author: JUSTICE TRIEWEILER

text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. LAWRENCE EDWARD OWENS, Defendant and Appellant.
    No. 91-259.
    Submitted on briefs Feb. 20, 1992.
    Decided Aug. 20, 1992.
    49 St.Rep. 744.
    836 P.2d 595.
    254 Mont. 224.
    For Defendant and Appellant: Billy B. Miller, Great Falls.
    For Plaintiff and Respondent: Marc Racicot, Attorney General, George Schunk, Assistant Attorney General, Helena; Patrick L. Paul, Cascade County Attorney, and Stephen Hagerman, Deputy County Attorney, Great Falls.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

Defendant appeals the sentences and judgment of the District Court of the Eighth Judicial District, Cascade County, sentencing him to 25 years in prison for theft and forgery. The basis for defendant’s appeal is the State’s alleged failure to honor a plea agreement.

Defendant was charged in two informations, alleging theft and forgery.The charges were brought separately and assigned to different judges. Defendant and the Cascade County Attorney's office entered into a plea agreement on February 2,1991, that encompassed both charges. The plea agreement states in pertinent part:

(1) Defendant agrees to plead guilty to the charge of THEFT, A FELONY and FORGERY, A FELONY.
(2) In return, the County Attorney will recommend a 15 year sentence for both charges and agrees to not designate the Defendant as a persistent offender.

Defendant entered a change of plea to the forgery charge on February 27, 1991. At that hearing, the District Judge asked about the recommendation the prosecution intended to give at sentencing. The court asked if the defendant’s understanding was that the State’s recommendation would be for a total of 15 years for the two charges, the sentences running concurrently. Defendant replied that that was his understanding, and the State did not contest defendant’s conclusion. The court accepted defendant’s change of plea and set sentencing for March 28, 1991.

Defendant appeared for sentencing before Judge McKittrick on the scheduled date. The prosecution was asked for its recommendation. The State recommended the defendant be sentenced to 15 years imprisonment on the forgery charge, with five years suspended. The State noted that the defendant was to be sentenced on the theft charge by Judge Roth immediately following Judge McKittrick’s sentence on the forgery charge. The prosecution stated that if its recommendation on the forgery charge was followed, that it would recommend a ten-year sentence with five years suspended on the theft charge to run consecutively with the forgery charge. Thereafter, the court sentenced the defendant to 15 years imprisonment with five years suspended.

Immediately following sentencing on the forgery charge, the defendant appeared before Judge Roth for sentencing on the theft charge. The court asked for a recommendation from the State. The State recommended that the defendant receive a ten-year sentence with five years suspended, to be served consecutively to the previous sentence. The prosecutor stated that the net effect of the sentence would be a 15-year sentence.

The court then asked the defendant if he wished to make a statement regarding the sentence. The following discussion took place:

THE DEFENDANT: I have one thing to say, your Honor. I signed a Plea Agreement in as much as I would get 15 years in both courts, this Court would sentence me to 15 and that Court with 15 with the understanding they would both run concurrently. My understanding was not that if one court didn’t give me 15 years, that the other Court should give me 15 years consecutively. Do you follow what I’m saying? I signed the Plea Agreement for concurrent sentence, and I would ask the Court that any sentence I get would run concurrent with the sentence that I just received across the hall, instead of consecutive. My understanding of the Plea Agreement is that I receive concurrent sentences, not consecutive sentences.
THE COURT: Do you have the Plea Agreement in front of you, Steve?
PROSECUTOR: Yeah, I do, your Honor.
THE COURT: Could you read the provision he is talking about? PROSECUTOR: It’s not what he is saying. First, “Defendant agrees to plead guilty to the charge of theft, a felony, and forgery, a felony.” Of course, those were in two different courts. Two, “In return, County Attorney would recommend 15-year sentence with both charges and agrees not to designate Defendant as persistent offender.”
THE DEFENDANT: Your Honor, the way that’s worded and it was asked across the hall when I changed my plea, Judge McKittrick asked if they were to rim concurrently. They did say yes. Lady from the County Attorney’s Office said any sentence I would be given in either court would run concurrent, not consecutive.

Following further discussion, the District Court sentenced the defendant to ten years in the Montana State Prison, with five years suspended. The sentence was ordered to run consecutively with the prior sentence, so that defendant received a combined 25 year sentence, with ten years suspended. From the sentences, defendant appeals.

The defendant contends that the State violated the terms of the plea agreement, and deprived him of his due process rights. Specifically, defendant contends that the plea agreement reached between the parties was that the defendant would receive no more than a 15-year sentence on both counts. Instead, defendant received a 25-year sentence, with ten years suspended. Defendant asserts that he stated his understanding of the plea agreement in court at his change of plea hearing. At that time, defendant stated that the agreement was that the sentences were to run concurrently, and the State did not dispute defendant’s contention. However, in the sentencing hearings on the theft charge, the State recommended a consecutive sentence to the sentence for forgery, which the court followed over the defendant’s objection.

It is clear from the discussion that occurred in Judge McKittrick’s court that defendant believed the agreement contemplated concurrent sentencing, and that the State did not disagree. The court asked the defendant what he understood the State’s recommendation to be, and the following dialogue took place:

THE DEFENDANT: Fifteen years for both counts.
THE COURT: And that’s concurrent or consecutive?
MR. MILLER: Your Honor, as you noticed, we have two cases here. One case is in Judge McCarvel’s court — Judge Roth’s court and one case is in your court.... And basically, he has entered a plea in that area, and the 15 years is for both charges, pursuant to the plea agreement.
THE COURT: Concurrent?
MR. MILLER: Well, yes, basically because the 15 years is going to be for both charges, not 15 years per charge to rim concurrent, they’re going to recommend a flat 15 years for both counts then.
THE COURT: Well, there has got to be a specific sentence on each case.
MR. MILLER: Yes.
THE COURT: I assume it’s 15 years concurrent.
MR. MILLER: It would be basically concurrent, you’re right.
THE COURT: Is that your understanding?
MS. SCHULKE: Your Honor, this is Mr. McAllister’s case, and if Mr. Miller says ...
THE COURT: There is no language in here to clarify.
MS. SCHULKE: It’s not clear.
MR. MILLER: But that basically is the understanding, your Honor.
MS. SCHULKE: We’ll recommend a total of 15 years for the two charges.
THE COURT: Mr. Owens, is that your -understanding, it’s going to be a concurrent sentence?
THE DEFENDANT: Yes.
THE COURT: All right. Anything else, any other promises?
THE DEFENDANT: No.

It is clear from the foregoing discussion that the parties agreed to concurrent sentences for the two charges. The State tacitly agreed to the concurrent sentence; it cannot claim that its silence as to the sentence acts as anything but an agreement. The defendant premised his guilty plea on the agreement by the State that his sentences would run concurrently. In Santobello v. New York (1971), 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427, the Supreme Court held that:

[The plea-bargaining] phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.
On this record, petitioner “bargained” and negotiated for a particular plea in order to secure dismissal of more serious charges, but also on condition that no sentence recommendation would be made by the prosecutor. It is now conceded that the promise to abstain from a recommendation was made, and at this stage the prosecution is not in a good position to argue that its inadvertent breach of agreement is immaterial. The staff lawyers in a prosecutor’s office have the burden of “letting the left hand know what the right hand is doing” or has done. That the breach of agreement was inadvertent does not lessen its impact.

Santobello, 404 U.S. at 262.

In this case, the prosecutor at the change of plea hearing before Judge McKittrick agreed that the sentences were to be imposed concurrently. However, a different prosecutor recommended that they be served consecutively before Judge Roth. The defendant entered his plea of guilty after it was determined that the State would recommend concurrent sentences. Clearly, the prosecution’s initial agreement that the sentences would run concurrently was part of the inducement or consideration for the defendant’s decision to plead guilty.

The defendant “bargained” for concurrent sentences totalling 15 years. Instead, he received consecutive sentences totalling 25 years, with ten years suspended. The two sentences are not the same. Once the defendant has discharged his prison sentence, the latter sentence continues to impose upon him ten more years of the restraints on freedom that often accompany a suspended sentence. These include the defendant’s acquiescence to searches at all hours of his domicile and person, and restrictions on his travel and associations.

This Court stated in State v. Allen (1981), 197 Mont. 64, 69, 645 P.2d 380, 382:

Prosecutors who engage in plea bargaining must meet strict and meticulous standards of both promise and performance as a plea of guilty resting in any significant degree on an unfulfilled plea bargain is involuntary and subject to vacation. Correale v. United States (1st Cir. 1973) 479 F.2d 944. Prosecutorial violations, even if made inadvertently or in good faith to obtain a just and mutually desired end, are unacceptable. Correale v. United States, supra; Santobello v. New York [Citation omitted].
In this case both parties acknowledge the existence of a plea bargain of some kind. The problem is that there is an unresolved factual dispute concerning both the terms of the plea bargain agreement and whether the prosecutor violated the agreement.... Was the agreement orally amended by some further agreement between the prosecutor and defense counsel... ? What promise was made by the prosecutor and what did the defendant understand the promise to be when he entered a plea of guilty to the amended charge? Did any unfulfilled promises of the prosecutor induce the defendant to enter a guilty plea or only affect the sentence imposed? Did the prosecutor violate the plea bargain by his conduct at the sentencing hearing?
These unresolved factual issues rest upon the intent of the parties and must be resolved by the District Court in an evidentiary hearing for that purpose. United States v. Arnett (9th Cir. 1979), 628 F.2d 1162.

