text:
    BARRY BEACH, Petitioner, v. RICK DAY, Director, Department of Corrections and Human Services, Respondent.
    No. 95-489.
    Ordered February 8, 1996.
    53 St.Rep. 184.
    275 Mont. 370.
    913 P.2d 622.
   ORDER

Barry Beach has filed herein his petition for postconviction relief. In response, the Attorney General of the State of Montana, appearing on behalf of the respondent Rick Day (hereafter the State), moved to dismiss Beach’s petition. The motion to dismiss has been fully briefed. In addition, Beach has filed a motion for discovery and inspection; given our grant herein of the State’s motion to dismiss Beach’s petition for postconviction relief, we need not address or rule on the motion for discovery.

In 1984, a jury convicted Beach of deliberate homicide. He was sentenced by the Fifteenth Judicial District Court, Roosevelt County, to one hundred years in prison and determined to be ineligible for designation as a nondangerous offender or for parole. He appealed, through the same counsel who represented him during the trial, raising a number of issues. We issued our opinion affirming on all issues on July 25, 1985, and, thereafter, denied Beach’s petition for rehearing. State v Beach (1985), 217 Mont. 132, 705 P.2d 94 (Beach I).

In May of 1992, Beach filed a petition for writ of habeas corpus in the Montana federal district court. He admitted therein that, except for claims of ineffective assistance of trial counsel, the issues raised in his habeas petition had been raised on direct appeal to this Court and addressed by this Court in Beach I. The State moved to dismiss the habeas petition on the basis that Beach had not exhausted certain of his claims in state court. On September 28, 1993, the federal district court stayed Beach’s federal habeas proceedings pending exhaustion of claims in state court.

Approximately two years later, on October 30, 1995, Beach filed his petition for postconviction relief in this Court. Thus, the postconviction petition was filed here some eleven years after Beach’s conviction and in excess of ten years following our affirmance of that conviction on direct appeal.

Beach’s petition states, as grounds for relief, the following:

a. Ground one: Absolutely no physical evidence connected Mr. Beach to the homicide. Rather, the sole basis of the conviction was an illegally obtained confession. The confession was extracted from Mr. Beach in violation of his Fourth Amendment right to be free from unreasonable searches and seizures and his Fifth Amendment right not to incriminate himself. This coerced confession is inherently unreliable and does not match the physical evidence of the crime. Specifically, Mr. Beach’s rights were violated in the following respects:
i. the confession was obtained as a result of and after he was arrested in his home without a warrant.
ii. the confession was obtained after Mr. Beach was denied his constitutional right to release on bail.
iii. the confession was obtained after Mr. Beach had been held for more than three days without being taken before a magistrate and arraigned and advised of his rights.
iv. the confession was involuntary.
b. Ground two: Mr. Beach was denied effective assistance of counsel in violation of the Sixth Amendment in that his trial counsel failed to:
i. subpoena certain essential witnesses to testify at the suppression hearing and at trial;
ii. cross-examine prosecution witnesses on the descrepancies [sic] between the facts set forth in his confession and the evidence found at the scene and discovered by subsequent investigation;
iii. move for a mistrial or raise the issue on appeal when the prosecution, after asserting in its opening argument that there was physical evidence connecting Mr. Beach with the homicide, acknowledged that the “evidence” was inadmissible.
iv. move for a mistrial or raise the issue on appeal when the prosecution misstated the evidence and engaged in egregious prosecutorial misconduct in its closing argument by asserting that there was evidence that connected Mr. Beach with the offense that the prosecution was precluded from introducing because of legal technicalities.

Addressing Beach’s confession claims first, we compare the confession-related claims quoted above from Beach’s petition for postconviction relief to those set forth and resolved in Beach I, 705 P.2d at 103-07, relating to Beach’s confessions:

A. That such statements were obtained as a result of defendant’s arrest in his home without a warrant.
B. Such statements were obtained after the defendant was denied his constitutional right to release on bail.
C. Such statements were obtained after the defendant was denied his right to be taken before a magistrate or a judge and arraigned and advised of his rights.
D. That the State failed its burden of proving the voluntariness of the statements.

The confession claims in Beach’s current petition are, for the most part, identical in wording to those raised on direct appeal and are, in any event, identical in substance. Thus, Beach’s confession-related claims are barred by the doctrine of res judicata inasmuch as they were raised on direct appeal. Rudolph v. Day (1995), [273 Mont. 309], 902 P.2d 1007, 1008 (citation omitted).

We observe that Beach raises in his memorandum in support of his petition an additional confession-related claim not specifically stated in his petition, namely, that his confession(s) was false. This claim, too, is barred by res judicata as a claim which could have been raised on direct appeal. Rudolph, 902 P.2d at 1008. In addition, § 46-21-105(2), MCA, provides that, when a petitioner had been afforded a direct appeal, “grounds for relief that could reasonably have been raised on direct appeal may not be raised in the original or amended petition.” We recently have held that § 46-21-105(2), MCA, clearly establishes a procedural bar to postconviction claims that could have been raised on direct appeal. Kills on Top v. State (1995), [273 Mont. 32], 901 P.2d 1368, 1385. Beach’s confession-related claims are barred by res judicata and by § 46-2-105(2), MCA.

With regard to the ineffective assistance of counsel claims raised in Beach’s petition for postconviction relief, those claims — as well as his confession claims — are untimely. Section 46-21-102, MCA, provides that a petition for postconviction relief “may be filed at any time within 5 years of the date of the conviction.” Beach was convicted in 1984 and, accordingly, his October 30, 1995, petition for postconviction relief is time-barred under § 46-21-102, MCA.

Beach argues that the statutory five-year limit is not absolute, and that we should address his postconviction claims regarding ineffective assistance of counsel under the so-called Perry exception. Perry is inapplicable here, however, and is, as we recently held, “unique on its facts.” State v. Gollehon (1995), [274 Mont. 116], 906 P.2d 697, 700.

State v. Perry (1988), 232 Mont. 455, 758 P.2d 268, involved an out-of-time motion for a new trial, not a petition for postconviction relief; indeed, we specifically declined the State’s invitation to deem Perry’s pleading a petition for postconviction relief and, on that basis, apply the five-year statute of limitations contained in § 46-21-102, MCA. Perry, 758 P.2d at 272. Moreover, the defendant in Perry filed his motion for new trial immediately upon discovering “new evidence” allegedly establishing that he did not commit the homicide for which he had been convicted. Perry, 758 P.2d at 272. In determining that it was necessary to reach the merits of Perry’s new trial motion, we relied heavily on Perry’s diligence in proceeding with the new evidence and the absence of other posttrial remedies available to him under which the justness of his claim could be addressed. Perry, 758 P.2d at 272-73.

Nothing in the factual or procedural scenario now before us is similar to Perry. Here, Beach offers no “new evidence” which has come to light since his appeal was completed, much less since the running of the five years within which he was required by statute to file his petition for postconviction relief. Most of his ineffective assistance claims are record-based and Beach makes no showing that they could not have been raised during the § 46-21-102, MCA, time constraint.

This is equally true of the specific claim argued in Beach’s memorandum in support of his petition that his counsel was deficient in not having Beach’s Louisiana attorney, Paul Henry Kidd, testify concerning his and Beach’s meeting with authorities in Louisiana on January 11, 1983. This claim relates to one of the confession issues raised and addressed in Beach I, and to this Court’s reliance therein— in determining that Beach’s confessions were voluntary — on the second confession, made in his Louisiana attorney’s presence. Beach, 705 P.2d at 104. Beach now offers Mr. Kidd’s affidavit stating that Beach made no such confession in his presence on that date.

The record is clear, however, that this affidavit is not new evidence which could not have been discovered during the five-year period within which Beach’s petition for postconviction relief was required to be filed under § 46-21-102, MCA. Indeed, during the pendency of Beach’s petition for rehearing after issuance of our opinion in Beach I, Beach’s counsel moved this Court for additional time to supplement his petition for rehearing. The basis of the motion was that counsel had been contacted by Mr. Kidd after Mr. Kidd read this Court’s opinion, and counsel desired to obtain Mr. Kidd’s affidavit to the effect that Beach did not confess to the Montana murder in his presence at any time, in Louisiana or elsewhere. Thus, the motion for additional time to supplement the petition for rehearing, dated August 19, 1985, clearly establishes that this information was known and available to Beach from that date forward and could have been included in a timely petition for postconviction relief pursuant to § 46-21-102, MCA. On that basis, this information cannot constitute “new evidence” for purposes of avoiding the statutory five-year time limit pursuant to Perry. Nor has Beach demonstrated any fundamental miscarriage of justice which might persuade us of the propriety of refusing to apply the procedural bar we consistently apply. See Rudolph, 902 P.2d at 1008. Finally, we note Beach’s reliance on Schlup v. Delo (1995), _ U.S. _, 115 S.Ct. 851, 130 L.Ed.2d 808. Schlup is a federal habeas corpus case involving a successive federal habeas petition and the federal test for when the bar against a successive petition can be avoided in order to permit the resolution of underlying constitutional claims on the merits. Schlup, 115 S.Ct. at 856-60. It has no application here.

