court issued a final judgment by dismissing the Fieldses’ complaint with prejudice. Wells therefore emerged as the successful party. We therefore remand this case to the District Court for a determination of reasonable attorney fees due Wells as a result of this lawsuit — fees generated from both the District Court action and the appeal — and for any additional costs that she incurred as a result of this appeal.

Affirmed and remanded.

JUSTICES HARRISON, McDONOUGH and HUNT concur.

JUSTICE SHEEHY recuses himself from participation in this case.


author: JUSTICE SHEEHY JUSTICE GULBRANDSON, CHIEF JUSTICE TURNAGE,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CHARLES MATTHEW FELDT, Defendant and Appellant.
    No. 88-624.
    Submitted on Briefs July 20, 1989.
    Decided Oct. 19, 1989.
    781 P.2d 255.
    Michael R. Tramelli, Great Falls, for defendant and appellant.
    Marc Racicot, Atty. Gen., James Yellowtail, Asst. Atty. Gen., Helena, Patrick Paul, County Atty., Stephen Hudspeth, Deputy, Great Falls, for plaintiff and respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Defendant, Charles Matthew Feldt, appeals his January 12, 1988, bench conviction in the Eighth Judicial District Court, Cascade County, for burglary and theft. The Honorable Joel G. Roth sentenced Feldt to serve five years for burglary and five years for theft, with the sentences to run concurrently. The imposition of both sentences was suspended. Feldt appeals the conviction of burglary. We reverse.

The issue on appeal is stated as follows: (1) Whether the trial court erred in finding that the defendant entered his employer’s premises “unlawfully,” thereby committing burglary under § 45-6-204(1), MCA.

On the morning of April 27, 1987, the manager of T.C. Foods, a convenient store in Great Falls, Montana, was called to the store by the morning clerk. Upon arrival, the manager found a set of keys in the door, subsequently determined to have been issued to defendant, Feldt, an employee at T.C. Foods. The manager discovered $1,459 was missing from the safe. In addition, the manager found a note posted on the cash register which stated, “I know you trusted me, but I couldn’t handle it at home. I am sorry. If you want, you can try and get the money out of my car or bike. Chuck.”

On April 28, 1987, the defendant turned himself in to the Great Falls police department. He gave the police a bag containing $1,219 at the time of his surrender. He confessed to entering the store after hours by means of his keys, taking the money and leaving the note on the cash register.

At trial, the manager testified that all employees were given keys to the store and access to the store safe. The defendant testified that he was required to open and close the store and he was permitted access to the store’s safe. According to both the manager and the defendant, the manager allowed employees to enter the store after business hours for any proper purposes. The evidence fails to disclose, from the State or from the defendant, that when the store key was delivered to Feldt, any limitation, written or oral, was placed upon his use of it, or upon his access to the safe.

I.

Whether the trial court erred in finding that the defendant entered his employer’s premises “unlawfully” thereby committing the act of burglary under § 45-6-204(1), MCA?

Section 45-6-204(1), MCA, defines burglary as follows:

“A person commits the offense of burglary if he knowingly enters or remains unlawfully in an occupied structure with the purpose to commit an offense therein ...”
“Enters or remains unlawfully” is defined in § 45-6-201, MCA, which reads in pertinent part:
“A person enters or remains unlawfully . . . when he is not licensed, invited, or otherwise privileged to do so.”

This Court in State v. Starkweather (1931), 89 Mont. 381, 297 P. 497 held that an entry made by one who is licensed or privileged to be on the premises is not unlawful under the burglary statute. The Court in Starkweather stated: “There is no breaking in or entering a house or room and therefore, no burglary, if the person who enters has a right to do so.” Starkweather, 297 P. at 498. To constitute a burglary the nature of the entry must itself be a trespass. Starkweather, 297 P. at 498.

This Court in Starkweather, focused on whether there was a limitation upon the defendant’s right to enter a pool hall. In Stark-weather, the Court found no limitation on the defendant’s right to enter the pool hall. This case turns on the same issue, that is whether there is any limitation on Feldt’s right to enter T.C. Foods. The defendant Feldt was given permission to enter T.C. Foods where he was employed. As an employee of T.C. Foods, the manager gave Feldt a set of keys to enter the store and provided Feldt with access to the safe. In issuing the keys, the manager provided Feldt with authority to enter the premises at any time. The record reveals no limitations to the defendant’s right to enter the store. However, the manager did testify at trial that'Feldt could only enter the store after it was closed for proper purposes. Despite the manager’s testimony, Feldt could enter T.C. Foods at any time day or night.

Under this Court’s holding in Starkweather, and §§ 45-6-204 and 201, MCA, the defendant can not be convicted of burglary. He lawfully entered the building after closing hours with keys provided by the manager of T.C. Foods. Feldt did not trespass when he entered T.C. Foods. His keys granted him authority to enter T.C. Foods after hours.

The State argues that Feldt abused his privilege to enter T.C. Foods after hours, when he entered for the improper purpose to steal the money from the safe. The State further contends that Feldt’s improper entry into T.C. Foods after hours transforms his original permissible entry into a trespass that can form the basis of a burglary charge. State v. Courville (Mont. 1989), [236 Mont. 253,] 769 P.2d 44, 48. While Feldt acted improperly in taking the money from the safe, his entry into T.C. Foods was authorized by management. Feldt was properly charged and convicted for theft, but the State failed to meet the “unlawful entry” element of the burglary statute and this Court’s previous holding under Starkweather.

