text:
    IN RE THE MARRIAGE OF ROBERT C. WOODFORD, Petitioner and Appellant, v. LORRAINE L. WOODFORD, Respondent and Respondent.
    No. 92-053.
    Submitted on Briefs June 4, 1992.
    Decided October 15, 1992.
    49 St.Rep. 887.
    839 P.2d 574.
    254 Mont. 501.

      For Petitioner and Appellant: R. Russell Plath, Halverson, Sheehy & Plath, P.C., Billings.
    For Respondent and Respondent: Damon L. Gannett, Gannett & Ventrell, Billings.
   JUSTICE HUNT

delivered the opinion of the Court.

This is an appeal from an order of the Thirteenth Judicial District Court, Yellowstone County, denying appellant Robert C. Woodford’s motion to enter a Qualified Domestic Relations Order.

We affirm.

The following issues are raised on appeal.

1. Does the District Court’s “Order On Petitioner’s Motion to Enter a Qualified Domestic Relations Order” constitute a final judgment or order from which an appeal may be taken?

2. Do retirement benefits earned and contributed to a retirement account after the date of the decree of dissolution become part of the marital estate?

The parties were married in Reno, Nevada, on October 17, 1952. Four children were born to the marriage, all of whom are now emancipated. Robert filed for dissolution on May 25, 1989. Respondent Lorraine L. Woodford filed her response on July 20, 1989.

On December 29, 1989, the parties entered into a separation agreement. The separation agreement contained the following provision:

8. MAINTENANCE PAID TO WIFE:
The parties agree that the Husband will make monthly maintenance payments to the Wife in the amount of $500.00 per month until the Husband retires from the United States Navy. Upon the Husband taking full retirement, the monthly federal government retirement benefit paid to the Husband shall be split equally with the Wife for the balance of her life. It is agreed between the parties that when the Wife receives an increase in her Social Security Retirement benefit, the monthly amount of maintenance paid to the Wife shall be reduced by the same amount as the Wife’s Social Security benefit has been increased.

Also on December 29,1989, the District Court entered its findings of fact, and conclusions of law and decree of dissolution. The court approved of the parties’ separation agreement, found it not unconscionable, and incorporated it into the court’s decree.

On September 26, 1991, Robert filed a Motion for Entry of a Qualified Domestic Relations Order (QDRO). A QDRO allows someone other than the person who earned a federal pension to directly receive a part of that pension. Along with the motion, Robert filed a proposed QDRO which contained the following provision:

Lorraine L. Woodford is awarded an amount equal to fifty percent (50%) of the monthly retirement benefits attributable to the Participant’s CSRS Participation through December 29, 1989. At her option, the Assignee can have her payments begin at any date after the Participant is eligible to receive benefits under the CSRS.
The amount of Lorraine L. Woodford’s monthly benefit shall be reduced by the same amount as her social security benefit has been increased since December 29,1989. Pursuant to Section 831.1705 of the CSRS regulations the Assignee’s December 29, 1989 social security earnings of two hundred twenty five dollars ($225.00) is the basis for calculating reduction of the Assignee’s monthly benefit.

On December 20, 1991, the District Court entered its order. The court concluded that the proposed QDRO did not conform with the parties’ separation agreement and ordered Robert to submit a QDRO which conformed with the separation agreement. Robert never filed another proposed QDRO, and instead filed a notice of appeal with this Court.

I.

Does the District Court’s “Order On Petitioner’s Motion to Enter a Qualified Domestic Relations Order” constitute a final judgment or order from which an appeal may be taken?

Lorraine contends that the District Court did not intend that its order denying Robert’s motion to enter a QDRO be considered a final order. We disagree.

Rule 1(b)(2), M.R.App.P., grants an appeal “from any special order made after final judgment.... ”In Butler v. Brownlee (1969), 152 Mont. 453, 451 P.2d 836, this Court held that an order modifying child custody and support award in a divorce decree is a “special order made after a final judgment.” The decree of dissolution entered on December 29, 1989, was a final judgment in this case. Section 40-4-108(1), MCA, provides that a decree of dissolution is “final when entered, subject to the right of appeal.” In its order of December 20, 1991, the District Court ordered Robert to submit within twenty days a QDRO that conformed to the order denying Robert’s motion to enter a QDRO. Although on its face the order appeared interlocutory, the order constituted a “special order made after final judgment” and failure to file a notice of appeal within 30 days would have closed Robert’s right to an appeal. If the effect of the order is to destroy an appellant’s right to an appeal, then that order, though interlocutory should be appealable. Bowen v. True Value Stores, Inc. (1987), 229 Mont. 84, 745 P.2d 330. We hold that the appeal is properly before this Court.

II.

Do retirement benefits earned and contributed to a retirement account after the date of the decree of dissolution become part of the marital estate?

We have stated that retirement benefits are part of the marital estate, and therefore, constitute marital property. In re Marriage of Rolfe (1985), 216 Mont. 39, 699 P.2d 79 (Rolfe I). Under Montana law, property settlement agreements are considered contracts, and therefore. must be construed under the law of contracts. In re Marriage of Quinn (1981), 191 Mont. 133, 622 P.2d 230; Section 40-4-201(5), MCA. If the language of a property settlement agreement is clear and explicit, it controls the agreement’s interpretation. Quinn, 622 P.2d at 232. This case is analogous to a recent case decided by this Court in In re Marriage of McKeon (Mont. 1992), [253 Mont. 15,] 826 P.2d 537, 49 St. Rep. 127. In that case, the District Court ruled that the property settlement agreement provided that the husband pay maintenance to the wife for the remainder of her life regardless of whether she remarried. Husband appealed the District Court’s interpretation of the separation agreement. We affirmed the District Court’s interpretation that the contract contained plain and unambiguous language that maintenance was to extend for the remainder of the wife’s life.

Section 28-3-303, MCA, provides that the writing contained in the contract generally determines the intention of the parties:

When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone if possible, subject, however, to the other provisions of this chapter.

Section 40-4-201(3), MCA, governs separation agreements, and the standard that would warrant a reopening of a judgment is a finding of unconscionability by the District Court. Robert fails to provide any facts, or to allege on appeal, that the property settlement agreement is unconscionable. Instead, Robert argues that his retirement benefits earned and contributed to his retirement account after the date of the decree dissolving the marriage are not part of the marital estate. This is not what the parties agreed to in their property settlement agreement.

The plain and unambiguous language of the contract provided that Robert’s monthly federal government retirement pension “shall be split equally with the Wife for the balance of her life.” It does not state on what date Robert’s earnings or contributions to his retirement fund should not be taken into account for the division and distribution of retirement payments. The original agreement only speaks for deductions in maintenance payments for social security increases and not for deductions in retirement benefits.

The parties were represented by counsel and understood the terms of the agreement. See generally, In re Marriage of Laskey (Mont. 1992), [252 Mont. 369,] 829 P.2d 935, 49 St. Rep. 322. Lorraine is entitled to the benefit of her bargain. Robert’s proposed QDRO was nothing more than an attempt to modify the original separation agreement.

This Court has held that where there is no ambiguity, the court is without power to insert new provisions into the contract. McKeon, 826 P.2d at 540. We have also held that “it is the duty of the district court to enforce contracts not to make new ones for the parties, however unwise the terms may appear.” McKeon, 826 P.2d at 540. We hold that the District Court did not err in concluding that the proposed QDRO did not conform to the separation agreement.

We affirm.

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


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    WAYNE K. RIEGER, Plaintiff and Appellant, v. WALTER COLDWELL, d/b/a COLDWELL ELECTRIC, Defendant and Respondent.
    No. 91-481.
    Submitted on briefs Mar. 12, 1992.
    Rehearing Denied Nov. 16, 1992.
    Decided Aug. 25, 1992.
    49 St.Rep. 768.
    839 P.2d 1257.
    254 Mont. 507.

      For Plaintiff and Appellant: Calvin J. Stacey, Keefer, Roybal, Stacey & Walen, Billings; Hank D. Buelow, Miles City.
    For Defendant and Respondent: Randall G. Nelson and Michael K. Rapkoch, Felt, Martin, Frazier & Lovas, Billings.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

Plaintiff Wayne Rieger appeals from the judgment entered in the District Court of the Sixteenth Judicial District, Fallon County, in favor of defendant Walter Coldwell. We reverse.

Rieger raises a number of issues on appeal. However, the following issues are dispositive:

1. Was defense counsel’s demonstration in front of the jury during closing argument improper and prejudicial?

2. Did the District Court err when it excluded evidence of work done by the defendant subsequent to plaintiff’s accident?

3. Should third persons who are not parties be included on the verdict form, pursuant to § 27-1-703, MCA (1985)?

On October 27, 1986, Walter Rieger was injured at his place of employment when one end of a series of three fluorescent light fixtures dropped from the ceiling and struck him on the back of the head and neck. As a result, there was evidence that Rieger sustained injuries to his neck.

The light fixtures had been attached to the sheetrock ceiling by means of a “toggle bolt,” a device that expands after being inserted into an opening. The light fixtures had been installed by Coldwell Electric in 1984.

