author: CHIEF JUSTICE TURNAGE JUSTICE HUNT,

text:
    CITY OF BILLINGS, Plaintiff and Respondent, v. JIMMY LEE LAEDEKE, Defendant and Appellant.
    No. 90-264.
    Submitted Jan. 18, 1991.
    Decided Feb. 5, 1991.
    247 Mont. 151.
    805 P.2d 1348.

      Robert L. Stephens, Stephens Law Firm, Billings, for defendant and appellant.
    Russell C. Fagg, City Atty., Billings, Marc Racicot, Atty. Gen., and John Paulson, Asst. Atty. Gen., Helena, for plaintiff and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Jimmy Lee Laedeke appeals an order of the Thirteenth Judicial District, Yellowstone County, which upheld the constitutionality of §§ 3-304(d) and (e), Billings, Montana City Code (BMCC), an ordinance banning certain forms of nude and semi-nude dancing. The District Court upheld the constitutionality and found Laedeke guilty of violating the ordinance. We affirm.

Laedeke raises the following issues:

1. Did the District Court err in finding that the City of Billings had authority to adopt regulatory ordinances for state-licensed retail liquor premises?

2. Did the District Court err in concluding that the municipal ordinance did not violate state and federal constitutional provisions relating to freedom of speech, freedom of expression, equal protection, due process, and vagueness and over-breadth?

FACTS AND PROCEDURE

In 1987, Jimmy Lee Laedeke worked as a male revue dancer at the Club Carlin, d/b/a Big Daddy’s, an establishment licensed by the state to sell alcoholic beverages, in Billings, Montana. As a male revue dancer, Laedeke entertained the Club Carlin patrons by performing burlesque-type dance routines to music. Laedeke designed his own dance costumes, which consisted of various layers of clothing that he would progressively remove as his dance routines unfolded.

Laedeke began one of his dance routines dressed in a raincoat. Underneath his raincoat, Laedeke wore a bikini brief, equivalent to a speedo swimsuit, which was embellished with portrayals of Groucho Marx’s nose, mustache and glasses on the front portion of the bikini. Underneath his “Groucho” bikini, Laedeke wore two overlapping G-strings. A G-string, designed for a male, is a garment consisting of a pouch that covers the genital area with a narrow string attached to the pouch which runs up the buttocks and attaches to a narrow belt worn around the waist. Laedeke’s top G-string was of slightly larger proportions than the bottom G-string. The arresting police officer testified that the smaller G-string’s pouch barely covered Laedeke’s genital area and its string was approximately one-eight inch wide. Laedeke would complete his routine by wearing only the smaller G-string.

On the evening of November 6, 1987, the arresting police officer observed Laedeke while he was performing this particular dance routine. After viewing Laedeke’s performance, the police officer left the Club Carlin to review relevant ordinances in connection to this performance. The police officer returned approximately one-half hour later and cited Laedeke with a violation of § 3-304, BMCC, which prohibits certain forms of nude and semi-nude dancing while Laedeke was again performing the same routine. Additionally, the arresting officer cited four other female performers that night, as well as the manager of the Club Carlin, for violating § 3-304, BMCC, and in one instance, § 3-301, BMCC, which requires five entertainment to remain on a platform or within an exclusive area while performing.

Legal proceedings originated in the City Court of Billings. On December 17,1987, Laedeke and five co-defendants moved to dismiss the case based on the unconstitutionality of §§ 3-301 and -304, BMCC. On February 8, 1988, the defendants were found guilty of violating § 3-304, BMCC, and in one instance, § 3-301, BMCC.

The defendants appealed to District Court. On October 6, 1988, Laedeke consented to the withdrawal of Richard Stephens as his attorney and expressed his interest to represent himself pro se. On October 20, 1988, the District Court, by stipulation, dismissed with prejudice the appeal of the remaining defendants and ordered their respective bonds of $150.00 forfeited. Laedeke, however, continued his case, asserting the unconstitutionality of § 3-304, BMCC.

Following a trial on January 11,1990, the District Court found that the City of Billings had the authority to enact § 3-304, BMCC, and that this ordinance was constitutional; the court also found Laedeke guilty of violating the ordinance, fined him $ 130.00, and assessed him a $20.00 court surcharge. From this decision, Laedeke further appeals.

STANDARD OF REVIEW

A “legislative enactment” is presumed to be constitutional and will be upheld on review except when proven to be unconstitutional beyond a reasonable doubt. Fallon County v. State (1988), 231 Mont. 443, 445-46, 753 P.2d 338, 339-40 (citations omitted).

ANALYSIS

1. Did the District Court err in finding that the City of Billings had authority to adopt regulatory ordinances for state-licensed retail liquor premises?

Laedeke argues that §§ 3-304(d) and (e), BMCC, are unconstitutional based on state preemption of regulation of establishments state-licensed to sell alcoholic beverages under the Montana Alcoholic Beverage Code, §§ 16-1-101 to 16-6-314, MCA. We disagree.

The pertinent language of the Montana Alcoholic Beverage Code, found under §§ 16-1-101(2) and -104, MCA, provides:

“It is hereby declared to be the policy of the state of Montana to effectuate and ensure the entire control of the manufacture, sale, and distribution of alcoholic beverages within the state of Montana, as that term is defined in this code, subject to the authority of the state of Montana through the Montana department of revenue.
“The purpose and intent of this code are to prohibit transactions in alcoholic beverages which take place wholly within the state of Montana except under state control as specifically provided by this code, and every section and provision of this code shall be construed accordingly.”

Sections 3-304(d) and (e), BMCC, provide:

“(d) Any owner, proprietor or person in charge of an establishment in which alcoholic beverages are sold or dispensed, who knowingly permits any person to appear clothed, costumed, unclothed, or uncostumed in such a manner that the lower part of his/her torso, consisting of the private parts, or genitalia, or anal cleft, or cleavage of the buttocks, is not covered by a fully opaque material, or is so thinly covered as to appear uncovered, is guilty of a misdemeanor.
“(e) Any person who intentionally appears with private parts uncovered in an establishment as in § (d), whether employed by the establishment or not, is guilty of a misdemeanor.”

The Montana Alcoholic Beverage Code grants the Department of Revenue Liquor Division the authority to regulate the “manufacture, sale, and distribution of alcoholic beverages.” (Emphasis added.) The Code, however, does not grant the Department the authority to regulate the conduct that may occur in establishments state-licensed to sell alcoholic beverages.

Here, Laedeke’s place of employment, the Club Carlin, was a Billings establishment state-licensed to sell alcoholic beverages to its patrons. Accordingly, the Montana Alcoholic Beverage Code applies to the regulation of the sale of alcoholic beverages within the Club Carlin. Sections 3-304(d) and (e), BMCC, are ordinances banning certain forms of topless and bottomless dancing which may occur in Billings establishments state-licensed to sell alcoholic beverages. Clearly, these ordinances in no way regulated the Club Carlin’s sale of alcoholic beverages to its patrons, but instead, regulated Laedeke’s conduct that occurred in the Club Carlin. This is simply not a “liquor-sale” case as found in State ex rel. City of Libby v. Haswell (1966), 147 Mont. 492, 414 P.2d 652, where we held that a city ordinance which granted a police court jurisdiction over the offense of selling beer to a minor under twenty-one years of age was invalid and preempted by the state. We therefore hold that the City of Billings had the authority to enact §§ 3-304(d) and (e), BMCC, as the City of Billings was not preempted by the Montana Alcoholic Beverage Code to regulate conduct which may occur in state-licensed liquor establishments.

2. Did the District Court err in concluding that the municipal ordinance did not violate federal and state constitutional provisions relating to freedom of speech, freedom of expression, equal protection, due process, and vagueness and over-breadth?

Laedeke argues that restricting burlesque-type dancing is a violation of the First Amendment of the United States Constitution, as well as Article 2, § 7 of the Montana Constitution, which states that “[n]o law shall be passed impairing the freedom of speech or expression.” Laedeke asserts that nude dancing, as a visual representation, is a form of protected expression if it is not found to be obscene citing 41 Op. Att’y Gen. 75 (1986), and here, uncontroverted evidence establishes that burlesque-type dancing featured at the Club Carlin was viewed by the performers as a form of artistic self-expression. Furthermore, Laedeke argues that no evidence exists in the record to establish that Laedeke’s performance was obscene.

Laedeke additionally argues that the ordinance offends the principles of equal protection and due process in both the federal and state constitutions. Laedeke further argues that the ordinance is vague and overly-broad. Laedeke, however, failed to adequately brief the arguments of equal protection, due process, vagueness, and over-breadth in his brief to this Court, and, as such, this Court will not further address these arguments. We will therefore limit our discussion to whether 1) the ordinance violated the First Amendment of the United States Constitution, and 2) whether Article 2, § 7 of the Montana Constitution provides greater protection for individual expressive activity than the First Amendment of the United States Constitution.

Laedeke’s constitutional argument based on a First Amendment violation lacks merit in light of a series of three United States Supreme Court cases. Those cases clearly establish that an ordinance regulating nude and semi-nude dancing is constitutional under the broad language of the Twenty-First Amendment of the United States Constitution, which grants the states the power to regulate the sale of liquor. In City of Newport v. Iacobucci (1986), 479 U.S. 92, 107 S.Ct. 383, 93 L.Ed.2d 334, the Court upheld a Kentucky municipal ordinance, quite similar to the Billings ordinance in question, which banned certain forms of nude and semi-nude dancing in bars. The Court stated that the sweeping language of the Twenty-First Amendment confers to states the authority to ban nude and semi-nude dancing in establishments state-licensed to sell liquor “ ‘as a part of its liquor license control program.’ ”Iacobucci, 479 U.S. at 95, 107 S.Ct. at 385. (Citation omitted.) Additionally, the Court held that states may delegate this authority “as they see fit.” Iacobucci, 479 U.S. at 96. The Court in Iacobucci cited New York State Liquor Authority v. Bellanca (1981), 452 U.S. 714,101 S.Ct. 2599, 69 L.Ed.2d 357, where the Court upheld a state statute banning nude dancing in bars. In Bellanca, the Court held that the state’s interest of upholding order outweighed the interest of free expression -under the First Amendment. Bellanca, 452 U.S. at 716-17, 101 S.Ct. at 2601. The Court in Iacobucci and Bellanca cited California v. LaRue (1972), 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed. 2d 342, as authority, which upheld a state regulation banning nude dancing in bars holding that the Twenty-First Amendment confers broad powers “over public health, welfare, and morals.” LaRue, 409 U.S. at 114, 935 S.Ct. at 395.

