author: JUSTICE REGNIER

text:
    LISA B. KAUFFMAN, Esq., Relator, v. MONTANA TWENTY-FIRST JUDICIAL DISTRICT COURT, RAVALLI COUNTY, THE HONORABLE JEFFREY LANGTON, Presiding Judge, Respondent.
    No. 98-277.
    Submitted on Briefs June 16, 1998.
    Decided September 29, 1998.
    1998 MT 239.
    55 St.Rep. 1001.
    291 Mont. 122.
    966 P.2d 715.

      For Relator: Lisa B. Kauffman, Attorney at Law, Missoula.
    For Respondent: The Honorable Jeffrey Langton, District Court Judge, Hamilton.
   JUSTICE REGNIER

delivered the opinion of the Court.

¶1 On April 15,1998, District Court Judge Jeffery H. Langton of the Twenty-First Judicial District in Ravalli County, found petitioner, Lisa B. Kauffman, Esq., in contempt of court. Judge Langton ordered Kauffman to serve twenty-four hours in the Ravalli County Jail and fined her the sum of $500.

¶2 Kauffman immediately filed a petition for writ of certiorari with this Court, and on April 16,1998, we stayed the execution of the contempt order and set forth a briefing schedule. After briefs were submitted, on May 14,1998, this Court dismissed the petition on procedural grounds without prejudice. Kauffman then refiled her petition and, after another procedural challenge by Judge Langton, we decided to address the petition on the merits.

¶3 We now consider Kauffman’s application for writ of certiorari and, at the request of Judge Langton, consider his response filed in Case No. 98-200 as his response in this action. We grant the petition for a writ of certiorari and reverse.

¶4 The issues on appeal are:

¶5 1. Did the District Court have jurisdiction to issue the contempt order?

¶6 2.1s there substantial evidence to support the contempt order?

¶7 Because our resolution of Issue One is dispositive, we decline to address Issue Two.

FACTUAL BACKGROUND

¶8 In October 1997, Lisa B. Kauffman, Esq., applied for a scholarship to attend a legal seminar to be held in Puerto Rico commencing on February 4,1998. The next month, on November 14,1997, Judge Langton appointed Kauffman to represent a mother in a proceeding to terminate the mother’s parental rights. Shortly thereafter Judge Langton set the matter for hearing on February 9 and 10,1998.

¶9 Kauffman made contact with the father’s counsel in December 1997, seeking information about the whereabouts of the mother. Kauffman then left for a three-week vacation to Chicago, returning on January 6,1998. Upon her return, she learned that she had been granted the scholarship for the seminar in Puerto Rico. Kauffman then focused on a criminal jury trial scheduled for January 12,1998. ¶10 Upon completion of the jury trial, Kauffman began to address her obligations in the court appointment. On January 27, 1998, Kauffman spoke with attorney Michael Hayes who was representing the State in the termination proceeding. He gave Kauffman information he had regarding the mother at that time. Also on January 27, 1998, Kauffman called Bobbi Baker, the social worker involved, and Patricia Sanders, the guardian ad litem. Baker provided the information she had regarding the mother and, later that day, contacted Kauffman and gave her the mother’s new telephone number.

¶11 Kauffman’s initial contact with her client occurred on January 29,1998. Also on that date Kauffman filed a motion to continue. The motion recited that up until that date Kauffman had attempted, without success, to locate her client. The District Court denied the motion.

¶12 Kauffman next contacted attorney Kirk Krutilla to substitute for her so she could attend the Puerto Rico conference. Krutilla obtained Kauffman’s file on the matter on February 2,1998. Kauffman departed for Puerto Rico on February 2, 1998, without notice to the court or formally seeking a substitution of counsel. The termination proceeding commenced as scheduled on February 9, 1998, with Krutilla representing the mother.

¶13 Apparently disturbed by Kauffman’s actions in connection with the proceeding, on March 27,1998, by certified letter, Judge Langton directed Kauffman to appear pursuant to a contempt citation for hearing. Judge Langton also directed other parties to the proceeding to file affidavits concerning Kauffman’s representation of the mother.

¶14 Judge Langton held a contempt hearing and determined that Kauffman’s version of the events conflicted with that of other witnesses who provided testimony. Specifically, Judge Langton found that Kauffman’s testimony that she had advised the mother about the substitution of counsel on January 29,1998, and that she had already contacted Krutilla about taking over the case, conflicted with Krutilla’s billing statement and testimony at the hearing. Judge Langton further noted that Kauffman’s testimony conflicted with documents which she filed regarding the dates when she received a contact number for her client, when she first spoke with her client, and when she filed her motion to continue. Judge Langton also noted that a significant time elapsed between the date she affirmatively knew of her scheduling conflict and the date she filed her motion to continue.

¶ 15 Judge Langton found that Kauffman's actions were in direct violation of his order in which he appointed her to represent the mother in the termination proceedings. Judge Langton further found that Kauffman failed to display reasonable diligence and promptness in her representation of her client in violation of Rules 1.3 and 3.2 of the Rules of Professional Conduct, and made misleading statements to the District Court in violation of Rule 3.3. Finally, Judge Langton found that Kauffman engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(c) and (d). As a result of these infractions, Judge Langton determined that Kauffman was in direct contempt of court as provided by § 3-1-501, MCA.

DISCUSSION

¶16 Our established standard for review of contempt orders, pursuant to a writ of certiorari, is first to determine whether the court which found contempt acted within its jurisdiction and, second, to determine whether there is evidence to support the finding of contempt. See Matter of Graveley (1980), 188 Mont. 546, 555, 614 P.2d 1033, 1038-39.

¶17 Kauffman first argues that Judge Langton did not have jurisdiction to issue the contempt order. Kauffman correctly points out that if the court’s purpose is to punish the contemnor for a specific act done and to vindicate the authority of the court, the contempt is criminal. See Gompers v. Buck’s Stove & Range Co. (1911), 221 U.S. 418, 441, 31 S. Ct. 492, 498, 55 L. Ed. 797, 806. This is in contrast to a sanction which attempts to force the violator’s compliance with a court order, which is civil contempt. It is the ability to end the imprisonment that is the distinguishing factor and why it is often said that in a civil contempt case one carries the keys to the jailhouse in his own pocket. See Gompers, 221 U.S. at 442, 31 S. Ct. at 498, 55 L. Ed. at 806. Kauffman maintains that since her conduct can only be characterized as criminal contempt, Judge Langton was without jurisdiction to sanction her to jail without being prosecuted under Montana’s criminal contempt statute, § 45-7-309, MCA.

¶ 18 Judge Langton responds that he was within his jurisdiction to issue the order without proceeding under the criminal contempt statute. He points out that summary punishment of direct contempt is a traditional and essential power of the court and is provided for by statute. Sections 3-1-511 and -519, MCA. Judge Langton provided Kauffman an opportunity for allocution which is required in direct contempt proceedings. See Malee v. District Court (1996), 275 Mont. 72, 911 P.2d 831.

¶19 Kauffman raises another jurisdictional argument. She contends that Judge Langton was without jurisdiction to preside over charges which can only be described as indirect contempt. Direct contempt is an open insult committed in the presence of the court, whereas an indirect contempt is an act done not in the presence of the court, but at a distance that tends to belittle or degrade the court. See Malee, 275 Mont, at 75-76, 911 P.2d at 832-33. The distinction is critical to a determination of the proper procedures which the court must follow.

¶20 Kauffman argues that her conduct, which Judge Langton deemed to be contemptuous, was indirect or constructive. She argues that because she never appeared before Judge Langton until her order to show cause hearing, the matter is an indirect or constructive contempt. Kauffman farther argues that for indirect contempt, the proper procedures which must be followed are spelled out in § 3-1-512, MCA, and that Judge Langton acted without authority when he required her to appear before him by certified letter. Therefore, she urges that the matter be dismissed for lack of jurisdiction. ¶21 Judge Langton states that the contempt in this particular case was direct. Section 3-1-511, MCA. According to Judge Langton, the direct contempt included oral statements made to the court, and written documents filed with the court, both of which the Judge personally observed. He argues his authority for the direct contempt is found in § 3-l-501(c), (d), and (e), MCA. He states that as District Judge he may summarily punish for direct contempt and, in this case, he was within his jurisdiction to do so.

¶22 Finally, Kauffman argues that should we address the merits of the contempt order, there was insufficient evidence to support it. Kauffman maintains that under § 3-1-501, MCA, Judge Langton apparently proceeded under subsection (c) or (e). She argues that there was a one-sentence minute entry which appointed her to represent her client in this case, and there were no orders compelling her personal appearance at any hearings. She further asserts that she secured alternative counsel for her appointed client in the event that her motion to continue was denied. She also points out that under § 37-61-403, MCA, an attorney in an action may be changed at any time by filing a substitution with the client’s consent in the minutes with the clerk. She notes that her client had no objection to the substitution.

¶23 Judge Langton responds that Kauffman’s affidavit filed on February 9,1998, is irreconcilable in several regards to other statements made by Kauffman, including information she provided in her statement of fees, letters to the District Court, and her motion for continuance. He argues that this is further exacerbated by her oral testimony given at the contempt hearing. Judge Langton points out that her affidavit represents that she had diligently tried to locate the client; however, at the hearing it was established, through the witnesses and her own testimony, that she did not attempt to locate her client until two weeks before the scheduled hearing. In summary, Judge Langton argues that this was clearly direct contempt and that he sentenced her within his jurisdiction and authority as allowed by the statutes.

¶24 We conclude that Kauffman’s conduct may have satisfied the elements of § 3-1-501, MCA, and, therefore, that it is within Judge Langton’s jurisdiction, pursuant to § 3-1-519, MCA, to issue the contempt order in question. However, as we more fully explain below, certain contempt proceedings pursuant to § 3-1-501, MCA, must provide for more due process protection for the contemnor than is provided in a summary contempt proceeding. Summary contempt proceedings must only be used in instances in which the contemptuous conduct requires immediate action in order to vindicate the authority of the court.

¶25 As we stated above, the distinction between direct and constructive contempt is critical when determining the due process afforded to the contemnor. Actually, the alleged conduct in question in

this proceeding is probably best described as a mixture of both direct and indirect. However, Judge Langton was certainly justified, based on our case law, to characterize the alleged conduct in this instance as direct contempt. Direct contempt includes acts or statements made in open court or within the purview of the presiding judge. See Malee, 275 Mont. at 76, 911 P.2d at 834. We have previously expanded the definition of direct contempt to include the filing of pleadings placed before the court. See Malee, 275 Mont, at 76, 911 P.2d at 834. In the case before him, Judge Langton based his contempt order on written documents placed with the court, as well as oral testimony at the contempt hearing.