John Heim, the owner of the building, was informed of the accident shortly after it happened. He alerted Coldwell Electric, and Walter Coldwell and his son came to the building that same day and made repairs to the fallen light, and to other lights in the building. Coldwell employees used larger toggle bolts for their repairs and used more toggle bolts for each fixture.

On May 12, 1989, Rieger filed suit against Walter Coldwell, d/b/a Coldwell Electric, and John Heim, seeking compensatory damages. Prior to trial, Rieger entered into a compromise settlement with Heim, who was then dismissed from the suit. On April 16,1991, the jury trial commenced, and the jury returned a verdict in favor of Coldwell on April 19. Notice of entry of judgment was entered on April 24. Several post-trial motions were made by Rieger, including a motion for new trial, or alternatively, judgment notwithstanding the verdict, all of which were denied pursuant to Rule 59(d), M.R.Civ.P. From this judgment and the District Court’s post-trial orders, Rieger appeals.

Prior to trial, plaintiff’s counsel made a motion in limine to preclude the jury from handling the sheetrock samples. He was concerned that the jury would be tempted to perform experiments on it. Defense counsel stipulated that the material would not be given to the jurors.

Rieger contends that defense counsel, in violation of that stipulation, performed a demonstration during closing arguments that was highly prejudicial. Counsel for Coldwell reached into an exhibit box containing broken portions of sheetrock from the ceiling that had been used for testing purposes, and produced one of the pieces. Handling the material, defense counsel stated:

Now they’re telling you that their expert told you that there’s nothing wrong with that sheetrock up there. Nothing wrong with that sheetrock. And I tell you folks —

During that statement, counsel crushed the piece of sheetrock in his hand into a powder. Plaintiff’s objection to the demonstration was sustained, and the jury was told to disregard what they had seen.

In Williams v. State (Ga. 1985), 330 S.E.2d 353, the Georgia Supreme Court was faced with a similar issue. During a prosecutor’s closing arguments, he had a 100-pound assistant district attorney point the victim’s pistol at a wall and pull the trigger. The prosecutor, demonstrating that a small person could easily pull the trigger of the gun in question, sought to challenge the defendant’s contention that the trigger was extremely difficult to pull. The court determined that this action constituted introduction of new evidence during the closing arguments which could not be rebutted, and reversed the judgment.

Counsel’s demonstration during closing showing the friability of the sheetrock likewise constituted introduction of new evidence. Coldwell had ample opportunity dining trial to introduce evidence of the sheetrock’s alleged defect. In addition, the demonstration used sheetrock which had been taken down from the ceiling some four years after the accident, had been broken up into many pieces, and had been transported about the country for testing purposes. There was no testimony that a similar force was exerted upon the sheetrock, and that it caused the accident to happen. Without a clear showing that the conditions under which the experiment was performed were substantially similar to the actual occurrence, and that the experiment assisted the jury in more intelligently considering the issue, there was a clear possibility of prejudice. Barmeyer v. Montana Power Co. (1983), 202 Mont. 185, 657 P.2d 594. This Court held in Kuhnke v. Fisher (1984), 210 Mont. 114, 126, 683 P.2d 916, 922, that there is no way to measure how a prejudicial argument may affect an adverse party. We stated that “[t]he only way to be sure which, if any, of the defendants should be exonerated or whether plaintiff should recover at all is to grant a new trial.” We so hold that for these reasons the plaintiff in this case is entitled to a new trial.

Rieger also contends that the District Court erroneously excluded evidence of the defendant’s activities at plaintiff’s job site when he came to repair the fallen fixture. Shortly after the accident, the fallen light fixture was reattached, and other fixtures in the building were inspected, with additional toggle bolts added to several. Prior to trial, the court declined to grant Coldwell’s motion in limine to preclude any evidence regarding repairs to the fallen light, but did grant the motion as to repairs made on other light fixtures in the building, stating:

With respect of Defendant’s Motion in Limine, the court determines that Plaintiff may examine or cross-examine persons with relevant knowledge regarding Coldwell Electric’s inspection and subsequent repair of the light fixture in question ... and the feasibility of other methods of installing the light fixtures. Although Defendant has offered to stipulate that it would have been feasible to install more and/or larger toggle-bolts, Defendant is expected to argue that the cause of the falling light fixture was damp, defective sheetrock. This tends to controvert the “feasibility” of using more and/or larger toggle-bolts in that “feasibility’ implies more than the possibility of installing more and/or larger toggle-bolts. It also implies use of such toggle-bolts would have prevented the light from falling. The parties shall submit proposed cautionary instructions regarding the purpose for which such testimony may be used.
However, plaintiff is prohibited from inquiring regarding the repair of the other fights, unless, after side-bar conference, it appears that the relevance of the evidence outweighs its prejudicial effect under Rule 403, M.R.Evid.

The court apparently based its partial acceptance of evidence of repair on Rule 407, M.R.Evid. While Rule 407 bars evidence of subsequent remedial measures, evidence “offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures” need not be excluded. The court stated that feasibility was at issue. However, the court based its refusal to admit other evidence upon a different evidentiary rule, Rule 403, M.R.Evid. Rule 403 states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Rieger contends that the court erred in its refusal to allow evidence of repairs to other light fixtures, particularly in light of the testimony of Coldwell’s expert witness that other sheetrock in the building appeared to be much stronger than that found where the accident took place. We agree with plaintiff. In light of the expert testimony that the sheetrock at the accident scene was defective, Rieger should have been allowed to offer evidence that other light fixtures were loose and were subsequently repaired. Such evidence was probative, and tended to refute the expert testimony that the sheetrock at the accident scene was defective and was the sole cause of the accident. Runkle v. Burlington Northern (1980), 188 Mont. 286, 613 P.2d 982. Upon retrial, Rieger should be allowed to present evidence of the repairs to rebut any contention of defective sheetrock.

Rieger contends that it was error to include the building owner, John Heim, and the manufacturer of the sheetrock, who were not parties to the action, in the verdict form. We agree.

Prior to its amendment in 1987, § 27-1-703, MCA (1985), provided that a tort-feasor is jointly and severally liable. The only issues for the jury to consider were the defendant’s negligence and whether that negligence contributed as a cause of plaintiff’s damages. The inclusion of a settling party or other third party in the verdict form would serve no relevant purpose in the determination of these issues. The plaintiff’s recovery, if any, may be diminished by a credit based on the amount of consideration paid by the settling joint tort-feasor, upon post-trial motion by the defendant. Azure v. City of Billings (1979), 182 Mont. 234, 244-45, 596 P.2d 460, 466. We hold that it was reversible error to include nonparties in the verdict form.

Finally, we address the defendant’s post-trial use of juror affidavits attempting to show that the jurors were not influenced by mention of the Heim settlement or the courtroom demonstration. In Rasmussen v. Sibert (1969), 153 Mont. 286, 293, 456 P.2d 835, 839, we held that the use of juror affidavits is confined exclusively to cases of misconduct of the jury under § 25-11-102(2), MCA. The use of juror affidavits in this case was inappropriate and should not have been permitted by the District Court. Nor should future parties submit juror affidavits for this purpose.

Accordingly, we reverse the District Court and remand for new trial.

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


author: JUSTICE TRIEWEILER JUSTICE WEBER

text:
    CHARLES T. KILLEBREW, Claimant and Appellant, v. LARSON CATTLE COMPANY, Employer and Respondent, and UNINSURED EMPLOYERS FUND, Defendant and Respondent.
    No. 91-279.
    Submitted Dec. 10, 1991.
    Decided Aug. 31, 1992.
    49 St.Rep. 783.
    839 P.2d 1260.
    254 Mont. 513.

      For Claimant and Appellant: Paul E. Toennis argued, Toennis Law Firm, Billings.
    For Respondent: Jerrold F. Nye argued, Nye & Meyer, Billings; Daniel B. McGregor, Department of Labor and Industry, Helena.
    For Amicus Curiae: Charles G. Adams argued, State Compensation Mutual Insurance Fund, Helena; Michael P. Heringer, Brown Law Firm, Billings.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

On June 13, 1990, the Uninsured Employers Fund of the Department of Labor and Industry issued an order requiring that the Larson Cattle Company pay workers’ compensation disability benefits to Charles Killebrew, the claimant. On June 26, 1990, the employer denied liability for disability benefits and requested mediation under § 39-71-2401, MCA. On December 17, 1990, a hearing examiner for the Department of Labor and Industry concluded that claimant was not entitled to disability benefits because he had not given adequate notice under § 39-71-603, MCA (1987). That decision was affirmed by the Workers’ Compensation Court on May 9,1991. Claimant appeals from the judgment of the Workers’ Compensation Court. We reverse and remand for further proceedings.

The issue on appeal is whether the information which claimant alleges he provided to his employer was sufficient to satisfy the notice requirements under § 39-71-603, MCA (1987).

FACTUAL BACKGROUND

Claimant went to work for his employer as a ranch hand during July 1989 and worked in that capacity until mid-May 1990.

