text:
    STATE OF MONTANA, Plaintiff and Respondent, v. R. RAY HASKINS, Defendant and Appellant.
    No. 85-224.
    Submitted on Briefs Dec. 30, 1985.
    Decided Feb. 13, 1986.
    714 P.2d 119.
    Stewart A. Pearce, II, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, M. Shaun Donovan, Co. Atty., Superior, for plaintiff and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

This is an appeal from a conviction of felony theft in the District Court of the Fourth Judicial District, Mineral County. Because defendant was denied his constitutional right to a speedy trial, we reverse and remand with instructions to dismiss the charge.

Defendant, R. Ray Haskins, was arrested on October 19, 1982, and held in the Mineral County Jail until October 22,1982, when he was released on bond. The State filed an information November 16, 1982, charging defendant with the burglary of the L.D. Polich residence near Tarkio, Montana, and with the theft of various household items belonging to the Polichs.

Defendant filed motions December 21, 1982, seeking to quash his arrest as being illegal and to suppress evidence. A hearing was held on the motions January 18, 1983. The motion to suppress evidence was granted, while the motion to quash the arrest was denied on February 24, 1983. Then, on April 1, 1983, pursuant to a motion to amend, the District Court granted the motion to quash the arrest.

Defendant next filed a motion on April 20, 1983, to dismiss the information for lack of probable cause. The motion was denied May 13, 1983, and on May 17, 1983, the trial judge set defendant’s arraignment for May 31, 1983.

At the arraignment, defendant entered pleas of not guilty to both charges and submitted numerous motions, including a motion to dismiss for lack of speedy trial. The trial judge ordered briefing on the speedy trial issue and set trial for July 25, 1983. The speedy trial motion was denied July 1, 1983, as most of the delay was found attributable to defendant.

On the morning of trial, the County Attorney moved to amend the already amended information to allege a different offense date. Defendant had earlier given notice of an alibi defense to the burglary charge. Therefore, defendant objected to the amendment as being substantive in nature. The trial judge granted the amendment, but also granted defendant a continuance.

On July 28,1983, a new judge accepted jurisdiction and set trial for August 29, 1983. Despite motions by defendant to compel production of certain evidence, to continue the trial date and to sever the two counts, trial was had August 29, 1983. The jury found defendant not guilty of burglary on August 31, 1983, but failed to reach a verdict on the theft charge.

The Mineral County Attorney filed a motion September 7, 1983, requesting that a new trial on the theft charge be set. Trial was set on September 9, 1983, for October 24, 1983. Thereafter, on September 14, 1983, defendant filed a motion requesting substitution of a new judge. Judge Harkin accepted jurisdiction of the case September 20, 1983, and on September 27, 1983, reset trial for November 14, 1983.

Because defense counsel already had a trial scheduled for that date, he requested the trial date be continued until the week of December 12, 1983. The trial judge granted defendant’s motion on the condition that defendant waive his right to a speedy trial for the time period commencing November 14, 1983, until the court could schedule a new trial date. Defendant waived his right to a speedy trial on November 10, 1983, stating:

“IN MOVING for continuance of his re-trial to the spring, 1984, Jury term, Defendant waives his right to speedy trial from the period 14-November-83 to early 1984, while reserving all objections for the period 19-October-82 to 14-November-83.” (Emphasis supplied.)

On January 16, 1984, defendant’s trial was set to begin September 4, 1984. Practically the only activity between January 1984 and the trial was a motion filed by defendant on May 16, 1984, requesting any evidence obtained by the prosecution since the last trial. No response was made to the motion.

Finally, on August 31, 1984, defendant filed numerous pre-trial motions, including a motion alleging the denial of defendant’s right to a speedy trial. Trial commenced as scheduled, with the trial judge reserving his ruling, on the speedy trial motion until after trial. Defendant was convicted of theft on September 10, 1984. On November 20, 1984, after denying defendant’s speedy trial motion from the bench, the trial judge gave defendant a three-year deferred sentence, predicated on defendant serving six months in the Mineral County Jail, paying restitution to the Polichs and obeying all conditions imposed by the Department of Institutions’ Division of Adult Probation and Parole.

Defendant appeals, raising numerous issues. However, we find the issue of whether defendant was denied his constitutional right to a speedy trial to be dispositive.

The right to a speedy trial is guaranteed to all criminal defendants by the Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution (1972). The factors to be used in determining whether this right has been abridged were originally set forth by the United States Supreme Court in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. They are: 1) length of the delay; 2) the reason for the delay; 3) the defendant’s timely assertion of his right; and 4) the prejudice suffered by defendant. We have repeatedly used these same factors for determining whether Montana’s constitutional right to a speedy trial has been denied. However, no individual factor is dispositive. See State v. Britton (Mont. 1984), [213 Mont. 155,] 689 P.2d 1256, 1258, 41 St.Rep. 2018, 2019.

The length of the delay is the test by which a speedy trial inquiry is triggered. The delay must be of a sufficient length to be deemed “presumptively prejudicial,” else there is no need to inquire into the remaining factors. State v. Chavez (Mont. 1984), [213 Mont. 434,] 691 P.2d 1365, 1369, 41 St.Rep. 2219, 2222. The length of time between defendant’s arrest on October 19, 1982, and the start of defendant’s second trial on September 4, 1984 (686 days), clearly constitutes “presumptive prejudice.” so does the length of time between the first trial, which ended August 31, 1983, in a.hung jury on the theft charge, and September 4, 1984, the start of defendant’s second trial (370 days). See State v. Ackley (1982), 201 Mont. 252, 653 P.2d 851[, 39 St.Rep. 2091]. We therefore confine our analysis to the second time frame.

Though defendant waited until August 31, 1984, to raise the speedy trial issue, the assertion of his right was timely because it was made prior to the start of trial.

“However, delay of assertion of the right to speedy trial is not measured simply by measuring the lapse of time from the time of the charge until the time the motion is made. Rather, the sole inquiry is whether defendant has moved before trial to dismiss on the ground that he has been denied a speedy trial. The United States Supreme Court stated in Barker v. Wingo, supra, that “[t]here is no fixed point in the criminal process when the State can put the defendant to the choice of either exercising or waiving the right to a speedy trial.” 407 U.S. at 521, 92 S.Ct. at 2187. We adopt this same position when interpreting our own Constitution.”

State v. Britton, 589 P.2d at 1260, 41 St.Rep. at 2022.

Since defendant was presumptively prejudiced by the delay in his trial, the State has the burden of rebutting this prejudice by proving that defendant was not prejudiced by the delay and/or by providing a reason for the delay which outweighs the prejudice to the defendant. State v. Chavez, 691 P.2d at 1370, 41 St.Rep. at 2223.

In its brief, the State contends defendant made only vague allegations of prejudice and that pursuant to State v. Chavez, supra, defendant “may not rest merely on the presumption of prejudice under such circumstances.” Prejudice can be shown in many ways, primarily: 1) oppressive pre-trial incarceration; 2) anxiety and concern of the accused while awaiting trial; and 3) impairment of the defense. Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118. Defendant obviously did not suffer oppressive pre-trial incarceration. He was in the Mineral County Jail for only three days. However, defendant alleges that he suffered severe anxiety while awaiting final disposition of the charges against him. He experienced both personal bankruptcy and the bankruptcy of his logging business. Testimony by several character witnesses at the trial supports defendant’s allegation that his reputation in the community was ruined. These are all reasons for great anxiety and sufficient allegations to place the burden of proving no resultant prejudice on the State. See State v. Britton, supra. The State has not met its burden.

Finally, and most importantly, we note the lack of reasons offered by the State for the delay between November 14,1983, and September 4, 1984. The only reason offered by the State was that no trials were held in Mineral County during the 1984 spring calendar. This reason is inadequate in light of the waiver signed by defendant and quoted above, specifically waiving his right to a speedy trial until early 1984. Given the presumption against waivers of constitutional rights, State v. Ackley, 201 Mont. at 257, 653 P.2d at 854, we refuse to extend defendant’s waiver past the Spring 1984 calendar.

There is no indication the State attempted to reschedule the trial for an earlier time or to ascertain why an earlier date would not be possible. Granted, the delay is an “institutional delay” and therefore should not be weighed against the State as heavily as an intentional “dragging of the feet” by the State. However, it is the responsibility of the State to bring defendant to trial. It is not the responsibility of the defendant to ensure that he is prosecuted. State v. Britton, 689 P.2d at 1261, 41 St.Rep. at 2023.

Reversed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, GULBRANDSON and SHEEHY concur.


source: Caselaw Access Project

author: MR. JUSTICE SHEEHY

license: Public Domain

text:
    In re the MARRIAGE OF KENNETH RAY CARLSON, Petitioner and Respondent, and VICKIE LYNN CARLSON, Respondent and Appellant.
    No. 85-402.
    Submitted on Briefs Nov. 21, 1985.
    Decided Feb. 13, 1986.
    714 P.2d 116.

      Steven J. Shapiro, Helena, for respondent and appellant.
    Kenneth Ray Carlson, pro se.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Appeal by Vickie Lynn Carlson from an order entered by the District Court, Thirteenth Judicial District, Yellowstone County on June 24, 1985. For the reasons hereafter stated, the cause is remanded.

These parties were before us in an earlier case, Carlson v. Carlson (Mont. 1984), [214 Mont. 209,] 693 P.2d 496, 41 St.Rep. 2419. Kenneth and Vickie had married in 1970 and divorced on July 5, 1979. They have three children, twins now 12 years old and another child now 9 years old.

In the original decree of marital dissolution, in 1979, the District Court had provided that Kenneth pay to the wife as custodian of the minor children, the sum of $150.00 for each child per month for their support and maintenance. The decree incorporated a contractual agreement to that effect.

