author: MR. JUSTICE HUNT

text:
    STEPHEN J. KENNEY, Plaintiff and Appellant, v. RUDY KOCH, Simon Kuntz, and K&K Development, Inc., Defendants and Respondents.
    No. 86-275.
    Submitted on Briefs March 5, 1987.
    Decided May 28, 1987.
    737 P.2d 491.

      Stanton, Hovland & Torske, James E. Torske, Hardin, for plaintiff and appellant.
    Wright, Tolliver & Guthals, Joel E. Guthals, Billings, for defendants and respondents.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Appellant, Stephen J. Kenney appeals from a judgment from the Thirteenth Judicial District of the State of Montana awarding him $32,120.00 in damages for wrongful conversion of his property and also awarding respondents, K & K Development, Inc., $500.00 in damages for trespass.

We reverse in part and remand for re-evaluation of damages consistent with this Opinion.

We are asked to decide six issues. Issue number one is raised by respondents and questions the jurisdiction of this Court because appellant did not comply with the Montana Rules of Civil Procedure. The remaining five issues are raised by the appellant and go to the judgment of the District Court. The six issues are:

1. Does this Court have jurisdiction to hear this appeal because of the failure of the appellant to timely file notice of appeal and failure to file transcript of the proceedings in accordance with the Montana Rules of Civil Procedure?

2. Did the District Court abuse its discretion by awarding damages based on $3.25 per cubic yard of gravel as the highest market value pursuant to Section 27-1-320, MCA?

3. Was appellant entitled to an award for reasonable time and money expended in the pursuit of his property pursuant to Section 27-1-320, MCA?

4. Did the District Court err by not including attorney fees in its award for appellant under Section 27-1-320, MCA?

5. Did the District Court err by awarding damages for trespass to respondents?

6. Did the District Court err by awarding damages based on equity rather than Section 27-1-320, MCA?

The personal property, subject of this dispute, is 7,390 cubic yards of gravel of the specification “% minus” required by appellant to meet many of his contractual obligations. In 1971, appellant refused an offer by the owner, Robert Downs, to sell the gravel for $6.00 per cubic yard. Later, in February, 1981, Downs offered to sell the gravel for $3.25 per cubic yard and appellant accepted. Appellant did not record notice of his interest in the gravel. The gravel had been stockpiled on Downs’ property located within eyesight of appellant’s general contracting business in Hardin, Montana. After selling the gravel to appellant, Downs conveyed the real property on which the gravel was located to Ernie DeVries to satisfy a pre-existing debt.

In October, 1981, respondents Koch and Kuntz became interested in purchasing the land where the gravel was still stockpiled. Koch and Kuntz negotiated with DeVries, his attorney and Downs’ real estate broker for the sale of the land. It was during these negotiations that the question of ownership of the stockpiled gravel was raised. Koch and Kuntz wanted to acquire the gravel to use in the development of the property. A search through the title records produced only an expired State of Montana stockpiling agreement.

On October 23, 1981, the respondents purchased the land on a contract for deed. The contract was silent as to the ownership of the gravel and Koch and Kuntz received no bill of sale for it. After the sale, Koch and Kuntz decided to lock the gate and cut off access to the gravel in an attempt to determine who, if anyone, owned the gravel and to protect themselves from any liability from theft. The same day that Koch and Kuntz chained and locked the gate to the property, appellant met them on the road immediately adjacent to the stockpiled gravel and informed them of his ownership of the gravel. Koch and Kuntz asked for documentation and shortly thereafter their attorney formally requested verification of ownership from appellant.

On October 29, 1981, appellant provided the respondents’ attorney with the canceled check made out to Downs and with the vendor’s invoice for the gravel which he received from Downs. Because there was no notice of interest on record, the invoice did not contain an exact legal description of the location of the stockpiled gravel, and because the State Highway Department was also making claims on some of the gravel on their land, Koch and Kuntz refused to honor appellant’s claim. Koch and Kuntz did not contact Downs to inquire about the validity of appellant’s ownership.

In November, 1981, appellant completed a contract with the City of Hardin for which 1,450 cubic yards of gravel, comparable to the gravel in question, was purchased for $16.50 per cubic yard. In April, 1982, appellant sold another 7,390 cubic yards of comparable gravel to the City of Hardin as part of another construction contract.

In June, 1982, appellant needed more grade “% minus” gravel for a contract with Petty Ray GeoSource. To get the gravel which he purchased from Downs, appellant broke the padlock on the gate to Koch and Kuntz’s property (now K & K Development, Inc.) and removed 10 semi-truck loads or 90 cubic yards of gravel. Appellant was paid $6.50 per cubic yard for these 90 cubic yards. Immediately thereafter, Koch and Kuntz, through their attorney, informed appellant that they did not consent to the removal of any gravel from their

property and that he was trespassing.

On July 29,1982, appellant filed a wrongful conversion claim under Section 27-1-320, MCA. Inaccordance with the provisions of that statute, appellant opted to receive the highest market value of the gravel between the time of conversion and the date of the verdict, without interest, instead of the fair market value of the gravel at the time of conversion with interest. Appellant also requested reasonable costs of pursuing his property and attorney fees.

On August 19, 1982, due to the dispute over the gravel, DeVries, traded property with Koch and Kuntz to relieve them of having to prove ownership of the gravel.

The case was heard on June 4, 1985 in a non-jury trial. The District Court judgment awarded appellant: $23,725.00 for the conversion of 7,300 cubic yards of gravel valued at $3.25 per cubic yard as the highest market value between the date of conversion and December 18, 1985, the date of the verdict; $8,395.00 for incidental and consequential damages; 10% interest from the date of the judgment until paid; nothing for time and money spent in pursuit of his property; and nothing for attorney fees. The judgment further ordered that appellant pay K & K Development, Inc. $500.00 in “nominal” damages for trespass.

Following this judgment of October 25, 1985, both parties filed post-trial motions. These motions were all denied by an order dated January 15, 1986. No notice of entry of judgment was filed until March 26, 1986, when a notice of appeal was also filed by appellant.

Before considering the facts and applicable law, we must first consider the question of whether this Court has jurisdiction to hear this appeal. To do that, we must begin with an analysis of Rule 77(d), M.R.Civ.P., which states in part: “Within 10 days after entry of judgment in an action in which an appearance has been made, notice of such entry,. . . shall be served by the prevailing party upon all parties who have made an appearance . . .”

Rule 5, M.R.App.Civ.P. provides that when Rule 77(d) is applicable, the 30 day limitation on filing notice of appeals begins to run upon service of notice of entry of judgment.

The history of Rule 77(d) tells us that the obligation of who is to serve notice of entry of judgment has fluctuated since the rule’s inception. Prior to 1977, Rule 77(d) required that notice of entry of judgment be served by the prevailing party on the adverse parties to the case. From 1975 to 1984, such notice was to be served by the clerk of court on all adverse parties. The reason for this change was to substitute reliable proof of mailing “for the interminable wrangling between counsel concerning whether prevailing counsel had in fact mailed the notice of entry of judgment to opposing counsel and if so, on what date.” Pierce Packing Co. v. District Court (1978), 177 Mont. 50, 53, 579 P.2d 760, 761.

In 1984, Rule 77(d) was amended to require that the “prevailing party serve notice upon all parties who have made an appearance” as preferable to the old rule requiring the clerk of court to serve such notice.

This Court has held that it is the filing of the notice of entry of judgment that begins the running of the time limitations for filing a notice of appeal. Actual notice is not sufficient. “This rule has been technically applied to assure proper notice and an understanding of when the time for appeal begins to run.“ Morrison v. Higbee (Mont. 1983), 204 Mont. 501, 668 P.2d 1029, 1032, 40 St.Rep. 1031, 1034.

In spite of this statutory language and case law, respondents argue that this Court lacks jurisdiction to hear this appeal due to untimely filing of notice of appeal. Respondents argue that on January 15, 1986, when the District Court denied all post-trial motions, the ten day period in which to serve notice of entry of judgment pursuant to Rule 77(d) began to run.

However, in Haywood v. Sedillo (1975), 167 Mont. 101, 535 P.2d 1014, neither party ever filed a notice of entry of judgment. Notice of appeal was filed 58 days after the District Court’s judgment was filed. Even though both parties in Haywood had actual notice of the court’s ruling, this Court held that:

“Service of notice of the entry of judgment is not an idle act. In order to provide certainty in the law, some arbitrary point must be chosen from which the time to appeal may run. That point by the Montana Rules is the date of service of the notice of entry of judgment.”

535 P.2d at 1016.

In the present case, a notice of entry of judgment was filed 71 days after judgment on the post-trial motions was filed. The obligation to file the notice was on the prevailing party. If a prevailing party neglects to file a notice of entry of judgment, that party cannot then claim untimely filing of a notice of appeal by a non-prevailing party who wishes to appeal.

To determine whether Rule 77(d) was violated, we must resolve the question of who was the “prevailing party” in the District Court decision.

Appellant Kenney originally brought suit against respondents Koch and Kuntz for conversion of his property and resulting damages. The judgment granted to appellant was $23,725.00 for his conversion claim and $8,395.00 for consequential damages. There was no award for time and money expended in pursuit of his property nor for attorney fees. Respondents were awarded $500.00 for their trespass counterclaim.