Therefore, a municipality may enact an ordinance regulating nude and semi-nude dancing if the state has delegated its regulatory authority under the Twenty-First Amendment to the municipality. Here, the City of Billings is a municipality with self-government powers. In Montana, a municipality with self-government powers “may exercise any power not prohibited by this constitution, law, or charter.” Mont. Const. Art. XI, § 6. A Montana municipality with self-government powers is not expressly prohibited from regulating nude and semi-nude dancing in establishments state-licensed to sell liquor. Therefore, the City of Billings, a municipality with self-government powers, may enact an ordinance that regulates nude and semi-nude dancing under the broad regulatory powers of the Twenty-First Amendment.

Laedeke further argues that Article II, § 7 of the Montana Constitution, the “freedom of speech or expression” clause, provides greater protection for individual expressive activity than the First Amendment’s “freedom of speech” clause of the United States Constitution. In the past, this Court has discussed the First Amendment and its state counterpart without distinguishing between the two provisions. See Dorn v. Board of Trustees of Billings School District #2 (1983), 203 Mont. 136, 144-45, 661 P.2d 426, 430-31. Several state courts, however, have developed state constitutional protections which limit state authority over nude entertainment apart from the Twenty-First Amendment. Some of these courts have held that the state’s police power, though possibly not limited under the United States Constitution, is limited by the state constitution’s free expression protections. See Mickens v. City of Kodiak (Alaska 1982), 640 P.2d 818, 821; Bellanca v. New York State Liquor Authority (1981), 54 N.Y.2d 228, 445 N.Y.S.2d 87, 88, 429 N.E.2d 765, 766; Harris v. Entertainment Sys. Inc. (1989), 259 Ga. 701, 386 S.E.2d 140, 142.

We, however, concur with the Florida Supreme Court’s analysis in City of Daytona Beach v. Del Percio (Fla. 1985), 476 So.2d 197, 203-04, where, in upholding a municipal ordinance banning certain forms of nude and semi-nude dancing, the court stated:

“Assuming that Florida’s constitutional protection of nude barroom dancing is coextensive with the federal protections (and we are not inclined to find a greater state protection in this instance), a municipality’s inherent police power, exercised for the public health and welfare, may outweigh the minimal speech protection at stake here. ‘The regulation of activity which has demonstrated a capacity to induce breaches of the peace is a traditional and legitimate subject for the exercise of a municipality’s police power.’ (citations omitted.)
... While some may question the wisdom of regulating crime such as this, which said detractors might term victimless, the decision lies with the legislative body, not the courts.”

Here, we are also inclined not to find a greater state protection of nude and semi-nude dancing in establishments state-licensed to sell alcoholic beverages than what is afforded by the United States Constitution. Accordingly, we hold that the municipal ordinance in question is constitutionally sound under the Montana Constitution.

Affirmed.

JUSTICES HARRISON, McDONOUGH, BARZ, SHEEHY and WEBER concur.

JUSTICE HUNT,

dissenting:

I dissent. There are many ways to express an opinion. Some people wrap themselves in the flag. Others burn it. But the majority of us silently regard it as an emblem of the freedom to express ourselves as we see fit. In dancing, there are many ways to express oneself, ways that the rest of us do not always regard as “our way.” Some put on a pair of tights and perform classical ballet. Others attire themselves in fancy dress and promenade on a ballroom floor. Jimmy Lee Laedeke dons a Groucho Marx bikini and two G-strings and prances before the patrons of The Club Carlin.

The Majority has danced the wild fandango in its zeal to ensure that Laedeke’s routine shall never again see the footlights of Billings. First, it holds that the City is not preempted by state liquor-control law from enacting an ordinance forbidding nude and semi-nude dancing in establishments that serve alcohol because the ordinance restrains conduct rather than the manufacture, sale and distribution of alcohol. In the next breath, it holds that the ordinance is constitutional under the Twenty-First Amendment because it is part of a liquor-control program.

The City cannot have it both ways. Either the ordinance was enacted as a part of a liquor-control program or it wasn’t. If it was part of a liquor-licensing scheme, the City could not enact the ordinance because the area of alcohol sales has been affirmatively subjected to state control. If it wasn’t part of a liquor-control program, and instead was enacted solely to regulate conduct, the ordinance does not fit under the broad base of power granted to the states under the Twenty-First Amendment.

A state’s authority to regulate conduct under the Twenty-First Amendment is inextricably coupled with its authority to regulate the sale of alcohol. The amendment grants the State the ability to proscribe conduct because “[t]he [s]tate’s power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where topless dancing occurs .’’ New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 717, 101 S.Ct. 2599, 2601, 69 L.Ed.2d 357, 361 (1981). Strip away the alcohol sales, as the Majority does in the first part of the Opinion, and you have an ordinance that no longer fits under the lesser protection of the Twenty-First Amendment. The ordinance instead becomes a conduct-restricting regulation subject to the greater degree of scrutiny given to all laws impheating the First Amendment.

Thus, once the Majority determined that the City’s ordinance was not preempted by the State because it regulated conduct rather than alcohol sales, it was required to review the constitutionality of the law under the standards pertaining to regulations that, on their face, restrict conduct for its communicative element. As Justice Marshall pointed out in his dissent to California v. LaRue, 409 U.S. 109, 131, 138, 93 S.Ct. 390, 403, 407, 34 L.Ed. 2d 342, 359, 363 (1972), a case concerning California laws banning sexual conduct in bars and night clubs:

“[I]n order to restrict speech, the State must show that the speech is ‘used in such circumstances and [is] of such a nature as to create a clear and present danger that [it] will bring about the substantive evils that [the State] has a right to prevent.’ (Citations omitted.)
“Classifications that discriminate against the exercise of constitutional rights per se ... must be supported by a ‘compelling’ governmental purpose and must be carefully examined to insure that the purpose is unrelated to mere hostility to the right being asserted.”

The ordinance could not pass scrutiny under this test because, as the City acknowledged in its brief, it has failed to make a showing of governmental interest furthered by the law.

What I find most disturbing about the Majority’s thinly veiled attempt to uphold this ordinance at any price is its failure to take this opportunity to put some teeth into our state constitutional guarantee of freedom of expression. 1972 Mont. Const. Art. II, § 7. In voting unanimously to include a specific provision for the freedom of expression in the Montana Constitution, the Bill of Rights Committee stated:

“Hopefully, this extension (of freedom of expression) will provide impetus to the courts in Montana to rule on various forms of expression similar to the spoken word and the ways in which one expresses his unique personality in an effort to re-balance the general backseat status of states in the safeguarding of civil liberties. The committee wishes to stress the primacy of these guarantees in the hope that their enforcement will not continue merely in the wake of the federal case law.” (Emphasis added.)

Bill of Rights Committe Proposal, II Mont. Const. Convention 630 (Feb. 23,1972.)

Although the committee expressed the hope that the Montana Constitution’s freedom of expression would give broader guarantees than the U.S. Supreme Court had accorded the right, this Court has refused to listen to this desire. Instead, the Majority today bestows lesser protection to the freedom of expression than that accorded by the federal court. The Majority has not required the City to demonstrate any governmental interest forwarded by this ordinance. Instead, it has placed the burden of proving unconstitutionality on Laedeke. And the standard the majority has demanded that he use, that of a reasonable doubt, is the most stringent standard of all. What a sad day it is when we allow a law that on its face constricts so fundamental a right to pass muster under the lowest possible scrutiny available.

The fact that Laedeke dances to a different choreographer should not be a reason to deny him, and inferentially all of us, the basic constitutional right to express our feelings whether they are about the flag, dancing or Groucho Marx.

I would reverse.


source: Caselaw Access Project

author: JUSTICE BARZ

license: Public Domain

text:
    MOUNTAIN WEST FARM BUREAU MUTUAL INSURANCE COMPANY, Plaintiff and Appellant, v. CREDIT GENERAL INSURANCE COMPANY, Defendant and Respondent.
    No. 90-307.
    Submitted on briefs Dec. 13, 1990.
    Decided Feb. 5, 1991.
    247 Mont. 161.
    805 P.2d 569.
    Larry E. Johnson, James, Gray & McCafferty, Great Falls, for plaintiff and appellant.
    Ronald B. MacDonald, Datsopoulos, MacDonald & Lind, Missoula, for defendant and respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

This is an action for contribution. Mountain West Farm Bureau Mutual Insurance Company (Farm Bureau) appeals from an order of the District Court for the Fourth Judicial District, Missoula County, granting judgment on the pleadings to Credit General Insurance Company (Credit General). We affirm.

The issue is whether the District Court erred in ruling that the Farm Bureau insurance policy provided primary coverage and that the Credit General policy provided only excess coverage.

On September 16, 1988, a fire destroyed a residence owned by Gerald Richie in Ravalli County, Montana. Richie had purchased a policy of property and liability insurance from Farm Bureau for that property. Citizen’s State Bank (the bank) had a security interest in the Richie property. The bank carried insurance with Credit General to protect its interest in the Richie property and in other properties in which it retained an interest.

In a bankruptcy proceeding, Farm Bureau petitioned for a determination of insurance coverage between itself and Credit General. The parties stipulated that Farm Bureau would pay $127,500, the policy limit on the residence, to the bank. Farm Bureau then brought this separate action to obtain contribution from Credit General.

Both the Farm Bureau and the Credit General insurance policies contained “other insurance” clauses. The Farm Bureau policy purchased by Richie provided

“If you are carrying other insurance on the property to which this policy applies, the coverage under this policy is null and void. We may permit other insurance, however, by endorsement to this policy. If other insurance is permitted, we will not be liable for a greater portion of any loss than our pro rata share in excess of any deductible.”

The Credit General policy purchased by the bank provided

“If there is any other valid and collectible insurance which would attach if the insurance provided under this policy had not been affected, this insurance shall apply only as excess and in no event as contributing insurance, and then oxdy after all other insurance has been exhausted.”

The District Court concluded that the Credit General policy provided excess coverage which did not constitute “other insurance” within the meaning of the Farm Bureau policy. It therefore granted Credit General judgment on the pleadings.

In deciding this case, the District Court cited Mountain States Mut. Cas. Co. v. American Casualty Co. (1959), 135 Mont. 475, 342 P.2d 748. That case involved an accident in which a borrowed truck was at fault. The two insurance companies which were potentially hable were the insurer of the truck and the insurer of the borrower/driver of the truck. The lower court prorated liability between the two insurers. On appeal, this Court stated that

“[A] non-ownership clause with an excess coverage provision does not constitute other valid and collectible insurance, within the meaning of a primary policy with an omnibus clause.”