We conclude, therefore, that each of the claims contained in Beach’s petition for postconviction relief filed October 30, 1995, is procedurally barred by res judicata, § 46-21-105(2), MCA, and/or § 46-21-102, MCA. Therefore,

IT IS ORDERED that the State’s motion to dismiss Beach’s petition for postconviction relief is GRANTED; and

IT IS FURTHER ORDERED that the Clerk of this Court shall mail a true copy of this order to counsel of record for the parties.

DATED this 8th day of February, 1996.

Is/ J.A. Turnage, Chief Justice

/s/ Karla M. Gray, Justice

/s/ William E. Hunt, Sr., Justice

/s/ Charles E. Erdmann, Justice

/si W. William Leaphart, Justice

Is/ Terry Trieweiler, Justice

JUSTICE NELSON did not participate in this case.


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    JOANN R. WERRE and JOHN D. WERRE, Plaintiffs, Respondents and Cross-Appellants, v. MARGARET R. DAVID, Individually and as Personal Representative of the Estate of KENNETH C. DAVID, Defendants and Appellants.
    No. 95-145.
    Submitted November, 16, 1995.
    Rehearing Denied April 15, 1996.
    Decided March 14, 1996.
    53 St.Rep. 187.
    275 Mont. 376.
    913 P.2d 625.

      For Appellants: Daniel W. Hileman; Murray & Kaufman, Kalispell (argued).
    For Respondents: Joe Bottomly; Bottomly Law Offices, Kalispell (argued).
    For Amicus Curiae: Linda Mangel, Attorney at Law, Seattle Washington; Joan Jonkel, Attorney at Law, Missoula (for Northwest Women’s Law Center); David R. Paoli, Attorney at Law, Missoula (for Montana Trial Lawyers Association).
   JUSTICE GRAY

delivered the Opinion of the Court.

Margaret R. David (Margaret), individually and as personal representative of the Estate of Kenneth C. David (Estate), appeals from the judgment entered by the Eleventh Judicial District Court, Flathead County, on a jury verdict awarding Joann R. Werre (Joann) and John D. Werre (John) damages in the amount of $250,000. Joann cross-appeals, but requests that we not address the issues she raises unless we reverse and remand for a new trial as a result of Margaret’s appeal. We affirm and, therefore, deem the cross-appeal withdrawn.

We restate the issues on appeal as follows:

1. Did the District Court err in denying Margaret’s motion for a directed verdict on the basis that whether Joann’s claim was time-barred pursuant to § 27-2-216, MCA, was a question of fact for the jury?

2. Did the District Court err in concluding that the tolling provisions of § 27-2-216, MCA, include negligence claims based on intentional sexual abuse?

3. Did the District Court abuse its discretion in denying Margaret’s motion to edit Dr. Dennis Malinak’s deposition testimony to exclude reference to his conversation with Margaret?

4. Did the District Court abuse its discretion in excluding certain evidence regarding Joann and John’s marital problems?

5. Did the District Court err in denying Margaret’s motion for a directed verdict on the negligence claim against her individually?

6. Did the District Court err in instructing the jury on causation?

7. Did the District Court abuse its discretion in denying Margaret’s motion for a new trial?

Margaret married Ben Carkuff (Ben) in 1945 and they had four children, including Joann. When Joann was approximately six to eight years old, she was sexually abused by Ben’s brother, whom she called Uncle Francis, during weekly visits to Ben’s parents’home. The abuse by Uncle Francis stopped in 1957 when the family’s weekly visits to Joann’s paternal grandparents’home ceased after Margaret divorced Ben. Margaret married Kenneth David (Kenneth) in 1957 and they and Margaret’s children, including Joann, moved from Minnesota to Kalispell, Montana.

When Joann was approximately twelve to fourteen years old, Margaret asked Kenneth to “give” Joann sex education. She took all of her children except Joann out for ice cream so that Kenneth could be alone with Joann. Kenneth had sexual intercourse with Joann on this occasion. After that incident, Kenneth also fondled Joann several times.

Joann married John when she was seventeen years old. She did not tell anyone about the abuse by either her uncle or Kenneth until 1989, when she told John about Uncle Francis’ abuse. John recommended that Joann see Carol Lee (Lee), a clinical social worker, to discuss the abuse.

Lee began counseling Joann in May of 1989. She originally diagnosed Joann as having an adjustment disorder with mixed emotional features. In November of 1989, Lee further diagnosed Joann with post-traumatic stress disorder. She concluded that Joann’s mental disorders were caused by both the abuse by Uncle Francis and the abuse by Kenneth and, further, that either abuse could have caused Joann’s mental disorders.

Joann confronted Margaret and Kenneth regarding the sexual abuse by Kenneth and Uncle Francis in November of 1989. Kenneth did not deny that he sexually abused Joann. Kenneth died in July of 1990.

In December of 1989, Joann became an inpatient at Glacier View Hospital (Glacier View), where she remained for approximately twenty-two days. During that time, Dr. Dennis Malinak, a psychiatrist, treated her. Dr. Malinak diagnosed Joann with a borderline personality disorder and an adjustment disorder; he later agreed with Lee’s diagnosis of post-traumatic stress disorder. Dr. Malinak opined that both the abuse by Uncle Francis and the abuse by Kenneth were causal factors in Joann’s disorders and, further, that Kenneth’s abuse was a major cause of those disorders.

On September 3, 1992, Joann filed a complaint against Margaret individually and as personal representative of Kenneth’s Estate. As subsequently refined in the Pretrial Order, Joann alleged the intentional tort of sexual abuse against Kenneth and intentional or, alternatively, negligent conduct by Margaret in aiding Kenneth’s sexual abuse and failing to use due care to protect her. During the jury trial, the District Court directed a verdict in Margaret’s favor on Joann’s intentional tort claim against her individually. The jury found that Kenneth sexually abused Joann and that Margaret was negligent; it awarded $250,000 in damages. Margaret appeals in both her individual capacity and her capacity as personal representative of Kenneth’s Estate. Additional facts are set forth below where necessary for our resolution of the issues.

1. Did the District Court err in denying Margaret’s motion for a directed verdict on the basis that whether Joann’s claim was time-barred pursuant to § 27-2-216, MCA, was a question of fact for the jury?

Joann filed this action on September 3, 1992. Margaret contends that the undisputed evidence establishes that Joann discovered that her injuries were caused by the childhood sexual abuse by Kenneth prior to September of 1989. On that basis, she argues that the District Court was required to direct a verdict in her favor as a matter of law under § 27-2-216, MCA.

A directed verdict is proper only when there is a complete absence of any evidence which would justify submitting an issue to a jury, and all inferences which can be drawn from the evidence must be considered in a light most favorable to the opposing party. Pierce v. ALSC Architects, P.S. (1995), 270 Mont. 97, 107, 890 P.2d 1254, 1260 (citing Jacques v. Montana Nat’l Guard (1982), 199 Mont. 493, 649 P.2d 1319). A district court must deny a motion for a directed verdict if substantial conflicts in the evidence exist. Fox Grain and Cattle Co. v. Maxwell (1994), 267 Mont. 528, 533, 885 P.2d 432, 435 (quoting Simchuk v. Angel Island Community Ass’n (1992), 253 Mont. 221, 833 P.2d 158).

Section 27-2-216(l)(b), MCA, provides, in relevant part:

(1) An action based on intentional conduct brought by a person for recovery of damages for injury suffered as a result of childhood sexual abuse must be commenced not later than:
(b) 3 years after the plaintiff discovers or reasonably should have discovered that the injury was caused by the act of childhood sexual abuse.

In order for the District Court to have properly denied Margaret’s motion for a directed verdict in this regard, there must be evidence of record that Joann did not discover the causal connection between Kenneth’s abuse and her mental disorders until after September 3, 1989.

