text:
    IN THE MATTER OF INQUIRY INTO B.S. AND J.S., Youths in Need of Care.
    No. 92-049.
    Submitted on Briefs April 2, 1992.
    Decided April 15, 1992.
    49 St.Rep. 338.
    252 Mont. 435.
    829 P.2d 939.
    For Appellant: Jerrold L. Nye, Nye and Meyer, Billings.
    For Respondent: Marc Racicot, Attorney General; Kathy Seeley, Assistant Attorney General, Helena; Thomas P. Meissner, Fergus County Attorney, Lewistown.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

This is an appeal from an Order of the Tenth Judicial District Court, Fergus County, granting the Department of Family Services temporary investigative authority and protective services of the appellants’ two minor children. We reverse the District Court.

On January 3,1992, the Fergus County Attorney, on behalf of the Department of Family Services, filed a petition for temporary investigative authority and protective services of B.S. and J.S. Relying on a Department of Family Services report, the District Court granted the petition, finding probable cause to believe the children were, or were in danger of, being abused or neglected. A guardian ad litem was appointed to represent the children, and an order was issued requiring the parents to comply with the terms of the temporary order, or appear before the court on January 21,1992, to show cause why they had not complied.

A show cause hearing was held on January 21, 1992. On January 24,1992, the District Court entered an order for immediate protection of the children, giving the Department of Family Services temporary investigative authority and the right to remove the children from the home. The children were removed from the home by the Department of Family Services and placed in foster care. The parents appeal the District Court order.

The issue on appeal is whether there was sufficient admissible evidence to establish probable cause for issuance of the order granting temporary investigative authority to the Department of Family Services.

In the show cause hearing held on January 21, 1992, the State elicited testimony from a social worker assigned to the case, the guardian ad litem, and an alcohol and drug counselor. The social worker and guardian ad litem testified regarding statements from individuals who had expressed concern that the parents had drug and/or alcohol dependencies. They testified that they themselves had not seen the parents drink, nor witnessed any problems with the children which would suggest neglect, abuse, or dependency.

The bulk of testimony elicited from the social worker and the guardian ad litem in this case was hearsay evidence, and should not have been considered by the District Court. Without the hearsay statements, even the State concedes that no evidence was offered showing the children were abused or neglected or in danger of being abused or neglected. In the absence of a showing of probable cause that the children were abused or neglected, or in danger of being abused or neglected, the proper action by the District Court at the adjudicatory hearing would have been to dismiss the petition and any order for immediate protection should have been vacated. Section 41-3-404(4)(a), MCA.

Accordingly, the District Court’s order is reversed. The petition is dismissed without prejudice. The children should be returned to their parents pending further proceedings consistent with this opinion.

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


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    STATE OF MONTANA, DEPARTMENT OF REVENUE, Helena, Montana, Plaintiff and Appellant, v. ADRIAN BIRD, a/k/a ADRIAN and NORA BIRD, Defendants and Respondents.
    No. 91-552.
    Submitted on Briefs March 5, 1992.
    Decided April 15, 1992.
    49 St.Rep. 339.
    252 Mont. 438.
    829 P.2d 941.
    For Appellant: Marc Racicot, Attorney General; Deanne L. Sandholm, Assistant Attorney General; David W. Woodgerd, Chief Legal Counsel, Department of Revenue, Helena.
    For Respondent: James L. Vogel, Attorney at Law, Hardin.

      For Amicus Curiae: Dale T, White, Fredericks, Pelcyger and Hester, Boulder, Crow Tribe of Indians.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Thirteenth Judicial District, State of Montana, in and for the County of Big Horn, the Honorable Russell K. Fillner presiding. We affirm.

The issue here is whether the State of Montana may impose its income tax upon a member of the Crow Indian Tribe for income earned directly through the mining of coal within an area adjacent to the Crow Reservation, where the underlying mineral rights (coal) are reserved to the Crow Tribe. The income for which the taxes have been levied was earned diming the years 1981 through 1984 by respondent, Adrian Bird, who was employed as a miner by Westmoreland Resources, Inc. (Westmoreland) to mine coal at the Sarpy Creek Mine facility.

The Sarpy Creek Mine is on a strip of land located adjacent to the Crow Indian Reservation in eastern Montana. This area was ceded by the Tribe to the United States Government, but the mineral interests, including coal, underlying this ceded strip were, by statute, conveyed to the Crow Indian Tribe. The Crow Tribe subsequently leased the coal in the ceded strip to Westmoreland which engaged in the activity of mining the coal reserves from the ceded strip. During the years at issue, 1981 through 1984, Adrian Bird did not pay individual income tax on the income he derived from employment with Westmoreland.

On April 29, 1991, the State of Montana, Department of Revenue, filed a complaint requesting a judgment against Adrian Bird for unpaid income taxes plus penalties and interest thereon. The respondents, Adrian and Nora Bird, were served with a summons and complaint setting forth the years and the amounts owed as follows:

Years Taxes Interest Penalties
1981 -1984 $8,191.30 $5,292.06 $1,481.27
With the total amount due: $14.964.63

In reply to this complaint, the respondents filed a motion to dismiss on June 24, 1991, noting that the District Court did not have proper jurisdiction over the Birds; that the court did not have subject matter jurisdiction; and that the complaint failed to state a cause of action.

By way of historical background, we note that Westmoreland carried out its mining operation at the Sarpy Creek Mine under a federally-approved mineral lease entered into with the Crow Tribe in 1972, as amended in 1974. See Crow Tribe v. Montana (9th Cir. 1981), 650 F.2d 1104, 1107, (amended (1982), 665 F.2d 1390), cert. denied, 459 U.S. 916 (Crow I); Crow Tribe v. Montana (9th Cir. 1987), 819 F.2d 895, summarily aff’d, 484 U.S. 997 (1988), (Crow II). The Westmoreland mining operation is located within the so-called “ceded strip” which is an area adjacent to the Crow Reservation that was opened to homesteading pursuant to the Act of April 27, 1904, Ch. 1624, 33 Stat. 352; Crow I, 650 F.2d at 1107; Crow II, 819 F.2d at 896; see Crow Tribe of Indians v. United States (D. Mont. 1985), 657 F.Supp. 573, 575-79.

The 1904 Act authorized the Secretary of the Interior to sell lands within the ceded strip to homesteaders; and as a result of the 1904 Act, “a considerable amount of both the surface and mineral estate” within the ceded strip was conveyed to non-Indians. The coal mined at Westmoreland’s Sarpy Creek Mine facility was not conveyed under the 1904 Act and has always remained in Tribal trust status. Crow I, 650 F.2d at 1107; Crow II, 819 F.2d at 896.

In 1958, Congress acted to restore “undisposed of ceded lands” to the Crow Reservation. It did so in the Act of May 19, 1958, 72 Stat. 121, which provided:

Title to the lands restored to tribal ownership by this Act shall be held by the United States in trust for the respective tribe or tribes, and such lands are hereby added to and made part of the existing reservations for such tribe or tribes.

Crow II, 819 F.2d at 898; quoting 72 Stat. 121 (May 19,1958). In Crow I and Crow II, the Ninth Circuit Court of Appeals held that the above-listed Act restored the previously undisposed of minerals to the Crow Tribe, including the coal underlying the Westmoreland lease. Crow I, 650 F.2d at 1117; also see Crow II, 819 F.2d at 898.

In its order and memorandum, the District Court noted that the question before it was whether the court had subject matter jurisdiction. It noted that the Tribe, while it asserted that it had ceded the surface area of the Sarpy Creek Mine facility, retained the mineral interests which Westmoreland subsequently leased for production purposes.

It is the respondents’ contention that the mineral interests are a part of the Reservation as a Reservation resource and that the individual Indian income derived solely from the Reservation resources is not subject to individual state income tax. In addition, they contend, the State’s right to tax a Reservation Indian’s individual income, which is derived wholly from a Reservation resource, is preempted by federal law and policy since it is within the exclusive jurisdiction of the federal government and the Tribe itself.

The State argues that the right to tax Mr. Bird’s income is not preempted by federal law and policy because his income was earned from a private non-Indian company, and that the company’s operations are a non-Reservation source of income to Mr. Bird. In light of the foregoing, our inquiry must focus on whether the State’s attempted taxation of Adrian Bird’s individual income has been preempted.

This Court, in LaRoque v. State (1978), 178 Mont. 315, 321, 583 P.2d 1059, 1063, quoted from Mescalero Apache Tribe v. Jones (1973), 411 U.S. 145, 148, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114, 119, wherein the United States Supreme Court noted:

[Ajbsent cession of jurisdiction or other federal statutes permitting it, there has been no satisfactory authority for taxing Indian reservation lands or Indian income from activities carried on within the boundaries of the reservation ....

LaRoque, 178 Mont. at 321, 583, P.2d at 1063.

In McClanahan v. State Tax Commission of Arizona (1973), 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129, the United States Supreme Court held that “the State may not impose individual income tax on Reservation Indians whose income is earned exclusively on the reservation.” In McClanahan, the Court held that the tax interfered with matters which the relevant treaty and statutes left to the exclusive province of the federal government and the Indian Tribe itself. The Court reasoned that a review of the relevant treaty and statute made it clear that the State had exceeded its lawful authority in attempting to impose a tax. McClanahan, 411 U.S. at 173, 93 S.Ct. at 1263, 36 L.Ed.2d at 136.

