text:
    STATE OF MONTANA, Plaintiff and Respondent, v. EDWARD GEORGE PASSAMA, Defendant and Appellant.
    No. 93-063.
    Submitted on Briefs June 10, 1993.
    Decided November 2, 1993.
    50 St.Rep. 1349.
    261 Mont. 338.
    863 P.2d 378.

      For Defendant and Appellant: John Keith, Attorney at Law, Great Falls.
    For Plaintiff and Respondent: Hon. Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; Allin H. Cheetham, Chouteau County Attorney, Fort Benton.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Defendant Edward George Passama was convicted in the District Court for the Twelfth Judicial District in Chouteau County for sexually assaulting an eight-year-old girl. Passama appeals his conviction based on his assertion that the District Court erred when it limited the scope of his cross-examination of the victim and her 13-year-old brother. We affirm.

There are two issues on appeal.

1. Did the District Court abuse its discretion when it prohibited appellant from cross-examining W.B., the victim’s brother, about details of his past sexual misconduct with other children?

2. Did the District Court abuse its discretion when it prohibited appellant from cross-examining the victim about details of her past sexual history?

On September 15, 1992, Edward George Passama, age 47, was charged by information with one count of sexual assault upon an eight-year-old girl in violation of § 45-5-502(1) and (3), MCA. A trial was held on December 1, 1992, in the District Court in Chouteau County.

At trial, the State presented the testimony of the victim, M.B., and her 13-year-old brother, W.B. W.B. testified that he and his sister frequently visited their neighbor, Passama, at his house. W.B. explained that he and M.B. usually played computer games at Passama’s house or helped Passama with his chores. W.B. testified that one day he went looking for Passama and M.B., and he found them lying side by side on Passama’s bed. When W.B. entered the room, Passama jumped up and began complaining that something was wrong with his leg. W.B. testified that Passama then ducked behind a door and that W.B. heard him zipping up his pants.

W.B. testified that on another occasion, when Passama was watching a movie with the children at their house, Passama had an erection while M.B. was sitting on his lap.

The victim, M.B., testified that Passama laid on top of her, sometimes with their clothes on and other times with their clothes off. M.B. stated that Passama kissed and hugged her while he lay on top of her. M.B. explained that the majority of the incidents occurred at Passama’s house, although she thought that some may have occurred at her house while her mother was sleeping. Whten asked to indicate on anatomical drawings the parts of her body that Passama touched when her clothes were off, M.B. circled her mouth, her vaginal area, and her buttocks. When asked to identify the parts of his body that Passama used to touch her, M.B. circled the mouth and the genital area on the anatomical drawing of an adult male.

This appeal concerns the limitations the District Court placed on Passama’s cross-examination of the victim and her brother. Prior to trial, Passama filed a motion in limine in which he requested the court’s permission to cross-examine W.B. about his past sexual misconduct with other children. Passama argued that questioning W.B. about his past conduct was relevant to W.B.’s credibility. According to Passama, not only would it show that W.B. was being treated for sexually molesting a 12-year-old child, but it would reveal that W.B. made an agreement with the prosecution to testify favorably for the State in exchange for leniency in his own legal difficulties.

The District Court denied Passama’s motion. The court ruled that Passama could ask W.B. whether any sexual misconduct charges had ever been filed against him, however, the court prohibited Passama from inquiring into the details of the allegations. The court indicated that if W.B. admitted that he had been charged, the defense was permitted to ask W.B. if he had made an agreement with the prosecution that was conditioned on his testimony in the present case. The court determined that such an inquiry would be probative of whether W.B. was testifying truthfully or falsely.

Prior to trial, Passama also requested the court’s permission to cross-examine the victim, M.B., about her past sexual history. Passama wanted to ask M.B. about other sexual assaults committed against her. Additionally, he wanted to question the victim about what she had learned from others regarding sexually abusive incidents. Passama intended to attack M.B.’s credibility by demonstrating that the victim’s knowledge of sexual abuse could have come from sources other than her personal experiences with Passama. The court reserved ruling on Passama’s request until after the court heard testimony from M.B.

During M.B.’s cross-examination, Passama’s attorney renewed his prior motion concerning the scope of M.B.’s cross-examination. The court permitted the defendant to ask M.B. whether she had been the victim of other sexual assaults of a similar nature. Further, the court allowed inquiry into how M.B. knew about the body parts, and the meaning of good touch and bad touch. However, the court explicitly refused to allow further examination regarding assaults and prohibited any inquiry into the names of former assailants.

Passama’s attorney cross-examined W.B. and M.B. according to the guidelines set by the District Court. On December 2, 1992, the jury convicted Passama of sexual assault. This appeal is from that conviction.

I

Did the District Court abuse its discretion when it prohibited appellant from cross-examining W.B., the victim’s brother, about details of his past sexual misconduct with other children?

Appellant asserts that the District Court erred when it prohibited him from inquiring into the specific instances of W.B.’s previous sexual misconduct. Appellant contends that by limiting his cross-examination (1) to whether W.B. had ever been charged with sexual misconduct, and (2) to whether W.B. agreed to testify favorably for the State in exchange for leniency in his own situation, the court prevented appellant from effectively attacking W.B.’s credibility. Appellant argues that W.B. was never charged with a crime, and therefore, the court’s permitted questions were valueless to Passama.

The standard of review of evidentiary rulings is whether the district court abused its discretion. State v. Crist (1992), 253 Mont. 442, 445, 833 P.2d 1052, 1054. The district court has broad discretion to determine whether or not evidence is relevant and admissible, and absent a showing of an abuse of discretion, the trial court’s determination will not be overturned. Crist, 833 P.2d at 1054.

“A witnesses] credibility may be attacked through cross-examination to reveal possible biases, prejudices, or ulterior motives if they relate directly to issues or personalities in the case at hand.” State v. Short (1985), 217 Mont. 62, 67, 702 P.2d 979, 982. However, interrogating a witness regarding prior misconduct is fraught with potential prejudice. In the past, this Court has been cautious about permitting such testimony on cross-examination. For example, in State v. White (1983), 202 Mont. 491, 496, 658 P.2d 1111, 1113, we held that evidence of prior bad acts

served only to create an unfair prejudice against [the witness], and confusion of the issues for the jury, and as such should have been barred under Rule 403, M.R.Evid.:
“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[, or] ...waste of time
The result here as to this issue would be the same even before the adoption of the Montana Rules of Evidence. Former section 93-1901-11, R.C.M. 1947, used substantially the same language. Specific wrongful acts used in cross-examination of witnesses to degrade their characters were condemned in State v. Rogers (1904), 31 Mont. 1, 6, 77 P. 293; State v. Crowe (1909), 39 Mont. 174, 177, 102 P. 579; State v. Kanakarias (1917), 54 Mont. 180, 184, 169 P. 42; State v. Shannon (1933), 95 Mont. 280, 288, 26 P.2d 360.

Similarly, we hold that the District Court did not abuse its discretion when it limited appellant’s cross-examination of W.B. The District Court acted in accordance with Rule 403, M.R.Evid., and properly barred appellant from inquiring into W.B.’s prior sexual misconduct because the probative value of such evidence was substantially outweighed by its prejudicial value, and the evidence would have potentially confused the issues.

II

Did the District Court abuse its discretion when it prohibited appellant from cross-examining the victim about details of her past sexual history?

Appellant asserts that the District Court abused its discretion when it denied his request to question M.B. about the details of other sexual assaults on her. Appellant claims that by cross-examining M.B. about the details of other sexual assaults, he could impeach M.B. by showing that the source of her knowledge about sexual abuse came from sources other than her personal experiences with appellant.

The rules of evidence certainly allow the credibility of a witness to be attacked, however, these rules are not without limitation. State v. Van Pelt (1991), 247 Mont. 99, 805 P.2d 549.

Section 45-5-511(2), MCA, governs the admissibility of evidence of a victim’s past sexual history. The statute provides that:

No evidence concerning the sexual conduct of the victim is admissible in prosecutions under this part except evidence of the victim’s past sexual conduct with the offender or evidence of specific instances of the victim’s sexual activity to show the origin of semen, pregnancy, or disease which is at issue in the prosecution.

The purpose of § 45-5-511(4), MCA (1989) (now § 45-5-511(2), MCA), is to prevent the trial from becoming a trial of the victim. Van Pelt, 805 P.2d at 552.

None of the exceptions to § 45-5-511(2), MCA, are met in the present case. Accordingly, the District Court did not err when it denied appellant’s request to cross-examine M.B. about the details of her past sexual histoiy.

Appellant was allowed to ask M.B. whether she was a victim of similar sexual assaults. Appellant was permitted to inquire into how M.B. knew about the body parts, and the meaning of good touch and bad touch. There was sufficient evidence in M.B.’s testimony to conclude that the child’s source of knowledge about sexual abuse was a result of her experiences with the appellant.

We affirm appellant’s conviction for sexual assault.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, NELSON and HUNT concur.


source: Caselaw Access Project

author: JUSTICE WEBER

license: Public Domain

text:
    LINCOLN COUNTY, MONTANA, Petitioner and Appellant, v. SANDERS COUNTY, THE HARD-ROCK MINING IMPACT BOARD, THE CITY OF LIBBY, and NORANDA MINERALS CORPORATION, INC., Respondents and Respondents.
    No. 93-008.
    Submitted on Briefs August 12, 1993.
    Decided November 2, 1993.
    50 St.Rep. 1352.
    261 Mont. 344.
    862 P.2d 1133.