Mountain States, 342 P.2d at 752. Under this Court’s ruling, the company that insured the truck bore full liability for damages.

Farm Bureau argues that application of the above rule to this case is error. It asserts that unlike Mountain States, this case involves two “non-ownership” insurance clauses. Farm Bureau argues that its policy contains a “union-type” loss payable endorsement which constituted an independent insurance policy between itself and the bank, not dependent on the rights of Richie. It asserts that both its policy and the Credit General policy insured the same property, the same interest in the property, and the same risks payable to the same party: the bank. It urges that liability be prorated between the two carriers based on the limits of both insurance policies, as is done where two applicable policies have the same type of “other insurance” clauses. See Bill Atkin Volkswagen, Inc. v. McClafferty (1984), 213 Mont. 99, 689 P.2d 1237; Glacier Gen. Assur. Co. v. State Farm Mut. Auto. Ins. Co. (1968), 150 Mont. 452, 436 P.2d 533.

In this case, however, the two insurance policies do not have the same type of “other insurance” clauses. The “other insurance” clause in the Credit General policy is an excess clause. The Farm Bureau policy contains a pro-rata clause. In a majority of jurisdictions, such conflicts between two insurance policies covering the same interest are resolved as follows:

“in [a conflict between a policy with a provision that it will only provide excess coverage over that available from other policies and one which specifies that it will share coverage with other policies], the terms of the excess clause prevail over the terms of the pro-rata clause. As explained by many of the courts adopting this view, the policy containing the excess clause does not purport to cover the event until other insurance covering the event has been exhausted, so that there is no ‘collectible’ insurance with which the loss can be shared by the insurance policy containing the pro-rata clause. Thus, the policy containing the pro-rata clause is the primary insurance on the event, and this policy must be exhausted before the excess policy is required to contribute anything.”

Annotation, “Resolution of conflicts, in non-automobile liability insurance policies, between excess or pro-rata ‘other insurance’ clauses,” 12 ALR 4th 993, 997 (1982). The majority rule contains no limitation concerning whether the insurance policies are ownership or non-ownership policies.

We conclude that in this instance it is immaterial whether both insurance policy clauses are non-ownership clauses. The majority rule is consistent with Mountain States and does not conflict with the Montana cases cited by Farm Bureau. We agree with the rationale behind the majority rule and hereby adopt that rule in Montana. We therefore hold that the District Court did not err in deciding that the excess provision in the Credit General policy controls and that the Farm Bureau policy provides primary coverage. We further hold that the District Court did not err in granting Credit General’s motion for judgment on the pleadings.

Affirmed.

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


author: JUSTICE WEBER

text:
    IN RE THE MARRIAGE OF GERALD RICHARD DZIVI, Petitioner and Appellant, and BEVERLY J. DZIVI, Respondent and Respondent.
    No. 90-475.
    Submitted on briefs Dec. 13, 1990.
    Rehearing denied March 5, 1991.
    Decided Feb. 5, 1991.
    247 Mont. 165.
    805 P.2d 567.

      Dirk Larsen, Larsen & Neill; Great Falls, for petitioner and appellant.
    C.W. Leaphart, Jr., The Leaphart Law Firm, Helena, for respondent and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

Petitioner, Gerald Richard Dzivi (Mr. Dzivi), initiated dissolution proceedings against respondent, Beverly J. Dzivi (Mrs. Dzivi), in District Court for the Eighth Judicial District, Cascade County. The District Court entered its Findings of Fact, Conclusions of Law and Decree dated June 1st, 1990. Mr. Dzivi appeals. We affirm.

The issues are:

1. Did the District Court abuse its discretion when it ordered Mr. Dzivi to pay Mrs. Dzivi the sum of $75,000.00 plus interest in lieu of a specific property division?

2. Did the District Court abuse its discretion when it ordered Mr. Dzivi to pay Mrs. Dzivi $1000.00 per month for maintenance?

3. Did the District Court abuse its discretion when it ordered Mr. Dzivi to pay Mrs. Dzivi $5000.00 for her attorney’s fees?

The parties were married for thirty-seven years. Mr. Dzivi is a practicing attorney and actively involved in various business ventures in Montana. Mrs. Dzivi works part time for a travel agency. The children of the marriage are all adults and the only issues before the District Court are division of the marital estate and maintenance. Both Mr. Dzivi’s and Mrs. Dzivi’s incomes have been recently reduced due to health problems of both parties.

I.

Did the District Court abuse its discretion when it ordered Mr. Dzivi to pay Mrs. Dzivi the sum of $75,000.00 plus interest in lieu of a specific property division?

The District Court found that the net worth of the marital estate was $149,000.00. It also found that liquidating the estate would not be in the best interests of the parties. Therefore the Court ordered Mr. Dzivi to pay Mrs. Dzivi half the value in the sum of $75,000.00 plus interest over an eight year period. Mr. Dzivi claims that the values assigned by the District Court to various items which comprise the marital estate are not supported by credible evidence. Mr. Dzivi asserts that if the District Court had accepted the values he placed upon the various items that the marital estate would have a negative net worth rather than the $149,000.00 net worth found by the Court.

The standard of review in a distribution case is that where the District Court based its distribution of marital assets on substantial credible evidence, it will not be overturned absent a clear abuse of discretion. Marriage of Johns (1989), 238 Mont. 256, 258, 776 P.2d 839, 840. In valuing property, the court is not bound by the opinion of a particular party or expert; rather, the court remains free, in its discretion, to adopt any reasonable valuation of property that is supported by the record. Marriage of Luisi (1988), 232 Mont. 243, 247, 756 P.2d 456, 459. In this case there is sufficient evidence in the record to support the values used by the District Court. The District Court did not abuse its discretion when it ordered Mr. Dzivi to pay Mrs. Dzivi the sum of $75,000.00 plus interest in lieu of a specific property division.

II.

Did the District Court abuse its discretion when it ordered Mr. Dzivi to pay Mrs. Dzivi $1000.00 per month for maintenance?

Section 40-4-203, MCA, provides that the court may grant maintenance for either spouse if that spouse lacks sufficient property to provide for his reasonable needs and is unable to support himself through appropriate employment. In this case the court found that Mrs. Dzivi lacks sufficient property to provide for her needs. The court also found that Mrs. Dzivi suffers from rheumatoid arthritis, a degenerative disease which affects her ability to perform physical work and which will continue to worsen. The court determined that Mr. Dzivi’s health was good with the exception of temporary despondency relative to the stress of the divorce proceedings. The court found that Mr. Dzivi was at an age where his law practice could be at its peak income-producing level should he devote his time to it, and that Mr. Dzivi has shown a remarkable ability to earn income, creatively manage assets, accounts receivable and use tax laws to his advantage. Mr. Dzivi has all the assets of the marriage and his ability to earn income, while Mrs. Dzivi only has a net income of $400-425 per month. Mrs. Dzivi’s health will create a significant disability with time, thus reducing her income ability even further. These facts satisfy the conditions required under § 40-4-203, MCA. The court did not abuse its discretion when it ordered Mr. Dzivi to pay Mrs. Dzivi $1000.00 per month in maintenance until she turns 65 or remarries.

III.

Did the District Court abuse its discretion when it ordered Mr. Dzivi to pay Mrs. Dzivi $5000.00 for her attorney’s fees?

Section 40-4-110, MCA, provides that the court, after considering the financial resources of both parties, may order a party to pay a reasonable amount for costs and attorney’s fees. The District Court was well aware of the parties’ financial situations and did not abuse its discretion in awarding Mrs. Dzivi reasonable attorney’s fees.

Affirmed.

JUSTICES HARRISON, BARZ, HUNT and McDONOUGH concur.


author: JUSTICE HUNT

text:
    J & L TIRE AND ALIGNMENT CENTER and STATE COMPENSATION INSURANCE FUND, Defendants and Appellants, v. JAMES R. PEAK, Claimant and Respondent.
    No. 89-612.
    Submitted on briefs Dec. 20, 1990.
    Decided Feb. 6, 1991.
    247 Mont. 169.
    805 P.2d 571.
    Norman C. Peterson, Agency Legal Services Bureau, Nancy Butler, State Ins. Fund, Dept, of Labor, Helena, for defendants and appellants.
    R. V. Bottomly, Bottomly Law Offices, Great Falls, for claimant and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant State Compensation Insurance Fund (State Fund) appeals from an order of the Workers’ Compensation Court granting claimant attorney fees on the full amount of his final award.

We affirm.

The sole issue raised on appeal is whether the defendants made a firm offer of settlement prior to the final award.

In October of 1984, James Peak sustained a back injury while employed at J & L Tire and Alignment Center. He retained counsel and counsel began negotiating with the State Fund. The State Fund made several settlement proposals to claimant between 1985 and 1987. None of these proposals were accepted by claimant.

A hearing was held in October of 1988. As a result of this hearing, claimant was found to be permanently partially disabled. He was awarded 500 weeks of permanent partial disability benefits of $143.00 per week under the authority of § 39-71-703, MCA, and was also awarded reasonable costs and attorney fees under authority of § 39-71-612, MCA.

On November 14, 1988, claimant’s counsel submitted his petition to the court for the agreed fee between counsel and claimant. He alleged that there had been no offers of settlement available at the time of the adjudication, and that all previous offers had been withdrawn. The Workers’ Compensation Court held an evidentiary hearing to determine attorney fees. It found that the fees were due and ordered the State Fund to pay attorney fees in the amount of the contract agreement between the claimant and his attorney, less the amount the State Fund had been willing to pay as a lump sum. It is from this order that the State Fund appeals.

Section 39-71-612, MCA (1983), reads:

“(1) If an employer or insurer pays or tenders payment of compensation under chapter 71 or 72 of this title, but controversy relates to the amount of compensation due and the settlement or award is greater than the amount paid or tendered by the employer or insurer, a reasonable attorney's fee as established by the division or the workers’ compensation judge if the case has gone to a hearing, based solely upon the difference between the amount settled for or awarded and the amount tendered or paid, may be awarded in addition to the amount of compensation.
“(2) When an attorney's fee is awarded against an employer or insurer under this section there may be further assessed against the employer or insurer reasonable costs, fees, and mileage for necessary witnesses attending a hearing on the claimant’s behalf. Both the necessity for the witness and the reasonableness of the fees must be approved by the division or the workers’ compensation judge.”

The State Fund maintained that there were offers to settle for a lesser amount made to the claimant before the disability hearing. The last proposal made by the State Fuad prior to the Workers’ Compensation Comb’s disposition of the disability claim was contained in a June 1987 letter that included the following language:

“... authorized to make the following settlement offer. State Fund will pay Mr. Peak the sum of $47,000 over a period of time. Such sum includes attorney’s fees and costs. If you should choose to accept this offer but prefer a lump sum arrangement, please feel free to reply with a proposal and I will take it to the State Fund for their consideration.”