This Court, in LaRoque, relying on the above authorities, addressed the issue of “whether an Indian not an enrolled member of the tribe on whose reservation he is living, may be taxed by the State for income earned on that reservation[.J” LaRoque, 178 Mont. at 318, 583 P.2d at 1061. This Court concluded, after review of the relevant statutes, that a cession to Montana jurisdiction as to taxation of individual income had not occurred. Further, we concluded “that situs of the activity is the primary factor in determining whether state taxation jurisdiction exists ... the important factors were the coalescence of situs (reservation) and status (Indian).” LaRoque, 178 Mont. at 324, 583 P.2d at 1064.

We further note that in Crow I, the Ninth Circuit Court of Appeals determined that the Tribe’s mineral resources are “a component of the reservation land itself.” Crow I, 650 F.2d at 1117. Therefore, we are not persuaded by the State’s argument that the trial court misapplied the governing law in determining the Sarpy Creek Mine facility is part of the Crow Reservation.

In the instant case, the respondent, Adrian Bird, by affidavit, stated that he was an enrolled member of the Crow Tribe and resided within the boundaries of the Crow Reservation. Further, we note that the State conceded in its brief that its cause of action is an attempt to collect unpaid State income tax from the respondents during the time that Adrian Bird was employed mining coal in the ceded strip. As previously determined, the mineral resources on the ceded strip are part of the Reservation, and therefore, we apply the criteria of LaRoque, Crow I, and Crow II to support the holding of the District Court that the State of Montana, Department of Revenue, is without authority to impose individual income tax on the respondent, Adrian Bird.

Congress enacted legislation in 1958 restoring to beneficial tribal ownership 10,260.95 acres of vacant and undisposed of lands subject to the 1904 Act. Act of May 19, 1958,72 Stat. 121; Crow II, 657 F.Supp. at 590. The acreage restored under the 1958 Act was reduced by 4,900 acres several months later. Act of Aug. 14, 1958, 72 Stat. 575; See Crow II, 659 F.Supp. at 578. Section 2 of the 1958 Act provided that these lands would be held in trust for the Crow Tribe by the United States and that they were added to and made a part of the existing Reservation. Although the statute facially restored to tribal ownership only surface lands, it was construed in Crow II as also applying to undisposed of mineral rights underlying the deeded area. Crow II, 657 F.Supp. at 590.

The decision of the District Court is affirmed.

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


author: JUSTICE WEBER

text:
    IN RE THE PETITION OF KORI LANE LAKE.
    No. 90-549.
    Submitted on Briefs March 19, 1992.
    Decided April 21, 1992.
    49 St.Rep. 359.
    252 Mont. 443.
    830 P.2d 100.
    For Appellant: Kori Lane Lake, Pro Se, Deer Lodge.
    For Respondent: Marc Racicot, Attorney General; Jennifer Anders, Assistant, Helena; M. Shaun Donovan, Mineral County Attorney, Superior.
   JUSTICE WEBER

delivered the Opinion of the District Court.

After an evidentiary hearing, the District Court for the Fourth Judicial District, Mineral County, denied defendant’s (Kori Lane Lake) petition for post-conviction relief. We affirm.

The sole issue for our review is whether the District Court erred in determining that defendant’s plea of guilty was voluntary and not the result of attorney incompetence.

Defendant was charged by information with one count of attempted deliberate homicide and one count of robbery, arising from an incident which took place on July 29,1989. On that date, defendant stabbed Joseph Shippentower in the throat, inflicting a laceration several inches long. After the stabbing incident, defendant took the victim’s car and its contents, later abandoning them in a remote area away from the scene of the incident. Margaret Borg of the Missoula County Public Defender’s Office was appointed to represent defendant.

In the course of the hearing following the filing of his post-conviction petition, defendant testified that he had admitted to Ms. Borg that he was responsible for the stab wound. However, he maintained that it was an “accident” and that he had been acting in self-defense against unwanted sexual advances by Mr. Shippentower. In addition the defendant admitted to the taking of the Shippentower car and its contents and to the later abandonment.

In his statements to the police, Mr. Shippentower denied having made any sexual advances towards the defendant, and claimed that he was asleep when the attack took place. Because of the striking differences between the defendant’s version of the incident and Mr. Shippentower’s version, Ms. Borg testified that the case essentially boiled down to a credibility match between Mr. Shippentower and the defendant.

Ms. Borg testified that as the date for trial approached, she began to question the defendant’s ability to assist in his own defense. She testified that his attitude had become extremely hostile; that he had attempted suicide; and that he had burned off his hair in order to frustrate the State’s attempt to obtain a hair sample. Defendant was transferred to Warm Springs where he underwent a psychological evaluation. Ms. Borg testified that the evaluation did not raise a question as to his fitness to proceed, nor did it demonstrate mental disease or defect.

Ms. Borg discussed alternatives to a trial with defendant. She testified that she recommended that defendant accept the plea bargain which offered a reduction in the charges to one count of aggravated assault and one count of theft. She testified that in her opinion there was a chance that defendant could have been convicted on the attempted deliberate homicide charge if it went to trial. At a minimum, she felt that defendant would have been convicted of aggravated assault, the crime to which he ultimately pled guilty.

Eventually defendant signed a waiver of rights agreement and entered his pleas of guilty to one count of aggravated assault and one count of theft. By signing the agreement, the defendant specifically acknowledged that he was satisfied with the services of his attorney; had sufficient time to consult with his attorney; his attorney had done everything he asked her to do; and that he discussed the merits of his case with her, noting specifically that he did not have available to him the affirmative defense of justifiable use of force or mental disease or defect.

Subsequently, defendant was sentenced to fifteen years in the Montana State Prison with five years suspended for aggravated assault, and ten years for felony theft, the sentences to run concurrently. He was also designated a dangerous offender for parole eligibility purposes. Defendant now appeals from the District Court’s denial of post-conviction relief.

Did the District Court err in determining that defendant’s plea of guilty was voluntary and not the result of attorney incompetence?

A petition for post-conviction relief is civil in nature rather than criminal. The standard for review is set forth in Rule 52(a), M.R.Civ.P, which provides that findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

Defendant maintains he was denied effective assistance of counsel because Ms. Borg recommended he plead guilty to the lesser offense of aggravated assault, which he maintains denied him the opportunity to assert a defense of justifiable use of force at trial on the original charges. He further maintains Ms. Borg informed him that he was not entitled to the defense of justifiable use of force because he did not intend to kill Mr. Shippentower. The State maintains that defendant was not deprived of his Sixth Amendment right to counsel nor was his plea involuntary because of the acts or omissions of counsel or any other person.

In evaluating ineffective assistance of counsel claims, this Court employs a two-part test from Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, which requires the Court to evaluate whether counsel’s performance was deficient and whether the deficient performance prejudiced the defense. When evaluating counsel’s performance with respect to a guilty plea, the defendant must show that but for counsel’s deficient performance, he would not have pled guilty and would have insisted upon going to trial. State v. Langford (1991), 248 Mont. 420, 432, 813 P.2d 936, 947.

Section 45-3-102, MCA, provides that a person is justified in the use of force against another person when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force; and only if he reasonably believes that such force is necessary to prevent imminent death or serious bodily harm to himself or another. Ms. Borg testified that she advised defendant that the defense of justifiable use of force probably would not work in his case. She further testified that “I don’t believe that the amount of force used in this case was appropriate under the circumstances of the case as I understand it, and I discussed that at length with Kori”.

Defendant maintains that he was defending himself from Mr. Shippentower’s unwanted sexual advances. However, the evidence does not show the defendant had reason to believe Mr. Shippentower’s alleged advances placed defendant in danger of either imminent death or serious bodily injury.

The record is void of any evidence that Ms. Borg’s performance was deficient or that her performance prejudiced the defense. The District Court stated:

After informed professional deliberation, review of all information in her possession and consultation with her investigator and other office staff members, former defense counsel, Margaret Borg concluded that if the case went to trial the complaining witness Shippentower, although “shaky”, would likely be believed by a jury with respect to the essential elements of the crimes charged and that, at a minimum, her client, Mr. Lake would be convicted of the lesser included offenses of Aggravated Assault and Theft, both felonies. Defense counsel further concluded that because of the excessive force used by Mr. Lake, self defense would not be a successful defense; that there was no evidence to support Mr. Lake’s claim that the complaining witness had made homosexual advances towards him triggering the incident and, finally, after consultations with Missoula Psychologist Dr. Robert Shea, that the Defendant was not suffering from any mental disease or defect which would either provide a defense or impair his competency. At the same time Ms. Borg, and her investigator Mr. Locke, had grave concerns over Mr. Lake’s ability to control himself at trial, particularly with respect to showing aggressiveness and hostility and concluded there was a significant risk that a jury would convict him of both Attempted Deliberate Homicide and Robbery leading to potential maximum punishment under applicable statutes in excess of 100 years.

Defendant has failed to prove that but for Ms. Borg’s allegedly deficient performance, he would not have pled guilty and would have insisted upon going to trial. State v. Leavens (1986), 222 Mont. 473, 475, 723 P.2d 236, 237; State v. Langford (1991), 248 Mont. 420, 432, 813 P.2d 936, 947.