¶26 Regardless of how we classify the conduct at issue, this Court has always been vigilant to insure that due process is properly accorded to the person charged. We have held that in constructive or indirect contempt proceedings, the following due process requirements must be followed:

That one charged with contempt of court be advised of the charges against him, have reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.

Malee, 275 Mont. at 76, 911 P.2d at 833 (citing In re Oliver (1948), 333 U.S. 257, 275, 68 S. Ct. 499, 508, 92 L. Ed. 682, 695). Additionally, we have held that a court must follow the affidavit or statement of facts procedure set forth in § 3-1-512, MCA.

¶27 In cases of direct contempt, on the other hand, we have not afforded full due process. We have held that although a contemnor is not entitled to the full due process of notice of charges, opportunity to be heard, and an opportunity to present his or her case in front of an unbiased tribunal, he or she is entitled to a right of allocution or an opportunity to be heard. See Malee, 275 Mont, at 76, 911 P.2d at 833. Pursuant to § 3-1-511, MCA, direct contempt may be summarily punished; however, according to our reasoning in Malee, in all summary contempt proceedings “the contemnor must be granted an opportunity to explain or excuse himself. Such opportunity allows the individual to potentially purge himself or show no contempt was intended.” Malee, 275 Mont. at 78, 911 P.2d at 834 (citing State ex rel. Smith v. District Court (1984), 210 Mont. 344, 347, 677 P.2d 589, 591). Therefore, we held that in summary contempt proceedings the contemnor does not have a right to a “full-blown” trial of his or her contempt charges, but does have a right to notice and at least a brief opportunity to defend or explain his or her actions. Malee, 275 Mont. at 78-80, 911 P.2d at 835. This we have described as a right of allocution. See Malee, 275 Mont. at 78-79, 911 P.2d at 835.

¶28 Because this Court has expanded the definition of direct contempt from being only that misconduct which occurs in open court, to language found in pleadings, we have created a category of direct contempt that does not necessarily require urgent and immediate action in order to preserve and restore order, dignity, and the authority of the court. See Malee, 275 Mont. 72, 911 P.2d 831. Urgency considerations generally do not exist in this species of direct contempt. The need to sacrifice due process concerns for the practical need to maintain an orderly court is not present. Therefore, although we affirm this expansion of our definition of direct contempt, we believe it is necessary to clarify the situations in which direct contempt may give rise to summary contempt proceedings, and the situations in which direct contempt must be addressed by proceedings that respect the full due process rights of the accused.

¶29 In Pounders v. Watson (1997), 521 U.S. 982, 117 S. Ct. 2359, 2361, 138 L. Ed. 2d 976, 982, the United States Supreme Court addressed the summary contempt exception to the normal due process requirements of a hearing, counsel, and the opportunity to call witnesses. It pointed out that summary contempt “includes only charges of misconduct, in open court, in the presence of the judge, which disturbs the court’s business, where all of the elements of the misconduct are under the eye of the court, are actually observed by the court, and where immediate punishment is essential to prevent ‘demoralization of the court’s authority’ before the public.” Pounders, 521 U.S. 982, 117 S. Ct. at 2361, 138 L. Ed. 2d at 982 (quoting In re Oliver (1948), 333 U.S. 257, 275, 68 S. Ct. 499, 509, 92 L. Ed. 682, 695) (emphasis added). The Supreme Court has stressed the importance of confining summary contempt orders to only that misconduct which requires immediate action to protect the judicial institution itself. See Harris v. United States (1965), 382 U.S. 162, 167, 86 S. Ct. 352, 356, 15 L. Ed. 2d 240, 243-44. This usually occurs in proceedings in the courtroom during which the “affront to the court’s dignity is more widely observed, justifying summary vindication.” 521 U.S. 982, Pounders, 117 S. Ct. at 2362, 138 L. Ed. 2d at 982. A limitation of summary contempt proceedings to instances in which the misconduct threatens the court’s immediate ability to conduct its proceedings is in line with the policy consideration that contempt power is subject to abuse, and “only ‘the least possible power adequate to the end proposed’ should be used in contempt cases.” Young v. United States ex rel. Vuitton et Fils S.A. (1987), 481 U.S. 787, 801, 107 S. Ct. 2124, 2134, 95 L. Ed. 2d 740, 754. ¶ 30 The importance of the due process limitation on the authority of a court to issue a summary contempt order was aptly recognized by Justice Frankfurter in his dissenting opinion in Sacher v. United States (1952), 343 U.S. 1, 72 S. Ct. 451, 96 L. Ed. 717:

Summary punishment of contempt is concededly an exception to the requirements of Due Process. Necessity dictates the departure. Necessity must bound its limits. In this case the course of events to the very end of the trial shows that summary measures were not necessary to enable the trial to go on. Departure from established judicial practice, which makes it unfitting for a judge who is personally involved to sit in his own case, was therefore unwarranted. ...
This, then, was not a situation in which, even though a judge was personally involved as the target of the contemptuous conduct, peremptory action against contemnor was necessary to maintain order and to salvage the proceedings. Where such action is necessary for the decorous continuance of a pending trial, disposition by another judge of a charge of contempt is impracticable. Interruption for a hearing before a separate judge would disrupt the trial and thus achieve the illicit purpose of a contemnor.

Sacher, 343 U.S. at 36-37, 39, 72 S. Ct. at 468, 469-470, 96 L. Ed. at 737 (Frankfurter, J., dissenting). We recognized these limits to a court’s summary contempt power in Lilenthal v. District Court (1982), 200 Mont. 236, 650 P.2d 779, in which we held:

Unless the act constituting contempt occurs in open court where immediate punishment is necessary to prevent demoralization of the court’s authority, due process requires:
“... that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.” In Re Green (1962), 359 [369] U.S. 689, 691-92, 82 S.Ct. 1114, 1116, 8 L.Ed.2d 198, 200; Re Oliver (1948), 333 U.S. 257, 275, 68 S.Ct. 499, 508, 92 L.Ed. 682, 695.

Lilenthal, 200 Mont. at 242, 650 P.2d at 782 (emphasis added).

¶31 With these considerations in mind, we conclude that regardless of the type of contempt committed, direct or indirect, a court’s primary consideration before subjecting a contemnor to summary contempt proceedings, must be whether immediate corrective steps are necessary to restore order, maintain dignity and authority of the court, and to prevent delay. Otherwise, a contemnor is entitled to the full due process hearing traditionally associated with indirect contempt, a finding, in instances in which criminal punishment is a consequence, that the evidence establishes the contemnor’s guilt beyond a reasonable doubt, and a hearing in front of an unbiased court other than that in which the misconduct occurred. See In re Murchison (1955), 349 U.S. 133, 136-39, 755 S. Ct. 623, 625-27, 99 L. Ed. 942, 946-48; State ex rel. Tague v. District Court et al. (1935), 100 Mont. 383, 388, 47 P.2d 649, 651.

¶32 Accordingly, we conclude that a district court may subject a contemnor to summary contempt proceedings in those circumstances in which the misconduct threatens the court’s immediate ability to conduct its proceedings and instant action is necessary. We further recognize that the trial judge must and does have the inherent authority and power to address and summarily punish such conduct. Certainly our decision in this case should not be viewed to diminish this traditional authority. Pursuant to our decision in Malee, the contemnor in a summary contempt proceeding maintains his or her right of allocution.

¶33 In cases in which it is not necessary for a court to take instant action, however, a contemnor is entitled to full due process. This includes a hearing before a neutral judge, during which the contemnor is advised of the charges against him or her, has a reasonable opportunity to meet them by way of defense or explanation, has the right to be represented by counsel, has a chance to testify and call other witnesses on his behalf, and, in instances in which criminal punishment is a consequence, a finding of guilt beyond a reasonable doubt.

¶34 The facts of this case bring the immediacy requirement of summary contempt into clear focus. Here the underlying hearing at which Kauffman failed to appear had already transpired with substitute counsel. Likewise, the District Court did not determine that Kauffman had filed the alleged misleading documents until after the hearing. That being the case, there was no urgency or immediacy to the question of whether Kauffman’s conduct was contemptuous. The matter could be handled, as it was, in a subsequent and separate hearing involving the issue of contempt.

¶35 We conclude that because Kauffman’s conduct in this case allegedly constitutes contempt that did not necessitate immediate action, a summary contempt proceeding by the same judge was not necessary and violated Kauffman’s due process rights. We remand this case for a hearing in front of a different judge in a manner consistent with this opinion.

¶36 The judgment of the District Court is reversed.

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


source: Caselaw Access Project

license: Public Domain

text:
    DALE EUGENE BUTLER, Petitioner and Respondent, v. GINA KAY COLWELL and CYNTHIA RAE BUCK, Respondents and Appellants.
    No. 98-169.
    Submitted on Briefs July 29, 1998.
    Rehearing Denied November 24, 1998.
    Decided October 15, 1998.
    1998 MT 241.
    55 St.Rep. 1007.
    291 Mont. 134.
    967 P.2d 779.

      For Appellants: Donald E. “Gene” Hedman; Hedman, Hileman & Lacosta; Whitefish.
    For Respondent: Marshall Murray, Attorney at Law, Kalispell; Lewis K. Smith, III, Attorney at Law, Helena; Scott Wurster, Attorney at Law, Kalispell (for Respondent Butler); Vivian Hammill, Attorney at Law, Department of Administration, Helena (for Teachers’ Retirement System).
   JUSTICE REGNIER

delivered the opinion of the Court.

¶1 Dale Eugene Butler brought this action before Judge Ted O. Lympus in the District Court for the Eleventh Judicial District in Flathead County to set aside the default judgment entered by Judge Katherine R. Curtis, also of the District Court for the Eleventh Judicial District, in an action brought against him by Gina Kay Colwell and Cynthia Rae Buck for conversion of trust funds. Although Judge Curtis denied Butler’s motion to set aside the default judgment, Butler did not appeal. Instead, Butler instituted this independent action before Judge Lympus pursuant to Rule 60(b)(4) and (6), M.R.Civ.P., to vacate the default judgment and to allow the intervention of the Montana Teachers’ Retirement System. Judge Lympus granted Butler’s petition to vacate the default judgment and his motion to allow the Montana Teachers’ Retirement System to intervene. Colwell and Buck appeal from Judge Lympus’s decision. We reverse the order and judgment of the District Court and reinstate the default judgment.

¶2 We determine the following issues to be dispositive on appeal:

¶3 1. Did the District Court abuse its discretion when it set aside the default judgment in the underlying action when no appeal was taken from the default judgment?