The following month, the State Fund corrected the dollar amount in a letter stating:

“This letter is to correct our earlier settlement offer of $47,000. Due to a mathematical misunderstanding the correct amount should be $48,910. Again, the State Fund would be willing to advance a reasonable lump sum to pay off any debt obligations which Mr. Peak may have incurred.”

The claimant did not respond to this proposal.

A review of the record shows that the State Fund’s proposal of $48,910 was but one of many in a series of proposals and counterproposals between the State Fund and the claimant. The record shows that at least in June, July, August, and December of 1985; October of 1986; June and December of 1987; and January and March of 1988, correspondence or telephone conference memoranda indicate that the parties were trying to negotiate a settlement. Many of those offers were accompanied by proposed conditions, including time conditions.

The proposal made by the State Fund cannot be considered a firm offer because it leaves open the manner of payment with the words “. . the sum of $47,000 over a period of time.” It also leaves open the possibility of a lump sum settlement of undetermined amount. To be an offer contemplated by the statute nothing must be left to negotiate.

Affirmed.

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


author: JUSTICE HARRISON

text:
    CORA S. LABER, Petitioner and Appellant, v. SKAGGS ALPHA BETA, d/b/a BUTTREY FOOD AND DRUG, Employer and Insurer, Defendant and Respondent.
    No. 90-461.
    Submitted on briefs Dec. 21, 1990.
    Decided Feb. 6, 1991.
    247 Mont. 172.
    805 P.2d 1375.

      Denise Ackerman, Billings, for petitioner and appellant.
    Chris Mangen and Patricia Karrell, Crowley Law Firm, Billings, for employer and insurer, defendant and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the Workers’ Compensation Court of the State of Montana denying benefits. We affirm.

The following issues are presented by appellant:

1. Whether the Workers’ Compensation Court erred in finding that appellant’s industrial injury to her left little finger did not result in the aggravation of appellant’s carpal tunnel syndrome.

2. Whether the Workers’ Compensation Court erred in finding that appellant is not totally disabled as a result of appellant’s February 6, 1987 industrial injury to her left little finger.

At the time of the accident, Mrs. Cora Laber, appellant, was 59 years old. Prior to the accident, Mrs. Laber worked in Buttrey’s bakery as a sales clerk, hand-wrapper, icer, and cake decorator. On February 6, 1987, while employed at Buttrey Food and Drug in Billings, Montana, Mrs. Laber suffered a compensable injury arising out of, and in the course of, her employment. Mrs. Laber testified that it was about closing time and she was in a hurry and after turning off the bread machine, she did not wait long enough for the motor to stop. As a result, the little finger on her left hand was caught in between moving parts of the machine and the end of her finger was partially crushed. The injury did not involve any other part of her body. On February 9, 1987, the finger was sutured and splinted at a hospital emergency room. The injury was slow healing and her primary treating physician, Dr. Jeffrey Hansen, fused the distal joint on April 15, 1987. Mrs. Laber was to remain off work for four to six weeks and wear a splint at all times. On July 27, 1987, Dr. Hansen reported that Mrs. Laber was experiencing tingling of the extremity; yet, x-rays confirmed a good fusion and he released her to return to work. Dr. Hansen testified that Mrs. Laber had reached maximum healing as of July 27, 1987.

On August 3, 1987 Mrs. Laber returned to full time employment in the Buttrey bakery. Mrs. Laber worked for three weeks until the pain from her hand prevented her from continuing. Her last working day was August 24, 1987. She returned to see Dr. Hansen on August 25,1987. During the August 25,1987 examination, Dr. Hansen noted that Mrs. Laber had hand and finger numbness following repetitive use of the extremity and that the extremity had developed sensitivity to cold. Dr. Hansen also noted for the first time that Mrs. Laber had gradually developed carpal tunnel syndrome. Dr. Hansen performed surgery on Mrs. Laber’s left wrist on September 9, 1987 to release the carpal tunnel syndrome. The surgical carpal tunnel release improved the numbness in Mrs. Laber’s hand, and it decreased her tendency to drop things. However, the surgery did not relieve her sensitivity to cold nor did it improve her grip, and the pain, although temporarily relieved, grew worse. To date, Mrs. Laber has not returned to work.

Mrs. Laber received temporary total disability benefits from February 6, 1987, the date of her injury, until she resumed full time employment on August 3,1987. When Mrs. Laber ceased working on August 24, 1987, she was returned to temporary total disability benefits until they were terminated on two weeks notice in January of 1988. The record shows that Mrs. Laber has received $8,602.03 in biweekly benefits and the insurer has paid $5,941.90 in medical expenses, of which $1,450.57 were for medical expenses related to her carpal tunnel treatment. Following the termination of benefits, Mrs. Laber contended that the industrial injury to her little finger aggravated her carpal tunnel syndrome which rendered her totally disabled. Mrs. Laber contended that the temporary total benefits were improperly terminated and she petitioned the Workers’ Compensation Court to resolve this dispute between herself and her employer, Buttrey Food and Drug of Billings. Following the trial of this matter on May 17,1989, the hearing examiner determined that Mrs. Laber’s carpal tunnel syndrome was not aggravated by her industrial injury and that Mrs. Laber would not be entitled to either temporary total or permanent total disability benefits as a result of her injury to her little finger. On June 7, 1989 the Workers’ Compensation Court adopted the decision of the hearing examiner and entered its own Order and Judgment. Mrs. Laber now appeals this judgment.

Mrs. Laber’s first assignment of error is with the Workers’ Compensation Court’s finding of fact that her industrial injury to her left little finger did not aggravate her carpal tunnel syndrome. Mrs. Laber contends that this finding is not supported by substantial credible evidence of the record.

The standard of review is clear. This Court will not substitute its judgment for that of the Workers’ Compensation Corut where there is substantial credible evidence to support the court’s findings of fact. Lakey v. Kerrian’s (1987), 228 Mont. 139, 741 P.2d 416. As an additional safeguard, Rule 52(a), M.R.Civ.P., requires that findings of fact shall not be set aside unless clearly erroneous.

Both sides offered expert testimony to prove the extent of the industrial injury. The defendant offered deposition testimony of three physicians; Dr. William Shaw, who specializes in occupational medicine; Dr. Patrick Cahill, a neurologist; and Dr. James Schwarten, an orthopedic surgeon who has a particular interest in hand problems. Dr. William Shaw testified on behalf of the Yellowstone Valley Medical Evaluation Panel. The panel is comprised of Dr. James Schwarten; Dr. Williams, a neurologist; Dr. William Bredehoff, a psychologist; Dan Geiger, a vocational rehabilitation specialist; and Dr. Shaw, himself. Each panel member separately evaluated Mrs. Laber’s hand problems. By deposition, Dr. Shaw testified as follows:

“We were aware that Dr. Hansen had stated quite explicitly that he felt that the carpal tunnel syndrome was indeed a consequence of the injury to the little finger, and that in his opinion this was a common occurrence. The panel members discussed among themselves whether any of us were aware of such correlation, and none of us were ... We could not say that it had never been reported ... . But amongst the three doctors who deal with such things — namely, Dr. Schwarten, Dr. Williams, and myself, none of us had ever heard of such reports.”

Dr. Hansen testified by deposition for Mrs. Laber as follows:

“Q. Okay. So that in your opinion, the carpal tunnel syndrome was nothing out of the ordinary for this type of injury?
“A. [By Dr. Hansen] My feeling is that I would not necessarily expect someone who smashed their small finger to get carpal tunnel syndrome; that is, if I had 10 patients with that injury, I wouldn’t expect them all to get carpel tunnel syndrome. But that kind of injury does cause swelling and edema of the hand. The patient is unable to make a fist, which is the only way you can pump the fluid out of the hand. And since they can’t make a fist and there is a consequent edema in the hand, it could cause carpal tunnel syndrome. And, if the patient developed carpel tunnel syndrome or they had an exacerbation of a pre-existing carpal tunnel syndrome, that needed medical or surgical treatment, I would clearly attribute it to the injury to the small finger.”

During cross, Dr. Hansen testified as follows:

“Q. When you released her to return to work on August 3rd, 1987, had she reached maximum medical rehabilitation, in your opinion?
“A. [By Dr. Hansen] Yes ... I suppose she’d probably reached as much healing as she would reach, yes.
“Q. Okay. At that point there wasn’t really any swelling left in the left hand, was there?
“A. Not visibly, no.
“Q. And it was after a return to work and the repetitive use of her left hand that work involved that she reported to you carpal tunnel which was now at a level that was bothering her, correct?
“A. That’s correct.
“Q. Well, isn’t that repetitive use of the hand at least as likely a cause of the aggravation of the carpal tunnel as a now-fully-healed surgery?
“A. Yes.”

Then on redirect, Dr. Hansen said:

“So any swelling or edema down the course of the tendon sheath, which would absolutely have to occur with a crushing injury of the finger, could contribute to a carpal tunnel syndrome. I’m not saying it necessarily does or doesn’t. In fact, more commonly than not, it wouldn’t, but it can contribute to it.”

In short, Dr. Hansen testified that aggravation of Mrs. Laber’s preexisting carpal tunnel condition possibly resulted from her industrial injury to her left little finger. Dr. Hansen also agreed that such an injury would not be expected to result in a carpal tunnel syndrome. This conclusion was supported by the testimony of Dr. Cahill, Dr. Schwarten, and Dr. Shaw who testified to a reasonable degree of medical certainty that such an injury to one’s little finger could not result in a carpal tunnel wrist problem.

As we noted in Bykonen v. Montana Power Co. (1985), 217 Mont. 169, 172, 703 P.2d 856, 858, our holding in Jones v. St. Regis Paper Co. (1981), 196 Mont. 138, 639 P.2d 1140, demonstrates that medical possibility evidence that an industrial accident or injury aggravated a pre-existing condition, may together with other evidence, establish a compensable disability. However, medical possibility evidence, in and of itself, does not necessarily extinguish claimant’s burden to prove her case by a preponderance of the evidence. Taken as a whole, the evidence presented in this case does not establish a preponderance of evidence in favor of Mrs. Laber’s claim that her carpel tunnel syndrome was aggravated by her February 1987 industrial injury. The Workers’ Compensation Court carefully considered all the evidence and concluded that the evidence did not prove that Mrs. Laber’s industrial injury either caused or aggravated her pre-existing carpal tunnel syndrome. We find no error. We therefore hold that there is substantial credible evidence to support this conclusion of the Workers’ Compensation Court.