Defendant admitted that he stabbed Mr. Shippentower, although he maintained it was in self-defense. However, he was aware that Mr. Shippentower denied making any sexual advances; that Mr. Shippentower was prepared to have his girlfriend testify as to his heterosexual preferences; and, that he had trouble controlling his temper and that fact would be visible to a jury. The record reveals that the defendant voluntarily signed the plea agreement with a full understanding of the relevant facts and legal issues.

Based upon our review of the record, we conclude that the findings and conclusions of the District Court are not clearly erroneous. We therefore affirm the holding of the District Court that the defendant’s plea of guilty was voluntary and not the result of attorney incompetence.

CHIEF JUSTICE TURNAGE and JUSTICES HUNT, McDONOUGH and GRAY concur.


author: JUSTICE HUNT

text:
    IN RE THE MARRIAGE OF JANET D. PEETZ, Petitioner and Appellant, and GARY R. PEETZ, Respondent and Respondent.
    No. 91-512.
    Submitted on Briefs January 16, 1992.
    Decided April 21, 1992.
    49 St.Rep. 362.
    252 Mont. 448.
    830 P.2d 543.

      For Appellant: Gail M. Haviland, Worden, Thane & Haines, Missoula.
    For Respondent: John D. Greef, Attorney at Law, Hamilton.
   JUSTICE HUNT

delivered the opinion of the Court.

Petitioner Janet D. Peetz appeals from Findings of Fact and Conclusions of Law and Decree of Dissolution of the Fourth Judicial District Court, Ravalli County, which divided and distributed the marital estate, and ordered petitioner to purchase certain real property from respondent Gary R. Peetz, or sell the property. Petitioner also argues that the court erred in the amount of maintenance granted, in not awarding her attorney fees, and in not ordering respondent to provide her with health insurance through his place of employment.

We affirm.

Petitioner raises several issues relating to the division of marital property before this Court. However, we will frame the issues as follows:

1. Did the District Court err in the division of the marital estate?

2. Did the District Court err in ordering petitioner to purchase certain real property from respondent within 15 days of entry of the decree, and ordering its sale if the petitioner did not purchase the property?

3. Did the District Court err in not requiring respondent to provide petitioner with health insurance coverage through his place of employment?

4. Did the District Court err in granting petitioner a maintenance award of $600 per month for a period of two years?

5. Did the District Court err in not awarding petitioner her attorney fees?

Petitioner and respondent had been together since October 1981, and were married on August 12, 1983, in Reno, Nevada. At the time of the marriage, petitioner represented to respondent that she was 43 years old and wrote that age on her marriage application. Petitioner was actually 50 years old at the time of marriage. She had also represented to respondent that she could bear one or two children. Respondent discovered these facts for the first time just a few weeks before the parties separated. At the time of dissolution, petitioner was 58 years old.

Prior to the marriage, petitioner received approximately $42,000 from a previous divorce settlement. She owed a tax obligation of approximately $3700, and an accountant bill of $1300. Both obligations were paid from the respondent’s earnings after the marriage.

In September 1982, petitioner purchased a small tract of land located near Victor for $85,000, and made down payment on the property of $20,000. On February 7, 1983, petitioner also made a prepayment on the land contract which came from a repayment of a $5000 loan, along with $6671 from a joint savings account, which money was deposited from respondent’s earnings. In 1988, petitioner received a $14,000 inheritance from her mother.

Respondent’s estate at the time of the marriage included personal belongings, a vehicle, motorcycle, travel trailer, and a savings account from payroll contributions. Respondent worked as a truck driver full time, with occasional layoffs, from the beginning of the marriage until 1986, when he suffered an industrial accident which resulted in a disc problem in his back that continues to restrict his motion and causes considerable pain. He received approximately $30,000 in workers’ compensation benefits as result of the injury, and used $17,845 to pay off the remaining debt on the ranch in 1988. Other moneys respondent received during the marriage were a gift from his parents of $2500 which was placed in the parties’ joint savings account, and $3300 resulting from a sale of his motorcycle and travel trailer. The proceeds of this sale were also deposited in the parties’ savings account and used for living expenses. Respondent returned to work as a truck driver in May 1990 and had a monthly net earning capacity of approximately $2863. However, due to medical restrictions placed upon him, he is now limited to an average weekly wage of approximately $480 to $550.

In December 1989, the parties sold the Victor property for $102,200 in cash. Using the proceeds of this sale, the parties purchased a small ranch with two houses on Coal Mine Lane near Darby. Currently petitioner derives some income from renting one of the houses. The property is held jointly by the parties.

The parties accumulated several items of personal property which we need not go into in detail. Prior to and during the marriage, petitioner maintained a horse breeding business/hobby which operated at a loss. The parties accumulated 25 to 28 horses during the marriage. Seven of those horses were owned by petitioner at the time of the marriage, 14 were offspring of the original seven, and four were purchased by petitioner with her inheritance. The stipulated value of the horses is $15,000. Petitioner plans to continue operating her horse breeding operation after the dissolution of the marriage.

Upon hearing the testimony of the parties and examining the evidence presented by both parties, the District Court issued its Findings of Fact and Conclusions of Law and Decree on June 18,1991. The court found that the total value of the marital estate was $152,602. The court also held that both parties contributed roughly equally to the marital estate and divided and distributed the assets as follows:

WTFE
1. reimbursement for down payment less $5,000 tax and accounting obligation paid by husband $37,500
2. reimbursement for investment on February 7, 1983 5,000
3. less credit to husband for V% of extra value of personal property distributed to Wife - 8,839
4. reimbursement for taxes and insur. paid since the separation of the parties
5. 50% of the remaining equity
Total — $33,661 plus 50% of the remaining sales proceeds.
HUSBAND
1. reimbursement for work comp prepayment $17,845
2. reimbursement for investment on February 7, 1983 6,671
3. plus credit for Vi of extra value of personal property distributed to wife 8,839
4. reimbursement for taxes and insur. paid since the separation of the parties
5. 50% of the remaining equity
Total - $33,355 plus 50% of the remaining sales proceeds.

Petitioner received $22,640 and respondent received $4962 in personal property. The court ordered respondent to pay petitioner monthly maintenance of $600 for two years. The court did not order respondent to provide health insurance, and did not award attorney fees. It is from this decree that petitioner appeals to this Court.

I

Did the District Court err in the division of the marital estate?

Petitioner contends that the court’s distribution of the marital estate was arbitrary, and lists several findings by the court she claims resulted in substantial injustice. Petitioner’s specific contentions of error include: (1) crediting the respondent’s lump sum workers’ compensation settlement received during the marriage as an interest in real property and not including it as the marital estate; (2) crediting the respondent’s interest in the real property for $6671; (3) crediting respondent for one-half value of the personal property distributed to petitioner to his interest in the real property; (4) deducting from the amount of money credited to petitioner as her interest in real property $5000 for tax and accounting obligations allegedly paid by respondent; (5) the distribution of the respondent’s credit union account; and (6) allocating a satellite dish to petitioner as personal property because petitioner claims it is a fixture to the real property. In addition to the above listed contentions, petitioner claims that the court erred in its distribution of its marital estate because she brought substantially more property into the marriage than respondent and that the court did not consider the factors established by § 40-4-202, MCA.

Section 40-4-202, MCA, is the statute which establishes a guideline for the district courts to follow when distributing the assets of the marital estate. Section 40-4-202, MCA, reads, in pertinent part:

(1) In a proceeding for dissolution of a marriage ... or division of property following a decree of dissolution of marriage ... the court, without regard to marital misconduct, shall ... finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both. In making apportionment, the court shall consider the duration of the marriage and prior marriage of either party; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; custodial provisions; whether the apportionment is in lieu of or in addition to maintenance; and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution or dissipation of value of the respective estates and the contribution of a spouse as a homemaker or to the family unit. In dividing property acquired prior to the marriage ... the court shall consider those contributions of the other spouse to the marriage, including:
(b) the extent to which such contributions have facilitated the maintenance of this property .... [Emphasis added.]”

Both parties have correctly stated this Court’s standard of review over the District Court’s division of the marital estate:

“In dividing property in a marriage dissolution the district court has far reaching discretion and its judgment will not be altered without a showing of clear abuse of discretion. The test of discretion is whether the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice.”

In Re the Marriage of Gallinger (1986), 221 Mont. 463, 468-69, 719 P.2d 777, 780, (quoting In Re the Marriage of Wessel (1986), 220 Mont. 326, 333, 715 P.2d 45, 50). Thus, our role in reviewing the district court’s findings of fact and conclusions of law in a decree of dissolution is a limited one.

As we have stated previously, premarital property is a factor the court shall consider, however, the court is not required to restore the parties to their premarital status. In Re the Marriage of Tonne (1987), 226 Mont. 1, 4, 733 P.2d 1280,1283. Both parties contributed significantly toward the marital estate. Petitioner brought into the marriage her equity in the Victor property, as well as miscellaneous personal property, an inheritance, and other cash. Respondent facilitated the maintenance of the marital estate and maintained the parties’ lifestyle through depletion of his savings, his earnings as a truck driver, and his workers’ compensation benefits.