This Court further stated in State v. Dinndorf (1983), 202 Mont. 308, 311, 658 P.2d 372, 373 that:

Plea bargaining agreements are subject to contract law standards, United States v. Arnett (9th Cir. 1979), 628 F.2d 1162, thus oral agreements are valid and binding. This Court, in State v. Allen [Citation omitted], recognized the validity of oral plea bargain agreements; the case was remanded for consideration of various factors, including whether the agreement had been orally amended.

Accordingly, this case is hereby remanded to the District Court for resentencing consistent with this opinion.

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


source: Caselaw Access Project

license: Public Domain

text:
    IN RE THE MARRIAGE OF MONICA LYN NASH, Petitioner and Respondent, and STEVE ORVILL NASH, Respondent and Appellant.
    No. 91-610.
    Submitted on briefs May 7, 1992.
    Decided Aug. 20, 1992.
    49 St.Rep. 747.
    836 P.2d 598.
    254 Mont. 231.

      For Respondent and Appellant: Donna M. Trotter, Winkjer, Mc-Kennett, Stenehjem, Trotter & Reierson, Williston, North Dakota.
    For Petitioner and Respondent: Mary L. Zemyan, Wolf Point.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

On July 3, 1990, Monica Lyn Nash petitioned the Fifteenth Judicial District Court, Sheridan County, to dissolve her marriage to respondent Steve Orvill Nash. On November 20, 1991, the District Court dissolved the couple’s marriage, divided the marital estate between them, awarded sole custody of their only child to Monica, and awarded child support retroactive to the date of the parties’ separation in March 1990. From that judgment, Steve appeals. We affirm.

The issues are:

1. Did the District Court err when it awarded Monica sole custody and granted visitation to Steve?

2. Did the District Court err when it awarded child support based on the parties’ 1990 tax returns?

3. Did the District Court err when it awarded child support retroactive to the date of separation?

Steve and Monica Nash were married on September 3,1981. Their marriage was dissolved on November 20,1991. They have one child, bom September 7, 1988. At the time of the hearing on October 17, 1991, Momea was 33 years old, and Steve was 35. Steve is a high school graduate. Monica is not, but plans to get her GED and attend post-secondary classes. Monica lives in Redstone, Montana and works for the Nash family farming corporation. Steve left Redstone in March 1989 when the child was six months old to work in Aaska. Steve works in Cordova, Aaska as a fabricator, building and designing boats with aluminum and steel.

In its findings of fact and conclusions of law, the District Court rejected Steve’s request for split joint custody which would have given each parent physical custody for six months. Experts performing home studies found both parents fit, but disagreed over the effects of split physical custody on a preschool-aged child. The Court found that it was in the best interests of the child to grant sole custody to Monica. Steve was granted liberal visitation in Redstone, and week-long blocks at other times and locations.

The Court awarded Monica $482.27 per month as child support under the Child Support Guidelines, based on the parties’ 1990 tax returns. Monica received gross income in 1990 of $3400, while Steve earned $45,328.18 from his Aaska employment, and $24,165 from his farming interests. However, he claimed a capital loss of $35,276 when he sold his farm real estate and machinery. In calculating child support, the Court disregarded the parties’ farming income and loss since it was eliminated in 1990. Thus, the calculation was based on Steve’s 1990 Aaska income of $45,328.18, and Monica’s income of $3400.

The Court found that Steve failed to establish good cause to deviate from the Guidelines and to excuse him from providing health insurance coverage for his son. The Court ordered Steve to provide health insurance for the child despite the child’s eligibility for Indian Health Care, because that facility is a 90-mile-round-trip from Redstone, while alternative health care is only a 35-mile-round-trip.

The Court divided the parties’ real and personal property as agreed before trial. Steve received 4.32 acres of Aaska property, and Monica received 1.24 acres of Montana property.

Steve was also required to pay child support retroactive to the date of separation totalling $7716.32.

I.

Did the District Court err when it awarded custody and visitation?

The standard of review for custody and visitation is whether substantial credible evidence supports the court’s judgment. In re the Marriage of Cole (1986), 224 Mont. 207, 211, 729 P.2d 1276, 1279.

Section 40-4-212, MCA, requires a court to determine custody in accordance with the best interests of the child. The court must consider all relevant factors, including those set forth in the statute.

(1) The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors, including but not limited to:

(a) the wishes of the child’s parent or parents as to his custody;
(b) the wishes of the child as to his custodian;
(c) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest;
(d) the child’s adjustment to his home, school, and community;
(e) the mental and physical health of all individuals involved;
(f) physical abuse or threat of physical abuse by one parent against the other parent or the child; and
(g) chemical dependency, as defined in 53-24-103, or chemical abuse on the part of either parent.

The District Court properly considered all relevant factors when it awarded sole custody to Monica. The Court found that it was in the best interests of the child to grant sole custody to Monica based on findings that she is the child’s psychological parent and has provided for the child’s physical needs, environmental stimuli, emotional needs, and moral development, as well as interaction with Steve’s family and home community. The record confirms that the District Court heard sufficient testimony on each of the factors to support its finding. Experts performing home studies found both parents fit, but disagreed over the effects of split physical custody on a pre-school child. It is within the court’s discretion to believe one expert over another. The District Court did not abuse its discretion when it awarded sole custody to Monica.

Section 40-4-217, MCA, provides that the parent not granted custody is entitled to reasonable visitation rights. Here, the court granted Steve visitation as summarized:

(1) Liberal visitation when he is in Redstone so long as school is not interrupted;

(2) Week-long blocks every three or four months at the father’s home or other appropriate location, provided the child is accompanied by an adult family member when traveling;

(3) Fourteen day visitation blocks when the child is in elementary school under the above conditions; and

(4) Increased visitation which he and the child will jointly decide after the child enters junior high.

We hold that the custody and visitation award is supported by substantial credible evidence and the court did not abuse its discretion. Therefore, we affirm on this issue.

II.

Did the District Court err when it awarded child support based on the parties’ 1990 tax returns?

Abuse of discretion is the standard for reviewing child support awards.In re Marriage of Saylor (1988), 232 Mont. 294, 756 P.2d 1149. Section 40-4-204, MCA, sets forth the factors a court must consider in setting support orders and guidelines for determining support obligations and states in pertinent part:

(3) (a) Whenever a court issues or modifies an order concerning child support, the court shall determine the child support obligation by applying the standards in this section and the uniform child support guidelines adopted by the department of social and rehabilitation services pursuant to 40-5-209, unless the court finds by clear and convincing evidence that the application of the standards and guidelines is unjust to the child or to any of the parties or is inappropriate in that particular case. [Emphasis added.]

Steve cites Fronk v. Wilson (1991), 250 Mont. 291, 819 P.2d 1275, for the proposition that the Court abused its discretion by not considering the 70 percent higher cost of living in Alaska when calculating child support under the Guidelines. However, in Fronk the American Chamber of Commerce Researchers Association Cost of Living Index was introduced into evidence and the Court relied on it when it arrived at a cost of living adjustment for Alaska equal to 26 percent. Also, in Fronk the respondent gave several examples of how he was personally affected by the high cost of living in Alaska. Fronk, 819 P.2d at 1278-79. Here, Steve introduced no statistical data to support his claim that the cost of living adjustment in Alaska is 70 percent higher than in Montana. Nor did he cite specific examples of increased costs, other than transportation. The District Court was free to disregard his unsubstantiated estimate.

Steve also contends that the child support award does not reserve the financial resources sufficient to meet his needs pursuant to § 40-4-204(2)(e), MCA. For support, he cites In re Marriage of Johnson (1987), 225 Mont. 404, 732 P.2d 1345. However, in Johnson we held that the court’s inclusion of two-thirds of the mortgage payments in the computation of the children’s monthly expenses, in addition to requiring the husband to pay the mortgage, left him without sufficient resources to meet his own needs. We do not find appellant’s situation comparable.

After reviewing the entire record, we find that the District Court’s calculation under the Guidelines of $482.27 per month child support based on the parties’ 1990 tax return is reasonable and supported by substantial credible evidence. We hold that the District Court did not abuse its discretion in calculating child support based on the 1990 returns.

III.

Did the District Court err when it awarded child support retroactive to the date of separation?

In determining child support retroactivity, we will not disturb the award made by the District Court unless a clear abuse of discretion resulting in substantial prejudice is shown. In re Marriage of DiPasquale (1986), 220 Mont. 497, 499, 716 P.2d 223, 224.