On April 6, 1984, the District Court, on application of Kenneth, by order amending the marital dissolution decree, reduced the payments to be made by Kenneth to Vickie to the sum of $75.00 per month per child. That order was appealed to this Court, and was the subject of our opinion in Carlson v. Carlson, supra.

The effect of our opinion in the earlier case was to reverse the District Court’s reduction of Kenneth’s obligation for child support payments on the grounds that the District Court had no evidence before it to prove that the husband’s change in earning circumstances were continuous, that his unemployment was permanent, or that his earning capacity had been substantially reduced. We remanded the cause for further evidence to be produced before the District Court as to the father’s present earning capacity. Carlson, 693 P.2d at 501, 41 St.Rep. at 2425. We also stated that as to the claimed attorney fees, such an award on behalf of Vickie was not mandatory upon the District Court but was open for further proceedings before the District Court.

After our remand to the District Court, counsel who until then had represented Kenneth obtained an order from the District Court permitting their withdrawal. Since April 11, 1985, Kenneth has not been represented by counsel in this cause.

The proceedings that followed in the District Court did not track exactly our order on remand. Instead counsel for Vickie (Vickie has remarried, and her present husband, an attorney, is also her counsel in all of these proceedings) filed three motions in the District Court:

(1) A motion to modify the decree of marital dissolution so as to permit Vickie to claim her support of the three minor children as tax exemptions and deductions for federal and state income tax purposes.

(2) A motion for leave to file proposed findings and judgment (none of which proposed findings and judgment are in the record).

(3) A motion for summary judgment in favor of Vickie and against Kenneth, which summary judgment would provide (a) that Kenneth’s petition for modification of the child support payments was denied; (b) that Kenneth’s obligation to pay $150 per month per child for the support of the three minor children shall continue until their respective ages of majority; (c) that Kenneth provide medical insurance coverage for the minor children; (d) that Vickie be given judgment against petitioner for past due child support in the sum of $6,765.83 as of May 31, 1985; (e) that Vickie be given judgment for costs of $512.80; and (f) that Vickie be given judgment for attorney fees in the sum of $7,050.00.

Hearing on these motions was scheduled by the District Court for June 19, 1985 and notice of the hearing on the motions was served by mail upon Kenneth at his address in Placentia, California. Kenneth did not appear for the hearing, nor was he represented by counsel. We can only speculate as to what happened at the hearing for no transcript of those proceedings has been provided on this appeal.

Following the hearing the District Court issued two orders. The first, on June 24, 1985, is the order which is the subject of this appeal. In that order, the District Court vacated its modification of judgment earlier made on April 6, 1984, and reinstated the duty of Kenneth to pay child support in the sum of $150.00 per month per child. On June 26, 1985, the District Court entered a second order, in which it provided that Vickie should be granted the right to claim the tax exemptions for the minor children.

Vickie’s counsel was apparently dissatisfied with the order of June 24,1985. He did not however file a Rule 52(b), M.R.Civ.P. motion to amend or alter the judgment but instead wrote a letter to the court. He pointed out in the letter that “there still remain the issues of the arrearage of support, costs, attorneys fees, and the tax deduction for the children.” The letter stated:

“After the discussion with you at the hearing, we are willing to forego our request for the tax deductions for the children for the 1983 and 84 tax years if you will modify and sign the order I submitted to allow the Respondent to claim these deductions for 1985 and thereafter. If you will also sign the Summary Judgment I submitted with this change noted regarding the tax deductions, then I feel the matter will be closed.”

The order of June 26, 1985 is apparently the response of the District Court to this letter.

On July 19, Vickie’s counsel filed a notice of appeal to this Court from the order of June 24, 1985 on the grounds that “it fails to give her judgment for past due child support, attorney fees and costs.”

On July 30, 1985, the District Court entered a judgment, docketed August 8, 1985, which made the following provisions:

(1) The original decree of dissolution was again “reinstated”; (2) Vickie was given judgment against Kenneth for past due child support in the sum of $6,765.83, including interest from May 31, 1985;

(3) costs were awarded in the sum of $512.80; and (4) attorney fees were awarded in the sum of $3,000.00.

Notice of entry of judgment has been given to Kenneth as to the judgment of July 30, 1985. No such notice has been given to Kenneth of the order of June 24, 1985, or the order of June 26, 1985. Rule 77(d), M.R.Civ.P.

This case is a legal hodgepodge, and reminds us of the gentleman who was so cross-purposed that he could mess up a one car funeral. The legal effect of what has occurred is this:

(A) The judgment of July 30, 1985. This judgment is invalid. It was entered after Vickie’s notice of appeal had been filed which had the effect of depriving the District Court of further jurisdiction. McCormick v. McCormick (1975), 168 Mont. 136, 541 P.2d 765.

(B) The order of June 26, 1985. This order has not been appealed by Vickie. It will become final as to Kenneth, if notice of its entry is served upon him properly and he takes no appeal therefrom. Morrison v. Higbee (Mont. 1983), [204 Mont. 501,] 668 P.2d 1029, 40 St.Rep. 1031.

(C) The order of June 24, 1985. Vickie has appealed from only a portion of the judgment here. As to Vickie therefore the judgment of the District Court reinstating the obligation of Kenneth to pay the sum of $150.00 per month per child has become final. It will become final upon Kenneth, if after he has been properly served with a notice of its entry, he does not appeal therefrom. Morrison v. Higbee, supra.

Vickie’s notice of partial appeal from the order of June 24, 1985 relates to the failure of the order to include a judgment for past due child support, attorney fees, and costs. Curiously, these are the factors that were handled by the District Court in its judgment of July 30, 1985 which must be declared void because Vickie filed the notice of appeal.

We do not have a transcript of the hearing that occurred on June 19, 1985. There is in the appeal record an affidavit showing the amount of the arrearage. The other question of attorney fees is a matter within the discretion of the District Court. Carlson, 693 P.2d at 501, 41 St.Rep. at 2425.

On the record, Vickie is not entitled to costs, either for her first appeal or this appeal, because such costs were not claimed in a manner provided in Section 25-10-503, MCA, by a bill of costs prepared under Section 25-10-501, MCA. It is too late now for costs on the first appeal to be properly claimed. Because of the state of the record, we further determine that Vickie is not entitled to costs on this appeal.

Accordingly, this matter is remanded to the District Court with the following instructions:

(1) The order of June 24, 1985, reinstating child support to be paid by Kenneth in the sum of $150.00 per month per child is affirmed as to Vickie.

(2) The order of June 26, 1985, providing that the tax exemptions shall be claimed by Vickie, is affirmed as to Vickie.

(3) The District Court shall enter judgment in favor of Vickie and against Kenneth for arrearages in child support in the sum of $6,765.83 which includes interest to May 31, 1985, and further interest on the principal balance of $6,709.94 at 10% per annum until paid.

(4) Vickie is not entitled to recover costs on this appeal nor to costs on the first appeal because of failure to claim the same under Section 25-10-503, MCA; Vickie may claim such other costs in future proceedings to which the District Court may find she is entitled.

(5) The District Court shall determine the amount of attorney fees, if any, to which Vickie may be entitled, but no attorney fees may be awarded for this appeal.

Reversed and remanded, with instructions.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and GULBRANDSON concur.


text:
    STATE OF MONTANA, ex rel., GARY ABBITT, Defendant/Petitioner, v. JUSTICE COURT OF LAKE COUNTY, Polson, Montana, Charles C. Meyer, Justice of the Peace, Respondent.
    No. 86-47.
    Submitted Jan. 22, 1986.
    Decided Feb. 13, 1986.
    714 P.2d 140.
    Thomas Alan Kragh, Poison, for defendant/petitioner.
    Mike Greely, Atty. Gen., Helena, for respondent.
   OPINION AND ORDER

MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

The relator, Gary Abbitt, applies to this Court for writ of supervisory control in the following circumstances:

In cause no. 40-338-5 in Lake County Justice of the Peace Court on December 19, 1985, Gary Abbitt, after having been advised of his rights and waiving his right to counsel, entered guilty pleas to the offenses of criminal possession of dangerous drugs, a misdemeanor, and criminal possession of drug paraphernalia, a misdemeanor.

Justice of the Peace Charles C. Meyer imposed on Abbitt sentences of 6 months on each count to be served consecutively in the Lake County jail and in addition imposed a $300 fine on each count.

The defendant, who is indigent, requested counsel for appeal, and the justice of the peace appointed a Lake County public defender, Thomas A. Kragh to represent the defendant.

Abbitt’s attorney timely filed a written notice of appeal to the District Court, and the justice of the peace imposed an appeal bond in the sum of $1,500. All parties agree that Abbitt is indigent. The justice of the peace denied the defendant’s request to transmit the Justice Court record for appeal to the District Court without Abbitt posting the appeal bond. Abbitt then initiated in the District Court, Twentieth District, Lake County, applications for mandamus and for habeas corpus. Both applications were denied by the District Court upon the authority of State v. Bush (1974), 164 Mont. 81, 518 P.2d 1406.

The holding of Bush must be overruled by us. The facts in Bush were that the defendant had been convicted in the Justice Court of Ravalli County of assault in the third degree. She was fined $150, and sentenced to 60 days in the county jail which was suspended. She filed a written notice of appeal to the District Court of the Fourth Judicial District for Ravalli County. She did not post an appeal bond. The Ravalli county attorney moved to have the appeal dismissed on the grounds that the defendant’s failure to post a bond meant the appeal had not been perfected. The District Court granted the motion to dismiss the appeal. The dismissal of the appeal in the District Court was appealed to this Court, the sole issue presented being whether an appeal bond is necessary in a criminal case to perfect an appeal from the Justice Court to the District Court, where the defendant has been convicted.