We agree that petitioner and respondent offer conflicting testimony as to who contributed what and when. In resolving conflicts in testimony, this Court defers to the district court because:

The trial court sits in the best position to judge the credibility of the testimony proffered by the parties to a dissolution action. Because the District Court had the opportunity to observe the demeanor of the witnesses, we defer to its resolution of any conflicting evidence.

In Re the Marriage of Porter (1991), 247 Mont. 395, 398, 807 P.2d 192, 194. It appears the District Court resolved most of the conflicting testimony in favor of respondent. Because the court observed the demeanor and character of the witnesses, and because there is substantial credible evidence to support the court’s findings, we hold that the District Court did not abuse its discretion in the distribution of the marital estate stated above.

Petitioner also contends that the division of the property was inequitable because the court did not consider her age, occupation, respective employment history, health, and skills, as required by § 40-4-202, MCA. Petitioner was 58 years old at time of trial. Prior to the marriage she worked as a waitress and as a secretary. Although she expressed concern over her lack of computer skills necessary for today’s secretary, petitioner testified she could still work if required. Although petitioner testified she suffered from gallbladder problems, the court found that petitioner was in good health. The court held that petitioner’s only source of income at the time of dissolution was rental income from one of the houses on the Darby property. We hold that the District Court properly considered the factors listed in § 40-4-202, MCA, in distributing the marital asset, and did not abuse its discretion.

II

Did the District Court err in ordering the petitioner to purchase the Darby property within 15 days of the decree and ordering its sale if the petitioner did not purchase the property?

In the decree of dissolution, the court granted petitioner 15 days to purchase the Darby property for $57,984. If she failed to do so, the parties were ordered to sell the property for $125,000, unless otherwise agreed upon. Petitioner argues that she could earn enough income from the breeding and sale of horses and rent to pay off the respondent’s share of the marital estate. The horse breeding business cost petitioner $550 per month. The rental income of the second house was $250. Apparently, the horse breeding business and rent cannot generate enough income to pay respondent’s share of the marital estate. We hold that the District Court did not abuse its discretion in ordering the Darby property to be sold.

III

Did the District Court err in not requiring the respondent to provide health insurance coverage for petitioner through his place of employment?

Petitioner contends that due to her age and gallbladder problems, the corut should have ordered respondent to provide health insurance coverage for her through his place of employment. We disagree.

If the property is sold at $125,000, as ordered by the court, petitioner will receive approximately $62,653 from the sale of the real property, plus $22,640 in personal property. The division of the marital estate should provide petitioner with sufficient assets to provide for her health care. We hold that the District Court did not abuse its discretion.

IV

Did the District Court err in granting petitioner a maintenance award of $600 per month for a period of two years?

Section 40-4-203(1) and (2), MCA, states that the district court may grant maintenance for either spouse only if it finds that the spouse requesting maintenance:

(a) lacks sufficient property to provide for his reasonable needs; and
(b) is unable to support himself through appropriate employment ...
(2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant facts including:
(a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently ...
(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(c) the standard of living established during the marriage;
(d) the duration of the marriage;
(e) the age and the physical and emotional condition of the spouse seeking maintenance; and
(f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.”

This Court’s standard of review on the issue of maintenance depends on whether the district court has properly considered the factors listed in § 40-4-203, MCA, and whether there is substantial credible evidence to support the findings. In Re the Marriage of Cannon (1986), 223 Mont. 42, 44, 723 P.2d 951, 953. The District Court awarded petitioner maintenance of $600 a month for two years. Petitioner testified that she could return to clerical work, but voiced concerns about her lack of skill in computers. In addition, she stated she could be self-supporting in three to four years. The District Court awarded maintenance for two years, which it concluded should be a sufficient amount of time for her to achieve self-support through education, training, or other employment. We hold the District Court properly considered the factors in § 40-4-203, MCA, and there was substantial credible evidence to support the amount of maintenance.

V

Did the District Court err in not awarding petitioner her attorney fees?

Section 40-4-110, MCA, permits the district court to order the parties to pay attorney fees in dissolution proceedings. It states:

The court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under chapters 1 and 4 of this title and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.”

The district court is given considerable discretion in the award of attorney fees. Gallinger, 719 P.2d at 782. Thus, we will not overturn a district court’s refusal to award attorney fees absent an abuse of discretion. Gallinger, 719 P.2d at 783. In this instance, petitioner has adequate resources from the division of the marital estate and award of maintenance to pay her own attorney fees. We hold that the District Court did not abuse its discretion in not ordering respondent to pay attorney fees.

We affirm.

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


author: CHIEF JUSTICE TURNAGE

text:
    IN RE THE MARRIAGE OF DORENE K. BARBER, Petitioner and Respondent, and RANDALL L. BARBER, Respondent and Appellant.
    No. 91-520.
    Submitted on Briefs March 19, 1992.
    Decided April 21, 1992.
    49 St.Rep. 367.
    252 Mont. 458.
    830 P.2d 97.

      For Appellant: Jon A. Oldenburg, Lewistown.
    For Respondent: Stuart R. Whitehair, Bozeman.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Randall L. Barber appeals from an order entered by the District Court for the Tenth Judicial District, Fergus County, concerning his child support obligation arising from this dissolution of marriage. We affirm.

The issues are:

1. Did the District Court err in granting Mrs. Ruud reimbursement for insurance she purchased and medical bills she paid?

2. Did the court err in modifying the amount of child support and in retroactively applying the modification to the time the motion to modify was filed?

The marriage of Dorene K. Barber (Dorene) and Randall L. Barber (Randy) was dissolved in September 1980. Dorene was granted custody of the parties’ two minor children. Randy was ordered to pay child support of $125 per month per child and was to keep in force a Blue Cross health insurance policy for the children.

On January 16, 1990, Dorene filed a motion for increased child support, supported by affidavit. In her affidavit, she stated that a change had occurred in the needs of the children as they got older. She also stated that Randy had failed to pay child support or to keep medical insurance on the children and that the children’s grandmother, Mrs. Ruud, had obtained medical insurance and paid medical bills for the children.

Dorene and Mrs. Ruud both testified at the hearing on the motion. Dorene testified, and the record reflects, that Randy has been held in contempt for failure to pay medical bills, property settlement payments, and child support.

Randy testified that in 1984 he lost the lease on the farm he had been operating. He testified that for the next several years he was able to obtain only sporadic temporary employment and was not able to afford health insurance. He testified that he was currently employed fulltime and carried health insurance on the children but that he was earning less money than he earned in 1980.

After the hearing, the District Court ordered Randy to reimburse Mrs. Ruud $2,649.15 for the medical insurance she purchased and expenses she incurred on behalf of the children. Noting an absence of evidence on Dorene’s unemployment and the reasonableness thereof, the court denied the request for an increase in child support. Both parties requested reconsideration of the order.

A second hearing was held at which the attorneys presented further argument. The court then issued an order again granting Mrs. Ruud reimbursement of $2,649.15 and granting an increase in child support to $435 per month. It denied Dorene’s request that Randy be required to pay off an arrearage in child support at a rate greater than the $25 per month previously set. Randy appeals.

I

Did the District Court err in granting Mrs. Ruud reimbursement for insurance she purchased and medical bills she paid?

Randy points out that Mrs. Ruud is not a party to this action and asserts that her claims were not properly before the District Court. He maintains that his opportunity to defend against her claims was limited by the District Court’s failure to require her to file a complaint or formal motion. He also maintains that any expenses she incurred for health insurance for the children were voluntary on her part.

The claim for repayment to Mrs. Ruud was presented in Dorene’s affidavit in support of the motion for increased child support. Randy had notice of this claim at least since the time the motion was filed. Randy’s counsel conducted extensive cross-examination of Mrs. Ruud at the March 14, 1990 hearing. We conclude that he was not deprived of an opportunity to defend against this claim.

Randy admits that he had an obligation under the decree of dissolution to provide health insurance for his children and that he did not do so from 1984 to the time of these proceedings, except for a brief period in 1986. The District Court stated that “Mrs. Ruud’s actions were reasonable in light of [Randy’s] continued failure to live up to the terms of the original divorce decree.” Canceled checks and a written summary of the expenses Mrs. Ruud incurred on behalf of the children were admitted into evidence. We hold that the court did not err in granting Mrs. Ruud reimbursement for insurance she pm-chased and medical bills she paid on behalf of the children.

II

Did the court err in modifying the amount of child support and in retroactively applying the modification to the time the motion to modify was filed?

Randy claims that there has been no showing of changed circumstances so substantial and continuing as to make the original terms of child support unconscionable, as is required under § 40-4-208(2)(b)(i), MCA, before a modification of child support may be made. He states that his economic condition is worse now than it was when the decree of dissolution was entered and supports a reduction in his child support obligation, if anything. He maintains that his income, just over $15,000 annually, and Dorene’s unemployment require that this case be made an exception from the standards set forth in the Uniform Child Support Guidelines. [227 Mont. 1,]

When the parties’ marriage was dissolved, the children were three and five years old. Dorene testified that expenses for food, clothing, school, and school activities for the children had risen dramatically over the last ten years. Dorene’s counsel pointed out at the second hearing that Randy’s support obligation under the Uniform Child Support Guidelines would not change unless Dorene’s income exceeded $12,000 to $13,000 per year, and that even then it would not change significantly.