It is true, as Margaret contends, that the record contains evidence indicating that Joann connected Kenneth’s abuse with her psychological problems prior to September 3, 1989. On cross-examination Joann testified that she did not tell a male therapist she saw in 1970 about Kenneth’s sexual abuse because she distrusted men as a result of that abuse. Joann also conceded on cross-examination that, when she first saw Lee in May of 1989, she made some connection between her need for counseling and her childhood sexual abuse.

However, Joann presented evidence indicating that she did not discover that her mental disorders were connected to Kenneth’s abuse until after September 3, 1989. She testified that, although she was always aware that she had been sexually abused, she did not connect her abuse with her psychological problems until November of 1989. Lee opined that Joann began to connect the sexual abuse by Kenneth with her mental disorders after she confronted Margaret and Kenneth in November of 1989. Dr. Malinak testified that, when Joann was hospitalized at Glacier View in December of 1989, she was in the process of connecting her sexual abuse with her mental disorders. Moreover, Herman Andróes (Andróes), a clinical psychologist and therapist testifying on behalf of Margaret and the Estate, conceded on cross-examination that he agreed with the conclusions of Lee and Dr. Malinak in this regard.

This review of the record demonstrates the substantial conflicts in the evidence regarding when Joann discovered that her injuries were caused by the childhood sexual abuse she experienced, for purposes of applying the time bar contained in § 27-2-216, MCA. It is within the province of the jury to resolve conflicts in the evidence. Barthule v. Karman (1994), 268 Mont. 477, 485, 886 P.2d 971, 976. Therefore, based on the record before us, we conclude that the time at which Joann discovered a connection between Kenneth’s sexual abuse and her mental disorders was a question of fact for the jury. Accordingly, we hold that the District Court did not err in denying Margaret’s motion for a directed verdict on the basis of § 27-2-216(l)(b), MCA.

2. Did the District Court err in concluding that the tolling provisions of § 27-2-216, MCA, include negligence claims based on intentional sexual abuse?

Margaret argues that the plain language of § 27-2-216, MCA, refers only to intentional conduct and, therefore, the statute does not toll the general three-year statute of limitations for negligence actions. Alternatively, she argues that, if the statutory language is ambiguous, the legislative history of § 27-2-216, MCA, establishes the legislature’s intent to limit the applicability of the tolling provision to actions against perpetrators of sexual abuse against minors. Under either approach, Margaret contends that § 27-2-216, MCA, includes only claims against perpetrators of intentional sexual abuse and that, because Joann’s remaining claim against her individually alleges only that she was negligent, the claim cannot be maintained under § 27-2-216, MCA.

The District Court concluded that § 27-2-216, MCA, includes negligence claims which are based on intentional conduct and that, if the Montana legislature had intended to limit its applicability solely to actions against perpetrators of sexual abuse, it could have done so specifically. We review a district court’s conclusions of law to determine if the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686 (citing Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603).

In interpreting a statute, we look first to the plain meaning of the words it contains. Clarke v. Massey (1995), 271 Mont. 412, 416, 897 P.2d 1085, 1088. Where the language is clear and unambiguous, the statute speaks for itself and we will not resort to other means of interpretation. Clarke, 897 P.2d at 1088. “In the search for plain meaning, ‘the language used must be reasonably and logically interpreted, giving words their usual and ordinary meaning.’ ” Gaub v. Milbank Ins. Co. (1986), 220 Mont. 424, 427, 715 P.2d 443, 445 (quoting In re Matter of McCabe (1975), 168 Mont. 334, 339, 544 P.2d 825, 828).

Section 27-2-216, MCA, addresses the time within which a person who has suffered injury as a result of childhood sexual abuse must bring “[a]n action based on intentional conduct....” The meaning of “based on” is determinative of whether § 27-2-216, MCA, includes negligence claims. Margaret does not advance a definition for the words “based on,” but her unsupported position appears to be that “based on” means “equal to.”

We previously have determined the ordinary meaning of the statutory language “based upon.” State ex rel. Snidow et al. v. State Bd. of Equalization et al. (1933), 93 Mont. 19, 17 P.2d 68. State Bd. of Equalization involved a statute under which the value of metals for license tax purposes was to be determined. The statute stated, in relevant part, that “the gross value of the [metal] ... shall be determined by taking the market value of all merchantable metals or mineral products ... based upon the average quotations... in the City of New York ... during the calendar year immediately preceding.” State Bd. of Equalization, 17 P.2d at 71 (emphasis added). Essentially arguing that “based upon” means “equal to,” Snidow contended that the tax should have been determined by merely multiplying the New York price of the metals by the number of pounds or ounces of metal produced. State Bd. of Equalization, 17 P.2d at 69. The State Board of Equalization contended that the New York prices should be used as a base for determining Montana values, essentially arguing that “based upon” means a starting point for determination. State Bd. of Equalization, 17 P.2d at 70. We stated that “the ordinarily accepted meaning of the words ‘based upon’ is an initial or starting point....” State Bd. of Equalization, 17 P.2d at 73. Moreover, we have indicated that “on” and “upon” are synonymous and, thus, interchangeable. Northern Pac. R.R., Co. v. Gas Dev. Co. (1936), 103 Mont. 214, 218, 62 P.2d 204, 205. Thus, we rejected in State Bd. of Equalization an argument similar to Margaret’s in this case regarding the plain meaning of “based on.”

Our determination in State Bd. of Equalization regarding the ordinary and accepted meaning of “based upon” is consistent with the dictionary definition of “base.” “Base” is defined as “that on which something rests or stands: foundation ... the point or line from which a start is made in an action or undertaking ....” Webster’s Third New International Dictionary, 180 (1971). Accordingly, we conclude that the plain meaning of “based on” is an initial or starting point or foundation.

The legislature affirmatively chose to use the words “based on” in § 27-2-216, MCA. Our role in interpreting statutes is “to ascertain and declare what is in terms or in substance contained therein, not ... to omit what has been inserted.” Section 1-2-101, MCA. We conclude that, under the plain meaning of the language used in § 27-2-216, MCA, an action is “based on intentional conduct” if intentional sexual abuse is the starting point or foundation for the claim.

Here, Joann’s negligence claim against Margaret would not exist absent the intentional sexual abuse by Kenneth; stated differently, Kenneth’s intentional sexual abuse of Joann is the starting point or foundation for Joann’s negligence claim against Margaret. Thus, Joann’s negligence claim against Margaret is, under the plain meaning of the language in § 27-2-216, MCA, “based on intentional conduct.” To accept Margaret’s argument that § 27-2-216, MCA, includes only claims for intentional conduct would require us to disregard the express language “based on” contained therein, thus exceeding our judicial role in interpreting statutes. Section 1-2-101, MCA. Since the intentional sexual abuse by Kenneth is the foundation for Joann’s negligence claim against Margaret, Joann’s claim is within the purview of § 27-2-216, MCA.

Moreover, § 27-2-216, MCA, cannot be read in a vacuum. We must harmonize statutes relating to the same subject matter, giving effect to each. Crist v. Segna (1981), 191 Mont. 210, 212, 622 P.2d 1028, 1029 (citing State ex rel. City of Townsend v. D.A. Davidson, Inc. (1975), 166 Mont. 104, 531 P.2d 370).

Section 27-2-204, MCA, provides the limitations periods for initiating both negligence and intentional tort actions. It provides, in pertinent part:

(1) Except as provided in 27-2-216 and 27-2-217, the period prescribed for the commencement of an action upon a liability not founded upon an instrument in writing is within 3 years.
(3) The period prescribed for the commencement of an action for libel, slander, assault, battery, false imprisonment, or seduction is within 2 years.

Section 27-2-204, MCA (emphasis added). Subsection (1) of this statute, which encompasses negligence actions, specifically cross-references the tolling provisions of § 27-2-216, MCA, and thereby engrafts the § 27-2-216, MCA, tolling provision onto the general statute of limitations for negligence actions. To accept Margaret’s contention that § 27-2-216, MCA, is limited to claims against perpetrators of sexual abuse would require us to contravene our role in interpreting statutes by omitting from § 27-2-204(1), MCA, the specific cross-reference enacted by the legislature. See § 1-2-101, MCA.