Claimant testified that while working for his employer on December 17, 1989, he was operating a tractor when he was forced off the road by a pickup approaching him in the opposite direction. As a result of this accident, the tractor was tipped over on its side. Claimant testified that when the tractor hit the ground it jerked his hands loose from the steering wheel and he fell against the side of the cab, striking his shoulder.

Claimant testified that he saw his employer, Clifford Larson, on either the day following the tractor accident or two days later. He testified that he told Larson about the accident, stating, “I hurt my shoulder a little bit, but I said you know Tm okay it’s no big deal I don’t think.’”

Claimant testified that he then continued to perform his ranch duties, but that as time passed his shoulder became increasingly uncomfortable, his use of that shoulder became increasingly limited, and he finally went to a physician on February 14,1990. The medical records of R. R. Whiting, M.D., a physician in Hardin, indicate that he first examined the claimant regarding the shoulder injury on February 14, 1990. Dr. Whiting’s records indicate that on that occasion claimant stated that he had injured the shoulder when he was operating a tractor which overturned. Dr. Whiting diagnosed a rotator cuff tear which he concluded was causally related to the accident that claimant had described. The shoulder injury was later diagnosed by an orthopedic surgeon as an impingement syndrome for which surgery was performed on August 10, 1990.

On May 15,1990, as a result of his shoulder injury, claimant filed a written claim for compensation pursuant to § 39-71-601, MCA.

Claimant’s employer, Clifford Larson, testified that on the date of claimant’s tractor accident he came out to the ranch, saw the tractor lying on its side, and knew that claimant had been involved in an accident. However, he denied that claimant had ever advised him of any injury or physical discomfort resulting from that accident.

On March 17,1990, while attempting to tag a newborn calf for his employer, claimant was run into and then run over by a cow. He testified that he was generally beat up and bruised as a result of the experience. However, he did not seek immediate medical attention.

Claimant testified that on the day following the incident with the cattle lie told his employer he had been beaten up by a couple of cows and that he showed his employer the physical marks on his body which resulted from that experience. He did not describe any specific injury to his employer, and there is no evidence that he was aware of any specific injury at that time.

After being run into and over by the cattle, claimant’s knee began to swell. He packed it with ice for a period of time and tried to continue working. However, when the ice did not relieve the swelling, he went to see Dr. Whiting for treatment of his knee injury. Dr. Whiting’s records indicate that he first examined the claimant regarding a knee and ankle injury on April 19, 1990. He referred him for further diagnostic exams and an evaluation by an orthopedic surgeon in Billings. That surgeon diagnosed a tear of the medial meniscus in the right knee and an impingement syndrome on the right ankle. Surgery was performed on the right knee on June 13, 1990, and on the right ankle on August 10, 1990.

As a result of his knee and ankle injuries, claimant filed a claim for compensation on May 15, 1990, pursuant to § 39-71-601, MCA.

Clifford Larson acknowledged that in March 1990 he was aware that his employee had been “in a wreck with the cows.” However, he denied having been advised that claimant was injured as a result of that incident.

Because Larson carried no workers’ compensation insurance, claimant entered into an agreement with the Uninsured Employers Fund of the Department of Labor and Industry which authorized the Fund to recover benefits it paid to the employee directly from the employer.

The Fund ordered Larson to pay to claimant those benefits to which he was entitled under the Workers’ Compensation Act on June 13, 1990. Larson sought mediation of that order and denied liability to claimant for several reasons. He contended that claimant had never been his employee; that any injury claimant received was sustained while performing work beyond the scope of his duties; and that claimant never notified him of his injuries within 30 days as required by § 39-71-603, MCA (1987).

On September 28, 1990, a hearing was held before the hearing examiner from the Department of Labor. The hearing examiner considered testimony from the claimant and his employer and several other witnesses. However, the only testimony regarding the notice given by claimant to his employer came from Killebrew and Larson.

As a result of the evidence produced at that hearing, the hearing examiner concluded that:

1. There was an employer-employee relationship between Larson and Killebrew;

2. Claimant injured his shoulder on December 17, 1989, and his knee and ankle on March 17, 1990;

3. Both of claimant’s injuries were related to his employment by Larson; but that

4. Even though Larson was aware of both accidents within 30 days from the time that they occurred, claimant did not disclose the nature of his injuries with sufficient specificity to comply with § 39-71-603, MCA.

In concluding that the claimant had not satisfied the notice requirement, the hearing examiner did not specifically resolve the direct conflict between the testimony of Killebrew and Larson. He simply drew the following conclusion based on previous language employed by this Court:

In Lee v. Lee, d/b/a Wilderness Ranch and Lodge, 234 Mont. 197, 761 P.2d 835 (1988), the Supreme Court adopted the standard set forth in 3 Larson, Sec. 78.31(a)(2), pp. 15-126 to 15-136 (1988), which states:
It is not enough, however, that the employer, through his representatives, be aware that claimant “feels sick”, or has a headache, or fell down, or walks with a limp, or has a pain in his thumb, or has suffered a heart attack. There must in addition be some knowledge of accompanying facts connecting the injury or illness with the employment, and indicating to a reasonably conscientious manager that the case might involve a potential compensation claim.
Though there is conflicting evidence, it is found as fact Mr. L [Larson] was aware of the accidents within the statutory time period set forth in § 39-71-603, MCA. The information imparted to him, however, would not meet the standards of notification cited in Lee, supra, and set forth in Section 603. While being aware of the accidents, constructive knowledge of the injuries which resulted from those accidents cannot be imputed to him. It was incumbent upon Mr. K [Killebrew] to advise his employer of the specific injuries in a timely manner, but he failed to do so. [Italics added.]

It is not clear, therefore, whether the hearing examiner found that Killebrew had given Larson no description of any physical consequences from the accidents he described, or whether the hearing examiner simply concluded that, presuming Killebrew’s testimony was true, his description of his injury was inadequate.

The Workers’ Compensation Court affirmed the decision of the hearing examiner for the following reason:

We cannot conclude that the hearing examiner abused his discretion on the basis argued by the claimant, since the claimant never reported any injury within the 30-day period.

However, as pointed out previously, it is not clear that that is in fact what the hearing examiner found.

The Workers’ Compensation Court went on to conclude that since no notice of any injury had been given to the employer within the 30-day period required by § 39-71-603, MCA (1987), claimant’s claim was barred pursuant to our decision in Reil v. Billings Processors, Inc. (1987), 229 Mont. 305, 746 P.2d 617, in which we held that “latent injuries” did not exclude strict compliance with the notice requirements of § 603.

On appeal, claimant contends that the hearing examiner and the Workers’ Compensation Court misconstrued the nature of the notice that is required under § 39-71-603, MCA. Claimant contends that the hearing examiner was incorrect as a matter of law pursuant to our decision in Wight v. Hughes Livestock Co., Inc. (1981), 194 Mont. 109, 634 P.2d 1189, and Wilson v. Sun River Cattle Co. (1983), 206 Mont. 63, 670 P.2d 931.

The employer, on the other hand, contends that claimant simply seeks to toll the notice requirements under § 603 on the basis that his injury was latent and that our decision is controlled by our prior decision in Reil and Roessel v. Rivendell of Billings (1990), 244 Mont. 175, 797 P.2d 174.

STANDARD OF REVIEW

On appeal from the decision of the hearing examiner for the Department of Labor and Industry, claimant did not challenge the hearing examiner’s findings of fact. He challenged the hearing examiner’s application of the law as set forth in Lee to the facts in this case.

We have previously held that when reviewing conclusions of law by an agency, the Workers’ Compensation Court, or a trial court, we will review those conclusions to determine if they are correct. Steer v. DOR (1990), 245 Mont. 470, 803 P.2d 601, 603.

DISCUSSION OF LAW

Section 39-71-601, MCA (1987), provides a statute of limitations for filing claims for disability benefits under the Workers’ Compensation Act. Written claims for benefits must be filed within 12 months, unless extended by the Department of Labor and Industry for a latent injury or unknown disability. However, we have previously held that ■under § 601, in cases of latent injury, the time for filing does not begin to run until the claimant does or should recognize the nature, seriousness, and compensable character of his injury. Bowerman v. State Compensation Fund (1983), 207 Mont. 314, 673 P.2d 476.

Section 39-71-603, MCA (1987), is the “notice” provision of the Workers’ Compensation Act. It provides as follows:

No claim to recover benefits under the Workers’ Compensation Act, for injuries not resulting in death, may be considered compensable ■unless, within 30 days of the occurrence of the accident which is claimed to have caused the injury, notice of the time and place where the accident occurred and the nature of the injury is given to the employer or the employer’s insurer by the injured employee or someone on the employee’s behalf. Actual knowledge of the accident and injury on the part of the employer or the employer’s managing agent or superintendent in charge of the work upon which the injured employee was engaged at the time of the injury, is equivalent to notice.

We have previously held that unlike § 601, the notice requirement of § 603 is not tolled where the employee is unaware of the severity or compensable nature of his injury. Reil v. Billings Processors, Inc. (1987), 229 Mont. 305, 746 P.2d 617; Roessel v. Rivendell of Billings (1990), 244 Mont. 175, 797 P.2d 174.

It is the Reil and Roessel decisions which the employer contends are controlling in this case. However, neither case presented a factual situation similar to the one in this case.