Steve contends that the award of retroactive child support is prejudicial because the Court did not consider: (1) the high cost of living in Alaska; (2) his inability to meet his financial needs; (3) the disparity in the property settlement; and (4) that he must also pay health insurance, visitation costs, and child support.

After reviewing the entire record, we find that substantial evidence supports the District Court’s award of retroactive child support.

Affirmed.

JUSTICES HARRISON, HUNT, McDONOUGH and WEBER concur.


text:
    DOUGLAS R. LAPP, Claimant and Respondent, v. W.R. GRACE/BOMAC DRILLING, Employer and Respondent, and TRANSPORTATION INSURANCE COMPANY, Defendant and Appellant.
    No. 92-010.
    Submitted on briefs Apr. 2, 1992.
    Decided Aug. 20, 1992.
    49 St.Rep. 750.
    836 P.2d 602.
    254 Mont. 237.
    For Appellant: Thomas R. Bostock, Warden, Christiansen, Johnson & Berg, Kalispell
    For Respondent: Marvin L. Howe, Simonton, Howe & Schneider, Glendive.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

Defendant Transportation Insurance Company appeals from the judgment of the Workers’ Compensation Court which determined that claimant’s 1990 medical treatment and surgery was causally related to his 1979 industrial injury, and held defendant liable for medical costs and expenses. We affirm the Workers’ Compensation Court.

The sole issue raised by the insurer on appeal is whether the Workers’ Compensation Court erred in its determination that claimant’s medical treatment and surgery in 1990 was not a new injury and was causally related to his injury of 1979.

On October 4, 1979, Douglas R. Lapp was injured when he was struck from behind by a cable while working as a floor hand on a drilling rig. The cable struck the claimant’s upper back, shoulder, and neck. He was taken to the hospital in Miles City, where a contusion and whip injury across his back were diagnosed. Claimant was again examined in Billings on November 6,1979. He complained of shoulder pain, neck pain, headache, and some lateral discomfort down his arm with occasional numbness. The treating physician diagnosed the shoulder problem as post-traumatic suprascapular nerve entrapment.

Claimant was examined by an orthopedic surgeon on December 12, 1979, who concluded that he had carpal tunnel syndrome of the left hand. Claimant underwent surgery on December 14,1979, which relieved all symptoms of numbness in the hand. However, during follow-up visits in January and February, 1980, he complained of pain in his shoulder, and was treated with anti-inflammatory medication. Claimant was released to work without limitation on May 15,1980.

Claimant was examined again on January 2, 1981, after complaints of severe pain in his back and neck with radiation into his left arm and leg. Cervical and lumbar myelograms were performed, but the results were inconclusive. No physical cause for claimant’s symptoms was discovered during further exams in March and May 1981.

In May 1981, claimant was requested by defendant to submit to a medical panel evaluation. The panel found no abnormalities in the x-ray films of claimant’s cervical spine. The panel concluded that claimant was capable of working and that he had zero permanent partial impairment as a result of his 1979 injury.

On October 21, 1985, claimant received two treatments from a Billings chiropractor for a flare-up of neck and back pain. He next sought medical treatment in May 1987 in response to acute left arm numbness and pain radiating into his left leg. X-ray films did not detect any abnormality of the cervical spine.

On October 26, 1988, the claimant was taken by ambulance to the Glendive Community Hospital after having collapsed. Claimant complained of headaches in the month proceeding his collapse. Hypoglycemia, with subsequent anxiety reaction, were blamed for his problems, and he was released the following day.

On April 18,1990, claimant was seen at the Billings Clinic for neck pain, which continued down his entire left arm. He described his injury of October 4,1979, and stated that it had caused him pain and discomfort since that time. X-ray films taken of his cervical spine indicated the existence of bone spurring at the C5-6 level. His diagnosis was cervical radiculitis. He was admitted to the St. Vincent’s Hospital in Billings on April 22, 1990, and a magnetic resonance imaging examination (MRI) was performed, which demonstrated a posterior disc protrusion at the C5-6 level. On April 25, 1990, claimant underwent an anterior disc excision and fusion.

Claimant sought compensation from defendant, maintaining that his 1990 medical condition was causally related to his 1979 industrial accident. Defendant, by letter dated July 18, 1990, denied responsibility for both disability payments and medical expenses.

The parties thereafter submitted the issue of entitlement to medical benefits to the Workers’ Compensation Court on briefs, deferring the issue of disability benefits. The Workers’ Compensation Court adopted the findings of the hearing examiner, finding the defendant hable for claimant’s medical benefits. From this ruling, the defendant appeals.

At the time of the 1979 accident, the applicable statute in effect, § 39-71-704, MCA (1979), provided:

Payment of medical, hospital, and related services. In addition to the compensation provided by this chapter and as an additional benefit separate and apart from compensation, the following shall be furnished:
(1) After the happening of the injury, the employer or insurer shall furnish, without limitation as to length of time or dollar amount, reasonable services by a physician or surgeon, reasonable hospital services and medicines when needed, and such other treatment as may be approved by the division for the injuries sustained.

Defendant maintains that claimant attained maximum medical healing in 1981, that various work-related activities between 1981 and 1990 aggravated his preexisting condition, and that this aggravation constituted a new injury. Claimant worked a number of jobs during that time, many of which involved medium-duty lifting.

Post-operative notes demonstrate that claimant experienced problems with his neck since his 1979 oil field injury. Dr. Johnson, the orthopedic surgeon who had treated claimant in 1979 and 1980, testified during his deposition that it was more probable than not that the bulging disc identified in the 1990 MRI exam had been caused by the 1979 injury. This testimony was based upon his treatment of the claimant and available medical records. Furthermore, Dr. Johnson testified that the radiological procedures claimant underwent earlier were inadequate to detect claimant’s injury, and thus went undetected until the MRI became available.

There was no evidence that claimant ever alleged a back or neck injury or filed an additional claim between 1981 and 1990. This Court stated in EBI/Orion Group v. State Fund (1991), 249 Mont. 449, 452-53, 816 P.2d 1070, 1072:

Simply stated the Belton rule holds that once a claimant has reached maximum healing or a medically stable condition, the insurer at risk is no longer responsible for any subsequent injuries or conditions. See Belton v. Carlson Transport (1983), 202 Mont. 384, 389, 658 P.2d 405, 408. As this rule clearly states, in order for EBI to sustain a claim of indemnification against the State Fund it must establish two elements. First, it must show that Mr. Athey had attained a condition of maximum healing. Second, it must establish that he sustained an injury after he reached maximum healing.

Defendant has offered no evidence that claimant suffered any job-related injury after reaching maximum healing. The evidence presented is that claimant continued to suffer neck pain after his industrial accident in 1979. The fact that a claimant has reached maximum medical healing does not relieve an insurer from future liability for medical and compensatory benefits where there is no new, intervening cause.

The preponderance of the evidence supports the lower court’s judgment. Accordingly, that judgment is affirmed.

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


author: JUSTICE McDONOUGH

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. LARRY MOORE, Defendant and Respondent.
    No. 92-091.
    Submitted on briefs Aug. 6, 1992.
    Decided Aug. 20, 1992.
    49 St.Rep. 752.
    836 P.2d 604.
    254 Mont. 241.

      For Plaintiff and Appellant: Marc Racicot, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Helena; Mike Salvagni, Gallatin County Attorney, Bozeman; Mark Murphy, Special Deputy Gallatin County Attorney, Helena; Robert Brown, Assistant Attorney General, Bozeman.
    For Defendant and Respondent: Larry Jent, Williams, Jent & Dockins; James H. Goetz and Brian Gallik, Goetz, Madden & Dunn, Bozeman.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal by the State of Montana from an order granting a motion in limine in the Eighteenth Judicial District, Gallatin County. We reverse.

The issues for review are:

1. Whether the District Court abused its discretion when it suppressed evidence relating to the actions of the defendant after the alleged shooting of Bradford Brisbin.

2. Whether the District Court abused its discretion when it suppressed evidence of all testimony from the defendant’s wife.

3. Whether the District Court abused its discretion when it suppressed evidence of the witness Hoffman.

On December 17,1990, defendant Larry Moore was charged by an information with Count I, deliberate homicide in the death of Bradford Brisbin (Brisbin), in violation of § 45-5-102(l)(a), MCA. Defendant was also charged in Counts II and III of the information with tampering with or fabricating physical evidence, in violation of §§ 45-7-206(l)(a), and 45-7-207(l)(b), MCA, respectively. On September 30, 1991, pursuant to a motion by the defendant, the District Court, on the grounds of prejudice, granted the defendant’s motion to severe Counts II and III, tampering with or fabricating physical evidence, from the deliberate homicide charge. This order was not appealed.

In our subsequent discussion relative to the offers of proof and rulings of the District Court, we only consider the principle of evidence and whether the offered evidence generally comes within such principle. We do not, and we cannot, make a definitive decision as to the admissibility of particular pieces of evidence. At this stage we have no way of ascertaining if compliance with other rules of evidence, such as having a proper foundation, relevancy, opinion, hearsay, authenticism, etc., has been met. Only some of the facts pertaining to each issue will be more fully developed as each issue is discussed. The State’s appeal is timely.