Thus, reading these statutes together buttresses our interpretation of the plain meaning of the language used in § 27-2-216, MCA, on a stand-alone basis. We conclude that § 27-2-216, MCA, is plain, unambiguous, direct and certain and that it is not limited to intentional tort actions against perpetrators of childhood sexual abuse. Accordingly, we hold that the District Court did not err in concluding that the tolling provisions of § 27-2-216, MCA, include negligence claims based on intentional sexual abuse.

3. Did the District Court abuse its discretion in denying Margaret’s motion to edit Dr. Malinak’s deposition testimony to exclude reference to his conversation with Margaret?

In September of 1994, Joann video-taped Dr. Malinak’s deposition pursuant to a notice indicating the potential use of the deposition at trial as perpetuated testimony. During the deposition, Dr. Malinak testified regarding a telephone conversation he had with Margaret while Joann was hospitalized at Glacier View. Specifically, he stated that he “sense [d] [Margaret] was aware that [the sexual abuse] was going to happen and, in fact, that’s why she took the kids.” Margaret did not object to Dr. Malinak’s testimony during the deposition.

Approximately two weeks later, Margaret filed “Defendant’s Objections to Testimony of Dr. Dennis Malinak & Motion for Order to Edit Deposition.” She contended that Joann’s questions were leading, called for a conclusion and called for speculation. Joann responded that, had Margaret objected during the deposition, she could have established a sufficient foundation for Dr. Malinak’s testimony.

The District Court denied Margaret’s motion to edit Dr. Malinak’s testimony. We review a district court’s evidentiary ruling to determine if the court abused its discretion. In the Matter of the Seizure of $23,691.00 in United States Currency (1995), [273 Mont. 474], 905 P.2d 148, 152 (citing State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380).

Margaret argues generally on appeal that Dr. Malinak’s impressions about whether she knew Kenneth would sexually abuse Joann constitute an inadmissible conclusion as to what was in her mind. As we previously noted, however, Margaret did not object to Dr. Malinak’s testimony during his deposition.

Rule 32(d)(3)(B), M.R.Civ.P, addresses the effect of errors and irregularities in depositions. It provides that any error “in the form of the questions or answers,... and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless reasonable objection thereto is made at the taking of the deposition.” Rule 32(d)(3)(B), M.R.Civ.P. Margaret’s objections to questions posed and to Dr. Malinak’s responses were not made during the deposition as required by Rule 32(d)(3)(B), M.R.Civ.P. We conclude, therefore, that Margaret waived any errors regarding the admissibility of portions of Dr. Malinak’s testimony. We hold that the District Court did not abuse its discretion in denying Margaret’s motion to edit Dr. Malinak’s deposition testimony.

4. Did the District Court abuse its discretion in excluding certain evidence regarding Joann and John’s marital problems?

Prior to trial, Joann filed a motion in limine to exclude evidence of the marital problems she and John experienced on the basis that it was irrelevant and inflammatory. Margaret responded that the evidence was relevant to issues of causation and damages and that her case would be prejudiced by excluding it.

The District Court granted Joann’s motion in limine with regard to evidence that John had an extramarital affair and that Joann had a gun to protect herself from John while staying with her brother prior to her admission to Glacier View. However, the court refused to exclude evidence about whether the marital discord on a stand-alone basis — rather than the sexual abuse — caused, or substantially contributed to, Joann’s counseling bills.

Margaret contends that the District Court erred in excluding evidence of Joann’s marital discord except on a limited basis. She argues that the court’s exclusion of such evidence precluded the jury from determining that Joann’s counseling bills were attributable to her marital discord rather than to the sexual abuse. A district court has wide discretion in determining the admissibility of evidence; we review a trial court’s exclusion of evidence to determine if the court abused its discretion. Jacobsen et al. v. State (1989), 236 Mont. 91, 94, 769 P.2d 694, 695 (citations omitted).

Relevant evidence is generally admissible at trial. Rule 402, M.R.Evid. “Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 401, M.R.Evid. We have stated that the test of relevance is “whether an item of evidence will have any value, as determined by logic and experience, in proving the proposition for which it is offered.” State v. Fitzpatrick (1980), 186 Mont. 187, 207, 606 P.2d 1343, 1354.

Here, Margaret claimed that the excluded evidence — that John had an extramarital affair and that Joann had a gun to protect herself from John — was relevant to the issues of causation and damages. Margaret was attempting to prove through evidence of Joann and John’s marital problems that the marital problems were at least a cause of Joann’s mental disorders. The excluded evidence arguably has some value in proving that Joann’s marital problems contributed to or caused her injuries and in determining her damages.

There is an exception, however, to the admissibility of relevant evidence. “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ....” Rule 403, M.R.Evid.

In Kimes v. Herrin (1985), 217 Mont. 330, 705 P.2d 108, we held that it was an abuse of discretion to admit evidence regarding the claimant’s poor home environment on the basis that, although the evidence was relevant under Rule 402, M.R.Evid., no evidence at trial established a medical connection between poor home environment and the claimant’s symptoms. Kimes, 705 P.2d at 110. In Kimes, expert witnesses indicated that poor home environment may cause symptoms such as those exhibited by the claimant; however, the testimony was not sufficient to establish a medical connection. Kimes, 705 P.2d at 110.

Similarly, in this case, even Margaret’s own expert witness did not testify that Joann’s marital problems caused her mental disorders. Andróes admitted on cross-examination that, while Joann’s marital discord caused her some stress, it was not a significant factor in causing her mental disorders. Moreover, since the marital problems were not a significant causal factor, they could not significantly impact on the question of damages. We conclude that, under these facts, it was within the District Court’s discretion to exclude the evidence that John had an extramarital affair and that Joann had a gun to protect herself from John prior to her admission to Glacier View as both misleading and more prejudicial than probative under Rule 403, M.R.Evid. Accordingly, we hold that the District Court did not abuse its discretion in excluding this particular evidence regarding Joann’s marital problems.

Finally, Margaret’s contention that she was precluded from establishing a basis upon which the jury could find that marital discord, rather than sexual abuse, caused Joann’s mental disorders and damages ignores the record. On cross-examination, Dr. Malinak testified that a considerable amount of Joann’s therapy at Glacier View centered around her and John’s marital problems. Lee also conceded on cross-examination that Joann discussed her marital problems, including a possible divorce, during virtually every counseling session and, in addition, opined that John had caused Joann psychological injury by being verbally and physically abusive. Thus, contrary to her argument, Margaret presented substantial evidence that all, or, a portion, of Joann’s counseling bills were attributable to marital discord rather than to sexual abuse.

5. Did the District Court err in denying Margaret’s motion for a directed verdict on the negligence claim against her individually?

Joann contended at trial that Margaret was negligent in that she breached her parental duty of care to protect Joann. Margaret moved for a directed verdict on the basis that Joann failed to present evidence from which a jury could find that she was negligent. The District Court concluded that there was sufficient evidence regarding Margaret’s role in Kenneth’s abuse of Joann to go to the jury and denied Margaret’s motion for a directed verdict.

Margaret argues that the undisputed evidence established only that she asked Kenneth to discuss sex education with Joann and that such evidence is insufficient as a matter of law to support a finding of negligence. On that basis, she asserts that the District Court erred in denying her motion for a directed verdict. As discussed above, a directed verdict is proper only where there is a complete absence of evidence justifying submitting the issue to a jury. Pierce, 890 P.2d at 1260 (citing Jacques, 649 P.2d at 1325).

Margaret’s “undisputed evidence” argument simply ignores the record before us. Joann testified that, when she confronted Margaret and Kenneth in November of 1989, Margaret admitted having Kenneth have sex with her under the pretext of sex education. Dr. Malinak’s video-taped deposition testimony that he sensed from speaking with Margaret that she was aware that Kenneth’s sexual abuse of Joann was going to occur corroborates Joann’s testimony.

We conclude that there was sufficient evidence to submit the issue of Margaret’s negligence to a jury. Accordingly, we hold that the District Court did not err in denying Margaret’s motion for a directed verdict on the negligence claim against her individually.

Margaret also argues generally that substantial credible evidence does not support the jury’s verdict that she was negligent. Substantial evidence is evidence which a reasonable mind might accept as adequate to support a conclusion and may be based on weak and conflicting evidence. King v. Zimmerman (1994), 266 Mont. 54, 60, 878 P.2d 895, 899 (citing Arnold v. Boise Cascade (1993), 259 Mont. 259, 265, 856 P.2d 217, 220). The weight given to the evidence and the credibility of witnesses lie solely within the province of the jury; we will not reweigh conflicting evidence. Thayer v. Hicks (1990), 243 Mont. 138, 153, 793 P.2d 784, 793 (citing Stewart v. Fisher (1989), 235 Mont. 432, 436, 767 P.2d 1321, 1323).

