text:
    DAVID E. RIEMAN, FRANCES S. RIEMAN, DIANNE L. CHRISTMANN, ALLEN H. CHRISTMANN, RICHARD D. TEBAY, GUY WEIMER and JANICE WEIMER, Plaintiffs and Appellants, v. ROGER ANDERSON, TED BERST, MINNIE BERST, MIKE McCOY, DIANE McCOY, and CLARINE STOVALL, Defendants and Respondents.
    No. 96-456.
    Submitted on Briefs March 6, 1997.
    Decided April 8, 1997.
    54 St.Rep. 286.
    282 Mont. 139.
    935 P.2d 1122.

      See C.J.S. Waters § 350.
    For Appellants: Gary L. Spaeth, Attorney at Law, Helena.
    For Respondents: James A. Hubble; Hubble & Ridgeway, Stanford.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

David and Francis Rieman, Dianne and Allen Christmann, Guy and Janice Weimer, and Richard Tebay (Appellants) sought a determination of their easement right to use the Nutting Ditch and its laterals, damages caused by interference with that right, and attorney fees. The Thirteenth Judicial District Court, Yellowstone County, concluded that Appellants’ predecessor in interest had abandoned his ditch easement, and awarded attorney fees to Respondents. We affirm.

Appellants raise five issues on appeal:

1. Do Respondents have standing to raise abandonment?

2. Did the District Court err when it concluded that Appellants’ predecessor in interest abandoned his ditch easement?

3. Did the District Court err when it concluded that Appellants’ predecessor in interest had authority to abandon his ditch easement?

4. Did the District Court err when it concluded that a ditch easement can be abandoned even though the easement continued to be used by Respondents?

5. Did the District Court err in awarding attorney fees to Respondents?

BACKGROUND

The Old Mill Ditch Company, Inc., is a Montana corporation that diverts water from the Yellowstone River to the Nutting Ditch based on water shares owned by lateral users. Old Mill does not claim an interest in the Nutting Ditch or its laterals. The Nutting Ditch flows through sections of Stillwater and Yellowstone Counties from a headgate located on the Old Mill Ditch in Section 27, Township 2 South, Range 23 East, M.P.M., Stillwater County, Montana. The disputed side lateral diverts from the Nutting Ditch on property owned by Guy and Janice Weimer in the SE1/4 NE1/4 of Section 26, Township 2 South, Range 23 East, M.P.M., Stillwater County, Montana. (See attached map.)

Appellants, except the Weimers, own real property in Section 25, Township 2 South, Range 23 East, M.P.M., Yellowstone County, Montana, and trace ownership of their real property and Old Mill stock to Larry Myers. Roger Anderson, Ted and Minnie Berst, Mike and Diane McCoy, and Clarine Stovall (Respondents) are owners of real property located east of Appellants, and use water from the Old Mill and Nutting Ditches.

Owners of Old Mill stock are entitled to use water from the Old Mill Ditch. Appellants and Respondents own Old Mill stock as follows:

Riemans 14 shares Anderson 18 shares

Christmanns 3 shares Bersts 7 shares

Tebay 20 shares McCoys 53 shares

Weimers 4 shares Stovall 38 shares

It is undisputed that before 1974, Appellants and Respondents, or their predecessors in interest, except the Weimers, had a ditch easement to use the Nutting Ditch to transport water from the Old Mill Ditch to their properties. Respondents have an easement in the Nutting Ditch to transport water to their property located down ditch from Appellants.

In 1972, Myers purchased real property located in Section 25, Township 2 South, Range 23 East, M.P.M., Yellowstone County, Montana, and acquired Old Mill stock with it. Two years later he mortgaged the property to John Hancock Mutual Life Insurance Company. Until 1976, he irrigated the property by using a side lateral from the Nutting Ditch. Myers’ historical access for the side lateral was a diversion located on the Nutting Ditch on property now owned by the Weimers.

In 1974, Myers stopped paying the assessments for his shares of Old Mill stock. Thereafter, they were paid by John Hancock. In 1975, because Myers was experiencing financial difficulties, he decided to try to subdivide his property. He contacted Harlan Lund, a surveyor, who prepared a certificate of survey subdividing the property into twenty-acre residential tracts.

During preparation of the survey, Myers and Lund discussed the gravelly soil and high water table on Myers’ property. These conditions could prevent the property from being subdivided into residential tracts with underground septic systems. From 1974 to 1981, Myers informed Lund and neighboring landowners that he did not intend to further irrigate his property. In 1975, he plugged the diversion from the Nutting Ditch to his side lateral by filling it with dirt. At approximately the same time, he built a rough road system for his proposed subdivision and, in the process, plowed in his irrigation ditches. After 1976, Myers did not irrigate into his side lateral or assist in maintaining the Nutting Ditch. In the early 1980s, he removed several culverts along the side lateral so that water could not flow onto his property.

In September 1976, John Hancock commenced foreclosure proceedings against Myers’ property. Plaintiffs, except the Weimers, acquired their property from James Murphy, the Federal District Court trustee responsible for selling Myers’ property. In conjunction with the sale, Murphy transferred shares of Old Mill stock to the Riemans, Christmanns, and Tebay. He took the position that the stock did not guarantee that its holders would receive water. The Weimers’ predecessor in interest did not use the Nutting Ditch. Instead, the Weimers acquired Old Mill stock from individuals other than the predecessors in interest to their property.

In 1991 and 1992, the Weimers attempted to pump water from the Nutting Ditch. At approximately the same time, the remaining Appellants attempted to access water from the Nutting Ditch into the side lateral by reopening Myers’ historical diversion. Respondents learned of the pump and diversion and had them removed.

On May 13, 1993, Appellants filed a complaint claiming a right to use the Nutting Ditch, and its laterals that Respondents interfered with their right to use the ditch, and requesting damages and attorney fees. Respondents asserted as an affirmative defense that Myers had abandoned his easement in the Nutting Ditch before the Riemans, Christmanns, and Tebay acquired title to their property, and that the Weimers never possessed an easement to use the Nutting Ditch.

Following a five-day trial, the District Court, sitting without a jury, concluded that the Weimers never had an easement to use the Nutting Ditch. It further concluded that the Nutting Ditch easement formerly owned by Myers, as predecessor in interest to the Riemans, Christmanns, and Tebay, was abandoned by Myers as demonstrated by his acts and expressions of intent from 1974 to 1981. The court also awarded attorney fees to Respondents pursuant to § 70-17-112(5), MCA. This appeal followed.

DISCUSSION

1. Do Respondents have standing to raise abandonment?

A district court’s ruling on standing is a conclusion of law. We review conclusions of law to determine whether the district court’s interpretation of the law is correct. Jim’s Excavating Service v. HKM Assoc. (1994), 265 Mont. 494, 501, 878 P.2d 248, 252.

Appellants argue that Respondents lack standing to assert the affirmative defense of abandonment because Respondents are co-owners of the Nutting Ditch, the dominant easement. Appellants assert that abandonment should be reserved as a defense for the owners of the servient easement — i.e. up ditch landowners not parties to this action. Respondents claim that the District Court raised standing for the first time after the trial had been completed, therefore barring its consideration on appeal.

Objections to standing cannot be waived and may be raised by a court sua sponte. Stewart v. Bd. of Cty. Com’rs of Big Horn Cty. (1977), 175 Mont. 197, 204, 573 P.2d 184, 188. We conclude that the issue of Respondents’ standing to assert abandonment as an affirmative defense is properly before this Court.

Respondents in this case have a personal stake in the litigation. Respondents, all ranchers, would have to share a ditch easement and water flowing therein with many more people than they did when Myers irrigated his property. If Appellants prevailed, Respondents would also be required to pay attorney fees and damages for interfering with Appellants’ pump and diversion systems.

Therefore, we hold that Respondents have standing to assert all their defenses, including an affirmative defense that Appellants’ predecessor in interest abandoned his easement to use the Nutting Ditch. The District Court did not err when it concluded that Respondents have standing.

2. Did the District Court err when it concluded that Appellants’ predecessor in interest abandoned his ditch easement?

Abandonment is a question of fact. Thomas v. Ball (1923), 66 Mont. 161, 166, 213 P. 597, 599. This Court reviews findings to determine whether they are clearly erroneous by using a three-part test.

First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence we will determine if the trial court has misapprehended the effect of the evidence. Third, if substantial evidence exists and the effect of the evidence has not been misapprehended the Court may still find that a finding is clearly erroneous when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.

Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287 (citation omitted).

The Montana Supreme Court has previously explained the requirements to prove abandonment.

In order for there to be abandonment there must be an intent to abandon. An intent to abandon has not been found from mere nonuse. Abandonment means a voluntary act involving a concurrence of act and intent. The act is the relinquishment of possession and the intent is a manifestation not to resume beneficial use of it. Neither of the elements alone is sufficient.

Shammel v. Vogl (1964), 144 Mont. 354, 359, 396 P.2d 103, 106. The party claiming abandonment must prove that the “acts claimed to constitute the abandonment [are] of a character so decisive and conclusive as to indicate a clear intent to abandon the easement.” City of Billings v. O.E. Lee Co. (1975), 168 Mont. 264, 268, 542 P.2d 97, 99.

The District Court found that Myers plugged the diversion from the Nutting Ditch to his side lateral by filling it with dirt. He plowed in his ditches and made statements to neighboring landowners of his intent to no longer irrigate. Myers hired a surveyor to prepare a subdivision but, in order to sell the tracts, he had to lower the water table on the property. This meant that after 1975 he could no longer irrigate. In the early 1980s, Myers removed several culverts so that water could not flow onto his property. These findings are not clearly erroneous.

Although there is evidence that Myers placed canvas and wooden diversions in the Nutting Ditch on several occasions during the 1980s, these acts are contrary to Myers’ historical use of the Nutting Ditch, which was limited to diverting water into his side lateral. Myers’ later diversions did not manifest an intent to resume beneficial use of his easement.