Although the monetary amount of a judgment is not decisive, the award of money is an important consideration when deciding who prevailed. E.C.A. Environmental Management v. Toenyes (Mont. 1984), [208 Mont. 336,] 679 P.2d 213, 217-218, 41 St.Rep. 388, 392-393.

Both parties received a judgment for money. Appellant was successful in his claim for conversion. Respondents were successful in their claim for trespass. Both parties filed post-trial motions, all of which were denied. In Jorden v. Elizabethan Manor (1979), 181 Mont. 424, 434, 593 P.2d 1049, 1055, we stated that “[a] prevailing party is the one who has an affirmative judgment rendered in his favor at the conclusion of the entire case.” In this case, both parties had an affirmative judgment rendered in their favor, so both can be considered to have prevailed. Either party could have made the requisite filing and both were responsible for the failure to technically comply with Rule 77(d) and file a notice of entry of judgment by January 27, 1986.

In Pierce Packing, where neither party observed the requirements of the Rules of Civil Procedure, we stated that “where counsel for petitioner seeks to enforce the technical requirements of the Rules against opposing counsel, we will apply the same standard to petitioner and require the same technical compliance of him.”

579 P.2d at 761.

The notice of entry of judgment was filed on March 26, 1986. Appellant filed his notice of appeal the same day. In this case, March 26, 1986 began the running of time limitations for the filing of an appeal. We hold that the appeal was timely filed.

Respondents argue further that appellant failed to timely order a transcript of the proceedings. The record shows that the District Court granted a request for an extension of time to the court reporter to complete a transcript of the proceedings. All pertinent transcripts and records were before this Court at the time of review of respondents’ request for dismissal and we hold that this appeal is properly before this Court. In view of the foregoing, we hold that this Court has jurisdiction to hear this case.

We now consider the second issue as to whether the District Court abused its discretion by awarding appellant damages based on an amount of $3.25. per cubic yard of gravel as the “highest market value” pursuant to Section 27-1-320, MCA.

We hold that the court did err.

The value of the gravel at issue is a question of fact. The standard of review for this Court for findings of fact are that unless “clearly erroneous,” we will not set them aside. Rule 52(a), M.R.Civ.P. The same rule gives deference to the District Court’s direct observance of the witnesses and the weight to be given their testimony.

Section 27-1-320, MCA, states as follows:

“The detriment caused by the wrongful conversion of property is assumed to be: (a) the value of the property at the time of its conversion with the interest from that time or, when the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict without interest, at the option of the injured party; and
“(b) a fair compensation for the time and money properly expended in pursuit of the property ..."

The language of Section 27-1-320, MCA, has been virtually unchanged since 1895. The presumption contained in this statute is a disputable one. It may be overcome by evidence of peculiar circumstances that result in greater or less injury than the statute contemplates. “[I]n the absence of proof of such special circumstances, the statutory rules govern.” Graham v. Clark’s Fork National Bank (Mont. 1981), 631 P.2d 718, 720, 38 St. Rep. 1140, 1142-43, citing Ferrat v. Adamson, et al. (1917), 53 Mont. 172, 163 P. 112.

Appellant opted, under Section 27-1-320, MCA, to recover “the highest market value of the property at any time between the conversion and the verdict without interest” instead of the “value or the property at the time of its conversion with the interest from that time.” The District Court found that appellant’s gravel was wrongfully converted as of early November, 1981. There is no evidence on record of any special circumstances which proved greater or lesser injuries than those for which this statute provides.

Testimony was heard as to the “highest market value” of the gravel. This Court has held that “market value” means the price which “a buyer willing but not obligated to buy would pay a seller willing hut not obligated to sell, but with full knowledge of all pertinent facts affecting value.” In re Estate of Powers (1970), 156 Mont. 100, 103, 476 P.2d 506, 507-08. See also State Dept. of Highways v. Schumaker (1979), 180 Mont. 329, 590 P.2d 1110.

An expert witness testified that the value of the gravel was $3.25, which was the original purchase price paid by appellant. Appellant testified that he sold 90 cubic yards of the gravel at $6.50 per cubic yard in June, 1982. He also testified that he sold comparable gravel to the City of Hardin for $16.50 per cubic yard. This price included the standard overhead cost of transporting the gravel for 50 cents per cubic yard mile. In appellant’s opinion, the gravel in question had a fair market value at the time of conversion of $15.15 per cubic yard.

The District Court found that, excluding overhead and profit, the highest market value of the gravel in question was $3.25 per cubic yard. This finding is contrary to the evidence. Testimony showed that appellant sold the gravel he purchased at $3.25 per cubic yard for various prices greater than the purchase price, up to a sale price of $16.50 per cubic yard. Mathematically the market value is obviously between the upper and lower limits of these two figures. In opting to forego interest since November, 1981, on the value of his gravel at the time of conversion, appellant relied on the statutory provision providing for “highest market value” without interest. “[A] plaintiff in an action for conversion may, by waiving interest, elect any date between the date of the conversion and the date of the trial on which to lay his damages.” Klus v. Lamire (1924), 71 Mont. 445, 446, 230 P. 364, 365. The substantial credible evidence on record supports appellant’s contention that $3.25 per cubic yard is not the “highest market value” of the gravel at “anytime between the conversion and the verdict.” In Broadwater Farms Co. v. Broadwater Elevator Co. (1921), 61 Mont. 215, 201 P. 687, this Court held that where a plaintiff in an action for conversion has brought himself within the rule requiring diligence in prosecuting the action, the fact that the measure of damages recoverable under it may be inequitable and unjust cannot deprive him of his right to recover the highest market value of the property at any time between the conversion and the verdict, at plaintiff’s option, which he might have obtained but for the wrongful act of defendant. Profit is a factor in any property’s fair market value. It follows that even more profit would be included in “highest” market value. It was an error for the District Court to estimate profit and subtract it from amounts testified to as being the highest market value of the gravel.

Respondents, Koch and Kuntz’ actions wrongfully kept appellant’s gravel from him for nearly a year. The record shows varying values for gravel, comparable to the gravel in question, dependent upon the business acumen of the buyer. The $3.25 per cubic yard is the lowest value testified to for comparable gravel. Appellant testified that he sold a lower grade of gravel for $3.50 per cubic yard. It was clearly erroneous and an abuse of the District Court’s discretion to find that the “highest market value” for the gravel between November, 1981, when the gravel was found to have been wrongfully converted, through October, 1985, when the verdict was reached, was $3.25 per cubic yard.

We remand for a redetermination of damages in accordance with this decision.

The next issue raised by appellant is whether appellant is entitled to reasonable expenses incurred in the pursuit of recovering possession of his property under Section 27-1-320, MCA.

Section 27-1-320 provides that “the detriment caused by wrongful conversion of personal property is presumed to be: . . . (b) a fair compensation for the time and money properly expended in pursuit of the property.”

Appellant testified that he spent considerable time attempting to regain his property from the defendants. He further testified that he rounded off the estimated time spent at 100 hours. Since he has never charged for his labor at an hourly rate, he picked $100.00/hour as commensurable with his productivity. At trial an objection was made by defendant that this statement of his hourly worth was conclusory. The court overruled the objection. Appellant now contends that the court is estopped from rejecting the testimony as “speculative” and refusing to award appellant anything for the pursuit of his gravel, as was done in the District Court’s decision.

The issue here is not whether the testimony was speculative or conclusory. The issue is whether appellant is entitled to reasonable expenses incurred in pursuit of his property. The District Court held that he was entitled to fair compensation for the time and money he properly expended in the pursuit of his property. We agree.

It was an abuse of the court’s discretion to find appellant was entitled to compensation under Section 27-l-320(b), MCA, and then award appellant nothing. On remand, fair compensation must be determined.

Tied to the preceding issue is the question of whether attorney fees are properly included as “time and money” properly expended. The District Court denied appellant attorney fees based on the lack of a contract or statute providing for them. The general rule is that “in absence of statute or contract, attorney fees will not be awarded.” Martin v. Randono (Mont. 1981), [_Mont._,] 623 P.2d 959, 962, 38 St.Rep. 209, 212. It is well established in Montana that the term “costs” does not include attorney fees, 623 P.2d at 962; Tomten v. Thomas (1951), 125 Mont. 159, 165, 232 P.2d 723, 727. Section 27-1-320, MCA, does not explicitly state that attorney fees are to be considered in an award of time and money expended in pursuit of appellant’s property. Neither does the statute contain the term “costs,” However, the statutory terms “expenses” and “money expended” mean virtually the same thing as “costs.” Precedent tells us that “costs” do not contemplate attorney fees and we hold that attorney fees were properly denied by the District Court.

The fifth issue raised by appellant is whether the District Court erred by awarding damages for trespass to respondent.

Whether trespass occurred and whether there were consequential damages to respondent’s property is a question of fact to be determined by the trier of fact. The District Court determined that there was substantial evidence to sustain a charge of trespass. The court found further that a “nominal” award of $500.00 for damages was appropriate. The record does not contradict this finding and we affirm the award.

The final issue of whether damages should be based on equity or whether an award must be made in accordance with Section 27-1-320, MCA, has been adequately addressed and we need not discuss it further.

The decision of the District Court is reversed and remanded for a re-evaluation of damages consistent with this opinion.