¶4 2. Did the District Court abuse its discretion when it allowed the Montana Teachers’ Retirement System to intervene in the independent Rule 60(b)(4) and (6), M.R.Civ.R, action?

¶5 Because of the manner in which we resolve Issue 1, there is no need to address the following additional issues raised by appellant on appeal.

¶6 Did the District Court abuse its discretion when it found that Colwell and Buck had a duty to give a three-day notice of intent to enter default judgment in the underlying action pursuant to Rule 55(b)(2), M.R.Civ.R?

¶7 Did the District Court abuse its discretion when it considered the merits of the underlying cause in its independent Rule 60(b)(4) and (6), M.R.Civ.R, action when no appeal was taken from the dismissal of the underlying action?

FACTUAL BACKGROUND

¶8 In September 1986, Rod Butler was diagnosed with terminal cancer. By the end of that year he and his wife had divorced. In February 1987, their marital property was divided, and on June 17,1987, prior to the final property disposition, Rod died. See In re Marriage of Butler (1988), 232 Mont. 418, 420, 756 P.2d 1159, 1160.

¶9 Rod had been a member of the Montana Teachers’ Retirement System and had applied for retirement benefits to be paid to his estate shortly after his death. Rod’s wife received one-half of the retirement benefits which she has received to this date. The other half, approximately $524 per month, was distributed to Dale Butler, Rod’s brother, in accordance with the beneficiary designation on file with the Montana Teachers’ Retirement System. See In re Marriage of Butler (1990), 243 Mont. 521, 795 P.2d 467. Rod’s daughters, appellants Gina Colwell and Cynthia Buck, maintain that Dale Buck was to hold these benefits in trust for them according to the wishes of their father. Colwell and Buck maintain that the trust provisions created by their father in his will required that when they reached the age of thirty the trust was to terminate and the accumulated bi-monthly payments would be paid directly to them.

¶10 When Colwell and Buck reached their thirtieth birthdays, Dale Butler refused to pay them the accumulated retirement benefits. Thereafter, Colwell and Buck filed an action against Butler to recover the trust funds and had him personally served in California on August 24, 1995. Butler did not answer, appear, or make any motions with regard to the complaint. On March 22,1996, seven months later, Butler’s default was entered and, two months later, on May 15,1996, Judge Curtis of the Eleventh Judicial District Court in Flathead County entered the default judgment.

¶11 Butler filed a motion to set aside the default judgment which Colwell and Buck opposed. Judge Curtis failed to rule on Butler’s motion within sixty days and the motion was, therefore, deemed denied. Butler did not appeal that ruling. Instead, after the time for appeal had expired, Butler brought an independent action, pursuant to Rule 60(b)(4) and (6), M.R.Civ.R, in front of Judge Lympus of the Eleventh Judicial District Court in Flathead County to set aside Judge Curtis’s default judgment on the basis that no notice of intent to take default or default judgment had been given to Butler prior to its entry. Judge Lympus found that Colwell and Buck had a duty, pursuant to Rule 55(b)(2), M.R.Civ.P., to provide a three-day notice to Butler of their intent to take a default judgment against him and, therefore, set aside Judge Curtis’s default judgment. Judge Lympus further allowed, in accordance with Butler’s request, the intervention of the Montana Teachers’ Retirement System.

¶12 Colwell and Buck appeal the District Court’s decision to set aside Judge Curtis’s default judgment, and its decision to allow the Montana Teachers’ Retirement System to intervene.

STANDARD OF REVIEW

¶13 The standard of review of discretionary trial court rulings is abuse of discretion. See May v. First Nat’l Pawn Brokers, Ltd. (1995), 270 Mont. 132, 134, 890 P.2d 386, 388. In Montana Rail Link v. Byard (1993), 260 Mont. 331, 337, 860 P.2d 121, 125, we held that “[t]he standard of abuse of discretion is applied to discretionary rulings, such as trial administration issues, post-trial motions and similar rulings.” (Citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603).

ISSUE 1

¶14 Did the District Court abuse its discretion when it set aside the default judgment in the underlying action when no appeal was taken from the default judgment?

¶15 Butler filed his motion to set aside Judge Curtis’s default judgment on May 23,1996. Judge Curtis failed to rule on his motion and, by operation of Rule 60(c), M.R.Civ.R, the motion was denied sixty days later on July 23, 1996. Rule 60(c), M.R.Civ.R, provides:

Motions provided by subdivision (b) of this rule shall be determined within the times provided by Rule 59 in the case of motions for new trials and amendment of judgment and if the court shall fail to rule on the motion within the 60 day period, the motion shall be deemed denied. ,

Likewise, Rule 59(d), M.R.Civ.R, provides:

If the court shall fail to rule on a motion for new trial within 60 days from the time the motion is filed, the motion shall, at the expiration of said period, be deemed denied.

¶16 Once the sixty-day time for determination of the motion had expired, Butler had thirty days to file his notice of appeal, pursuant to Rule 5(a)(1), M.R.App.P. The time limits provided for in these rules are mandatory and are strictly enforced. See Johnson v. Eagles Lodge Aerie 3913 (1997), 284 Mont. 474, 478, 945 P.2d 62, 64. Butler did not appeal Judge Curtis’s refusal to set aside the default judgment. Instead, Butler waited for the appeal time to expire then collaterally attacked the default judgment, and Judge Curtis’s failure to set it aside, by instituting an independent action pursuant to Rule 60(b)(4), M.R.Civ.R, and its residual clause, subsection (6). In his independent action, Butler maintained that Judge Curtis improperly entered the default judgment against him because he had agreed to an informal extension of time with Colwell and Buck. Butler further alleged that the default judgment was improper because Colwell and Buck failed to give him three-days’ notice prior to its entry pursuant to Rule 55(b)(2), M.R.Civ.R

¶17 In our decision in Glickman v. Whitefish Credit Union Association, 1998 MT 8, ¶ 20, [287 Mont. 161, ¶20], 951 P.2d 1388, ¶ 20, we held that in cases in which a party has had the opportunity to litigate the action previously, the doctrine of res judicata prevents the party from re-litigating the matter. See also Loney v. Milodragovich, Dale & Dye, P.C. (1995), 273 Mont. 506, 510, 905 P.2d 158, 161. Res judicata is based on the policy that there must be some end to litigation. See Loney, 273 Mont. at 510, 905 P.2d at 161. As we explained in Loney, there are four criteria that must be met in order to satisfy a claim of res judicata'.

[T]he parties or their privies are the same; the subject matter of the claim is the same; the issues are the same and relate to the same subject matter; and the capacities of the persons are the same in reference to the subject matter and the issues.

Loney, 273 Mont, at 510, 905 P.2d at 161. With regard to the allegations Buck raises in his independent action, and those he could have raised in an appeal from the underlying action, all four of the res judicata criteria are satisfied. The parties are the same in both actions; the subject matter is the same in both the underlying action and this independent action; and the capacity of the parties involved has not changed in relation to the subject matter and the issues in the litigation. Finally, as we stated in Loney, the issues raised in the independent action are issues that could have been litigated in the prior proceeding. Had he given timely notice of appeal from Judge Curtis’s failure to set aside the default judgment, Buck could have raised his contention of the alleged existence of an informal extension agreement, as well as the notice requirement prior to entry of the default judgment. The fact that Butler did not answer Colwell and Buck’s complaint and, as a result, that a default judgment was entered against him, does not negate the fact that he had an opportunity to litigate the issue. See Loney, 273 Mont, at 510-11, 905 P.2d at 161.

¶18 Accordingly, we conclude that the doctrine of res judicata bars Butler from relitigating this action by means of an independent Rule 60(b)(4) and (6), M.R.Civ.P., action. Butler was free to appeal from the deemed denial of his motion to set aside the judgment and raise the arguments he has raised in this independent action, but failed to do so. Because Butler failed to exhaust the judicial remedies available to him in the underlying action, the Rule 60(b)(4) and (6), M.R.Civ.P., independent equitable action must fail. Butler should have appealed Judge Curtis’s default judgment if he wanted to preserve the merits of his case.

ISSUE 2

¶19 Did the District Court abuse its discretion when it allowed the Montana Teachers’ Retirement System to intervene in the independent Rule 60(b)(4) and (6), M.R.Civ.P, action?

¶20 The only aspect of the District Court’s May 15,1996, default judgment which deals directly with the Montana Teachers’ Retirement System is the following order: “The Teachers’ Retirement System is to be provided a certified copy of this Order for their future action in remitting said payments directly to Plaintiffs.” Colwell and Buck contend, and we agree, that as a result of this statement in the default judgment the Montana Teachers’ Retirement System is not being asked or specifically ordered to do anything different than what they have been doing in the past. Section 19-20-706(2), MCA, exempts the Montana Teachers’ Retirement System from service of legal process so this judgment, in any event, is void as it relates to the Montana Teachers’ Retirement System.

¶21 Because the Montana Teachers’ Retirement System is not affected by the judgment against Dale Butler, we agree with the argument of Colwell and Buck that the judgment against Butler should not be complicated in any respect by the contentions of the Montana Teachers’ Retirement System. In the event that Colwell and Buck seek to enforce the judgment by execution on the Montana Teachers’ Retirement System, they must do so only with an appropriate court order and notice to all necessary parties. Colwell and Buck admit that they are aware of § 19-20-706(2), MCA, and agree that any satisfaction of the judgment out of the Montana Teachers’ Retirement System must be done in a totally separate proceeding.

¶22 We therefore conclude that the District Court erred when it allowed the Montana Teachers’ Retirement System to intervene in this action. The default judgment and the subsequent setting aside of the default judgment have no direct effect on the Montana Teachers’ Retirement System. The Montana Teachers’ Retirement System will only be involved in this dispute if an action is brought which clearly names it as a party.

¶23 The District Court erred when it reversed Judge Curtis’s refusal to set aside the default judgment and erred when it allowed the Montana Teachers’ Retirement System to intervene in this case. Accordingly, the judgment of the District Court is reversed and the default judgment is reinstated.

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


author: JUSTICE LEAPHART

text:
    BARBARA A. MONACO, in her official capacity as Chief Juvenile Probation Officer for the Montana Twentieth Judicial District Court, Petitioner and Respondent, v. LAKE COUNTY, a Political Subdivision of the State of Montana, acting by and through its County Commissioners, BARRY BAKER, MIKE HUTCHIN, and DAVE STIPE, in their official capacities; and SANDERS COUNTY, a Political Subdivision of the State of Montana acting by and through its County Commissioners, CAROL BROOKER, SHERRIE HOOTEN and STEVE WHEAT, in their official capacities, Respondents and Appellants.
    No. 97-660.
    Submitted July 14, 1998.
    Decided October 15, 1998.
    1998 MT 243.
    55 St.Rep. 1011.
    291 Mont. 141.
    967 P.2d 367.