Appellants also argue that because there was water flowing down the Nutting Ditch which belonged to Myers, that he did not abandon his easement. This argument confuses the difference between water rights and a ditch easement. Water rights and ditch rights are separate and distinct rights. McDonnell v. Huffine (1912), 44 Mont. 411, 422-23, 120 P. 792, 795. One can be abandoned without abandoning the other. McDonnell, 120 P. at 795. A person may own a water right without a ditch right, or own a ditch right without a water right. McDonnell, 120 P. at 792.

We conclude that the District Court’s finding that Myers abandoned his easement in the Nutting Ditch between 1975 and 1981 is supported by substantial evidence. Further, in accordance with De-Saye, we determine that the court did not misapprehend the effect of the evidence. Finally, after a review of the record, we are not left with a definite and firm conviction that a mistake has been committed. Accordingly, we hold that the District Court’s finding that Myers abandoned his Nutting Ditch easement is not clearly erroneous.

3. Did the District Court err when it concluded that Appellants’ predecessor in interest had authority to abandon his ditch easement?

Appellants contend that Myers did not own, and therefore could not evidence the intent to abandon his ditch easement, because he transferred his property to his wife, Sandra Diane Myers. Appellants further argue that after John Hancock initiated foreclosure proceedings against Myers’ property, that Myers lacked authority to abandon his ditch easement. These contentions are made without any citation to legal authority.

At trial, Appellants did not offer into evidence any deeds or mortgage documents regarding Myers’ interest in his property. On appeal, they provide no legal authority for their abandonment argument. An appellant carries the burden of establishing error by the trial court. Moreover, Rule 23, M.R.App.R, requires the appellant to cite to authority which supports the position being advanced on appeal. Appellants’ argument is nonpersuasive and we decline to address it on appeal.

4. Did the District Court err when it concluded that a ditch easement can be abandoned even though the easement continued to be used by Respondents?

Appellants argue that because water continued to flow through the Nutting Ditch across the lands of servient easement holders to Respondents, that Respondents cannot claim abandonment. Appellants suggest that Respondents want Myers’ ditch easement abandoned, but not their own. Between 1974 and 1981, Myers evidenced the intent to abandon his Nutting Ditch easement. Although Myers abandoned his ditch easement, this does not mean that Respondents, as co-owners of the easement, also abandoned their right to use it.

We hold that the District Court did not err when it concluded that Myers abandoned his easement to use the Nutting Ditch even though Respondents continued to use the ditch.

5. Did the District Court err in awarding attorney fees to Respondents?

Appellants argue that they should not be required to pay attorney fees because this case did not involve interference, but focused instead on whether Appellants’ easement had been abandoned.

Section 70-17-112, MCA, provides:

(2) No person may encroach upon or otherwise impair any easement for a canal or ditch used for irrigation or any other lawful domestic or commercial purpose, including carrying return water.
(5) If a legal action is brought to enforce the provisions of this section, the prevailing party is entitled to costs and reasonable attorneys fees.

Appellants brought this case pursuant to § 70-17-112, MCA, pleaded interference with their easement, and claimed damages as a result. Respondents counterclaimed based on Appellants’ interference and, at trial, proved that Appellants improperly pumped and diverted water from the Nutting Ditch.

In Sharon v. Hayden (1990), 246 Mont. 186, 803 P.2d 1083, the defendants were the prevailing parties in a case brought to enforce ditch easement rights under § 70-17-112, MCA. We held that because the defendants successfully enforced the provisions of § 70-17-112, MCA, they were entitled to costs and reasonable attorney fees.

Here, the District Court determined that Respondents were prevailing parties on all issues and ordered a hearing for calculation of attorney fees. Under § 70-17-112(5), MCA, Respondents prevailed on all issues and are entitled to attorney fees as a matter of law. We hold that the District Court did not err in awarding attorney fees to Respondents.

Affirmed.

JUSTICES GRAY, LEAPHART, HUNT and TRIEWEILER concur.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    IN RE MATTER OF M.B., L.B., and F.B., Youths in Need of Care.
    No. 96-607.
    Submitted on Briefs March 20, 1997.
    Decided April 8, 1997.
    54 St.Rep. 291.
    282 Mont. 150.
    935 P.2d 1129.
    See C. J.S. Infants § 86.
    For Appellants: Bard G. Middleton; Attorney at Law; Billings.
    For Respondent: Hon. Joseph P. Mazurek; Attorney General; Tammy K. Plubell; Assistant Attorney General; Helena; Dennis Paxinos; Yellowstone County Attorney; Marcia Good Sept; Deputy County Attorney; Billings.
    For Guardian Ad Litem: Damon Gannett; Attorney at Law; Billings.
   JUSTICE TRIEWEILER

delivered the opinion of the Corut.

The appellants, Christie and Scott Banderob, moved the District Court for the Thirteenth Judicial District in Yellowstone County for an order allowing them to file a late notice of appeal. After a hearing, the District Court denied the motion, pursuant to Rule 5(c), M.R.App.P. Banderobs appeal. We affirm the judgment of the District Court.

The dispositive issue on appeal is whether the District Court erred when it denied Banderobs’ motion to file a late notice of appeal.

FACTUAL BACKGROUND

Christie and Scott Banderob are the natural parents of L.B., F.B., and M.B., all minor children. On November 2, 1993, the Montana Department of Health and Human Services filed a petition for termination of Banderobs’ parental rights to L.B. and F.B., to award permanent custody to the Department, and to award temporary legal custody of M.B. to the Department until M.B. reached the age of eighteen.

On October 20, 1995, the District Court issued an order which terminated Banderobs’ parental rights. The State then filed the judgment and notice of entry of judgment on October 26, 1995.

On March 20,1996, Banderobs filed a pro se motion in which they requested the District Court to allow them to file a late notice of appeal.

Banderobs did not dispute that they failed to file a notice of appeal within sixty days of the service of notice of entry of judgment, as required by Rule 5(a)(1), M.R.App.P. They claimed, however, that due to extenuating circumstances they should be allowed to file a late notice of appeal.

In support of their claim, Banderobs asserted that: (1) they are uneducated and have no knowledge of the legal system; (2) despite their efforts, they were unable to contact Paul Toennis, their trial attorney, during December 1995; (3) when they finally contacted Toennis on January 10,1996, he failed to inform them of their rights pursuant to Rule 5(c), M.R.App.P.; (4) they attempted to contact the District Court directly, but received no assistance; and (5) they made a good faith attempt to file a timely notice of appeal.

At the conclusion of the hearing, the District Court held that: “The Banderobs failed to show any excusable neglect or good cause which would extend the 60 day filing limit for an additional 30 days. Even if they had, the Banderobs failed to file a notice of appeal in the extended time period.” Accordingly, the District Court denied Banderobs’ motion to file a late notice of appeal.

DISCUSSION

Did the District Court err when it denied Banderobs’ motion to file a late notice of appeal?

When we review a district court’s conclusions of law, the standard of review is whether those conclusions are correct. Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

Banderobs contend that the District Court erred when, pursuant to Rule 5(c), M.R.App.P., it denied their motion to file a late notice of appeal. Specifically, they assert that, because of extenuating circumstances, they should be allowed to file a late notice of appeal. Furthermore, they claim that the District Court erred when it concluded that they did not establish good cause or excusable neglect for their failure to file a timely notice of appeal.

Rule 5 of the Montana Rules of Appellate Procedure is entitled “Time for filing notice of appeal.” Rule 5(a)(1), M.R.App.P., provides, in relevant part, as follows:

[I]f the State of Montana, or any political subdivision thereof, or an officer or agency thereof is a party the notice of appeal shall be filed within 60 days from the entry of the judgment or order or 60 days from the service of notice of the entry of judgment.

The District Court issued its order which terminated Banderobs’ parental rights on October 20, 1995. Subsequently, on October 26, 1995, the District Court entered its judgment and the State served notice of the entry of judgment. Banderobs did not file a notice of appeal within sixty days of service. Therefore, they did not comply with Rule 5(a)(1), M.R.App.P.

Rule 5(c), M.R.App.P, allows a district court to extend the period of time during which a party can file a notice of appeal. It provides, in relevant part, as follows:

The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than the 30 days after the expiration of the time prescribed by Rule 5(a) for civil cases ....

Rule 5(c), M.R.App.P.

Banderobs did not move the District Court to allow them to file a late notice of appeal until March 20,1996. At that time, the additional thirty days provided for in Rule 5(c), M.R.App.P., had also expired. Therefore, that motion was not timely.

In Northwestern National Insurance Co. v. Agra-Steel (1981), 193 Mont. 437, 439, 632 P.2d 330, 331, we stated:

In every appeal the first question is that of jurisdiction. Hand v. Hand (1957), 131 Mont. 571, 576, 312 P.2d 990, 992. Before proceeding we must consider whether or not Agra-Steel properly perfected its right of appeal. Appellant had the duty to perfect its appeal in the manner and within the time limits provided by law. Absent such compliance, this Court does not acquire jurisdiction

Furthermore, in Zell v. Zell (1977), 172 Mont. 496, 498, 565 P.2d 311, 312, we held that: “It is well settled in Montana that an untimely notice of appeal is a jurisdictional defect, which renders this Court powerless to hear the appeal.”

Finally, we note that in their appellate brief, Banderobs concede that, pursuant to the plain language of Rule 5, M.R.App.P., and the principles delineated in Northwestern National Insurance Co. and Zell, their “request for filing a late notice of appeal was untimely and that the court lacks jurisdiction to entertain their motion.”

We therefore conclude that Banderobs failed to comply with the applicable Montana Rules of Appellate Procedure and that such jurisdictional defects are fatal to their claims on appeal. Accordingly, we hold that the District Court did not err when it denied Banderobs’ motion to file a late notice of appeal.