In Reil, the employer was generally aware of complaints of discomfort by the claimant. However, the employer was not provided with any notice that those complaints of pain or discomfort were related to any accident that occurred during the course of claimant’s employment, or to any work related activities until well after the time for providing notice under § 603.

In Roessel, the employer was not provided with notice of any work-related accident or of the claimant’s complaints about physical discomfort until after the 30-day period of time provided for under § 603.

In other words, in neither Reil nor Roessel was the employer provided with notice of an accident or activity which could have led to injury so that it could protect itself by prompt investigation of the accident and providing whatever medical examination or treatment was necessary for the claimant.

In this case, it is undisputed that the employer was aware of both accidents which are the basis for claimant’s claims for compensation. Furthermore, if the claimant’s testimony is believed, then the employer was also provided with all the information available to the claimant at that time regarding the physical impact of these accidents on the claimant. We are not presented, in this case, with a situation where the employer did not have notice which would enable him to promptly investigate the accident or secure the necessary examination and treatment of the claimant. The question in this case is whether, if the claimant’s testimony is correct, the description of his injuries was adequate to meet the requirements of § 603.

Our decision is controlled by our previous decision in Wight. In that case, claimant was injured while doing ranch work when he was pinned between the steering wheel on the tractor that he was driving and an uplifted front-end loader of another tractor. He originally reported only injuries to his ribs and chest. Two years later he filed an additional claim for benefits alleging that he sustained injuries to his back in the same accident. Benefits were denied on the basis that he had not notified his employer of the specific injury for which he sought benefits as required under § 39-71-603, MCA. In affirming the Workers’ Compensation Court’s judgment for the claimant, we held that:

“The purpose of the notice requirement ... is to enable the employer to protect himself by prompt investigation of the claimed accident and prompt treatment of the injury involved with a view toward minimizing its effects by proper medical care.” Bender v. Roundup Mining Co. (1960), 138 Mont. 306, 313, 356 P.2d 469, 473. The purpose underlying the requirement for early reporting of injuries was fulfilled in this case. The claim form submitted by Wight provided the insurer with all the information it needed to enable it to investigate the accident and determine the extent of Wight’s injuries.

Wight, 634 P.2d at 1189.

We arrived at a similar conclusion in Wilson where the claimant originally only reported an injury to his leg, but later filed a claim for disability benefits due to a back injury arising out of the same accident.

Based on these decisions, we conclude that the requirements of § 39-71-603, MCA (1987), are satisfied when an employee who is involved in a work-related accident reports that accident to his employer within 30 days from the date of its occurrence and apprises his employer, to the best of his ability, whether he suffered any adverse physical consequences from that accident. An employee who has a reasonable belief at the time of an accident that he has suffered no injury which will require treatment or is otherwise compensable, is not barred from recovery under § 603 because he learns otherwise beyond the 30-day period.

Following his December 17, 1989, tractor accident, claimant testified that he advised his employer he had hurt his shoulder a little bit but that he thought it was going to be okay. Following his March 17,1990, accident in which he was run into and trampled on by cattle, claimant testified that he showed his employer the physical evidence of trauma on his body and that his employer observed him limping thereafter when he had not limped before. This information following both incidents was sufficient to enable the employer to protect himself by prompt investigation of the accidents and to require prompt treatment or examination for any injuries that might have resulted from those accidents.

Claimant was not in a position to provide more information than he described because it was not until after 30 days that his injury from each of the above accidents worsened to the point where he sought medical treatment and was informed of the specific causes for his physical complaints. To interpret the requirements of § 603 any more strictly than we have would defeat the public policy objective for the Workers’ Compensation Act as set forth in § 39-71-105(1), MCA (1987). That section provides that:

It is an objective of the Montana workers’ compensation system to provide, without regard to fault, wage supplement and medical benefits to a worker suffering from a work-related injury or disease.

That objective cannot be accomplished if we construe § 603 so narrowly that it erects insurmountable barriers to collection of disability benefits, when they are unrelated to any legitimate public policy.

However, in this case, the factual dispute created by the testimony of the claimant and his employer was not resolved by the hearing examiner. We cannot determine from his findings and conclusions whether he accepted the claimant’s description of the notice given to his employer and simply concluded that it was legally inadequate, or whether he accepted the employer’s testimony that no notice was given of any physical consequences from the accidents that occurred. The hearing examiner concluded that under our decision in Lee, that vague complaints or ill health were not sufficiently specific to satisfy the requirements of § 603. However, the Lee decision has no bearing on the issue presented in this case. In that case, claimant was employed by his father who operated an outfitting business. He was injured at about 2 a.m. when thrown out of the back of a friend’s pickup while returning home from a bar. His father was aware of the accident and injuries, but unaware of the son’s claim that he was working on his father’s behalf at the time of the injury. The issue in that case was whether § 603 required notice that an accident and injury are work related. That case had nothing to do with how specific a claimant’s description of his injuries has to be in order to satisfy § 603.

For these reasons, the judgment of the Workers’ Compensation Court is reversed, and this case is remanded to the hearing examiner for the Department of Labor and Industry for the purpose of resolving the factual dispute created by the testimony of the claimant and his employer. After entering findings regarding the substance of claimant’s notice to his employer, or the extent of the employer’s actual knowledge regarding claimant’s accident and injury, judgment shall be entered which is consistent with the rule set forth in this opinion.

Reversed and remanded.

JUSTICES HARRISON, HUNT, GRAY and McDONOUGH concur.

JUSTICE WEBER

specially concurs as follows, joined by CHIEF JUSTICE TURNAGE:

I agree with the conclusion of the majority opinion that the hearing examiner failed to resolve the factual dispute regarding notice of the injury which resulted from the conflicting testimony of the claimant and employer. As a result, I agree that it is appropriate to remand in order to resolve that factual dispute. I therefore concur in the reversal and remand.

The majority opinion analyzes the claimant’s testimony and con-eludes that the information furnished by the claimant established that both incidents involving injury were sufficient to enable the employer to protect himself by prompt investigation of the accident. I point out there are no findings of fact by the Workers’ Compensation Court on this testimony. It is the absence of this factual determination by the lower court which has required the majority to reverse and remand. Under those circumstances, I conclude it is not appropriate to reach the factual conclusion upon which the majority opinion is founded.

Because there has been no factual determination, I conclude that it is inappropriate to reach the central conclusion of the majority opinion which is stated as follows:

Based on these decisions, we conclude that the requirements of § 39-71-603, MCA (1987), are satisfied when an employee who is involved in a work-related accident reports that accident to his employer within 30 days from the date of its occurrence and apprises his employer, to the best of his ability, whether he suffered any adverse physical consequences from that accident. An employee who has a reasonable belief at the time of an accident that he has suffered no injury which will require treatment or is otherwise compensable, is not barred from recovery under § 603 because he learns otherwise beyond the 30-day period.

Because the foregoing conclusion is not based upon facts presented to us, it is advisory in nature. It appears to expand our holdings from previous cases. I do not concur in that conclusion.

I also disagree with the conclusion that under Lee there is nothing which has any bearing on this case. It was in Lee that this Court adopted the following standard from Larson:

It is not enough, however, that the employer, through his representatives, be aware that claimant “feels sick”, or has a headache, or fell down, or walks with a limp, or has a pain in his back, or shoulder, or is in the hospital, or has a blister, or swollen thumb, or has suffered a heart attack. There must in addition be some knowledge of accompanying facts connecting the injury or illness with the employment, and indicating to a reasonably conscientious manager that the case might involve a potential compensation claim.

Because we do not yet have the factual determination from the trier of fact, I do not find it appropriate to state that the quotation from Lee is not applicable.


author: JUSTICE HARRISON JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. RICHARD HANNERS, Defendant and Respondent.
    No. 91-467.
    Submitted on briefs May 21, 1992.
    Rehearing Denied Nov. 16, 1992.
    Decided Sep. 8, 1992.
    49 St.Rep. 810.
    839 P.2d 1267.
    254 Mont. 524.
    For Appellant: Marc Racicot, Attorney General, George Schunk, Assistant Attorney General, Helena; and George Com, Ravalli County Attorney, Hamilton.
    For Respondent: Mark Connell, Connell, Beers and Alterowitz, Missoula.
    For Amicus Curiae: James B. Obie, Department of Corrections and Human Services, Helena.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Fourth Judicial District, State of Montana, in and for the County of Ravalli. The State of Montana appeals the District Court’s June 28, 1991 order and subsequent Amended Judgment of July 10,1991. We reverse.

Two issues are presented for our consideration:

1. Whether the District Court had jurisdiction to amend a sentence and judgment after it had been pronounced in court, reduced to writing and filed with the clerk of court.

2. Whether the practice of parole and probation officers contacting a sentencing court ex parte and post-judgment for the purposes of obtaining approval to resentence a defendant violates statutory provisions mandating participation by the prosecution in a sentencing hearing conducted in open court.