The court referred to then existing Section 95-2009, R.C.M. (1947) which allowed a defendant in a criminal proceedings in justice court to appeal to the District Court by giving written notice of his intent to appeal within 10 days after judgment. Nothing, however, in Section 95-2009 requires a posting of a bond to perfect such an appeal.

This Court relied on the revised comment of the Advisory Commission to Section 95-2009, R.C.M. (1947), which indicated that the burden is on a defendant in criminal proceedings to perfect an appeal from the Justice Court and stated: “This burden is sustained when the defendant has posted the requisite bond. . .” Id. at 82, 518 P.2d at 1407. This Court therefore implied from the commission comment that the language of the comment indicated an intent to require bond as a part of perfected appeal.

Under our presently existing rules and statutes, it is true that in an appeal of a judgment in a civil case from a justice court to a district court, the undertaking on appeal “may be in the form of an appeal bond or a deposit of money in the sum equal to the amount of the judgment, including costs.” Rule 20, Montana Justice Courts Rules of Civil Procedure.

In appeals from criminal convictions in justice courts however the applicable statute is Section 46-17-311, MCA, which is in words and figures as follows:

Appeal. (1) All cases on appeal from justices’ or city courts must be tried anew in the district court and may be tried before a jury of six selected in the same manner as a trial jury in a civil action, except that the total number of jurors drawn shall be at least six plus the total number of peremptory challenges.

(2) A party may appeal to the district court by giving written notice of his intention to appeal within 10 days after judgment, except that the state may only appeal in the cases provided for in 46-20-103.

(3) Within 30 days, the entire record of the justice’s or city court proceedings must be transferred to the district court or the appeal must be dismissed. It is the duty of the appellant to perfect the appeal.

There is no statutory provision in an appeal from a criminal conviction in the justice court for the filing of an appeal bond.

The holding in Bush, that in an appeal from a criminal conviction in a justice court to the District Court an appeal bond must be furnished is hereby expressly overruled. There is no such requirement in the law and Abbitt may not be required to furnish an appeal bond in order to perfect his appeal from the Justice Court to the District Court.

Abbitt is presently incarcerated in the Lake County jail. Abbitt has a right to be admitted to bail either in the Justice Court before the appeal is perfected, or in the District Court after the appeal is perfected. He must, of course, qualify for bail in accordance with the provisions of Section 46-9-103, MCA, and the amount of his bail must be determined in accordance with Section 46-9-301, MCA. A bail bond has statutory authority and is not to be confused with an appeal bond, for which there is no statutory provision.

ACCORDINGLY, IT IS ORDERED:

1. The Court accepts jurisdiction in this case for the purpose of the issuance of a writ of supervisory control to the Justice Court of Lake County, Montana, Charles C. Meyer, Justice of the Peace presiding.

2. Abbitt is entitled to perfect his appeal without the necessity of filing an appeal bond as required by the justice court.

3. Within 30 days from the issuance of this order and opinion, the entire record of the Justice’s Court proceedings relating to Abbitt must be transferred to the District Court, or his appeal must be dismissed. It shall be the duty of Abbitt to perfect the appeal. Section 46-17-311, MCA.

4. A copy of this order and opinion shall be and constitute and serve the office of a writ of supervisory control to effectuate the orders of this Court herein contained.

5. Copies of this opinion and order shall be served by the Clerk of this Court by ordinary mail upon counsel of record, the District Court of the Twentieth Judicial District, County of Lake, and upon the Justice Court of Lake County, Poison, Montana, Charles C. Meyer, Justice of the Peace presiding.

MR. CHIEF JUSTICE TURNAGE AND MR. JUSTICES HARRISON, WEBER, MORRISON, GULBRANDSON AND HUNT, concur.


author: MR. JUSTICE GULBRANDSON

text:
    ERNEST TERRY, Petitioner, on behalf of himself and all other similarly situated past and present employees of defendants, Plaintiff and Appellant, v. BOARD OF REGENTS OF HIGHER EDUCATION of the State of Montana and Montana State University, Defendants and Respondents.
    No. 85-375.
    Submitted on Briefs Oct. 24, 1985.
    Decided Feb. 18, 1986.
    714 P.2d 151.

      James M. Kommers, Landoe, Brown, Planalp, Kommers and John-stone, Bozeman, for plaintiff and appellant.
    Roger N. Flair, Montana State University, Bozeman, William Richardson, Dept, of Labor & Industry, Helena, for defendants and respondents.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Ernest Terry, the plaintiff, appeals a Gallatin County District Court order granting the defendant’s motion to dismiss and/or for summary judgment. The District Court upheld an administrative decision of the Labor Standards Division and determined that the plaintiff was a farm worker and an employee employed in agriculture and therefore exempt from the overtime provision of Section 39-3-405(1), MCA. On appeal, plaintiff raises issues concerning judicial review of an administrative decision, his status as an employee of the University and the certification of this action as a class action suit. We affirm the order of the District Court upholding the administrative decision and granting judgment to the defendant. Therefore, we do not reach the third issue in this appeal.

The plaintiff worked at an Agricultural Experiment Station for Montana State University in Bozeman, Montana, from October 1979 through March 1982. He was employed as an agricultural research technician, commonly referred to as a beef herdsman. During the term of his employment, the plaintiif resided on the Gerwin Farm or Gerwin Block. This is a 160 acre farm purchased by the University in 1957 as part of its Agricultural Experiment Station.

The plaintiffs duties as a beef herdsman consisted of the care and maintenance of the resident beef herd. He fed the cattle, provided them with salt and minerals, helped deliver calves, maintained fences and assisted with artificial insemination chores. He also maintained records necessary for the management of the herd. His duties were similar in nature to those duties on any cattle farm or ranch.

In April 1982, the plaintiff submitted a claim to the Department of Labor and Industry for alleged unpaid overtime wages. The Department held a hearing on September 23, 1982, before a hearing officer of the Labor Commission. The hearing officer dismissed the plaintiffs claim on the grounds that he was a farm worker and exempt from the overtime provisions of Section 39-3-405(1), MCA. After hearing oral argument on appeal, the District Court remanded the case back to the Department “for additional testimony on the nature and extent of the Gerwin Research Farm.” It took the defendant’s motion to dismiss and/or for summary judgment under advisement.

The Department reheard the matter on November 30, 1983. After hearing additional testimony and receiving further evidence from both parties, the hearing officer concluded that plaintiff was an agricultural employee performing labor on a farm or ranch and thus was exempt from the overtime requirement of Section 39-3-405(1), MCA. He also concluded that the Gerwin Research Farm, even though it was part of an Agricultural Experiment Station and owned by the University, was a farm or ranch for the purposes of determining overtime exemptions under Montana’s Minimum Wage and Overtime Act, Sections 39-3-401, et. seq., MCA.

After these findings and conclusions were transmitted to the District Court, the defendant renewed its motion to dismiss and/or for summary judgment. The District Court, after a hearing, granted the defendant’s motion. Judgment in favor of the defendant was entered on April 23, 1985.

Plaintiff appeals and raises three issues:

(1) Did the District Court err when it upheld the findings of fact and conclusions of law made by the Department of Labor and Industry?

(2) Is plaintiff, as an employee of Montana State University working at an Agricultural Experiment Station, either exempted or excluded from the overtime provisions of Section 39-3-405(1), MCA?

(3) Should this action be certified as a class action to adjudicate wage claims of all those persons in positions similar to this plaintiff’s position?

The Montana legislature set out the scope and standard of judicial review of an administrative agency’s decision in Section 2-4-704, MCA, part of Montana’s Administrative Procedure Act. The relevant portions of that section state:

“(1) The review shall be conducted by the court without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the agency not shown in the record, proof thereof may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs.
“(2) The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
“(d) affected by other error of law;
“(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; [or]
“(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion ...”

This Court has defined these standards further in case law. Findings are binding on the court and not “clearly erroneous” if supported by “substantial, credible evidence in the record.” City of Billings v. Billings Firefighters Local No. 521 (1982), 200 Mont. 421, 431, 651 P.2d 627, 632. Appellants carry the burden of showing prejudice from a clearly erroneous decision. See, e.g., Carruthers v. Board of Horse Racing (Mont. 1985), [216 Mont. 184,] 700 P.2d 179, 181, 42 St.Rep. 729, 732.

Plaintiff contends, as part of his first issue, that some of the administrative agency’s findings of fact are not supported by substantial evidence and are therefore clearly erroneous. In particular, he challenges the findings characterizing the Gerwin Farm and the Agricultural Experiment Station as engaging in farming or ranching and characterizing his duties as similar to those of any other farm or ranch worker. Section 39-3-402(4), MCA, defines a farm or ranch as:

“ . . . any endeavor primarily engaged in cultivating the soil or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, bees, and poultry and fur-bearing animals and wildlife.” (Emphasis added.)

This description does not require that the employer be a farm or ranch or even primarily engaged in those listed activities. This description focuses on the activities at the situs of the work. So long as the endeavor engaged in at the particular location consists of one or more of the purposes in Section 39-3-402(4), MCA, the location is a “farm or ranch” for the purposes of Title 39, Chapter 3, Part 4, MCA, on minimum wage and overtime compensation. The testimony heard on remand corroborated the plaintiff’s description of the Gerwin Farm as “a little small ranch on the South end of the college . . . [consisting of] ... a barn, a house, corrals . . . “ The Station’s director testified that the Gerwin Farm’s function is to produce livestock for research and teaching functions; it has a “normal production and sales system;” it is operated in a conventional manner; and it has “typical facilities that accompany a livestock operation” such as a barn, residence, livestock facilities and fencing, feeding and watering systems. The operations of Gerwin Farm, and similarly the Agricultural Experiment Station, fit within the statutory description of an “endeavor primarily engaged in . . . raising, . . . feeding, caring for, . . . and management of livestock ...” We hold that the District Court properly affirmed the administrative finding that this operation was a farm or ranch within the statutory definition.