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


author: JUSTICE HUNT

text:
    ELK PARK RANCH, INC., a Montana Corporation; CHANNELL LIBBEY; DAVID A. HAUG; CHARLES KESTING; DAVID AMSK; ROBERT PAYNE; and LEMONT LAND CORP., a Montana Corporation, Plaintiffs and Appellants, v. PARK COUNTY, a political subdivision of the State of Montana, and the CLERK AND RECORDER OF PARK COUNTY, Defendants and Respondents.
    No. 96-664.
    Submitted on Briefs January 30, 1997.
    Decided April 8, 1997.
    54 St.Rep. 293.
    282 Mont. 154.
    935 P.2d 1131.

      See C.J.S. Deeds § 65.

      For Appellants: James A. McLean, Drysdale, McLean & Nellen, Bozeman.
    For Respondents: Tara DePuy, Park County Attorney, Livingston.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellants Elk Park Ranch, Inc., et al. (Landowners), appeal the decision of the Sixth Judicial District Court, Park County, granting Respondent Park County’s motion for summary judgment.

ISSUES

The Landowners raise two issues on appeal:

1. Did the District Court err in determining that the Landowners could not create twenty-acre tracts of record from a larger parcel by executing and recording a series of one-party deeds prior to the effective date of the 1993 amendments to the Montana Subdivision and Platting Act (the Subdivision Act)?

2. Did the District Court err in concluding that Park County was not equitably estopped from denying the Landowners’ establishment of twenty-acre tracts and from refusing to accept the one-party deeds of conveyance for the twenty-acre tracts?

FACTS

The facts in this case are not in dispute. The following agreed-upon facts and law are relevant to this appeal:

1. Park County is a political subdivision of the State of Montana. The Clerk and Recorder of Park County is an elected official. Elk Park and LeMont are Montana corporations having their principal offices in Livingston, Montana. The individual appellants are all residents of Park County, Montana.

2. Effective on April 6,1993, the legislature of the State of Montana amended the Subdivision Act, found at § 76-3-101, et. seq., MCA. One such amendment changed the definition of what constitutes a subdivision in the State of Montana. The pertinent sections of the amended Subdivision Act that define a subdivision and that are material and relevant to this case are:

Section 76-3-103(14), MCA. “Subdivision” means a division of land or land so divided that creates one or more parcels containing less than 160 acres that cannot be described as a one-quarter aliquot part of a United States government section, exclusive of public roadways, in order that the title to or possession of the parcels may be sold, rented, leased, or otherwise conveyed and includes any resubdivision and further includes a condominium or area, regardless of its size, that provides or will provide multiple space for recreational camping vehicles or mobile homes.
Section 76-3-103(15), MCA. “Tract of record” means a parcel of land, irrespective of ownership, that can be identified by legal description, independent of any other parcel of land, using documents on file in the records of the county clerk and recorder’s office.
Section 76-3-104, MCA. What constitutes subdivision. A subdivision comprises only those parcels containing less than 160 acres that cannot be described as a one-quarter aliquot part of a United States government section when the parcels have been segregated from the original tract. The subdivision plat must show all the parcels whether contiguous or not.

3. The size of land defined as a subdivision in the Subdivision Act prior to said amendments was 20 acres; that is, if a division of land was 20 acres or more, there was not a requirement to comply with the Subdivision Act.

4. Furthermore, prior to and after the 1993 amendments to the Subdivision Act, a survey of land (other than a subdivision) was not required for division of land for sale if the land could be described as a 1/32 or larger aliquot part of a United States government section or lot. Section 76-3-401, MCA.

5. In February or March of 1993, prior to the effective date of the amendments to the Subdivision Act of April 6,1993, a representative of Elk Park and LeMont, namely Kelly Meyers (Meyers) and their counsel, Karl Knuchel (Knuchel) had informal unplanned meetings with the then Park County Commissioners, the then Park County Attorney, William Neis Swandal (Swandal), and the then Park County Clerk and Recorder. Knuchel and Meyers expressed to Park County the desire of Elk Park and LeMont to record deeds with Park County of certain tracts of land owned by them by describing the land in separate twenty acre aliquot tracts. The Park County officials understood that it was Elk Park and LeMonfs goal to establish separate twenty acre tracts before the effective date of the amendments to the Subdivision Act, in order to allow them to sell the twenty acre tracts to third parties without being subject to the new amendments of the Subdivision Act requiring subdivision review, surveying and platting of tracts of 160 acres or less.

6. Elk Park and LeMont suggested that the land owned by them could be separately described by each owner all on a single deed, in twenty acre aliquot tracts wherein the owner would be both the grantor and the grantee (a one-party deed). The other methods discussed were to have a separate deed for each twenty acre tract using a one-party deed, using a single deed or separate deeds by the use of a separate cooperative third party as the grantee (a “straw man”), who would then convey the twenty acre tracts back to the owners after recording the deed or deeds.

7. The then Park County Commissioners and the then Clerk and Recorder advised Khuchel and Meyers that the legal opinion of the County Attorney would be required by them in the decision as to the type of deed(s) which would be acceptable to the county for recording.

8. Swandal, the then Park County Attorney, was consulted and his opinion was that there was no legal impediments to recording the one-party deeds and he advised that the deeds could be recorded. He did not think it was necessary to use a straw man to create the separate twenty acre tracts. In his opinion as County Attorney, once a deed describing twenty acres in aliquot parts was filed before the effective date of the Subdivision Act, that deed would be of record and the parties could transfer the tracts out in accordance with that description.

The reasoning of the County Attorney at this time was that Elk Park could create a fictional legal entity and effectuate the transfer. However, the County Attorney felt that although Park County could require the filing of separate deeds for each tract, it was more efficient to allow the transfer on a one-party deed.

9. Based on the County Attorney's opinion and the County Commissioner’s and Clerk and Recorder’s acquiescence in that opinion, several one-party quit-claim deeds were recorded by the various Landowners.

10. In an action filed on May 24, 1993, for a Writ of Mandamus against the Ravalli County Clerk and Recorder, on July 12,1994, the Montana Supreme Court decided Rocky Mountain Timberlands Inc. v. Lund (1994), 265 Mont. 463, 877 P.2d 1018, holding that a landowner cannot divide a large tract of land into twenty acre tracts by executing and recording a deed in which the grantor and the grantee are the same party. The Court held that such a deed was not a transfer and therefore not a division. The Court did not discuss in the decision the concept of “tracts of record” as defined in § 76-3-103(15), MCA. Prior to April 6, 1993, tracts of record were not defined in the Subdivision Act.

11. After the above decision came down, the then Park County Clerk and Recorder asked Swandal, the then Park County Attorney, if the one-party deeds should be removed from the record. Swandal told him, no, for two reasons: one, he thought that they were probably equitably estopped from doing so because of the previous meetings approving the filing of the one-party deeds and two, because he did not think the removal of the deeds could be accomplished without a court order.

12. On May 17,1995, Denise Nelson (Nelson), the new Park County Clerk and Recorder, wrote and mailed the following letter to each of the Landowners:

Re: Aliquot part division of property.
On April 2, 1995, a document was recorded at the Park County Clerk and Recorder’s Office describing the above property in aliquot parts. This does not constitute a division of land under Montana law. Attorney General’s Opinion No. 66, Volume No. 38, states: “A segregation of one or more parcels of land from a larger tract held in single or undivided ownership constitutes a division of land under section 76-3-103(3), MCA, REGARDLESS OF HOW THE LARGER TRACT IS DESCRIBED IN RELATION TO ALIQUOT PARTS OF A UNITED STATES GOVERNMENT SURVEY.”
Park County will not transfer any of the above described property and separate parcels unless they undergo subdivision review.

13. On July 1, 1995, Elk Park sold to Yellowstone II Development Group, Inc., a Montana Corporation (Yellowstone II), certain real property, including 28 twenty acre parcels described in the Elk Park one-party deeds referenced above. A “Notice of Purchaser’s Interest in and to Real Property” referencing the sale from Elk Park to Yellowstone II pursuant to an Agreement for Sale and Purchase of Real Estate and Option to Purchase Real Property under an installment contract was accepted and recorded by Nelson on July 14,1995.

14. On July 20, 1995, Tara DePuy (DePuy), who succeeded Swandal as Park County Attorney, wrote a letter to Jeffrey Pence, an attorney who represented certain parties who were opposed to the development of the Elk Park property and the sale to Yellowstone II, in which she stated “it is my opinion that Park County is estopped from denying the deeds that Elk Park is now recording.”

15. On or about August 30,1995, a meeting was held with the Park County Commissioners, Park County Attorney, Clerk and Recorder, Park County Planner, the Landowners (or their representatives), representatives of Yellowstone II, and other interested parties. The purpose of the meeting was to discuss what to do about the one-party deeds and the conveyance of 20 acre tracts to third parties out from the twenty acre descriptions contained in the one-party deeds in view of the Rocky Mountain Timberlands, Inc. case.

16. As a result of the meeting, DePuy requested an Attorney General’s Opinion on the issue of whether Park County was estopped from refusing to accept deeds of conveyance for twenty acre aliquot tracts purportedly created by the one-party deeds. The Attorney General’s Office refused to issue an Opinion in the matter.

17. On September 19, 1996, Nelson, the Park County Clerk and Recorder, wrote a representative of Yellowstone II, advising:

On July 14, 1995, a Notice of Purchaser’s Interest in and to Real Property was recorded on Role 109, pages 147-150, document #247254. This letter is to notify you that the instrument of conveyance underlying this notice of interest is unrecordable and may be void according to Montana’s Subdivision Regulations.

Park County’s position is that the reference in the letter to the term “instrument of conveyance” was a reference to the Elk Park one-party deed.