On December 12, 1990, an information was filed in the District Court, Ravalli County, charging Richard E. Hanners (Hanners) with the crime of criminal possession with intent to sell, a felony, in violation of § 45-9-103, MCA. Defendant Hanners pled not guilty to the charged offense at his arraignment on January 16, 1991. However, Hanners moved the court to withdraw his not guilty plea on April 17, 1991, and he subsequently pled guilty to the offense of criminal possession of marijuana with intent to sell.

After a presentence investigation report was prepared, a sentencing hearing was held on May 15, 1991, and Hanners was sentenced to twenty years’ imprisonment in the Montana State Prison with ten years suspended. The court also imposed a fine of $25,000. A written judgment reflecting the conviction and sentence was filed by the District Court on May 31, 1991.

In early June 1991, Department personnel from the Intensive Supervision Program (the ISP) met with the District Court Judge and presented their recommendation that the court amend its judgment and suspend Hanners’ entire sentence on the condition that he enter and successfully complete the ISP. The ISP is a program designed as an alternative to prison incarceration operated by the Department of Institutions which has been in effect in several Montana counties for over two years. This recommendation by Department personnel (the Department) was done over the objection of the parole and probation officer of Ravalli County who made an intensive investigation of Hanners’ marijuana growing operation prior to sentencing. Following this meeting, the Department contacted the Ravalli County Attorney and requested that he prepare, for the District Court Judge’s signature, an amended judgment reflecting the suspension of Hanners’ sentence pending participation in the ISR At the time of the June 19, 1991, hearing on the amended judgment the County Attorney filed a motion requesting that the court reject the Department’s recommendation of suspending Hanners’ original sentence.

It is the position of the appellant, State, argued by the County Attorney, that once the District Court signed its May 15, 1991 sentence, it was without jurisdiction to amend it. It has been well established in Montana once a valid judgment and sentence have been signed, the court imposing that sentence had no jurisdiction to vacate or modify it except as provided by statute. Rivera v. Eschler (1989), 235 Mont. 350, 767 P.2d 336; Petition of Arledge (1988), 232 Mont. 450, 756 P.2d 1169; Dahlman v. District Court, Seventeenth Judicial District (1985), 215 Mont. 470, 698 P.2d 423. As of the time of the modification of the judgment by the District Court Judge, the only statutory provision that such modification could be done was under the post-conviction relief statute, § 46-21-101, MCA. In addition, under a recently enacted provision applicable to sentencing effective after October 1,1991, an offender could petition a sentencing court for an order directing that his or her sentence of imprisonment be served under the conditions of home arrest. As was argued by the County Attorney to the District Court Judge, this provision is distinct from the ISP. At the date of this amended sentence, there was neither a statutory nor an administrative rule providing for the modification of a sentence following the recommendation by the Department for the ISP.

While § 45-9-202(2)(d), MCA (1991), now effective, does allow the sentencing authority to designate at the time of sentencing the ISP program with provisions, such authority did not grant the District Court jurisdiction to modify a previously rendered sentence.

We hold that the District Court’s actions in ordering the amended judgment prepared and subsequent signing and filing of that amended judgment was an improper exercise of the District Court’s jurisdiction. The amended judgment is therefore null and void and should be declared stricken from the record and the matter returned to the District Court to enter a proper sentence under the existing law.

While the second issue of whether the practice of parole and probation officers contacting a sentencing court ex parte and post-judgment for the purposes of obtaining approval to resentence a defendant violates statutory provisions mandating participation by the prosecution in a sentencing hearing conducted in open court is before us, we find that having determined that the District Court lacked jurisdiction to modify the sentence, this second issue will not be considered.

The District Court is reversed and this cause is remanded with instructions consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY and McDonough concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

The majority states the rule of law correctly as far as it goes. A sentencing court has no jurisdiction to vacate or modify a sentence, except as provided by statute. What the majority fails to point out is that under the circumstances presented in this case there was specific statutory authority for the District Court’s modification of the defendant’s sentence.

Section 46-18-203, MCA (1989) (the form of that statute that was in effect at the time that this sentence was modified), provided in relevant part as follows:

(1) Ajudge ... who has suspended the execution of a sentence ... of imprisonment under 46-18-201 ... may also, in his discretion, order the prisoner placed under the jurisdiction of the department of institutions as provided by law or retain such jurisdiction with his court.

In this case, the District Court suspended part of the sentence which was imposed by written judgment on May 31,1991. Therefore, pursuant to § 46-18-203, MCA, the District Judge retained jurisdiction to, in his discretion, place the defendant under the jurisdiction of the Department of Institutions. That is exactly what he did.

The defendant did not initiate his enrollment in the intensive supervision program. He was contacted by representatives from the Corrections Division of the Montana Department of Institutions who suggested the intensive supervision program as an alternative to incarceration at the State Prison. That program, which is intended to eliminate overcrowding at the prison while still punishing and supervising those who are convicted of crimes, provides for an eight or nine month incarceration in the defendant’s home with intensive supervision by probation and parole officers. The supervision includes electronic monitoring, unscheduled visits and searches, urinalysis, participation in employment counseling, and community service. At the end of the eight months of house incarceration, the defendant is placed on regular probation during the duration of his sentence.

The defendant agreed to be considered for the program and the screening committee unanimously agreed to recommend him for placement in the program. A member of the committee advised the District Judge of this option. The prosecuting attorney was advised of the District Court’s inclination to agree with this option. The prosecuting attorney objected and a hearing was held before the sentence was modified.

After the sentence was modified, defendant complied with the terms of the intensive supervision program. At all times during his compliance he was under the supervision, and therefore, jurisdiction of the Department of Institutions, as provided for in § 46-18-203, MCA (1989).

Now that he has fully complied with the terms of the sentence that was requested by one state agency (Department of Institutions), he is being required to serve a second sentence because of the objection of a second state agency (County Attorney’s Office). Because of the alternative sentence which was requested by the Department of Institutions for the State of Montana, the defendant served eight months of house arrest and was denied the opportunity to have his prison sentence behind him by now.

Even if I did not conclude that the District Court had jurisdiction to modify the defendant’s sentence pursuant to the aforementioned statute, I would conclude that one agency of the state is estopped from imposing a second sentence on the defendant after a different agency of the state had induced him to serve his sentence in a different manner. Estoppel arises when a party by his or its acts causes another in good faith to change his position to his detriment. Powers Mfg. Co. v. Leon Jacobs Enterprises (1985), 216 Mont. 407, 701 P.2d 1377. That is certainly what happened to the defendant in this case.

Through no fault of his own, and based upon the majority’s willingness to overlook the statutory basis for the District Court’s continuing jurisdiction to do what it did in this case, incredibly, this defendant is being required to serve two sentences for the same crime.

The majority opinion is, to say the least, a strange and unfair result.

For these reasons, I dissent.


author: JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. LEROY P. FLESCH, Defendant and Appellant.
    No. 91-507.
    Submitted on briefs July 30, 1992.
    Rehearing Denied Oct. 15, 1992.
    Decided Sep. 14, 1992.
    49 St.Rep. 813.
    839 P.2d 1270.
    254 Mont. 529.

      For Defendant and Appellant: Gregory A. Jackson, Jackson & Rice, and Wendy Holton, Helena.
    For Plaintiff and Respondent: Mike McGrath, Special Assistant Attorney General, Helena; and Merle Raph, Toole County Attorney, Shelby.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Ninth Judicial District of the State of Montana, in and for the County of Toole. The appellant, Leroy P. Flesch (Flesch) appeals his conviction by a Flathead County jury. The case was removed from Toole County for Flesch’s trial on the offenses of aggravated kidnapping and intimidation, both felonies under § 45-5-303(l)(c), MCA and § 45-5-203(l)(a), MCA, respectively. We affirm.

Two issues are presented for our consideration:

1. Did the pre-accusation delay in charging Flesch irreparably damage his right to present an alibi defense?

2. Was the jury given an improper, insufficient and misleading definition of “reasonable doubt?”

At approximately midnight on June 4, 1990, as attorney Richard Beatty (Beatty) was leaving his Shelby, Montana office through the rear door, he was attacked by an unidentified man in the carport behind his law office. The man grabbed Beatty, put his hand over Beatty’s mouth and eventually pushed him to the ground. About that time a pickup truck pulled up to the scene of the struggle. Beatty was forced inside the pickup, but not before the unidentified man struck him in the face several times with his fists. With Beatty on his knees on the floorboards and his head face down, pinned to the seat, the unidentified assailant entered the pickup through the passenger-side door. The driver then drove the pickup out of the carport and west into a rural area outside Shelby.

Beatty testified that approximately fifteen to twenty minutes after being forced into the pickup, the driver stopped the truck and “the thug [the unidentified assailant] grabbed me by the back of the collar, back of the neck, back of my jacket and tossed me out of the pickup on to the ground” where he was again violently assaulted.

After repeatedly assaulting Beatty, the “thug” stopped and told him to get back into the truck with the driver who had been sitting behind the wheel during the latest assault. Beatty testified that at this time the driver identified himself as the appellant, Leroy Flesch. Beatty, indeed, recognized the driver as Flesch, a former resident of Shelby and former client of his law firm.