I

Whether the District Court abused its discretion when it suppressed evidence relating to the actions of the defendant after the shooting of Brisbin.

On the morning of November 9,1990, Brisbin received a telephone call from the defendant. Defendant told Brisbin he had sold his pickup and camper and needed a ride back to West Yellowstone from Belgrade. Brisbin then drove his pickup to Bairs Truck Stop in Belgrade and met the defendant. From there on the stories vary, one version being that Brisbin left the truck stop restaurant to go to the restroom, did not return, and disappeared. Neither he nor his body have yet been found. The State’s case is based on circumstantial evidence.

The State proposed that certain evidence be admitted at trial which is evidence of defendant’s consciousness of guilt and is part of the res gestae or corpus delicti of the crime charged. In the offer of proof, supported by affidavits, the State offered the following: Officer Brown saw the defendant in his camper on the evening of Brisbin’s disappearance. When Moore saw Officer Brown, he turned out the lights in the camper in an attempt not to be seen. A couple days later Officers Brown and Pronovost approached Moore who was working on the camper which was then attached to his pickup and parked in front of the West Gate Enterprise Machine Shop, a business owned by the defendant. Moore was using a tar like substance, which he told the officers he was using to patch water leaks in the camper. The above evidence was excluded.

Other proffered evidence was that Moore purchased the camper from Dave Barstead in the spring or summer of 1990 and Barstead claims that the floor of the camper was covered by brown carpet at the time of sale. Moore’s employee, Norman Hanna, who installed the camper on Moore’s pickup, claimed that there was a brown carpet covering the camper floor during its installation. There was no brown carpet in the camper after the alleged crime. The court excluded this evidence. Later a 12-volt automobile battery was found inside the camper. The caps to the battery had been removed and battery acid spilled on the floor. This evidence was excluded.

Other excluded evidence is that when Officer Pearson, looking for the camper, found it next to the Jack residence in southern Madison County, the camper had been taken off the truck. Officer Pearson also noticed fresh footprints leading to the camper.

Further, Officer Christie also found three bullet holes inside Moore’s camper that had been covered with tar. A piece of paneling had also been cut out of the camper and replaced with other paneling which did not match the original paneling. This evidence was excluded. Officer Christie also found a bullet under the floor of the camper. Areddish substance was on the bullet, which the State Crime Laboratory determined was blood.

Samples of the camper floor containing the reddish liquid were analyzed by the State Crime Lab and were found to be consistent with sulfuric acid, the acid contained in car batteries. This evidence was excluded, as was other similar evidence.

In essence the evidence offered was in support of the State’s position that defendant cleaned blood from the camper, discarded bullets and carpet, covered and repaired bullet holes, spilled battery acid and inferring therefrom that the battery acid was used to cover or clean some material. The defendant argues that the admission of this evidence which also tends to prove elements of the crime of tampering or fabrication, amounts to the admission of evidence of another crime. Applying subdivision (4) of the Just Rule, it would be prejudicial to admit this evidence relative to the proof of the crime of deliberate homicide. See State v. Just (1979), 184 Mont. 262, 602 P.2d 957.

The District Court opined that the ruling of prejudice as the reason for separating the charges on September 30, 1991, had the effect of also rendering this evidence inadmissible on the charge of deliberate homicide because of its potential of prejudice. The State’s position is, however, that the evidence is admissible under Montana law as evidence of Moore’s consciousness of guilt and as part of the res gestae or corpus delicti of the crime charged.

It should be first noted that the admissibility test and the procedural requirements of State v. Just (1979), 184 Mont. 262, 602 P.2d 957, do not apply to evidence establishing consciousness of guilt regarding the crime with which the defendant is charged. See State v. Baker (1989), 237 Mont. 140, 773 P.2d 1194; State v. Shaw (1982), 199 Mont. 248, 648 P.2d 287; State v. Trombley (1980), 190 Mont. 218, 620 P.2d 367. We have said numerous times that testimony showing or tending to show flight or concealment by the defendant may be taken into consideration by a jury in determining whether the defendant is guilty of the offense charged. For example see State v. Paisley (1907), 36 Mont. 237, 92 P. 566. Flight or concealment may be considered by the jury as a circumstance tending to prove the consciousness of guilt. State v. Walker (1966), 148 Mont. 216, 419 P.2d 300.

In the case of State v. Armstrong (1980), 189 Mont. 407, 616 P.2d 341, we stated:

[E]vidence tended to show the destruction or suppression of evidence by Armstrong and tended to show his guilt and was therefore relevant and clearly admissible. If evidence tends to prove the commission of the crime charged it is not rendered inadmissible because it also tends to prove the commission of another crime. The test is whether the evidence is relevant as tending to prove any facts material to an issue in a cause before the court. State v. Cesar (1925), 72 Mont. 252, 255, 231 P. 1109.

The evidence is relevant because it tends to show consciousness of guilt and therefore tends to prove the commission of the crime charged and the defendant’s responsibility for it. Rule 404(b), M.R.Evid., as to other crimes, does not apply.

The alleged acts of the defendant occurring after the alleged crime was committed are also inseparably related to the alleged criminal act, as part of the res gestae or corpus delicti of the crime, and therefore are not subject to the restriction of “other crimes” evidence. The acts subsequent to the crime to be introduced here tend to prove the circumstance of the defendant’s intent and the element of “knowingly” and therefore are intertwined with the evidence of the proof of the crime itself. As stated by the case of Cruz v. State, 645 S.W.2d 498 (Tex.Ct.App. 1982), admissibility is predicated on the jury’s right to hear what transgressed immediately prior and subsequent to the commission of the offense charged, so that they may evaluate the evidence in the context in which the criminal act occurred. Acts of a defendant subsequent to the alleged commission of the crime, and intertwined therewith, are hig jrobative.

We therefore conclude that 1 istrict Court abused its discretion in excluding acts of the defend ubsequent to the alleged commission of the crime which tend tc w the consciousness of his guilt or are a part of the res gestae an pus delicti of the crime charged.

Whether the District 1 t abused its discretion when it suppressed evidence of all tesi ly from the defendant’s wife.

One of the District Court’s sons for suppressing all the testimony of the defendant’s wit , is that such witness was incomUUXUALJ.^y VAL W1C VAC±C;J.LU.CLJ.1U Q VVJ.JL _ XO VrlXCVU OUVU VVUiUCOO VV CLO J_LL^V/iXXpetent under § 46-16-212, MCA, as it read at the time of the alleged crime.

Prior to October 1,1991, § 46-16-212, MCA, provided as follows:

Except with the consent of both, or in cases of criminal violence by one upon the other, abandonment or neglect of children by either party, or abandonment or neglect of one by the other, neither spouse is a competent witness for or against the other in a criminal action or proceeding to which one or both are parties.

Relative to the competency of a spouse, the statute was amended effective October 1,1991, to read as follows:

(1) Neither spouse may testify to the communications or conversations between spouses that occurs during their marriage unless:
(a) consent of the defendant-spouse is obtained;
(b) the defendant-spouse has been charged with an act of criminal violence against the other; or
(c) the defendant-spouse has been charged with abuse, abandonment, or neglect of the other spouse or either spouse’s children.
(2) Except as provided in subsection (1), a spouse is a competent witness for or against the other spouse.

It is evident that when the alleged crime was committed, which was prior to October 1, 1991, the statute relative to the competency of a spouse to testify in criminal proceedings for or against his or her spouse, is different than the wording of the statute at the time of trial. It raises the question of whether this change in the statute is procedural or substantive. The statute is procedural. Therefore the statute in effect at the time of trial governs. See Wolfe v. Webb (1992), 824 P.2d 240, 49 St.Rep. 1.

We conclude that testimony by the wife Michelle Moore, if it meets other rules of evidence, is not to be excluded on the grounds of her competency as a witness, unless it is testimony of communications and conversation between the spouses dining their marriage.

Ill

Whether the District Court abused its discretion when it suppressed testimony of witness Hoffman which the District Court has ordered to be under seal and therefore it will not be recited here.

The offered testimony clearly reveals Moore’s possible motive. Evidence of a person’s motive in the prosecution of a homicide is admissible.

We therefore conclude that the District Court was in error and abused its discretion.

We reverse the District Court and remand for further proceedings in conformance to this opinion.

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


author: JUSTICE GRAY JUSTICE HUNT JUSTICE TRIEWEILER

text:
    JUDY LORENE WHIRRY, Plaintiff and Appellant, v. HARRY FRANKLIN SWANSON, Defendant and Respondent.
    No. 91-608.
    Submitted on briefs Apr. 30, 1992.
    Decided Aug. 24, 1992.
    49 St.Rep. 764.
    836 P.2d 1227.
    254 Mont. 248.

      For Plaintiff and Appellant: George B. Best, Kalispell.
    For Defendant and Respondent: Richard DeJana, Kalispell.
   JUSTICE GRAY

delivered the Opinion of the Court.