18. Yellowstone II subsequently defaulted in making its payments to Elk Park due on September 14, 1995, and Elk Park served a Termination Notice dated September 15, 1995, advising that by reason of the default in failing to make the payments due, Elk Park was terminating the contract. Elk Park then terminated the escrow arrangement with Yellowstone II and recorded the Quit Claim Deed in escrow conveying the property sold back to Elk Park.

19. On October 22, 1995, the attorney for Yellowstone II wrote a letter to the attomeyforElkParkallegingrescissionofthe agreement and demanding the return of the down payment.

20. On May 16,1996, Yellowstone II filed a complaint in the Sixth Judicial District Court, Park County, against First American Title Insurance Company, Elk Park, Inc., and Park County, asking for rescission and damages against Elk Park, damages against Park County for negligent misrepresentation, and damages against First American for breach of contract and unfair settlement practices. That action is still pending.

21. On November 27,1995, the Landowners petitioned the District Court for a declaratory judgment to establish the validity of their one-party quit-claim deeds. Subsequently, both parties moved for summary judgement, and the District Court granted summary judgment in favor of Park County. The Landowners appeal.

STANDARD OF REVIEW

Our standard of review in appeals from summary judgment rulings is de novo. Treichel v. State Farm Mutual Automobile Insurance Company (1997), [280 Mont. 443], 930 P.2d 661, 663 (citing Motarie v. Northern Montana Joint Refuse Disposal District (1995), 274 Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785). When we review a district court’s grant of summary judgment, we apply the same evaluation as the district court based on Rule 56, M.R.Civ.P. Treichel, 930 P.2d at 663 (citing Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903). See also Bartlett v. Allstate Insurance Company (1996), [280 Mont. 63], 929 P.2d 227, 230.

Moreover, in proving that summary judgment is appropriate: The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove by more than mere denial and speculation that a genuine issue does exist. Having determined that genuine issues of material fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. [This Court] reviews the legal determinations made by the district court as to whether the court erred.

Bruner, 900 P.2d at 903. In the case at bar, the parties have agreed to the relevant facts. Therefore, this Court’s review is limited to whether the District Court was correct in concluding that Park County was entitled to summary judgment as a matter of law.

DISCUSSION

1. Did the District Court err in determining that the Landowners could not create twenty-acre tracts of record from a larger parcel by executing and recording a series of one-party deeds prior to the effective date of the 1993 amendments to the Subdivision Act?

The Landowners first argue that the District Court erred as a matter of law in concluding that they could not create numerous twenty-acre tracts from a single, larger parcel using one-party deeds prior to the effective date of the current Act. The District Court concluded that the issue of a landowner’s ability to use one-party deeds for this purpose was conclusively settled by this Court’s decision in Rocky Mountain Timberlands, Inc. v. Lund (1994), 265 Mont. 463, 877 P.2d 1018.

In Rocky Mountain Timberlands, this Court noted that the appellants’ “whole purpose in recording [one-party] deeds was to divide its [larger] tract into smaller parcels minimally large enough to avoid the survey and platting requirements of the Subdivision and Platting Act.” 877 P.2d at 1020-21. In the case at bar, the Landowners’ admittedly sought to use one-party deeds for the same purpose (see Stipulated Fact No. 5, above). But this Court held in Rocky Mountain Timberlands that “a transfer of land requires a conveyance of title from one person to another. If the persons are the same, then a transfer does not occur. If there is no transfer, then there is no division of land under § 76-3-103(3), MCA.” We therefore expressly held that “a landowner cannot divide a large parcel of land into smaller parcels by executing a deed in which the grantor and grantee are the same party.” 877 P.2d at 1021. Given this holding, the District Court correctly concluded that Rocky Mountain Timberlands controlled the case at bar and dictated that the Landowners’ attempt to avoid the Subdivision Act using one-party deeds must fail.

On appeal, the Landowners attempt to distinguish Rocky Mountain Timberlands by referring to the smaller twenty acre parcels as “tracts of record.” A “tract of record” is statutorily defined as “a parcel of land, irrespective of ownership, that can be identified by legal description, independent of any other parcel of land, using documents on file in the records of the county clerk and recorder’s office.” Section 76-3-103(15), MCA. The Landowners argue that the term “tract of record” is a stand-alone definition, meaning that if a deed were filed and of record describing twenty acre parcels of land before the effective date of the Subdivision Act, the parcels created should be deemed established as “tracts of record” by operation of law and “grandfathered” in before the effective date of the amended Act.

This argument, which is essentially one of semantics, does not address, much less overcome, the fact that a one-party deed is ineffective to divide a large parcel of land into several smaller parcels. Rocky Mountain Timberlands, 877 P.2d at 1021. The one-party deeds which attempt to do this are void and without legal effect. The Landowners cannot seriously argue that the void one-party deeds somehow serve to accomplish a legitimate property transfer simply because the void deeds were accepted and filed with the clerk and recorder’s office. The recording of a deed does not establish the deed’s validity. McDonald v. Jones (1993), 258 Mont. 211, 216, 852 P.2d 588, 591. To the contrary, “[r]ecordation is a device to establish priority, but has nothing to do with conveying title.” Blakely v. Kelstrup (1985), 218 Mont. 304, 306, 708 P.2d 253, 254 (citation omitted). The Landowners’ attempt to construe the smaller parcels created via the one-party deeds as “tracts of record” does not establish the legitimacy of the property transfer, which was patently illegal according to Rocky Mountain Timberlands.

Moreover, we note that the Landowner’s reliance on the statutory definition of the term “tracts of record” is inconsistent with their attempt to circumvent the effect of the amended Act. The definition of “tracts of record” did not exist at the time the Landowners created the one-party deeds, and is contained in the very amended Act the deeds were intended to avoid. The Landowners, therefore, attempt to rely on a provision of the Act, but at the same time argue that the Act should not apply to them.

The Landowners next explain that the effect of the one-party deeds was not to “divide” the land in defiance of the law as articulated in Rocky Mountain Timberlands, but rather merely to “segregate” it. While the terms “divide” and “segregate” may have distinguishable meanings in other circumstances, the use of the word “segregate” in place of the word “divide” in this case is a distinction without a difference, and a transparent attempt to frustrate the law.

It is admitted that the Landowners’ aim in employing the one-party deeds was to “create twenty acre tracts for transfer purposes” from a single larger parcel of land. We fail to see how it is possible to take one large parcel of land and make it into several smaller parcels of land without dividing it. Pursuant to Rocky Mountain Timberlands, land cannot be divided via a one-party deed. 877 P.2d at 1021. The Landowners cannot avoid the effect of that decision simply by employing the word “segregate” in place of the word “divide.” The District Court did not err in concluding the Landowners’ one-party deeds were invalid and could not serve to divide their land into units small enough to avoid the operation of the amended Subdivision Act.

2. Did the District Court err in concluding that Park County was not equitably estopped from denying the Landowners’ establishment of twenty-acre tracts and from refusing to accept the one-party deeds of conveyance for the twenty-acre tracts?

The Landowners next argue that Park County should be equitably estopped from denying the validity of the one-party deeds due to its apparent acquiescence in the Landowners’ filing of the disputed deeds. The Landowners contend that they used the one-party deeds in reliance on Park County’s representation that the use of the one-party deeds was legal and acceptable to the county. They argue that Park County should not now be heard to deny the validity of the deeds which it knew would be filed and in fact, at least initially, accepted and filed. The District Court, however, concluded that the doctrine of equitable estoppel did not apply in this case. We agree.

The doctrine of equitable estoppel is grounded both in statute and in case law. Section 26-1-601, MCA, provides:

The following presumptions are conclusive: 1) the truth of a declaration, act, or omission of a party, as against that party in any litigation arising out of such declaration, act, or omission, whenever he has, by such declaration, act, or omission, intentionally led another to believe a particular thing true and to act upon such belief....

Section 26-1-601(1), MCA. In order to prove equitable estoppel, a party must show:

1. the existence of conduct, acts, language, or silence amounting to a representation or a concealment of a material fact;
2. these facts must be known to the party estopped at the time of his conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to him;
3. the truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel at the time it was acted upon by him;
4. the conduct must be done with the intention, or at least the expectation, that it will be acted upon by the other party, or under circumstances both natural and probable that it will be so acted upon;
5. the conduct must be relied upon by the other party and, thus relying, he must be led to act upon it; and
6. he must in fact act upon it in such a manner as to change his position for the worse.

Dagel v. City of Great Falls (1991), 250 Mont. 224, 234-35, 819 P.2d 186, 192-93 (citing Sweet v. Colborn School Supply (1982), 196 Mont. 367, 639 P.2d 521). If any one of these elements is not present, the theory of equitable estoppel cannot be invoked. Dagel, 819 P.2d at 193.

Equitable estoppel, by its terms, requires the misrepresentation of a material fact. Dagel, 819 P2d at 193; In re Marriage of K.E.V. (1994), 267 Mont. 323, 331, 883 P.2d 1246, 1252 (citing Minervino v. University of Montana (1993), 258 Mont. 493, 497, 853 P.2d 1242, 1245) (emphasis added). It is an appropriate remedy if “a party is denied the right to prove an otherwise important fact because of something which the party has done or omitted to do.” Marriage of K.E.V., 883 P.2d at 1252 (citing Norman v. State (1979), 182 Mont. 439, 443-44, 597 P.2d 715, 718) (emphasis added). Because the imposition of equitable estoppel is premised on a misrepresentation of fact, it is inapplicable when, as here, the conduct complained of consists solely of legal representations. While this Court has not had occasion before to clearly articulate the inapplicability of equitable estoppel to purely legal acts, such a conclusion was implicit in decisions such as Marriage of K.E.V., Minervino, and State v. Anderson (1993), 258 Mont 510, 853 P.2d 1245.