An increase in child support may be justified based solely on inflation and increased ages of the children. Johnson v. Johnson (1983), 205 Mont. 259, 262, 667 P.2d 438, 440; Reynolds v. Reynolds (1983), 203 Mont. 97, 104, 660 P.2d 90, 94. It is recognized that expenditures for teenagers are markedly higher than expenditures for younger children. Uniform District Court Rule on Child Support Guidelines (1987), 227 Mont. 1, 9; and see current Montana child support guidelines at 46.30.1549, ARM. We conclude that the District Court did not abuse its discretion in ruling that ten years of inflation and the maturation of the children from preschoolers to teenagers were substantial and continuing circumstances justifying an increase in child support.

Randy also argues that making the increase in child support retroactive to the time the petition for modification was filed, eighteen months before the judgment, is unfair. He says that he should not be penalized for the inordinate amount of time it took the District Court to decide this matter.

Making a modification of child support retroactive to the time of notice of the motion for modification is within the discretion of the district court. Section 40-4-208(1), MCA. Randy was employed at the time the petition for modification was filed. Ten years of inflation and the increased needs of the teenage children were present as factors at the time the petition was filed. We hold that the District Court did not abuse its discretion in making the increase in child support retroactive to the time the petition for modification of child support was filed.

Affirmed.

JUSTICES HARRISON, TRIEWEILER, HUNT and WEBER concur.


text:
    WES SPRUNK, Plaintiff and Appellant, v. FIRST BANK SYSTEM, a registered bank holding company, Defendant and Respondent.
    No. 91-274.
    Submitted Mar. 5, 1992.
    Decided Apr. 27, 1992.
    49 St.Rep. 369.
    252 Mont. 463.
    830 P.2d 103.

      For Appellant: William A. Rossbach argued, Rossbach & Whiston, Missoula
    For Respondent: James A. Robischon argued, Murphy, Robinson & Heckathom, Kalispell; George D. Goodrich, Garlington, Lohn & Robinson, Missoula.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Wes Sprunk (Sprunk) appeals from an order of the Fourth Judicial District Court, Missoula County, Montana, which granted summary judgment in favor of First Bank System. This appeal stems from the same set of facts and circumstances stated in our opinion Sprunk v. First Bank Western Montana Missoula & First Bank System (1987), 228 Mont. 168, 741 P.2d 766 (Sprunk I). We affirm.

The main issue is whether the District Court erred in granting respondent FBS’s motion for summary judgment. This main issue is divided into three sub-issues as follows:

1. Whether the District Court erred in deciding that Sprunk had no cause of action against FBS when determining that First Bank Western Montana Missoula was not the agent, alter-ego or instrumentality of FBS?

2. Whether the District Court erred in determining that there was no fiduciary relationship or duty between Sprunk and FBS?

3. Whether the District Court erred in determining that Sprunk’s claims are precluded by the doctrine of res judicata?

Sprunk owned an automobile dealership in Missoula that was backed financially by First Bank Western Montana Missoula (Bank), a subsidiary of First Bank System (FBS). Dining a downturn in the automobile industry in the early 1980’s, Sprunk refinanced his debt with the Bank via a $500,000 guaranteed loan from the Small Business Administration (SBA). Later, Sprunk attempted to restructure the dealership by relocating to a smaller location and deeding over his prime real estate to the Bank. On May 27,1982, Sprunk, the Bank and the SBA entered into an agreement to accept deeds in lieu of foreclosure on Sprunk’s Missoula and Lake County real properties in order to discharge Sprunk’s indebtedness to the Bank.

In Sprunk I, Sprunk alleged he entered into the agreement as a result of the Bank’s fraudulent misrepresentations. He argued that the Bank pressured him into signing the agreement by overstating his debt and the losses it suffered due to liquidation. Sprunk’s complaint alleged bad faith breach of a fiduciary duty, actual fraud and constructive fraud. The District Court granted the Bank’s motion for summary judgment. Sprunk appealed and we affirmed. Subsequently, FBS filed a motion for summary judgment which was also granted by the District Court based on separate and independent grounds as well as the doctrine of res judicata. Sprunk now appeals that decision to this Comb.

Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R; also see Cecil v. Cardinal Drilling Co. (1990), 244 Mont. 405, 409, 797 P.2d 232, 234. The initial burden of proof is on the moving party to establish that no genuine issues of material fact exist. Westmont Tractor Co. v. Continental I, Inc. (1986), 224 Mont. 516, 521, 731 P.2d 327, 330. Once the moving party meets that burden, the burden shifts to the non-moving party to establish the existence of genuine issues of material fact. Simmons v. Jenkins (1988), 230 Mont. 429, 432, 750 P.2d 1067, 1069. We therefore confine our review on appeal to encompass only the determination of whether genuine issues of material fact exist that would require reversing the District Court’s conclusion.

Sprunk asserts that the relationship between FBS and the Bank constituted an agency, alter-ego or instrumentality. Sprunk also contends that his dealings with the Bank, a wholly owned subsidiary of FBS, created a fiduciary relationship between Sprunk and FBS. Sprunk insists that due to the domination of FBS over the Bank, the Bank became an instrumentality of FBS which was used to commit fraud and bad faith. In support of these positions, Sprunk attaches to his brief a large appendix containing hundreds of pages of depositions, an annual report and other correspondence to illustrate actions that would amount to agency, alter-ego or instrumentality and the establishment of a fiduciary duty. The arguments are apparently meant to lead us to the conclusion that piercing the corporate veil is appropriate and necessary to obtain relief from FBS, since the Bank was previously dismissed from the case. We are not persuaded and harken back to our task on appeal which is to determine whether genuine issues of material fact exist.

The determination of the existence of genuine issues of material fact is one that is not always easily ascertained. Important in the determination is whether the material facts are actually disputed by the parties or whether the parties simply interpret the facts differently. It is well established that when material facts are in dispute, summary judgment is not a proper remedy. Kaiser v. Town of Whitehall (1986), 221 Mont. 322, 325, 718 P.2d 1341, 1342-43. However, mere disagreement about the interpretation of a fact or facts does not amount to genuine issues of material fact.

After a careful review of the record in the case at bar, we conclude that Sprunk does not present any genuine issues of material fact. Instead, Sprunk recites facts with his own interpretations and conclusions that only carry the title of disputed issues of material fact, but do not amount to such. We previously said that the party opposing summary judgment “must set forth specific facts and cannot rely on speculative, fanciful, or conclusory statements.” Simmons v. Jenkins (1988), 230 Mont. 429, 432, 750 P.2d 1067, 1069 (citing cases). Mere conclusory statements do not rise to the level of genuine issues of material fact, and therefore, we conclude that the “material facts” set forth by Sprunk are only his rendition of the facts with his own interpretation.

For example, when addressing the fiduciary relationship issue, Sprunk indicates that there were substantial dealings between the Bank and himself. Then, Sprunk asserts that the Bank was the agent or alter-ego of FBS, creating a fiduciary duty between Sprunk and FBS, which FBS allegedly breached. FBS does not dispute the Bank’s dealings with Sprunk but asserts that such dealings do not amount to agency or alter-ego or the alleged fiduciary duty claimed by Sprunk. The factual dealings are not in dispute; this is a prime example of a dispute over factual interpretation and one that is properly handled by the District Court in a summary judgment proceeding.

Further, we note that Sprunk regularly paraphrased and quoted various sources in his briefs which were not always accurate. For instance, when addressing the agency/alter-ego argument, Sprunk paraphrases an FBS official’s testimony to mean that FBS would “force” subsidiary member banks to re-figure profit goals. In reality the FBS official’s testimony reads:

I have seen it happen where we [FBS] have asked them [subsidiary member banks] to look in the comers and go to the drawing boards and they come up with more. I have also been persuaded that, indeed they are right. They have done — there is no more room, and we modify our [FBS] plan ultimately by that process.

Again, in support of the agency/alter-ego argument, Sprunk quotes an annual report to illustrate FBS’s control over the Bank as follows:

First Bank System has responsibility for the overall conduct, direction and performance of it subsidiaries. The corporation establishes goals, objectives and policies for the entire organization and monitors compliance with these policies.

This quote, by itself, appears to support Sprunk’s conclusions but the next sentence qualifies the statement relied on by Sprunk.

The Corporation provides capital funds to its subsidiaries as required and assists subsidiaries in liability management.... The operational responsibilities of each subsidiary rest with its own officers and directors.’’/Emphasis added.]

This type of mischaracterization and selective quotation is prevalent throughout Sprunk’s briefs and we will not misconstrue them as genuine issues of material fact. The District Court properly determined that no genuine issues of material fact existed. Accordingly, the court did not err in determining that there was no agency or alter-ego relationship between FBS and the Bank nor did FBS owe Sprunk a fiduciary duty because of his dealings with the Bank.