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


source: Caselaw Access Project

author: MR. JUSTICE WEBER

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DAVID W. PATTON, Defendant and Appellant.
    No. 87-57.
    Submitted on Briefs April 3, 1987.
    Decided June 2, 1987.
    737 P.2d 498.
    Knuchel & McGregor, Karl Knuchel, Livingston, for defendant and appellant.
    Mike Greely, Atty. Gen., Helena, Dorothy McCarter, Asst. Atty. Gen., Helena, G. Thomas Biglen, Co. Atty., Big Timber, James A. Tully, Deputy Co. Atty., Big Timber, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

David W. Patton was found guilty of violating Section 61-10-201, MCA, which requires payment of gross weight fees on trucks, by bench trial in the District Court of the Sixth Judicial District, Sweet Grass County. We affirm.

The issue is whether the District Court erred in deciding the truck was not exempt from vehicle licensing and registration requirements because it was not an implement of husbandry.

The parties stipulated to, and the District Court adopted, the pertinent facts of this case. Those stipulated facts are:

“1. At approximately 9:30 AM on April 8, 1986, Officer Charles Pratt came up behind an orange International dump truck while proceeding south on U.S. Highway 191 north of Melville in Sweet Grass County, Montana. Officer Pratt believed the truck to be a Montana Department of Highways truck, but noticed that the truck carried no license plates.
“2. The truck was owned by Cremer Ranches, a Montana corporation engaged in agricultural operations, and driven by David M. Patton, a Cremer employee. At the time, Mr. Patton was operating the truck in the course of his employment and for the benefit of his employer. He was taking the truck from one part of the Cremer Ranch to another part of the ranch located to the south and across U.S. Highway 191.
“3. The truck was purchased by the Cremer Ranches from the Department of Highways several years earlier at a private sale and has never been licensed or registered by Cremer Ranches. The truck has never been used by Cremer Ranches except in the course of ranch business and is never driven on a public road or highway except to travel from one part of the ranch to another. The truck has not been modified by Cremer Ranches since it was purchased and is in essentially the same condition as when purchased, normal wear and tear excepted.
“4. U.S. Highway 191 is a federal highway running north and south in Sweet Grass County. The Cremer Ranches own ranch property situated east and west of Highway 191 and the Cremer ranch property is bisected by the highway.
“5. The truck was originally used by the highway department for transporting road building and repair materials and appears similar to the trucks the department uses at the present time for that purpose.”

Based upon these facts, the District Court concluded: (1) that the vehicle in question was a truck before Cremer Ranch obtained it, that it had not been modified, and that it continued to be a truck as defined in Section 61-1-107, MCA; (2) that the truck was not a piece of special mobile equipment as defined in Section 61-1-104, MCA, and was not exempt from registration and payment of fees under Section 61-3-431, MCA; (3) that the truck was not an implement of husbandry as defined in Section 61-1-121, MCA, because it was not designed for agricultural purposes; (4) that if the truck was used on the public roads of Montana then it must be properly licensed and the required fees paid in accordance with Section 61-10-201, MCA; and (5) that David Patton was guilty of driving an unlicensed truck upon which gross weight fees were not paid on a public highway in violation of Section 61-10-201, MCA. Mr. Patton was fined $90 plus a surcharge of $10 for his offense.

Did the District Court err in deciding the truck was not exempt from vehicle licensing and registration requirements because it was not an implement of husbandry?

The only issue appealed by the parties was whether the truck was an implement of husbandry and thus exempt from the licensing and registration requirements of Section 61-10-201, MCA. Section 61-10-201, MCA, requires truck and truck tractors to pay an annual gross weight licensing fee based upon the weight of the truck. Section 61-3-431(1), MCA, exempts special mobile equipment from motor vehicle registration and fees. Section 61-3-431(4), MCA, provides:

“Publicly owned special mobile equipment and implements of husbandry used exclusively by an owner in the conduct of his own farming operations are exempt from this section.”

After careful consideration, we affirm the District Court’s conclur sion that the vehicle did not fit within the “implement of husbandry” definition found at Section 61-1-121, MCA. Section 61-1-121, MCA, provides:

“ ‘Implement of husbandry’ means every vehicle which is designed for agricultural purposes and exclusively used by the owner thereof in the conduct of his agricultural operations.”

If the truck in question was not an implement of husbandry, then it is not exempt from G.V.W. licensing requirements.

The District Court concluded the vehicle was a truck and was not exempt from registration and payment of fees under Section 61-3-431, MCA. Specifically, the court stated that the truck was not an implement of husbandry as defined in Section 61-1-121, MCA, because it was not designed for agricultural purposes. We agree with that conclusion.

The truck in question was originally used by the Montana Department of Highways for transporting road building and repair materials. The truck was not designed to be used for agricultural purposes which is a requirement under Section 61-1-121, MCA, to qualify as an implement of husbandry.

We affirm the District Court.

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


author: MR. JUSTICE HARRISON

text:
    GEORGE SCHMIDT, Claimant and Appellant, v. PROCTOR & GAMBLE, Employer, and Home Insurance Company, Defendant and Respondent.
    No. 86-496.
    Submitted on Briefs March 5, 1987.
    Decided June 3, 1987.
    741 P.2d 382.
    Thueson Law Office, Erik B. Thueson, Great Falls, for claimant and appellant.

      Marra, Wenz, Johnson & Hopkins; Thomas A. Marra, Great Falls, for defendant and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Claimant appeals an order of the Workers’ Compensation Court denying him benefits because he did not file his claim within one year as required by Section 39-71-601, MCA. We affirm.

Claimant George Schmidt was hired by Proctor and Gamble in March 1984, as a part-time merchandiser to service stores in western Montana which carry its products. He assisted salesmen in specific markets by building displays, resetting shelving in stores, checking prices and putting up sale material. Schmidt had held a number of jobs before this one, including assistant operator for Montana Power Company, salesman for Sears, sales and light delivery for Modern Equipment Company and Eklund Television and Appliance. Since May 1981 he was in the insurance business, except for the period of approximately eight months between March 1984 and December 1985, when he worked for Proctor and Gamble.

Schmidt claims he injured his back July 16, 1984, while restocking shelves in the Inland Market in Kalispell, Montana. One leg of the display case fell toward him and he had to catch it abruptly. The falling boxes did not knock him over, but in holding up the shelf he experienced a sudden pain in his lower back. There were several unnamed witnesses to this incident who were in the general area of the store at the time. Schmidt listed one Shirley Diaz as a witness in the pretrial order but she was not called to testify at trial. Schmidt made no report of the incident to his employer, although he told his wife, who was in the store at the time it happened.

A year later the Schmidts traveled from Great Falls by automobile to visit their children in Utah. Two days before leaving, Schmidt had helped his son change a tire. In Pocatello, Idaho, he experienced such severe pain in his lower back his wife drove him to the Pocatello Regional Medical Center emergency room. He told the emergency room staff he pulled his back while changing a tire. He did not mention the accident the previous July, nor did he tell the doctor of any previous back problems. He was put in traction and given medication for several days.

After he returned to Great Falls, Schmidt was seen by Dr. Alexander Johnson, a neurosurgeon. Schmidt did not inform Dr. Johnson of the incident at Inland Market. Schmidt also was examined by Dr. Thomas Power, an orthopedic surgeon. Apparently Dr. Power was not informed of the tire changing incident. Schmidt, however, had told Power he had experienced back problems for more than twenty years which developed into pain in his left buttock and leg in early July 1985.

Prior to undergoing surgery in August 1985, Schmidt notified Drs. Johnson and Power he had applied for veterans’ pension benefits, workers’ compensation benefits and Medicaid. The claim for workers’ compensation benefits filed August 18, 1985, more than one year after the incident in Kalispell, was denied. Schmidt then petitioned for an emergency hearing and a trial was held. Schmidt appeals the resulting judgment denying him benefits.

We are asked to decide whether the Workers’ Compensation Court abused its discretion in denial of benefits to Schmidt because he failed to file notice of the accident claimed to have caused the injury.

“Our function in reviewing a decision of the Workers’ Compensation Court is to determine whether there is substantial evidence to support the findings and conclusions of that court. We cannot substitute our judgment for that of the trial court as to the weight of the evidence on questions of fact. Where there is substantial evidence to support the findings of the Workers’ Compensation Court, this Court cannot overturn the decision. [Citations omitted.]” Sharp v. Hoerner Waldorf Corp. (1978), 178 Mont. 419, 423, 584 P.2d 1298, 1300. After carefully reviewing the record, we defer to the findings of the Workers’ Compensation Court.

Schmidt testified he was injured July 16, .1984. The only named witness to the accident was not called to testify. Schmidt testified he notified his supervisor, Bruce Hammerman, of the incident the next day by telephone. Hammerman denied any call took place, and testified, with documentation, he was in Los Angeles the day the call supposedly was made. Schmidt produced no records from the telephone company showing the call was made.

At the end of each week, Schmidt was required to fill out in triplicate “Part-Time Merchandiser Expense Reports,” showing date worked, cities and stores traveled to, monetary allowance, etc. One copy was sent to the home office, one to Hammerman, and Schmidt kept a copy. The home office copy and Schmidt’s copy were offered into evidence. Schmidt’s copy had the words “hurt back Inland Market” penciled on it; however the home office copy did not. Ham-merman testified his copy did not have those words on it.

The Workers’ Compensation Court did not find that either of these incidents constituted notice to the employer pursuant to Section 39-71-601 or Section 39-71-603, MCA, nor do we.