      For Appellants: James H. Goetz (argued) and Richard J. Dolan; Goetz, Madden & Dunn, Bozeman.
    For Respondent: Herman A. Watson III, Anne H. Watson (argued); Watson & Watson, Bozeman; David M. McLean; Knight, Dahood, McLean & Everett, Anaconda.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶ 1 Respondents appeal from the Twentieth Judicial District Court’s entry of a Writ of Mandamus.

¶2 We reverse.

¶3 In determining whether the District Court erred, we restate the issue:

¶4 Whether the District Court erred in holding that Judge C. B. McNeil had inherent power to override the statutory ceiling on salaries and set a higher salary for Barbara Monaco, the Chief Probation Officer of the Twentieth Judicial District.

Standard of Review

¶5 The standard of review for a district court’s findings of fact is whether they are clearly erroneous. Trad Industries, Ltd. v. Brogan (1991), 246 Mont. 439, 447, 805 P.2d 54, 59. The grant of a Writ of Mandate will be “sustained on appeal unless there is a showing the district court abused its discretion.” State ex rel. Browman v. Wood (1975), 168 Mont. 341, 348, 543 P.2d 184, 188.

Factual and Procedural Background

¶6 In 1986, District Court Judge C. B. McNeil appointed Petitioner, Barbara A. Monaco (Monaco), as a Deputy Juvenile Probation Officer for the Twentieth Judicial District, which includes Lake and Sanders Counties. In 1989, Judge McNeil promoted Monaco to Chief Juvenile Probation Officer. Her starting annual salary was $25,147.20. The County Commissioners for Lake and Sanders Counties (Lake) approved subsequent increases to her salary until she attained a salary of $35,728.51.

¶7 In 1996, Judge McNeil entered an order that set Monaco’s salary at the rate of $17.88 per hour for the 1996-1997 fiscal year. Judge McNeil then amended his order and set Monaco’s salary at $36,721.69. Lake subsequently advised Monaco by memorandum that they had reduced her base salary to $22,000 but that she would receive adjustments for longevity and cost of living. Lake’s calculations were based solely on § 41-5-704, MCA (1995). Section 41-5-704, MCA (1995), provides in pertinent part:

(1) A chief probation officer shall receive for his services a salary specified by the court, depending on the formal training and experience of each respective officer, but such salary may be no lower than $17,000 a year and no higher than $22,000 a year. In addition to such salary, the court shall, on or before July 1 of each year, adjust and fix the salary of the chief probation officer for a cost-of-living increase ....
(2)... each chief probation officer with more than 5 years of service is entitled to receive an annual 1% longevity allowance....

Sections 41-5-704(1) and (2), MCA (1995). Monaco filed a petition for a Writ of Mandamus, requesting that the District Court order Lake to comply with its amended order.

¶8 The Honorable Robert S. Keller, District Court Judge Retired, held a hearing and issued Findings of Fact and Conclusions of Law. Relying on this Court’s decision in State v. Sullivan, the District Court concluded that a court could compel funding only when there was an emergency or when established methods to provide funding had failed. State v. Sullivan (1913), 48 Mont. 320, 137 P. 392. The District Court concluded that Lake refused to pay Monaco’s court ordered salary, that Sanders County had apparently acquiesced in Lake’s reduction of Monaco’s salary, and that established methods of funding had failed. The District Court ruled that Judge McNeil had inherent authority to issue an ex parte order establishing Monaco’s salary. The District Court issued a Writ of Mandamus, affirming Judge McNeil’s order regarding Monaco’s salary.

Discussion

¶9 Whether the District Court erred in holding that Judge C. B. McNeil had inherent power to override the statutory ceiling on salaries and set a higher salary for Barbara Monaco, the Chief Probation Officer of the Twentieth Judicial District.

¶ 10 Lake argues in essence that the District Court made clearly erroneous findings in determining, under this Court’s decision in Sullivan, that Judge McNeil’s exercise of inherent power was justified. Lake first contends that because § 41-5-704, MCA (1995), imposed a clear salary range for probation officers, the District Court could only disregard § 41-5-704, MCA (1995), if it had justification for its exercise of inherent power. Lake argues that there was no true financial emergency and that the established methods of binding had not failed. Therefore, Lake contends, Judge McNeil’s exercise of inherent power was not justified and the District Court’s Writ of Mandamus should be reversed. Lake also argues that by interfering with the Legislature’s authority to set salaries, the District Court’s exercise of inherent power was inconsistent with the separation of powers provided under Montana’s constitution.

¶11 Monaco argues that the District Court correctly found that there was a true financial emergency and that established methods of funding had failed. Monaco also argues, as a matter of equity, that because Lake approved her previous salary increases, it waived any objection to Judge McNeil’s ex parte order establishing her salary.

¶12 This Court considered the doctrine of inherent authority in Sullivan. In Sullivan, the board of commissioners of Lewis and Clark County (the County) gave notice that it would only pay the salary of the district court’s court attendant on days when a jury was in attendance. The court ordered the County to pay the court attendant’s claim for a higher salary, finding that his services were necessary for the “proper and expeditious transaction of the business of this court.” Sullivan, 48 Mont. at 323, 137 P. at 393. The County refused to pay the court attendant’s claim.

¶13 The Court in Sullivan concluded that the idea of inherent power implies that “its use is for occasions not provided for by established methods.” Sullivan, 48 Mont. at 329, 137 P. at 395. The Court held that when such methods fail:

and the court shall determine that by observing them the assistance necessary for the due and effective exercise of its own functions cannot be had, or when an emergency arises which the established methods cannot or do not instantly meet, then and not till then does occasion arise for the exercise of the inherent power.

Sullivan, 48 Mont. at 329, 137 P. at 395. The Court in Sullivan concluded that both the sheriff and the County had the duty to provide the services that the court attendant had performed, and that the district court had not shown that recourse to the sheriff or the County would fail. Sullivan, 48 Mont. at 331, 137 P. at 396. In later decisions, this Court has reaffirmed its holding in Sullivan. See Butte-Silver Bow Local Govern. v. Olsen (1987), 228 Mont. 77, 743 P.2d 564; Clark v. Dussault (1994), 265 Mont. 479, 878 P.2d 239.

¶14 Under Sullivan, we first consider whether there was a true financial emergency. The District Court found that the Youth Court depended on the effectiveness of its Youth Probation operations, that Montana’s juvenile justice system faced a funding crisis, that Youth Probation offices functioned with insufficient staff and facilities, and that Youth Probation offices coped with a surge in the number of juvenile cases.

¶15 We conclude that the District Court’s finding of an emergency was clearly erroneous. The District Court made broad findings about the condition of Montana’s juvenile justice system, but it made no finding that Lake’s reduction of Monaco’s salary created a finanqial emergency that “justified] the imposition of the judge’s salary order.” Butte-Silver Bow, 228 Mont. at 81, 743 P.2d at 566. The District Court did not find that Lake’s reduction of Monaco’s salary had “stoptped] or threatented] to stop the efficient and orderly administration of justice and court business.” Butte-Silver Bow, 228 Mont. at 81, 743 P.2d at 566. Nor did the District Court find that Monaco would leave her position as Chief Probation Officer or that she could not be replaced in the event that Lake refused to comply with Judge McNeil’s order.

¶16 Under Sullivan, we also consider whether the established methods of funding failed. Monaco contends that the only established method of funding was the District Court’s budget request. Monaco argues further that when Judge McNeil met several times with Lake regarding her salary, he exhausted established procedures. Lake contends however that the established method of funding was to petition the Legislature to change the salary cap specified in § 41-5-704, MCA (1995), and asserts that the Montana Juvenile Probation Officers Association succeeded in 1997 in having the statute amended to increase salaries for probation officers.

¶ 17 We conclude that the District Court’s finding that the established methods for funding failed was clearly erroneous. Monaco did not pursue the established method for funding, which was to petition the Legislature to amend § 41-5-704, MCA (1995). Compare Butte-Silver Bow, 228 Mont. at 82, 743 P.2d at 567 (concluding established methods for funding court positions had not failed, because employees had not appealed their reclassification).

¶18 We hold that the District Court erred in ruling that Judge McNeil had inherent authority to establish Monaco’s salary above the statutory maximum, and we further hold that the District Court abused its discretion in issuing the Writ of Mandamus. Because these holdings are dispositive, we do not consider the other issues raised by the parties.

¶19 Reversed.

JUSTICES GRAY, NELSON, REGNIER, TRIEWEILER and HUNT concur.


author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. THOMAS WHITE CLAY, Defendant and Appellant.
    No. 97-655.
    Submitted on Briefs September 17, 1998.
    Decided October 15, 1998.
    1998 MT 244.
    55 St.Rep. 1014.
    291 Mont. 147.
    967 P.2d 370.

      For Appellant: James L. Vogel, Attorney at Law, Hardin.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; C. Mark Fowler, Ass’t Attorney General, Helena; Christine A. Cooke, Big Horn County Attorney; Curtis Bevolden, Deputy County Attorney, Hardin.
   JUSTICE GRAY

delivered the Opinion of the Court.

¶1 Thomas White Clay (White Clay) appeals from the judgment entered by the Thirteenth Judicial District Court, Big Horn County, on a jury verdict finding him guilty of the offense of felony assault. More particularly, White Clay appeals from the District Court’s denial of his alternative posttrial motions for a new trial or for a directed verdict. We affirm.

¶2 The restated issues on appeal are:

¶3 1. Whether the District Court abused its discretion in denying White Clay’s motion for a new trial.

¶4 2. Whether sufficient evidence supports White Clay’s conviction for felony assault.

BACKGROUND

¶5 The State of Montana (State) charged White Clay by information with committing the offense of felony assault. The events which gave rise to the charge began with an argument between White Clay and Wesley Stewart (Stewart), an off-duty Bureau of Indian Affairs police officer, at a bar in Hardin, Montana, after both had been drinking heavily. Later, White Clay and Stewart met again at a convenience store. After White Clay overheard a comment made by Stewart to his friend, Cody Wilhelm (Wilhelm), in the store, he and Wilhelm approached Stewart in his vehicle and ultimately challenged Stewart to fight them. Stewart exited his car and knocked Wilhelm’s hat off his head without hitting Wilhelm. White Clay ran to his car, picked up a tire jack, came up behind Stewart and struck Stewart on the head with the tire jack.