Mrs. Laber next assigns error to the court’s finding that she is not entitled to temporary total or permanent total disability benefits as a result of the industrial injury to her little finger. In determining benefits, the court only considered Mrs. Laber’s disability which resulted from the industrial injury to her little finger, while essentially excluding any disability which was linked to her carpal tunnel syndrome. The Workers’ Compensation Court found that Mrs. Laber was not entitled to temporary total disability benefits from August 3, 1987 until August 24, 1987, because Mrs. Laber had returned to full time employment dining this period after her finger injury had achieved maximum healing on July 27, 1987. The court also denied Mrs. Laber permanent total disability benefits. Mrs. Laber claims that the industrial injury to her little finger aggravated a pre-existing carpal tunnel syndrome which, in turn, has rendered her totally disabled.

The court found that the Mrs. Laber’s carpal tunnel symptoms did not result from her little finger injury on February 6, 1987. We have held that this finding is supported by substantial credible evidence contained in the record. Furthermore, Mrs. Laber has not alleged that her carpal tunnel syndrome was a new injury which arose as a result of her employment from August 3 through August 24,1987. Thus, in determining Mrs. Laber’s disability award, the court properly ignored any disability that was a result of her carpal tunnel syndrome and only considered the disability which resulted from the injury to the little finger of her non-dominant left hand.

Temporary total disability is defined by § 39-71-116(19), MCA (1985), as “a condition resulting from an injury as defined in this chapter that results in total loss of wages and exists until the injured worker” reaches maximum healing; furthermore, “Disability shall be supported by a preponderance of medical evidence.” Under this statutory scheme which was in effect at the time of Mrs. Laber’s finger injury, temporary total disability did not exist past the time of maximum healing. Kimes v. Charlie’s Family Dining & Donut Shop (1988), 233 Mont. 175, 178, 759 P.2d 986, 988-89. The record shows that Mrs. Laber’s treating physician testified that Mrs. Laber’s finger injury reached maximum healing as of July 27, 1987, whereafter, on August 3, 1987, when she returned to work on a full time basis. This evidence alone short circuits Mrs. Laber’s claim for temporary total disability benefits for the period following maximum healing. We therefore conclude that the lower court was correct in denying Mrs. Laber temporary total disability benefits.

Next, to be entitled to permanent total disability benefits, claimant must meet the requirements of § 39-71-116(13), MCA (1985), which states as follows:

“(13) ‘permanent total disability’ means a condition resulting in the loss of actual earnings or earning capability that exists after the injured worker is as far restored as the permanent character of the injuries will permit and which results in the worker having no reasonable prospect of finding regular employment of any kind in the normal labor market. Disability shall be supported by a preponderance of medical evidence.”

In Spooner v. Action Sales, Inc., Ill Workers’ Compensation Court Decisions No. 85 (January 24, 1983), the Workers’ Compensation Court elaborated on this statutory definition by stating:

“To establish the existence of no reasonable prospect of employment in the normal labor market, a claimant must introduce substantial credible evidence of (1) what jobs constitute his normal labor market, and (2) a complete inability to perform the employment and duties associated with those jobs because of his work-related injury.”

We adopted the Spooner approach in Metzger v. Chemetron Corp. (1984), 212 Mont. 351, 687 P.2d 1033.

The record reflects that the only vocational evidence in this case was presented by Buttreyh rehabilitation expert, Brenda Williams. Miss Williams reviewed the medical evidence, did an on-site job analysis, reviewed the deposition of Mrs. Laber, considered her physical limitations, and testified before the hearing examiner that Mrs. Laber could return to her employment at the Buttrey store as a head sales clerk, which would be a promotion. Miss Williams also testified that no decrease in earning capacity has resulted from Mrs. Laber’s finger injury. This testimony was not contradicted, refuted or disputed.

The medical evidence relating to Mrs. Laber’s little finger injury was offered by Dr. Hansen as well as the physicians of the Yellowstone Medical Evaluation Panel. Excluding any symptoms attributable to her carpal tunnel syndrome, this medical evidence shows that Mrs. Laber’s little finger injury has resulted in loss of flexion, which is an impediment to making both a tight fist and a strong grip. As a result, her grip strength of the left hand is diminished by at least twenty percent and she continues to have cold intolerance. The evidence also shows that Mrs. Laber’s little finger injury was maximally healed on July 27,1987.

In order to be entitled to permanent total disability benefits, Mrs. Laber has the burden of proving that as a result of her February 6,1987 injury she has a total loss of actual earnings or earning capacity, after reaching maximum healing; and she will have no reasonable prospect of finding regular employment of any kind in her normal labor market. The Workers’ Compensation Court found that Mrs. Laber was not totally disabled as a result of her little finger injury, excluding any symptoms of her carpal tunnel syndrome. We have reviewed the record before us and hold that this finding is supported by substantial credible evidence. We agree that Mrs. Laber has not established by a preponderance of credible evidence that she has no reasonable prospect of finding regular employment of any kind in the normal labor market. Considering all the evidence of the record, Mrs. Laber has failed to support her requested finding of permanent total disability entitlement. The Workers’ Compensation Court is hereby affirmed.

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


text:
    ERNEST EASTON, Plaintiff and Appellant, v. REX COWIE, d/b/a COWIE CRANE SERVICE, Defendant and Respondent, and REX COWIE, d/b/a COWIE CRANE SERVICE, Counter-Plaintiff, v. ERNEST EASTON, Counter-Defendant.
    No. 90-524.
    Submitted on briefs Jan. 10, 1991.
    Decided Feb. 7, 1991.
    247 Mont. 181.
    805 P.2d 573.

      John F. Lynch, Great Falls, for appellant.
    Tracy Axelberg, Jardine, Stephenson, Blewett & Weaver, Great Falls, for respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Ernest Easton appeals from an October 15, 1990, judgment of the District Court of the Ninth Judicial District, Pondera County, dismissing his wrongful discharge claim against Rex Cowie. We affirm.

The sole issue is whether the District Court abused its discretion by refusing to allow the service of an answer to a request for admission sixteen days after the response was due.

I.

On August 14,1989, Easton filed an action against Cowie alleging that he was wrongfully discharged from his employment with Cowie Crane Service. Cowie counterclaimed for a $1,000 down payment and materials for remodeling which Cowie allegedly provided to Easton for a mobile home Easton purchased from Cowie. A pretrial conference was held on July 9, 1990, and the matter was set for trial on February 11, 1991.

On July 26, 1990, Cowie served written discovery requests upon counsel for Easton. The document contained 24 items. Item 23 was labeled “DISCOVERY REQUEST NO. 23” and stated, “Please admit that your employment with Cowie Crane Service was terminated for just cause.” According to Cowie, due to a mix-up in office procedure, he made no response to the discovery requests within the thirty-day limit required by Rules 33(a) and 36(a), M.R.CÍV.P. Allowing three days for mailing, Easton should have answered the discovery requests and request for admission by August 28, 1990.

On September 13, 1990, Cowie filed a motion for summary judgment, citing Easton’s failure to respond to the request for admission, thereby admitting that he was terminated for just cause. Easton wrote a letter to Cowie on September 14,1990, explaining the reason for the delay and answering the request for admission.

On October 1,1990, the District Court heard oral arguments, and on October 5, 1990, the District Court granted Cowie’s motion for summary judgment on the basis that no motion for an extension of time had been made. On October 9, 1990, Easton moved for an extension of time. The District Court denied the motion and dismissed the wrongful discharge claim.

II

Did the District Court abuse its discretion by refusing to allow the service of an answer to a request for admission sixteen days after the response was due?

Rule 36(a) states in relevant part:

“A party may serve upon any other party a written request for the admission, for purposes of the pending action, only, of the truth of any matters within the scope of Rule 26(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact. ...
“Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter ...”

Rule 36(a), M.R.Civ.P.

Easton argues that the law strongly favors disposition on the merits of the case and full litigation of all the issues brought before the trial court. Wagner v. Glasgow Livestock Sales Co. (1986), 222 Mont. 385, 389, 722 P.2d 1165, 1168. He relies on Heller v. Osburnsen (1973), 162 Mont. 182, 510 P.2d 13, for the proposition that a district court may properly allow a delay caused by a mix-up in office procedure as long as the litigant acts in good faith and the other party has not been prejudiced. Heller, 162 Mont. at 191, 510 P.2d at 17-18.

In Heller we held that the trial court had not abused its discretion under Rule 36(a), M.R.Civ.P., by allowing an extension of time to file answers to requests for admissions. The trial corut’s decision to grant or deny an extension of time will not be disturbed on appeal absent manifest abuse of discretion. Garrett v. PACCAR Financial Corp. (Mont. 1990), [245 Mont. 379,] 801 P.2d 605, 47 St.Rep. 2185. Filing a late response is not a matter of right, but lies within the trial court’s discretion. Garrett, 801 P.2d at 606, 47 St.Rep. at 2186; Morast v. Auble (1974), 164 Mont. 100, 105, 519 P.2d 157, 160.

We hold that the District Court, in compliance with Rule 36(a), M.R.Civ.P., did not abuse its discretion by granting summary judgment to Cowie and denying Easton’s motion for an extension of time to answer the request for admission.

Affirmed.

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


text:
    IN RE THE MARRIAGE OF STEPHEN JAMES CHIOVARO, Petitioner and Appellant, and SUSAN CORBY TILTON-CHIOVARO, Respondent and Respondent.
    No. 90-387.
    Submitted on briefs Dec. 7, 1990.
    Decided Feb. 8, 1991.
    247 Mont. 185.
    805 P.2d 575.

      Barbara E. Bell, Bell & Marra, Great Falls, for petitioner and appellant.
    Daniel L. Falcon, Matteucci, Falcon & Squires, Great Falls, for respondent and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

Petitioner, Stephen James Chiovaro, filed a motion to clarify the dissolution agreement between Mr. Chiovaro and the respondent, Susan Corby Tilton-Chiovaro, which had been executed on April 28, 1988. Mr. Chiovaro was seeking resolution of a dispute between the parties regarding visitation and review of child support pursuant to the Uniform District Court Child Support Guidelines. Following a non-jury trial, the District Corut for the Eighth Judicial District, Cascade County, entered Findings of Fact, Conclusions of Law, and Order which spells out more specific visitation provisions, increases monthly child support payments due by Mr. Chiovaro from $200 per month per child to $220 per month per child, and awards attorney’s fees to Mrs. Chiovaro in the amount of $671. Mr. Chiovaro appeals. We affirm and remand to the District Court for determination of attorney’s fees and costs on appeal.