As noted above, the plaintiff disputes the findings that depict him as a farm worker or an employee engaged in agriculture, as well. Farm worker is defined in Section 39-3-402(5), MCA, as “any person employed to do any service performed on a farm or ranch.” (Emphasis added.) Having established that plaintiff performed his services on a farm or ranch, he fits within the statutory definition of farm worker and thus is excluded from the overtime provisions as required by Section 39-3-405(2), MCA.

The plaintiff may also be described as an employee employed in agriculture, thus fitting within the Section 39-3-406(2) (g), MCA, exclusion to the overtime provisions. Although the evidence conflicted, the plaintiff testified at the first hearing on his overtime wage claim that his duties were:

“ . . . Calving cows and general maintenance of the herd, health and fence, feeding in winter time.
“Q. [by Hearing officer:] Did you have any other duties besides apparently taking care of the cattle just general maintenance?
“A. [by Ernest Terry:] Not really.”

The director of the Agricultural Experiment Station testified that, as the beef herdsman, plaintiff had no responsibility for any teaching or research activities on the Gerwin Farm. Other testimony supports the characterization of the plaintiffs duties as that of an employee employed in agriculture as well. We hold that the findings that describe the plaintiff as a farm worker or employee in agriculture are supported by substantial credible evidence and are not clearly erroneous.

In the final part of his first issue, plaintiff contends that the administrative agency’s conclusions of law are erroneous and an abuse of discretion and therefore should be reversed. He apparently questions only the scope or standard of review on legal questions and notes that it is broader than on factual issues because the courts are the specialists in legal issues. This Court’s statement in City of Billings, expands on the language in Section 2-4-704, MCA.

“Where the intent of statutes is unclear, deference will be given to the agency’s interpretation . . . Where it appears that legislative intent is clearly contrary to agency interpretation, the courts will not hesitate to reverse on the basis of “abuse of discretion.” (Citations omitted.)

200 Mont. at 431, 651 P.2d at 632. As with factual challenges, the appellant carries the burden of showing the agency’s decision was incorrect. See, e.g. Carruthers, 700 P.2d at 181, 42 St.Rep. at 732.

The legal conclusions challenged by plaintiff are the subject of the second issue where he contends that the District Court’s interpretations of “farm worker” and “employee employed in agriculture” as including plaintiff, are incorrect. In Plouffe v. Farm & Ranch Equipment Co. (1977), 174 Mont. 313, 316, 570 P.2d 1106, 1108, this Court determined that the basis of the exemption from overtime for farm workers is that the situs where the work is performed is a farm or ranch. That particular exemption did not apply in Plouffe because the employee did not work on a farm or ranch. Celmer v. Schmitt (1982), 198 Mont. 271, 273, 645 P.2d 946, 947, although citing Plouffe, supra, appears to consider the exclusion from overtime provisions of an “employee employed in agriculture,” listed in Section 39-3-406(2)(g), rather than the “farm worker” exemption. The factors which supported the holding that the plaintiff in Celmer was an agricultural employee were (1) he was advised prior to employment that he was an agricultural employee; and (2) he had to perform any function required in the defendant’s livestock, grain and meat production enterprise. In the case at bar, the plaintiff performed his work on a farm or ranch, as discussed above. In addition, he was hired as a beef herdsman to do any work necessary in this defendant’s livestock enterprise. We hold that the District Court correctly concluded plaintiff was both a farm worker and an employee employed in agriculture and therefore not covered by the overtime provisions of Section 39-3-405(1), MCA.

In his third issue, the plaintiff requests certification of his suit as a class action. Our disposition of the first two issues renders a decision on this issue unnecessary.

The order of the District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and HUNT concur.


author: MR. JUSTICE HARRISON

text:
    RENAE J. TOCCO, surviving spouse; and Cori Tocco and Nicholas Anthony Tocco, minors, By and Through their guardian Judy L. Tocco, Claimants and Respondents, v. CITY OF GREAT FALLS, Employer, and State Compensation Insurance Fund, Defendant and Appellant.
    No. 85-82.
    Submitted Jan. 17, 1986.
    Decided Feb. 20 ,1986.
    714 P.2d 160.

      Marra, Wenz, Johnson & Hopkins, Thomas A. Marra argued, Great Falls, for defendant and appellant.
    Baiz & Olson, Thomas A. Baiz argued, Great Falls (Spouse), Regnier, Lewis, Boland & Roberts, Stephen D. Roberts argued (Children), Great Falls, for claimants and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from a judgment of the Workers’ Compensation Court of the State of Montana. Respondents sought benefits as a result of a March 9, 1984, industrial accident in Cascade County which resulted in the death of Anthony Tocco. The court awarded benefits to the respondents and this appeal followed. We affirm.

Claimant-respondent Renae Tocco is the surviving widow of the decedent, Anthony Tocco (hereinafter Tocco). Claimant-respondent Judy Tocco is the guardian of Cori and Nicholas Tocco, the biological minor children of the decedent. Renae Tocco, Cori Tocco and Nicholas Tocco are all beneficiaries of the decedent pursuant to Section 38-71-116(2), MCA.

The decedent, age 36 at the time of his death, was hired as a temporary employee by the City of Great Falls in November of 1983. The record indicates that Tocco had hypertension (high blood pressure) and coronary arteriosclerosis (narrowing of the arteries leading to the heart) which pre-existed his employment with the City of Great Falls.

Prior to the date of his death, Tocco worked almost exclusively as a “helper” on a city sanitation route. As a sanitation “helper” Tocco’s job was helping the “lead man” collect refuse. The employee in the “lead man” position had more responsibility than the helper. The “lead man” was responsible for his crew, that the route was followed and that no stops on the route were missed. The record indicates that Tocco was considered by his fellow employees to be a good worker.

When Tocco was hired in November 1983, it was made known to him that his job was temporary. On March 7, 1984, two days before his death, Tocco was notified that he would be laid-off effective March 21,1984. On March 8,1984, Tocco was told that he was to be the “lead man” on the Riverview route on March 9, 1984 (the day of his death). The Riverview route was considered by the Great Falls Sanitation Department to be the most difficult and confusing route in the entire city.

The record shows Tocco felt it was very important that he perform well on his job and impress his employers. He knew that permanent, full-time positions were going to open up and felt that hard work would increase his chances of getting a full-time position. Tocco felt that his job performance on March 9,1984, as a lead man, was a test which could determine whether or not he would be rehired by the City of Great Falls.

On March 9, 1984, when Tocco and his helper, Ken Lind, broke for lunch they were fifty-six stops ahead of schedule on the Riverview route. The record shows that during his lunch hour, Tocco checked in with the sanitation foreman to see if there had been any calls about missed stops on his route. The foreman indicated to Tocco that no calls had been received.

After lunch, at approximately 2:30 p.m., Tocco and Ken Lind made a stop at a residence to collect refuse. This was the only stop that day at which Ken Lind had to ask Tocco for help due to the size and weight of the object. The record shows the object was a box approximately two and one-half feet wide and six to seven feet long. Tocco grabbed the box and dragged it four or five feet from the garbage can rack to the truck. At this point both Tocco and Ken Lind grabbed the box to lift it. The box bent in the middle as they lifted it, and Tocco had all the weight of the box as they put it in the truck. Approximately two to three minutes after Tocco lifted the box, Ken Lind found him lying on the ground beside the truck. Tocco was given CPR but could not be revived, and was dead on arrival at the hospital.

The uncontroverted medical evidence presented by all three doctors in this case, Drs. Buffington, Henneford and Willson, revealed that Tocco had hypertension and coronary arteriosclerosis which pre-existed his employment with the City of Great Falls. Dr. Henneford’s autopsy report revealed that at the time of his death, Tocco had the following:

“I. Severe stenosing arteriosclerosis of coronary arteries [narrowing of the arteries leading to the heart] with:
“A. 75-80% stenosis of left main coronary artery and anterior descending branch.
“1. Organizing thrombosis [blood clot] and partial occlusion of anterior descending branch.
“B. 50-75% stenosis of circumflex branch of left coronary artery and of right coronary artery.”

Dr. Henneford, in his autopsy report, listed Tocco’s cause of death as “coronary artery insufficiency.”

The three doctors, named above, also testified that if Tocco had not died at work on March 9, 1984, he might have lived weeks, months, possibly even years longer. Furthermore, Tocco’s treating physician, Dr. Buffington, testified that Tocco’s job related emotional and physical stress may have played a very direct role in his sudden death by aggravating his pre-existing conditions of arteriosclerosis and hypertension. Dr. Willson, appellant’s expert witness, and Dr. Henneford, the pathologist, also both testified that it was at least medically possible that the job related emotional and physical stress experienced by Tocco shortly before his death aggravated his pre-existing arteriosclerosis and hypertension and led to his sudden death.

The respondents subsequently filed a Petition for Hearing with the Workers’ Compensation Court alleging Tocco had suffered an industrial injury resulting in his death which arose out of and in the course of his employment with the Great Falls Sanitation Department. The Workers’ Compensation Court ruled in favor of the respondents and found Tocco's death was caused by his employment with the City of Great Falls. The State Compensation Insurance Fund appeals.

The appellant, State Workers’ Compensation Fund, presents the following issues for review by this Court:

(1) Whether the Workers’ Compensation Court was in error by ruling that a death caused by arteriosclerosis is a compensable Workers’ Compensation injury.