¶6 White Clay asserted the statutory defense of defense of another person. He admitted striking Stewart, but claimed that he did so because he thought Stewart was beating up on Wilhelm and he feared any blow to Wilhelm’s head could be fatal. White Clay’s fear was based on his understanding that, because of a head injury sustained in a car accident, Wilhelm could go into a coma “and maybe never wake up” if hit in the head.

¶7 The case was tried to a jury over two days and the jury retired to deliberate at approximately noon on February 19,1997. The court reconvened in chambers at 4:17 p.m., having received a written message from jury foreperson Dick Salyer (Salyer), on behalf of juror Marie Scott (Scott). The message read:

I feel the defendant is not guilty. I feel that his action was in self-defense. I also feel upset to think that a public servant like Mr. Stewart would provoke things like this to happen.

The District Court and counsel discussed what to do in response to the message, with the court ultimately recommending that the jury be called in and inquiry made of the jury foreperson as to whether there was any possibility of reaching a verdict upon further deliberation. In the event the foreperson felt no verdict could be reached, a mistrial would be in order; in the event that a verdict seemed possible, the court would send the jury back for further deliberations. Both the State and White Clay’s counsel agreed'that the recommended procedure was satisfactory.

¶8 The court reconvened in the courtroom with the jury present at 4:23 p.m. In response to the court’s question regarding whether it was going to be possible to reach a verdict, Salyer stated that he did not honestly know. The District Court then asked whether it might be fruitful to deliberate more before coming to a conclusion or would it be helpful if the jury went back into the jury room and discussed that issue among themselves. Salyer responded that “we probably owe it to the Court to do that.” The court then advised that, if a deadlock were reached, that should be reported but, if the jury felt it would like to deliberate more, it should do so. The court advised the jury to take whatever time it wanted and the jury returned to the jury room at 4:26 p.m.

¶9 The court reconvened again at 4:51 p.m., the bailiff having advised that the jury had reached a verdict. The verdict of guilty was read, the jury was polled at White Clay’s request, and each juror responded that the verdict as read was his or her verdict. The District Court directed the clerk to file the verdict, ordered a presentence report, scheduled the sentencing hearing and continued White Clay’s release on his own recognizance pending the sentencing hearing. The jury was then discharged and the court adjourned at 4:57 p.m.

¶ 10 White Clay subsequently filed a motion for a new trial based on jury-related issues and, in the alternative, a motion for a directed verdict of acquittal on the basis that he had established his defense of defense of another person as a matter of law. The District Court denied the motions and, thereafter, sentenced White Clay. Judgment was entered accordingly and White Clay appeals.

DISCUSSION

¶11 1. Did the District Court abuse its discretion in denying White Clay’s motion for a new trial?

¶12 White Clay’s motion for a new trial raised several jury-related issues: 1) that the verdict rendered was not properly unanimous; and 2) that the District Court’s actions in sending the jury back for further deliberations constituted an outside influence or judicial coercion, thereby rendering the verdict invalid. Both of these issues were based on an affidavit submitted by juror Scott. The District Court denied the motion and White Clay asserts error.

¶13 New trial motions in criminal cases are governed by §46-16-702, MCA, pursuant to which a district court may grant a new trial “if required in the interest of justice.” The grant or denial of a motion for a new trial is within the discretion of the trial court and its decision will be affirmed absent an abuse of that discretion. State v. Brogan (1995), 272 Mont. 156, 160, 900 P.2d 284, 286 (citations omitted). With these standards in mind, we address in turn White Clay’s assertions of error with regard to the District Court’s denial of his motion for a new trial.

¶14 Article II, Section 26 of the Montana Constitution and § 46-16-603(1), MCA, require jury verdicts in criminal actions to be unanimous. Relying entirely on Scott’s affidavit, White Clay argues that the jury verdict is invalid in that it is not a proper unanimous verdict. According to Scott’s affidavit, she concluded White Clay was not guilty, another juror “leaned” toward a not guilty vote, and both she and the other juror “experienced substantial pressure from the rest of the jurors.” Scott also stated that, after being sent back to continue deliberating by the court, she “felt substantially pressured by the circumstances and by the balance of the jury, and agreed to go along with the verdict of guilty.” Finally, Scott stated that she believes, to this day, that White Clay was not guilty but “did go along with the other jurors to reach a unanimous result.”

¶15 It is not uncommon for a party moving for a new trial or mistrial to submit a juror affidavit or statement in support of the motion. See, e.g., State v. Walker (1996), 280 Mont. 346, 354, 930 P.2d 60, 64; State v. Kelman (1996), 276 Mont. 253, 261, 915 P.2d 854, 859; Brogan, 272 Mont. at 160, 900 P.2d at 287. The threshold question in such a circumstance is whether the juror affidavit or statement can be considered for the purpose of impeaching the verdict. See Brogan, 272 Mont, at 160-61, 900 P.2d at 287.

¶16 Upon an inquiry into the validity of a verdict, Rule 606(b), M.R.Evid., prohibits a juror from testifying

as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent or dissent from the verdict... or concerning the juror’s mental processes in connection therewith. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

The rationale underlying the prohibition is to prevent litigants and the public from invading the privacy of the jury room during, or after, the deliberations. Juror testimony to impeach a verdict to which assent has been given is excluded not because it is irrelevant, “but because experience has shown that it is more likely to prevent than to promote the discovery of the truth.” Estate of Spicher v. Miller (1993), 260 Mont. 504, 507, 861 P.2d 183, 185 (citations omitted). Rule 606(b) also contains limited exceptions, however. Under those exceptions, a juror may testify or submit an affidavit concerning

(1) whether extraneous prejudicial information was improperly brought to the jury’s attention; or (2) whether any outside influence was brought to bear upon any juror; or (3) whether any juror has been induced to assent to any general or special verdict, or finding on any question submitted to them by the court, by a resort to the determination of chance.

Rule 606(b), M.R.Evid.

¶17 Applying Rule 606(b) to the affidavit before us, it is clear that Scott’s affidavit concerning feeling pressure from other jurors and the circumstances relates solely to matters which occurred during the jury’s deliberations and to the effect of such matters on Scott’s mind or emotions in influencing her to assent to the verdict. Moreover, nothing in the affidavit relates to extraneous prejudicial information brought to the jury’s attention, outside influences brought to bear, or being induced to assent by resort to the determination of chance. Thus, on the face of it, Rule 606(b), M.R.Evid., prohibits use of the Scott affidavit to impeach the verdict.

¶18 Relying on State v. Herron (1976), 169 Mont. 193, 545 P.2d 678, however, White Clay argues that the District Court erred in failing to consider Scott’s affidavit. His reliance on Herron is misplaced.

¶19 In Herron, the jury was provided with eight verdict forms and instructed that, when it had agreed on a verdict, the appropriate verdict form was to be signed and the jury was to return to the courtroom. After lengthy deliberations, the jury returned to court, announced its failure to reach a verdict, and was discharged. Herron, 169 Mont. at 195, 545 P.2d at 680. Thereafter, contacts between jurors and defense counsel indicated that the jury had voted unanimously to acquit the defendant on the most serious charges and had deadlocked only on the least serious charge. A juror affidavit indicated that the jury had been confused by two instructions and asked the bailiff to convey a question to the judge about whether to sign the first verdict form before proceeding to the next charge. No record existed of any communications between the bailiff and the judge, but the juror affidavit stated that the bailiff told the jury to arrive at only one verdict and sign only one form. Herron, 169 Mont, at 195-96, 545 P.2d at 680. The defendant was tried again on the more serious charges and convicted. Relying on the juror affidavit, he claimed that, having been acquitted in the first trial, he could not again be put in jeopardy. The trial court concluded that the juror affidavit could not be used to impeach the verdict and the defendant appealed. In a one-paragraph discussion, this Court concluded that the affidavit was not being used to impeach the verdict, because no verdict had been returned. Instead, the affidavit was being used to show that, because of “outside influences” on the jury, verdicts of acquittal on three charges were actually rendered but not returned to the court. Under such a circumstance, “[¡Justice compels the use of juror affidavits to prove what actually occurred.” Herron, 169 Mont. at 196-98, 545 P.2d at 680-81.

¶20 The facts of the instant case bear no resemblance to the unique circumstances presented in Herron, where the juror affidavit was submitted to support a double jeopardy claim rather than to impeach a jury verdict. Moreover, Herron was decided before the July 1,1977, effective date of Rule 606(b), M.R.Evid., and White Clay cites to no authority decided pursuant to the Rule which would permit consideration of Scott’s affidavit under one of the exceptions to the Rule 606(b) prohibition on juror testimony or affidavits for purposes of impeaching .the jury verdict in this case. Furthermore, State v. Anderson (1984), 211 Mont. 272, 293, 686 P.2d 193, 204, which holds that similar allegations relating to internal pressures could not serve as the basis of inquiry into the verdict, controls the outcome here. We conclude, therefore, that the District Court did not err in denying White Clay’s motion for a new trial on the basis that Scott’s affidavit could not be considered in order to impeach the verdict.

¶21 White Clay’s second avenue of attack on the District Court’s denial of his motion for a new trial is that the judge’s purported coercion in sending the jury back for further deliberations constituted an “external influence” on the jury. In this regard, we note at the outset that Scott’s affidavit does not allege any actions by the presiding judge that coerced or compelled her to change her position or relinquish her view about White Clay’s innocence. Moreover, White Clay’s argument, which apparently seeks to bring the Scott affidavit within one of the exceptions set forth in Rule 606(b), M.R.Evid., for purposes of attacking the validity of the verdict, finds no support in the Rule or in our case law. No language in the Rule provides for — or would support — a “judge as external influence” exception to the general prohibition contained in Rule 606(b), M.R.Evid., and we have long held that the exceptions stated in Rule 606(b) “are exclusive, and are narrowly construed.” See State v. Maxwell (1982), 198 Mont. 498, 505, 647 P.2d 348, 353 (citation omitted).

¶22 White Clay’s final jury-related assertion of error is that the District Court’s inquiry into the jury’s deliberations and its return of the jury for further deliberations coerced Scott into relinquishing her view of White Clay’s innocence in favor of reaching a unanimous decision. We note again the absence of any specific statements to this effect in Scott’s affidavit.

¶23 White Clay is correct, however, that judicial coercion may constitute a basis for granting a new trial or a mistrial under certain circumstances, as discussed — for example — in State v. George (1986), 219 Mont. 377, 711 P.2d 1379. White Clay urges us to determine that judicial coercion occurred in the present case and reverse the District Court’s denial of his motion. The State contends, in response, that the District Court properly analyzed the coercion argument.