Having decided the two previous issues, we find it unnecessary to address the issue of res judicata and dispose of that issue altogether. Failing to meet his burden, Sprunk cannot defeat the summary judgment granted in favor of FBS. We hold from the record that the uncontroverted facts indicate that the District Court properly found no fact issues, making summary judgment proper. Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES GRAY, WEBER and McDONOUGH, and THE HONORABLE DOROTHY McCARTER, District Judge, sitting for JUSTICE HUNT, and THE HONORABLE PETER RAPKOCH, District Judge, sitting for JUSTICE TRIEWEILER, concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JAMES RILEY, Defendant and Appellant.
    No. 91-571.
    Submitted on briefs April 2, 1992.
    Decided May 5, 1992.
    49 St.Rep. 408.
    252 Mont. 469.
    830 P.2d 549.
    For Appellant: Kevin E. Vainio, Butte.
    For Respondent: Marc Racicot, Attorney General, Helena; Micheál S. Wellenstein, Assistant Attorney General; Robert M. McCarthy, County Attorney; Carlo Canty, Deputy, Butte.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

James Riley (Riley) appeals a judgment of the Second Judicial District, Silver Bow County, which convicted him of failure to keep property clean under § 8.08.090(A) of the Butte-Silver Bow Municipal Code following a trial de novo. We affirm.

We rephrase the issues on appeal as follows:

Did sufficient evidence exist to support Riley’s conviction of failure to keep property clean under § 8.08.090(A) of the Butte-Silver Bow Municipal Code?

On February 27, 1991, Riley was charged by complaint in police court with one count of failing to keep property clean and one count of permitting a disabled, wrecked, or abandoned vehicle to remain on property in violation of the Butte-Silver Bow Municipal Code. Following a trial in police court, the police judge on July 15, 1991, found Riley guilty of both counts. Riley timely appealed to District Court.

On September 5, 1991, a trial de novo was held in District Court. Five witnesses testified regarding the extensive materials Riley had accumulated and stored on his property, which included wood, metal, glass, plastic containers, cardboard, paper and machinery parts piled at depths ranging from six to twelve feet. Photographs of Riley’s property revealed a yard bursting at the seams with junk.

The District Comb, sitting without a jury, found Riley guilty of failing to keep property clean and not guilty of permitting a disabled, wrecked, or abandoned vehicle to remain on property. The District Court ordered Riley to pay a $50 fine and clear his property of all litter within thirty days. If he failed to clear his property of the litter within thirty days, the District Court ordered the Butte-Silver Bow Department of Public Works to clear and clean Riley’s property under the supervision of the Butte-Silver Bow Health Department with all charges being billed to Riley. Thereafter, the District Court by an amended order allowed Riley an additional thirty days to remove the litter from his property. From this judgment, Riley now appeals.

Did sufficient evidence exist to support Riley’s conviction of failure to keep property clean under § 8.08.090(A) of the Butte-Silver Bow Municipal Code?

The standard for reviewing issues concerning sufficiency of the evidence in criminal cases is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573.

Section 8.08.090(A) of the Butte-Silver Bow Municipal Code provides:

It shall be the duty of the owner, agent, or lessee to keep exterior private property free of litter. This requirement applies not only to removal of loose litter, but to materials that already are, or become, trapped at such locations as fence and wall bases, grassy and planted areas, borders, embankments and other lodging points.

Section 8.08.010(B) of the Butte-Silver Bow Municipal Code defines litter as:

any quantity of uncontainerized paper, metal, plastic, glass or miscellaneous solid waste which may be classed as trash, debris, rubbish, refuse, garbage or junk.

We hold that after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of failing to keep property clean under § 8.08.090(A) of the Butte-Silver Bow Municipal Code beyond a reasonable doubt. We therefore affirm James Riley’s conviction for failing to keep property clean under § 8.08.090(A) of the Butte-Silver Bow Municipal Code.

JUSTICES HUNT, McDONOUGH, GRAY and WEBER concur.


text:
    YVONNE MILLER, Plaintiff and Appellant v. CITIZENS STATE BANK, Defendant and Respondent.
    No. 92-007.
    Submitted on Briefs April 2, 1992.
    Decided May 7, 1992.
    49 St.Rep. 422.
    252 Mont. 472.
    830 P.2d 550.
    For Appellant: Julio K. Morales, Morales Law Office, Missoula.

      For Respondent: John O. Mudd, Garlington, Lohn & Robinson, Missoula.
   JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiff, Yvonne Miller, brought a wrongful discharge action against her employer, Citizens State Bank (Bank), in the Fourth Judicial District Court, Ravalli County, Montana. The court entered judgment in favor of the Bank. Ms. Miller appeals. We affirm.

The issues for review are restated as follows:

1. Did the Bank terminate Ms. Miller for good cause as required by § 39-2-904(2), MCA?

2. Did the Bank comply with § 39-2-904(3), MCA, by following the express provisions of its personnel policy when it terminated Ms. Miller?

The District Court made the following findings. Ms. Miller became a full time employee of the Bank in 1956. In 1989, Ms. Miller was involuntarily terminated from her position as operations officer. Ms. Miller had held the position of operations officer for ten years prior to her discharge. U.C. Hollingsworth, president of the Bank from 1937 through 1987, testified by deposition that plaintiff was a good and enthusiastic worker. Earle Wright, plaintiffs supervisor prior to 1987, testified that during his tenure, the Bank had no cause to terminate Ms. Miller.

In 1987, the Bank hired Samuel R. Noel, who later assumed the position of bank president. Mr. Noel implemented changes designed to facilitate demands from regulatory agencies and accommodate changes in the economic climate. The court found Ms. Miller was aware of the requirements of her position, yet she failed to perform important tasks or did not complete tasks in a timely manner. The court noted that Mr. Noel was a difficult supervisor. However, it also found Ms. Miller “bucked the system” thus straining the working relationship between herself and Mr. Noel.

The District Court found that in addition to a below standard written performance appraisal, on at least three occasions Mr. Noel warned Ms. Miller of potential termination unless her job performance improved. Despite these warnings and indicators, Ms. Miller delayed completing tasks and resisted changes implemented by Mr. Noel. As a result, Ms. Miller was terminated.

The District Court found the Bank followed the express written provisions of its personnel policies in terminating Ms. Miller. It further concluded the Bank did not wrongfully discharge Ms. Miller.

Plaintiff appeals this judgment, arguing she was wrongfully terminated under § 39-2-904, MCA, which prohibits employers from discharging employees without cause and in violation of the employer’s written personnel policies.

I

Did the Bank terminate Ms. Miller for good cause as required by § 39-2-904(2), MCA?

Ms. Miller contends she was wrongfully discharged because the Bank terminated her without good cause. Plaintiff encourages this Court to adopt a new standard of “good cause” based upon whether the employee satisfied the general obligations of an employee described in § 39-2-401, MCA, whether the employer followed industry standards of progressive discipline, and whether the defendant exercised bad faith.

In light of the statutory definition adopted by the legislature, we conclude that it is inappropriate to apply the standard advanced by Ms. Miller. Section 39-2-904, MCA, states in part: “A discharge is wrongful only if... (2) the discharge was not for good cause...” Section 39-2-903(5), MCA, defines good cause as: “reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer’s operation, or other legitimate business reason.”

Based on its extensive findings, including those that Ms. Miller failed to implement new procedures and delayed completing tasks, the District Court concluded plaintiff was terminated for failure to satisfactorily perform her job duties. Thus, it held Ms. Miller was terminated for good cause based on reasonable job-related grounds as defined by § 39-2-903(5), MCA.

Under Rule 52(a), M.R.Civ.P., the District Court’s findings of fact will not be disturbed on appeal unless they are clearly erroneous. Trad Indus. Ltd. v. Brogan (1991), 246 Mont. 439, 447, 805 P.2d 54, 59. Here, Ms. Miller failed to show the lower court’s findings were clearly erroneous. Accordingly, we conclude Ms. Miller’s termination was based on reasonable job related grounds.

We hold the Bank terminated Ms. Miller for good cause as required by § 39-2-904(2), MCA.

II

Did the Bank comply with § 39-2-904(3), MCA by following the express provisions of its personnel policy when it terminated Ms. Miller?

Ms. Miller contends the Bank failed to provide her with a formal warning; thus, she was terminated in violation of the Bank’s personnel policy. Section 39-2-904(3), MCA, states in part: “A discharge is wrongful only if... (3) the employer violated the express provisions of its own written personnel policy.” Here the District Court specifically found that Mr. Noel warned Ms. Miller that her continued substandard performance would result in dismissal. It further found that the Bank followed the express written provisions of its personnel policies when it terminated Ms. Miller.

As previously stated, the standard of review for the lower court’s findings of fact, in a civil action, is whether or not the findings are clearly erroneous. Trad Indus. Ltd., 246 Mont. at 447, 805 P.2d at 59. In reviewing the record, we conclude that Ms. Miller failed to prove these findings were clearly erroneous. We hold the Bank complied with § 39-2-904(3), MCA, and followed the provisions of its personnel policy when it terminated Ms. Miller.

Affirmed.

JUSTICES HARRISON, TRIEWEILER, GRAY and HUNT, concur.


author: JUSTICE McDONOUGH

text:
    THE MONTANA DEPARTMENT OF REVENUE, Petitioner and Appellant, v. UNITED PARCEL SERVICE, INC., a corporation, Respondent and Respondent.
    No. 91-208.
    Submitted on briefs November 21, 1991.
    Decided January 14, 1992.
    49 St.Rep. 20.
    252 Mont. 476.
    830 P.2d 1259.

      For Appellant: Geralyn Driscoll, Department of Revenue, Helena, Montana.
    For Respondent: James P. Sites, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Montana; Richard D. Birns and Joan E. Kreider, Bradwell, Schnader, Harrison, Segal & Lewis, Philadelphia, Pennsylvania.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

The Department of Revenue appeals from an order of the First Judicial District, Lewis and Clark County, affirming an order of the State Tax Appeal Board. We affirm.