(2) Whether the Workers’ Compensation Court was in error when it denied appellant’s motion to retake the deposition of its medical expert, Dr. Willson, after new and relevant medical evidence was discovered.

(3) Whether the Workers’ Compensation Court erred when it allowed respondents and other witnesses to testify about statements made by the decedent.

Under the first issue, appellant contends the Workers’ Compensation Court was in error when it held that Tocco’s death was caused by his work for the City of Great Falls. Basically, appellant is arguing that the instant case is not a heart attack case, but a case dealing with the disease of arteriosclerosis. The appellant contends the real issue is whether the decedent suffered a compensable Workers’ Compensation injury as a result of his death from the natural progression of the disease of arteriosclerosis. The appellant strongly points out that this Court has never allowed compensation under the Workers’ Compensation Act where the medical evidence shows that a claimant has died from the natural progression of the disease of arteriosclerosis. Schieno v. City of Billings (Mont. 1984), [210 Mont. 457,] 683 P.2d 953, 41 St.Rep. 1157; Dumont v. Wickens Brothers Construction Company (1979), 183 Mont. 190, 598 P.2d 1099; McAndrews v. Schwartz (1974), 164 Mont. 402, 523 P.2d 1379.

The respondents, on the other hand, argue appellant totally misstates the issue as “whether Tocco suffered a compensable Workers’ Compensation injury as a result of his death from the natural progression of the disease of arteriosclerosis.” Respondents point out they have never sought and do not now seek compensation for Tocco’s arteriosclerosis which indisputably pre-existed his employment with the City of Great Falls. Rather, respondents argue they are entitled to Workers’ Compensation benefits because the evidence clearly shows Tocco died of heart failure, on the job, and that his job related physical and emotional stress aggravated his pre-existing arteriosclerosis and hypertension and caused his sudden death. Therefore, although appellant correctly points out that this Court has never compensated a claimant who has died as a result of the natural progression of the disease of arteriosclerosis (see Schieno, Dumont and McAndrews, supra,) these cases are technically not applicable to the instant case because respondents do not seek benefits for Tocco’s arteriosclerosis. We agree.

It should first be noted that the standard of review on appeal of a Workers’ Compensation Court judgment is both clear and well settled in Montana.

“The function of this Court is to determine whether there is substantial evidence to support the findings and conclusions of the Workers’ Compensation Court. . . This Court will not substitute its judgment for that of the trial court as to the weight of the evidence on questions of fact. . . Where there is substantial evidence to support the findings of the Workers’ Compensation Court, this Court will not overturn the decision . . .”

Bond v. St. Regis Paper Co. (1977), 174 Mont. 417, 419, 571 P.2d 372, 373.

In light of this standard, we believe there is substantial credible evidence on the record to support the judgment of the lower court in the instant case. Therefore, this Court cannot overturn that decision.

First, we find the decision of the lower court was correct in its conclusion that respondent’s proved a compensable injury and that such an injury was the cause of Tocco’s death. For an injury to be compensable under the Workers’ Compensation Act, it must first meet certain definitional requirements. Section 39-71-119, MCA, defines “injury” as follows:

“(1) a tangible happening of a traumatic nature from an unexpected cause or unusual strain resulting in either external or internal physical harm and such physical condition as a result herefrom and excluding disease not traceable to injury, except as provided in Subsection (2) of this section:
“(2) cardiovascular or pulmonary or respiratory disease contracted by a paid firefighter employed by a municipality, village, or fire district as a regular member of a lawfully established fire department, which diseases are caused by overexertion in times of stress or danger in the course of his employment by proximate exposure or by cumulative exposure over a period of 4 years or more to heat, smoke, chemical fumes, or other toxic gases. Nothing herein shall be construed to exclude any other working person who suffers a cardiovascular, pulmonary, or respiratory disease while in the course and scope of his employment.
“(3) death resulting from injury.”

Appellant contends that Subsection (2) of Section 39-71-119 is the only clause applicable to the instant case because it deals with “cardiovascular . . . disease [caused] while in the course and scope of . . . employment.” Further, under subsection (2), appellant argues that respondents have not carried their burden of proof that it was “medically probable” that Tocco’s cardiovascular disease was caused by his employment with the City of Great Falls. In fact, the appellant points out, the medical evidence is uncontroverted that Tocco’s hypertension and arteriosclerosis pre-existed his employment with the City of Great Falls.

Respondents, on the other hand, point out “it is well established in Montana that an employer takes his employee subject to the employee’s physical condition at the time of employment . . .” Bond, 571 P.2d at 374. Furthermore, when claimants have pre-existing conditions, that combined with their industrial accidents produce their disability, acceptable proof of disability is proof that it was medically possible for an industrial accident to aggravate a pre-existing condition. Viets v. Sweet Grass County (1978), 178 Mont. 337, 583 P.2d 1070. Also, this Court in Bykonen v. Montana Power Company (Mont. 1985), [217 Mont. 169,] 703 P.2d 856, 858, 42 St.Rep. 1112, 1115, recently reaffirmed its consistent holdings that “when it is proved medically possible that an industrial accident or injury aggravated a pre-existing condition, that proof may, together with other evidence, establish a compensable disability.”

The respondents argue, and this Court agrees, the case at bar is clearly an aggravation of a pre-existing condition case. Therefore respondents discharge their burden of proof by showing a “tangible happening of a traumatic nature from an unexpected cause or unusual strain” (Section 39-71-119(1)) possibly aggravating Tocco’s pre-existing arteriosclerosis and high blood pressure and resulting in his death. In this case, the Workers’ Compensation Court found, and it is undisputed in the evidence, that at the time of Tocco’s sudden death, he was suffering from the effects of significant physical and emotional stress which satisfied the requirements of Section 39-71-119(1), and that such stress aggravated his pre-existing arteriosclerosis and caused his sudden death. The court found in finding of fact No. 28., “The job-related physical and emotional stress claimant suffered shortly before his death aggravated his pre-existing conditions of hypertension, arteriosclerosis and narrowed coronary arteries, and led to his death.” This finding was based on the testimony of Dr. Buffington, decedent’s physician, and supports the court’s finding.

On the date of his death, Tocco was suffering from considerable mental and emotional stress because: (1) he had been notified only-two days earlier of his lay-off; (2) he had been given more responsibility on the day of his death then he had at any other time during his four months of employment which caused him to be very nervous; (3) he was very concerned about missing some stops on a route which was very difficult and confusing; and (4) he considered his lead man responsibilities as a test to determine whether or not he was qualified for a full-time position with the City at a later date.

Completing the chain of incidents are the job related physical stresses Tocco underwent on the day of his death. Of particular importance are the facts that (1) Tocco and his helper were 56 stops ahead of schedule on this particular route, and (2) Tocco dragged and lifted the heaviest object he and his helper had to handle that day only two to three minutes prior to his death.

Finally, the physician’s testimony provided the final link between Tocco’s pre-existing conditions, his physical and emotional injuries, and his sudden death. For example, Dr. Buffington, Tocco’s treating physician, testified that Tocco’s job related emotional and physical stress may have played a very direct role in his sudden death by aggravating his pre-existing conditions of arteriosclerosis and hypertension.

“Q. [By respondents’ attorney] Do you have an opinion as to whether the physical and emotional stress more likely than not aggravated the pre-existing conditions and led to the death?
“A. [By Dr. Buffington] I think as a factor in precipitating the acute arrhythmia, given the information in the autopsy, that it may have played a very direct role in precipitating that acute death.
“Q. What is the basis for that opinion, Doctor?
“A. Well, basically the sudden death syndrome is associated with cardiac arrhythmias. Usually ventricular fibrillation. We know that generally there is in a sudden death syndrome, there is generally some underlying cardiovascular disease, usually coronary disease. But there is frequently a precipitating factor which will cause the myocardium to become irritable. And that in Mr. Tocco’s case was more than likely related to the circulating adrenalin levels within his bloodstream at that point in time. Probably in extremely high levels related to his extreme physical activity.
“Q. How would that release of adrenalin make the heart more susceptible to arrhythmia, heart attack, and sudden death in Tony Tocco’s case?
“A. Basically by producing more ventricular contractions at a site of ventricular irritability.
“Q. And, Doctor, would the emotional distress in and of itself release adrenalin into the system?
“A. Excuse me?
“Q. Would the emotional stress in and of itself release adrenalin into the system?
“A. No question. That has been proven many times.
“Q. And, Doctor, would the physical stress on top of the emotional stress release even a greater amount of adrenalin into the system?
“A. One would assume that.
“Q. Is it correct to assume the more adrenalin in the system the more likely the adrenalin would irritate the heart and cause the fatal arrhythmia?
“A. That is correct.”

In summary under this issue, we find there is substantial credible evidence on the record to support the judgment of the Workers’ Compensation Court entered in favor of the respondents. Therefore, we will not disturb that decision.

Under the second issue, appellant contends the Workers’ Compensation Court committed reversible error when it refused to grant appellant’s motion to retake the deposition of its expert witness, Dr. Willson. The appellant claims it should have been allowed to retake the deposition of Dr. Willson because Dr. Willson was deposed before Dr. Buffington, respondents’ expert witness. Appellants claim it was during the deposition of Dr. Buffington that new and relevant medical information was discovered for the first time concerning certain “risk factors” which may have led to Tocco’s arteriosclerosis and Dr. Willson did not have the opportunity to review and comment on this new medical information. Further, appellant argues it should have been allowed to retake the deposition of Dr. Willson because the medical information provided by the respondents during discovery was inadequate and this severely prejudiced the effectiveness of Dr. Willson’s deposition. We disagree with appellant’s argument under this issue for several compelling reasons.