In this case, the Landowners assert that, when asked, Park County represented to them that the one-party deeds were legal documents. They further assert that the county then allowed the Landowners to file the deeds and to pursue private third-party sales in reliance on the deed’s purported validity. These actions, however, do not constitute a misrepresentation of a material fact; rather, they constitute Park County’s legal opinion that the deeds were valid. While this might constitute an inadvertent misrepresentation of the law, it does not constitute a misrepresentation of fact.

In addition, equitable estoppel also requires that the complaining party must have no knowledge of the truth of the facts which it claims were misrepresented to it. We have held, however, that the complaining party must lack not only the actual knowledge itself, but also lack “a readily available means of knowledge as to the true facts.” Harbeck v. Orr (1981), 192 Mont. 243, 250, 627 P.2d 1217, 1221 (citations omitted). Moreover, the doctrine of equitable estoppel will not be applied where both parties have the same opportunity to determine the truth of the facts at issue. Chemical Bank v. Washington Public Power Supply System (Wash.1984), 691 P.2d 524, 542.

Knuchel, a practicing attorney, represented the Landowners at the informal meetings with the representatives of Park County. Yet rather than asking their own counsel to formulate a legal opinion regarding the validity of the one-party deeds, the Landowners instead chose to rely on the opinion of the Park County Attorney. There was no reason to assume that the attorney for Park County possessed any specific knowledge of the amended Act which was not also known to, or discoverable by, the attorney for the Landowners. Both parties were equally able to perform the necessary legal analysis to discover the validity and applicability of the amended Act. Because both parties were equally able to determine the truth of the facts asserted, the third element necessary to prove equitable estoppel is lacking. Since the Landowners cannot prove each and every necessary element, the doctrine of equitable estoppel is inapplicable in this case.

The order of the District Court is affirmed.

JUSTICES GRAY, NELSON, LEAPHART and TRIEWEILER concur.


author: JUSTICE NELSON

text:
    MARLENE L. STERNHAGEN, as the Personal Representative of the Estate of Charles J. Sternhagen Plaintiff and Respondent, vs. DOW COMPANY, CHEVRON CHEMICAL COMPANY, MONSANTO COMPANY, STAUFFER CHEMICAL COMPANY and JOHN DOE COMPANIES 1 through 4, Defendants and Appellants.
    No. 96-161.
    Heard and Submitted January 28, 1997.
    Decided April 10, 1997.
    54 St.Rep. 299.
    282 Mont. 168.
    935 P.2d 1139.
    See C.J.S. Products Liability § 16.

      For Appellant: Robert M. Carlson, Corette, Pohlman, Black, Carlson, Mickelson & Johnston, Butte; Laurence F. Janssen, Lane, Powell, Spears, Lubersky, Los Angeles, California (Dow Chemical Company); Christopher Mangen, Jr., Crowley, Haughey, Hanson, Toole & Dietrich, Billings (Chevron Chemical Company and Stauffer Chemical Company).
    For Respondent: William A. Rossbach, Elizabeth A. Brennan, Rossbach & Whiston, Missoula.
    For Amicus Curiae Montana Trial Lawyers Association: Lawrence A. Anderson, Great Falls.
   JUSTICE NELSON

delivered the Opinion of the Court.

The United States District Court for the District of Montana, Great Falls Division, has certified to this Court the following question:

In a strict products liability case for injuries caused by an inherently unsafe product, is the manufacturer conclusively presumed to know the dangers inherent in his product, or is state-of-the-art evidence admissible to establish whether the manufacturer knew or through the exercise of reasonable human foresight should have known of the danger?

We conclude that Montana law precludes the admission of state-of-the-art evidence in products liability cases brought under the theory of strict liability.

FACTUAL AND PROCEDURAL BACKGROUND

The United States District Court for the District of Montana, Great Falls Division, found the following facts relevant to the question of law certified to this Court:

1. In her complaint filed in the United States District Court for the District of Montana, plaintiff Marlene L. Stemhagen, as the personal representative of the estate of Charles J. Stemhagen, seeks recovery for injuries and damages allegedly sustained by Charles Stemhagen as a result of his exposure to the herbicide 2,4-D during the years 1948 through 1950. Plaintiff claims that the exposure of Charles Stemhagen to 2,4-D was the cause of the cancer that resulted in his death.

2. Plaintiff seeks recovery against the defendants under the doctrine of strict liability in tort. Plaintiff claims that each of the defendants separately manufactured the 2,4-D products to which Charles Stemhagen was exposed during the years 1948 through 1950.

3. Dining the summer months of 1948, 1949 and 1950, Charles Stemhagen was employed by a crop spraying business in northeast Montana. Plaintiff claims that during that time, Charles Stemhagen was exposed to the herbicide, 2,4-D.

4. In 1981, Charles Stemhagen, a medical doctor specializing in radiology, was diagnosed as having a form of cancer which plaintiff claims was caused by his exposure to the herbicide 2,4-D during the years 1948 through 1950. Defendants dispute the claim that there is a causal link between the herbicide 2,4-D and the type of cancer from which Charles Stemhagen died.

5. The defendants claim neither they, nor medical science, knew or had reason to know of any alleged cancer-causing properties of the herbicide 2,4-D during the years 1948 through 1950.

DISCUSSION

Before addressing the question certified to us by the United States District Court, we will dispose of an issue injected into these proceedings by the Defendants/Appellants, Dow Company et al. (the Chemical Companies). The Chemical Companies first argue that negligence law, not strict liability, applies to this case. Plaintiff/Respondent, Marlene L. Stemhagen (Stemhagen), responds that this Court should not address this issue because it goes beyond the scope of the certified question. We agree.

We accepted the certified question as one involving only the doctrine of strict liability. The certified question does not ask this Court to determine whether negligence or strict liability law applies. To address this additional issue would go beyond the scope of the certified question and effectively render our decision an impermissible advisory opinion. See State ex rel. Fletcher v. Dist. Court (1993), 260 Mont. 410, 419, 859 P.2d 992, 997.

Our judicial power may be validly exercised only over justiciable controversies. Hardy v. Krutzfeldt (1983), 206 Mont. 521, 525-26, 672 P.2d 274, 276 (citing Chovanak v. Matthews (1948), 120 Mont. 520, 525-26, 188 P.2d 582, 584-85). Ajusticiable controversy contains three elements:

First, ajusticiable controversy requires that parties have existing and genuine, as distinguished from theoretical, rights or interest. Second, the controversy must be one upon which the judgment of the court may effectively operate, as distinguished from a debate or argument invoking a purely political, administrative, philosophical or academic conclusion. Third, [it] must be a controversy the judicial determination of which will have the effect of a final judgment in law or decree in equity upon the rights, status or legal relationships of one or more of the real parties in interest, or lacking these qualities be of such overriding public moment as to constitute the legal equivalent of all of them.

Brisendine v. State, Dept. of Commerce (1992), 253 Mont. 361, 364, 833 P.2d 1019, 1020-21 (alteration in original) (quoting Lee v. State (1981), 195 Mont. 1, 6, 635 P.2d 1282, 1284-85).

In the case at bar, the federal District Court has not asked us to determine whether negligence or strict liability law applies, and, therefore, the second and third requirements necessary to establish a justiciable controversy are not satisfied. That is, for us to address this issue, we would be engaging in a debate “invoking a purely ... academic conclusion.” Furthermore, our opinion concerning this additional issue will not have the effect of a final judgment. Additionally, we do not consider this issue to be “of such overriding public moment as to constitute the legal equivalent” of the second and third requirements of the test. Consequently, if we were to address this issue, we would impermissibly render an advisory opinion. Finally, having not been requested to do so, to address this additional issue would impose upon our comity relationship with the federal District Court in the pending case. See Phillips v. Duro-Last Roofing, Inc. (Wyo. 1991), 806 P.2d 834, 837. Accordingly, we will not address this issue.

The Chemical Companies next argue that if Restatement (Second) of Torts § 402A (1965), is the applicable law, then state-of-the-art evidence is admissible because Montana law recognizes the state-of-the-art defense in failure to warn claims. The Chemical Companies contend that the certified question must be read in conjunction not only with Restatement (Second) of Torts § 402A (1965), adopted by this Court in Brandenburger v. Toyota Motor Sales, U.S.A., Inc. (1973), 162 Mont. 506, 513 P.2d 268, but also with the comments to § 402A, including Comment j. Specifically, the Chemical Companies argue that the third sentence of Comment j applies, namely that “the seller is required to give warning ..., if he has knowledge, or by the application of reasonably, developed human skill andforesight should have knowledge, of the presence of the ... danger.” The Chemical Companies assert that we have cited with approval decisions of other courts that have adopted Comment j. Additionally, the Chemical Companies cite to various strict liability cases wherein we have referenced certain portions of Comment j. See e.g. Brown v. North Am. Mfg. Co. (1978), 176 Mont. 98, 576 P.2d 711 (Shea, J., concurring); Rost v. C.F. & I. Steel Corp. (1980), 189 Mont. 485, 616 P.2d 383; Krueger v. General Motors Corp. (1989), 240 Mont. 266, 783 P.2d 1340; and Emery v. Federated Foods, Inc. (1993), 262 Mont. 83, 863 P.2d 426. Based on these references, the Chemical Companies claim that we essentially have adopted some of the language contained in Comment j.

The Chemical Companies concede that we limited the extent to which we adopted Comment j in Riley v. American Honda Motor Co. (1993), 259 Mont. 128, 134-35, 856 P.2d 196, 200. However, the Chemical Companies assert that in Riley we only rejected that portion of Comment j regarding presumption of causation which they contend is irrelevant to the certified question before us. Therefore, the Chemical Companies conclude that because this Court has not expressly rejected the third sentence of Comment j, we recognize the state-of-the-art defense.