Finally, the State argues that the requirement of a trespassory entry under Starkweather is no longer accurate under the new burglary statute. We find little merit in the State’s argument, since the Criminal Code Commission specifically endorsed the Court’s holding in Starkweather in rewriting the burglary statute. The Criminal Law Commission specifically codified the Starkweather decision when it wrote § 45-6-204, MCA:

“. . . or as defined in § [45-6-201] 94-6-201 entering or remaining unlawful.
“This definition is meant to exclude from burglary the servant who enters an employer’s house meaning to steal silver; the shoplifter who enters the store during business to steal from the counter; the fireman who forms the intent as he breaks down the door of the burning house to steal some of the householder’s belongings; and similar acts in which the defendant is lawfully on the premises.
“Where breaking is not required, there has been a tendency to hold that guilt may be established by proof that the prescribed intent was secretly entertained in the mind of the entrant although apart from the secret intent, the entrance at that time and place would have been authorized. For example, in People v. Brittain, 142 Cal. 8, 75 P. 314, it was held that one could be convicted of burglary for entering a store with larcenists intent. The Commission rejects this view and approves the decision on State v. Starkweather, 89 Mont. 381, 297 P. 181 [497] (1931) as a more practical result.”

Criminal Law Comm. Comments at 236-237.

The defendant had access to T.C. Foods and did not “enter or remain unlawfully” as defined in § 45-6-201, MCA. Since there was no unlawful entry, the defendant’s actions do not constitute a burglary as defined in § 45-6-204, MCA. We reverse the burglary conviction. The theft conviction was not appealed. The sentence imposed upon Feldt for the District Court is modified to strike therefrom the penalty assessed for burglary, and as modified, the sentence is affirmed.

JUSTICES HARRISON, WEBER and HUNT concur.

JUSTICE GULBRANDSON,

dissenting:

I respectfully dissent. The trial judge, in Finding of Fact Number 6 found:

“T.C. Foods store was closed for business when the defendant entered said store and took the money. Defendant did not have permission to enter the store at that time and he did not have permission to take the money.”

In my view, there is sufficient evidence in the record to affirm the conviction for burglary. The manager of T.C. Foods store had personally hired the defendant and knew the defendant’s work schedule. At trial, the manager testified as follows:

“Q. Now, the Defendant, Charles Matthew Feldt, even though he is an employee of your store, did he have your permission to enter the store after hours?
“A. No.
“Q. And, if the Defendant was not working a shift on Sunday night before you arrive at the store Monday morning, then technically, isn’t it correct, if at all, that an employee in his position would not have permission to go back and turn the coffee off or anything like that?
“A. Right.
“Q. Because he wouldn’t have been working that shift, isn’t that my understanding?
“A. Yes.
“Q. So, he really can’t have any permission at all to go into the T.C. Foods between the times you closed on Sunday and you opened on Monday, isn’t that my understanding of it?
“A. Yes.
“Q. He didn’t have permission to go into the store for any purpose such as turning the alarm on, or turning the coffee off, maybe to lock a door, things like that. Isn’t that my understanding of the situation?
“A. Yes.”

Testimony at trial established that the defendant had not worked on the Sunday preceding the incident, and he was not scheduled to work Monday, the day of the incident.

The defendant testified personally as follows:

“Q. Now, you had nobody’s permission to go into the store at that time; isn’t that correct?
“A. Not at that time.”

The foregoing testimony, in my view, supports the trial judge’s finding that defendant did not have permission to enter the store at that time. The record as a whole supports the trial judge’s verdict that the defendant was guilty of burglary.

The majority opinion, in my view, has disregarded State v. Courville (Mont. 1989), [236 Mont. 253,] 769 P.2d 44, 46 St.Rep. 338, wherein this Court stated:

“A verdict of acquittal may be directed in favor of the defendant only if no evidence exists upon which to base a guilty verdict. See State v. Matson (Mont. 1987), [227 Mont. 36,] 736 P.2d 971, 44 St.Rep. 874; State v. Whitewater (Mont. 1981), [_Mont._,] 634 P.2d 636, 38 St.Rep. 1664; and § 46-16-403, MCA. The foregoing testimony of T.B. regarding Courville’s entry was sufficient for the case to go to the jury. . .
“Even had the jury found that T.B. may have invited Courville to sleep downstairs on her couch, that invitation certainly did not include going up to her bedroom in order to choke and sexually assault her. Such conduct exceeds any reasonable privilege and the trial court properly let the burglary charge go to the jury for determination. See also State v. Manthie (1982), 197 Mont. 56, 641 P.2d 491; State v. Watkins (1974), 163 Mont. 491, 518 P.2d 259 (‘when a person exceeds the limits of his privilege ... he thereby transforms his original invited presence into a trespass that can form the basis of a burglary charge.’)”

Courville, 769 P.2d at 47-48. See also State v. Christofferson (Mont. 1989), [238 Mont. 9,] 775 P.2d 690, 46 St.Rep. 1049.

I would affirm.

JUSTICE McDONOUGH, concurs in the foregoing dissent.

CHIEF JUSTICE TURNAGE,

dissenting:

I concur in the dissent of Justice Gulbrandson. It is unfortunate that prosecuting attorneys persist in filing burglary charges when, as in this case, there are facts that clearly establish a separate felony and no useful purpose is served in the administration of justice in filing an additional charge of burglary.