      For Petitioner and Appellant: Scott B. Spencer, Lincoln County Attorney, Libby.
    For Respondent: Richard M. Weddle, Special Assistant Attorney General, Department of Commerce, Helena, (Montana Hard-Rock Mining Impact Board); Robert Slomski, Sanders County Attorney, Thompson Falls; Alan L. Joscelyn, Gough, Shanahan, Johnson & Waterman, Helena (Noranda Minerals Corp); Mark J. Fennessy, Libby City Attorney, Libby.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a decision of the Nineteenth Judicial District Court, Lincoln County, affirming a decision of the Hard-Rock Mining Board. We affirm.

We restate the issues as follows:

1. Did the District Court err in ruling that Lincoln County could not challenge the standing of Sanders County’s objection to the Mining Board’s decision?

2. Did the District Court err in determining that the Mining Board did not exceed its authority pursuant to § 90-6-307(8), MCA, of the Hard-Rock Mining Impact Act and § 90-6-404(5), MCA, of the Property Tax Base Sharing Act when it amended the Montanore Plan’s allocation of taxes?

In 1989, Noranda Minerals Corp. Inc. (Noranda), applied to the Montana Department of State Lands under § 82-4-335, MCA, for an operating permit for its Montanore Project, a proposed silver and copper mine to be located in Lincoln and Sanders Counties. While the ore body lies beneath the Cabinet Mountain Wilderness Area in Sanders County, access is gained through roads originating in Lincoln County. Surface facilities are also in Lincoln County. The Metal Mine Reclamation Act and the Hard Rock Mining Impact Act (Impact Act) require developers of large scale hard-rock minerals to prepare an “impact plan” identifying any increased costs to local government units for public services and facilities which will be needed as a result of the proposed project. Such costs must be paid by the developer in the form of grants, proceeds of special facility impact bonds, or prepayments of property taxes as may be appropriate pursuant to § 82-4-335(5) and 90-6-307, MCA.

Under the Impact Act, an affected local government unit may file an objection to the Impact Plan with the Hard-Rock Mining Board (the Mining Board) when the unit disagrees with an aspect of the Impact Plan, or contends the plan fails to address certain issues adequately. Section 90-6-307, MCA. The Impact Act encourages parties to resolve disputes among themselves, but where resolution has not occurred, the Mining Board is given jurisdiction to resolve the dispute by holding a contested case hearing. Section 90-6-307, MCA.

Also pertinent to this cause is the Hard-Rock Mining Impact Property Tax Base Sharing Act (Tax Base Sharing Act), found at §§ 90-6-401 through 90-6-406, MCA. Operating in conjunction with the Impact Act, it addresses those situations in which the proposed project will have adverse financial impacts on local government units other than those localities in which the mine is located. Because of our tax system in Montana, these adj acent localities would not receive property tax to compensate for the adverse impact of the mine. Therefore, Montana’s system allocates a portion of the taxes paid on the valuation of the mine to these adjacent localities. The allocation under the Tax Base Sharing Act is required when the impact plan identifies an adverse financial situation result which affects neighboring local emits of government.

The Tax Base Sharing Act in part provides that the real property tax on the mine shall be spread over all governmental units affected based upon the residence of the mine’s employees and school age children of such employees. This act was in effect when Noranda submitted its impact plan.

The Montanore Impact Plan predicted that a majority of the project’s employees would reside in the Libby area and that Libby would incur significant costs because of the mine development but would not receive a corresponding increase in taxable valuation from the mine to offset the cost. Based on the foregoing analysis, the Impact Plan determined that the Tax Base Sharing Act was applicable and, therefore, the project’s taxable valuation should go to Libby and the rest of Lincoln County and not Sanders County.

House Bill 832, Chapter 760, Laws 1991, requires that taxable valuation be assigned to Sanders County. Under this bill, a minimum of 20% of the gross proceeds from the taxable valuation of the project is allocated to those local governments within which the ore body is located.

House Bill 832, which became § 90-6-404, MCA, provides:

90-6-404. Allocation of taxable valuation for local taxation purposes. When property of a large-scale mineral development is subject to the provisions of 90-6-403, the increase in taxable valuation must be allocated by the department of revenue as follows:
(1) If the board determines that the local government unit in which the ore body or the mineral deposit being mined is located is not affected by the development and if this determination is shown on the impact plan, 20% of the total increase in taxable valuation of the gross proceeds must be allocated to that local government unit. This provision is intended to establish a minimum allocation for the units and does not prohibit proof by a unit that actual direct impacts would exceed 20% of the total impacts of the development.
(2) The remaining increase in taxable valuation of the mineral development must be allocated between affected counties and affected municipalities according to the following formula based on the place of residence of mineral development employees:
(a) A portion, not to exceed 20%, to affected municipalities, based on that percentage of the total number of mineral development employees that reside within municipal boundaries. The taxable valuation allocated to affected municipalities must be distributed to each municipality according to its percentage of the total number of mineral development employees who reside within municipal boundaries. That portion of the taxable valuation distributed to a municipality pursuant to this section is subject to the same county mill levy as other taxable properties located in the municipality.
(b) The remaining portion of the taxable valuation must be distributed to each affected county according to its percentage of the total number of mineral development employees that reside within the county.
(3) The increase in taxable valuation equal to that subject to subsection (2) must be distributed pro rata among each affected high school district according to the percentage of the total number of mineral development high school students that reside within each district.
(4) The increase in taxable valuation equal to that subject to subsection (2) must be distributed pro rata among each affected elementary school district according to the percentage of the total number of mineral development elementary school students that reside within each district.
(5) The distribution formula specified in subsections (2) through (4) may be modified by an impact plan approved as provided in 90-6-307 or amended as provided in 90-6-311, if the modification is needed in order to ensure a reasonable correspondence between the occurrence of increased costs resulting from the mineral development and the allocation of taxable valuation resulting from the mineral development.

During a 90-day review period established by § 90-6-307(6), MCA, the Sanders County Board of Commissioners filed an objection to the Montanore Impact Plan with the Mining Board. This objection challenged 1) the Impact Plan’s conclusion that the proposed mining development held no potential for future adverse impacts on Sanders County and, 2) the manner in which the Impact Plan proposed to implement the Tax Base Sharing Act. The parties resolved issue one so that only issue two went before the Mining Board.

When negotiations between the parties broke down, the Mining Board held an informal contested case hearing concerning Sanders County’s objection. The Mining Board considered the following issues:

1. Whether the Noranda Minerals Corporation Impact Plan for the proposed Montanore mine accurately identified the increased capital and operating costs which would be experienced by the City of Libby, Montana, as a result of the development of the Montanore mine;
2. Whether, if the Plan did accurately identify the increased capital and operating costs which would be experienced by the City of Libby, these increased costs warranted or required application of the Property Tax Base Sharing Act, as the Plan proposed; and
3. Whether, if the effects of the mining development on the City of Libby did warrant or require the application of the Property Tax Base Sharing Act, the Plan correctly described the manner in which the Act should apply.

The Mining Board concluded that the Impact Plan was correct in its projections concerning the impacts to Libby. Further, the Mining Board concluded that these increased costs required application of the Tax Base Sharing Act and that the triggering of the act meant that all affected counties and municipalities must be considered, which here includes Libby, Lincoln County and Sanders County.

The Mining Board finally concluded that the Impact Plan did not correctly reflect a reasonable correspondence between the occurrence of increased costs and the allocation of taxable valuation. It, therefore, modified the Impact Plan’s allocation of such funds pursuant to § 90-6-404(5), MCA. Under the modified plan adopted by the Mining Board, Sanders County would receive 20% of the anticipated gross proceeds of the taxable valuation of the project, and the remaining 80% would be distributed during the first five years as proposed in the Impact Plan. In year six, the Mining Board affirmed that the first 20% would go to Sanders County, and that as to the remaining 80%, 15% of the remaining 80% of Sanders County’s gross proceeds valuation as well as 15% of the mineral development valuation of Lincoln County, would be allocated to Libby. The remainder of such 80% was to be allocated between Lincoln and Sanders Counties based upon their respective contributed taxable valuations. Under § 90-6-404(2), MCA, the allocation to Libby becomes a part of Lincoln Comity’s tax base and represents a part of Lincoln County’s share of the taxable valuation.

Lincoln County brought an action in District Court seekingjudicial review pursuant to the Montana Administrative Procedure Act (MAPA) of the Mining Board’s decision. Section 2-4-702, MCA. The District Court affirmed the Mining Board’s decision. Lincoln County appeals the District Court’s affirmation.

INTRODUCTION

The legislature recognized that large scale mining operations impact the localities that surround a mining site by producing an influx of new people who in turn put additional stress on a government’s financial resources. Impact plans created by a mine’s developer pinpoint areas where financial stress is anticipated. When such stress is identified, the Hard Rock Mining Impact Property Tax Base Sharing Act is automatically triggered. The Tax Base Sharing Act allocates funds between affected localities. In this instance, those funds would come from prepaid property taxes and the developer would receive a credit for such taxes until the mine is in production. In this way local governments affected by the mine opening receive compensation prior to the mine going into production.

The Impact Act states the purpose for requiring impact statements:

Declaration of necessity and purpose. The large-scale development of mineral deposits in the state may cause an influx of people directly related to the area of the development. This influx of people and the corresponding increase in demand for local government facilities and services may create a burden on the local taxpayer. There is a significant lag time between the time when additional facilities and services must be provided and the time when additional tax revenue is available as a result of the increased tax base. In addition, local government units in whatever jurisdiction the development is not located may receive substantial adverse economic impacts without benefit of a major increased tax base in the future. There is therefore a need to provide a system to assist local government units in meeting the initial financial impact of large-scale mineral development.

Section 90-6-301, MCA.

It is within this framework of the legislature’s intent that we consider the following issues.

I.

Did the District Court err in ruling that Lincoln County could not challenge the standing of Sanders County to object to an administrative decision?