We restate the issues on appeal as follows.

1. Did the District Court improperly impute income to Mr. Chiovaro for his track coaching fees?

2. Did the District Court improperly impute income to Mr. Chiovaro for his health insurance benefits? If not, then did the District Court improperly fail to deduct that portion of the health insurance benefits that benefit the parties’ three children?

3. Did the District Court improperly fail to deduct Mr. Chiovaro’s mandatory retirement payments?

4. Did the District Court improperly deduct business expenses from Mrs. Chiovaro’s income?

5. Did the District Court improperly award Mrs. Chiovaro attorney’s fees?

On May 4,1988, a Final Decree was entered in the Eighth Judicial District Court dissolving the marriage of Mr. and Mrs. Chiovaro. The parties were awarded joint custody of their three minor children, with Mrs. Chiovaro having primary physical residency. Mr. Chiovaro was to pay $200 per month per child for child support in conformity with the Separation Agreement between the parties.

On December 19, 1989, Mr. Chiovaro filed a Motion to Clarify Dissolution Agreement. The parties came to an agreement as to the visitation dispute prior to hearing. The court adopted that agreement. Therefore the only issue before the corut at hearing was modification of the child support obligations. Following discovery and hearing, the District Court increased Mr. Chiovaro’s child support obligations to $220 per month per child, for a total of $660 per month. Mr. Chiovaro was also ordered to pay Mrs. Chiovaro’s costs and attorney’s fees in the amount of $671.

Section 40-4-204, MCA, outlines the procedures to be used by district courts in determining and modifying child support. Subsection (3) provides:

“(3)(a) Whenever a court issues or modifies an order concerning child support, the court shall determine the child support obligation by applying the standards in this section and the uniform child support guidelines adopted by the department of social and rehabilitation services pursuant to 40-5-209, unless the court finds by clear and convincing evidence that the application of the standards and guidelines is unjust to the child or to any of the parties or is inappropriate in that particular case.
“(b) If the court does not apply these standards and guidelines to determine child support, it shall state its reasons for finding that the application of such standards and guidelines is unjust to the child or a party or is inappropriate in that particular case.”

Section 40-4-204 (3)(a),(b), MCA.

Pursuant to § 40-5-209, MCA, the Department of Social and Rehabilitation Services have now adopted child support guidelines which became effective July 13, 1990. 46.30.1501 et seq., ARM. The Court Order in this case is dated May 29,1990 and therefore the SRS guidelines are not at issue in this case.

In 1987 this Court adopted the Uniform District Court Rule on Child Support Guidelines to be used by district courts in determining child support obligations. The District Court in this case applied the Uniform District Court Guidelines. The District Court Guidelines provide in part:

"... Although these standards offer broad guidance to persons involved in the establishment of child support obligations, the standards do not explain how to apply the standards to specific child support actions... District Court Guidelines, Section I.
“The guideline is designed for proper application to a broad range of cases and therefore is intended only to create a rebuttable presumption of the reasonableness of the child support obligations. As is true with any system, the application of this guide may not produce a child support payment that is fair or adequate in every instance. In applying the guide as a baseline from which to proceed, the parties or the court may make adjustments either upward or downward to reflect a particular inconsistent circumstance. The burden of showing why such deviation from the guide should be made, will be on its proponent. Any departure from the guide should be accompanied by a written statement which gives the reasons for deviation from the guide’s direct application. District Court Guidelines, Section II.” District Court Child Support Guidelines, 227 Mont. 1, 4-5 (1987).

In comparing the statute and the Guidelines, it is obvious that discretion rests in the district courts as to the proper application of the Guidelines. Absent a clear abuse of discretion, the district court will not be overruled. A presumption exists in favor of the judgment, and the lower court will be reversed only if appellant demonstrates that there was a clear abuse of discretion. Graveley v. Graveley, (Mont. 1990), [244 Mont. 137,] 796 P.2d 585, 586-87. District courts are vested with discretion under the broad standards of § 40-4-204, MCA, which requires scrutiny of all deductions and exemptions claimed by either party. Marriage of Mitchell, (1987), 229 Mont. 242, 247, 746 P.2d 598, 602.

I.

Did the District Court improperly impute income to Mr. Chiovaro for his track coaching fees?

The District Court imputed $1186 in income to Mr. Chiovaro for track coaching fees. Mr. Chiovaro asserts that it was improper for the District Court to impute this amount and contends that this figure was added into his gross income twice. The District Court made the following findings of fact:

“1. The Court finds that the Petitioner failed to include all of his income in his proposed Supreme Court Guidelines, Petitioner’s Exhibits 1 through 4. The Petitioner will have an increase in income for 1990.
“3. The Court further finds that the Petitioner’s proposed child support calculations did not include any sum for daycare costs. Petitioner’s proposed child support figures ranged from $475 to $530.13 per month for all three children. The Court finds the Petitioner has been previously paying $200 per child, per month, as child support pursuant to the Decree entered in this matter and that he has received an increase in income since the time the Decree was entered of between $3,000 and $4,000 per year.
“5. ... The Court finds that the Petitioner, although he has had a substantial increase in income over the past two years, has chosen to refrain from coaching duties this year which are options that are open to him.”

In light of Mr. Chiovaro’s confusing and conflicting testimony, Mr. Chiovaro has not proved that the District Court abused its discretion in determining Mr. Chiovaro’s gross income. Mr. Chiovaro made the argument that he should not have to have the track coach fees added into his income at all because he is trying to get out of his contractual track coaching obligation with his employer. The District Court was correct in concluding that it is in the court’s discretionary power to impute the track coach income to Mr. Chiovaro since it is available to him. District Court Child Support Guidelines, Section III, Part 2,227 Mont. at 5-6. We hold that the District Court did not abuse its discretion in imputing income to Mr. Chiovaro for track coach fees.

II.

Did the District Court improperly impute income to Mr. Chiovaro for his health insurance benefits? If not, then did the District Court improperly fail to deduct that portion of the health insurance benefits that benefit the parties’ three children?

Mr. Chiovaro receives health and dental insurance as a job benefit. Mr. Chiovaro does not have to pay extra for this benefit. The District Court valued the health and dental insurance at $100 per month for an annual value of $1200, and included this value as part of Mr. Chiovaro’s income. Mr. Chiovaro contends this was error because the benefit does not add to his disposable income and because there was no expert testimony that established the value of the insurance benefit.

The District Court Guidelines provide that “all income, from whatever sources, including business expense account payments for meals and automobiles to the extent that they provide the parent with something he or she would otherwise have to provide, will constitute gross income. Also to be included are such income as pensions, dividends, interest, trust income, proceeds from contracts, and so forth.” Uniform District Court Child Support Guidelines, Section III, Part 1, 227 Mont. at 5. Under both the Final Decree of Dissolution and § 40-4-204, MCA, Mr. Chiovaro is to provide health insurance for the parties’ three children. Since this is a benefit which Mr. Chiovaro would otherwise have to provide, it constitutes gross income under the Guidelines, and the court did not err in including the insurance value in his gross income.

Mr. Chiovaro argues that the value of $1200 is unsubstantiated by an expert’s testimony. The only testimony presented as to the value of the insurance benefit came from Mrs. Chiovaro when she testified that $1200 is substantially below what it costs to buy insurance. A lay person may give opinion testimony which is rationally based on the perception of the witness and helpful to a determination of a fact in issue. Rule 701, M.R.Evid. Mr. Chiovaro did not object at trial to the inclusion in income of the imputed value of the insurance benefit and presented no evidence that the court’s value of $1200 is unreasonable. Therefore the court did not abuse its discretion when it held that $1200 was a reasonable value.

Mr. Chiovaro argues that if the value of the insurance policy is included in his income, then he is allowed a deduction for that portion of the insurance that benefits the parties’ three children. Child Support Guidelines, Section III, Part 5, 227 Mont. at 7. It is true that under the Guidelines a deduction may be allowed for that portion of the insurance that benefits the children. However, the Guidelines are to be applied by the District Court in the use of its discretion. Graveley, 796 P.2d at 586. If health insurance on behalf of the child is carried by a parent, the parent’s net cost of the child’s share of the premium is allowed as a deduction from gross income. Child Support Guidelines, Section III, Part 10, 227 Mont. at 9-10. The insurance is provided by Mr. Chiovaro’s employer without cost to Mr. Chiovaro. It is reasonable that if a value is assigned to the insurance benefit and added to income, then a value can be assigned to the children’s share of the premium and allowed as a deduction. However, Mr. Chiovaro did not object at trial to the failure of the court to deduct the value of the children’s share of the benefit and presented no evidence as to the value of the children’s share. Therefore the court did not abuse its discretion when it did not deduct a portion of the $1200 for the value of the children’s share. We affirm the District Court on the issue of health insurance.

III.

Did the District Court improperly fail to deduct Mr. Chiovaro’s mandatory retirement payments?

The Child Support Guidelines, Section III, Part 5, 227 Mont. at 7, allows the deduction from income of mandatory retirement contributions. Again we point out that the Guidelines are to be applied by the District Court in the use of its discretion. Graveley, 796 P.2d at 586. Although under the Guidelines the Court could have deducted the $1868 that went into Mr. Chiovaro’s mandatory retirement plan, we cannot say that the court abused its discretion in not deducting this amount from Mr. Chiovaro’s income. The court found that Mr. Chiovaro failed to provide income tax returns in a timely manner as ordered by the court prior to the hearing. It was not an abuse of discretion not to deduct Mr. Chiovaro’s retirement payments. We affirm on the issue of mandatory retirement payments.

IV.

Did the District Court improperly deduct business expenses from Mrs. Chiovaro’s income?

Mrs. Chiovaro works part-time out of her home as a farm advocate. The District Court allowed a deduction of $5781 for business expenses relating to this business. Mr. Chiovaro contests $706 of this amount which represents depreciation on Mrs. Chiovaro’s business. This Court has held that depreciation is for tax purposes and not for the purposes of determining child support. In re the Marriage of Stewart (Mont. 1990), [243 Mont. 180,] 793 P.2d 813; In re the Marriage of Mitchell (1987), 229 Mont. 242, 746 P.2d 598. Even though the court should not have deducted the $706 depreciation from Mrs. Chiovaro’s income, it is harmless error in this case. Recalculating Mrs. Chiovaro’s income does not change Mr. Chiovaro’s child support obligation.