First, the subject matter the appellant wishes to obtain by redeposing Dr. Willson is totally irrelevant to the issues of this case. The appellants wish to redepose Dr. Willson about certain “risk factors” which may have led to Tocco’s arteriosclerosis. This inquiry into Tocco’s risk factors is totally irrelevant because it is undisputed by either party that Tocco had arteriosclerosis before his employment with the City of Great Falls. Further, as discussed earlier, respondents do not seek compensation for Tocco’s arteriosclerosis. The only issue in this case was whether Tocco’s physical and emotional stresses at the time of his death may have aggravated his preexisting arteriosclerosis and caused his sudden death. Dr. Willson thoroughly discussed this issue during his deposition.

Second, appellant’s argument that respondents improperly withheld medical information during discovery is also totally without merit. If the appellant had truly believed that respondents’ information during discovery was insufficient, it had a clear, exclusive remedy under the Montana Rules of Civil Procedure. Rule 33(a), M.R.Civ.P., provides that “. . . the party submitting the interrogatories may move for an order under Rule 37(a) with respect to any objection to or other failure to answer an interrogatory.” The appellant did not seek any order by the lower court compelling discovery.

For the reasons discussed above, we hold the lower court did not abuse its discretion when it denied appellant’s motion to retake the deposition of Dr. Willson.

Under the third and final issue, appellant argues that the lower court’s ruling allowing respondents and their witnesses to testify about statements alleged to have been made by Tocco for the purpose of proving his mental stress was a violation of the Montana Rules of Evidence regarding hearsay. At the time of trial, appellant points out, it objected to testimony from Tocco’s widow and other witnesses concerning statements made by Tocco showing he was under mental and emotional stress from his job shortly before he died. Appellant submits the lower court improperly ruled these statements were admissible on the grounds that the statements were not offered for the truth of the matter asserted. We disagree with appellant’s conclusion and agree with the lower court’s ruling.

First, it must be noted that by statute the Workers’ Compensation Court is not bound by either the common law or statutory rules of evidence, including the prohibition against hearsay evidence. Section 39-71-2903, MCA. Therefore, it is within the discretion of the Workers’ Compensation Judge to accept or reject “hearsay” testimony. Krause v. Sears Roebuck (1982), 197 Mont. 102, 641 P.2d 458.

Further, even if the lower court was bound by the rules of evidence (which it is not) the testimony to which the appellant objects is still admissible because it is not hearsay. The statements made by Tocco to the witnesses showing he was under extreme mental and emotional stress from his job shortly before his death were not offered at trial for the truth of the matter asserted. Rather, the purpose of this testimony was to show what Tocco thought and felt shortly before he died. This testimony is not hearsay. Rule 801(c), M.R.Evid. Therefore, the Workers’ Compensation Court did not err when it allowed respondents and other witnesses to testify about statements made by Tocco.

The judgment of the Workers’ Compensation Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HUNT, WEBER, SHEEHY, GULBRANDSON and MORRISON concur.


author: MR. JUSTICE WEBER

text:
    In re the MARRIAGE OF SHELTON CROSS WILLIAMS, Petitioner and Respondent, and DONNA LEA WILLIAMS, Respondent and Appellant.
    No. 85-103.
    Submitted on Briefs July 25, 1985.
    Decided Feb. 20, 1986.
    714 P.2d 548.

      Gough, Shanahan, Johnson & Waterman, Ronald Waterman, Helena, for respondent and appellant.
    Koch, McKenna, Goheen & Boggs, Gail H. Goheen, Hamilton, for petitioner and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Donna Lea Williams (wife) and Shelton Cross Williams (husband) independently appeal an order of the Missoula County District Court which resolved reserved questions ancillary to the prior dissolution decree regarding maintenance, child support, valuation and division of marital assets. We affirm.

The issues on appeal are:

1. Was it error to award maintenance payments to the wife because of her career foregone during marriage, and to set the value at $162,597?

2. Did the District Court err in requiring that the maintenance payments be taxable as income to the wife and deductible to the husband, and in allowing the maintenance payments to be made without interest?

3. Did the District Court err by awarding all the income tax deductions for the minor children to the husband?

4. Did the District Court err when it included the Williams apartment property in the marital estate?

5. Did the District Court err in its valuation of the Ashberry apartment property, the Williams apartment property, and the personal property?

6. Did the District Court err in allowing the husband to manage specific monetary accounts of the children and to offset the children’s education costs against maintenance or support?

7. Did the District Court err when it made the child support obligation subject to review in four years?

8. Did the District Court properly amend its judgment nunc pro tunc to require that the wife allow the husband to prepare and pay her income tax return for the tax year 1983 or be ordered to report a portion of the payments husband had made to her as maintenance?

The parties were married in December 1963. Eighteen years later they were divorced. Six children were born during the marriage. Presently, five are minors requiring support.

The wife received a Bachelor’s degree in Art from Montana State University in June 1963, and currently holds a provisional teaching certificate in Art and English. She did not pursue a career in art or teaching after marriage, but remained at home to care for the children. The husband is an attorney licensed to practice law in Montana with an established law practice in Missoula. The law practice is a professional corporation, solely owned by the husband. There are two full-time and one part-time associates working for the firm.

At the time of dissolution, the net worth of the marital estate was approximately $600,000. The court divided the marital estate as follows:

Husband Wife
2110 Greenough (Family home) $ 98,345.82
2.43 acre lot 77,000.00
1515 Ashberry Apts $ 9,505.31
1519 & 1521 Ashberry Apts 25,935.58
216 West Main 17,956.55
Williams’ Apartments 89,839.54
University Apartments (after taxes and payment of 16,900.00 attorney fees)
Fox Farm road lots 4.666.00
130 West Broadway 16.900.00
Sennes’ Contract 16,925.83
Keogh/IRA 5.167.00
Williams Law Firm Pension 17.900.00
Williams Law Firm, P.C. 150,000.00
Personal Property 25,132.83 25,745.00
Tax Refund 1,800.00
_ TOTAL $396,294.64 $202,890.82

The court found that the wife required maintenance for a reasonable period to allow her to complete her education and become employed. The wife was awarded $800 per month as maintenance and $1,353 per year for school fees and books beginning July 1984, and continuing until June 1988. The court also awarded the wife $162,597 additional maintenance, $16,259.70 a year for ten years commencing July 1988, with no interest to be paid on that amount. The court ordered that the husband could deduct the payments as maintenance for income tax purposes.

Husband and wife were awarded joint custody of the five minor children. The wife will have physical custody of the children seven months out of the year, and the husband will have custody five months. The husband was ordered to make support payments to the wife of $250 per child while the children are residing with the wife and $100 per child while they are residing with him: All of the income tax deductions for minor children were awarded to the husband.

The wife's, husband’s and children’s attorneys’ fees were ordered paid from the proceeds of the sale of the University apartments.

I

Was it error to award maintenance payments to the wife because of her career foregone during marriage, and to set the value at $162,597?

The District Court found that the wife sustained career value losses of $162,597, which included $76,313 in lost retirement benefits and $86,284 in salary differential. Finding of fact 36 stated:

“36. Donna introduced an economic consultant, Dr. Dennis O’Donald, to testify regarding Donna’s income producing ability. Dr. O’Donald evaluated Donna’s educational background, her job skills . . . As set forth below, the Court has found that Donna should be entitled to $16,259.70 per year for ten years as maintenance in addition to the $800.00 maintenance payment for the next four years. In consideration of this additional award of maintenance, the Court finds that the distribution of property hereinafter set forth is fair and equitable in light of all of the considerations set forth in Section 40-4-202 MCA, and the Court rejects Donna’s claims that she is entitled to any additional property distribution as a result of her claimed external contribution to the marriage.”

The District Court concluded:

“Beginning four years following the date of this decree, Mike shall pay $16,259.70 a year for ten years to Donna for her claim against the estate. This sum will be paid on each anniversary of the date of this decree for ten years. No interest shall be paid on this amount; it shall be considered maintenance for tax purposes.”

The husband contends that the District Court should not have considered the career evaluation losses of $162,597 for maintenance purposes or for any other purpose. We do not agree with that contention.

Section 40-4-203, MCA, sets forth the elements which a district court is required to consider in making a maintenance award. As pertinent here, Section 40-4-203, MCA, states:

“(1) In a proceeding for dissolution of marriage . . . the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:
“(a) Lacks sufficient property to provide for his reasonable needs; and
“(b) Is unable to support himself through appropriate employment
“(2) The maintenance order shall be in such amounts and for such periods of time as the court deems just . . . after considering all relevant facts including:
“(a) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently.
“(c) The standard of living established during the marriage;
“(d) The duration of the marriage;
“(f) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.”

The District Court concluded that as a result of the wife’s lost employment for a number of years during marriage, she suffered lost retirement benefits of $76,313. In other words, had the wife continued her employment during marriage, the $76,313 was the present value of the retirement benefits which would have accrued to her. Under Section 40-4-203, MCA, it is appropriate to consider retirement benefits in determining whether a spouse has sufficient property to provide for her reasonable needs, and whether she is able to support herself through appropriate employment. The terms sufficient property for reasonable needs and inability to support through appropriate employment have been discussed and interpreted as follows:

“The appropriate construction of the language of Section . . . (l)(a) and (b) . . . is whether the spouse seeking maintenance lacks sufficient property and is unable to support herself through appropriate employment according to the standard of living established during the marriage .... We recognize there are public policy considerations behind rehabilitative spousal maintenance awards which, under appropriate circumstances, may give incentive to the spouse receiving maintenance to procure job skills so as to become self-sufficient. However, this public policy must be balanced with some:

“ ‘realistic appraisal of the probabilities that the receiving spouse will in fact subsequently be able to support herself in some reasonable approximation of the standard of living established during the marriage, especially when a marriage of long-term duration is involved and the employment history shows a long-term absence of the spouse from the labor market with lack of a presently existing employment skill.’ “ Lindsay v. Lindsay, 115 Ariz. 322, 565 P.2d at 205.