Lincoln County argues that the Mining Board can only modify an impact plan where objections were made to parts of the plan. Here, according to Lincoln County, Sanders County admitted it will suffer no increased costs of any kind and therefore, cannot object to the allocation of taxation. Further, Lincoln County argues that it objected to Sanders County’s standing with the District Court and can, therefore, object to this Court.

Sanders County contends that Lincoln County did not raise the issue of standing to the Mining Board and cannot, therefore, raise it before the District Court or this Court.

The District Court determined that Lincoln County had not raised the standing issue before the agency and could not, therefore, raise it before the courts. MARA specifically prohibits parties from raising an issue for the first time on judicial review:

Initiating judicial review of contested cases....
(1) (b) A party who proceeds before an agency under the terms of a particular statute shall not be precluded from questioning the validity of that statute on judicial review, but such party may not raise any other question not raised before the agency unless it is shown to the satisfaction of the court that there was good cause for failure to raise the question before the agency.

Section 2-4-702(l)(b), MCA.

The District Court determined that Lincoln County had not shown good cause for its failure to raise the question before the agency. A review of the record indicates that the District Court was correct in this assessment.

We conclude that Lincoln County cannot raise on judicial review something that it did not raise before the agency itself. Therefore, we hold that the District Court did not err in ruling that Lincoln County could not challenge the standing of Sanders County to object to an administrative decision.

II.

Did the District Court err in determining that the Mining Board did not exceed its authority pursuant to § 90-6-307(8), MCA, of the Hard-Rock Mining Impact Act and § 90-6-404(5), MCA, of the Property Tax Base Sharing Act when it amended the Montanore Plan’s allocation of taxes?

The Hard-Rock Mining Impact Act allows the Mining Board 60 days following a hearing to make findings to those portions of the impact plan which have been objected to, and if appropriate, amended by the Mining Board. Section 90-6-307(8), MCA. Also, the Tax Base Sharing Act enables the Mining Board to modify an approved impact plan, as well as one modified pursuant to § 90-6-311, MCA, because the impact plan did not mention a governmental unit which will be adversely affected. Section 90-6-404(5), MCA. The Mining Board’s ability to modify the plan is defined as “modification ... needed in order to ensure a reasonable correspondence between the occurrence of increased costs resulting from the mineral development and the allocation of taxable valuation resulting from the mineral development.” Section 90-6-404(5), MCA.

The District Court determined that the Mining Board had a great deal of discretion when modifying an impact plan and had not abused its discretion. We determine that this issue involves a question of interpretation of statutes. Such interpretation is a legal conclusion which this Corut will review as to whether the District Court was correct. Steer Inc. v. Department of Revenue (1991), 245 Mont. 470, 803 P.2d 601.

Under § 90-6-404(5), MCA, the Mining Board may modify the Impact Plan if it finds a reasonable connection between the impact on a governmental unit and the allocation of taxable valuation.

Lincoln County argues that the Mining Board can only modify the formula set up by the legislature in subsections (2) through (4) of § 90-6-404, MCA. That formula, argues Lincoln County, provides only adjustments to counties that will suffer financially because of an influx in workers. According to Lincoln County, Sanders County is not such a county sustaining loss. Sanders County contends that it is an affected county and that the Mining Board’s allocation to it was indicative of a “reasonable connection” to the taxable valuation of the mineral development.

Section 90-6-404(5), MCA, provides:

(5) The distribution formula specified in subsections (2) through (4) may be modified by an impact plan approved as provided in 90-6-307 or amended as provided in 90-6-311, if the modification is needed in order to ensure a reasonable correspondence between the occurrence of increased costs resulting from the mineral development and the allocation of taxable valuation resulting from the mineral development.

We conclude that the statute includes Sanders County in any permissible modification. While paragraphs (2) through (4) of the code section deal with the influx of workers to local areas, the statute also provides that the modifications under §§ 90-6-307 and 311, MCA, of the act are permitted in order to ensure reasonable correspondence between increased costs and valuation.

As previously described, the Mining Board first allocated 20% of the taxable valuation increase to Sanders County because it is the site of the ore deposit. Sanders County is entitled to that amount even though it fails to prove adverse financial impact. The Mining Board then considered the remaining 80% of taxable proceeds during year six and awarded 15% of the remaining 80% to the City of Libby. This percentage represents concrete projections presented to the Mining Board. The Mining Board then allocated the remainder of the 80% between Lincoln and Sanders Counties based upon each county’s respective contributed taxable valuation.

This formula results in Sanders County receiving an amount in addition to the required 20% minimum. We have previously affirmed the portion allocated to Libby based upon the costs which are allocated to it. The Mining Board then divided between Lincoln County and Sanders County based upon their taxable valuation. We emphasize that such division is over and above any projected cost to the two counties related to the mining project. We conclude that such a division is reasonable.

An important fact in the District Court’s review of the Mining Board’s consideration is that the actual costs involved to surrounding localities amount to only the costs (projected to be 15% of 80% of total mineral development worth of the mine) to Libby. All other revenues the District Comb describes as a “windfall.” The District Court here makes a distinction between compensation for loss (to finances of Libby where workers reside) and surplus, the increased property valuation of the two counties caused by the mine development where no compensation for loss is a factor. In other words, the Mining Board determined and the District Court agreed that after the first five years Lincoln County would have increased in property valuation enough that it would not need tax base sharing to cover any costs caused by the mine.

On the other hand, the Mining Board and the District Court were cognizant that Sanders County was not in such a good position even though it contained the ore body, because the majority of increased property valuation after year 5 would be in Lincoln County. The Mining Board’s analysis shows a reasonable connection between the counties and their respective positions in the Impact Plan.

We hold the District Court did not err in determining that the Mining Board did not exceed its authority pursuant to § 90-6-307(8), MCA, of the Hard-Rock Mining Act and § 90-6-404(5), MCA, of the Tax Base Sharing Act when it amended the Montanore’s allocation of taxes.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, HUNT and GRAY concur.


author: JUSTICE HUNT

text:
    RAY D. GANDY and NORMA L. GANDY, Plaintiffs, Appellants, and Cross-Respondents, v. JANET E. ESCHLER, individually, and LORI L. ESCHLER and BURKE ESCHLER, Personal Representatives of the Estate of JAMES P. ESCHLER, Defendants, Respondents, and Cross-Appellants.
    No. 93-104.
    Submitted on Briefs June 10, 1993.
    Decided November 2, 1993.
    50 St.Rep. 1357.
    261 Mont. 355.
    862 P.2d 1116.

      For Appellants: Kenneth E. O’Brien, Hash, O’Brien & Bartlett, Kalispell.
    For Respondents: Donald Harris and Steven R. Milch, Crowley, Haughey, Hanson, Toole & Dietrich, Billings (Janet Eschler); Jerome Cate, Cate Law Firm, Whitefish (Estate of James P. Eschler
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellants Ray and Norma Gandy appeal from an order of the Thirteenth Judicial District Court, Yellowstone County, granting partial summary judgment to respondents Janet, Lori, and Burke Eschler, personal representatives of the Estate of James P. Eschler. The order denied Gandys’ claim that the Eschlers specifically perform on a contract for deed for real property located in Yellowstone County. Gandys also contest the amount of award for attorney fees. Eschlers cross-appeal on the award of attorney fees.

We affirm.

Appellants present one issue on appeal which we rephrase as follows:

1. Did the District Court err in granting partial summary judgment when it ruled that Gandys were not entitled to specific performance?

Eschlers cross-appeal with the following issue:

2. Did the District Court err in granting attorney fees to Gandys when they did not prevail on the motion for partial summary judgment?

Appellants also appeal the amount of attorney fees.

On December 22, 1977, William and Sally Fried entered into a contract for deed with Richard and Jeannie Martin for rental property located in Yellowstone County. The parties placed the contract in escrow.

On September 29,1983, Martins sold the same property to James and Janet Eschler using a contract for deed. The purchase price of the contract was $315,000, which included a $50,000 down payment. On the date of execution, Martins placed a warranty deed in escrow. Eschlers purchased subject to the December 22, 1977, underlying contract, but did not assume the contract.

On October 4,1984, Martins assigned their sellers’ interest in the 1983 contract to a party known as Avrill. On December 12,1985, Avrill assigned his seller’s interest to Gandys for $80,000.

In June 1987, Eschlers notified Gandys that no further monthly payments would be made upon the contract. At that time, Eschlers had made all payments when due. On July 6,1987, Eschlers notified Gandys that they would furnish a quitclaim deed in return for a release from further obligation.

From August 1987, until March 1988, the parties attempted to negotiate a resolution to the problem. On March 30,1988, the parties entered into a written agreement wherein Eschlers agreed to pay $20,000, with interest, to Gandys for satisfaction of Gandys’ claim for the balance due and owing under the September 29,1983, agreement. At the time the parties entered into the second agreement, Frieds gave both parties notice of default and repossessed the real estate in December 1987.

Eschlers did not make timely payments and defaulted on the March 30,1988, agreement. On April 24,1991, Gandys initiated this action under the March 30,1988, agreement seeking the underlying contract price of $258,640, plus interest, or in the alternative, Gandys sought $20,000 from the breach of the March 30,1988, contract. On May 27,1992, Eschlers filed a motion for partial summary judgment on the basis that Gandys’ claim for specific performance failed as a matter of law. On August 6,1992, the District Court granted Eschlers’ motion for partial summary judgment. On August 17,1992, Eschlers filed an offer of judgment for $20,000, which included all costs incurred at that time. Gandys did not respond to the offer, but instead filed a motion for reconsideration. On December 23, 1992, Eschlers filed a motion for entry of judgment on the balance remaining on the 1988 contract, which the District Court granted. The court entered judgment in favor of Gandys for $15,757.53 and $1,200.00 in attorney fees. Gandys appeal the judgment of the District Court.

I.

Did the District Court err in granting partial summary judgment when it ruled that Gandys were not entitled to specific performance?