After Beatty realized who the driver was, discussion began between Flesch and Beatty regarding what was happening and why. Beatty testified that it was during this discussion that Flesch made his demands known: Flesch wanted his legal files from Beatty’s law office and $20,000 in cash. Beatty testified that Flesch stated, “I know you didn’t work on the files, those other guys [in the firm] did it. I’m not through with them yet. Their day will come but you were a senior member of that firm and I’ve been going through hell for the last eight years and you’re going to pay for it... [and] it cost a lot of money to hire thugs ....” Flesch demanded that Beatty deliver the files and $20,000 for his time and trouble.

In addition to the demand for his files and the cash, Flesch told Beatty that prior to that evening’s events he had been watching him and learned his work routine. He said that he had not only hired the one thug but had two other persons watching Beatty’s home, so that if he called the sheriff or law authorities after he was released, Beatty’s wife would be in danger.

Beatty informed Flesch that he would not be able to raise $20,000; “Every time I told him that I couldn’t get him the money it would make him mad.” Thereafter, Beatty testified, Flesch “motioned with his hand, he said I think you need a little tuning up,... [whereupon] the thug reached in [the truck cab] and he grabbed me by the shirt front and pulled me around and whacked me in the face a couple more times.... ’’After a second threat to “tune him up,” Beatty finally agreed to get the files together, put them in a box along with the $20,000, and deliver them to Flesch in Helena, Montana.

Flesch told Beatty that if he did not deliver the files and money within one week, Flesch would “not ... have you stabbed or shot or anything like that, I’m not that cold hearted, but I will have these thugs come and break your arms and legs, and if you don’t get this done in a week, it’s going to be too bad for you and too bad for your family.”

After more than an hour of being held captive by Flesch and his thug, Beatty was dropped off at a cemetery south of Shelby. He then walked to his office to retrieve his car, drove home and awakened his wife at approximately 2:30 a.m. She was a witness as to his condition at the time he returned home. She testified his face was swollen, his shirt had been torn open and he was “upset and scared.”

Beatty reported the incident on June 6,1990 when he met with the county attorney and sheriff and deputy sheriffs and gave them the details of the assault and kidnapping. Thereafter, Toole County law enforcement authorities conducted an extensive investigation. Statements were taken and transcribed, and agents of the State Department of Justice and the Lewis and Clark County Sheriff’s Office were brought in to try to locate the truck in which Beatty had been taken when he was kidnapped. The authorities in Helena located the type of pickup truck that Beatty had described at Flesch’s residence in Helena.

Flesch ultimately was arrested on October 5, 1990. He filed a motion to dismiss for failure to charge within a reasonable time, attaching affidavits of his wife and Beverly Finstad, a Helena casino employee. At a hearing held on April 8, 1991, both Mrs. Flesch and Ms. Finstad were called as witnesses. At the hearing and later at the trial, both testified that they believed but could not be certain that Flesch was at the Gold Nugget Casino in Helena, Montana at the time of the incident. Flesch argues that due to the delayed arrest neither could positively testify about his activities that night. Had they known about the charges within a reasonable time after the incident, he argues, they would have been able to state with certainty whether he was in the casino at the time of the incident herein related. At trial neither Mrs. Flesch nor Ms. Finstad would positively state that Flesch was in Helena at the time of the assaults and kidnapping.

I

As to the first issue regarding the delay in filing the information against him and the denial of his motion to dismiss, Flesch relies on the Fifth Amendment right to due process of law and Article II, § 17 of the Montana Constitution. To prevail on such a motion he must show prejudice to the defense from the delay, a primary consideration in United States v. Marion (1971), 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468; United States v. MacDonald (1982), 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696; United States v. Lovasco (1977), 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752; State v. Burtchett (1974), 165 Mont. 280, 530 P.2d 471; and State v. Larson (1981), 191 Mont. 257, 623 P.2d 954.

As a final authority, Flesch relies heavily on a recent opinion of this Court, State v. Krinitt (Mont. 1991), 823 P.2d 848, 48 St.Rep. 1088. In applying Krinitt to the present case, however, Flesch admits that the prosecution was commenced within the applicable five-year statute of limitations, § 45-l-205(a), MCA. In Krinitt, this Court considered a pre-indictment delay of almost two years and found no basis to reverse the conviction. There we re-established the standard of review for a due process violation:

Thus, in considering a defendant’s claim that pre-indictment delay violated his due process rights, the court must first determine whether the defendant suffered actual, substantial prejudice
Upon a showing that the defendant suffered actual, substantial prejudice from the delay, the court must then weight the justification for the delay, as well as the absolute length of the delay, to determine if due process has been denied ....

Krinitt, 823 P.2d at 852, 48 St.Rep. at 1090 (citations omitted).

Here, Flesch presented an alibi defense. To support that defense he called his wife and Beverly Finstad. At the pre-trial hearing on April 8, 1991, Ms. Finstad testified that she might have remembered having seen Flesch in the casino on the night of the crime — June 4, 1990 — if charges had been brought within two weeks of that date. Under cross examination she stated that once two or three days had lapsed she could not swear under oath as to who was in the casino on any given day or given time. Further, she acknowledged that she could not remember who was in the casino six days prior to the hearing or whether Flesch was in the casino on April 2, only six days before the hearing.

Bonnie Flesch also testified at the pre-trial hearing that she was almost positive her husband was home the night of the alleged incident, but could not be certain. At trial, she testified that her husband was at home the night of the incident:

Q: You earlier stated, positively, you couldn’t say for sure whether Leroy Flesch was home that night, the night of June 4th and the early morning hours of June 5th, is that correct?
A: No, I didn’t say that. I said he was home. I don’t know exactly what time he got home but I know he was home that night because when I got up at quarter after 5:00, he was home.

This alibi defense went to the jury and it failed. Thus it was not a State action that created any prejudice to Flesch regarding these witnesses.

Flesch asserts incorrectly that a 120-day delay occurred. In fact, only 107 days elapsed between June 4, 1990, when the crime was committed and September 20,1990, when Flesch was charged. Flesch falsely proclaims that “no further investigation took place after June 28,1990.” We conclude from the record that this is not correct. At trial the jury heard taped telephone conversations between Flesch and the victim, Beatty, which took place July 9, 1990. Undersheriff Jay Lambert testified at trial that he conducted an investigation of the matter into late July. The Toole County Attorney gave Beatty a tape recorder anticipating that Flesch would contact Beatty again since the $20,000 was not paid. When it became apparent that Flesch was not going to contact Beatty again, the county attorney filed the charges.

There is a balancing test in this state regarding the filing of charges. In State v. Curtis (1990), 241 Mont. 288, 297, 787 P.2d 306, 312 (citations omitted), this Court stated:

Even if some prejudice had been proven in this case, that prejudice must outweigh the necessity of allowing a reasonable time to investigate the crime. In United States v. Lovasco, the United States Supreme Court recognized that reasonable investigative delay protects the interests of both the State and the defendant. From the potential defendant’s perspective, premature indictment would,

“increase the likelihood of unwarranted charges being filed, and would add to the time during which the defendants stand accused but untried. These costs are by no means insubstantial since ... a formal accusation may interfere with the defendant’s liberty, disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.”

We hold this case is well within the applicable statute of limitations in that only 107 days elapsed from the date of the crime itself to the filing of the charges. In Krinitt, this Court upheld a pre-indictment delay of almost two years, far longer than the delay in the instant case.

II

The second issue is whether the District Court properly instructed the jury on reasonable doubt. Flesch objected at trial to the instruction given by the trial court:

Proof beyond a reasonable doubt is proof of such a convincing character that a reasonable person would rely and act upon it in the most important of his or her own affairs. Beyond a reasonable doubt does not mean beyond any doubt or beyond a shadow of doubt.

In his objections to the instruction, Flesch relies on Cage v. Louisiana (1991), 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339, wherein the United States Supreme Court discussed the reasonable doubt instruction. Flesch alleges that in Cage the United States Supreme Court disapproved an instruction that was “strikingly” similar to the jury instruction given in this case. Reading Cage we find that the instruction there was considerably different from the instruction given in this case. The language in the Cage instruction is as follows:

If you entertain a reasonable doubt as to any fact or element necessary to constitute the defendant’s guilt, it is your duty to give him the benefit of that doubt and return a verdict of not guilty. Even where the evidence demonstrates a probability of guilty, if it does not establish such guilt beyond a reasonable doubt, you must acquit the accused. This doubt, however, must be a reasonable one; that is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty.

Cage, 498 U.S. at_, 111 S.Ct. at 329, 112 L.Ed.2d at 341. This is not “strikingly similar” to the instruction used in this case.

In State v. Lucero (1984), 214 Mont. 334, 343, 693 P.2d 511, 516, this Court specifically stated that more complicated instructions on reasonable doubt did not help clarify the State’s burden of proof, but rather had a tendency to confuse the jury. In Lucero, this Court approved the instruction given in the present case, which is patterned after Model Montana Criminal Instruction No. 1-004. See State v. Goodwin (Mont. 1991), 813 P.2d 953, 48 St.Rep. 539. We hold that the reasonable doubt instruction given in this case was proper.

Affirmed.