Section 39-71-601, MCA, states:

“Statute of limitation on presentment of a claim — waiver. (1) In case of personal injury or death, all claims shall be forever barred unless presented in writing to the employer, the insurer, or the division, as the case may be, within 12 months from the date of the happening of the accident, either by the claimant or someone legally authorized to act for him in his behalf.
“(2) The division may, upon a reasonable showing by the claimant of lack of knowledge of disability, waive the time requirement up to an additional 24 months.”

Our case law on the exceptions noted in subsection (2) involve waiver, estoppel and laches on the part of the parties. We find here that there is no waiver, estoppel or laches on the part of the employer; rather the employee failed to convince the Workers’ Compensation Court that he gave his employer proper notice. In Devlin v. Galusha, Higgins & Galusha (1982), 202 Mont. 134, 655 P.2d 979, we held that there is no duty of an employer to solicit a claim where an employee who injured herself informed the supervisor that she did not wish to file a compensation claim, but subsequently did. In that case the Workers’ Compensation Court found that the claim was barred by the twelve month statute of limitations, thus, there were no grounds upon which to hold that the employer and insurer could be estopped from raising the statute of limitations. As to the equitable estoppel theory see Bagely v. Hotel Florence Co. (1974), 165 Mont. 145, 526 P.2d 1372; and Ricks v. Teslow Consolidated (1973) 162 Mont. 469, 512 P.2d 1304.

We held where the claimant for compensation did not file his claim within the time required by Section 39-71-601, MCA, the defendant employer was not required to file an answer or state a defense orally before the Industrial Accident Board (now the Division of Workers’ Compensation). Claimant’s assertion that because of such failure the employer waived its rights to make a defense was without merit. Williams v. Anaconda Copper Co. (1934), 96 Mont. 204, 29 P.2d 649.

We have long held the notice requirement of Section 39-71-603, MCA, “is mandatory and compliance with its requirements is indispensable to maintain a claim for compensation.” Maki v. Anaconda Copper Mining Co. (1930), 87 Mont. 314, 323, 287 P. 170, 173; Hunt v. Sherwin Williams (Mont. 1981), [_Mont._,] 624 P.2d 489, 492, 38 St.Rep. 358, 361.

Schmidt argues Proctor and Gamble waived this statutory limitation by representations giving rise to equitable estoppel. Lindblom v. Employers Liability Assurance Co. (1930), 88 Mont. 488, 494, 295 P. 1007, 1009. We set out the elements of equitable estoppel in Lindblom:

“1. There must be conduct — acts, language, or silence — amounting to a representation or a concealment of material facts. 2. These facts must be known to the party estopped at the time of his said conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to him. 3. The truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel, at the time when it was acted upon by him. 4. The conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party, or under such circumstances that it is both natural and probable that it will be so acted upon. * * * 5. The conduct must be relied upon by the other party, and, thus relying, he must be led to act upon it. 6. He must in fact act upon it in such a manner as to change his position for the worse; in other words, he must so act that he would suffer a loss if he were compelled to surrender or forego or alter what he has done by reason of the first party being permitted to repudiate his conduct and to assert rights inconsistent with it.”

88 Mont. at 494-495, 295 P. at 1009.

Questions of estoppel can arise in various ways through actions of the employer. The employee can be lulled into inaction. Wassberg v. Anaconda Copper Co. (Mont. 1985), [215 Mont. 309,] 697 P.2d 909, 916, 42 St.Rep. 388, 395, citing McKaskle v. Industrial Com’n of Arizona (1982), 135 Ariz. 168, 659 P.2d 1313, 1316. The employer can take positive action which either prevents a claimant from filing a timely claim or leads him reasonably to believe he does not need to file a claim [citing cases]. Wassberg, supra at 916, 42 St.Rep. at 396, citing Davis v. Jones (Mont. 1983), 203 Mont. 464, 661 P.2d 859, 860, 40 St.Rep. 570, 571-572.

There is no support for Schmidt’s claim. The record does not show Proctor and Gamble discouraged or in anyway influenced Schmidt from filing a claim. An employer has no affirmative duty to inform the claimant of the right to file a claim. The duty to act is on the employee. Wassberg, supra at 916, 42 St.Rep. at 396. We do not find that the first element of equitable estoppel, set out in Lind blom, supra, is met. Nor is Schmidt’s contention he notified Ham-merman by way of a phone call and on the Merchandiser Expense Report supported by the record.

Schmidt claims even if the Workers’ Compensation Court did not accept his statement of facts, his claim for compensation nevertheless was timely filed because his injury was a latent injury and the statute of limitations is not relevant. Section 39-71-601(2), MCA, says, “The division may, upon reasonable showing by the claimant of lack of knowledge of disability, waive the time requirement up to an additional 24 months.”

The record does not show that Schmidt was without symptoms of the claimed accident in July 1984. We have said “that the time period for notice of claim does not begin to run until the claimant, as a reasonable man, should recognize the nature, seriousness, and probable compensable character of his latent injury.” Bowerman v. Employment Security Commission (Mont. 1983), [207 Mont. 314,] 673 P.2d 476, 479, 40 St.Rep. 2062, 2065. There is no evidence Schmidt was unaware of his disability. He testified he felt a sharp pain in his back at the time of the July 14,1984 incident and continued to have back problems through July 1985. He testified he purchased a back brace in August 1984 to help him sleep. He testified he had leg pains in October and November 1984. Yet he did not seek any medical attention during this time, as would a reasonable man under such circumstances. There is no credible evidence Schmidt lacked knowledge of the nature, seriousness, and probable compensable character of a latent injury.

We find the medical testimony offered to show gradual development of a herniated disc is not relevant to corroborate the existence of an industrial accident. It goes only to show the medical condition of Schmidt’s back. The issue of a compensable injury is not before this Court, because clearly Schmidt did not notify his employer of an accident within the statutory time.

The order of the Workers’ Compensation Court is affirmed.

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


author: MR. JUSTICE SHEEHY

text:
    DENNY DRISCOLL BOYS HOME, a Montana corporation, and Will and Daisy Braiser Boys Ranch, a Montana corporation, Plaintiffs and Appellants, v. THE STATE OF MONTANA; The Department of Social and Rehabilitation Services of the State of Montana: The Department of the Attorney General of the State of Montana: The Department of Justice of the State of Montana; Mike Greely; Keith L. Colbo and Fritz Behr, Defendants and Respondents.
    No. 86-539.
    Submitted on Briefs March 12, 1987.
    Decided June 4, 1987.
    737 P.2d 1150.

      Leonard J. Haxby, Butte, for plaintiffs and appellants.
    John Maynard, Dept, of Admin., Tort Claims Div., Helena, for defendants and respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Plaintiffs appeal the order for summary judgment granted by the District Court, First Judicial District, County of Lewis and Clark. We affirm the District Court’s order.

Plaintiffs Denny Driscoll Boys Home and Will and Daisy Braiser Boys Ranch, both Montana corporations, filed a libel action against defendants State of Montana, its agencies and agents for alleged libelous statements published in various Montana newspapers. Plaintiffs’ sole issue on appeal is whether the District Court erred in granting summary judgment.

Under Rule 56(c), M.R.Civ.P., summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The moving party has the burden of making a clear showing of the complete absence of any genuine issue of material fact. Harland v. Anderson (1976), 169 Mont. 447, 450, 548 P.2d 613, 615. Kaiser v. Town of Whitehall (Mont. 1986), [221 Mont. 322,] 718 P.2d 1341, 1342, 43 St.Rep. 846, 848. Once the moving party has met this initial burden of proof, the burden shifts to the party opposing the motion, who then must come forward with substantial evidence raising a genuine issue of material fact. Harland v. Anderson, 169 Mont. at 451, 548 P.2d at 615. Bare assertions and conclusory statements are not sufficient to defeat a motion for summary judgment. Small v. McRae (1982), 200 Mont. 497, 522, 651 P.2d 982, 995.

It appears that the allegations of libel stem from a letter written August 21, 1979 by Norma Vestre, Bureau Chief of the Social Services Bureau, to Reverend J.F. Finnegan, director of the Home and Ranch corporations. The letter informed Rev. Finnegan that pursuant to Department of Justice investigations of alleged criminal activity at the Home, the Department of Social and Rehabilitation Services would not renew the licenses for the Home and the Ranch. The letter enumerated eight alleged criminal activities and several child care regulation violations which were under investigation. Carbon copies of the letter were sent to attorneys for Rev. Finnegan and the Home, the Director of SRS, and an SRS employee involved in the investigation.

As a result of the letter, the plaintiffs requested an administrative hearing on the nonrenewal. The SRS letter was admitted into evidence on September 28, 1979, by stipulation of the parties at a prehearing conference. The relicensure proceedings were subsequently dismissed in November, 1979, through the withdrawal of the license applications and the withdrawal of appearances by the Home and Ranch corporations.

The Home and Ranch corporations do not argue that the letter as sent to the six parties above or as admitted into evidence constitutes libel. Rather, they argue that newspaper articles which reported the investigations and allegations of criminal activity are based on statements made by the agents of the State of Montana.

All of the statements made directly by the agents of the State to the press acknowledged investigations were being conducted and charges would be filed against Rev. Finnegan. These were true statements. None of the agents’ statements made reference to the eight specific criminal activities enumerated in the SRS letter. The mention of the alleged criminal activities which appeared in the newspaper articles was taken from the SRS letter which had been admitted into evidence at the administrative hearing. Under Section 2-6-101 MCA, the letter became a public writing upon being admitted into evidence on September 28, 1979. Under Section 2-6-102, MCA, every citizen has a right to inspect and take a copy of public writing of this state. Further, affidavits submitted by state agents Judith H. Carlson, Fritz O. Behr, Keith L. Colbo and Mike Greely all state that no communication of specific criminal charges had been made by any state agent to the press or mass media.