When determining whether a district court erred on a motion for summary judgment, our standard of review is the same as that of the district court. It is proper for the district court to grant summary judgment when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. The court may examine the pleadings, depositions, answers to interrogatories, and admissions in the record to establish facts to determine if the applicable law warrants the granting of summary judgment. Kondelik v. First Fidelity (Mont. 1993), 857 P.2d 687, 692, 50 St. Rep. 874, 876-77.

Gandys contend that the District Court should have allowed them to sue for the balance of the purchase price of the underlying contract because it was Eschlers who defaulted and prevented Gandys from vesting Eschlers with title. In essence, Gandys argue that persons who prevent the performance of the terms of the contract cannot avail themselves of the nonperformance which their actions have prevented.

We have stated that:

A request for a money judgment for the balance of the purchase price which may be awarded in an action at law has been deemed identical to a decree of specific performance, which requires the buyer to pay the balance of the purchase price. That being so, once the buyers have paid the money judgment, the seller must convey title to the property. Such would be required if the decree were of specific performance; and since the money judgment has been deemed identical to a decree for specific performance, the money judgment carries with it the same requirement that the seller perform. [Citation omitted].

Glacier Campground v. Wild Rivers, Inc. (1979), 184 Mont. 543, 560-61, 597 P.2d 689, 699.

To obtain specific performance, both parties must be able to perform their obligations of the contract. Section 27-1-414, MCA. Here, for Gandys to succeed on their claim for specific performance they must be able to convey title of the Yellowstone County land to Eschlers.

Gandys maintain that they are not required to perform their end of the 1983 contract because Paragraph 4 of the March 30,1988, contract releases and discharges them from performing any obligation resulting from the September 29,1983, agreement. Gandys also contend that Paragraph 5 of the March 30,1988, contract allows them to sue for the full balance of the purchase price of the underlying contract.

Paragraph 4 states:

ESCHLERS hereby release and forever discharge GANDYS from the performance or non-performance of any duties or obligations, as well as any and all other liabilities resulting from, arising out of, or in any way associated with said agreement dated September 29,1983.

When determining the intention of the parties, we look to the contract as a whole to determine its meaning and not be bound by a single provision or expression. St. Paul Fire & Marine Ins. Co. v. Cumiskey (1983), 204 Mont. 350, 363, 665 P.2d 223, 229.

The contract contains mutual release language. Paragraph 3 discharges Eschlers from their obligation only upon the payment of the $20,000. Paragraph 3 states:

Upon compliance of Paragraph 1, above, by payment in full sum of Twenty Thousand Dollars ($20,000.00), plus interest, GANDYS hereby release and forever discharge ESCHLERS from the performance or non-performance of any duties or obligations, as well as any and all other liabilities resulting from, arising out of, or in any way associated with said agreement dated September 29,1983.

Upon reading Paragraph 3 with Paragraph 4, it becomes clear that the parties mutually agreed to release each other from their respective obligations under the September 29,1983, contract. Accordingly, Gandys are still required to convey title of the Yellowstone County property when suing for the balance of the purchase price of the underlying contract. Gandys cannot compel specific performance because they no longer have title to the land.

Our analysis does not stop here. Assuming arguendo that if the District Court compelled Eschlers to specifically perform under the contract, Gandys would receive the full purchase price for the land, Martins would have title to the land, and Eschlers would be left with nothing. We will not compel specific performance when it becomes oppressive upon the party required to specifically perform. Section 27-1-413, MCA. Under these circumstances, enforcing specific performance would operate harshly against Eschlers. We hold that the District Court did not err in granting summary judgment.

II.

Did the District Court err in granting attorney fees to Gandys when they did not prevail on the motion for partial summary judgment?

Paragraph 6 of the March 30, 1988, contract provides for the following:

In the event that either party shall institute legal action for the enforcement of any right, obligation, provision or covenant of this agreement, they shall be entitled to a reasonable attorney’s fee in addition to costs of suit.

The right to attorney fees is reciprocal to all parties to the contract in any action based on the contract, despite which party initiates the action. Carey v. Wallner (1986), 223 Mont. 260, 267, 725 P.2d 557, 562; § 28-3-704, MCA. The prevailing party suing under the contract has the right to attorney fees. Section 28-3-704, MCA.

Eschlers claim that they are the prevailing party because they have successfully defended against Gandys’ specific performance claim. In addition, Eschlers filed a motion for summary judgment for the unpaid portion of the $20,000 obligation. Gandys did not oppose the motion and the District Court granted summary judgment.

When Eschlers filed their answer and motion to dismiss to Gandys’ amended complaint and their motion for partial summary judgment, along with the briefs submitted, they stated that Gandys should take nothing by way of their complaint. Gandys, in addition to their specific performance claim, requested a judgment for “such other sum as the Court may conclude resulted from the Defendant’s breach of the March 30, 1988, Agreement.” This is presumably the unpaid portion of the $20,000. The court granted summary judgment for the requested amount. We hold that since Gandys prevailed in obtaining a judgment for the unpaid portion of the March 30, 1988, contract then the District Court did not err in granting attorney fees.

Finally, Gandys complain that the District Court erred in the amount of attorney fees that it granted. Gandys offer no authority for this proposition.

The district court has discretion to determine the amount of attorney fees. Stewart v. Casey (1979), 182 Mont. 185, 193, 595 P.2d 1176, 1181. We will not overturn a district court’s decision absent an abuse of discretion. Gandys’ attorney filed an affidavit stating that attorney fees amounted to $2762 when working for 27 hours at a rate of $85 an hour from the time the action commenced until August 17, 1992, and adding an additional 5.5 hours for work performed after August 17, 1992. On August 17, 1992, Eschlers filed an offer of judgment for $20,000. The District Court determined that the request for attorney fees was not reasonable and awarded $1200 in fees.

Apparently, the court concluded that Gandys had an early opportunity to settle the claim for $20,000, but created delay. In the partial summary judgment order, the court stated that it would be inclined to grant summary judgment for Gandys on their claim for breach of the March 30, 1988, contract. Eschlers filed an offer of judgment of $20,000 after the court granted partial summary judgment. Gandys did not accept the offer and the court entered a judgment for less than the offer. Rule 68, M.R.Civ.P. The court stressed that there was a change of venue, Gandys amended their complaint, and Gandys requested a motion to reconsider the partial summary judgment. We hold that the District Court did not abuse its discretion when it determined the amount of attorney fees.

We affirm.

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


text:
    IN RE THE MARRIAGE OF: ELIZABETH A. MURPHY, Petitioner-Appellant, and KENNETH R. MURPHY, Respondent-Respondent.
    No. 93-022.
    Submitted on Briefs June 10, 1993.
    Decided November 2, 1993.
    50 St.Rep. 1360.
    261 Mont. 363.
    862 P.2d 1143.

      For Petitioner-Appellant: Joan E. Cook, Miller & Cook, Great Falls.
    For Respondent: Marcia Birkenbuel, Great Falls.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an action from the Eighth Judicial District Court, Cascade County, granting a dissolution and apportioning the marital estate. Petitioner wife appeals the court’s division of the marital estate and specifically the court’s exclusion of her husband’s Veteran’s Administration (VA) disability benefits from the marital estate. Affirmed.

We consider the following question on appeal: Did the District Court abuse its discretion in dividing the marital estate without sufficient consideration of the parties’ opportunities for future income or by failing to consider Kenneth’s VA disability benefits in the marital estate?

Elizabeth A. Murphy (Elizabeth) and Kenneth R. Murphy (Kenneth) were married on December 15,1970 in Basle, Switzerland. Two children were born to the couple. Elizabeth did not work outside the home during the marriage. Kenneth served in the United States Air Force from 1962 until 1990.

After Kenneth’s retirement, the Department of Veteran’s Affairs determined that he was one hundred percent service related disabled. He currently receives VA disability payments of $1849 per month.

Elizabeth filed a petition for dissolution and the matter was heard by the trial court on August 19, 1992. The parties stipulated joint legal custody of the one minor child with primary custody awarded to Kenneth. The parties further agreed that Kenneth would not seek child support if Elizabeth would not seek maintenance.

In its conclusions of law, the District Court granted dissolution of the marriage and joint legal custody of the minor child, with primary custody to Kenneth. The court ordered that each party pay fifty percent of the remainder of the child’s medical bills after insurance coverage. Further, the court determined as a matter of law, Kenneth’s VA disability pay is not a marital asset. The court stated that it had considered all the relevant factors set out in § 40-4-202, MCA, when dividing the marital estate.

Did the District Court abuse its discretion in dividing the marital estate without sufficient consideration of the parties’ opportunities for future income or by failing to consider Kenneth’s VA disability benefits in the marital estate?

In considering a district court’s division of marital property, we will not discount the considerable discretionary power that must be exercised by the district courts in these cases. Marriage of Hamilton (1992), 254 Mont. 31, 835 P.2d 702. We review a district court’s findings of facts relating to the division of marital property by determining whether the findings are clearly erroneous. Marriage of Danelson (1992), 253 Mont. 310, 833 P.2d 215. We will review a district court’s legal determinations to see if the court’s conclusions are correct. Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601.

However, district courts must make discretionary decisions, using reasonable judgment and relying on common sense, in an attempt to make an equitable division of property. Hamilton, 254 Mont. at 36, 835 P.2d at 704. These discretionary judgments made by the trial court are presumed to be correct and will not be disturbed by this Court absent an abuse of discretion. Danelson, 253 Mont. at 317, 833 P.2d at 219-220.