Mr. Chiovaro also challenges deductions for telephone, transportation, and other costs which Mr. Chiovaro points out that Mrs. Chiovaro needs to provide for general living purposes. It is within the court’s discretion to determine whether business expense deductions are reasonable for purposes of calculating child support. We affirm the District Court on the issue of Mrs. Chiovaro’s business deductions.

V.

Did the District Court improperly award Mrs. Chiovaro attorney’s fees?

Section 40-4-110, MCA, provides that the comb, after consideration of the financial resources of both parties, may award reasonable costs and attorney’s fees. The Dissolution Agreement between the parties provides that the successful party shall be entitled to reasonable costs and attorney’s fees from the losing party for enforcement or defense of any of the provisions of the agreement.

Mr. Chiovaro argues that attorney’s fees are inappropriate in this case because the Dissolution Agreement anticipates annual recalculation of child support and that the parties could not have reasonably intended the awarding of attorney’s fees in the annual recalculation proceedings. This proceeding was brought by Mr. Chiovaro and included disagreement over visitation and not just annual recalculation of child support. In addition, the court made a finding that Mr. Chiovaro had failed to provide documents during discovery in a reasonable and timely fashion which added to Mrs. Chiovaro’s legal costs. Under these facts the court had the discretion to award attorney’s fees under the Dissolution Agreement and under § 40-4-110, MCA. We affirm the District Court on the issue of attorney’s fees.

Mrs. Chiovaro has asked this Court to award attorney’s fees and costs of appeal under the Dissolution Agreement and § 40-4-110, MCA. We determine that an award to Mrs. Chiovaro for attorney’s fees and costs of appeal is appropriate and remand to the District Court for determination of the amount.

Affirmed and remanded for determination of attorney’s fees and costs of appeal.

CHIEF JUSTICE TURNAGE and JUSTICE HARRISON, HUNT and BARZ concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DAVID VAN VOAST, Defendant and Appellant.
    No. 90-338.
    Submitted on briefs Jan. 3, 1991.
    Decided Feb. 12, 1991.
    247 Mont. 194.
    805 P.2d 1380.

      James A. Manley, Manley Law Offices, Poison, for defendant and appellant.
    Marc Racicot, Atty. Gen., Kathy Seeley, Asst. Atty. Gen., Helena, Larry Nistler, Lake County Atty., and Robert S. Anderson, Lake County Deputy Atty., Poison, for plaintiff and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

Defendant, David Van Voast, was convicted of the offense of criminal possession of dangerous drugs, a felony pursuant to § 45-9-101, following a non-jury trial in the District Court for the Twentieth Judicial District, Lake County. Defendant appeals. We affirm.

The issues are:

1. Was there substantial, credible evidence that defendant knowingly possessed dangerous drugs?

2. Was the defendant denied his right to a speedy trial?

3. Did the District Court err in granting the State’s motion to add a witness twenty-four days before trial?

4. Did the District Court err when it denied defendant’s motion to suppress evidence seized during search and seizure?

5. Did the District Court err when it denied the defendant’s motion to reopen the suppression hearing?

On May 26, 1989, five officers of the Lake County drug task force executed a search warrant authorizing the search of defendant’s residence, outbuildings and nearby vehicles for a large caliber single action Colt-type revolver and other evidence and fruits of the crime of Intimidation, a felony. One of the officers found a loaded handgun in the side pocket of a recliner located in the living room of defendant’s residence. Lying on top of the weapon was a plastic baggie containing a green leafy substance, believed to be marijuana. Because of the discovery of the marijuana, a second warrant was issued authorizing seizure of marijuana and other evidence and fruits of the crime of Criminal Possession of Dangerous Drugs from the defendant’s residence, outbuildings, and nearby vehicles. During the second search, a camping trailer located approximately 130 feet from the defendant’s residence was found to be locked and secured. The camper belonged to the defendant. The key to the camper was discovered on a rack of keys above the telephone in defendant’s residence. Using the key, the officers unlocked the camper and discovered two plastic bags containing approximately 173 grams of marijuana inside a black bag stowed in a seat compartment.

I.

Was there substantial, credible evidence that defendant knowingly possessed dangerous drugs?

The test applied by this Court to determine whether the evidence is sufficient to support the verdict is whether, after viewing the evidence in fight most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Krum (1989), 238 Mont. 359, 362, 777 P.2d 889, 891.

Defendant argues that while the State may have shown constructive possession of marijuana because defendant owned the camper where the marijuana was found, there was no evidence offered that he “knowingly” possessed the substance. Therefore the essential element of the mental state of “knowing possession” was not satisfied.

Defendant makes an invalid distinction between “constructive possession” and “knowing possession”. Possession of dangerous drugs may be either “actual” or “constructive”. State v. Meader (1979), 184 Mont. 32, 42, 601 P.2d 386, 392. Actual possession means that the drugs are in the personal custody of the person charged with possession; whereas constructive possession means that the drugs are not in actual physical possession but that the person charged with possession has dominion and control over the drugs. Meader, 184 Mont. at 42, 601 P.2d at 392. In order to find either actual or constructive possession, the fact finder must find that there was “knowing” possession. “Possession” is defined as “the knowing control of anything for a sufficient time to be able to terminate control.” § 45-2-101(52), MCA. The mental state of “knowingly” is therefore included as part of the definition of “possession”, whether it be actual or constructive. A mental state may be inferred from the acts of the accused and the facts and circumstances connected with the offense. § 45-2-103(3), MCA; Krum, 238 Mont. at 361, 777 P.2d at 890.

In this case there was adequate evidence presented to support a conclusion that defendant “knowingly” possessed the marijuana. The first baggie of marijuana was found in defendant’s living room in the side pocket of defendant’s chair on top of his handgun. The large bags of marijuana were found in a locked camping trailer which belonged to the defendant. The camper was parked within 130 feet of defendant’s residence. The key to the camper was found hanging above the telephone in defendant’s residence. Defendant’s girlfriend denied that she had keys to the camper. These circumstances support the conclusion that defendant had knowing control and possession of the marijuana. We affirm the holding of the District Court that defendant was in knowing possession of dangerous drugs.

II

Was the defendant denied his right to a speedy trial?

Any person accused of a crime is guaranteed a speedy trial by the Sixth Amendment to the United States Constitution, which is made applicable to the states by the Fourteenth Amendment. Klopfer v. North Carolina (1967), 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1. The test used to determine whether the constitutional right to a speedy trial has been violated was set forth in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 and was adopted by this Court in Briceno v. District Court (1977), 173 Mont. 516, 518, 568 P.2d 162, 163-64:

“These cases involve a sensitive balancing of four factors, in which the conduct of the prosecution and defendant are weighed in determining whether there has been a denial of the right to a speedy trial. The four factors to be evaluated and balanced are:
“(1) Length of delay;
“(2) Reason for delay;
“(3) Assertion of the right by defendant; and
“(4) Prejudice to the defendant.”

No single factor is determinative. Each facet of the analysis is weighed in light of the surrounding facts and circumstances. State v. Morris (1988), 230 Mont. 311, 317, 749 P.2d 1379, 1382.

The right to speedy trial attaches at the moment a defendant is accused, and that may occur at the time of arrest, at the time of the filing of a complaint or information, or at the time of indictment. Morris, 230 Mont. at 315, 749 P.2d at 1381. In this case there were 225 days between the defendant’s arrest and his trial. This delay is long enough to trigger the speedy trial inquiry. State v. Chavez (1984), 213 Mont. 434, 441, 691 P.2d 1365, 1370. The State now has the burden of providing a reasonable explanation for the delay and showing that the defendant was not prejudiced by the delay. State v. Curtis (1990), 241 Mont. 288, 301, 787 P.2d 306, 313. The 225 day delay in this case was institutional delay and is chargeable to the State. However institutional delay weighs less heavily than other kinds of delays in the balancing process. Curtis, 241 Mont. at 301, 787 P.2d at 315.

In considering whether the defendant was prejudiced, the court must look to the interests protected by the right to speedy trial: (1) to prevent oppressive pretrial incarceration, (2) to minimize the defendant’s anxiety and concern, and (3) to limit the impairment of the defense. Barker, 407 U.S. at 532, 92 S.Ct. at 2193. Curtis, 241 Mont. at 303, 787 P.2d at 315.

The defendant was out on bond during the entire period from arrest until trial and so the first interest was protected.

As to the second interest, defendant, testified that stress was causing him to drink “heavier than I want to” and that he had trouble sleeping at night. The anxiety and concern alleged by the defendant are not excessive for one charged with a felony and are not sufficient to violate the right to speedy trial. A certain amount of anxiety and concern is inherent in being accused of a crime. Curtis, 241 Mont. at 303, 787 P.2d at 316.

The crucial factor in a prejudice determination is whether the defense has been impaired. State v. Waters (1987), 228 Mont. 490, 494, 743 P.2d 617, 620. No evidence was presented that the defense was impaired by the delay. The defendant testified at the hearing on the speedy trial motion that the potential defense witnesses were available to testify, had not forgotten what had happened and had no memory loss.

In sum, the delay in this case was institutional. The defendant suffered little more anxiety than would normally be expected. Most importantly, the defense was not impaired by the delay. We affirm the District Court’s holding that the State did not violate the defendant’s right to a speedy trial.

Ill

Did the District Court err in granting the State’s motion to add a witness twenty-four days before trial?

Section 46-15-322, MCA, requires the State to show good cause for adding a witness after arraignment. In this case the State made a motion to the District Court to add a witness from the State Crime Lab. The information charging the defendant listed as witnesses “Lori Moffatt, State Crime Lab and Unknown, State Crime Lab”. Twenty-four days prior to trial, the State filed a motion to replace “Unknown, State Crime Lab”, with the name of “Alice Ammen, Division of Forensic Science”. The motion stated that Ms. Ammen’s report and resume had been previously provided to the defendant and that counsel for the defendant had no objection to the addition of the witness. Defense counsel filed a brief in opposition to the State’s motion to add Ms. Ammen, stating that there had been a misunderstanding and defense did object.

Section 46-15-329, MCA, gives district courts the flexibility to impose sanctions commensurate with a failure to comply with discovery orders. The statute does not mandate automatic exclusion for noncompliance. Waters, 228 Mont. at 495, 743 P.2d at 621. By its terms, § 46-15-329, MCA, provides that “the court may impose any sanction that it finds just under the circumstances ...” Imposition of sanction is a matter best left to the sound discretion of the District Court. Such discretion allows the court to consider the reason why disclosure was not made, whether the noncompliance was willful, the amount of prejudice to the opposing party, and any other relevant circumstances. Absent a clear abuse of discretion, the decision of the District Court must be upheld. Waters, 228 Mont. at 495, 743 P.2d at 621.