Libel is defined by statute as “a false and unprivileged publication . . . which exposes any person to hatred, contempt, ridicule or obloquy or which causes him to be shunned or avoided or which has a tendency to injure him in his occupation.” Section 27-1-802, MCA. A privileged publication includes one made in the proper discharge of an official duty. Section 27-1-804(1), MCA. Where a public officer is acting within the scope of his or her authority, his or her communication within that scope is privileged. Storch v. Board of Directors of the Eastern Montana Region Five Mental Health Center (1976), 169 Mont. 176, 182, 545 P.2d 644, 648 (citing Barr v. Matteo (1959), 360 U.S. 564, 571, 79 S.Ct. 1335, 1339, 3 L.Ed.2d 1434, 1441).

Based on the foregoing, we hold that plaintiifs did not sustain their burden of proof that genuine issues of material fact exist to be tried, and therefore defendants are entitled to judgment as a matter of law. All statements made by defendants were communications made in the proper discharge of their official duties. Section 27-1-804(1), MCA.

The order of the District Court is affirmed.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. TERRY GRANT, Defendant and Appellant.
    No. 86-244.
    Submitted on Briefs March 12, 1987.
    Decided June 11, 1987.
    738 P.2d 106.

      Anthony F. Keast, Christopher Daly, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., Dorothy McCarter, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, Co. Atty., Missoula, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Defendant, Terry Grant, appeals a conviction of one count of burglary and two counts of theft from the Fourth Judicial District, Missoula County, Montana. Defendant alleges that his right to a speedy trial was violated and therefore the charges against him should be dismissed.

The decision of the District Court is affirmed.

The sole issue raised on appeal is whether defendant was denied a speedy trial.

Defendant, Terry Grant, was arrested on September 23, 1984, after being apprehended while fleeing the scene of a burglary of a Missoula jewelry store. The same night, two other Missoula jewelry stores were burglarized in a similar manner. Items allegedly taken from all three stores were found in defendant’s possession. On October 23,1984, an information was filed with the District Court charging defendant with three counts of burglary. On November 7, 1984, defendant was arraigned in District Court and entered a plea of not guilty to the charges against him. On November 8, 1984, the State filed an amended information charging defendant with one count of burglary and two counts of theft. Defendant was released on his own recognizance. Trial was set for the court’s next jury term in February, 1985.

An omnibus hearing was scheduled for January 11, 1985, at which defendant’s presence was required. When defendant did not appear at the hearing a bench warrant was issued for his arrest.

Defendant did not appear at the Montana omnibus hearing because he was in the Lemhi County, Idaho jail. He had been in jail in Idaho since November 18, 1984 on burglary and grand theft charges. Defendant pled guilty in Idaho and received a five year sentence to be served in that state’s prison.

On January 22, 1985, the Missoula County sheriff issued a detainer, based on the bench warrant, to the Lemhi County, Idaho sheriff’s office. On February 19, 1985, the Idaho State Prison notified the State of Montana that defendant was incarcerated there.

A second detainer was issued against the defendant in Idaho on March 8, 1985. Confirmation that defendant received notice of this detainer was received in Missoula on March 11, 1985.

On March 29, 1985, the State of Montana moved for a continuance. The motion was granted. Defendant alleges that neither he nor his counsel received notice of this motion and therefore were unable to make an appearance.

A second omnibus hearing was scheduled for May 1, 1985. Various motions were made and a hearing on the motions was scheduled for May 23, 1985. On that day neither defendant nor his counsel appeared. The matter was continued without date.

On May 30, 1985, the State issued a third detainer to the Idaho State Prison requesting temporary custody of defendant in order to pursue the charges against him in Montana.

On June 17, 1985, the State moved for a second continuance for the trial which was at this time scheduled for the July 1985 calendar. This continuance was granted over defendant’s objection alleging a speedy trial violation, on the grounds that defendant was incarcerated in Idaho and had not yet exercised his right to a speedy trial in Montana pursuant to the Interstate Agreement on Detainers, sec. 46-31-101, MCA.

On June 19,1985, the State of Montana received from defendant, a request for disposition of the Montana charges against him and for the determination of a speedy trial. Defendant was delivered to the custody of the State of Montana on August 15, 1985. On September 3, the date scheduled for final disposition of the charges against defendant in Montana, defendant and his counsel requested a continuance and waived the right to a jury trial.

On October 21, 1985, defendant requested another continuance, which was denied. A nonjury trial was heard on October 22. Defendant made a motion to dismiss for lack of a speedy trial. This motion was argued and subsequently denied. On November 8, the court issued its findings of fact, conclusions of law and order. Defendant was found guilty of one count of burglary and two counts of theft. He was sentenced to the Montana State Prison for ten years for the charge of burglary, ten years for one charge of theft, to run concurrently, and ten years for the second charge of theft, to run consecutively. He was designated a persistent felony offender, nondangerous, and was given credit for time served in Idaho. Defendant was returned to the Idaho State Prison on or about December 5, 1985.

The right to a speedy trial in criminal prosecutions is secured by the Sixth Amendment of the United States Constitution. The same right is expressed in Art. II, Section 24 of the Montana Constitution. This right has been regarded as fundamental. Branden v. 30th Judicial Circuit Court (1973), 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443.

To determine whether defendant’s right to a speedy trial has been violated, this Court must balance four factors: length of delay; the reason for delay; the defendant’s assertion of his right; and prejudice to the defendant. Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101, 117; State v. Robbins (Mont. 1985), [218 Mont. 107,] 708 P.2d 227, 42 St.Rep. 1440.

1. Length of delay

The length of delay is the first and most critical factor to be considered in the balancing test. Until there has been sufficient delay which is presumptively prejudicial, there is no need to consider the other factors.

In the present case, Grant’s arrest on September 23, 1984, started the clock running. State v. Smith (Mont. 1983), [206 Mont. 99,] 670 P.2d 96, 100, 40 St.Rep. 1533, 1537. On October 22, 1985, 393 days later, Grant was brought to trial. This is a presumptively prejudicial delay. Fitzpatrick v. Crist (1974), 165 Mont. 382, 528 P.2d 1322 (7 month delay). A lengthy delay, by itself, does not necessitate a dismissal of charges, but it does trigger our consideration of the other factors outlined in Barker, 407 U.S. at 533, 925 S.Ct. 2193.

Once a sufficiently lengthy delay has occurred the burden of explaining the reason for such delay and an absence of prejudice to defendant shifts to the State. Fitzpatrick, 528 P.2d at 1326. When the reason for delay is considered, the question becomes whether prosecution was pursued with reasonable diligence. State v. Carden (1977), 173 Mont. 77, 566 P.2d 780. Any delay attributable to defendant’s own actions must be deducted from the total delay. State v. Freeman (1979), 183 Mont. 334, 339, 599 P.2d 368, 371. Incarceration on other charges does not affect defendant’s right to a speedy trial. U.S. v. Maura (1978), 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329. However, in the present case, defendant’s own actions were responsible for much of the delay. To determine whether the 393 day delay violated defendant’s right to a speedy trial, we must look to the reasons for delay.

2. Reasons for delay

The primary reason for the delay was the conduct of the defendant in Idaho leading to his arrest, conviction and imprisonment preventing him from attending the January 11, 1985 omnibus hearing in Montana and causing the trial, scheduled in February, to be continued without date.

Defendant was arrested on September 23, 1984 and arraigned 14 days later on November 7 in Missoula, Montana. He was released on his own recognizance. Eleven days later on November 18, he was arrested in Idaho and charged with burglary and felony theft. The result of these charges was a conviction and incarceration for five years in the Idaho State Prison. On January 11, 1985, after defendant failed to show up for an omnibus hearing, the State of Montana was alerted to his incarceration in Idaho. Thereafter, on January 22, 1985, a detainer was filed in Idaho pursuant to the Interstate Agreement on Detainers, Section 46-31-101; Art. III(l), MCA.

Montana filed two more detainers on defendant Grant with the State of Idaho. On March 8, 1985, Idaho received a detainer from Montana and notified defendant that charges were still pending against him in Montana. On May 30, the State of Montana filed a detainer in Idaho requesting temporary custody of defendant pursuant to Art. IV of the Interstate Agreement on Detainers.

The time chargeable to defendant began on January 22, 1985, when the State of Montana issued the first detainer to defendant and the State of Idaho notifying them of charges pending against defendant in Montana. That time, as chargeable to defendant, ceased to run on June 19, 1985 when defendant asserted his right to a speedy trial by requesting final disposition of the charges against him in Montana. During this period the Interstate Agreement on Detainers was applicable. State v. Seadin (1979), 181 Mont. 294, 593 P.2d 451. Defendant was out of reach for prosecution in Montana due to his voluntary commission of crimes in Idaho. The State of Montana repeatedly attempted to bring defendant to trial for the charges pending against him by filing detainers with the State of Idaho. Knowing that charges were pending against him in Montana, it was up to defendant to request speedy and final disposition of the charges against him.