Elizabeth here argues that according to In re Marriage of Cooper (1990), 243 Mont. 175, 793 P.2d 810, the District Court should have considered Kenneth’s disability pay when evaluating each spouse’s potential future income. Elizabeth reasons that despite the U.S. Supreme Court decision of Mansell v. Mansell (1989), 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675, which clearly directed State courts that a serviceperson’s Veteran’s Administration (VA) disability pay cannot be considered as part of a marital estate, courts must consider this type of disability pay when determining the parties’ potential future income. Kenneth’s receipt of VA disability pay means that he has at least a future income of about $2,000.

Kenneth argues that the District Court did not err in excluding his disability pay from the marital estate. Kenneth also argues that the court properly considered the elements of § 40-4-202, MCA, including potential future income. According to Kenneth, the District Court equitably apportioned the marital estate. Kenneth further asserts that the failure of the court to state with particularity each party’s future acquisition of income is inconsequential.

The District Court divided the marital property equally between the parties. First, we point out that on appeal to this Court, Elizabeth’s counsel centers her argument on our Cooper decision. The District Court did not cite Cooper, it followed the earlier U.S. Supreme Court case of Mansell. Mansell interpreted portions of the federal Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. §1408 (the Act.)

We stated in Cooper:

Robert’s third citation of error concerns the inclusion of his military pension and disability benefits in the marital estate. It is well settled that military retirement benefits are a marital asset. In re the Marriage of Luisi (1988), 232 Mont. 243, 246, 756 P.2d 456, 458-59. As concerns the disability benefits, the District Court may properly include in the marital estate any property “however and whenever acquired.” Section 40-4-202(1), MCA. The District Court awarded no portion of either asset to Linda. Both the military pension and disability benefits were properly included in the marital estate.

Cooper, 243 Mont. at 178-179, 793 P.2d at 812. Such inclusion in the marital estate of the “VA” disability benefits is an incorrect analysis of the law following the Mansell decision. Cooper involved VA disability benefits and for this reason the Cooper decision was incorrectly decided with regards to VA disability benefits. Cooper remains precedent for other kinds of military disability and for military retirement.

The District Court here correctly placed precedent on Mansell’s interpretation of the Act and not our own Cooper decision. The Mansell decision cited by the District Court as precedent for exclusion of Kenneth’s disability pay in the marital estate provides:

... the question is one of statutory construction .... its language is both precise and limited. It provides that “a court may treat disposable retired or retainer pay .... either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court .... The Act’s definitional section specifically defines the term “disposable retired or retainer pay” to exclude, inter aha, military retirement pay waived in order to receive veterans’ disability payments .... Thus, under the Act’s plain and precise language, state courts have been granted the authority to treat disposable retired pay as community property.... not.... the authority to treat total retired pay as community property ....

Mansell, 490 U.S. at 588-589, 109 S.Ct. at 2032, 104 L.Ed.2d at 685.

The Act defines the disposable retired or retainer pay as not including YA disability specifically. All other military disability pay and retirement pay may be considered by state courts as community property, i.e. divisible property. Mansell and the Act make it clear that the VA disability pay is personal to the service person and is meant to compensate the service personnel for his or her loss of working ability.

The majority of jurisdictions which we researched, interpreted Mansell to bar inclusion of this personal pay in the total ascribed to the combined marital estate. In re Marriage of Kraft (Wash. 1992), 832 P.2d 871; Rothwell v. Rothwell (Tex.App 1989), 775 S.W.2d 888; Davis v. Davis (Ky. 1989), 777 S.W.2d 230; Jones v. Jones (Haw. App. 1989), 780 P.2d 581; Lambert v. Lambert (Va. App. 1990), 395 S.E.2d 207; Riley v. Riley (Md.App. 1990), 571 A.2d 1261; Murphy v. Murphy (Ark. 1990), 787 S.W.2d 684; In re Marriage of Franz (Col.App. 1992), 831 P.2d 917; Maxwell v. Maxwell (Utah App. 1990), 796 P.2d 403; Toupal v. Toupal (N.M. App. 1990), 790 P.2d 1055.

The Mansell Court was cognizant that the impact its interpretation of the Act could have on former spouses of service people could be adverse:

We realize that reading the statute literally may inflict economic harm on many former spouses. But we decline to misread the statute in order to reach a sympathetic result....

Mansell, 490 U.S. at 594, 109 S.Ct. at 2036, 104 L.Ed.2d at 689. Despite its reluctance the Court held that:

the Former Spouses’ Protection Act does not grant state courts the power to treat as property divisible upon divorce military retirement pay that has been waived to receive veterans disability benefits. (Emphasis added.)

Mansell, 490 U.S. at 594-95, 109 S.Ct. at 2036, 104 L.Ed.2d at 689. The District Court correctly refused to include Kenneth’s disability in the marital estate. We conclude it is necessary that we modify the Cooper decision to meet Mansell requirements. We hold that the Cooper decision is limited as follows:

Our courts may not include in a marital estate military retirement pay which has been waived in order to receive veterans’ disability benefits from the United States.

Elizabeth argues that while Mansell is controlling, its holding does not prohibit this Court from consideration of Kenneth’s disability as part of his potential future income. Our legislature has specifically provided that combs must consider the potential future earning power of the parties when making its division of the marital estate. Section 40-4-202, MCA. Kenneth’s VA disability benefits are part of his future income earning potential. Here, the court considered the fact that Kenneth would have almost $2,000 a month of income in the future for as long as he lived.

While the court was presented with detailed information concerning Kenneth’s present economic needs and potential for future income, it was not presented with such detailed information concerning Elizabeth’s economic needs or future income. The court did find, and the record bears out, that Elizabeth earned about $500 per month and could live on that sum.

We conclude that the court did not abuse its discretion in dividing the marital estate because it considered, pursuant to § 40-4-202, MCA, Kenneth’s disability pay as well as what little information it was provided concerning Elizabeth’s economic needs and income earning potential. We, therefore, hold that the court’s findings of fact are not clearly erroneous and thus, the court did not abuse its discretion in dividing the marital estate or err in determining that ■under Mansell, Kenneth’s disability should not be included in the total of the marital estate.

Affirmed.

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


text:
    STATE OF MONTANA, Plaintiff & Respondent, v. JULIE NEELY, Defendant & Appellant.
    No. 93-206.
    Submitted on Briefs September 23, 1993.
    Decided November 2, 1993.
    50 St.Rep. 1363.
    261 Mont. 369.
    862 P.2d 1109.

      Appeal from the District Court of Hill County.
    For Defendant and Appellant: Lawrence A. LaFountain, Havre.
    For Plaintiff and Respondent: Hon. Joseph P. Mazurek, Attorney General, Carol E. Schmidt, Assistant, Helena; David G. Rice, Hill County Attorney, Havre.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a judgment of the Twelfth Judicial District Court, Hill County, convicting appellant of misdemeanor possession of marijuana and sentencing her to six months suspended sentence and fining her $100.

We consider the following issues on appeal:

1. Did the District Court abuse its discretion in denying Neely’s request to suppress evidence obtained at her residence because the search warrant contained stale information?

2. Did the District Court err in determining that Julie Neely was guilty of constructive possession of dangerous drugs?

In the spring of 1992, the Tri-Agency Task Force hired Alex Doney (Doney) as an informant in an attempt to get information concerning a mobile home at 1431 Sixth Street, Havre, Montana. On April 21, 1992, Doney went to the residence at which Julie Neely (Neely) and Rich Berger (Berger) lived in order to purchase marijuana. A party was in progress and lasted into the morning hours of April 22,1992. Both Berger and Neely were at the mobile home when Doney bought two bags of marijuana from Pete Barrows (Barrows). Doney testified that he had seen ten to fifteen bags of marijuana in the house during the party. He bought some and told those present that he would return the next day for additional bags.

Doney returned to the residence on the following day to inquire about purchasing more marijuana. Like the day before, Doney was wired with an electronic transmitter. Neither Barrows nor Berger had any marijuana at this time. Berger and Neely left the mobile home to go and find marijuana for Doney. Berger returned with two grams and subsequently sold it to Doney for twenty dollars.

Doney again returned to the trailer on April 23,1992, to buy more marijuana. By this time, the police had obtained a search warrant. Doney started to make another purchase and in so doing gave the code word for the deputy sheriffs to come in. Someone present saw the police and yelled “cops,” which incited those present into motion.

The officers searched the mobile home; they found two bags of marijuana between the mattresses in the bedroom where Berger and Neely slept. They also found books regarding marijuana sales. All persons present were arrested.

On April 24,1992, Neely was charged in Hill County with criminal possession of dangerous drugs in violation of § 45-9-102(2), MCA. A bench trial was held on August 28,1992, before a justice of the peace. Neely was found guilty and fined $115. Neely appealed to the Twelfth District Court. A suppression hearing was held and the court denied Neely’s motion to suppress the evidence, ruling that the information in the search warrant was not stale as Neely claimed.

The court found Neely in constructive possession of marijuana and therefore, guilty of possession of marijuana in violation of § 45-9-102(2), MCA. Neely was given a six month suspended sentence provided she remained law-abiding and a $115 fine. Neely filed an appeal on March 9, 1993.

I.

Did the District Court abuse its discretion in denying Neely’s request to suppress evidence obtained at her residence because the search warrant contained stale information?

Neely argues that although police have ten days time to execute a search warrant and the warrant in the instant case was executed in less than 48 hours, the warrant was stale because of the attendant circumstances. According to Neely, the purpose of the search warrant was to search for drugs that were at the residence during the party on April 21,1992, and the police knew that the party was over when they finally executed the warrant two days later. Because the party was over and the drugs were gone, Neely argues that police needed more probable cause to have a search warrant issue.

According to the State, the alleged stale information, was not stale when the warrant was issued. The State argues that the issue on appeal is not whether the information was stale, but whether the officers executed the warrant in a timely manner. The State cites § 46-5-225, MCA, for the proposition that officers have ten days in which to execute a search warrant. Further, the State argues that a court must consider the totality of the circumstances when reviewing the sufficiency of a warrant and should not consider statements from the application singularly.