¶24 We decline to address this argument on the merits. Except in limited circumstances not applicable here, a defendant must object to adverse rulings or actions by the trial court in order to preserve the matter for appeal to this Court. Sections 46-20-104 and 46-20-701, MCA. Nor will we put a trial court in error for a ruling or procedure in which a party acquiesced or participated. See Matter of R.B.O. (1996), 277 Mont. 272, 283, 921 P.2d 268, 275; In re Pederson (1993), 261 Mont. 284, 287, 862 P.2d 411, 413. Here, White Clay did not object to the court’s actions in responding to the statement from foreperson Salyer on behalf of juror Scott and sending the jury back for further deliberations. Indeed, his counsel affirmatively agreed to the court’s recommendations regarding how to respond. While White Clay raised the judicial coercion argument in his posttrial motion, we hold that his failure to timely object to the procedure and, indeed, his active acquiescence in that procedure, constituted a waiver of his right to assert error in that regard on appeal.

¶25 We hold that the District Court did not abuse its discretion in denying White Clay’s motion for a new trial.

¶26 2. Does sufficient evidence support White Clay’s conviction for felony assault?

¶27 The jury found White Clay guilty of committing the offense of felony assault, defined in § 45-5-202(2)(a), MCA (1995), as purposely or knowingly causing bodily injury to another with a weapon. In doing so, it rejected his § 45-3-102, MCA, defense of defense of another person.

¶28 As an alternative to his posttrial motion for a new trial, White Clay moved the District Court for a directed verdict of acquittal on the basis that he had proved his defense as a matter of law. The District Court rejected White Clay’s argument and denied his motion; White Clay asserts error.

¶29 A directed verdict of acquittal is appropriate only when no evidence exists to support a guilty verdict. State v. Mergenthaler (1994), 263 Mont. 198, 203, 868 P.2d 560, 562-63. As a result, we review a district court’s ruling on a motion for a directed verdict under the same standard used to review a jury verdict. In other words, after viewing the evidence in a light most favorable to the prosecution, we determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. State v. Weeks (1995), 270 Mont. 63, 87, 891 P.2d 477, 491-92 (citation omitted).

¶30 Here, White Clay does not dispute that sufficient evidence was presented pursuant to which a rational trier of fact could have found the essential elements of the felony assault offense beyond a reasonable doubt. Indeed, together with Stewart’s testimony about his injuries, White Clay’s own testimony — that he purposely hit Stewart with the tire jack to hurt him — was sufficient to support the jury’s guilty verdict.

¶31 Instead, White Clay argues that he presented sufficient evidence to establish that he believed Stewart was about to strike Wilhelm and used force he reasonably believed necessary to defend Wilhelm against Stewart’s imminent use of unlawful force on Wilhelm. As a result, according to White Clay, he established his defense as a matter of law and was entitled to a directed verdict of acquittal. White Clay misapprehends both the nature of the defense and the state of the law.

¶32 In State v. Sattler, 1998 MT 57, [288 Mont. 79], 956 P.2d 54, we clarified the relationship between the prosecution’s burden to prove the elements of a charged offense beyond a reasonable doubt and a defendant’s burden of producing sufficient evidence in support of a defense asserted under § 45-3-102, MCA, to raise a reasonable doubt about his guilt. In doing so, we observed that the elements of the defense, like the elements of the charged offense, are factual in nature and are to be determined by the jury. Sattler, ¶ 55 (citation omitted). Thus, in a case where a jury is considering a factually based defense, as is generally the case with factual questions, “[i]t is within the province of the finder of fact to weigh the evidence presented and determine the credibility of witnesses; in the event of conflicting evidence on factual issues, the trier of fact determines which will prevail.” See Sattler, ¶ 55 (citation omitted).

¶33 Here, White Clay and the State presented conflicting evidence regarding whether White Clay reasonably believed it was necessary for him to use force on Stewart to defend Wilhelm against imminent use of unlawful force by Stewart. These factual matters were for the jury to determine. See Sattler, ¶ 55. The presentation of evidence sufficient to support the § 45-3-102, MCA, defense merely entitles a defendant to have the defense submitted to the jury; it does not raise a reasonable doubt as to the defendant’s guilt as a matter of law. See Sattler, ¶ 61.

¶34 We conclude that a rational jury could have found beyond a reasonable doubt that White Clay purposely or knowingly caused bodily injury to Stewart with a weapon. We hold, therefore, that sufficient evidence supports White Clay’s conviction of the offense of felony assault and, on that basis, we further hold that the District Court did not err in denying White Clay’s motion for a directed verdict of acquittal.

¶35 Affirmed.

JUSTICES HUNT, REGNIER, TRIEWEILER and LEAPHART concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. LINDA LOU LAFFERTY, Defendant and Appellant.
    No. 97-724.
    Submitted on Briefs September 10, 1998.
    Decided October 15, 1998.
    1998 MT 247.
    55 St.Rep. 1019.
    291 Mont. 157.
    967 P.2d 363.

      For Appellant: Brad L. Amdorfer; Arndorfer Law Firm, Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Micheál Wellenstein, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney; Shawn Cosgrove, Deputy County Attorney, Billings.
   JUSTICE GRAY

delivered the Opinion of the Court.

¶ 1 Linda Lou Lafferty (Lafferty) was charged with, and pled guilty in the Thirteenth Judicial District Court, Yellowstone County, to, the offense of driving under the influence of alcohol (DUI), reserving her right to appeal the court’s denial of her motion to suppress all evidence, which was premised on the absence of the requisite particularized suspicion to justify the investigative stop of her vehicle. She raises that issue, and others, on appeal and we reverse and remand with instructions.

¶2 The dispositive issue is whether the District Court erred in denying Lafferty’s motion to suppress on the basis that the investigative stop was based on a particularized suspicion.

BACKGROUND

¶3 The relevant facts relating to Lafferty’s motion to suppress all evidence in her DUI case on the basis that the stop of her vehicle was invalid for lack of particularized suspicion are as follows. In the afternoon hours of April 6, 1996, Montana Highway Patrol Officer Brad Sangray (Sangray) received a dispatcher’s report of a drunk driver proceeding eastbound from Park City, Montana. The identity of the caller was not provided and, indeed, it later was ascertained that the caller was anonymous. In any event, the caller merely described the vehicle as a white over blue Ford pickup with a partial license plate of “5-T.” The caller provided no further particulars.

¶4 Sangray traveled westbound from Billings, Montana, on U.S. Highway 90 and observed a pickup matching the description provided by the dispatcher traveling eastbound. He crossed the median and drove at a high rate of speed until he caught up with the pickup, which had a “5-T” license plate; Sangray then followed the pickup at a distance of six to ten car lengths. While following the pickup for approximately one mile, Sangray saw it cross the fog line on the right side of the highway twice and drive on the fog line once; the tape from the activated video camera in his patrol vehicle confirmed his testimony. The pickup was not speeding. Sangray activated his emergency lights and stopped the pickup, which was being driven by Lafferty, on the basis of the dispatcher’s report and the crossing of the fog line, which Sangray testified “is not normal traffic procedure.” Sangray also testified that he would not have stopped the pickup absent his independent observations of the pickup crossing the fog line.

¶5 Lafferty testified that she noticed Sangray’s vehicle as he came up behind her and kept a close eye on it via her rearview and side mirrors. She also testified it was her normal practice to drive close to the fog line on the right side of the road and, indeed, that she was taught to do so in the defensive driving course required for her employment with the government. She did not notice whether she crossed the fog line on the afternoon in question, but testified that she could have done so since she drives right next to it. Lafferty agreed that it would not be safe to make major “swerves” across the fog line and back into the traffic lane, but stated that her vehicle was not “weaving” and that any “swerve” she made over the fog line while looking in her vehicle’s mirrors would have been minor. After viewing the video, Lafferty agreed that her pickup did cross the fog line.

¶6 Counsel for Lafferty argued that Lafferty’s driving did not constitute a traffic violation and, as a result, the circumstances — that is, the dispatcher’s report and Sangray’s observation of Lafferty’s driving — were insufficient to form the basis for a particularized suspicion that Lafferty was DUI. The State of Montana (State) argued that crossing the fog line constituted “improper lane travel” and, therefore, a violation of the law and that Sangray had a sufficient particularized suspicion to justify an investigative stop.

¶7 At the close of the hearing on Lafferty’s motion to suppress, the District Court denied the motion, subject to the condition that crossing the fog line constitutes a traffic violation, and requested briefs on that legal question. In doing so, the court observed that, in this case:

[T]he driving is not something that maybe the ordinary citizen would be particularly concerned about.... [B]ut there is something about the manner in which the defendant’s vehicle in this case wanders a little over that fog line and back that doesn’t look right.
I don’t know, maybe the officer could explain it; to me there is something about that that is different than somebody’s momentary inattention that wanders across the fog line. ...

After briefing, the District Court concluded that “[t]he law requires one to stay within one’s driving lane until it is ascertained that one can leave one’s lane safely.” It determined, based on Sangray’s observations and its own observation of the video, that Lafferty crossed the fog line and left her lane without first ascertaining that it was safe to do so, thereby justifying Sangray’s investigatory stop. On that basis, the District Court denied Lafferty’s motion to suppress and Lafferty appeals.

DISCUSSION

¶8 Did the District Court err in denying Lafferty’s motion to suppress on the basis that the investigative stop was based on a particularized suspicion?

¶9 When circumstances create a particularized suspicion that a person is committing an offense, a peace officer may stop the person or the vehicle containing the person to determine whether to arrest the person. Section 46-5-401, MCA. In order to prove the existence of a particularized suspicion sufficient to stop a vehicle, the prosecution must show objective data from which an experienced peace officer can make certain inferences and a resulting suspicion that the occupant of the vehicle is engaged in wrongdoing. State v. Pratt (1997), 286 Mont. 156, 951 P.2d 37, 40 (citation omitted).

¶10 Whether a particularized suspicion exists to justify an investigative stop is a question of fact which depends on the totality of the circumstances. Pratt, 951 P.2d at 40. That is not to say, however, that such a determination cannot also include conclusions of law. Indeed, in this case, it is clear that — in determining that a particularized suspicion existed — the District Court concluded that Lafferty committed a traffic violation by leaving her driving lane without ascertaining that it was safe to do so. We review a district court’s denial of a motion to suppress to determine whether its findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Lee (1997), 282 Mont. 391, 393, 938 P.2d 637, 639 (citation omitted).