Margaret’s substantial evidence argument is based on her contention that portions of Dr. Malinak’s testimony were inadmissible, and we have concluded otherwise. Moreover, Joann’s testimony that Margaret admitted in 1989 that she “had [Kenneth] have sex with [Joann]” constitutes substantial credible evidence of Margaret’s negligence on a stand-alone basis. We conclude that substantial credible evidence supports the jury’s finding that Margaret was negligent.

As her final related argument, Margaret contends that Kenneth’s intentional sexual abuse of Joann breaks any causal connection between her acts and Joann’s injuries and precludes any liability on her part for those injuries as a matter of law. She relies on Azure v. U.S. Health and Human Services (D. Mont. 1991), 758 F.Supp. 1382, and Deeds v. United States (D. Mont. 1969), 306 F.Supp. 348, for the proposition that “where harm is intentionally caused by a third person and is not within the scope of risk created by the defendant’s conduct!,]” the third person’s intentional act precludes imposition of liability against the defendant.

Margaret’s reliance on Azure and Deeds is misplaced. Although Margaret correctly states the rule from those cases on intervening, superseding causes, she does not properly apply it due to her continued mischaracterization of the record to the effect that “there was no evidence [that Kenneth’s abuse of Joann] was contemplated by [her].”

Causation issues generally present questions offact; where conflicting evidence is presented at trial, such issues must be decided by a jury. Payne v. Sorenson (1979), 183 Mont. 323, 327, 599 P.2d 362, 365. As discussed above, Joann presented evidence that Margaret knew Kenneth intended to have sexual contact with her in the context of educating her about sex and that Margaret removed her other children from the house for that reason. This evidence is sufficient to raise a fact issue for the jury with regard to whether the harm to Joann caused by Kenneth’s intentional acts was within the scope of risk created by Margaret’s conduct. On that basis, we conclude that Margaret’s argument that Kenneth’s abuse of Joann constituted an intervening, superseding cause of Joann’s injuries which precluded the imposition of liability on her as a matter of law is without merit.

6. Did the District Court err in instructing the jury on causation?

On behalf of the Estate, Margaret advances a number of arguments under which she contends the District Court failed to properly instruct the jury on causation. A district court has discretion in instructing the jury and we will not reverse the court on the basis of alleged instructional errors absent an abuse of discretion. Cechovic v. Hardin & Assoc., Inc. (1995), [273 Mont. 104], 902 P.2d 520,527 (citing Arnold, 856 P.2d at 222). In reviewing jury instructions, we consider the instructions given in their entirety and in connection with the evidence presented at trial. Cechovic, 902 P.2d at 527 (citing Story v. City of Bozeman (1993), 259 Mont. 207, 222, 856 P.2d 202, 211).

Margaret argues that the District Court erred by giving Instruction No. 12, which she contends essentially directed the jury to award Joann damages if it found that Kenneth sexually abused Joann. Margaret contends that the instruction failed to require the jury to find that Kenneth’s conduct caused Joann’s injuries and resulted in the imposition of strict liability for Kenneth’s conduct.

Instruction No. 12 reads as follows:

As to the Estate of Kenneth David, you are instructed that if you find he sexually abused Joann Werre, then you should determine the amount of money that would compensate her for the injuries, if any she received, according to the further instructions I will give you.

While Margaret is correct that this instruction does not require a causation finding, it does refer the jury to the court’s other instructions. In this regard, the District Court instructed the jury that “[i]f you find that ... Kenneth David, knowingly had sexual intercourse with [Joann] ... you may determine what damages, if any, were caused by his unlawful conduct.” Considering these instructions together, as we must (see Cechovic, 902 P.2d at 527), it is clear that the jury was required to determine whether Kenneth’s conduct caused Joann any damages. Thus, we conclude that the instructions did not result in the imposition of strict liability for Kenneth’s conduct.

Margaret also argues that Instruction No. 12 required the jury “to award all damages arising out of either the Uncle Francis abuse, or the [Kenneth] incident, against [Margaret and the Estate].” Instruction No. 12 does not mention the abuse by Uncle Francis and certainly did not require the jury to award all damages arising from either Uncle Francis’ or Kenneth’s abuse against Margaret and the Estate. It merely directed the jury to determine whether and, if so, the extent to which Kenneth’s abuse caused damages to Joann; it did not foreclose the jury from determining that portions of Joann’s damages had another cause. Moreover, the District Court specifically instructed the jury that it could apportion damages by giving Instruction No. 23, which reads as follows:

Where a preexisting condition has been aggravated by the act sued upon, it is your duty, if possible, to apportion the amount of injury between that caused by the preexisting condition and that caused by the act sued upon ....

Thus, it is clear that the court’s instructions did not require the jury to award all damages, regardless of the source from which they arose, against Margaret and the Estate.

Margaret also seems to argue that the District Court failed to instruct the jury on her theory that Joann’s injuries were caused solely by Uncle Francis’ abuse. Her theory was supported at trial by Andróes’ testimony that, in his opinion, Joann’s injuries were caused by Uncle Francis’ abuse.

However, Margaret did not offer an instruction encompassing her theory that Uncle Francis’ abuse was the sole cause of Joann’s injuries. Rule 51, M.R.Civ.R, provides that “[n]o party may assign as error the failure to instruct on any point of law unless that party offers an instruction thereon.” We conclude, therefore, that Margaret is precluded from assigning error in this regard.

Margaret’s final assertion of instructional error is that the District Court erred by failing to instruct the jury to determine whether Kenneth’s sexual abuse of Joann was the cause-in-fact and proximate cause of her injuries. The record reflects that Margaret and Joann each proposed a cause-in-fact and proximate cause instruction covering both defendants. Margaret objected to Joann’s proposed causation instruction and the court refused it. Margaret then withdrew her own proposed causation instruction covering both defendants and offered a revised instruction covering only her own conduct. The District Court gave Margaret’s proposed instruction over Joann’s objection.

As we stated above, “[n]o party may assign as error the failure to instruct on any point of law unless that party offers an instruction thereon.” Rule 51, M.R.Civ.P. Having failed to offer a causation instruction covering the alleged deficiency of which she now complains on appeal, Margaret’s assertion of error is not properly before us.

We hold that the District Court did not err in instructing the jury on causation.

7. Did the District Court abuse its discretion in denying Margaret’s motion for a new trial?

Margaret argues that the District Court erred in denying her motion for a new trial because the jury’s $250,000 damage award was not supported by the evidence and was the result of passion and prejudice. Section 25-11-102, MCA, sets forth the grounds for a new trial and provides, insofar as it is relevant here, that

[t]he former verdict... may be vacated and a new trial granted on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:
(5) excessive damages appearing to have been given under the influence of passion or prejudice;
(6) insufficiency of the evidence to justify the verdict....

In considering a motion for a new trial based on an allegation of excessive damages, a district court cannot substitute its judgment for that of the jury unless it appears that the amount awarded is so out of proportion as to shock the conscience. Gibson v. Western Fire Ins. Co. (1984), 210 Mont. 267, 290, 682 P.2d 725, 738. We review a district court’s denial of a motion for a new trial to determine if the court abused its discretion. Gibson, 682 P.2d at 738.

With regard to the amount of the jury’s verdict, the record establishes the monetary amount of Joann’s past counseling bills and her bills from Glacier View. Dr. Malinak testified that Joann was charged $14,240.55 for a twenty-one day stay at Glacier View and that, in his opinion, this was a reasonable charge. He further testified that Joann was charged $900 for “services” during her hospitalization at Glacier View. Lee testified that she charged Joann $50 to $60 for each session and that all of Joann’s counseling was related to her childhood sexual abuse. Between May of 1989 and September of 1994, Joann incurred approximately $3,457.50 in counseling bills from Lee. Thus, Joann’s counseling and hospitalization bills to the date of trial totalled $18,598.05.

Joann also presented evidence regarding her future need for treatment. Dr. Malinak opined that Joann needs intensive outpatient treatment twice a week for two to four years and that she may require additional inpatient treatment. Dr. Malinak did not opine as to how much Joann’s future care would cost. However, he did state that, since Lee had counseled Joann in the past, he would suggest that Joann continue her treatment with Lee. Thus, based on Lee’s fee for a counseling session and Dr. Malinak’s opinion regarding Joann’s future treatment needs, Joann would incur at least $12,480 for two years of counseling or $24,960 for four years of counseling with Lee. This calculation assumes that Lee’s fee will not increase within the next two to four years. Moreover, these estimated figures do not include the cost of any future inpatient treatment Joann may require.