Furthermore, the Chemical Companies contend that in Tacke v. Vermeer Mfg. Co. (1986), 220 Mont. 1, 713 P.2d 527, the plaintiff offered state-of-the-art evidence on the issue of the feasibility in a design defect case. The Chemical Companies assert that if a plaintiff is allowed to offer state-of-the-art evidence to prove feasibility in a design defect case, a defendant may also offer state-of-the-art evidence to rebut feasibility as part of its defense. Therefore, the Chemical Companies argue a defendant should also be allowed to offer state-of-the-art evidence to disprove the feasibility of a warning in a failure to warn case.

Stemhagen responds that the certified question must be answered based on the fundamental principles underlying strict products liability in Montana. Stemhagen asserts that when this Court, in Bran denburger, adopted strict liability in tort for defective products as defined in Restatement (Second) of Torts § 402A(1965), it did so based on substantial public interest and public policy grounds which included principles of fairness and economics, maximum protection for the consumer and placement of responsibility for injury on the manufacturer. Stemhagen asserts that over the past two-plus decades, this Court has consistently returned to and relied upon these core principles.

Furthermore, Stemhagen contends that this Court has never adopted the state-of-the-art defense, but rather this Court has made it clear that even careful manufacturers may be strictly liable for unreasonably dangerous products which contained unforeseeable dangers. Therefore, Stemhagen argues that the critical question for this Court is “whether imposition of liability for undiscovered or even undiscoverable dangers of inherently unsafe products will advance the goals and policies sought to be achieved by Montana’s adoption of strict liability.” In answering the certified question, Stemhagen urges this Court to again return to the core principles underlying the doctrine of strict liability and thereby reject the state-of-the-art defense.

We agree with Stemhagen that we have not previously adopted the state-of-the-art defense. Further, we expressly reject the state-of-the-art defense, as this defense is contrary to the doctrine of strict products liability as that body of law has developed in Montana. In reaching these conclusions, we emphasize that despite the Chemical Companies’ assertion that the certified question involves a failure to warn cause of action, we note that the certified question is not so limited. Consequently, we address the certified question by addressing strict products liability law in Montana generally and without differentiating as among manufacturing defect, design defect, or failure to warn cases.

We first recognized the doctrine of strict liability by adopting the language set forth in Restatement (Second) of Torts § 402A (1965) in Brandenburger. However, “[o]ur adoption of [§ 402A], was not a wholesale adoption of the comments accompanying that provision; nor are we constrained by the comments in developing a body of products liability law.” Riley, 856 P.2d at 200 (citing Stenberg v. Beatrice Foods Co. (1978), 176 Mont. 123, 128-29, 576 P.2d 725, 729). The Chemical Companies assert that we have either previously adopted or should now adopt the language of Comment j to § 402A. However, after researching Montana law on strict products liability, we conclude that the language in Comment j, which the Chemical Companies contend supports the state-of-the-art defense, is inconsistent with our established law concerning strict products liability and we therefore decline to adopt that language. Rather, we conclude that the imputation of knowledge doctrine, as discussed below, is more consistent with existing Montana law.

Furthermore, the Chemical Companies rely on only one part of the third sentence of Comment j which, when considered in its entirety, indicates that this sentence is not applicable to the question certified to this Court. The Chemical Companies rely on the language, “the seller is required to give warning ..., if he has knowledge, or by the application of reasonably, developed human skill and foresight should have knowledge, of the presence of the ... danger.” However, the third sentence of Comment j, from which that language is extracted, states:

Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it [the ingredient to which people are allergic], if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ingredient [to which people are allergic] and the danger. [Emphasis added.]

The certified question before us involves an alleged cancer-causing ingredient, not one to which the decedent is alleged to have been allergic. Therefore, the third sentence of Comment j is not applicable to the certified question.

We adopted strict liability in torts for defective products based on important public policy considerations, to which we have consistently adhered for the past two-plus decades. “[T]he doctrine of strict liability was evolved to place liability on the party primarily responsible for the injury occurring, that is, the manufacturer of the defective product.” Brandenburger, 513 P.2d at 273 (quoting Lechuga, Inc. v. Montgomery (Ariz.1970), 467 P.2d 256, 261 (Jacobson, J., concurring)). We, thereafter enumerated various public policy considerations supporting adoption of the strict liability doctrine:

1. The manufacturer can anticipate some hazards and guard against their recurrence, which the consumer cannot do.
2. The cost of injury may be overwhelming to the person injured while the risk of injury can be insured by the manufacturer and be distributed among the public as a cost of doing business.
3. It is in the public interest to discourage the marketing of defective products.
4. It is in the public interest to place responsibility for injury upon the manufacturer who was responsible for [the defective product] reaching the market.
5. That this responsibility should also be placed upon the retailer and wholesaler of the defective product in order that they may act as the conduit through which liability may flow to reach the manufacturer, where ultimate responsibility lies.
6. That because of the complexity of present day manufacturing processes and their secretiveness, the ability to prove negligent conduct by the injured plaintiff is almost impossible.
7. That the consumer does not have the ability to investigate for himself the soundness of the product.
8. That this consumer’s vigilance has been lulled by advertising, marketing devices and trademarks.

Brandenburger, 513 P.2d at 273 (citations omitted). Furthermore, we stated:

The essential rationale for imposing the doctrine of strict liability in tort is that such imposition affords the consuming public the maximum protection from dangerous defects in manufactured products by requiring the manufacturer to bear the burden of injuries and losses enhanced by such defects in its products.

Brandenburger, 513 P.2d at 275.

Subsequent to our adoption of strict liability, we identified three elements essential to the establishment of a prima facie case in strict liability pursuant to § 402A:

(1) The product was in a defective condition, “unreasonably” dangerous to the user or consumer;
(2) The defect caused the accident and injuries complained of; and
(3) The defect is traceable to the defendant.

Brown, 576 P.2d at 716.

The Chemical Companies argue that if this Court recognizes the imputation of knowledge doctrine, rather than the state-of-the-art defense, we will eliminate all of the elements that a plaintiff must prove to establish a strict products liability cause of action. Specifically, the Chemical Companies assert that the imputation of knowledge doctrine removes a plaintiff’s burden of proving that a defect in the product caused the injury. In effect, the Chemical Companies are arguing that adoption of the imputation of knowledge doctrine will transform strict liability into absolute liability. We disagree.

From the time we initially adopted strict products liability, we have reassured defendants that strict liability is not absolute liability:

The adoption of the doctrine of strict liability does not relieve the plaintiff from the burden of proving his case. Vital to that proof is the necessity of proving the existence of a defect in the product and that such defect caused the injury complained of.

Brandenburger, 513 P.2d at 274. We explained again, in Brown, that by imposing upon a plaintiff the burden of proving a traceable defect, causation, and damage or injury, even with a flexible rule of evidence, we assured “an appropriate limitation to a manufacturer’s liability.” Brown, 576 P.2d at 717. This has not changed.

Under the imputation of knowledge doctrine, which is based on strict liability’s focus on the product and not the manufacturer’s conduct, knowledge of a product’s undiscovered or undiscoverable dangers shall be imputed to the manufacturer. Our adoption of the imputation of knowledge doctrine, and concomitant rejection of the state-of-the-art defense, does not change the requirements of plaintiff’s prima facie case; it only reinforces our commitment to provide the maximum protection for consumers, while still assuring “an appropriate limitation to a manufacturer’s liability.”

In fact, for the past two-plus decades, we have consistently adhered to the core public policy principles underlying strict products liability as set forth in both Brandenburger and Brown. As stated in the certified question, state-of-the-art evidence is used to establish whether the manufacturer knew or through the exercise of reasonable human foresight should have known of the dangers inherent in his product. That is, the state-of-the-art defense raises issues of reasonableness and foreseeability — concepts fundamental to negligence law — to determine a manufacturer’s liability. To recognize the state-of-the-art defense now would inject negligence principles into strict liability law and thereby sever Montana’s strict products liability law from the core principles for which it was adopted — maximum protection for consumers against dangerous defects in manufactured products with the focus on the condition of the product, and not on the manufacturer’s conduct or knowledge.

Contrary to the Chemical Companies’ assertion, our references to Comment j and our use of certain ambiguous language in previous case law does not support a conclusion that we have adopted the state-of-the-art defense. As discussed below, we conclude that in none of our prior cases was the state-of-the-art defense raised as an issue, much less adopted. Rather, these cases illustrate our strict adherence to the remedial policies underlying strict liability and our recognition of the basic differences between strict liability and negligence principles.

Attempting to demonstrate that we have adopted the state-of-the-art defense, the Chemical Companies cite to Rost and note that we referenced Comment j, and thereafter stated:

Plaintiffs contend that this duty to warn is measured by an objective standard, the care which would be exercised by a reasonable seller or expected by the ordinary consumer. This standard focuses on the condition of the product and the degree of danger which would be tolerated by the reasonable manufacturer [who], apprised of the danger, would not sell the product without a warning.

Rost, 616 P.2d at 385 (citing Phillips v. Kimwood Machine Co. (Or. 1974), 525 P.2d 1033, 1036-37) (emphasis added) (other citations omitted). The Chemical Companies assert that this language is synonymous with the state-of-the-art defense, and, therefore, that we recognized the state-of-the-art defense in Rost. We disagree. Rather, in making this assertion, the Chemical Companies take the language in Rost out of context from the authority cited.

To explain the nature of the duty to warn standard that the plaintiffs in Rost asserted, we cited Phillips. The Oregon Supreme Court stated in Phillips that to prevent strict liability from becoming absolute liability, a test for unreasonable danger is necessary to show that something about a product makes it dangerously defective without regard to whether the manufacturer was at fault for the condition. Phillips, 525 P.2d at 1036.