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


author: JUSTICE McDONOUGH

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. RODNEY WILLIAM HOOK, Defendant and Respondent.
    No. 92-059.
    Submitted on briefs July 2, 1992.
    Rehearing Denied Nov. 19, 1992.
    Decided Sept. 28, 1992.
    49 St.Rep. 841.
    255 Mont. 2.
    839 P.2d 1274.
    For Plaintiff and Appellant: Marc Racicot, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Helena; and George H. Corn, Ravalli County Attorney, Hamilton.

      For Defendant and Respondent: Michael G. Alterowitz, Connell, Beers & Alterowitz, Missoula.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal by the State of Montana of an order of the Fourth Judicial District Court, Ravalli County, granting the defendant’s motion to suppress evidence obtained in a search of his residence. We reverse.

The only issue on appeal is whether the District Court erred in granting defendant’s motion to suppress.

This case evolved from an anonymous telephone call received by the Ravalli County Sheriff’s Department, claiming that Rodney Hook was conducting a marijuana growing operation in a cabin which served as his residence. The caller provided the general location of the cabin, the address and a description of the exterior of the cabin. He also described the vehicle Mr. Hook drove. He stated that there were three bedrooms upstairs and the marijuana growing operation was in the first bedroom on the right on the second floor. He further explained that there were approximately forty plants ready to harvest which were grown under two 1000 watt grow lights. The phone call was terminated before the dispatcher could receive any more information.

The call was reported to the detective who conducted an investigation of some of the information. He checked the telephone book to confirm Mr. Hook’s name and address and then drove out to the residence to confirm the caller’s description of the house exterior. He also sought an investigative subpoena to obtain Mr. Hook’s electric power usage records because he knew from experience that marijuana growing operations typically consume large amounts of electric power. Finally, he checked the National Crime Information Computer system and learned that Mr. Hook had been previously charged with possession of a controlled substance.

When Detective Bailey received the investigative subpoena, it revealed that Mr. Hook’s use of electric power was 2V2 times greater than the previous tenant’s electrical use. Mr. Hook’s electricity use in the past five months had averaged 2,446 kwh per month although the previous tenant averaged 970 kwh per month. Montana Power Company employees told the detective that the average residential use was 740 kwh per month with an alternate heat source.

Detective Bailey also received a four-day power usage record from the power company. On June 6, Mr. Hook called the power company to inform it that he was making the cabin his permanent residence. As a cabin, a power usage reading was only made once every six months as compared to monthly for a residence. He also provided the power usage reading for that day. The power company went out to the cabin on June 10,1991 and calculated a four-day power usage of 710 kwh. If power usage continued at that rate, the monthly total would be approximately 5000 kwh.

Detective Bailey provided the above information and his history of investigating twelve prior marijuana growing operations in the application for a search warrant. The search warrant application was granted and on June 11,1991, Detective Bailey’s search of Mr. Hook’s residence revealed marijuana plants, marijuana growing equipment, dried marijuana and drug paraphernalia. Mr. Hook admitted the marijuana was his and was subsequently arrested and charged with a violation of § 45-9-103, MCA and of § 45-10-103, MCA.

Mr. Hook filed a motion to suppress evidence recovered in the June 11 search and his motion was granted on December 12, 1991. This appeal by the State of Montana followed.

The core issue is the sufficiency of the application of the search warrant. “To address the issue of probable cause for issuance of a warrant, this Court has adopted the ‘totality of the circumstances’ test set forth in Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. ...” State v. Crowder (1991), 248 Mont. 169, 173, 810 P.2d 299, 302. “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. O’Neill (1984), 208 Mont. 386, 394, 679 P.2d 760, 764. “[T]he duty of the reviewing court is to ensure the magistrate had a ‘substantial basis’ for... concluding] that probable cause existed.” Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. See Crowder, 810 P.2d at 302. “The magistrate’s determination of probable cause should be paid great deference by reviewing courts.” State v. Sundberg (1988), 235 Mont. 115, 123, 765 P.2d 736, 741. “Our function is not to review de novo the magistrate’s determination that probable cause existed justifying the issuance of a search warrant.” State v. Baldwin (1990), 242 Mont. 176, 183, 789 P.2d 1215, 1220.

The factual information provided above formed the basis for the magistrate’s conclusion that there was probable cause to issue the search warrant. Probable cause to issue a search warrant:

[I]s not a prima facie showing of criminal activity, but only its probability. Considerably less evidence is required for the issuance of an arrest or search warrant than for conviction; and legally unimpeachable findings of probable cause can rest upon evidence, for instance hearsay, which is not legally admissible at the criminal trial itself. [Citations omitted.]
Sundberg, 765 P.2d at 739.

We conclude there was probable cause to issue a search warrant for the Hook residence. The confidential informant provided detailed information about the defendant and the marijuana growing operation. “[B]ecause an informant is right about some things, he is more probably right about other things, ... including the claim regarding the ... illegal activity. ...” Gates, 462 U.S. at 244, 103 S.Ct. at 2335, 76 L.Ed.2d at 552.

The detective confirmed much of the informant’s information as well as obtaining the power usage bills for the defendant’s residence and the defendant’s arrest record. He stated the basis of his expertise in these types of investigations and recited in detail the power usage, the times of residence by the defendant, previous usage by former occupants, normal residential usage, and comparisons as to these facts both specifically and generally. “It is enough, for purposes of assessing probable cause, that ‘[c]orroboration through other sources of information reduced the chance of a reckless or prevaricating tale,’ thus providing ‘a substantial basis for crediting the hearsay.’” Gates, 462 U.S. at 244-45, 103 S.Ct. at 2335, 76 L.Ed.2d at 552. “[I]nformation in the form of an anonymous tip from an informant whose reliability is established by independent corroboration may serve to establish probable cause.” State v. Deskins (1990), 245 Mont. 158, 162, 799 P.2d 1070, 1073.

The defendant states that there are many legal reasons for his high power usage but he provides no reasons or rationale for the phenomenon. “Although high power consumption alone will not establish probable cause for a search, it may be a factor in determining whether the affidavit as a whole reaches that level.” State v. Carter / Grant (Or. App. 1990), 790 P.2d 1152, 1156. See also State v. Nuttall (Or. App. 1989), 776 P.2d 26, 29; State v. Sterling (Wash. App. 1986), 719 P.2d 1357, 1360; State v. Ledbetter (Idaho App. 1990), 794 P.2d 278, 281.

Detective Bailey also stated on his search warrant application that the defendant had a prior arrest record in California for possession of a controlled substance. The officer did no further investigation of this incident. However, this factor, though not probative of commission of a crime, is one of the many factors to be considered under the totality of the circumstances test.

The defendant’s argument that the handwritten and typed notes of the dispatcher and the search warrant application are not exactly the same is without merit. None of the discrepancies are significant. The same basic information is contained in the forms and there is no evidence that the information was concocted by the dispatcher. These types of paperwork “are normally drafted by nonlawyers in the midst and haste of a criminal investigation.” Gates, 462 U.S. at 235, 103 S.Ct. at 2330, 76 L.Ed.2d at 546.

In conclusion, the defendant has not met his burden of overcoming the presumption that the magistrate properly issued the search warrant. The factors present in this case, viewed in their totality, provide a substantial basis for a magistrate to conclude that probable cause to issue a search warrant existed.

REVERSED.

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


author: JUSTICE GRAY

text:
    FIRST WESTERN FEDERAL SAVINGS BANK, Plaintiff and Respondent, v. JOHN A. LENCE, Defendant and Appellant.
    No. 92-187.
    Submitted on briefs Aug. 13, 1992.
    Decided Sept. 29, 1992.
    49 St.Rep. 857.
    255 Mont. 7.
    839 P.2d 1277.

      For Defendant and Appellant: John A. Lence, Kalispell.
    For Plaintiff and Respondent: Steven E. Cummings, Murphy, Robinson, Heckathom & Phillips, Kalispell.
   JUSTICE GRAY

delivered the Opinion of the Court.

John A. Lence appeals from the Judgment and Decree of Foreclosure entered following a grant of summary judgment in favor of First Western Federal Savings Bank by the Nineteenth Judicial District Court, Lincoln County. We affirm.

We address the following issues:

1. Did the District Court err in designating its Judgment and Decree of Foreclosure a final judgment?

2. Did the District Court err in concluding that a deficiency judgment is available following judicial foreclosure of a deed of trust securing a condominium not utilized as a primary residence?

3. Did the District Court err in refusing to delay a sheriffs sale and determination of fair market value of the property in question pending the outcome of separate litigation?

The basic facts of this case are notin dispute. On January 31,1984, appellant John A. Lence (Lence) signed and delivered to Montana Savings and Loan Association an adjustable rate promissory note (note). Payment of the obligation evidenced by the note was secured by a deed of trust signed by Lence, with Montana Savings and Loan Association as beneficiary. The deed of trust describes the property as “Unit No. 21 of Crystal Lakes Condominiums Club House Units” (the condominium). Respondent First Western Federal Savings Bank (First Western) is the successor in interest to Montana Savings and Loan Association and is the present owner and holder of the note and deed of trust.