The issues on appeal are:

1. Whether the District Court erred in concluding that the mileage method of computing United Parcel Service’s Montana revenue overstated the actual amount of such revenue.

2. Whether the District Court erred in concluding that 15-31-312, MCA, authorized the State Tax Appeal Board to determine a method used in the apportionment formula results in an unfair representation of UPS’s business activity in Montana.

United Parcel Service, Inc. (UPS) is an authorized motor carrier, specializing in a nationwide small package pick-up and delivery service. Under UPS’s operating authorities (Interstate Commerce Commission and Montana Public Service Commission), it is required to treat each package as a separate and distinct shipment, with a size and weight limit on each package. The charge per package is based on 1) the weight of the package, 2) the rate zone to which each package is sent (based on United States Postal Service rate zones), and 3) a package service charge. UPS’s primary competition is the United States Postal Service.

UPS has developed a unique operating system in order to provide its specialized, nationwide small package pick-up and delivery service. UPS divides the United States into “operating areas.” Within each operating area, an “operating center” headquarters the brown vans, and initial and final package sorting takes place.

Each morning, the brown vans set out from the operating center for delivery within the operating area. After the packages are delivered, the driver becomes a pick-up driver. At the end of the day the pick-up packages are returned to the operating center. The packages are sorted into two groups. One group consists of packages remaining within the operating area, the other group consists of packages destined for addresses within another operating area. These packages are delivered to larger sorting centers termed “hubs.” Due to this method, vehicle miles may be quite different from the distance between origin and destination.

Reports prepared by UPS indicate that Montana has a population of 5.4 people per square mile. UPS’s operating statistics revealed that UPS’s Montana miles per driver were 148 miles compared to between 47 and 89 miles in other districts in the northwest region. Further, UPS transported 1.71 packages per mile in Montana as compared with 4.68 to 9.10 packages per mile in the other districts in the northwest region. During the audit period (1977-1982) Montana package van drivers carried fewer packages per van than drivers in any other state, and had the lowest pounds of packages transported.

UPS is a multi-state, unitary corporation and therefore calculates Montana taxable income using formula apportionment. In 1983, the Department of Revenue (the Department) audited the corporate license tax returns UPS filed for 1977 through 1982. The Department calculated Montana taxable income using the mileage method based on 42.26.264, ARM. In 1985, the Department assessed an additional tax to UPS. UPS appealed the assessment to the State Tax Appeal Board (STAB).

Prior to the audit, UPS used a “gross billed method” to calculate taxable income. STAB issued findings of fact, conclusions of law, and order, which ruled that the Department’s “mileage method” of calculating the sales factor is an inappropriate method and ordered the Department to use the “adjusted revenue method.”

The District Court affirmed STAB’s findings of fact, conclusions of law and order. However, the District Court found STAB confused the “adjusted revenue method” with the “state-to-state method” and remanded to STAB to correct the terminology. This appeal followed.

The standard of review used by this Court in reviewing agency (STAB) findings of fact is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. Section 2-4-704, MCA (1991). In reviewing conclusions of law, we will determine if the agency’s (STAB) interpretation of the law is correct. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 601.

I

Whether the District Court erred in concluding that the mileage method of computing United Parcel Service’s Montana revenue overstated the actual amount of such revenue.

Recently this Court reviewed Montana’s Corporation License Tax. We said:

Every corporation engaged in business in the State of Montana must pay annually to the state treasurer as a license fee for the privilege of carrying on business in this state a percentage of its total net income ... In the case of corporations having income from business activity which is taxable both within and without this state, the license fee is measured by the net income derived from or attributable to Montana sources as determined under the Corporation License Tax Act. Section 15-31-101(3), MCA.
Montana, to overcome the difficulty, when a corporation engages in a unitary business in more than one state, of determining the corporation’s income and expenses generated from its activities in Montana, has adopted the Uniform Division of Income for Tax Purposes Act (UDITPA). Under the UDITPA method, business income is apportioned to each jurisdiction based on a three-factor apportionment formula. The factors are property, payroll and sales ....

Am. Tele. & Tele. v. State Tax Appeal Board (1990), 241 Mont. 440, 443, 787 P.2d 754, 756.

Section 15-31-305, MCA (1991), sets forth the formula for apportioning business income under the UDITPA. “All business income shall be apportioned to this state by multiplying the income by a fraction, the numerator of which is the property factor plus the payroll factor plus the sales factor and the denominator of which is 3.” Sections 15-31-306 to 15-31-311, MCA, provide the definitions for the property, payroll and sales factor and guidelines for the proper formulas used in the equations.

Only the sales factor is in dispute here: Sections 15-31-310 and 15-31-311, MCA, are the definitional sections for the sales factor within the apportionment formula:

The sales factor is a fraction, the numerator of which is the total sales of the taxpayer in this state during the tax period and the denominator of which is the total sales of the taxpayer everywhere during the tax period.

Section 15-31-311, MCA, provides in part:

(2) Sales, other than sales of tangible personal property, are in the state if:
(a) the income-producing activity is performed in the state; or
(b) the income-producing activity is performed both in and outside this state and a greater proportion of the income-producing activity is performed in this state than in any other state, based on costs of performance. (Emphasis added.)

The term “sales” is defined in 15-31-302(5), MCA, as “all gross receipts of the taxpayer” ... Thus, since “sales” is all gross receipts of the taxpayer, under §§ 15-31-310 and 311, MCA, the sales factor must be based on the revenue received by the taxpayer.

The Department used the “mileage method” in determining the sales factor for the apportionment formula. The Department argues that UPS must prove the “mileage method” distorts its income prior to invoking the relief provision of 15-31-312, MCA, relying on Trinova Corp. v. Michigan Dept. of Treasury (1991), _ U.S. _ 111 S.Ct. 818, 112 L.Ed.2d 884.

However, Trinova involved constitutional claims relating to Michigan’s apportionment formula as applied to Trinova. Trinova _ U.S. _, 111 S.Ct. at 829, 112 L.Ed. 2d at 904. UPS does not challenge Montana’s identical three-factor apportionment formula. Rather, UPS argues that under Montana law the mileage method utilized by the Department does not fairly represent the extent of its business activity within the State.

Section 15-31-312, MCA, is the relief provision under UDITPA. It provides in part:

If the allocation and apportionment provisions of this part do not fairly represent the extent of the taxpayer’s business activity in this state, the taxpayer may petition for or the tax administrator may require, in respect to all or any part of the taxpayer’s business activity, if reasonable

(4) the employment of any other method to effectuate an equitable allocation and apportionment of the taxpayer’s income.

We find no authority for the State’s argument that UPS must prove the mileage method distorts its Montana income prior to invoking the relief provision under 15-31-312(4), MCA.

In Am. Tele. & Tele. v. State Tax Appeal Board (1990), 241 Mont. 440, 448, 787 P.2d 754, the tax administrator invoked the relief provision under 15-31-312, MCA. In AT&T we held the Department properly invoked 15-31-312, MCA, because the inclusion in gross receipts of returns on temporary cash investments in the sales factor did not fairly represent the extent of the taxpayer’s business activity within the state. Am. Tele. & Tele, at 448, 787 P.2d at 759.

UPS put forth substantial evidence to show the mileage method did not fairly represent its business activity within Montana. Evidence before STAB revealed that UPS drivers in Montana drive more miles to deliver fewer packages than drivers in any other state, and that average revenue per mile varies substantially from state to state. Further, STAB found that expert testimony presented by UPS revealed the underlying differences between UPS and other freight carriers, and that the mileage method for calculating revenue was less precise for UPS.

The mileage method is calculated by dividing the number of miles traveled by UPS in Montana by the total miles traveled by UPS nationally, and multiplying the percentage by the total revenue received by UPS. STAB ordered that the sales factor be calculated by the “adjusted revenue method,” that is, using numbers of packages of an average weight (10-11 pounds), at the rate for the furthest zone in each state. Fifty percent of the interstate pick-ups and deliveries are attributed to Montana, and one hundred percent of the Montana intrastate pick-ups and deliveries are attributed to Montana.

The District Court correctly found STAB’s discussion of the “adjusted revenue method” to be a misnomer, which was really the “state-to-state” revenue analysis method. The “adjusted revenue method” allocates revenue between two UPS corporations. Wholly intrastate packages must be assessed at fifty percent to avoid double counting. The District Court found that STAB’s use of the “adjusted revenue method” referred to an adjustment under the state-to-state method to avoid double counting of packages both picked up and delivered in Montana.

We therefore conclude that reliable, probative, and substantial evidence existed to support STAB’s findings of fact and that STAB’s interpretation of the law was correct. For the foregoing reasons we affirm the District Court on the first issue.

II

Whether the District Court erred in concluding that 15-31-312, MCA, authorized the State Tax Appeal Board to determine a method used in the apportionment formula results in an unfair representation of UPS’s business activity in Montana.

Section 2-4-102, MCA, is a definitional section. Part (11) provides:

(11) “Substantive rules” are either:

(a) legislative rules, which if adopted in accordance with this chapter and under expressly delegated authority to promulgate rules to implement a statute have the force of law and when not so adopted are invalid; or
(b) adjective or interpretive rules, which may be adopted in accordance with this chapter and under express or implied authority to codify an interpretation of a statute. The interpretation lacks the force of law.