The test for determining probable cause for issuance of a search warrant is the “totality of the circumstances” test. State v. Van Voast (1991), 247 Mont. 194, 805 P.2d 1380. An affidavit supporting a search warrant is to be interpreted by the magistrate and examined by the reviewing court in a common-sense, realistic fashion. State v. O’Neill (1984), 208 Mont. 386, 679 P.2d 760. The issuing magistrate must only determine that there is a probability, not a prima facie showing of criminal activity. O’Neill, 208 Mont. at 393, 679 P.2d at 764. Our review of the sufficiency of the affidavit is not de novo and the magistrate’s determination will be paid great deference. State v. Sundberg (1988), 235 Mont. 115, 765 P.2d 736.

We first note that Neely has missed the focal point of whether the search and seizure were illegal. Section 46-5-225, MCA, states:

When warrant may be served. The warrant may be served at any time of the day or night. The warrant must be served within 10 days from the time of issuance. Any warrant not served within 10 days is void and must be returned to the court or the judge issuing the warrant and identified as “not served.”

This statute clearly allows police ten days from the date of issuance to execute the warrant. Neely argues that when the warrant was executed two days after its issuance, the party was over and the drugs were gone. We point out that it was not the party that was the focal point of the warrant application, it was the residence at which the party was being held. The residence was described with particularity as were the events taped by the informant who made the controlled purchase.

A showing of facts in the application for search warrant is required to establish there is probable cause to believe that contraband or evidence is to be found at the place to be searched at the time the warrant is issued.

State v. Valley (1992), 252 Mont. 489, 492, 830 P.2d 1255, 1257.

With such standards, Neely’s contention that the warrant was not executed until after the party was over and the drugs were gone has little persuasive effect. The facts found within the four corners of the application indicate that a sale of drugs had taken place on the same day the warrant was requested. This is not stale information; it could hardly be any closer in time.

We conclude that as long as a warrant is executed within ten days from its issuance, as set by our legislature in § 46-5-225, MCA, the warrant itself is not stale. Because the warrant was properly issued and contained information which established probable cause, the court had no obligation to suppress evidence gained from the search and seizure. The burden of proving the illegality of the search and seizure fell to Neely. O’Neill, 208 Mont, at 396-97, 679 P.2d at 765. She did not meet that burden. We hold that the District Court did not abuse its discretion in denying Neely’s request to suppress evidence obtained at her residence because the search warrant contained stale information.

II.

Did the District Court err in determining that Julie Neely was guilty of constructive possession of dangerous drugs?

The two bags of marijuana seized during the search of Neely’s home were taken from under the mattress on Neely’s bed. She argues that just because the drugs were found in her home does not mean that she constructively possessed the contraband. Neely contends that in order to have constructive possession she had to have dominion and control over the drugs and she had neither. She argues that she does not use drugs.

The State argues that a conviction for the offense of criminal possession of dangerous drugs requires the State to demonstrate a person’s (1) knowing (2) control of a (3) dangerous drug for a sufficient time to be able to terminate control. Further, the State argues that whether Neely used drugs herself is not at issue here.

Neely cites State v. Gorder (1991), 248 Mont. 336, 811 P.2d 1291, for the proposition that she cannot be held liable for drug possession merely because the drugs were found in her bed. Gorder is not precedent for the fact situation before us. Gorder involved a travel trailer which had been put into storage and not used for some time. The trailer had been broken into after which police found a folded ten-dollar bill with cocaine on it. Gorder was not found in constructive possession of the cocaine because there was no evidence linking him to the drugs.

Unlike Gorder, Neely lived on a day-to-day basis within the trailer where the drugs were found. Also unlike the facts of Gorder, police here established that Neely had a connection to the drugs. She had been present when the drugs were sold, when the drugs were used, and even when Berger went to find drugs on the street to sell to Doney.

We have established that possession can be either actual or constructive.

Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another person.

State v. Meader (1979), 184 Mont. 32, 43, 601 P.2d 386, 392. We have clarified this holding in subsequent cases, holding that in order to prove constructive possession, the State must prove (1) knowing (2) control of a (3) dangerous drug for sufficient time to be able to terminate control. Gorder, 248 Mont. at 338, 811 P.2d at 1292.

The record before us reveals that the drugs were found in Neely’s bedroom. This room is certainly immediately and exclusively under the dominion and control of Neely or Neely and Berger jointly. The record also shows that Neely was present when drugs were sold and used in her residence. Neely could have terminated control of the drugs at any time during or after the party by having them taken off the premises. She did not do so. Therefore, we conclude that all of the elements necessary for the court to determine constructive possession have been satisfied.

We hold that the District Court did not err in determining that Julie Neely was guilty of constructive possession of dangerous drugs.

Affirmed.

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


author: JUSTICE HARRISON

text:
    COLORADO NATIONAL BANK OF DENVER, a National Banking Association, Plaintiff and Respondent, v. MARK C. STORY and JUDY STORY, Defendants and Appellants.
    No. 93-301.
    Submitted on Briefs September 9, 1993.
    Decided November 2, 1993.
    50 St.Rep. 1366.
    261 Mont. 375.
    862 P.2d 1120.

      For Defendants and Appellants: Gregory O. Morgan, Attorney at Law, Bozeman.
    For Plaintiff and Respondent: Keith A. Christie; Peterson & Schofield, Billings.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Defendants appeal a judgment from the Eighteenth Judicial District Court, Gallatin County, finding them liable to the plaintiff for money due, as well as attorney’s fees and costs. One issue is dispositive: what statute of limitations applies under the facts of this case?

Defendant Judy Story (Judy) applied for a Rocky Mountain BankAmeiicard (VISA card) around January 20, 1977, under her maiden name, Judy Johnson. The application itself contained no terms or conditions regarding the issuance of the VISA card. The Colorado National Bank of Denver (Bank) issued Judy a VISA card around January 27, 1977. After Judy married, she authorized her husband, defendant Mark Story (Mark), the use of the VISA card.

Judy and Mark both used the VISAcard. Judy received statements in the mail and both Judy and Mark made payments to the Bank for the charges. The last payment Judy made was on October 10, 1986. On November 13,1991, the Bank sued Mark and Judy for $5,074.52, the amount due on the VISA card account. The Bank also requested interest, costs and attorney's fees. Mark and Judy raised the statute of limitations defense, arguing that the debt was an account stated, which has a five-year statute of limitations, and that the action was time-barred.

A bench trial was held on March 19, 1993. At trial, the Bank introduced exhibits which included Judy’s original application for the VISA card and numerous copies of billing statements which were sent to Judy. This was the only evidence regarding a written contract which was introduced. After the trial, the District Court entered Findings of Fact and Conclusions of Law in which it concluded that Judy’s signature upon the application for a VISA card constituted a written acceptance of terms for a credit extension from the Bank, and that, therefore, a written contract existed. On that basis, the District Court concluded that an eight-year statute of limitations applied. In addition, the District Court found that Mark was jointly and severally liable for the debt because he was an authorized user of the VISA card. The District Court entered judgment for the Bank on the debt, and awarded attorney’s fees and costs. From that judgment, Mark and Judy appeal. We reverse.

The critical issue in this appeal involves a conclusion of law — whether the District Court properly concluded that a written contract existed. When presented with a conclusion of law, our standard of review is whether the trial court’s interpretation is correct. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.

Section 27-2-202, MCA, provides, in pertinent part:

(1) The period prescribed for the commencement of an action upon any contract, obligation, or liability founded upon an instrument in writing is within 8 years.
(2) The period prescribed for the commencement of an action upon a contract, account, or promise not founded on an instrument in writing is within 5 years.

Pursuant to this statute, if the debt at issue was founded on a written contract, the present action is not time-barred. However, if the debt is an account stated, not based upon a written contract, then the present action is time-barred.

In this case, the District Court concluded that Judy’s signature on the application for a VISA card constituted a written contract. However, the application signed by Judy does not contain any contract terms and there are no other writings in the record from which contract terms canbe extracted. No evidence was introduced that sets forth the terms of any agreed-upon interest charges or any agreed-upon terms of the repayment obligation. Nothing with Mark’s signature was introduced which would indicate the existence of a written contract. In addition, no evidence regarding an agreement to pay attorney’s fees in the event of non-payment is present here. A review of the record indicates that there is no written instrument or series of writings that can, in any way, be construed as a written contract. The statements introduced into evidence are exactly that — statements of account — and nothing more. There is no evidence in this case to support the District Court’s conclusion that a written contract existed. Accordingly, the debt at issue is an account stated, and not one founded upon a written instrument.

Because the debt at issue is an account stated and is not based upon an instrument in writing, the five-year statute of limitations applies. Here, the last date of payment on the account was October 10, 1986. Therefore, the five-year period begins running from that date. The Bank filed its complaint on November 13,1991. Therefore, the action against Mark and Judy is time-barred.

Given our holding that the statute of limitations bars this action, we need not decide whether the District Court’s imposition of joint and several liability on Mark was correct.

We note that, on appeal, Mark and Judy have requested an award of attorney’s fees on the basis of § 28-3-704, MCA, which provides that a contractual right to attorney’s fees will be treated as reciprocal. Attorney’s fees are not recoverable in a contract action unless they are provided for in the contract or by statute. Marshall v. State (1992), 253 Mont. 23, 27, 830 P.2d 1250, 1252. Here, Mark and Judy dispute the presence of any written contractual terms, and we have held that there is no written contract. There is similarly no statutory provision which would authorize an award of attorney’s fees in this case. Therefore, Mark and Judy are not entitled to an award of attorney’s fees.

We reverse and remand with instructions to the District Court to dismiss the action against Mark and Judy, with prejudice.