The record also contains evidence demonstrating the pain and suffering Joann endured as a result of Kenneth’s sexual abuse and Margaret’s allowing the abuse to occur. In this regard, we have stated that

there is no definite standard fixed by law in awarding damages for past or future mental and physical pain and suffering; all that is required is that the jury exercise calm and reasonable judgment in its award.

Rasmussen v. Sibert (1969), 153 Mont. 286, 297, 456 P.2d 835, 841.

Here, approximately 35 years passed between Kenneth’s sexual abuse of Joann and the trial in this case, during which time Joann has been impacted by the effects of the abuse. Lee opined that Joann’s marital conflict, or at least the manner in which she dealt with the conflict, was attributable to her childhood sexual abuse. Joann testified that she felt ashamed and nervous after Kenneth sexually abused her. She further testified that, after Kenneth’s abuse, she did not feel safe in her home and felt depressed, worthless and unable to trust others.

We conclude that substantial evidence supports the jury’s award of $250,000 and that the award does not shock the conscience. Accordingly, we hold that the District Court did not abuse its discretion in denying Margaret’s motion for a new trial.

Affirmed.

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


author: JUSTICE HUNT JUSTICE ERDMANN

text:
    SUZANNE E. SOUTH, Plaintiff & Appellant, v. TRANSPORTATION INSURANCE CO, Respondent/Insurer for COMBUSTION ENGINEERING, Respondent/Employer.
    No. 95-426.
    Submitted on Briefs January 4, 1996.
    Rehearing Denied April 11, 1996.
    Decided March 18, 1996.
    53 St.Rep. 196.
    275 Mont. 397.
    913 P.2d 233.

      For Appellant: Don Edgar Burris, Billings.
    For Respondent: Todd A. Hammer, Warden, Christiansen, Johnson & Berg, Kalispell.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Suzanne E. South (South) appeals the decision of the Montana Workers’ Compensation Court denying her petition to rescind a settlement agreement arising from her 1986 back injury. We reverse.

The sole issue on appeal is whether the Workers’ Compensation Court erred in refusing to rescind the settlement agreement.

FACTS

South sustained an on-the-job injury to her back in 1986. She underwent back surgery in late 1986 and again in 1988 to alleviate her back problems. Both surgeries were on the “L5/S1” level of her spine. In 1990, she entered into a Ml and Mai compromise settlement agreement with her insurer. The settlement agreement provided a list of seven jobs which both parties felt were acceptable for South to do, and which were approved as appropriate by a doctor. One of the approved jobs was that of massage therapist. After accepting and signing the settlement agreement, South moved to Seattle in order to begin massage therapist training. Shortly after beginning the program, however, South began to experience worsening back pain, for which she consulted a Seattle area doctor. When her back pain did not abate, South quit the massage training program and returned to Montana.

In 1994, South underwent a third surgery on her back, at the “L4-5” level of the spine. She subsequently petitioned the Workers’ Compensation Court to rescind the settlement agreement, alleging that both parties were operating under a mutual mistake of fact when it was signed. After trial, the Workers’ Compensation Court denied South’s petition and declined to rescind the settlement agreement. In so doing, the Workers’ Compensation Court pointed out that the current problem area in South’s back is different than the area injured in her 1986 on-the-job accident. The Workers’ Compensation Court further cited testimony given by South’s doctor, who stated that “something new” must have happened around 1991 to cause the re-injury. On this basis, the Workers’ Compensation Court found that the parties were not operating under a mutual mistake regarding the nature or extent of South’s injuries at the time the settlement agreement was reached. It therefore refused to rescind the settlement agreement, and South appeals.

ISSUE

Did the District Court err in refusing to rescind the settlement agreement?

STANDARD OF REVIEW

We review the Workers’ Compensation Court’s findings of fact to determine whether substantial credible evidence supports the findings. Strickland v. State Comp. Mut. Ins. Fund (1995), [273 Mont. 254], 901 P.2d 1391, 1393 (citing Wunderlich v. Lumbermen’s Mutual Casualty Co. (1995), 270 Mont. 404, 892 P.2d 563). We review the Workers’ Compensation Court’s conclusions of law to determine whether they are correct. Strickland, 901 P.2d at 1393 (citing Glaude v. State Comp. Mut. Ins. Fund (1995), 271 Mont. 136, 894 P.2d 940).

DISCUSSION

South alleges that the settlement agreement should be set aside because both parties were mutually mistaken regarding the propriety of “massage therapist” as a career for someone who had suffered a back injury. She contends that the settlement agreement should be rescinded because of this mutual mistake. The Workers’ Compensation Court, however, found that no mistake had been made regarding the nature or extent of South’s injury at the time that the settlement agreement was entered into, and therefore declined to rescind it.

Full and final settlement agreements are contracts and are subject to contract law. Giles v. Bozeman Public Schools (1993), 257 Mont. 289, 292, 849 P.2d 180, 182. A contract may properly be rescinded if the parties were laboring under a mutual mistake regarding a material fact at its inception. Wray v. State Comp. Mut. Ins. Fund (1994), 266 Mont. 219, 879 P.2d 725. “A mutual mistake occurs when, at the time the contract is made, the parties share a common misconception about a vital fact upon which they based their bargain.” Mitchell v. Boyer (1989), 237 Mont. 434, 437, 774 P.2d 384, 386 (citations omitted). In order to justify rescission, the mutual mistake must be regarding a fact that is vital to the completion of the contract. Wray, 879 P.2d at 725. Further, it must be “so substantial and fundamental as to defeat the object of the parties in making the contract.” Wyman v. DuBray Land Realty (1988), 231 Mont. 294, 298, 752 P.2d 196, 199 (citing Johnson v. Meiers (1946), 118 Mont. 258, 164 P.2d 1012).

In the field of Workers’ Compensation, the seminal case on rescission for reason of mutual mistake of fact is Kienas v. Peterson (1980), 191 Mont. 325, 624 P.2d 1. Kienas was the first in a string of modern cases to apply the principles of general contract law to workers’ compensation settlement agreements. In Kienas, a final settlement agreement was set aside because the parties were mutually mistaken regarding the nature and extent of the claimant’s injuries at the time the settlement was established. Kienas, 624 P.2d at 3.

Numerous subsequent cases followed the line of reasoning set forth in Kienas. These cases similarly addressed the question of whether a mutual mistake of fact existed regarding the nature or extent of the claimant’s injuries at the time of settlement. See Sanford v. Brandon Owens, Inc. (1994), 268 Mont. 8, 885 P.2d 444; Giles, 849 P.2d 180; Wolfe v. Webb (1992), 251 Mont. 217, 824 P.2d 240; Rath v. St. Labre Indian School (1991), 249 Mont. 433, 816 P.2d 1061; Whitcher v. Winter Hardware Co. (1989), 236 Mont. 289, 769 P.2d 1215; Kimes v. Charlie’s Family Dining (1988), 233 Mont. 175, 759 P.2d 986; Weldele v. Medley Development (1987), 227 Mont. 257, 738 P.2d 1281. Some were set aside, some were not, but all confined the inquiry solely to whether or not a mutual mistake existed regarding the nature or extent of claimant’s injuries. Since workers’ compensation settlements by definition involve an injured worker, it is only to be expected that very frequently the alleged mutual mistake would concern the claimant’s injury.

The Workers’ Compensation Court, however, interpreted the Kienas decision and its progeny to establish that a mutual mistake regarding the nature or extent of the claimant’s injury is the only mutual mistake sufficient to set aside a final settlement agreement. Having concluded that no such mistake existed at the time the settlement agreement was formed, the Workers’ Compensation Court declined to allow the agreement to be rescinded.

While such a limitation might reasonably be surmised from the Kienas line of cases, it is nevertheless incorrect. The fundamental contract principles which allow for rescission do not support such a narrow application. If a party can show a mutual mistake of any material fact, impacting the contract to such an extent that the intended bargain of the parties is defeated, the contract may be rescinded. Mitchell, 774 P.2d at 386. Nothing in general contract principles justifies the limitation of the mistake doctrine to the nature and extent of the injuries. If a mutual mistake exists in a workers’ compensation settlement agreement.which would suffice to set it aside under general contract principles, then it should be set aside. Because Kienas and its progeny have their basis in these fundamental principles of contract law, they must not be construed in such a way as to defeat those same fundamental principles.