In re Marriage of Dale A. Madson (1979), 180 Mont. 220, 224-25, 590 P.2d 110, 112-13. See also, Levandowski v. Levandowski (Mont. 1981), 630 P.2d 239, 38 St.Rep. 1002. We conclude that the District Court properly considered the loss of retirement benefits in computing a maintenance award for the wife.

In a similar manner, the District Court found a salary differential loss of $86,284 when it contrasted the salary the wife would have earned had she continued her outside employment during marriage with what she will be able to earn after the dissolution. Again, under the terms of the statute, the consideration of such loss of earnings is significant in determining whether the wife is able to support herself through appropriate employment, and in considering her ability to meet her needs independently , together with the standard of living, duration of marriage, and ability of the husband to meet his needs while meeting the maintenance needs. We conclude that the District Court properly considered the salary differential in making a maintenance award to the wife.

The parties also discuss whether or not it would be appropriate to consider the sustained career value losses in making a distribution of property. While it is not necessary that we rule on this question, we do point out that Section 40-4-202, MCA, sets forth in great detail the elements to be considered by the District Court in making an equitable apportionment of a marital estate. Included in those elements are the requirement that the court consider the opportunity of each of the parties for future acquisition of capital assets and income. It seems clear that lost retirement benefits and loss of earnings as a result of salary differential properly could be considered as the court looks at the ability of the wife to make an acquisition of both capital assets and income in the future.

The District Court here had a choice of distributing marital property to the wife or making an award of maintenance based upon the career value losses. The evidence submitted would have supported a property distribution from the marital estate had that been done. Instead, the District Court chose to award maintenance of $16,259.70 per year for ten years, beginning four years after the date of the decree.

We have extensively reviewed the findings of fact, conclusions and decree of the District Court. The District Court made over 40 separate written findings of fact covering distribution of the martial estate, support of the children and maintenance for the wife. These findings and the record demonstrate careful consideration on the part of the District Court of the complex facts presented by the strongly contesting parties.

The findings of fact also show that the District Court carefully considered the needs of the wife in the next few years when education is reasonably required, and also her needs after that period up to and following retirement. In substance, the court concluded that the wife lacked sufficient property to provide for her reasonable needs during that period of time. The court considered the monetary effect of the foregone earnings, and after balancing all of the factors involved in a maintenance award under Section 40-4-203, MCA, and considering the factors involved in the distribution of the marital estate under Section 40-4-202, MCA, concluded that an award of maintenance was the appropriate manner of satisfying the reasonable needs of the wife. We approve the analysis of the District Court, and affirm the maintenance award to the wife in the total amount of $162,597.

The husband also contends that the District Court erred in valuing the lost retirement benefits and earnings in the amount of $162,597. The District Court heard conflicting testimony from two experts on the issue of the value of foregone earnings. “The trier of fact is free to disregard the expert testimony of one party and adopt the testimony of the other party as long as the other party’s evidence is credible and substantial.” Rose v. Rose (Mont. 1982), [201 Mont. 86,] 651 P.2d 1018, 1020, 39 St.Rep. 1971, 1974. The District Court accepted the valuation submitted by the professor of economics, who testified as an expert for the wife. His qualifications and method of valuation were clearly established and set forth. We conclude that the record contains substantial credible evidence to support the value selected by the District Court.

II

Did the District Court err in requiring that the maintenance payments be taxable as income to the wife and deductible to the husband, and in allowing the maintenance payments to be made without interest?

The award of tax deductions is one factor among many which the court considers in determining an equitable division of the marital estate. “Where a property distribution ordered by a court includes a taxable event precipitating a concrete and immediate tax liability, such tax liability should be considered by the court before entering its final judgment.” In re Marriage of Beck (Mont. 1981), 631 P.2d 282, 285, 38 St.Rep. 1054, 1058.

In substance, the District Court provided that the maintenance award was a tax deduction to the husband and taxable income to the wife. Here, the wife received a property distribution of $202,890.82 plus $9,600 per year maintenance for four years, $1,353 per year for four years for school fees and books, $11,150 per year in child support which decreases as the minor children become adults, and a yearly lump sum payment of $16,259.70 as additional maintenance beginning in four years.

We conclude that the District Court fairly balanced all of the factors to be taken into consideration, including as a key part of that balancing, the allocation of income tax consequences. We conclude that the District Court did not abuse its discretion in requiring maintenance payments to be taxable as income to the wife and deductible to the husband.

In addition, the wife contends that she should have been awarded interest on the total of $162,597. That contention could be made if that amount was a property distribution. However, maintenance accrues only as it becomes due. If the wife should die, the need for maintenance would terminate. Here the court chose to award maintenance over a period of ten years. We affirm the holding of the District Court that an award of future maintenance does not warrant an interest charge.

III

Did the District Court err by awarding all the income tax deductions for the minor children to the husband?

This issue has been substantially answered by our preceding analysis. In awarding the husband the tax deductions, the District Court stated:

“Because of his higher income, the deductions would result in a greater tax savings to Mike, and it would provide him with a greater potential to provide funds for the future use of the children, which is to their benefits. In addition, the level of support to be paid by Mike for the children’s use compels that he should be allowed to claim the children as a tax deduction.”

We affirm the award of income tax deductions to the husband.

IV

Did the District Court err when it included the Williams apartment property in the marital estate?

The husband testified that he and his parents bought the Williams apartment property together, but his parents paid the total down payment. He later paid them back for one-half of the down payment out of the profits made on the property. The husband contends that his interest in the property was a gift and therefore should not be included as a part of the marital estate. There is substantial evidence to support a conclusion that a gift was not made. The husband contends more specific findings were required on the issue of gift. We conclude that the District Court need make specific findings only if it finds the contested property is a traceable gift. See In re Marriage of Herron (1980), 186 Mont. 396, 404, 608 P.2d 97, 101.

We affirm the inclusion by the District Court of the Williams apartment property in the marital estate.

V

Did the District Court err in its valuation of the Ashberry apartment property, the Williams apartment property and the personal property?

Husband argues that the court erred in not accepting his expert’s appraisal value.

“The trial judge is free to select and reject appraisal values as he wishes, so long as there is substantial credible evidence in support of the values he selects. However, where the values presented at trial are widely conflicting, the trial judge must state the reasons for his selection. Where, as here, the trial judge states his reasons for selecting one appraisal over the others, there is no abuse of discretion.”

In re Marriage of Glass (Mont. 1985), [215 Mont. 248,] 697 P.2d 96, 100-01, 42 St.Rep. 328, 332. (Citations omitted.) Regarding the Williams and Ashberry apartment properties, the court stated that it accepted the appraisal offered by the wife’s expert because it was more comprehensive, reflecting three different approaches to valuation. We conclude the court did not abuse its discretion in selecting the wife’s appraisal.

Husband contends that the property distribution should be readjusted in his favor because some household furnishings were counted twice when the District Court divided the marital estate. It does appear that some furnishings may have been counted twice. However, this Court will not attempt to review every element of a complex property distribution in the same manner as might be done if an accountant were auditing. Our function is to examine whether there is substantial evidence to support the property distribution. Viewing the overall apportionment in light of the District Court’s comprehensive and extensive findings of fact, and considering the complexities involved, we conclude that the property distribution, including that of household furnishings, is affirmed.

VI

Did the District Court err in allowing husband to manage specific monetary accounts of the children and to offset the children’s education costs against maintenance or support?

Wife contends that husband has mismanaged certain monetary accounts of the children and that an independent trustee should be appointed. The court stated in Finding of Fact No. 19:

“In order to address the concern that the appropriate accounts belonging to the children be kept separate from other accounts owned by the parties, the Court finds that Mike should provide Donna with an annual report on the condition of the funds held for the benefit of the children . . . “

We find no abuse of discretion. The wife’s concerns have been appropriately addressed and adequately provided for.

Wife argues that the court’s amended order creates havoc in her future budget by allowing husband to offset the children’s education against support or maintenance and by ordering her to share the uninsured medical costs of the children. Finding of Fact No. 21 states:

“It is reasonable to require both parties to contribute equally to the cost of maintaining the children in their private grade schools. The Court orders that this should be accomplished by Mike paying all of the tuition and book payment costs for the children as the same become due, and in turn, thereafter deducting 50 percent of those costs from future support and maintenance obligations owing to Donna.”

We find no abuse of discretion. The wife is capable of calculating when the offset should take place and will have twelve months each year to prepare her budget for the offset.

Husband was ordered to provide medical and dental coverage for the children and to select an appropriate plan. However, the court also ordered each parent to bear 50 percent of the uninsured medical and dental costs. The wife argues that the husband should pay all the uninsured costs. We find no abuse of discretion. We note that husband should use reasonable care to select a plan that is adequate and keeps uninsured costs to a minimum.

VII

Did the District Court err when it made the child support obligation subject to review in four years?

Wife contends that Section 40-4-208, MCA, permits modification of a child support decree only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable. Wife argues that husband intends the support obligation to be reviewed under a different standard. That contention is not an issue presently before us. The standard of review to be applied by the District Court in four years will be the standard then in effect under the appropriate statutes and cases. We will not presume the District Court will disregard the law. We conclude the court did not abuse its discretion in making the child support obligation subject to review in four years.