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


author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BRIAN E. BARKER, Defendant and Appellant.
    No. 92-496.
    Submitted on Briefs June 10, 1993.
    Decided November 2, 1993.
    50 St.Rep. 1368.
    261 Mont. 379.
    862 P.2d 1112.

      For Defendant and Appellant: William F. Hooks, Attorney at Law, Appellate Defender Office, Helena.
    For Plaintiff and Respondent: Hon. Joseph P. Mazurek, Attorney General, Elizabeth L. Griffmg, Assistant Attorney General, Helena; Mike Salvagni, Gallatin County Attorney, Gary T. Balaz, Deputy County Attorney, Bozeman.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Brian E. Barker appeals from a judgment of the District Court for the Eighteenth Judicial District, in Gallatin County, in which he was convicted of the offense of felony theft. Prior to trial, Barker had twice moved the court to dismiss for lack of a speedy trial, but these motions were denied. He appeals on the basis that he was denied his constitutional right to a speedy trial.

We reverse the conviction and dismiss.

The dispositive issue is whether Barker was denied his right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution and Article II, Section 24, of the Montana Constitution when his case did not go to trial until over 400 days after his arrest.

Barker was arrested May 9,1991, and charged by information on May 28,1991, with felony theft. He was incarcerated in the Gallatin County jail until his arraignment on June 6,1991, at which time he entered a plea of not guilty. Barker was then transferred to the Yellowstone County Detention Center for an unrelated offense and was ultimately incarcerated at the Montana State Prison for that offense.

Trial of the felony theft charge was set for October 3,1991. Barker filed several pretrial motions on September 12, after which the District Court, on its own motion, vacated the October 3 trial and rescheduled the trial for November 19,1991. On October 31, the court again vacated the trial date on its own motion and trial was reset for January 21,1992.

On January 2,1992, Barker filed a motion to dismiss the case on the ground that his right to a speedy trial under the State and Federal Constitutions had been violated. At that time, 257 days had elapsed between Barker’s arrest and the pending trial. Following a hearing on January 13, 1992, the court denied the motion to dismiss, noting that the delay was caused by “institutional difficulties.”

The January 21,1992, trial date was then continued. Neither party requested a continuance and the District Court file is unclear regarding the reason for postponement. However, the court later stated that the trial had been continued due to a crowded court calendar and a conflict with another trial on that date.

When no trial date was set, Barker filed a second motion on April 23,1992, to dismiss the case for violation of his right to a speedy trial. By then, 354 days had elapsed since his arrest. A hearing on the motion to dismiss was held on June 15,1992. The prison psychiatrist and two prison officials testified that Barker was experiencing high levels of stress and anxiety, and that the pending Gallatin County charges had impacted Barker’s eligibility for transfer to a pre-release program. Barker also testified that he had waived a parole hearing set for April 1992, because he had been told the parole board would not consider parole due to the pending charges.

The District Court denied the motion to dismiss and attributed the delay of Barker’s trial date to a “heavy trial calendar.” The court found no prejudice as a result of the delay because Barker was already incarcerated for a different offense. Furthermore, it stated that there was no definitive proof that Barker’s stress and anxiety had been caused by the pending felony theft charge, as opposed to the stress experienced from being incarcerated.

Barker’s case finally went to trial on June 24, 1992, and the jury returned its verdict on June 25, finding Barker guilty of felony theft as defined in § 45-6-301(1), MCA. Barker was sentenced to ten years in the Montana State Prison with five years suspended, the sentence to run consecutively to the prison term that Barker was already serving. From that judgment, Barker appeals.

Was Barker denied his right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution and Article II, Section 24, of the Montana Constitution when his case did not go to trial until 412 days after his arrest?

The right of any defendant to a speedy trial is guaranteed by the Federal and Montana Constitutions. U.S. Const, amend. VI; Mont. Const, art. II, § 24; State v. Hall (1990), 244 Mont. 161, 164, 797 P.2d 183, 185. The test used to determine whether the constitutional right to a speedy trial has been violated was set forth in Barker v. Wingo (1972), 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101, and was adopted by this Court in Briceno v. District Court (1977), 173 Mont. 516, 518-19, 568 P.2d 162, 163-64. When a speedy trial issue is presented, the court must evaluate and balance the following four factors:

1) length of delay;
2) reason for delay;
3) assertion of the right by the defendant; and
4) prejudice to the defendant.

State v. Heffernan (1991), 248 Mont. 67, 70, 809 P.2d 566, 567. No single factor is determinative, and each factor is weighed in light of the surrounding facts and circumstances. State v. Van Voast (1991), 247 Mont. 194, 200, 805 P.2d 1380, 1384.

The parties agree that Barker sufficiently asserted his right to a speedy trial, thereby satisfying the third prong of Barker. Therefore, the factors to be evaluated and balanced in this instance are the length and reason for delay, and whether Barker was prejudiced by the delay. This Court has made clear that the length of delay acts as a “triggering” mechanism, and the other enumerated factors need not be examined unless presumptive prejudicial delay is present. State v. Scott (1993), 257 Mont. 454, 850 P.2d 286 50 St. Rep. 353; Van Voast, 805 P.2d at 1384. Here, the State concedes that the 412 days from the date of arrest to trial is sufficient delay to trigger the remainder of the speedy trial analysis and to give rise to a rebuttable presumption of prejudice. The State further concedes that, because of the presumption of prejudice, it has the burden of providing a reasonable explanation for the delay and showing that Barker was not prejudiced by the delay. See State v. Curtis (1990), 241 Mont. 288, 787 P.2d 306; Van Voast. 805 P.2d at 1384; Hall, 797 P.2d at 186.

This Court’s analysis, therefore, focuses on whether the State met its affirmative duty to come forward with evidence to show that there was a reasonable excuse for the delay and that Barker was not prejudiced by the delay.

When analyzing the reason for delay, a court must balance the State’s actions against those of the defendant. In this case, citing State v. Hembd (1992), 254 Mont. 407, 838 P.2d 412, the State contends that the cause for the delay was purely institutional, and although chargeable to the State, it should be given only minimal weight when balancing the Barker factors. The State asserts that there is nothing in the record to indicate that the State intentionally delayed the trial to gain some tactical advantage over Barker, or to harass him, which are the types of oppressive tactics that the right to a speedy trial is designed to protect against.

There is no question in this instance that Barker was not responsible for any of the delay. He did not once ask for, nor acquiesce in the continuances. He consistently opposed them by twice asserting his right to a speedy trial. Although we agree that an institutional delay weighs less heavily than other kinds of delays in the balancing process, the record here establishes only minimal justification for this lengthy delay, other than the fact that the court had a crowded calendar.

A review of the record yields no evidence that the State attempted to reschedule the trial after the first two dates were continued by the court. Although this delay may have been unavoidable due to institutional reasons, this does not mean that the State is relieved of its responsibility and the duty to bring an accused to trial in a timely manner. State v. Wombolt (1988), 231 Mont. 400, 753 P.2d 330. Nor does the fact that Barker was already incarcerated for other reasons serve as a justification for failing to bring this case to trial for well over a year.

With regard to the continuance of the January 21 trial date, although unclear, the record suggests that Barker’s trial was preempted by another trial. However, the State has neither presented evidence with respect to the circumstances surrounding the other trial, nor has it offered any other reasons for the indefinite postponement. What is clear from the record is that no affirmative efforts were made by the State to move for another trial setting.

Because the State was unable to demonstrate either compelling circumstances to warrant such a lengthy delay, or that it diligently pursued bringing Barker’s case to trial, we conclude that, in this instance, the delay weighs heavily against the State.

We now turn to the question of prejudice. Where the trial in a criminal proceeding has been delayed, the court must consider the following interests which are protected by the right to speedy trial: (1) prevention of oppressive pretrial incarceration, (2) minimization of the defendant’s anxiety and concern, and (3) avoidance of impairment of the defense. Barker, 407 U.S. at 532, 92 S.Ct. at 2193; Van Voast, 805 P.2d at 1384.

Barker reiterates that the length of delay in this instance gives rise to a rebuttable presumption of prejudice. He also contends that the record adequately demonstrates that he was prejudiced by the pretrial incarceration and that he suffered anxiety and concern due to the delay.

Barker does not assert that his pretrial incarceration was attributable solely to the pending charges, but he argues that the delay resulted in significant and oppressive impacts with respect to his incarceration. Although we stated in Hembd, 838 P.2d at 416, that the defendant’s incarceration on another charge negated any prejudice arising from being incarcerated awaiting trial, we conclude, after reviewing the record in this instance, that there is evidence that the pending charges did affect Barker’s eligibility for pre-release and parole. The State’s only rebuttal, however, is its contention that Barker was not able to definitively show that he would have been eligible for a pre-release program in the absence of the felony theft charges. We agree there is no proof that Barker would have been eligible for a pre-release program. However, Barker did not have the opportunity to test his eligibility due to the pending charges. Therefore, this assertion by the State does not satisfy its burden of demonstrating that Barker was not prejudiced by being incarcerated while awaiting trial.

Finally, Barker contends that the record contains ample evidence that he suffered anxiety and concern over the pending charges. The State relies on the District Court’s finding that “the causes of the defendant’s anxiety cannot be determined with any degree of certainty, and the anxiety cannot be attributed to the pendency of this case.” The argument that there is no proof of prejudice in the record is not persuasive. It is the State’s burden to prove that Barker was not prejudiced and it has offered no evidence to establish that fact.

After considering the circumstances of this case and carefully balancing the Barker factors, we conclude that the State has failed to satisfy its burden of rebutting the presumption of prejudice and demonstrating a reasonable excuse for the delay. Therefore, we hold that Barker’s constitutional right to a speedy trial was violated. The U.S. Supreme Court has made clear that the remedy for a violation of one’s right to a speedy trial is reversal of the conviction and dismissal. Strunk v. United States (1973), 412 U.S. 434, 93 S. Ct. 2260, 37 L. Ed. 2d 56. On this basis; we reverse the judgment of the District Court and dismiss the charges that are the subject of this appeal.