In this case the reason disclosure was not made earlier was the lack of knowledge of which forensic scientist from the State Crime Lab would be testifying. There is no indication of willful noncompliance with the discovery statutes. Defendant knew Ms. Ammen’s identity 24 days before trial and can claim no surprise. The District Court did not err when it granted the State’s motion to add this witness.

IV

Did the District Court err when it denied defendant’s motion to suppress evidence seized during search and seizure?

Two search warrants were executed on defendant’s residence and surrounding area. Defendant attacks both searches based on probable cause and claims the evidence should be suppressed.

The test for determining probable cause for issuance of a search warrant is the “totality of the circumstances” test set forth in Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. State v. Sundberg (1988), 235 Mont. 115, 119, 765 P.2d 736, 739. An affidavit supporting a search warrant is to be interpreted by the magistrate and examined by the reviewing court in a common-sense, realistic fashion. State v. O’Neill (1984), 208 Mont. 386, 393, 679 P.2d 760, 764. The issuing magistrate must only determine that there is a probability, not a prima facie showing of criminal activity. O’Neill, 208 Mont. at 393, 679 P.2d at 764. The review of the sufficiency of an affidavit is not a de novo review and the magistrate’s determination should be paid great deference by reviewing courts. Sundberg, 235 Mont. at 122-23, 765 P.2d at 741.

In this case, the totality of the circumstances provided probable cause to issue both search warrants. The first warrant was issued on the probability that evidence of the crime of intimidation would be found in the defendant’s residence, outbuildings, or nearby vehicles. An informant who was working for the drug team had gone to the defendant’s home in order to investigate the defendant’s involvement in drug-related activities. The defendant pulled a handgun, pointed it at him, and threatened to kill him if he were a police agent. The informant had provided reliable information on prior occasions. The officer’s affidavit supporting the first warrant contained sufficient details to establish probable cause.

Defendant claims that the drug team had targeted him for prosecution and that the intimidation charge was only a pretext to gain access to defendant’s residence to search for drugs. Defendant also attacks the credibility of the affiant and claims that the application was based on false information. The evidence does not substantiate these claims. We conclude that the first warrant was supported by a sufficient showing of probable cause. We affirm the District Court’s refusal to suppress the evidence discovered in the first search.

Defendant asserts that the second warrant was based on an illegal search during execution of the first warrant. Defendant’s girlfriend testified that the officers found the marijuana in the side pocket of the defendant’s chair only after they had removed the gun and then used a backscratcher to dig down deeper into the pocket. Based on the testimony of the officers involved in the first search, the District Court held that the marijuana was in plain view when the officer who found the gun pulled open the pocket to retrieve the gun. We conclude that the second warrant was supported by a sufficient showing of probable cause based on the plain view doctrine.

The defendant also attempts to attack the second warrant on the basis that there was false information in the application. There was no showing of false information affecting the validity of the warrant application. The District Court correctly refused to suppress the evidence that was discovered during execution of the second warrant.

V

Did the District Court err when it denied the defendant’s motion to reopen the suppression hearing?

The defendant filed a motion for leave to reopen the suppression hearing based on new evidence. The officer seeking the first search warrant had testified in a trial of a nonrelated case. Defendant alleged that the officer had perjured himself because his testimony in the nonrelated trial had contradicted testimony he had given in this defendant’s suppression hearing. Defendant argues this perjury proves that the officer was not credible and therefore the first search warrant was based on misinformation.

When a search warrant is issued, the determination of probable cause must be made from the four comers of the search warrant application. State v. Isom (1982), 196 Mont. 330, 341, 641 P.2d 417, 423. The alleged perjured testimony was not related to the facts asserted in the officer’s affidavit and has no bearing on the validity of the search warrant. Defendant has not established that the statements made in the search warrant application were false. We affirm the District Court’s refusal to reopen the suppression hearing.

Affirmed.

JUSTICES HARRISON, BARZ, McDONOUGH and HUNT concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BERNARD JAMES FITZPATRICK, Defendant and Appellant.
    No. 90-356.
    Ordered February 12, 1991.
   ORDER

Defendant and appellant, Bernard James Fitzpatrick, has petitioned for a rehearing of the Opinion rendered by this Court on January 4,1991. After consideration of the petition and the response by the State of Montana, we conclude that it is advisable to revise our original Opinion.

IT IS ORDERED that the original Opinion in this cause shown to have been submitted on October 19,1990 and decided on January 4, 1991 is withdrawn. In place of that Opinion, we have issued a replacement Opinion that is shown to have been submitted on briefs on October 19, 1990 and decided on February 12, 1991.

The petition for rehearing is denied.

DATED this 12th day of February, 1991.

s/ J. A. Turnage, Chief Justice

s/ John Conway Harrison, Justice

s/ William E. Hunt, Sr., Justice

s/ R. C. McDonough, Justice

s/ Terry Trieweiler, Justice

s/ Fred J. Weber, Justice


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BERNARD JAMES FITZPATRICK, Defendant and Appellant.
    No. 90-356.
    Submitted on briefs Oct. 19, 1990.
    Decided Feb. 12, 1991.
    247 Mont. 205.
    805 P.2d 584.
    Arthur J. Thompson, Thompson & Sessions, Billings, for defendant and appellant.
    Marc Racicot, Atty. Gen., Kathy Seeley, Asst. Atty. Gen., Helena, Harold Hanser, Yellowstone County Atty., Curtis L. Bevolden, Deputy Yellowstone County Atty., John P. Connor, Jr. and Mark J. Murphy, Sp. Deputy Yellowstone County Attys., Asst. Attys. Gen., Billings, for plaintiff and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

The defendant Bernard James Fitzpatrick appeals from the sentences imposed by the Thirteenth Judicial District Court, Yellowstone County. We vacate the sentences and remand for resentencing.

On March 30, 1990, an inmate or inmates cut a hole in the chain link fence in the recreation yard of the Yellowstone County detention facility. Seven inmates escaped through the hole, including Bernard Fitzpatrick, who was being held pending sentencing following a plea of guilty to deliberate homicide, aggravated kidnapping and robbery. Following the escape, Fitzpatrick and another inmate broke into Billings Senior High School. They stole some clothing and other small items. The authorities recaptured Fitzpatrick the next morning.

The State charged Fitzpatrick with the felony offenses of burglary and escape. Fitzpatrick entered guilty pleas to both counts. In exchange for the guilty pleas, the State agreed to recommend sentences on the escape and burglary convictions concurrent to each other, but consecutive to Fitzpatrick’s other sentences.

At the sentencing hearing, all parties stipulated that the procedural requirements for persistent felony offender designations had been met. The State then recommended that the court designate Fitzpatrick a persistent felony offender and requested that the court impose a sentence of 100 years on each of the charges. Fitzpatrick requested a ten-year sentence on each count.

The District Court found that Fitzpatrick was a persistent felony offender. The court sentenced Fitzpatrick to serve ten years for the escape plus an additional 100 years as a persistent felony offender and to serve five years for burglary plus an additional 100 years as a persistent felony offender. Fitzpatrick appeals from these sentences.

The only issue is whether the District Court sentenced Fitzpatrick to terms exceeding the statutory maximum for a persistent felony offender.

A persistent felony offender is sentenced under § 46-18-502, MCA, which states in pertinent part:

“(1) Except as provided in subsection (2), a persistent felony offender shall be imprisoned in the state prison for a term of not less than 5 years or more than 100 years or shall be fined an amount not to exceed $50,000, or both, if he was 21 years of age or older at the time of the commission of the present offense.
“(2) If the offender was a persistent felony offender, as defined in 46-18-501, at the time of his previous felony conviction, less than 5 years have elapsed between the commission of the present offense and either the previous felony conviction or the offender’s release on parole or otherwise from prison or other commitment imposed as a result of the previous felony conviction, and he was 21 years of age or older at the time of the commission of the present offense, he shall be imprisoned in the state prison for a term of not less than 10 years or more than 100 years or shall be fined an amount not to exceed $50,000, or both.”

Clearly, § 46-18-502, MCA, provides for a maximum term of 100 years for a persistent felony offender, not an additional term of 100 years, as imposed by the District Court in this case. The sentencing parameters of § 46-18-502, MCA, replace the maximum sentence prescribed for the offense. It is not a sentence in addition to the sentence for the offense.

This Court has interpreted § 46-18-502, MCA, as increasing the maximum penalty for the underlying felony to 100 years. In State v. Metz, 184 Mont. 533, 604 P.2d 102 (1979), defendant was convicted of sexual intercourse without consent and sentenced to 100 years in prison as a persistent felony offender. In Metz, we explained that “[d]efendant’s sentence is within the maximum allowable by the persistent felony offender statute. Section 46-18- 502(1), MCA.” Metz, 184 Mont. at 536, 604 P.2d at 104. In State v. Tracy, 233 Mont. 529, 761 P.2d 398 (1988), the defendant was convicted of felony theft, and sentenced to a term of 50 years as a persistent felony offender, with 40 years suspended. In reviewing the sentence on appeal, we stated:

“Section 46-18-502(1), MCA, grants the judge discretion to sentence a persistent felony offender to not less than 5 or more than 100 years in prison.”

Tracy, 233 Mont. at 533-34, 761 P.2d at 401.

Here, the District Court could have properly sentenced Fitzpatrick to serve a maximum of 100 years for escape and 100 years for burglary under § 46-18-502, MCA. The District Court, however, imposed sentences exceeding the statutory maximum limits under the statute. We therefore vacate the sentences and remand to the District Court for resentencing.

In addition, we note that § 46-18-502(2), MCA, applies when a defendant has previously been sentenced as a persistent felony offender and less than 5 years have elapsed between the commission of the offense for which the defendant is presently being sentenced and the previous felony conviction and sentence as a persistent felony offender. Section 45-2-101(15), MCA, defines conviction as a “judgment of conviction or sentence entered upon a plea of guilty ....”

In this case, the District Court first entered judgment and sentenced Fitzpatrick on the escape charge, designating him a persistent felony offender on that charge. It then entered judgment and sentenced him on the burglary charge, designating him a persistent felony offender on that charge. Therefore, even though only a number of minutes had elapsed between the two convictions, Fitzpatrick was a persistent felony offender at the time he was sentenced on the burglary charge, bringing him under subsection (2) of the persistent felony offender statute. When a defendant is sentenced under subsection (2), the sentence imposed must run consecutively to any other sentence. Section 46-18-502(4), MCA. Thus, subsection (4) requires that any sentences imposed by the District Court on remand run consecutively.

Vacated and remanded to the District Court for resentencing consistent with this Opinion.

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