Also chargeable to defendant is the delay between September 3, when defendant requested a continuance of his trial date, and October 22, the date of his trial. This is a total of 196 days chargeable to defendant which, when deducted from the total 393 days, leaves a period of 197 days: 121 days between his arrest and the day a detainer was first issued; and 76 days between receiving the request for speedy trial from defendant and the date of his request for a continuance.

In consideration of the remaining 197 days not chargeable to defendant, we hold that the State was diligent in its efforts to bring the defendant to trial. Accordingly, this time cannot be charged against the State. Freeman, 599 P.2d at 371. The presumption that defendant did not receive a speedy trial which was raised by the 393 day delay between defendant’s arrest and his trial was satisfactorily overcome.

3. Defendant’s assertion of his rights

The State of Montana did not receive a request for speedy trial from defendant until June 19, 1985. Upon receipt of defendant’s request, the State of Montana was allowed 180 days to bring defendant to trial for the charges filed against him in Montana under the Interstate Agreement on Detainers, Section 46-31-101; Art. III(l). The 180 days began to run when defendant’s request for speedy trial was received by the proper authorities in Montana. Maura, 436 U.S. at 351, 985 S.Ct. at 1842. Defendant’s trial on October 22, 1985, 125 days after his June 19 request, was within the 180 allowable days of his demand for a speedy trial.

It is clear that defendant was given a speedy trial after the assertion of his rights under the Interstate Agreement on Detainers.

4. Prejudice to the defendant

Defendant’s own conduct prevented the State from bringing him to trial within 180 days. He cannot now complain that he was not given a speedy trial.

The judgment of the District Court is affirmed.

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


text:
    CONSUMER UNITED INSURANCE COMPANY, a foreign corporation, Plaintiff and Respondent, v. ROGER JOHN SYVERSON, Defendant and Appellant.
    No. 86-577.
    Submitted May 1, 1987.
    Decided June 11, 1987.
    738 P.2d 110.
    Landoe, Brown, Planalp, Kommers & Johnstone; Gene I. Brown argued, Bozeman, for defendant and appellant.
    Poore, Roth & Robinson; John P. Davis argued, Butte, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

We determine here that the tests of “traditional notions of fair play and substantial justice” (International Shoe Co. v. Washington (1945), 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95) are met to establish jurisdiction of a nonresident defendant in the Montana court stemming from a bank account in controversy between Consumers United Insurance Company (Consumers) and Roger John Syverson (Syverson).

Consumers, a Washington, D.C. corporation, brought suit in the District Court, Eighteenth Judicial District, Gallatin County, against Syverson, a Texas resident, by filing a complaint alleging Syverson, while an officer of Consumers, had made unauthorized loans of Consumers’ funds to third persons and had accepted “kick-backs” or unauthorized commissions from the borrowing third persons. Consumers further claimed that the unauthorized funds had been deposited through wire transfer by Syverson in First Citizens Bank of Bozeman, Montana (not a party to this action). Consumers prayed for judgment covering the unauthorized funds and further damages, or in the alternative, a preliminary injunction or restraining order conserving the deposited funds pending the action. Consumers also sought a declaration that the deposits were subject to a constructive trust in favor of Consumers.

On receiving the complaint, the District Court entered a temporary restraining order and show cause order addressed to Syverson. He appeared and moved to dismiss the action on the grounds that the District Court lacked jurisdiction of the action and his person.

All sides concede that Syverson has “not set foot in Montana;” that Consumers has no contact within Montana; that an action is presently pending in the Texas courts between Consumers and Syverson over the same controversy. The District Court did determine, upon evidence, that the deposited funds in the Bozeman bank are traceable to the claimed unauthorized commissions or kick-backs received by Syverson while acting as an officer of Consumers. No other contact between Syverson and the forum state, Montana, appears in this case.

The District Court, after hearing, entered judgment requiring (1) the funds on deposit in the Bozeman bank be retained (or ihvested by stipulation of the parties); (2) that upon receipt of a certified judgment from the Texas court, the deposited funds be disbursed in accordance with the Texas judgment to the prevailing party; and, (3) a sufficient bond of Consumers to abide the Texas result. The Montana judgment is final but without prejudice as to the claims of either party as between them personally.

Syverson has appealed the judgment to this Court again on the grounds that the Montana courts have no jurisdiction over the person of Syverson nor the funds deposited in the Bozeman bank.

Immediately brought into play by the facts of this case is a consideration of the jurisdiction, if any, of Montana state courts arising from a wire deposit of funds in a Montana bank by a nonresident defendant owner.

The complete answer is found in Shaffer v. Heitner (1977), 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683. In that case, Heitner, a nonresident of Delaware, filed a shareholders derivative suit in a Delaware state court, naming as defendants the Greyhound Corporation and its subsidiary and 28 present or former corporate officers or directors. Heitner alleged that the individual defendants had violated their duties to the Greyhound Corporation by causing it and its subsidiary to engage in actions which occurred in Oregon that resulted in corporate liability for substantial damages in a private antitrust suit and a large fine in a criminal contempt action. Simultaneously Heitner, under a Delaware statute, filed a motion for sequestration of the Delaware corporate property of the individual defendants, all nonresidents of Delaware, accompanied by an affidavit identifying the property to be sequestered as stock, options, warrants and various corporate rights of defendants. Under the Delaware statute, a sequestration order was issued by the Delaware state court pursuant to which shares and options belonging to 21 defendants were “seized” and “stop transfer” orders were placed on the corporate books. Under the Delaware statute, the sequestration would remain in eifect as to the nonresidents, to be released when the defendants came into the action by way of general appearance, thus completely subjecting themselves to the jurisdiction of the Delaware court.

The nonresident defendants appeared speciálly in the Delaware state court, seeking to quash service of process and to vacate the sequestration order, contending that the ex parte sequestration procedure did not accord them due process, that the property seized was not capable of attachment in Delaware and that they, the individual nonresident defendants, did not have sufficient contacts with Delaware to sustain jurisdiction of Delaware state courts under the rule of International Shoe, supra.

The Deláware Court of Chancery asserted quasi in rem jurisdiction which the Delaware Supreme Court affirmed, ruling out the holding of International Shoe:

“There are significant constitutional questions at issue here but we say at once that we do not deem the rule of International Shoe to be one of them .... The reason, of course, is that jurisdiction under Section 366 [the Delaware sequestration statute] remains . . . quasi in rem founded on the presence of capital stock here, not on prior contact by defendants with this forum. Under 8 Del. C. Section 169 the ‘situs of the ownership of the capital stock of all corporations existing under the laws of this state . . . [is] in this State’, and that provides the initial basis for jurisdiction. Delaware may constitutionally establish situs of such shares here, [Citations omitted] it has done so and the presence thereof provides the foundation for Section 366 in this case.”

Greyhound Corp. v. Heitner (Del. 1976), 361 A.2d 225, 229.

As might be expected, the United States Supreme Court held that jurisdiction of the nonresident defendants could not be acquired in Delaware under its sequestration statute, saying:

“The Delaware courts based their assertion of jurisdiction in this case solely on the statutory presence of appellants’ property in Delaware. Yet that property is not the subject matter of this litigation, nor is the underlying cause of action related to the property. Appellants’ holdings in Greyhound do not, therefore, provide contacts with Delaware sufficient to support the jurisdiction of that State’s courts over appellants. If it exists, that jurisdiction must have some other foundation.”

Shaffer, 433 U.S. at 213, 97 S.Ct. at 2584, 53 L.Ed.2d at 703.

The corollary to the foregoing statement by the United States Supreme Court is that if the property in the state is the subject matter of the litigation or if it is related to the underlying cause of actions between the parties, jurisdiction over the nonresident owner could be acquired by the state court. The United States Supreme Court in Shaffer made the corollary clear, although the Delaware statute was held unconstitutional.

The Supreme Court in Shaffer noted its holdings in the history of state court jurisdiction over nonresident defendants in in personam, in rem and quasi in rem actions from Pennoyer v. Neff (1877), 95 U.S. (5 Otto) 714, 714, 24 L.Ed. 565, down to International Shoe. It noted that International Shoe departed from Pennoyer in that a state court could subject a nonresident defendant to a judgment in personam even though the defendant was not present within the territory of the forum, but had certain minimum contacts with it such that the maintenance of the suit did not offend “traditional notions of fair play and substantial justice.” Shaffer, 433 U.S. at 203, 97 S.Ct. at 2579, 53 L.Ed.2d at 697. “Thus, the relationship among the defendant, the forum, and the litigation, rather than the mutually exclusive sovereignty of the States on which the rules of Pennoyer rest, became the central concern of the inquiry into personal jurisdiction.” Shaffer, 433 U.S. at 204, 97 S.Ct. at 2580, 53 L.Ed.2d at 698.

Not touched by International Shoe was the status of state court judgments over nonresident defendants based on jurisdiction in rem or quasi in rem. The Supreme Court in Shaffer questioned whether the presence of property in the state, standing alone, gave the state jurisdiction to adjudicate owner’s rights to the property regardless of the relationship of the property or the underlying dispute and the property owner to the forum. Shaffer, 433 U.S. at 205, 97 S.Ct. at 2580, 53 L.Ed.2d at 698. Recognizing that an adverse judgment in rem directly affects the property owner by divesting him of his rights before the court, the Supreme Court decided it was time to consider whether the standard of fairness and substantial justice set forth in International Shoe should govern actions in rem as well as in personam:

“The case for applying to jurisdiction in rem the same test of ‘fair play and substantial justice’ as governs assertions of jurisdiction in personam is simple and straightforward. It is premised on recognition that ‘[t]he phrase, “judicial jurisdiction over a thing,” is a customary elliptical way of referring to jurisdiction over the interests of persons in a thing.’ Restatement (Second) of Conflict of Laws Section 56, Introductory Note (1971) (hereafter Restatement). This recognition leads to the conclusion that in order to justify an exercise of jurisdiction in rem, the basis for jurisdiction must be sufficient to justify exercising ‘jurisdiction over the interests of persons in a thing.’ The standard for determining whether an exercise of jurisdiction over the interests of persons is consistent with the Due Process Clause is the minimum-contacts standard elucidated in International Shoe.