A dangerously defective article would be one which a reasonable person would not put into the stream of commerce if he had knowledge of its harmful character. The test, therefore, is whether the seller would be negligent if he sold the article knowing of the risk involved. Strict liability imposes what amounts to constructive knowledge of the condition of the product.

Phillips, 525 P.2d at 1036. The Court in Phillips also explained that a difference exists between strict liability and negligence law because a product could be unreasonably dangerous even though the manufacturer’s actions were reasonable in light of what he knew at the time he planned and sold the manufactured product. Phillips, 525 P.2d at 1037.

Furthermore, the Oregon Supreme Court explained that a way to determine if a product is unreasonably defective, is to assume that the manufacturer knew of the product’s potential dangers and then ask whether a manufacturer with such knowledge should have done something about the danger before the product was sold. Phillips, 525 P.2d at 1037. When viewed in this context, it is apparent that this portion of the Phillips opinion to which we cited in Rost does not support the state-of-the-art defense, but rather describes the imputation of knowledge doctrine.

Moreover, after citing Phillips, we further distinguished strict liability from negligence law and reiterated the public policy supporting strict products liability:

This strict duty mandated by the theory of strict liability is warranted even though in some situations it may result in liability being imposed upon careful manufacturers. Unforeseeable product defects often cause severe physical injuries to members of the public. The manufacturer can distribute the risk from such accidents among the body of consumers, while the individual consumer must bear the financial burden alone. Placing the risk of loss on the manufacturer provides an incentive to design and produce fail-safe products which exceed reasonable standards of safety. Phillips, supra, 525 P.2d at 1041. Nor can we ignore the fact that a manufacturer with research capabilities can anticipate hazards better than unsophisticated purchasers. Strict liability has its underpinnings in public policy.

Rost, 616 P.2d at 386 (other citations omitted).

As in Rost, one portion of our opinion in Kuiper v. Goodyear Tire & Rubber Co. (1983), 207 Mont. 37, 673 P.2d 1208, seems to support an argument that we recognized the state-of-the-art defense. In Kuiper, we concurred with the trial court’s opinion denying defendant’s motion for new trial and quoted a portion of that opinion which provided in pertinent part:

There is no requirement that a design remain in substantially the same condition since obviously the design of the product does not change from the date of its original manufacture, absent some modification in design which was not an issue in this case.
[I]t is the [trial] court’s concerted opinion that in a [product liability] design case, the changes in the product through wear, tear, or even abuse do not affect the question of whether the original design was defective and unreasonably dangerous. Design is judged not by the condition of the product, but the state of scientific and technical knowledge available to the designer at the time the product was placed on the market.

Kuiper, 673 P.2d at 1221 (third alteration in original) (emphasis added).

To conclude, however, that the emphasized language illustrates our adoption of the state-of-the-art defense is again to read this language out of context. Rather, when viewing the language in context with the trial court’s opinion, it is obvious that the trial court was explaining the nature of design defect cases. That is, the trial court was explaining that, in a design defect case, a plaintiff is not required to show that the product was in substantially the same condition at the time of injury as when the product left the manufacturer. Kuiper, 673 P.2d at 1221. This requirement is not necessary because the changes in the condition of the product due to regular use or abuse are irrelevant as the design itself does not change after the product leaves the manufacturer. Kuiper, 673 P.2d at 1221. Consequently, the issue addressed by the trial court did not involve the state-of-the-art defense, and, therefore, our concurrence with the trial court cannot be read as our adoption of the state-of-the-art defense. That was not the issue in Kuiper.

Rather, in Kuiper we reiterated the public policy supporting strict liability as set forth in Brandenburger and Brown:

On whatever theory, the justification for strict liability has been said to be that the seller [manufacturer], by marketing his product for the use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has a right and does expect, in a case of products which it needs and for which it is forced to rely on the seller [manufacturer], that reputable sellers [manufacturers] will stand behind their goods; that the public policy demands that the burden of accidental injuries caused by products intended for consumption to be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who placed the product in the market.

Kuiper, 673 P.2d at 1222 (quoting Restatement (Second) of Torts § 402A, cmt. c (1965). We also explained that the law of strict liability recognizes that the seller [manufacturer] is in the best position to insure product safety. Kuiper, 673 P.2d at 1222. Therefore, under strict liability, a seller [manufacturer] has a duty to prevent the release of any product in a defective condition unreasonably dangerous “into the stream of commerce.” Kuiper, 673 P.2d at 1222. Furthermore, we distinguished this duty under strict liability from the law of negligence.

This duty is unknown in the law of negligence and it is not fulfilled even if the seller takes all reasonable measures to make his product safe. The liability issue focuses on whether the product was defective and unreasonably dangerous, not only upon the conduct of the user or seller.

Kuiper, 673 P.2d at 1222.

Subsequently, in Rix v. General Motors Corp. (1986), 222 Mont. 318, 723 P.2d 195, andhx Krueger, we stated that, in a specific category of design defect cases, evidence of the technological knowledge about dangers in a design and the existence of alternative safer designs at the time of manufacture may be admitted. However, we expressly limited these opinions to cases where the alternative designs were available at the time the product at issue was manufactured.

We do not attempt to set forth an analysis which addresses all facets of strict liability under a design defect theory. We render an opinion only with regard to the following facet of defect: Was the GMC single brake system defective and unreasonably dangerous in view of the fact that a dual brake system was technologically feasible at the time of manufacture and was offered by GMC for sale? We do not rule upon the fact situation where a claim of design defect is made and where no alternative design is technologically feasible. See O’Brien v. Muskin Corp. (N.J.1983), 463 A.2d 298 [holding that state-of-the-art evidence is relevant to a risk-utility analysis and admissible in a strict liability case involving defectively designed products].

Rix, 723 P.2d at 201 (emphasis added). Likewise in Krueger, we relied on the limitations imposed in Rix and held that to determine the defectiveness of the transfer case design at issue, only evidence concerning other transfer case designs available at the time the transfer case at issue was manufactured would be admissible. Krueger, 783 P.2d at 1345.

Similarly, in a case prior to Rix, we held that a trial court erred in refusing to instruct the jury concerning plaintiff’s central contentions that compression rollers in defendant’s hay balers were an unnecessary hazard and that defendant enhanced injuries by failing to provide an emergency stop device. Tacke, 713 P.2d at 534. In Tacke, plaintiff presented evidence that open-throat, non-compression balers eliminated a place where humans could be injured and that these non-compression balers were technologically available at the time plaintiff purchased a baler containing the compression rollers which injured him. We held that the trial court’s failure to give an instruction which included the issue of an unnecessary hazard amounted to a directed verdict and denied plaintiff’s right to have jury instructions which are adaptable to his theory of the case. Tacke, 713 P.2d at 534.

The Chemical Companies argue that the plaintiff in Tacke offered state-of-the-art evidence on the issue of feasibility in a design defect case. The Chemical Companies assert that if a plaintiff may offer such evidence, then we should also permit a defendant to do so. We disagree. Like the fact situations in both Rix and Krueger, the plaintiff in Tacke offered evidence of existing alternative designs, and, therefore, such evidence was admissible to prove a product’s defectiveness. In both Rix and Krueger, we expressly limited the admissibility of evidence concerning alternative designs to situations where those designs existed at the time of manufacture. Furthermore, while we allowed the plaintiff to present this evidence in Rix and Krueger, we did not require it as a part of plaintiff’s prima facie case.

We decline to extend this rule to cases where alternative designs did not exist and a product’s dangers were undiscovered or undiscoverable at the time of manufacture. If we were to do so, we would inject negligence concepts into Montana’s strict products liability law and eviscerate the public policy underlying strict products liability law in this State. Therefore, we hold that the rule employed in Tacke and expressly stated in Rix and Krueger is limited to situations where alternative designs existed at the time of manufacture.

Alternatively, the Chemical Companies argue that even if the cases, discussed above, do not show that Montana has adopted the rule allowing state-of-the-art evidence, we should do so now based on the experience of other jurisdictions which favor the adoption of the rule. After discussing numerous cases from other jurisdictions, the Chemical Companies contend that an overwhelming majority of jurisdictions that have adopted § 402A also admit state-of-the-art evidence. Additionally, the Chemical Companies argue that the Restatement (Third) of the Law of Torts: Products Liability (Proposed Final Draft, Preliminary Version) (Oct. 18, 1996) would also allow state-of-the-art evidence. Furthermore, the Chemical Companies assert that public policy supports adoption of the state-of-the-art defense.

Despite the adoption of the state-of-the-art defense in other jurisdictions, recognition of the defense in the Restatement (Third) of the Law of Torts: Products Liability (Proposed Final Draft, Preliminary Version) (Oct. 18,1996) and the Chemical Companies’ assertion that public policy supports adoption of the defense, we choose to continue to adhere to the clear precedent we have heretofore established which focuses on the core principles and remedial purposes underlying strict products liability. Strict liability without regard to fault is the only doctrine that fulfills the public interest goals of protecting consumers, compensating the injured and making those who profit from the market bear the risks and costs associated with the defective or dangerous products which they place in the stream of commerce. See Brandenburger, 513 P.2d at 273. As we discussed previously, no Montana case supports the Chemical Companies’position that state-of-the-art evidence is admissible when a product’s inherent dangers are undiscovered or undiscoverable.

In fact, both our case law and statutory law make it clear that even careful manufacturers may be strictly hable for unreasonably dangerous products whose dangers could not be foreseen. See Rost, 616 P.2d at 386, and § 27-l-719(3)(a), MCA. Moreover, given strict liability’s focus on the product and not on the manufacturer’s conduct, knowledge of any undiscovered or undiscoverable dangers should be imputed to the manufacturer. That is, while a plaintiff must still prove the three prima facie elements set forth inBrown, evidence that a manufacturer knew or through the exercise of reasonable human foresight should have known of the dangers inherent in his product is irrelevant. See Phillips, 525 P.2d 1036-37.