¶ 11 We recently set forth a three-factor analysis for evaluating a citizen informant’s information with regard to a possible drunk driver: 1) whether the informant identifies himself or herself to law enforcement; 2) whether the report is based on the personal observation of the informant; and 3) whether the officer’s own observations corroborate the informant’s information via observation of the illegal activity or finding the person and vehicle substantially as described by the informant. Pratt, 951 P.2d at 42-43 (citation omitted). When the citizen informant is anonymous and the report lacks foundation for the opinion expressed, the officer must corroborate the tip by observing behavior by the driver — either illegal or indicative of impairment — in order to form the particularized suspicion necessary to justify an investigative stop under § 46-5-401, MCA. Pratt, 951 P.2d at 44-45.

¶ 12 Applying Pratt to the instant case, it is clear that the citizen informant here was anonymous. The informant also did not state any particulars about the driving which formed the basis for the reported opinion that the driver of the pickup was drunk or even that his report was based on personal observation. As a result, Sangray’s observation of the described pickup driving in the direction reported did not constitute sufficient corroboration of the citizen informant’s report to form the basis for particularized suspicion; it was necessary for Sangray to personally observe driving that was illegal or indicative of impairment. See Pratt, 951 P.2d at 44-45.

¶13 We turn, then, to the driving observed by Sangray in this case — namely, Lafferty’s crossing of the fog line twice and driving on the fog line once — to determine whether that driving was illegal or indicative of impairment. As discussed above, the District Court concluded that crossing the fog line constituted a traffic violation. We disagree.

¶14 Section 61-8-328, MCA (1995), states in pertinent part that, when a “roadway has been divided into two or more clearly marked lanes for traffic... [a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” According to the State and the District Court, Lafferty violated this statute by crossing the fog line without ascertaining that she could do so safely. In our view, however, the statute relates to moving from a marked traffic lane to another marked traffic lane. Here, Lafferty did not move from one of the marked eastbound traffic lanes on Highway 90 to the other without checking to be sure she could do so safely. She merely crossed onto and barely over the fog line on the far right side of the right traffic lane in which she was traveling. We conclude that this driving was not “illegal” driving under § 61-8-328, MCA (1995), and Pratt, and that the District Court’s determination to the contrary was erroneous.

¶15 The State advances a number of arguments that Lafferty’s crossing of the fog line was indicative of impaired driving and, therefore, that the Pratt corroboration requirement is met even if no actual traffic violation occurred. First, the State suggests that this driving indicated to Sangray that Lafferty’s driving was impaired. The problem with this argument is that Sangray did not testify to that effect; he merely stated that, in his view, her driving was “not normal traffic procedure.” While reasonable minds could differ over whether occasionally crossing the fog line is “normal” or at least relatively common driving, not every “nonnormal” kind of driving is necessarily indicative of driving under the influence of alcohol. Sangray did not testify that either his training or his experience led him to infer that a driver whose vehicle crosses the fog line likely is impaired by alcohol.

¶16 Nor do the cases on which the State relies support its position that Lafferty’s relatively minor crossings of the fog line were sufficient to create a particularized suspicion. In Hulse v. State, Dept. of Justice, 1998 MT 108, ¶ 39, [289 Mont. 1, ¶ 39], 961 P.2d 75, ¶ 39, we properly determined that erratic driving — that is, “driving all over the road, crossing the center line and the fog line, weaving in and out of traffic, or braking for green lights” — can constitute the basis for a particularized suspicion to stop the driver. Here, however, the State’s repeated characterizations of Lafferty’s driving as “swerving” and “weaving” notwithstanding, Lafferty was not driving erratically or all over the road or crossing the center line and the fog line or weaving in and out of traffic.

¶17 Matter of Suspension of Driver’s License of Blake (1986), 220 Mont. 27, 712 P.2d 1338, also is distinguishable. There, the undisputed evidence was that petitioner was driving in the vicinity of several bars around closing time and swerved into the wrong traffic lane. We observed that the driving of a vehicle into the wrong traffic lane may be sufficient to constitute a traffic violation under § 61-8-321, MCA, and that the evidence as a whole — that is, swerving into the wrong traffic lane around 2:00 a.m., in the vicinity of several bars — was sufficient to constitute a particularized suspicion that he may have been driving under the influence of alcohol. Blake, 220 Mont. at 31, 712 P.2d at 1341. In the present case, the time, location and driving were substantially different. Lafferty was stopped at approximately 4:30 in the afternoon on an interstate highway; she did not swerve into the wrong traffic lane, but merely crossed the fog line as she observed Sangray’s patrol car come up behind her at a high rate of speed and follow her. Thus, the circumstances of this case do not rise to the particularized suspicion we determined existed in Blake.

¶18 We concluded above that the District Court erred in determining that a traffic violation had occurred. We further conclude that, under the totality of the circumstances, as applied to this case, Sangray did not have facts supporting a particularized suspicion that Lafferty was committing an offense and, therefore, the District Court erred in concluding that the investigative stop of her pickup was justified under § 46-5-401, MCA.

¶19 Reversed and remanded with instructions to enter an order of dismissal.

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


author: JUSTICE HUNT

text:
    LINDA LEE MOORE and H. GARY MOORE, Plaintiffs and Appellants, v. IMPERIAL HOTELS CORPORATION, Defendant and Respondent.
    No. 97-593.
    Submitted on Briefs April 23, 1998.
    Decided October 20, 1998.
    1998 MT 248.
    55 St.Rep. 1023.
    291 Mont. 164.
    967 P.2d 382.

      For Appellants: Jack E. Sands, Attorney at Law, Billings.
    For Respondent: John O. Mudd, Lucy T. France; Garlington, Lohn & Robinson, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

¶1 Linda Lee Moore (Linda) and H. Gary Moore (Gary) (collectively the Moores) brought an action against their former employer, Imperial Hotels Corporation (Imperial), alleging that Imperial wrongfully discharged them and violated several of Montana’s wage and hour laws. The Thirteenth Judicial District Court, Yellowstone County, entered judgment on a jury verdict in favor of Imperial on all claims. The Moores appealed. We affirm.

¶2 The following issues are presented on appeal:

¶3 1. Did the District Court err in ruling that the Moores’ wage and hour claims were governed by federal law rather than state law?

¶4 2. Did the District Court err in refusing the Moores’ Proposed Instructions 16,21A, and 29, regarding the following: sleeping hours for employees who are required to be on duty 24 hours or more, the elements of wrongful discharge, and Imperial’s burden of proving mitigation of damages?

BACKGROUND

¶5 Imperial is a Delaware corporation which operates the Econo Lodge, a motel located in Billings, Montana. Carol Kensa (Ms. Kensa) is a District Manager employed by Imperial to oversee five Econo Lodges in Montana and Idaho. In January 1994, Ms. Kensa placed an advertisement in the Bozeman, Montana newspaper seeking qualified persons to manage the Econo Lodge in Billings. The Moores answered the advertisement and Ms. Kensa selected them to participate in Imperial’s training program.

¶6 The Moores each signed a Management Training Program Agreement whereby they agreed that they were not employees of Imperial; that they were not guaranteed employment by Imperial at the conclusion of the training program; and that the training program would be in effect six days a week for as many weeks as needed. In turn, Imperial agreed to provide the Moores an opportunity to experience and learn the duties of an Imperial Inn Manager; living accommodations during the training program; and living expenses during the training program at the rate of $ 18 per person per day. From January 20,1994, until February 15,1994, the Moores were trainees under the tutelage of Bob and Ethel Darnell, managers of the Econo Lodge in Bozeman.

¶7 On February 16,1994, after the Moores’ completion of the training program, Ms. Kensa hired Linda to be the resident manager of the Econo Lodge in Billings, and hired Gary to be a field employee. It was understood that Linda was a salaried employee responsible for the general operations of the motel, and Gary was an hourly employee responsible for maintenance and front desk tasks. Part of the Moores’ compensation included living in the on-site apartment adjacent to the motel office.

¶8 The Moores each signed an employment agreement with Imperial. Gary’s employment agreement provided that he would be paid at the rate of $5 per hour, that his homs would be flexible and irregular, and that he would not work more than 40 hours per week without the approval of Ms. Kensa. The hours-per-week work restriction imposed on Gary reflected a company policy designed to prevent favoritism on the part of a motel manager toward his or her spouse. In addition to signing employment agreements, Linda and Gary signed a document entitled “Employment Acknowledgment Form” in which they acknowledged that their employment with Imperial was “at will,” and could be terminated at any time. On this form the Moores also acknowledged that they had received the company handbook, and that they were obligated to comply with the policies contained therein. Additionally, Linda signed an untitled document in which she acknowledged receipt of the Imperial Inns Operating Manual and agreed to adhere to its policies and procedures.

¶9 In April 1994, the Billings Econo Lodge was inspected by a representative from the local field office of the United States Department of Labor (USDL) for compliance with all federal employment standards. At this time, Gary told the inspector that he was working overtime but only being paid for 40 hours per week. The inspector noted that there was no record of Gary working overtime. When the inspector asked why the Moores did not report Gary’s overtime hours, Gary said he thought he would be fired for doing so. The inspector informed the Moores that they must report Gary’s overtime hours in order to be compensated for them. In his final report, the inspector stated that Imperial had committed no violations. Despite the inspector’s directive, the Moores did not report Gary’s alleged overtime hours. As manager of the motel, Linda was responsible for reporting to Imperial the overtime hours worked by all employees at the Billings Econo Lodge. Linda reported to Imperial that Gary did not work overtime hours at the motel.

¶10 On August 8,1994, the Moores’ employment with Imperial was terminated. Ms. Kensa informed the Moores that they were being fired due to their “lack of control” in managing the motel. Ms. Kensa also referred to the Moores’ apparent dissatisfaction with Imperial, and Imperial’s mutual dissatisfaction with the Moores. Ms. Kensa told the Moores to vacate the apartment within 24 hours so that she could manage the motel until a replacement could be found.

¶11 Ms. Kensa testified that her decision to fire the Moores was the result of several incidents. She testified that the Moores developed an “I don’t care” attitude. Linda had been warned about her failure to conduct employee scheduling and vacation scheduling according to company procedure. She had also been warned about her failure to follow directions regarding company property. Ms. Kensa warned Gary in response to Linda’s complaint that Gary was not “pulling his weight” around the motel. Ms. Kensa had received reports that Gary was physically abusing Linda. The final incident contributing to the Moores’ termination involved a missing swimming pool cover. During the Moores’ employment, Imperial removed the swimming pool from the Billings Econo Lodge. Ms. Kensa specifically instructed the Moores to store the pool equipment for a time until it could be transported to the Twin Falls Econo Lodge. When Ms. Kensa later asked about the pool cover, the Moores said they did not know where it was and acted as if it were unimportant. It appeared to Ms. Kensa that the Moores did not care that a large, expensive piece of pool equipment was missing.