VIII

Did the District Court properly amend its judgment nunc pro tunc to require that the wife allow the husband to prepare and pay her income tax return for the tax year 1983 or be ordered to report a portion of the payments husband had made to her as maintenance?

Finding of Fact No. 43 gave the wife a choice with regard to filing an income tax return for the year 1983:

“The . . . [husband] has paid to the . . . [wife] the sum of $22,534.00 during the 1983 tax year .... [Husband] has requested the . . . [wife] to allow him to prepare the returns for both parties . . . with the understanding that if . . . [husband] were allowed to do so, he would pay all taxes due and owing . . .
“The Court Orders that. . . effective January 1, 1983, that $200.00 per month of the payments made by . . . [husband] to . . . [wife] in 1983 for each of the parties’ five minor children be treated as child support (for a total of $12,000) and the balance of $10,534 shall be treated as maintenance . . . with . . . [husband] entitled to deduct the same from his taxes, and . . . [wife] Ordered to declare those amounts as income; or, in the alternative, at. . . [wife’s] option, that the arrangement proposed by . . . [husband] for preparation of both parties’ returns in 1983 as set forth above shall be implemented providing that if . . . [wife] chooses this option, she pays all penalties and interest if she has not requested extensions in the filing of her return, ... in the event . . . [wife] fails to provide the necessary tax information and execute the documents within the time limitations set forth, . . . [husband] may proceed by filing a separate return declaring alimony as described in the first alternative set forth above.”

The wife argues that the retroactive order will be considered invalid by the Internal Revenue Service. She bases this argument on various United States District Court cases. No Montana federal district court cases or Ninth Circuit Court of Appeals cases are cited as authority to us. State district courts, of course, do not have jurisdiction to determine deductibility under the Internal Revenue Service Code. That is reserved to the federal courts.

We conclude that the choice offered the wife was equitable in view of the overall distribution and award. We hold that the court did not abuse its discretion in awarding the husband maintenance nunc pro tunc.

We affirm the District Court in all respects.

MR. JUSTICES HARRISON, MORRISON, SHEEHY and HUNT concur.


text:
    VIRGIL S. PROCTOR, Personal Representative, of the Estate of Jessie M. Smart, deceased, Ida S. Miewald, Ethel V. Hess, Julia E. Reid, and John R. Stam, Personal Representative of the Estate of Minnie May Stam, Deceased, John R. Stam, Heir and Devisee of Minnie May Stam, and Richard S. Stam, Heir and Devisee of Minnie May Stam, Plaintiffs and Appellants, and TERESA E. PUCKETT, Polly Keith, Cecelia Olson, Patricia Leinhart, Bridget M. Mathes and Bernadett Thornland, Defendants and Appellants, v. CALISTA M. WERK, Ella Ortner, George Ortner and Linda Ortner, Defendants and Respondents.
    No. 85-178.
    Submitted Oct. 29, 1985.
    Decided Feb. 20, 1986.
    714 P.2d 171.

      Jardine, Stephenson, Blewett & Weaver, Alex Blewett argued, Great Falls, Thompson & Swenson, Bruce E. Swenson argued, Havre, for plaintiffs and appellants.
    Sias & Ranstrom, Bruce W. Moerer argued, Chinook, for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The Blaine County District Court, interpreting a deed reservation as clear and unambiguous, granted summary judgment for respondents (mineral owners) and against appellants (royalty owners). Royalty owners appeal. We reverse and remand.

The sole and dispositive issue on appeal is whether the deed reservation was ambiguous, thereby demonstrating a genuine issue of material fact which precluded summary judgment.

In June 1944, Blaine County deeded land to John H. Miewald, reserving 5% of all oil, gas and other minerals. Later, in August of the same year, Mr. Miewald deeded the land to Minnie May Stam. The deed contained a reservation to Mr. Miewald of “six percent of all royalties received for oil and gas removed from the above-described property.”

Mr. Miewald’s 6% royalty reservation of 95% of oil and gas removed has now become vested in the large group of parties referred to as royalty owners but listed as plaintiffs/appellants and defendants/appellants.

In 1968, the mineral owners leased the property subject to a Vs landowners’ royalty, that being 12 V2 % of oil and gas produced. Later, the property began producing oil and a dispute arose. The mineral owners, whose deed is subject to the royalty reservation, contended that the royalty reserved was 6% of the landowners’ royalty of 12% % of 95% of oil and gas produced. Stated differently, if 100 barrels of oil were produced, Blaine County would be entitled to 5% of production or 5 barrels and royalty owners would be entitled to 6% of 12%% of the remaining 95 barrels or approximately % of one barrel of oil.

In contrast, royalty owners argued that they were entitled to 6% of 95% of production. In other words, if 100 barrels of oil were produced, they would be entitled to 6% of 95 barrels or 5.7 barrels.

Thus, at issue, was whether the deed reservation conferred a royalty of 5.7 barrels out of every hundred or approximately % of a barrel out of every hundred.

In District Court, each side moved for summary judgment. The District Court, ruling on the basis the reservation was not ambiguous, granted summary judgment for the mineral owners.

Was the deed reservation ambiguous, thereby demonstrating a genuine issue of material fact which precluded summary judgment?

Section 70-1-513, MCA, provides that grants of real property are to be interpreted according to the same principles as contracts. Thus, under Section 28-3-401, MCA, the language of the deed reservation is to govern interpretation if the language is clear and explicit. “Where the language of a written contract is clear and unambiguous, there is nothing to construe and the duty of the court is to apply the language, as written, to the facts of the case.” Peterson v. Hopkins (Mont. 1984), [210 Mont. 429,] 684 P.2d 1061, 1063, 41 St.Rep. 1140, 1142-43.

However, under Sections 28-2-905 and 70-20-202, MCA, if the language is not clear and explicit, extrinsic evidence may be used to explain an ambiguity. “Where the terms of an agreement are uncertain and ambiguous, parol evidence is admissible to prove the interpretation meant by the parties.” Rumph v. Dale Edwards Inc. (1979), 183 Mont. 359, 368, 600 P.2d 163, 168. See also Souders v. Montana Power Co. (Mont. 1983), [203 Mont. 483,] 662 P.2d 289, 290, 40 St.Rep. 583, 585.

Was the deed reservation ambiguous? A deed reservation is deemed ambiguous when taken as a whole, its wording or phraseology is reasonably subject to two different interpretations. See Souders, 662 P.2d at 290. The deed here stated:

“[s]ubject to a reservation hereby made to the party of the first part to six percent of all royalties received for oil and gas removed from the above-described property . . .”

The District Court found Mr. Miewald’s reservation comparable to an unambiguous reservation in Nourse v. Kovacevich (1941) 42 CalApp.2d 769, 109 P.2d 999. In Nourse, which awarded a percentage of the landowner’s royalty and not a percentage of production, the deed reserved:

“[e]qual one-eighth of any royalty . . . developed on or received from said land, together with one-eighth of any cash bonus ...”

Citing Nourse, the District Court concluded that there was no ambiguity and that Mr. Miewald’s reservation could only mean that the reserving party would take 6% of X% landowners’ royalty from 95% of the minerals. While we might disagree with the analysis of the District Court, certainly there is a basis for arguing that its interpretation of Nourse was reasonably applicable.

We do not find that to be the only conclusion which can be reached from the reservation. The District Court in reaching its decision that the deed reservation was unambiguous, referred to the 1968 leases executed on the land, under which the landowners’ royalty was 1214 % of oil, gas and minerals produced. Yet, as pointed out by the District Court, this was a perpetual nonparticipating royalty because at the time of the reservation, no oil and gas lease was in existence. As a result, the reserved royalty is in no way dependent upon the terms or provisions of an oil and gas lease executed in 1968. In Stokes v. Tutvet (1958), 134 Mont. 250, 328 P.2d 1096, relied upon by the District Court for the definition of perpetual nonparticipating royalty, we stated that in the broadest sense, royalty refers to an interest the landowner may create by outright reservation either before or after the execution of an oil and gas lease, and constitutes a share in production. Clearly, a landowner could reserve 50% or one-half of all oil and gas to be produced prior to execution of a lease so that he would receive 50 barrels out of every 100 barrels produced. While oil and gas leases frequently have a 1214% landowners’ royalty, as was here executed in 1968, there are other oil and gas leases for lesser and greater percentages of production.

The present reservation is 6% of all royalties received for oil and gas removed. The Nourse reservation was Vs of any oil royalties developed or received. Starting with the Stokes analysis of royalty interests, in contrast to the Nourse analysis by the District Court, it is possible to contend that the reservation meant 6% of all production when it spoke of 6% of all royalties. If that were the intent, it would then entitle the royalty owners to substantially more than was awarded under the District Court order.

We conclude that it is reasonably possible to construe the reservation as meaning 6% of all production received as well as meaning 6% of the landowners’ royalty. As a result, we conclude that the deed reservation was ambiguous.

It is a well-established principle that summary judgment is only appropriate when there is no genuine issue as to any material fact. In this case, the determinative fact is the interpretation of the deed reservation. Yet the reservation is ambiguous and the true intent of the parties is discernible only with reference to extrinsic evidence. “Summary judgment is usually inappropriate where the intent of the contracting parties is an important consideration.” Twite v. First Bank (N.A.) Western Mont. (Mont. 1984), [214 Mont. 348,] 692 P.2d 471, 472, 41 St.Rep. 2518, 2520; Fulton v. Clark (1975), 167 Mont. 399, 404, 538 P.2d 1371, 1374. We hold that summary judgment was inappropriate because the deed alone did not establish the true intent of the parties.

We reverse and remand for further proceedings consistent with this opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, HUNT, SHEEHY, MORRISON and GULBRANDSON concur.