Moreover, while Montana workers’ compensation cases have only addressed rescission for mutual mistake of fact in the context of the claimant’s injury, other states have recognized that other types of mutual mistakes may also warrant rescission. The Arizona Court of Appeals set aside a worker’s compensation settlement when the parties mistakenly stipulated that the claimant had no loss of earning capacity, when in fact he had. Dutton v. Industrial Com’n of Arizona (Ariz.Ct.App. 1989), 784 P.2d 290. The Minnesota Supreme Court set aside a workers’ compensation settlement that mistakenly listed an incorrect date of injury, when the mistake materially affected the claimant’s rights under the settlement. Heath v. Airtex Industries (Minn. 1980), 297 N.W.2d 269. As these cases illustrate, the operative question is whether a mutual mistake existed which justified rescission, without limitation to how or when the mistake was made.

We find no error in the Workers’ Compensation Court’s conclusion that the parties were not mistaken regarding the nature and extent of South’s injury at the time the contract was formed. As set out above, however, the inquiry cannot end with that question alone. Accordingly, we do find error in the Workers’ Compensation Court’s failure to consider South’s contention of mutual mistake regarding the propriety of the job approved for her to do.

In South’s settlement agreement, seven jobs were set out, with a doctor’s approval, as appropriate for her to pursue. One of these jobs was massage therapist. In accordance with the terms of the agreement, South elected to begin massage therapist training in order to pursue the career she had chosen from the approved list. While in training, she re-injured her back, was forced to quit the training program, and subsequently required additional surgery.

The Workers’ Compensation Court focused on the testimony of South’s doctor, who testified that “something new” must have occurred after the settlement agreement to cause the re-injury to her back. Relying on that testimony, the court refused to rescind the agreement, because the occurrence of a re-injury did not necessarily indicate that the parties were mistaken regarding the initial injury when the contract was formed.

The mutual mistake that South alleged, however, was not regarding the injury itself, but rather regarding the propriety of “massage therapist” as a potential career for one who has an injured back. South’s doctor testified unequivocally that such a career was entirely inappropriate for someone in South’s condition because it involved repeated bending as well as standing for extended periods of time. South contended that both parties mistakenly believed such training to be acceptable at the time the settlement was signed because both parties relied upon the erroneous opinion of the doctor who approved the list of possible jobs.

The Workers’ Compensation Court noted that “something new” must have occurred to cause the re-injury. It therefore concluded that the re-injury cannot be related back to the first injury. But South alleged that the “something new” which caused her to re-injure her back was the massage training itself. She contended that it was her good-faith pursuit of an inappropriate job that led to the second injury — a job she never would have attempted if it had not been approved by and included in the settlement agreement.

The insurer argues, however, that even if such a mistake was made, it was not material to the contract because “massage therapist” was only one of seven jobs approved for South to pursue. It contends that South remains free to pursue any of the remaining six jobs, and that rescission is therefore unnecessary and inappropriate.

We are not persuaded that the “massage therapist” job was not material to the contract simply because the contract also included six other jobs which South might have tried instead. What she might have done is entirely irrelevant; what she did was act in conformity with the contract to her detriment. Since, of the seven choices, “massage therapist” was the job she chose, it is entirely material whether she was able to do it or not.

Nor are we persuaded that the contract should not be set aside because it still provides six other jobs South is free to explore. Those jobs were approved after her first injury, but prior to her re-injury; no evidence was presented that any of those jobs would be appropriate now, after the re-injury. In fact, the existing settlement agreement in no way takes into account the ramifications of the re-injury.

At the trial before the Workers’ Compensation Court, South’s doctor testified that it was more probable than not that the massage training caused her re-injury. The insurer subsequently elicited testimony from the doctor conceding that, hypothetically, any number of events could cause a re-injury to a weakened back, from coughing to mowing the lawn. But these hypothetical scenarios cannot overcome South’s allegation that the massage training caused the re-injury, coupled with the doctor’s testimony that the training more likely than not was the cause of it.

South alleged a mutual mistake regarding the propriety of including “massage therapist” as a possible career for someone with a back injury. She further alleged that her attempt to pursue this career, in conformity with the settlement agreement, caused her to re-injure her back. The Worker’s Compensation Court was presented with uncontroverted testimony that such a career is in fact inappropriate and that it more likely than not caused South’s re-injury.

We hold that both parties, at the time of the contract, mistakenly believed “massage therapist” to be an appropriate job for South to pursue. We further find that the inclusion of “massage therapist” as a job option was a material part of the contract at issue, because that was the option that South did in fact pursue. Because both parties, at the time of the contract, were mutually mistaken regarding a material fact, South is entitled to rescission of the settlement agreement.

The settlement agreement is set aside.

JUSTICES TRIEWEILER, NELSON and LEAPHART concur.

JUSTICE ERDMANN

dissenting.

I respectfully dissent. I agree with the majority’s determination that the Workers’ Compensation Court did not err when it concluded that the parties were not mistaken in regard to the nature and extent of South’s injury at the time the settlement agreement was entered into. I disagree, however, with the majority’s conclusion that the parties were mutually mistaken in regard to the massage therapist position.

The majority states that the Workers’ Compensation Court failed to consider South’s contention of mutual mistake regarding the residual labor market issue. In fact, the Workers’ Compensation Court made both factual findings and conclusions of law specifically addressing this issue. The relevant factual findings are as follows:

18. Dr. Moseley testified that with the exception of the masseuse position the claimant is presently capable of performing all the jobs previously approved by Dr. Shaw.
19. The claimant testified that she would not have agreed to the 1990 settlement if she had known she would be unable to work as a masseuse. She did not, however, tell Transportation or its adjuster that her acceptance of the settlement was conditioned on the masseuse position. Moreover, I did not find her testimony in this regard credible.
20. Claimant has failed to persuade me that there was any mistake concerning her ability to perform the job of masseuse. As Dr. Moseley testified, “something new” occurred in 1990 or 1991 which affected the claimant’s spine at L4-5 level and worsened her condition. The Court is not persuaded that claimant would have been unable to work as a masseuse absent the additional occurrence.
21. Claimant has also failed to persuade me that the masseuse position was material to the settlement agreement. Dr. Shaw approved several jobs and, with the exception of masseuse, she can still perform those jobs. Claimant’s ability to perform several jobs was material to the agreement and she can still do so.

Conclusion of Law No. 3 reads as follows:

3. The claimant also contends that a mutual mistake of material fact exists as to the parties’ understanding of her residual labor market. The contention fails for two reasons. First, claimant has failed to persuade me that her inability to work as a masseuse is due to her original injury. Second, even if the parties were mistaken as to the appropriateness of the masseuse position, the settlement was not based on that particular position but rather on the approval of several positions, only one of which is now deemed inappropriate. With the exception of the masseuse position, the claimant has the same residual market now as at the time of settlement. While she now asserts that she would not have entered into the settlement had she known that [she] could not work as a masseuse, she never communicated that fact to Transportation. Moreover, the Court is not persuaded that she would have in fact refused the settlement had the position been disapproved by Dr. Shaw.

This Court has reopened workers’ compensation settlements, but has done so rarely and reluctantly. See Whitcher v. Winter Hardware Co. (1989), 236 Mont. 289, 769 P.2d 1215. It is well established that this Court will not overturn the findings and conclusions of the Workers’ Compensation Court where there is substantial evidence to support them. Laber v. Skaggs Alpha Beta (1991), 247 Mont. 172, 175, 805 P.2d 1375, 1377. Nor will this Court substitute its judgment for that of the Workers’ Compensation Court as to the weight of evidence on questions of fact. EBI / Orion Group v. State Comp. Mut. Ins. Fund (1991), 249 Mont. 449, 452, 816 P.2d 1070, 1072. Even though conflicting evidence may exist in the record, it is the duty of the Workers’ Compensation Court, and not this Court, to resolve such conflicts, particularly when such decisions involve credibility of witnesses and live testimony. Smith v. United Parcel Service (1992), 254 Mont. 71, 75, 835 P.2d 717, 720.

To establish the element of mutuality, South testified that she would not have entered into the agreement if the masseuse position had not been approved. The Workers’ Compensation Court specifically found South’s testimony in this regard not to be credible. South also testified that she did not inform the insurer or its adjuster of this condition so it is impossible to establish that the insurer was even aware of South’s unilateral expectation.