¶ 12 Soon after their termination, the Moores filed a claim with the USDL alleging that Imperial had violated the federal Fair Labor Standards Act (FLSA) by failing to pay them wages during their training period at the Bozeman Econo Lodge, and by failing to pay Gary overtime compensation while he was employed at the Billings Econo Lodge. The Moores’ complaint was assigned to the same USDL inspector that previously had spoken with the Moores in April. The inspector conducted an interview with the Moores. With respect to the wage claim, the Moores claimed they each worked sixteen hours a day during training, with only a short break for meals, for which they did not receive compensation. With respect to the hour claim, Gary stated that he was the Maintenance Manager for the Billings Econo Lodge; that he supervised eight employees; and that he also managed the desk as needed. Gary claimed that he worked 120 hours per week during his employment with Imperial, but never received overtime compensation. Gary stated that he believed Imperial’s failure to pay overtime compensation was a “nationwide policy” of the corporation.

¶13 The inspector telephoned Ms. Kensa about the Moores’ wage and hour claims. Ms. Kensa refuted the Moores’ claims that they worked sixteen hours a day during training and that Gary worked 120 hours per week during his employment at the Billings Econo Lodge. Imperial’s personnel director, Ms. Michelle Alarcon, informed the inspector of the Management Training Program Agreements that the Moores had signed, and stated that Imperial’s training program fully complied with the law. On September 5,1994, the inspector reported that the Moores’ complaints could not be substantiated, and concluded that Imperial had committed no violations.

¶ 14 On October 31,1994, the Moores filed a complaint in state court alleging that Imperial had wrongfully discharged them and had violated Montana’s wage, minimum wage, and overtime compensation statutes, §§ 39-3-204, -404, and -405, MCA, respectively. Regarding the wrongful discharge claim, the Moores alleged that they were fired without good cause, or in the alternative, that they were fired in retaliation for challenging Imperial’s wage and hour policies. The Moores’ wage and hour claims reflected the same complaints that they had previously lodged with the USDL.

¶15 A jury trial was held January 22,1996. After hearing all the evidence, including testimony from the Moores and thirteen other witnesses, the jury found that the Moores were not employees during their training period with Imperial and were not entitled to wages during that time. The jury also found that Gary did not work overtime during his employment with Imperial and was not entitled to overtime compensation. Lastly, the jury found that Imperial did not wrongfully discharge the Moores. Additional facts will be provided as necessary to dispose of the issues raised.

DISCUSSION

Issue one

¶16 Did the District Court err in ruling that the Moores’ wage and hour claims were governed by federal law rather than state law?

¶17 During the settlement of instructions phase of the trial, the District Court concluded that federal law rather than state law governed the Moores’ wage and hour claims. The Moores assert that this ruling was incorrect and list several reasons in support of their assertion. Imperial argues that whether federal or state law applies to the Moores’ wage and hour claims is irrelevant in light of the jury’s factual findings. First, the jury found that the Moores were not employees during their training period with Imperial and were not entitled to wages. Second, the jury found that Gary did not work overtime during his employment with Imperial and was not entitled to overtime compensation. Imperial argues that these threshold findings render moot any inquiry into the applicability of either federal or state law. We agree with Imperial.

¶18 In this case, whether federal or state law applies to the Moores’ wage and hour claims is relevant only to the calculation of damages. The Moores’ entitlement to damages is wholly dependent upon a finding that the Moores were in fact employees of Imperial during their training, and that Gary in fact worked overtime. Here, the jury found the opposite. The jury heard all the evidence presented and chose not to believe the Moores’ version of events. Resolving conflicts in the evidence, judging the credibility of the witnesses, and finding the facts are acts uniquely within the province of the jury. Durden v. Hydro Flame Corp., 1998 MT 47, ¶ 27, [288 Mont. 1, ¶ 27], 955 P.2d 160, ¶ 27. We will not disturb the jury’s findings absent a showing that they lack an evidentiary basis. Durden, ¶27. Because the jury never reached the issue of damages in the District Court, any inquiry into the applicability of either federal or state law in the calculation of damages is moot. On this basis, we decline to address the propriety of the court’s ruling that federal law rather than state law applies to the Moores’ wage and hour claims.

¶ 19 The Moores also argue for the first time on appeal that Imperial should have raised the federal law versus state law issue as an affirmative defense in its initial Answer. We decline to address the merits of this argument because it was not raised in the District Court and may not be raised for the first time on appeal. Nitzel v. Wickman (1997), 283 Mont. 304, 313, 940 P.2d 451, 456.

Issue two

¶20 Did the District Court err in refusing the Moores’ Proposed Instructions 16, 21A, and 29, regarding the following: sleeping hours for employees who are required to be on duty 24 hours or more, the elements of wrongful discharge, and Imperial’s burden of proving mitigation of damages?

¶21 We review jury instructions in a civil case for abuse of discretion. Fillinger v. Northwestern Agency, Inc. (1997), 283 Mont. 71, 76, 938 P.2d 1347, 1350. A district court has broad discretion in deciding whether to give or refuse a party’s proposed jury instruction. Fillinger, 283 Mont. at 76, 938 P.2d at 1350. In reviewing whether a particular jury instruction was properly given or refused, we must consider the instruction in its entirety, as well as in connection with the other instructions given and with the evidence introduced at trial. Fillinger, 283 Mont. at 83, 938 P.2d at 1355. The party assigning error to a district court’s instruction must show prejudice in order to prevail. Fillinger, 283 Mont. at 76, 938 P.2d at 1351. Prejudice will not be found if the jury instructions in their entirety state the applicable law of the case. Fillinger, 283 Mont. at 76, 938 P.2d at 1351. We have also held:

A party is not prejudiced by a refusal of his proposed instructions where the subject matter of the instruction is not applicable to the pleadings and facts, or not supported by the evidence introduced at trial, or the subject matter is adequately covered by other instructions submitted to the jury.

Busta v. Columbus Hosp. Corp. (1996), 276 Mont. 342, 360, 916 P.2d 122, 132 (citations omitted).

¶22 The Moores offered Proposed Instruction 16 which set forth the law on when employees who are required to remain on duty 24 hours or more may claim sleep hours as time worked. Imperial objected to this instruction on the ground that it was not applicable to the facts of the case. The court sustained the objection and refused the instruction.

¶23 The Moores argue that the court abused its discretion in refusing Proposed Instruction 16 because the instruction was critical in determining whether Gary worked overtime. Imperial counters that Proposed Instruction 16 was irrelevant because it addressed employees who are required to be on duty 24 hours or more and Gary was not such an employee. On this basis, Imperial argues that the court properly refused the instruction. We agree with Imperial.

¶24 Whether Gary was required to be on duty 24 hours or more was never an issue in this case. Further, the record is void of any facts suggesting that Gary was required to be on duty 24 hours or more. Gary was not the resident manager. The fact that Gary lived on the premises does not mean that he was required to be on duty constantly. Gary’s employment agreement provided that he was not to work more than 40 hours per week. The record supports the fact that Gary was free to leave the premises at any time. Because Gary was not required to be on duty 24 hours or more, Proposed Instruction 16 was not applicable to the facts and was properly refused. We hold the court did not abuse its discretion in refusing the Moores’ Proposed Instruction 16.

¶25 The Moores also offered Proposed Instruction 21A which set forth the elements of wrongful discharge pursuant to § 39-2-904, MCA. The instruction provided that the Moores’ discharge was wrongful only if:

(1) it was in retaliation for their refusal to violate public policy or for reporting a violation of public policy; or
(2) it was not for good cause as defined in these instructions; or
(3) the employer violated the express provisions of its own written personnel policy in discharging the plaintiffs.

Imperial objected only to the portion of subpart (1) of the instruction referring to retaliation for refusing to violate public policy. Imperial objected to this portion of the instruction on the ground that it was inapplicable to the pleadings and facts of the case. Imperial pointed out that the Moores never alleged, in pleadings or otherwise, that Imperial discharged them in retaliation for their refusal to violate public policy. The court sustained the objection and refused the Moores’ Proposed Instruction 21A in favor of an instruction which included all the elements of wrongful discharge except the portion of subpart (1) referring to discharge in retaliation for refusing to violate public policy.

¶26 The Moores argue that the court’s refusal of their Proposed Instruction 21A was an abuse of discretion because the facts support the theory that the Moores were discharged in retaliation for refusing to violate public policy. We disagree. Our examination of the Moores’ initial complaint, their contentions in the pretrial order, and their brief on appeal reveals that at no time did the Moores advance the theory that Imperial discharged them in retaliation for refusing to violate public policy. Additionally, our review of the record reveals that no facts exist to support this theory. We conclude that the subject matter of the omitted material in the Moores’ Proposed Instruction 21A was not applicable to the pleadings and facts in this case. Therefore, we hold that the District Court did not abuse its discretion in refusing the Moores’ Proposed Instruction 21A.

¶27 Lastly, the Moores contend that the court erred in refusing their Proposed Instruction 29 regarding Imperial’s burden of proving that the Moores failed to mitigate their damages. We need not address the Moores’ contention because, as previously discussed, the jury never reached the issue of damages. Any error in refusing the Moores’ Proposed Instruction 29 would be harmless because the Moores can show no prejudice as a result of the refusal. See Maurer v. Clausen Distributing Co. (1996), 275 Mont. 229, 240, 912 P.2d 195, 201.

¶28 The Moores also argue, in passing, that the court erred in accepting Imperial’s Proposed Instruction 3 which addressed the Moores’ burden of proof. The Moores argue that the portion of the instruction which states that the Moores have the burden of proving “[t]hat the defendant’s failure to terminate them for good cause was in turn a cause of their damage” was an incorrect statement of the law. However, the Moores cite no legal authority in support of their argument as required by Rule 23, M.R.App.P. Further, the claim of wrongful discharge is properly classified as a tort. It is axiomatic that in a tort action, the plaintiff has the burden of proving causation. See Gentry v. Douglas Hereford Ranch, Inc., 1998 MT 182, ¶ 24, [290 Mont. 126], 962 P.2d 1250. We conclude that the District Court did not err in giving Imperial’s Proposed Instruction 3.

¶29 Affirmed.

JUSTICES GRAY, NELSON, REGNIER and TRIEWEILER concur.