Shaffer, 433 U.S. at 207, 97 S.Ct. at 2581, 53 L.Ed.2d at 699-670.

The Supreme Court in Shaffer recognized that difficulties may arise in applying International Shoe to jurisdiction quasi in rem. It solved, the difficulty by stating that if the presence of property in a state was to be the basis of jurisdiction in that state for a judgment against a nonresident defendant, the property in the state must be the subject of the action or related to the underlying controversy.

In the case at bar, we have clearly an item of personal property, though intangible, that is related to the subject in controversy, and is in fact the subject of the controversy. The District Court here specifically found that the deposited funds in the Bozeman bank were traceable to the alleged claims of kick-back asserted by Consumers.

Applying the International Shoe factors to this case, as we must under Shaffer, we examine the relationship among the defendant, the forum, and the litigation to determine whether these factors meet the test of minimum contacts so as not to offend traditional notions of fair play and substantial justice. In the case at bar, the test is clearly met. There is a positive nexus between Syverson, who caused the funds to be deposited in his name in Montana, the forum, where the deposits are located, and the litigation, which concerns ownership of the deposits. Moreover, the judgment of the District Court supports traditional notions of fair play and substantial justice by effectively making the Bozeman bank a stakeholder of the deposited funds biding the determination of the controversy in the Texas courts. Syverson, a resident of Texas, can have no objection to the resolution of the underlying controversy in his home state.

We note that the decision of this Court in Gassert v. Strong (1908), 38 Mont. 18, 98 P. 497, which was decided under principles of quasi in rem, following Pennoyer, would be the same if examined under the principles of International Shoe and Shaffer.

Accordingly, we affirm the judgment of the District Court in this case. Because of this affirmance, discussion of the other issues raised by the parties is unnecessary.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and HUNT, and HON. PETER L. RAPKOCH, District Judge, sitting for MR. JUSTICE MORRISON, concur.


text:
    BONNIE FOX, Plaintiff and Respondent, v. ROBERT CLARYS, Defendant and Appellant.
    No. 86-583.
    Submitted on Briefs March 26, 1987.
    Decided June 11, 1987.
    738 P.2d 104.

      John V. Potter, Jr., White Sulphur Springs, for defendant and appellant.
    Berger, Nelson & Gai, P.C., Chris J. Nelson, Billings, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This appeal arises from a summary judgment granted plaintiff in a quiet title action by the District Court of the Thirteenth Judicial District in and for Yellowstone County. Defendant appeals. We affirm.

The facts of this case are not in dispute. Clifford and Bonnie Fox were at one time married and owners as joint tenants of an approximately forty acre tract of real property located in Yellowstone County. Clifford and Bonnie were divorced in December 1981 and under the terms of their own property settlement agreement, this property was to be sold and the net proceeds evenly divided. Pending the sale, the property was to remain available to both, each sharing the mortgage and insurance payments, property taxes and any improvement or maintenance costs.

The property, however, remained unsold for six months. On June 23, 1982, Clifford and Bonnie, by agreement, amended their property settlement agreement to provide for a partition of the property with each party solely responsible for his or her portion. This amendment further provided that if either party defaulted on a mortgage payment associated with the property, the defaulting party would forfeit all title and interest in the property to the other party.

Further domestic difficulties quickly arose between these two, however, and on July 1, 1982, Bonnie filed in District Court a motion to set aside the June 23 amendment. In conjunction with this motion, Bonnie filed a lis pendens which is at issue in this case. The District Court issued a show cause order and set a hearing date on Bonnie’s motion. However, this matter was never heard, and the property apparently remained partitioned.

Subsequently, the defendant herein, Robert Clarys, obtained a writ of attachment on Clifford’s interest in the subject property in connection with a lawsuit filed in Meagher County. Shortly thereafter, Clarys obtained a default judgment against Clifford for monies allegedly due on a promissory note. By January 1984, Clarys had filed and recorded in Yellowstone County his judgment and writ in an attempt to obtain a judgment lien against Clifford’s interest in the subject property.

But in March 1984, Clifford defaulted on a mortgage payment. Notwithstanding the fact that in July 1982 she had filed a motion to set aside the terms of the June 23 amendment, Bonnie now sought to enforce those terms. The reason that Bonnie sought to set aside the agreement was because Clifford had come back to the property and had beaten her. There is no indication that she desired to give up any claim or interest to the property. Here the property was still involved in the divorce proceeding before the court and there was nothing which eliminated the right of Bonnie to file full title to the property by requesting the disposition of that property or in the alternative to enforce the order as she now has done.

Bonnie served Clifford with a notice of default, and upon Clifford’s fáilure to cure, Bonnie, on June 1, 1984, moved the District Court to order Clifford to convey to Bonnie any and all of his title and interest that he held in the subject property. By order dated June 22, 1984, the District Court granted Bonnie’s motion, directing the Clerk of the District Court to execute a quit claim deed conveying all of Clifford’s interest to Bonnie.

Clarys, meanwhile, continued to assert that he could maintain a levy of execution based upon his writ of attachment and judgment obtained against Clifford. Bonnie therefore filed a quiet title action which is the subject of this appeal.

Before the District Court, Bonnie and Clarys filed cross-motions for summary judgment. The District Court granted Bonnie’s motion based upon her lis pendens filing. The court held that the doctrine of lis pendens applies to all persons acquiring an interest in the subject of the litigation during the pendency of the action and thereby concluded that Bonnie’s lis pendens precluded Clarys from subsequently encumbering Clifford’s interest in the property. Clarys now appeals.

The doctrine of lis pendens was created to hold the subject matter of litigation within the jurisdiction and control of the court during the pendency of an action so that any final relief granted by the court would be at once binding and effective. See, generally, 8 G. Thompson, Commentaries on the Modern Law of Real Property, Section 4308, (1963 Replacement ed.). This doctrine generally renders third persons who subsequently purchase or encumber an interest in the subject property bound by the final disposition of the action.

This doctrine, however, often provides harsh results and generally has not been extended by courts without strict necessity. E & E Hauling, Inc. v. County of DuPage (Ill.1979), 77 Ill.App.3d 1017, 396 N.E.2d 1260, 1266. Although the law on this subject is sparse, notice of lis pendens is typically effective only for the stated cause of action and does not embrace subsequently added causes; notice of lis pendens becomes applicable to new causes of action only when the new causes are added. See e.g., Blase v. Austin (1951), 362 Mo. 409, 242 S.W.2d 29, 33.

As noted, in the instant case, Bonnie filed her notice of lis pendens with her motion to set aside the June 23 amendment. Then, after Clarys had obtained a judgment against Clifford, Bonnie enforced the June 23 amendment to acquire full title in the subject property and now seeks to use her notice of lis pendens to preclude Clarys from executing upon his judgment.

We find Bonnie’s argument represents a proper reading of the lis pendens doctrine. Her motion of June 1, 1984 to enforce the terms of the June 1982 amendment was tantamount to a continuance of her divorce and within the provisions of our statute.

We further note that Bonnie filed her notice of lis pendens pursuant to a statutory provision. Section 70-19-102, MCA, provides:

“(1) In an action affecting the title or right of possession of real property or in an action between husband and wife, the plaintiff, at the time of filing the complaint, and the defendant, at the time of filing his answer, when affirmative relief is claimed in such answer, or at any time afterward may file in the office of the clerk and recorder of the county in which the property is situated a notice of the pendency of the action containing the names of the parties and the object of the action or defense and a description of the property in that county affected thereby.
“(2) From the time of filing of such notice only shall a purchaser or encumbrancer of the property affected thereby be deemed to have constructive notice of the pendency of the action and only of its pendency against parties designated by their real names.”

The purpose underlying lis pendens statutes is to provide a better form of notice of pending litigation to those interested in the subject property. See e.g., Kelly v. Perry (1975), 111 Ariz. 382, 531 P.2d 139, 140.

The judgment of the District Court is affirmed.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ANDREW C. LONG, Defendant and Appellant.
    No. 87-049.
    Submitted on Briefs April 16, 1987.
    Decided June 11, 1987.
    Rehearing Denied July 21, 1987.
    738 P.2d 487.

      Sol and Wolfe, Michael Sol, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., Barbara Claassen, Asst. Atty. Gen., Helena, Peter W. LaPanne, Musselshell Co. Atty., Roundup, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Defendant, Andrew Carl Long appeals the order of the Fourteenth Judicial District Court, Musselshell County, denying his petition for post-conviction relief. We affirm.

The basic issue before us is whether the defendant’s plea of guilty was properly accepted.

Defendant was charged by information with felony theft of a 1971 Sabrecraft 21’ boat and boat trailer, registered in the name of Mr. and Mrs. Robert N. Watts, residents of the State of Washington.