South was approved for seven different positions. She selected one of those positions and was ultimately unable to complete the training. Now, rather than accept one of the six remaining positions, she essentially argues that the agreement was for the masseuse position or nothing. In agreeing with South’s argument, the majority has ignored the essence of the agreement and has rewritten its terms. The fact that South cannot perform one of seven positions for which she was approved is not material to the overall contract.

I note that the majority properly cites the standards of review we use in appeals from decisions of the Workers’ Compensation Court, which are whether that court’s findings are supported by substantial evidence and whether its conclusions are correct. Unfortunately, the majority then completely ignores and fails to apply those standards to the decision before us.

The majority’s substitution of its judgment for that of the fact finder is evidenced by the statement: “We are not persuaded that the ‘massage therapist’job was not material to the contract” (emphasis added), in derogation of the Workers’ Compensation Court’s specific findings that it was not persuaded the job was material, based in large part on its credibility finding regarding South. Similarly, the majority “finds” that the job was a material part of the contract, in direct contravention of the Workers’ Compensation Court’s findings relating to that issue.

There was substantial evidence to support the Workers’ Compensation Court’s conclusion that there was no “mutual” mistake in regard to the masseuse position since the agreement was not conditioned on South’s ability to ultimately qualify for that particular position. The Workers’ Compensation Court correctly concluded that there was no mistake as to a “material” fact, since the agreement approved seven positions from which South could choose. She can still choose from six of the positions and there is no legal basis on which to rescind the settlement agreement. I would affirm the Workers’ Compensation Court.

CHIEF JUSTICE TURNAGE and JUSTICE GRAY join in the foregoing dissenting opinion.


author: CHIEF JUSTICE TURNAGE

text:
    ROGER ROOTS, Plaintiff and Appellant, v. THE MONTANA HUMAN RIGHTS NETWORK, Defendant and Respondent.
    No. 95-490.
    Submitted on Briefs February 15, 1996.
    Decided March 21, 1996.
    53 St.Rep. 205.
    275 Mont. 408.
    913 P.2d 638.

      For Appellant: Roger Roots, Pro Se, Billings.
    For Respondent: Calvin J. Stacey, Stacey & Walen, Billings; John G. Crist, Dorsey & Whitney, Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Roger Roots filed a complaint in the Thirteenth Judicial District Court, Yellowstone County, alleging that the Montana Human Rights Network (MHRN) defamed him by publishing a booklet in which it described him as an organizer for the Ku Klux Klan (KKK). The court granted summary judgment for MHRN. We vacate and remand.

The issue is whether summary judgment was proper.

MHRN is a private nonprofit Montana corporation. In May 1994, it published a booklet entitled A Season of Discontent, in which it described Roots as “Roger Roots, Billings Ku Klux Klan organizer.”

A month later, Roots brought this action for defamation and “invasion of privacy/ malicious harassment/creation of a climate of fear.” He originally named four defendants. By the time of the ruling herein appealed, the action had been narrowed to a libel case against MHRN.

The District Court described Roots as a man who has become well known by the general public as an ultra right-wing political activist. [He] authored a publication entitled Whites and Blacks 100 Facts (and One Lie), which is advertised for sale nationally. The publication lists “facts” about African-Americans, such as: blacks have low I.Q.’s due to small foreheads; they have never invented anything; and they are more likely to have syphilis than whites. [Roots] is a columnist in the Jubilee, wherein one of his columns states that the Holocaust was a hoax.
[Roots] has been the subject of numerous news reports by a local television station and a newspaper concerning his right-wing beliefs and criminal record. [He] has been convicted of felony possession of an illegal firearm and misdemeanor resisting arrest. [He] was a member and president of the Young Republicans at Eastern Montana College and was the subject ofnumerous articles which appeared in the college’s newspaper during 1993 and 1994. [He] supported people who are openly members of the KKK and attended several meetings held by the Montana militia. [He] filed for a state senate seat but did not qualify as a candidate because of his felony conviction.

The District Court ruled that Roots is a public figure for limited purposes. It concluded, therefore, that to succeed in this action, he must prove not only the falsity of the statement that he was an organizer for the KKK, but also, by clear and convincing evidence, that the MHRN acted with malice in publishing the statement.

The court ruled that Roots had not met his burden of showing that the statement was false or that MHRN acted with malice. It granted summary judgment for MHRN.

Was summary judgment proper?

Summary judgment is proper when the pleadings, depositions, answers to interrogatories, admissions, and any affidavits on file show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R This Court reviews a summary judgment decision under the same standard as that used by the district court in making the decision. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214.

Roots accuses MHRN of defaming him by naming him as a KKK organizer in its booklet A Season of Discontent. Defamation is defined as either libel or slander. Section 27-1-801, MCA. Libel is a false and unprivileged publication by writing which exposes a person to hatred, contempt, ridicule or obloquy; causes the person to be shunned or avoided; or tends to injure the person’s occupation. Section 27-1-802, MCA.

The right to free speech under the First Amendment to the United States Constitution places limits on the application of state defamation laws. New York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. A public figure cannot recover damages upon a claim for defamation without a showing of actual malice. Sullivan, 376 U.S. at 279-80. This standard also applies to limited purpose public figures, or persons who have voluntarily injected themselves or are drawn into a particular public controversy and become a public figure for a limited range of issues. See, Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789.

In this case, the District Court ruled as a matter of law that Roots was a public figure for limited purposes

because he ran for public office, was the president of the Young Republicans, published a controversial book, and appeared as a regular columnist in the Jubilee and as the subject of numerous newspaper and television reports.

Our review of the record convinces us that a genuine issue of material fact exists as to whether Roots became a public figure for a limited purpose or remained a private figure involved in matters of public concern.

The First Amendment protects statements of opinion on matters of public concern where they do not contain a provable false factual connotation or where they cannot reasonably be interpreted as stating actual facts about an individual. Milkovich v. Lorain Journal Co. (1990), 497 U.S. 1, 18-20, 110 S.Ct. 2695, 2705-06, 111 L.Ed.2d 1, 17-18. The statement that Roots is an organizer for the KKK contains a factual connotation which may be proven false. The statement can also be reasonably interpreted as stating an actual fact about Roots. We conclude, as did the District Court by implication, that the First Amendment does not shield MHRN from this action.

The District Court relied upon Philadelphia Newspapers, Inc. v. Hepps (1986), 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783, for the rule that the plaintiff in a defamation action concerning a matter of public concern has the burden of proving the falsity of the alleged defamatory statement. In cases in which the fact finding process is unable to conclusively resolve whether the statement is true or false, the plaintiff’s action must fail. Hepps, 475 U.S. at 776, 106 S.Ct. at 1563.

When summary judgment was entered in the present case, though, the fact finding process had not yet been completed. While discovery had been conducted, trial had not yet been held. We conclude that the District Court’s reliance upon Hepps was misplaced.

As the party moving for summary judgment, MHRN bore the burden of establishing the absence of genuine issues of material fact. Matter of Estate of Lien (1995), 270 Mont. 295, 298, 892 P.2d 530, 532. The facts MHRN adduced in support of its statement that Roots was a KKK organizer establish that Roots shared viewpoints with the KKK. They do not necessarily establish that he was an organizer for the KKK. Any factual inferences which can be drawn must be resolved in favor of Roots, the nonmoving party. Lien, 892 P.2d at 532.

Roots filed affidavits in which he denied having ever organized meetings or rallies or distributed literature for the KKK, and stated that he had “never ordered, requested, or urged any human being to join the Ku Klux Klan [or] ... support the Ku Klux Klan.” He also filed an affidavit by his friend John Abarr, who stated:

That I am a member of the Knights of the Ku KIux Klan, National Office in Harrison, Arkansas. ... That Roger Roots has resisted all attempts by me to get him to join the Knights of the Ku KIux Klan.

While the affidavits filed by Roots do not definitively disprove that he is an organizer for the KKK, they demonstrate an issue of fact as to the truth or falsity of the statement.

Because the record discloses genuine issues of material fact as to whether Roots is a public figure for limited purposes and as to the truth or falsity of MHRN’s description of him as an organizer for the KKK, we hold that entry of summary judgment for MHRN was improper. The judgment for MHRN is therefore vacated and this case is remanded for further proceedings consistent with this opinion.

JUSTICES GRAY, TRIEWEILER, LEAPHART and ERDMANN concur.