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


author: Justice Harrison JUSTICE WEBER

text:
    BONNIE LYNN ALDERINK BENNETT, Plaintiff and Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Appellant.
    No. 92-416.
    Submitted on May 6, 1993.
    Decided November 4, 1993.
    50 St.Rep. 1371.
    261 Mont. 386.
    862 P.2d 1146.

      For Defendant and Appellant: Pamela A- Okano (argued) and William R. Hickman, Reed McClure Law Firm, Seattle, Washington; Allen P. Lanning, Conklin, Nybo and LeVeque, Great Falls.
    For Plaintiff and Respondent: Lyman H. Bennett (argued), Morrow, Sedivy & Bennett, Bozeman.
    For Amicus Curiae: Michael D. Cok (argued), Cok & Wheat, Bozeman (for Montana Trial Lawyers); Patrick R. Sheehy, Halverson, Sheehy & Plath, Billings (for Montana Trial Lawyers); Peter F. Habein and Mary E. Duncan, Crowley, Haughey, Hanson, Toole & Dietrich, Billings (for Farmers Insurance Exchange).
   Justice Harrison

delivered the Opinion of the Court.

This case is before us on a question certified to this Court by the United States Court of Appeals for the Ninth Circuit. We accepted certification by order dated August 27,1992.

Respondent Bonnie Alderink Bennett (Bennett) brought an action in the Eighteenth Judicial District Court, Gallatin County, Montana, seeking a declaration that she was entitled to the cumulative amount of the “underinsured motorist coverage” provided by two automobile insurance policies issued to Bennett and her husband by State Farm Mutual Automobile Insurance Company (State Farm). State Farm removed the case to the United States District Court for the District of Montana.

On February 14, 1991, the Honorable Paul G. Hatfield entered declaratory judgment in Bennett’s favor, holding that State Farm is required, under the terms of the underinsured motorist endorsements in the two contracts of insurance between it and the Bennetts, to extend coverage to Bennett in the amount of $100,000 for each policy. Bennett v. State Farm Mutual Automobile Insurance Co. (D. Mont. 1991), 758 F.Supp. 1388. State Farm appealed.

The Ninth Circuit heard oral argument on July 8, 1992, and subsequently issued its order certifying the following question to this Court:

Is an “other insurance” clause which prohibits stacking of under-insured motorist coverage provided by separate policies from the same insurer void as against public policy?

Bennett was a pedestrian crossing East Babcock Street in Bozeman, Montana, on October 6,1986, when she was struck by a pickup truck operated by Lloyd A. Wind. She sustained bodily injury with damages alleged to be in excess of $200,000. Wind had liability insurance with Allstate Insurance Company and on his behalf Allstate paid Bennett $100,000 on May 7,1987.

At the time of the accident Bennett was insured under two separate policies issued by State Farm in 1984. The first policy was issued to her husband, Lyman H. Bennett III, and covered a 1981 Chrysler. The second policy was issued to Bennett and covered a 1976 Oldsmobile. Both policies included “Coverage W,” for damage caused by an underinsured vehicle.

Coverage W defines an underinsured motor vehicle as one “whose limits of liability for bodily injury liability are less than the amount of the insured’s damages.” Each of the Bennetts’ policies limited State Farm’s Lability under Coverage W to $100,000 per person and $300,000 per accident. The Bennetts paid separate premiums for Coverage W on each policy.

On June 12, 1987, State Farm paid Bennett and her husband $100,000. State Farm asserts that the following “other insurance” clause in Coverage W limits its liability to $100,000:

If the insured sustains bodily injury as a pedestrian and other underinsured motor vehicle coverage applies:
a. the total limits of liability under all such coverages shall not exceed that of the coverage with the highest limit of liability; and b. we are liable only for our share. Our share is that per cent of the damages that the limit of Lability of this coverage bears to the total of aL underinsured motor vehicle coverage appLcable to the accident.

This court has consistently invalidated insurance contract clauses that limit the insurer’s liability for uninsured motorist coverage. Grier v. Nationwide Insurance Co. (1991), 248 Mont. 457, 812 P.2d 347. For example, we held in Kemp v. Allstate Insurance Co. (1979), 183 Mont. 526, 601 P.2d 20, that where separate premiums have been charged and collected on each vehicle for uninsured motorist coverage, the insured is entitled to recover up to the aggregate sum of the coverages on all the vehicles so insured. Consistent holdings appear in Sullivan v. Doe (1972), 159 Mont. 50, 495 P.2d 193; Chaffee v. U.S. Fidelity & Guaranty Co. (1979), 181 Mont. 1, 591 P.2d 1102; and Sayers v. Safeco Insurance Co. (1981), 192 Mont. 336, 628 P.2d 659. The public policy embodied in these decisions is that an insurer may not place in an insurance policy a provision that defeats coverage for which the insurer has received valuable consideration.

State Farm contends that this public policy applies only to uninsured motorist coverage, which a Montana insurer is required by § 33-23-201, MCA, to offer to all its customers. As Bennett has no statutory right to underinsured motor vehicle coverage, State Farm argues, the “other insurance” clause in her policy does not defeat public policy.

We disagree. The purpose of underinsured motorist coverage is to provide a source of indemnification for accident victims when the tortfeasor does not provide adequate indemnification. State Farm Mutual Automobile Insurance Co. v. Estate of Braun (1990), 243 Mont. 125, 793 P.2d 253. The public policy expressed in Braun, and in the earlier cases cited above, favors adequate compensation for accident victims. The absence of a statutory requirement is irrelevant, for the public policy considerations that invalidate contractual “anti-stacking” provisions in an uninsured motorist endorsement also support invalidating those provisions in an underinsured motorist endorsement.

State Farm’s second argument is that an insured cannot reasonably expect dual coverage, and that each of the Bennetts had paid for only $100,000 worth of underinsured motorist protection, not for $200,000 worth. A reasonable insured buying a policy on a second car does not expect to increase the limits of coverage on the car that he or a family member has already insured, State Farm argues, but instead expects the limits of coverage on the new policy to apply only to the car that policy insures.

This argument might be persuasive if it were not for the clear and unambiguous language of State Farm’s insurance policy, which states in Coverage W that “[w]e will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an underinsured motor vehicle.” This statement makes underinsured motorist coverage personal to the insured; coverage does not depend on the insured person occupying an insured vehicle. See Chaffee, 591 P.2d at 1104, in which we reached the same conclusion with regard to uninsured motorist coverage. Thus, Bennett could reasonably expect to recover damages up to the limit of both policies under which she was an insured and for which separate premiums had been paid.

In Transamerica Insurance Co. v. Royle (1983), 202 Mont. 173, 656 P.2d 820, we invalidated a “household exclusion” clause in an automobile liability policy because it did not honor the reasonable expectations of the insured. We reaffirmed that decision in Wellcome v. Home Insurance Co. (1993), 257 Mont. 354, 358, 849 P.2d 190, 193, 50 St.Rep. 305, 307, stating that the “reasonable expectation doctrine is in accord with our strong public policy that insurance is intended to serve a fundamental protective purpose.” We affirm it again here. Montana citizens should have a reasonable expectation that when they purchase separate policies for underinsured motorist coverage, they will receive adequate compensation for losses caused by an underinsured motorist, up to the aggregate limits of the policies they have purchased.

We answer the certified question as follows: An “other insurance” clause that prohibits stacking of underinsured motorist coverage provided by separate policies from the same insurer is void as against Montana public policy.

CHIEF JUSTICE TURNAGE, GRAY, HUNT, TRIEWEILER and DISTRICT JUDGE PURCELL (sitting in the seat made vacant by the retirement of JUSTICE McDONOUGH) concur.

JUSTICE WEBER

specially concurs as follows:

I concur with the majority conclusion because I believe that is required under previous Montana decisions. However, I wish to express grave concerns with regard to the theory of the case:

As pointed out in the majority opinion, this Court has invalidated insurance contract clauses which limited the insurer’s liability for uninsured motorist coverage. Those cases followed the 1967 enactment of § 40-4403, RCM (1947), the predecessor to § 33-23-201, MCA, which expressed the limitation that no motor vehicle liability policy should be issued unless coverage was provided for those who are legally entitled to recover damages from operators of uninsured motor vehicles. That public policy was clearly defined and adopted by the Montana Legislature. It was appropriate that such public policy as determined by the Legislature should be enforced by this Court. However, that theory does not apply to the present case.

Here we have an underinsured motorist coverage question. The Montana Legislature has not made a declaration of public policy covering underinsured motorist coverage. The majority opinion has reached the following conclusion:

Montana citizens should have a reasonable expectation that when they purchase separate policies for underinsured motorist coverage, they will receive adequate compensation for losses caused by an underinsured motorist, up to the aggregate limits of the policies they have purchased.

Unfortunately that conclusion directly contradicts the very clear provision of the insurance policy itself. Principles of contract law which are applied in other cases are not considered here. Instead we have injected a “reasonable expectation” standard with which we justify a nullification of clear contract provisions.

In the absence of a legislative policy declaration, I question that this Court has a basis to define the nature of the “reasonable expectations” of the purchasers of insurance policies. If we are free to effectively cancel contract provisions on an underinsurance theory, can that analysis on our part be applied to a cancellation of any and all other provisions in insurance contracts? Can a similar theory be applied to other contract instruments which come before us, such as notes, mortgages, contracts for deed, and similar instruments? I suggest that we have now proceeded beyond the reasonable bounds of judicial discretion.

It may now be appropriate that the Legislature examine this area and set forth its views of policies regarding such insurance contracts.