The following facts are taken from defendant’s testimony before the District Court after his plea of guilty to the charge of felony theft. For simplicity the facts will be set forth in the order in which they occurred. Defendant was at least an acquaintance of Mr. and Mrs. Watts during the time that he worked in Seattle as a roofer. Defendant loaned some money to Mr. Watts which apparently was used as a part of the purchase price of the boat. The boat was damaged in an accident when the trailer came unhitched from the truck. This occurred in the State of Washington. Defendant offered to have the boat repaired if Mr. Watts would allow him to use it for a few months. The repairs were to be made in the State of Washington. Mr. Watts helped the defendant load the boat and trailer and gave him the registration. A few days later defendant’s employment opportunities in the State of Washington ended and he returned to Roundup, Montana, with both the boat and trailer. Defendant anticipated that friends in Montana would help him fix the boat. A few days after arriving in Montana defendant phoned Mr. Watts and told him where the boat was. Defendant told Mr. Watts that after the boat was repaired he (the defendant) would use the boat for the rest of the summer and return it to Watts in the State of Washington some time in the fall. Mr. Watts was upset because the boat had been financed in the State of Washington under an agreement which did not allow the boat to be removed from the State of Washington.

The theft charges were filed a few days later. At his arraignment, the defendant pled not guilty. Thereafter he changed attorneys and his plea. After the entry of his guilty plea, defendant stated that while he claimed part ownership of the boat, he acknowledged that he had exercised unauthorized control over the boat and trailer and had deprived Mr. Watts of the boat; but he also stated that he had every intent of repairing and returning the boat to Mr. Watts in the fall of the year. Even though defendant claimed to have a half ownership of the boat, he recognized that the title did not reflect that half ownership and he admitted that Mr. Watts had not given him authority to remove the boat from the State of Washington. He stated:

“And my intentions were to take it back at the end of September, the first of October. And I understand at this period of time that I was depriving him of his half ownership of the boat. And that’s what I’m pleading guilty to, Your Honor. I mean it was not for me to steal the boat from him and he was never going to see it again. It was not on those pretensions.”

November 2, 1983, hearing transcript, p.6, ln.18-25.

Defendant’s guilty plea was accepted. He was sentenced to five years in the Montana State Prison, suspended; and fined $5,000. A December 22, 1983, attempt to withdraw the guilty plea on the basis of inadequate representation by counsel was denied. Probation was subsequently revoked due to alcohol and firearms violations. Upon leaving Montana State Prison after 18 months incarceration, defendant pursued this petition for post-conviction relief. He contends that insufficient facts were presented to the District Court in support of the guilty plea and that the plea was not voluntary.

Three factors should be considered when determining whether a defendant’s guilty plea should be withdrawn:

1. The adequacy of the District Court’s interrogation as to the defendant’s understanding of the plea;

2. The promptness of the motion to withdraw the prior plea; and

3. The fact that the defendant’s plea was apparently the result of a plea bargain in which the guilty plea was given in exchange for dismissal of another charge.

State v. Koepplin (Mont. 1984), [213 Mont. 55,] 689 P.2d 921, 923, 41 St.Rep. 1942, 1944, citing State v. Huttinger (1979), 182 Mont. 50, 595 P.2d 363.

In its order denying the petition for post conviction relief, the District Court did not address the promptness of the motion to withdraw the plea. In addition, the record discloses that the defendant’s plea was not given in exchange for dismissal of another charge so the third factor is not pertinent. We focus our analysis on the first factor, the adequacy of the District Court’s interrogation as to the defendant’s understanding of the plea.

Absent an abuse of discretion, a trial judge’s decision not to allow the withdrawal of a guilty plea will be affirmed. Koepplin, supra, citing In the Matter of Brown (1980), 185 Mont. 200, 605 P.2d 185. Nevertheless, certain factors must be considered by the trial judge when determining whether the interrogation of defendant at the time of plea was adequate.

“Where a District Court has done all that it can to determine from the defendant or otherwise, that the proposed plea of guilty is voluntarily made, the defendant understands what he is doing and is advised of the consequences of his plea, including the nature and extent of his punishment, has been adequately advised by counsel, and has been treated fairly at all stages of the prosecution against him, arid that in fact the defendant states he is guilty of the charges made, then this Court has a duty to support the District Court when it allows a plea of guilty to be entered in place of a plea of not guilty.”

State v. Lewis (1978), 177 Mont. 474, 484, 582 P.2d 346, 352.

Defendant was charged by information with violating Section 45-6-301(1)(a), MCA.

“Theft. (1) A person commits the offense of theft when he purposely or knowingly obtains or exerts unauthorized control over property of the owner and:

“(a) has the purpose of depriving the owner of the property;”
Section 45-2-101(19), MCA, defines deprive.
“(19) ‘Deprive’ means to withhold property of another:
“(a) permanently;
“(b) for such a period as to appropriate a portion of its value;
“(c) with the purpose to restore it only upon payment of reward or other compensation; or
“(d) to dispose of the property and use or deal with the property so as to make it unlikely that the owner will recover it.”

The thrust of defendant’s position is that Section 45-2-101(19), MCA, defining the term deprive, was not mentioned in the information or the warrant, by his attorney, or at the hearing where he pleaded guilty. Therefore, defendant contends that he did not properly understand the charge against him. Pursuant to State v. Hut tinger (1979), 182 Mont. 50, 595 P.2d 363, he contends the guilty plea was involuntary and should be withdrawn.

It is undisputed that neither the information nor the warrant mentioned Section 45-2-101(19), MCA; and that the section was not discussed at the hearing. No evidence presented that defendant’s counsel at the time of the entry of the guilty plea did or did not discuss this section with defendant. To avoid this problem in the future, the District Courts are requested to ascertain that a defendant understands the statutory definition of the term “deprive”.

Regardless whether defendant understood the actual meaning of the term “deprive”, the District Judge determined at the close of the November 7, 1986, hearing on defendant’s petition to withdraw his plea of guilty, that defendant had admitted sufficient facts to support his plea of guilty.

“First of all, the Defendant. . . got on the stand today and admitted facts sufficient to bring him within the theft statute and to support his plea of guilty. The fact that he took this boat and Mr. Watts helped him load it and so forth, he admitted himself that he did not tell Mr. Watts that he was taking it out of the State; that at the time it was being loaded, Mr. Watts apparently felt or figured it would be repaired within that State within sixty miles of where the boat was picked up. And that the Defendant Mr. Long knew that was what Mr. Watts was thinking, and he didn’t tell Mr. Watts anything different although he knew, or the inference is at least there that Mr. Watts would not have wanted the boat taken out of the Statute [sic], and that Mr. Watts was under the impression that it was going to stay in the State of Washington at the time Mr. Long picked up the boat.

“. . . it is apparent to the Court that Mr. Long knew or should have known that Mr. Watts did not want the boat removed from the State of Washington and that Mr. Watts — the inference is that Mr. Watts would not have allowed him to take the boat if he figured it was going to be taken from the State.”

November 7, 1986, transcript, p.46, ln.12-27 and p.47, ln. 1-3 and 7-13.

Defendant’s testimony presents a close question as to whether he deprived Watts of the boat. However, defendant did state at the initial hearing that he deprived Mr. Watts of the boat when he moved to Montana. November 2, 1983, transcript, p.6, ln.15-23. And, at the November 7, 1986, hearing, defendant testified as follows:

“Q. (By Mr. Pratt) Mr. Long, I believe you stated that you did not have authority to bring that boat to Montana; is that correct?
“A. He did not know I was bringing it to Montana, no. He knew I was taking it to get it fixed and use it.
“Q. You picked it up in Bellview [sic], Washington, or somewhere in that area?
“A. I picked it up in Federal Way, Washington, at his residence, and he loaded it for me.
“Q. And what was his understanding when you left with the boat?
“A. That I would be taking it to a repair shop in the vicinity of Bellview [sic], Washington, to get it repaired it [sic], and use it.
“Q. You never did tell him that you were removing it from the State of Washington; is that correct?
“A. No, I didn’t.
“Q. And, of course, once that boat got to Montana, he had no ability to have access to it; is that correct? He didn’t have access to it while you had the boat in Montana; right?
“A. There was too many miles difference. He knew where the boat was at. He had been to my property prior.”

November 7, 1986, transcript, p.21, ln.7-27, p.22, ln.l.

We conclude there is substantial credible evidence to support the factual determination of the District Court and in particular its conclusion that the defendant had admitted sufficient facts to support his plea of guilty. The record further supports the legal conclusion that defendant had deprived the record owners of the property within the definition of Section 45-2-101(19), MCA. In particular, the record is sufficient to establish that defendant deprived the record owners of the property for such a period of time as to appropriate a portion of its value. The record shows that Robert Watts had borrowed money using the boat as security and given the boat as a security interest. Under the loan instruments, the property was not to be taken out of the State of Washington. By removing the boat to Montana, defendant did withhold the property for a sufficient period to appropriate a portion of its value so far as the record owners are concerned. We affirm the conclusion of the District Court that defendant had admitted sufficient facts to support his plea of guilty.

Defendant also argues that the District Court misstated the value of the property needed to support a felony theft conviction. It is true that Section 45-6-301, MCA, was amended in 1983 to change the value of stolen property from $150 to $300. We do not find it necessary to address this contention at length. The uncontradicted evidence in the record established that the boat and trailer were worth at least $4000.

We affirm the District Court.

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