This is an appeal from an Order of the Eleventh Judicial District Court, Flathead County, granting defendant/respondent’s Motion for Judgment on the Pleadings and dismissing the action with prejudice. We affirm.

The issues on appeal are:

1. Did the District Court err in concluding that res judicata barred the action before it?

2. Did the District Court’s application of res judicata violate Whirry’s right to due process?

ABC Collectors brought an action injustice court against appellant Judy Whirry (Whirry) for payment of a medical debt owed by Whirry. Whirry filed an answer in which she admitted receiving the medical services and not paying for them. Whirry also filed a third-party complaint against Harry Swanson (Swanson) alleging that she incurred the medical debt as a result of injuries received in an automobile accident in which Swanson was negligent; on that basis, she asserted that Swanson was solely liable for any judgment against her. Whirry subsequently moved for summary judgment against Swanson on her third-party complaint. The court granted summary judgment to Whirry.

Whirry then filed a complaint in District Court seeking recovery for all damages she incurred through the negligent and reckless misconduct of Swanson during the same accident. Swanson filed a Motion for Judgment on the Pleadings and for Dismissal claiming Whirry’s District Court action was barred by her summary judgment in justice court. The District Court granted Swanson’s motions and dismissed the matter with prejudice on October 30, 1991. Whirry appealed.

I.

Did the District Court err in concluding that res judicata barred the action before it?

The District Court determined that the four criteria necessary for the application of res judicata were met and that the justice court necessarily determined Swanson’s negligence in order to assign liability for Whirry’s medical bills. Whirry argues that none of the res judicata criteria were met and that the justice court was not a court of competent jurisdiction as also required for application of res judicata. Her arguments are without merit.

The principle -underlying the doctrine of res judicata is that a party is prohibited from relitigating a matter that the party has already had an opportunity to litigate. Higham v. City of Red Lodge (1991), 247 Mont. 400, 807 P.2d 195. Four substantive criteria for res judicata must be met: the parties or their privies must be the same; the subject matter of the action must be the same; the issues must be the same and relate to the same subject matter; and the capacities of the persons must be the same in reference to the subject matter and to the issues. Filler v. Richland County (1991), 247 Mont. 285, 806 P.2d 537. Finally, although often left unstated, the court making the judgment must be a court of competent jurisdiction. Hughes v. Salo (1983), 203 Mont. 52, 659 P.2d 270, citing Southern Pacific R. Co. v. United States (1897), 168 U.S. 1, 48-49, 18 S.Ct. 18, 27, 42 L.Ed. 355, 377.

The four criteria required for res judicata are met here. First, the parties are the same in both actions insofar as Whirry filed against Swanson on both occasions. The fact that the justice court action also involved another party is not relevant since there is no requirement for perfect identity of all parties. Second, the subject matter of both of Whirry’s complaints against Swanson is the same, namely, the accident caused by Swanson’s alleged negligence and Swanson’s liability for Whirry’s resulting damages. The fourth required criterion is also satisfied: Whirry was the tort plaintiff and Swanson the tort defendant in both actions involving the parties and both acted in their individual capacities.

The third res judicata criterion — whether the issues are the same — is the key element here. In order to determine that the criterion is met, the fundamental or essential question involved in the second case must have been raised and determined in the first case. Baertsch v. County of Lewis and Clark (1986), 223 Mont. 206, 727 P.2d 504.

In her justice court complaint against Swanson, Whirry claimed that: (1) she and Swanson were involved in an automobile accident in 1989; (2) the accident was caused by Swanson’s negligence; (3) the negligence caused her damage and injury; and (4) as a result, Swanson was solely responsible for the medical services debt she incurred as an outgrowth of the accident. The justice court granted Whirry’s motion for summary judgment on her claim against Swanson.

Whirry’s District Court complaint asserts that the same accident occurred, that Swanson’s negligence and recklessness caused the accident, that she was injured, and that she incurred medical expenses and other damage as a result. She prays for compensation for all injuries, detriment and damage.

It is clear that the essential and fundamental issue in both Whirry complaints against Swanson is Swanson’s negligence in causing the accident and Whirry’s injuries. Determination of this issue is dispositive in both actions. The issue of Swanson’s negligence having been raised and determined in Wbirry’s justice court action, we conclude that the identity of issues required for application of res judicata is met.

Whirry also argues that justice court was not a court of competent jurisdiction for res judicata purposes because it could not grant her relief for the total damages she suffered as a result of Swanson’s negligence. She cites no authority for this position. Therefore, we note only the general rule that:

[WJhere a plaintiff who has a claim which in its entirety exceeds in amount the court’s jurisdiction brings an action and recovers judgment for an amount within the court’s jurisdiction, he is, by operation of the judgment precluded from thereafter maintaining an action for the balance of his claim, even though the court rendering the former judgment had no authority to give a judgment upon this balance.

46 Am.Jur.2d, Judgments, § 450 (1969).

Whirry’s “court of competent jurisdiction” argument is, in reality, a fairness argument for which she relies on Boucher v. Dramstad (D.Mont. 1981), 522 F.Supp. 604. Her reliance on Boucher is misplaced.

Boucher originally involved an action under the Montana Tort Claims Act. Following an unfavorable result on appeal based on a somewhat technical rule of law addressed for the first time in that case by this Court, Boucher filed a federal civil rights action based on the same facts as his state court claim. The defendants raised res judicata as a bar.

The federal district court noted a difference of opinion among the Circuit Courts of Appeal on the question of whether res judicata barred a § 1983 action in federal courts where the constitutional claims underlying the action could have been raised in an earlier state court proceeding, but were not. Citing the Ninth Circuit’s rule that res judicata would bar Boucher’s § 1983 action, the federal district court nonetheless found that, on the facts before it, application of the doctrine of res judicata would result in manifest unfairness to the plaintiff. Boucher, 522 F.Supp. at 607. The court expressed its concern that res judicata would result in plaintiff never having had an opportunity to have his claim evaluated by a court.

Neither the facts nor the law in Boucher is applicable here. Most importantly, Whirry has had an opportunity to have her claim of negligence against Swanson evaluated; indeed, she prevailed on that claim in justice court. Thus, even if “manifest unfairness” were the test for application of res judicata by this Court, that test would not be met here. In addition, it must be noted that the Boucher court relied on federal cases, cases neither controlling nor persuasive under the facts before us. We conclude that the justice court was a court of competent jurisdiction for determining Whirry’s third-party claim against Swanson.

We hold that the District Court did not err in concluding that res judicata barred the action before it.

II.

Did the District Court’s application of res judicata violate Whirry’s right to due process?

Whirry argues that the District Court violated her right to due process by denying her right to raise issues and litigate her action, to prove liability, and to prove the extent of her damages. Whirry relies on our conclusion in Boyer v. Kargacin (1982), 202 Mont. 54, 656 P.2d 197, that a grant of summary judgment to plaintiff in that case foreclosed the opportunity for a hearing on the merits of defendant’s case and violated his right to due process. Boyer is inapposite here.

In Boyer, the plaintiff was granted a temporary restraining order against defendant who parked his car across the ingress to plaintiff’s business. The temporary order evolved into a continuing restraining order. On appeal of that order, this Court upheld the order but remanded with directions to expedite the trial of the cause for damages. On remand, the district court granted plaintiff summary judgment on the issue of defendant’s liability due to its misinterpretation of our instructions on remand; the court believed that we had already resolved the issue of liability in plaintiff’s favor. On the second appeal, we reversed, concluding that defendant had had no opportunity to be heard on the issue of liability and, therefore, that his right to due process was violated.

In Boyer, the issue of defendant’s liability was never heard or resolved on the merits at any stage. Here, plaintiff pleaded Swanson’s negligence injustice court and moved for and was granted summary judgment on that basis.

Whirry is correct that she may have had a more extensive recovery had she filed her action in the District Court in the first instance. But she chose to file against Swanson injustice court for the total amount of $470.80. The justice court ultimately entered final judgment in Whirry’s favor. To allow her to file another action based on the same facts for additional damages would permit her to relitigate her case. Due process does not require such a result. We hold that the District Court’s application of res judicata did not violate Whirry’s right to due process.

Affirmed.

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

JUSTICE HUNT

dissenting.

I dissent. The pursuit of justice has always been a pursuit of fairness within logical parameters. Today’s decision instead ignores this goal of jurisprudence and reflects inherent unfairness. The majority opinion fails to recognize a crucial factor in res judicata determination — that the previous judgment be made on the merits. Instead, it subjects itself to the ease of a deficient four-prong test with no concern for logic or fairness. The majority simply states four requisite criterion for the binding effect of res judicata and satisfies itself without a deeper inspection of the larger issues of justice underlying the plaintiff’s claim. Most jurisdictions require that prior judgments be on the merits.

Furthermore, this case was tried in Justice Court. Thus, with no record before it, the District Court had no means of recognizing exactly what was adjudicated on the merits. It could not have known at all whether or not the case was tried on the merits. At most, the District Court was presented with a general ruling from below, not enough to substantiate a summary judgment ruling on res judicata.