The Department maintains that 42.26.264, ARM, has the force of law. It is true that the Department promulgated rules to implement Title 15, Chapter 31 under MAPA. See 15-31-313, MCA (1991). The Department promulgated rules in 42.26.264, ARM, related to freight and passenger carriers which is the basis of the “mileage method.” Section 42.26.264 provides:

SPECIAL COMPUTATIONS RELATED TO FREIGHT AND PASSENGER CARRIERS (1) A portion of the net income of taxpayers engaged in the transportation of freight or passengers within and without Montana may be attributed to the movement of revenue-producing equipment, drivers, train crews, or other operating personnel across the state.
(2) The percentage of miles traveled within Montana to total miles traveled everywhere shall be the percentage used in determining the amount of income attributable to this state. The apportionment formula for such transportation companies shall be computed as follows:
(a) Fixed properties, such as buildings and land used in the business, terminal facilities, shop equipment, and cars and trucks used in gathering or delivering local freight, shall be assigned to the state in which such properties are located. The value of equipment used in interstate transportation shall be assigned to this state on the mileage basis.
(b) The wages and salaries of employees assigned to fixed locations as officers or clerical, administrative, pick-up and delivery, or terminal personnel within this state shall be included in the Montana payroll factor. The wages of personnel operating transportation equipment within and without this state shall be assigned to this state upon the basis of miles. The wages of such personnel shall be assigned to Montana in proportion that miles traveled within this state bear to the total miles traveled everywhere.
(c) Revenues will be assigned to this state in the proportion that the miles traveled within the state bear to the total miles traveled everywhere. All other revenue shall be assigned in accordance with the provisions of 15-31-310 and 15-31-311, MCA, and ARM 42.26.151 through 42.26.253 and 42.26.257.

The District Court found that the Department’s authority to promulgate regulations to carry out UDITPAdoes not insulate it from challenges to the validity and breadth of its regulations. The District Court held that under Bick v. State Department of Justice (1986), 224 Mont. 455, 457, 730 P.2d 418, 420, administrative agencies enjoy only powers specifically conferred upon them by the legislature, and agency rules must be strictly confined within the applicable legislative guidelines. Further, the rule must be reasonably necessary to effectuate the purpose of the statute. Bick at 458, 730 P.2d at 421.

The District Court further found that although the legislature left it up to the Department to develop a method of calculating “income producing activity’ for the sales factor portion of the three-factor formula, the method must be based on revenue received by the taxpayer under the statutory definition of “sales.” Further, 15-31-312, MCA, requires an equitable representation of the taxpayer’s business activity within the State. UPS put forth substantial evidence to show the “mileage method” did not equitably represent its business activity within the State. We conclude above that UPS may petition for an alternative method of apportionment under 15-31-312(4), MCA.

Additionally, 42.26.264, ARM, also sets forth the “mileage method” in determining both the property and payroll factors of the three-factor formula. The Department chose not to use the milage method to calculate property and payroll for UPS. Yet, the Department insists it must use the mileage method for the sales factor. The Department’s application of the regulation to the three-factor formula is inconsistent. Its argument, therefore, fails.

We conclude that the District Court’s interpretation that 15-31-312, MCA, authorized STAB to find the mileage method results in an inequitable representation of UPS’s business activity within Montana is correct. We therefore affirm the District Court.

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


author: JUSTICE GRAY

text:
    EDITH ISABELLA CARROLL, Wife of CHARLES ELMER CARROLL, Deceased, and Personal Representative of the Estate of Charles Elmer Carroll, Plaintiff and Respondent, v. W. R. GRACE & COMPANY, Defendant and Appellant.
    No. 91-283.
    Submitted on briefs December 2, 1991.
    Decided January 14, 1992.
    49 St.Rep. 24.
    252 Mont. 485.
    830 P.2d 1253.

      For Respondent: Tom L. Lewis, Regnier, Lewis & Boland; Thomas A. Baiz, Jr., Baiz Law Office, Great Falls.
    For Appellant: Gary L. Graham and Maureen H. Lennon, Garlington, Lohn & Robinson, Missoula.
   JUSTICE GRAY

delivered the Opinion of the Court.

This case is before us on certified questions from the Ninth Circuit Court of Appeals concerning the point at which a Montana wrongful death action accrues. We accepted certification pursuant to Rule 44 of the M.R.App.P.

Appellant (and defendant), W.R. Grace and Company, claims that the action accrues at the date of injury. Respondent (and plaintiff), Edith Carroll, claims that a wrongful death action accrues at the death of the injured person. We conclude that a wrongful death action does not accrue until the death of the injured person.

Charles Carroll (decedent) was employed by W.R. Grace and Company (Grace) at its vermiculite mine located in Libby, Montana, from 1958 until 1976; he underwent yearly chest x-rays provided by Grace from 1967 until 1976. Decedent retired in 1976, but continued to seek medical help regarding shortness of breath and a heart condition.

Mr. Carroll died in 1989, thirteen years after retirement. His autopsy report listed the cause of death as “severe interstitial fibrosis with pulmonary failure, apparently due to ‘asbestosis’.” Decedent’s medical records show that he had been diagnosed as suffering from asbestosis as early as 1972.

Edith Carroll, wife of decedent, filed a survival claim and a wrongful death claim against Grace, her husband’s former employer, asserting that her husband’s asbestosis was related to his employment at Grace’s mine. She contends that she did not know his death was related to his employment until she read the autopsy report. She filed her suit as a diversity action in the United States District Court within two months of her husband’s death.

Grace moved for summary judgment based on the running of the statutes of limitations for both survival and wrongful death claims. The U.S. District Court granted summary judgment, holding that the statute of limitations had run on both claims. Edith Carroll appealed to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit affirmed the District Court’s holding that the survival claim was barred by the applicable three-year statute of limitations, but stated that Montana law was not definitive on the issue of when a wrongful death action accrues. This Court accepted jurisdiction of the certified questions by order dated June 11, 1991.

Wrongful death claims are creatures of statute in Montana. As such, the question of when a wrongful death claim accrues requires an analysis of the general accrual statute and the wrongful death statute itself.

The general accrual statute for all actions in Montana provides:

[A] claim or cause of action accrues when all elements of the claim or cause exist or have occurred, the right to maintain an action on the claim or cause is complete, and a court or other agency is authorized to accept jurisdiction of the action;

Section 27-2-102(l)(a), MCA. The wrongful death statute reads:

Action for wrongful death. When injuries to and the death of one person are caused by the wrongful act or neglect of another, the personal representative of the decedent’s estate may maintain an action for damages against the person causing the death or, if such person be employed by another person who is responsible for his conduct, then also against such other person.

Section 27-1-513, MCA.

General rules of statutory construction require this Court to interpret the statutory language before us, without adding to, or subtracting from, it. Section 1-2-101, MCA. Words and phrases used in statutes of Montana are construed according to the context and the approved usage of the language. Section 1-2-106, MCA. Therefore, when interpreting statutes, this Court will use the plain and ordinary meaning of a word. Mtn. View Ed. Assn. v. Mtn. View School (1987), 227 Mont. 288, 738 P.2d 1288.

The language of Montana’s general accrual statute is plain and straightforward: “all elements” of a claim must exist before the claim can accrue. Section 27-2-102(l)(a), MCA. The meaning is equally clear and not susceptible to differing interpretations: only when all elements exist is a claim complete. Section 27-2-102(l)(a), MCA, applies, by its terms, to all claims and causes of action. Thus, a wrongful death claim, like any other cause of action, accrues only when all elements of the claim have occurred; the claim simply does not exist until that time. The question, then, is whether death is an element of a wrongful death claim.

The wrongful death statute references "... injuries to and the death of one person ... .” Section 27-1513, MCA. (Emphasis added.) When these occurrences are caused by the “wrongful act or neglect of another,” a wrongful death action may be maintained against the person who caused the death of the injured person. Section 27-1-513, MCA. It is clear from the legislature’s use of the conjunctive “and” that the death of the injured person is an element of a wrongful death claim.

The wrongful death statute contains additional language mandating the conclusion that death is an element of the claim. “[T]he personal representative of the decedent’s estate ...” files a wrongful death action. Section 27-1-513, MCA. A “decedent” is indisputably a person who has died and a personal representative of an estate cannot be appointed until there is a decedent. Thus, the death itself is a critical element in a wrongful death action.

To summarize, no claim exists until all elements of a cause of action occur pursuant to 27-2-102(l)(a), MCA, and death is an element of a wrongful death claim under 27-1-513, MCA, Montana’s wrongful death statute. Therefore, we hold that a wrongful death action in Montana accrues at the time of decedent’s death.

Based upon the above discussion, we answer the certified questions as follows:

“1. Does a Montana wrongful death action accrue at the time of decedent’s death?” Yes.
“2. If not, does a Montana wrongful death action accrue in accordance with the discovery rule as a derivative cause of action?” Having answered Question #1 in the affirmative, we do not reach Question #2.
“3. If not, when and how does a Montana wrongful death action accrue?” Having answered Question #1 in the affirmative, we do not reach Question #3.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, HUNT, TRIEWEILER, McDONOUGH and WEBER concur.