Lence purchased the condominium as a secondary residence; his primary residence was in Whitefish, Montana. He lived at the condominium during the summers from 1977 until approximately 1985. Lence sold the property on February 1, 1986, and repossessed it on December 22,1989. Since the repossession, he has rented the property on an intermittent basis. The property is the subject of federal district court litigation by Lence and other Crystal Lakes property owners for the right to use facilities at Crystal Lakes Resort.

Lence defaulted on the note by failing to pay the monthly installments due on December 1, 1989, and on the first day of each month thereafter. The outstanding amount owed as of December 10, 1990, is $55,971.38, plus interest at a variable rate on the principal balance.

First Western brought suit against Lence to foreclose the note and deed of trust relating to the condominium and subsequently moved for summary judgment. The District Court found the undisputed facts to be essentially those stated above and granted summary judgment, concluding that First Western was entitled to judgment for the amounts owing and to have its deed of trust foreclosed judicially as provided by law. In addition, the court concluded that a deficiency judgment would be available to First Western in the event the sheriff’s sale did not net sufficient funds to satisfy the debt. The deficiency judgment would be the difference between the fair market value of the property at the time of sale and the amount of the debt; a hearing would be held for the purpose of determining the fair market value at that time. Lence appeals from the final judgment and decree of foreclosure entered March 3, 1992.

1. Did the District Court err in designating its Judgment and Decree of Foreclosure a final judgment?

The District Court entered its Judgment and Decree of Foreclosure on March 3, 1992; the Judgment included an order of sale at public auction and the right of First Western to a deficiency judgment if sale proceeds were insufficient. Lence argues that the Judgment and Decree of Foreclosure is not a final, appealable order.

In Federal Savings and Loan Ins. v. Hamilton (1989), 241 Mont. 367, 786 P.2d 1190, the mortgagors attempted a consolidated appeal from an amended order granting summary judgment, decree of foreclosure, and deficiency judgment to the mortgagee, and from a subsequent notice of entry of deficiency judgment in the amount of $99,306. In other words, they tried to appeal both the propriety and the amount of the deficiency judgment. We concluded that the amended summary judgment, decree of foreclosure and deficiency judgment was a final order -under Rule 1, M.R.App.P. Therefore, we held that the appeal of the propriety of the deficiency judgment entered with the summary judgment and decree of foreclosure was not timely.

As we noted in Hamilton, foreclosure cases can involve two final orders: first, the judgment/decree of foreclosure, which may contain the right to a deficiency judgment; and second, the actual entry of the deficiency judgment. Hamilton, 241 Mont. at 369. Here, the Judgment and Decree of Foreclosure is, indeed, a final judgment under Hamilton. The District Court did not err in so designating it.

2. Did the District Court err in concluding that a deficiency judgment is available following judicial foreclosure of a deed of trust securing a condominium not utilized as a primary residence?

We first addressed the availability of deficiency judgments after judicial foreclosure of trust deeds executed under Montana’s Small Tract Financing Act (Act) in First State Bank of Forsyth v. Chunkapura (1987), 226 Mont. 54, 734 P.2d 1203. We traced the history of the legislature’s adoption of the Act, considered decisions from other states with similar Acts on the question of the availability of deficiency judgments, and held that deficiency judgments are not allowed when trust indentures executed under the Act are foreclosed by judicial proceedings. Chunkapura, 226 Mont. at 56-58, 60-63. On rehearing, we carefully limited the opinion to the facts of that case, namely, that the trust deed before us “related to an occupied, single family residential property” and held that prospective deficiency judgments for like property would be invalid and of no effect. Chunkapura, 226 Mont. at 67.

We addressed the availability of deficiency judgments under the Act again in 1989, under somewhat different facts. In First Federal Savings & Loan v. Anderson (1989), 238 Mont. 296, 777 P.2d 1281, the lender also sought a deficiency judgment after judicial foreclosure of a trust deed under the Act. There, the Andersons had occupied the dwelling as a family residence for seven years, subsequently renting it for eighteen months while the property was for sale in order to continue making the payments to the lender. The lender argued that, because the Andersons no longer occupied the property themselves and, in fact, rented it to others, they were not entitled to the benefit of the Chunkapura holding. We disagreed, holding that the property fit the Chunkapura exception and that no deficiency judgment was available. Anderson, 238 Mont. at 301.

Again, in Wash.-Ida.-Mont. Retirement v. Galleria (1989), 239 Mont. 250, 780 P.2d 608, we addressed the availability of a deficiency judgment after judicial foreclosure of a trust indenture. In Galleria, however, the property at issue was commercial property. There, we noted that the Chunkapura limitation on the availability of deficiency judgments was limited to “trust deeds used as security for the financing of single dwelling, occupied homes (the type of financing for which the Small Tract Financing Act was argued to the legislature).” Galleria, 239 Mont. at 258. We held that the Chunkapura limitation on deficiency judgments did not apply to a trust indenture securing a purely commercial loan.

The facts before us in the present case are not qualitatively equivalent to those in Chunkapura ox Anderson. Here, the trust deed secured property utilized as a second residence during the summers; Lence concedes that his primary residence remained in Whitefish. He argues, however, that the property at issue is a single family residential property which, under Chunkapura, precludes the availability of a deficiency judgment. He further argues that the fact that he no longer occupies the property at all, but has rented it intermittently, brings him within the facts of Anderson. Lence’s hypertechnical attempt to make his factual situation indistinguishable from Chunkapura and Anderson misses the thrust of those decisions.

Lence’s condominium was never intended to be, or occupied as, his actual and primary residence. He purchased it as recreational or seasonal property and utilized it as such for several years. Under the laws of Montana, a person has one residence; the residence is “where one remains when not called elsewhere for labor or other special or temporary purpose....” Section 1-1-215, MCA. Lence cannot have two legal “residences” in Montana — a primary residence in Whitefish and one to which he is “called for special purpose” in Lincoln County — and claim the benefits of the laws of Montana with regard to both. That is the result he seeks in asking this Court to preclude the availability of a deficiency judgment to First Western.

In Chunkapura and Anderson, we defined the property to which the limitation on deficiency judgments applied based on the facts before us in those cases. Both involved residential properties purchased and utilized as the family’s primary residence. We conclude that the condominium at issue here, never intended or occupied as Lence’s primary residence, does not qualify for the limitation on deficiency judgments established in Chunkapura and Anderson. To accept Lence’s argument would pervert the limited nature of the Chunkapura exception; it would allow a person to avoid the possibility of deficiency judgment on virtually unlimited numbers of properties by merely ensuring that each property was a residential unit and without regard to whether the property was ever intended or used as a personal, primary residence. Indeed, under Lence’s interpretation of Anderson, it would not be necessary that the borrower ever occupy the properties, so long as they were occupied by someone. Such results were not contemplated or intended by Chunkapura and Anderson, and do not reflect the purpose for which the Small Tract Financing Act was adopted by the Montana legislature.

3. Did the District Court err in refusing to delay a sheriff’s sale and determination of fair market value of the property in question pending the outcome of separate litigation?

The District Court determined that if the proceeds of the ordered sheriff’s sale proved insufficient to pay the amounts owing to First Western and the expenses of the sale, a hearing would be held to determine the amount of the deficiency judgment, if any, to which First Western would be entitled. The purpose of the hearing would be to determine the fair market value of the property; the amount of any deficiency would then be based on the difference between the fair market value and the amount owing to First Western. While the District Court did not so state, the procedures it ordered were those set forth by this Court for determining fair market value in Galleria.

Lence contends that the District Court erred in refusing to delay the sheriff’s sale until the federal court litigation concerning the Crystal Lakes owners’ access to resort facilities is completed. He cites no authority in support of this contention. He simply asserts that “the fair market value of the property can not be ascertained in this situation” and quotes a portion of First Western’s appraisal report to the effect that the value is totally dependent on the future outcome of the federal lawsuit.

We do not disagree that the federal court litigation, if unresolved at the time of the sheriff’s sale, may have a significant impact on the sale and the fair market value determination made by the District Court. This lack of disagreement does not equate, however, to agreement that the fair market value of the property cannot be ascertained.

All property has a fair market value; such a value is influenced by numerous factors and is always dependent, to some degree, on the moment in time at which the value is established. Indeed, while the appraisal report offered on behalf of First Western indicates the significance of the pendency of the federal litigation, that report goes on to make a fair market value determination under then-current circumstances, including the pending litigation. Simply put, it is the appraiser’s job to make such valuations. We are confident that the District Court, aided by the evidence presented by the parties and, presumably, their respective appraisers, will be able to determine the fair market value of the condominium after the sheriff’s sale if the need arises.

Finally, we note that Lence has been in default on his obligations to First Western since December 1989. First Western cannot complete the judicial foreclosure and deficiency determination and collect the amounts to which it is entitled by law until such time as the present case reaches final resolution. There is no reason in law or in equity to further delay its ability to enforce its rights by awaiting the outcome of litigation in which it is not involved and over which it has no control. We hold that the District Court did not err in refusing to delay a sheriff’s sale and determination of fair market value of the property pending the outcome of separate litigation.

Affirmed.

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