The majority’s result deprives the plaintiff of a full and fair adjudication of her rightful allegation against the defendant. Its ruling today is facially insufficient to pretend to support traditional notions of justice. I would reverse the District Court’s ruling and remand for a proper determination of the plaintiff’s claim.

JUSTICE TRIEWEILER

dissenting:

I also dissent from the opinion of the majority. I concur with Justice Hunt’s conclusion that the majority decision is unfair and does not serve the purposes for which the principle of res judicata was established. However, the majority opinion is also legally incorrect.

The majority concedes that in order to prove that Wfhirry’s claim is barred by res judicata Swanson had to establish, among other things, that the issues adjudicated in the Justice Court were the same issues that Whirry sought to adjudicate in the District Court. Swanson also had to establish that the prior judgment came from a court of competent jurisdiction. In this case, neither element was proven.

Whirry’s action in the Justice Court was solely for the purpose of seeking indemnity for a medical bill from one of the health care providers who had treated her. In the District Court, she sought damages for the remainder of her medical expenses, loss of wages and future earning capacity, pain and suffering, loss of her established course of life, and punitive damages. These claims all presented issues different from those which were litigated in the Justice Court action. Additionally, there was no proof by the defendant, nor any basis in the pleadings for establishing that the Justice Court had jurisdiction to adjudicate these additional claims had they been presented. Pursuant to § 3-10-301(l)(c), MCA, justice cotuts, at the time that this case was litigated, could not consider claims based on injury to the person where the amount in dispute exceeded $3500. In order to grant judgment on the pleadings, it had to be plain from the pleadings that plaintiff’s claim did not exceed that amount in order to establish that the Justice Court had jurisdiction to consider all the issues raised in the District Court action.

The majority concludes that:

It is clear that the essential and fundamental issue in both Whirry complaints against Swanson is Swanson’s negligence in causing the accident and Whirry’s injuries. Determination of this issue is dispositive in both actions. The issue of Swanson’s negligence having been raised and determined in Whirry’s justice court action, we conclude that the identity of issues required for application of res judicata is met.

The majority’s conclusion confuses res judicata with collateral estoppel. The fact that one issue (negligence) was resolved in the previous action does not bar consideration of issues which were not resolved in a subsequent action. It simply means that the defendant is collaterally estopped from denying liability in the second action. The fact that the issue of negligence was previously raised and determined does not address the issue of Whirry’s damages and should not preclude her from raising those issues in a court of competent jurisdiction.

I agree that the majority’s conclusion is unfair. However, I also conclude that it is legally and logically indefensible, and therefore, dissent from the majority opinion.


text:
    JANE S. NORBECK, Trustee of the JANE NORBECK Trust dated November 20, 1963, Plaintiff, Respondent and Cross-Appellant, v. MRS. M.H. CRAWFORD and MR. M.H. CRAWFORD, her husband, if any, and other heirs, devisees, legatees, creditors, administrators, executors, and assigns of any of said defendants, if they be deceased; and any and all persons known or unknown, claiming or who might claim any right, title, estate or interest in or lien or encumbrance upon the real property situated in the County of Fallon, State of Montana, described as 25% of the net proceeds derived from the production as reserved by George Norbeck in operating agreement with Fidelity Gas Company included in and a part of U.S. Oil and Gas Lease prospecting permit, Billings Serial #021056 as to NE 1/4, Section 12, Twp. 8N, Rge 59E of M.P.M., Fallon County, Montana or any thereof adverse to Plaintiff’s title whether such claim be present or contingent including any claim or possible claim of dower, inchoate or accrued, Defendants, Appellants, and Cross-Respondents.
    No. 92-113.
    Submitted on briefs July 23, 1992.
    Decided Aug. 25, 1992.
    49 St.Rep. 771.
    836 P.2d 1231.
    254 Mont. 256.

      For Appellant: Charles J. Peterson, Mackoff, Kellogg, Kirby & Kloster, Beach, North Dakota.
    For Respondent: Chris Mangen, Jr., Crowley, Haughey, Hanson, Toole & Dietrich, Billings.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Mrs. M.H. Crawford, et al., appeals from a judgment of the Sixteenth Judicial District Court, Fallon County. We affirm.

The sole issue on appeal is:

Whether the District Court erred in granting the disputed 25 percent interest in a federal oil and gas lease to Jane S. Norbeck, Trustee of the Jane Norbeck Trust, subject however to 39/40ths of such 25 percent interest being vested in Mrs. M.H. Crawford, et al., upon approval of the Department of the Interior.

In 1934, George Norbeck (Norbeck) obtained federal lease, 021056(b), from the United States Department of Interior. The lease contained a fixed twenty year term and granted the lessee right of renewal upon expiration. The lease also contained a provision barring assignment without consent of the Secretary of the Interior through the land office.

Norbeck entered into an operating agreement with Fidelity Gas Company. He retained record title ownership of the lease, as lessee, with 25 percent of the net proceeds of production. Norbeck appointed Fidelity Gas Company as his attorney-in-fact to obtain renewal leases on his behalf. Subsequently, Fidelity Gas Company assigned the operating rights in the deep formations to Shell Oil Company.

In 1935, Norbeck made an assignment of the 25 percent interest to Mrs. M.H. Crawford. This assignment was rejected by the United States Land Office because Mrs. Crawford did not pay the required lease bond, or establish the necessary qualifications to own an interest in the lease. Mrs. Crawford did not pay any delay rentals. After the assignment, Mrs. Crawford had the assignment filed with the county clerk and recorder. Thereafter, Mrs. Crawford took no action in regard to the lease.

Fidelity Gas applied for a renewal lease in 1954 on behalf of Mrs. Crawford. The land office rejected the renewal because Fidelity Gas did not have authority to act on behalf of Mrs. Crawford, and the land office did not recognize Mrs. Crawford as a lessee. Fidelity then applied for a renewal lease as attomey-in-fact for Norbeck. The land office accepted this application and issued a renewal to Norbeck. In 1964 Fidelity applied for the second renewal as attomey-in-fact for Norbeck, and the renewal was issued. The second renewal lease was put on producing status in 1968. Since then, some $420,000 in production payments have been allocated to the 25 percent interest.

On October 28, 1968, the land office notified “heirs of George Norbeck” that under federal regulations they had to establish their succession to his interest in the lease. On August 18,1987, the Bureau of Land Management (BLM), the successor to the land office, notified the Norbeck heirs that it recognized their interest in the lease.

The Norbeck heirs transferred all of their interest in the lease to the Jane Norbeck Trust, Julius A. Bernard, Trustee. Subsequently, Jane S. Norbeck took over as trustee (Norbeck Trustee). On September 29, 1988, Shell Oil notified the trustee that Shell had completed its review of the claim to the interest but would not distribute the proceeds without a quiet title action being completed.

On October 22,1990, the Norbeck Trustee began a quiet title action before the District Court. Efforts were made to locate Mrs. Crawford, but no response was forthcoming- A default was taken against Mrs. M. H. Crawford. The District Court quieted title to Jane S. Norbeck, Trustee, on December 7, 1990.

Subsequently, the heirs of Mrs. M.H. Crawford (the Crawford heirs) surfaced and filed a motion for relief from judgment. The District Court vacated the default and judgment on June 4,1991. The Crawford heirs sought to quiet their title to 39/40ths of the disputed interest. Jane S. Norbeck, Trustee, filed a motion for summary judgment. In response the Crawford heirs moved for partial summary judgment.

The District Court, on January 17, 1992, ruled that Jane S. Norbeck, Trustee, owned all the allocated production proceeds. However, the District Court ruled the Crawford heirs could apply to the BLM for approval of the previously rejected assignment. Should the assignment be approved, the Crawford heirs would own 3%0ths of the disputed interest and the proceeds of production would be allocated to them after the first day of the month following application for approval. This appeal followed.

Our scope of reviewing motions for summary judgment is the same as the trial court and is a question of law. Summary judgment is granted only if no genuine issue of material fact exists.

I

The District Court found that federal oil and gas leases are governed by the Mineral Leasing Act of 1920, RL. No. 146, 41 Stat. 437 (1920), as codified in 30 U.S.C. Sec. 5, 181 et seq. The original statute provided: “[N]o lease issued under the authority of this Act shall be assigned or sublet, except with the consent of the Secretary of the Interior.”

30 U.S.C. § 187a (1990) provides:

[A]ny oil or gas lease issued under the authority of this Act may be assigned ..., subject to final approval by the Secretary ..., to any person or persons qualified to own a lease under this Act, and any assignment or sublease shall take effect as of the first day of the lease month following the date of filing in the proper land office of three original executed counterparts thereof, together with any required bond and proof of qualification under the Act of the assignee or subleasee to take or hold such lease or interest therein

The District Court in light of 30 U.S.C. 187a, ruled the Crawford heirs would own 39/40ths of the disputed interest upon the approval of the assignment by the BLM.