Accordingly, in answer to the question certified, we conclude that, in a strict products liability case, knowledge of any undiscovered or undiscoverable dangers should be imputed to the manufacturer. Furthermore, we conclude that, in a strict products liability case, state-of-the-art evidence is not admissible to establish whether the manufacturer knew or through the exercise of reasonable human foresight should have known of the danger.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, REGNIER, TRIEWEILER, LEAPHART and HUNT concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DAVID WAYNE GUNDERSON, Defendant and Appellant.
    No. 95-476.
    Submitted on Briefs February 27, 1997.
    Decided April 8, 1997.
    54 St.Rep. 283.
    282 Mont. 183.
    936 P.2d 804.

      See C.J.S. Criminal Law § 1357.
    For Appellant: William F. Hooks, Appellate Defender Office, Helena.
    For Respondent: John T. Flynn, Broadwater County Attorney, Townsend; Joseph P. Mazuzrek, Attorney General, John Paulson, Assistant Attorney General, Helena.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant David Wayne Gunderson (Gunderson) appeals the judgment of the First Judicial District Court, Broadwater County, upon a jury verdict finding him guilty of one count of sexual intercourse without consent. We affirm.

Gunderson presents three issues on appeal:

1. Did the District Court abuse its discretion in failing to instruct the jury, sua sponte, that sexual assault was a lesser-included offense of sexual intercourse without consent?

2. Did the District Court abuse its discretion in sentencing Gunderson as a persistent felony offender?

3. Did the District Court abuse its discretion in sentencing Gunderson as a dangerous offender?

On the night of September 16,1994, Jenny E. (Jenny), a seventeen year old girl, was spending time with friends at the apartment of her boyfriend, Pat Long (Pat). While Pat was retrieving some things from his truck, another truck pulled up and the driver engaged him in conversation. The driver of the truck, who introduced himself as “Dave,” was a stranger to Pat, Jenny, and their friends. At trial, Pat, Jenny, and other witnesses present that night identified the stranger as Gunderson. Gunderson asked Pat to direct him to a certain campground outside of town.

While Gunderson and Pat were talking, a police car pulled up and the officer briefly engaged Pat in conversation. After the officer left, Gunderson followed Pat into the apartment and asked if one of the girls present would drive his truck to the campground. He explained that he had been drinking and he did not want to get a DUI.

Jenny and Pat agreed to help Gunderson get his truck to the campground. They agreed that Jenny would drive Gunderson’s truck, while Pat and Gunderson would follow in Pat’s truck and then Pat and Jenny would return to town. The three went outside and Jenny got in the driver’s side of Gunderson’s truck. Pat returned to the apartment to ask his roommate to come with them. While Pat was gone, Gunderson jumped in his truck, moved Jenny over, and drove off.

Jenny testified at trial that she attempted to direct Gunderson to the campground but that he did not listen to her. Instead of heading for the campground, he drove Jenny out of town in the opposite direction, finally stopping on an isolated road. Jenny testified that Gunderson then made advances towards her, at which time she jumped out of the truck and tried to run. She testified that Gunderson caught her and threw her down in the ditch or borrow pit that paralleled the road. When she attempted to rise, Gunderson threw her back down and told her that if she fought him, he would shoot her and leave her there to die. Gunderson then hit her lightly in the mouth, removed her jeans and panties, and laid down on her. Jenny testified that, while she was uncertain whether he penetrated her with his penis, she was certain that he penetrated her with his fingers.

After about twenty minutes, Gunderson allowed her to rise and dress. She then began to walk back to town, but Gunderson put her in the truck and drove her back. Jenny testified that he told her on the way that she should not attempt to press charges. He told her that if he had to go to jail, he would kill her when he was released. From the location where Gunderson dropped her off, Jenny walked back to Pat’s apartment. Her friends had been out looking for her throughout the time she was gone. When she told them what had happened, they took her to the hospital.

After being examined at the hospital, Jenny, her father, and a sheriff’s deputy returned to the spot where she had been attacked. The sheriff’s deputy found at the scene a pack of cigarettes, a lighter, and a black wallet with a driver’s license in it. Jenny identified the individual whose picture was on the license as her attacker; the driver’s license belonged to Gunderson. Gunderson subsequently was arrested at his home and charged with one count of kidnaping and one count of sexual intercourse without consent.

At trial, Gunderson admitted to being the individual with Jenny on the night in question. He claimed, however, that they had fallen into the ditch because the truck was parked too close to the edge. Gunderson admitted to making sexual advances, but claimed that he desisted once Jenny had told him twice to stop. He denied penetrating her with his fingers; denied threatening to kill her; and denied striking her. After trial, the jury found him not guilty of kidnaping, but guilty of sexual intercourse without consent. Gunderson appeals his conviction and sentence.

1. Did the District Court abuse its discretion in failing to instruct the jury, sua sponte, that sexual assault was a lesser-included offense of sexual intercourse without consent?

Gunderson first argues that the District Corut erred by not, of its own initiative, instructing the jury that sexual assault is a lesser-included offense of sexual intercourse without consent. Gunderson contends that the failure of the District Corut to so instruct the jury deprived him of the possibility that he would be convicted of sexual assault, a misdemeanor, rather than sexual intercourse without consent, a felony. We review alleged errors in jury instructions in criminal cases to ensure the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. State v. Patton (1996), [280 Mont. 278], 930 P.2d 635 (citing State v. Brandon (1994), 264 Mont. 231, 237, 870 P.2d 734, 737; State v. Lundblade (1981), 191 Mont. 526, 529-30, 625 P.2d 545, 548).

This Court has previously reviewed and rejected the proposition that a trial court should be required to instruct the jury regarding lesser-included offenses even if the defendant does not request such an instruction. See State v. Sheppard (1992), 253 Mont. 118, 832 P.2d 370 (Sheppard I). In Sheppard I, we held:

Montana recognizes that, upon request, a defendant is entitled to an instruction about a lesser-included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater. However, the rule in Montana and the overwhelming majority of states is that if a request for such an instruction is not made, the appellate court will not overturn the conviction absent plain error.

832 P.2d at 373 (emphasis added; citations omitted). In articulating the rationale for this rule, this Court stated that “under our adversarial system of justice, the prosecution and defense must have the option of foregoing a lesser charge instruction for strategic reasons. Lawyers, not judges, should try cases.” Sheppard 1,832 P.2d at 373. We also noted that “mandatory sua sponte jury instruction on lesser offenses is inconsistent with Montana law and our public policy of allowing trial counsel to conduct the case according to his or her own strategy ...” Sheppard I, 832 P.2d at 373. Our holding in Sheppard I was reviewed and affirmed in State v. Sheppard (1995), 270 Mont. 122, 890 P.2d 754 (Sheppard II) and State v. Leyba (1996), 276 Mont. 45, 915 P.2d 794.

In the case at bar, Gunderson concedes that his counsel did not request an instruction on sexual assault. To the contrary, counsel specifically declined such an instruction when the District Court sua sponte offered it, stating “at this point it is a conscious decision to not ask for an instruction on the lesser included [offense].” Counsel therefore made a calculated decision to forego an instruction on sexual assault, presumably because it was incompatible with his trial strategy. As we have said before “we will not second guess counsel’s tactical decisions.” Sheppard II, 890 P.2d at 757. Nor will we hold the District Court in error for not forcing counsel to depart from his trial strategy by accepting an instruction he or she purposely declined to give. Accordingly, we conclude that the District Court did not err in failing to sua sponte instruct the jury on sexual assault.

In resolving this issue, we do not address whether sexual assault is, as a matter of law, a lesser included offense of sexual intercourse without consent. Such a determination is not necessary to the resolution of this case and, therefore, is beyond the scope of this appeal.

2. Did the District Court err in sentencing Gunderson as a persistent felony offender?

Gunderson next asserts that the District Court exceeded its authority by sentencing him to twenty years on the charge of sexual intercourse without consent and an additional ten years due to his status as a persistent felony offender. District courts have broad discretion in sentencing criminal defendants. We review criminal sentences only to determine whether the district court abused its discretion in sentencing the defendant. State v. Graveley (1996), 275 Mont. 519, 521, 915 P.2d 184, 186. Our review of a sentence is limited to questions of legality, State v. Graves (1995), 272 Mont. 451, 463, 901 P.2d 549, 557, and a sentence is not illegal when it is within the parameters provided by statute. State v. Henry (1995), 271 Mont. 491, 497-98. 898 P.2d 1195, 1199.

Citing State v. Fitzpatrick (1991), 247 Mont. 206, 805 P.2d 584, Gunderson contends that a sentence as a persistent felony offender replaces the maximum sentence for the underlying offense and cannot be imposed in addition to a separate sentence for the underlying offense. Gunderson misreads Fitzpatrick. In Fitzpatrick, we held only that a persistent felony offender’s sentence must fall within the parameters mandated by § 46-18-502, MCA, and cannot exceed 100 years, the maximum penalty prescribed by law. Section 46-18-502(1), MCA; see also State v. Ford (1996), 278 Mont. 353, 926 P.2d 245. Gunderson’s sentence of thirty years falls well within these statutory parameters, and the District Court did not abuse its discretion in sentencing him.

3. Did the District Court abuse its discretion in sentencing Gunderson as a dangerous offender?

Gunderson lastly argues that the District Court lacked the authority to sentence him as a dangerous offender, because the statute which authorized such a designation (§ 46-18-404, MCA (1993)) was repealed prior to his sentencing. In light of the statute’s repeal and this Court’s decision in State v. Wilson (1996), [279 Mont. 34], 926 P.2d 712, the State concedes that Gunderson’s designation as a dangerous offender was erroneous. Accordingly, we hereby order stricken from the judgment the dangerous offender designation. In all other respects, the order of the District Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, LEAPHART and REGNIER concur.