The case of Oasis Oil Co. v. Bell Oil & Gas Co. (W.D. Okla. 1952), 106 F.Supp 954, followed 30 U.S.C. § 187a, and held that Oasis Oil Company (the assignor) was the sole record holder of the lease and was entitled to all of the oil runs from the well on the lease. Oasis at 957. In Oasis, the assignee, Fish, failed to pay the requested fee, and provided insufficient information to the Department of Interior which refused to approve the assignment. Thus, the assignment did not convey any interest in the lease under the statute until the date the Secretary of Interior approved the lease.

The Crawford heirs rely on Gibbons v. Pan American Petroleum Corporation (10th Cir. 1958), 262 F.2d 852, for the proposition that neither Norbeck nor his heirs were obligated under the lease after the assignment. However, this proposition is contrary to the facts before us. The Department of Interior viewed Norbeck as the record owner of the lease. The renewals were made and accepted in his name. A renewal submitted on behalf of Mrs. M.H. Crawford was rejected because the assignment had never been approved. Delay rentals became the responsibility of Norbeck, whether he paid them or not. In Gibbons, the Tenth Circuit stated that Gibbons’s failure to submit the assignment for approval could not destroy the obligation of an assignee under the lease. Gibbons at 854. Thus Gibbons rests on the fact that Gibbons did not submit the assignment for approval. Here, Mrs. M.H. Crawford applied to the land office for approval of the assignment and it was rejected.

The material facts are not in dispute. Norbeck made an assignment to Mrs. Crawford but she failed to perfect the assignment with the Department of Interior pursuant to the language of the original lease and 30 U.S.C. § 187a. Later attempts were made to have Mrs. Crawford pay the rentals but without success. As a result the obligations under the lease remained with Norbeck. Neither the assignor nor assignee, or their heirs, acted relative to any rights they had until awakened by Shell Oil. The District Court ordered the existing proceeds of the 25 percent interest paid to the Norbeck heirs, however by its order it allowed the Crawford heirs the opportunity to perfect the assignment by seeking approval of the Secretary of Interior under 30 U.S.C. § 187a.

Based on the evidence presented in the record, we agree with the determination of the District Court and affirm the District Court.

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


text:
    JOE KRAFT d/b/a HOLIDAY REALTY, Plaintiff and Appellant, v. INEZ F. HODSON, individually, and as Personal Representative of the Estate of Charles G. Hodson, ELKRIDGE LIVESTOCK CO., a Montana corp., and HODSON RANCH COMPANY, a co-partnership, Defendants and Respondents.
    No. 91-478.
    Submitted on briefs Aug. 13, 1992.
    Decided Sept. 1, 1992.
    49 St.Rep. 792.
    836 P.2d 1234.
    254 Mont. 262.
    For Plaintiff and Appellant: Douglas C. Allen, Great Falls; A. Clifford Edwards and David R. Paoli, Edwards & Paoli, Billings.

      For Defendants and Respondents: Keith Strong, Dorsey & Whitney, Great Falls.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from an order of the District Court of the Eighth Judicial District, Cascade County, dismissing the plaintiff-appellant Joe Kraft’s d/b/a Holiday Realty (Kraft) complaint against the defendants-respondents Inez F. Hodson, et al. (Hodson). We affirm.

The disposing issue is:

Did the District Court err in dismissing Kraft’s complaint with prejudice on Hodson’s motion to dismiss for failure to state a claim?

The complaint alleges Hodson, on behalf of herself and the other respondents, entered into a real estate listing agreement with Kraft, a real estate agent, to sell the Hodson Ranch, machinery and livestock. Such agreement was incorporated into the complaint. Under the agreement, if Kraft negotiated a sale he was to receive a commission of three percent of the gross sales price. This agreement was to expire on July 1, 1987. The agreement excluded sales to Chase Hibbard and Thomas E. Lane, among others with whom Hodson had previously negotiated. Hodson maintained the option to sell the ranch herself to parties other than those procured by Kraft.

Kraft alleges he was thereafter contacted by Chase Hibbard who reexpressed considerable interest in buying a portion of the ranch. Kraft asked Hodson what she wanted him to do. Kraft alleges he was specifically requested and authorized to carry on negotiations for Hodson. This alleged authorization and request was oral, not written.

Kraft also alleges that Hodson authorized him to negotiate with Tom Lane (Lane) for the sale of the property. This authorization was also oral. Kraft alleges he negotiated with Lane. However, Kraft was later informed by Hodson that Lane drove up to her place and bought the ranch. Kraft alleges that Hodson’s attorney called and obtained from him the details and terms of the sale to Lane, and assured Kraft he would get his fee. The negotiations and sale of the ranch to Lane occurred subsequent to the termination date of the listing agreement.

The basis of Kraft’s complaint is as follows:

1. Hodson orally modified the agreement to pay Kraft a commission even if she sold the property.

2. Hodson orally modified the agreement to pay Kraft a commission even if the property was sold to Tom Lane.

3. Hodson orally modified the agreement to pay Kraft a commission after the listing expired.

A court, in reviewing a motion to dismiss under Rule 12(b), M.R.Civ.P., must assume all allegations of the complaint are true. Contway v. Camp (1989), 236 Mont. 169, 768 P.2d 1377. The resolution of whether the complaint states a claim is a matter of law. Our review of a district court’s ruhng of law is plenary and we determine if the district court’s determination as to the law is correct. See Steer Inc., v. Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 601.

Areal estate listing agreement is within and covered by the statute of frauds. Section 28-2-903(l)(e), MCA, provides:

The following agreements are invalid unless the same or some note or memorandum thereof is in writing and subscribed by the party to be charged or his agent;...
(e) an agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission.

Such statute applies here. See Carnell v. Watson, 176 Mont. 344, 578 P.2d 308. The District Court in considering the issue held as follows:

In Carnell, supra 176 Mont. at 348 the Montana Supreme Court disposed completely of Plaintiff’s argument. The Court held as a matter of public policy that oral consent does not validate material alterations of written listing agreement^]. The Carnell court also held as a matter of law and public policy that a real estate broker must deliver a copy of any modified agreement in writing to the seller or forfeit his right to a commission. Ibid. at 349-50. None exists here.

Kraft’s alleged oral modifications above stated are invalid. There is no allegation or proof of a note or memorandum signed by Hodson.

Kraft also contends the oral modifications were fully executed and therefore are governed by § 28-2-1602, MCA, which provides as follows:

A contract in writing may be altered by a contract in writing or by an executed oral agreement and not otherwise.

Kraft states his performance complied with this statute and the oral modification is fully executed. Kraft is in error for we have consistently held that executed oral agreements mean full execution by both sides. See Hart v. Billings Public Stockyards (1971), 157 Mont. 345, 486 P.2d 120. Hodson had not paid him his alleged commission. The consideration from her to him has not been executed.

Kraft also asserts that allowing Hodson to rely on the statute of frauds perpetuates a fraud against Kraft. It amounts to “gaining an unconscionable advantage inflict[ing] an unjust and unconscionable loss upon the plaintiff.”

The District Court considered this assertion and disposed of it as follows:

The purpose of section 13-606 [now 28-2-903(l)(e)] is to prevent fraud by disallowing parol evidence of an agreement to pay a real estate commission, and requiring instead written proof of such agreement signed by the party to be charged thereunder. To permit parol proof of the existence of such agreement and proof of complete execution thereof by proof of sale, is to circumvent the positive requirements of the statute of frauds and render it a nullity.

We conclude the motion to dismiss was properly granted.

Affirmed.

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


author: JUSTICE WEBER

text:
    IN RE THE MARRIAGE OF CYNTHIA K. BLACK, f/k/a CYNTHIA K. WEIS, Petitioner and Respondent, and GERALD T. WEIS, Respondent and Appellant.
    No. 92-126.
    Submitted on briefs July 2, 1992.
    Decided Sept. 1, 1992.
    49 St.Rep. 800.
    837 P.2d 407.
    254 Mont. 266.
    For Respondent and Appellant: Craig W. Holt, Billings.

      For Petitioner and Respondent: Terry Wallace, Missoula.
   JUSTICE WEBER

delivered the Opinion of the Court.

Mr. Weis filed a petition to modify the decree of dissolution in his attempt to change the primary residential custody of the parties’ three children. After a hearing, the District Court for the Thirteenth Judicial District, Yellowstone County, denied Mr. Weis’ petition. Mr. Weis appeals. We affirm.

The sole issue for our review is whether the District Court erred when it refused to let the children testify as to their wishes.

Cynthia (who changed her last name to her maiden name of Black) and Gerald Weis were divorced in Yellowstone County, Montana on June 28,1989. There were three children of the marriage. The court awarded joint legal custody and ordered that primary residential custody be alternated between the parents annually for five years. The court further ordered that the non-residential parent was entitled to visitation on alternate weekends, Thanksgiving and half of the school Christmas break. Because one daughter, Irena, had asthma, the court ordered the parents not to allow anyone to smoke in her presence or in the house where she was residing or visiting.

On October 7, 1991, Mr. Weis filed a petition for modification of residential custody designating him as the permanent primary custodian. He alleged that when the children were in the primary custodial care of Ms. Black, Irena’s health was endangered because of “continual contact with direct and passive smoking”. He also alleged that all three children were endangered physically and emotionally by Ms. Black’s past and present live-in boyfriends.

In his affidavit in support of his motion, Mr. Weis averred that all three children were sick and in need of medical care when he picked them up from Ms. Black’s home on September 23, 1991. He claimed Olivia had tonsillitis and an ear infection requiring medication; Esther had an ear infection requiring medication; and, Irena was suffering from bronchial asthma and an ear infection requiring medication. Mr. Weis claimed that Ms. Black and her boyfriend continued to smoke in Irena’s presence, in spite of Irena’s asthma. He further claimed that Ms. Black’s present boyfriend continually yelled at the children which frightened them and caused undue stress. He maintained that her former boyfriend physically hurt the children. Finally, he maintained that Ms. Black neglected the physical care of the children by not requiring them to bathe.

In response to Mr. Weis’ motion, the District Corut issued a temporary restraining order and order to show cause prohibiting Ms. Black from having custodial care of the children. The temporary restraining order remained in effect until a full hearing on the petition for modification of custody was held on January 10, 1992.

At the hearing, Ms. Black testified that she does not smoke in the house. She further testified that when Mr. Weis picked up the children on September 23,1991, that Irena was not having an asthma attack as Mr. Weis had claimed. Rather, she testified that Irena had a cold which she was treating with an over-the-counter medicine. Ms. Black testified that although she had never heard her boyfriend yell at her children, they have told her he is mean. She testified that after talking to the children about it, she felt the problem was really that the children did not want to accept her boyfriend as a disciplinarian figure. She further testified that they were all getting along very well at the time of the hearing.

Near the conclusion of the hearing, Mr. Weis requested that the District Court interview all three children prior to coming to any conclusion, in hope that the children’s testimony might confirm or deny their mother’s testimony. The District Court denied Mr. Weis’ petition to modify residential custody without interviewing the children. Mr. Weis appeals.

The sole issue before us is whether the District Court erred when it refused to let the children testify as to their wishes.

Mr. Weis maintains that in determining the best interests of the child, the District Court is required by § 40-4-212, MCA, to consider the wishes of the children as to their custodian.

Ms. Black maintains that § 40-4-219, MCA, controls in a modification procedure and that the stringent adherence to the factors of § 40-4-212, MCA, is not required. We agree. Custody is not at issue here; modification of primary residential custody is.

Section 40-4-219, MCA, provides:

(1) The court may in its discretion modify a prior custody decree if it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child and if it further finds that:
(c) the child’s present environment endangers seriously his physical, mental, moral, or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him;
(d) the child is 14 years of age or older and desires the modification;

The Weis children were all under 14 years of age at the time of the hearing. Therefore, the District Court was not required to consider their wishes as to custody. However, although the court did not interview all the children, it did consider their wishes as described in the testimony of Dr. Veraldi. In explaining its decision to deny modification of primary custody, the District Court stated:

On October 9,1991, the Court talked with the oldest child, Olivia, and the Court has reviewed Dr. Veraldi’s notes attached to her deposition which reflect her interview with all three children. Mr. Weis has requested that this Court interview the children but the Court finds that to be unwarranted and unnecessary.
The children express a preference for the father but have a fair relationship with the mother. The basis of the children’s preference seems to be a dislike of mother’s boyfriend and the fact that the father is able to take them more places, buy them more things, and the fact that he does not make them work around the house. Some of these reasons are somewhat shallow and immature, as one might expect of young children.
When Mr. Weis got the Court to issue a temporary order last September giving him residential custody, things were just beginning to stabilize in the mother’s home and a better relationship between the children and the mother’s boyfriend was beginning to develop. Given that, the children’s relationships with others and their expressed preferences are not enough to convince this Court that their best interests would be served by modifying residential custody.

Clearly the District Court considered the children’s wishes. We hold that the District Court did not err when it refused to let the children testify as to their wishes.

Affirmed.

JUSTICES HARRISON, TRIEWEILER, HUNT and McDonough concur.


author: JUSTICE HARRISON JUSTICE TRIEWEILER

text:
    FRANCES CAROLINE PARKER, Plaintiff and Appellant, v. CARRIE WILMOTH ELDER, ROBERT DALTON AND VADA LEE DALTON, Defendants and Respondents.
    No. 92-193.
    Submitted on briefs Aug. 6, 1992.
    Decided Sep. 3, 1992.
    49 St.Rep. 805.
    836 P.2d 1236.
    254 Mont. 270.
    For Plaintiff and Appellant: Douglas Y. Freeman and Natasha J. Morton, Law Offices of Douglas Y. Freeman, Hardin.
    For Defendants and Respondents: James E. Torske, Hardin.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Thirteenth Judicial District, County of Big Horn, State of Montana, the Honorable G. Todd Baugh presiding. This is the second time this matter has been before this Court on appeal. In the original appeal to this Court, Parker v. Elder (1988), 233 Mont. 75, 758 P.2d 292, this Court upheld the District Court’s award of a permanent injunction enjoining respondents from interfering with appellant’s use of a road that crossed respondent Carrie Wilmoth Elder’s land. The matter was returned to the District Court, which subsequently heard testimony on the issues of appellant Frances Parker’s damages and her attorney’s fees of approximately $24,000. The District Court thereafter awarded damages but denied Mrs. Parker an award of attorney’s fees. Mrs. Parker appeals the District Court’s denial of attorney’s fees. We affirm.

The sole issue before this Court is whether the prevailing party in an injunctive action should be awarded attorney’s fees, in light of the fact that the prevailing party was forced to institute a legal action to protect her rights from an unlawful self-help course of conduct.

Mrs. Parker recognizes that, as a general rule, the prevailing party in a civil action may not recover attorney’s fees absent a contractual agreement or express statutory authority. Harris v. Bauer (1988), 230 Mont. 207, 749 P.2d 1068; Martin v. Crown Life Insurance Co. (1983), 202 Mont. 461, 658 P.2d 1099. Mrs. Parker also recognizes that it has been well established in Montana that attorney’s fees may not be recovered as “costs” under § 27-1-318, MCA. Martin v. Randono (1981), 191 Mont. 266, 623 P.2d 959. However, she notes that from time to time, this Court has created an exception to the rule wherein the party that was successful in a dissolved injunction was granted attorney’s fees. Sheridan Electric Co-op., Inc. v. Ferguson (1951), 124 Mont. 543, 227 P.2d 597; Boz-Lew Builders v. Smith (1977), 174 Mont. 448, 571 P.2d 389; and Marta v. Smith (1980), 191 Mont. 179, 622 P.2d 1011. There have been no holdings, however, and we concur in this instance, that where an injunction was granted attorney’s fees should be recovered.

Areading of the above-listed cases relied on by Mrs. Parker reveals that they were cases where special circumstances existed; that the trial courts, in arriving at their decisions, took into account the special circumstances; and that the courts based their decisions on those special circumstances.

In the case at bar, the trial court found that no exceptional circumstances existed to evoke a judicially created exception to the general rule relating to attorney’s fees. The court in its findings concluded:

To impose attorney fees on a losing party as a general rule would be a deterrent to use of the courts and could result in denial of justice and even property damage and personal injury.
In this case, there is nothing beyond that which the prevailing party has in any other case to recommend an award of attorney fees and the Court concludes that plaintiff must bear her own attorney fees.

We note that while the District Court concluded that Mrs. Parker suffered no actual damage, it did grant her exemplary damages in the amount of $5,000 in addition to $850.97 in costs. In doing so the court found that the respondents were wrong in closing the contested road over their property but that they had committed no crime. We find there is substantial, credible evidence to support the District Court’s findings relating to the denial of attorney’s fees under the circumstances and that those findings are not clearly erroneous.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES McDONOUGH and WEBER concur.

JUSTICE TRIEWEILER

dissenting:

I dissent from the opinion of the majority. Section 27-19-406, MCA, provides that when an injunction is granted and afterward dissolved, the party who was successful in having the injunction dissolved may recover attorney fees. In this case, if the respondents had been successful they would have been entitled to an award of attorney fees. It makes no sense and is not equitable that the plaintiff who was, after all, the aggrieved party, is not entitled to the same relief.

In Foy v. Anderson (1978), 176 Mont. 507, 580 P.2d 114, we held that in spite of the traditional rule that a prevailing party is not entitled to an award of attorney fees, attorney fees can be awarded at the discretion of the trial court where it is necessary in order to achieve an equitable result. In affirming an award of attorney fees to the defendant in that case, we stated:

If defendant Eggan is dismissed from the case and not awarded attorney fees, she will not be made whole or returned to the same position as before plaintiff Anderson attempted to bring her into the lawsuit.

Foy, 580 P.2d at 117.

Likewise, in this case, without an award of attorney fees, plaintiff is not returned to the same position as before access to her property was unlawfully obstructed. Furthermore, without an award of attorney fees, she has not received the same protection under the law that defendants would have received had they prevailed in this action.

Therefore, I would reverse the judgment of the District Court.