author: JUSTICE GRAY JUSTICE WEBER,

text:
    IN THE MATTER OF THE TERMINATION OF WILLIAM WONG. WILLIAM WONG, Petitioner and Respondent, v. CITY OF BILLINGS AND BILLINGS POLICE COMMISSION, Respondents and Appellants.
    No. 91-176.
    Submitted on Briefs August 15, 1991.
    Decided February 21, 1992.
    49 St.Rep. 158.
    252 Mont. 111.
    827 P.2d 90.

      For Appellants: Bonnie J. Sutherland, Assistant City Attorney, Billings.
    For Respondent: David W. Stiteler, Montana Public Employees Association, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

The City of Billings appeals from an order of the District Court of the Thirteenth Judicial District, Yellowstone County, reversing the decision of the Billings Police Commission and remanding for another hearing. We reverse.

The dispositive issue before this Court is whether the District Court erred in reversing the decision of the Police Commission (Commission) and remanding for another hearing, based on the Commission’s failure to grant a continuance. One other issue, whether the discharged police officer received sufficient notice of the charges against him, is addressed herein.

Pamela and William Wong separated in 1983; their marriage was dissolved in 1987. During 1987, William Wong (Wong), a police officer for eighteen years with the Billings Police Department, began visiting his ex-wife Pamela at her residence, usually in uniform, and threatening her with various harmful actions. From 1987 through 1989, Wong continued his on-duty and off-duty surveillance and harassment of Pamela Wong.

Pamela feared her ex-husband during his visits to her home because he threatened her with physical violence, with verbally abusive and denigrating language, and with the authority he possessed as a police officer. On one occasion Wong told her he knew that her car registration and insurance were running out and that he would make certain she was pulled over to have them checked. On another occasion, Wong threatened to kill her. During many of these intimidating episodes, Wong wore his police revolver.

Wong also began a series of visits and calls, usually while in uniform, to Pamela’s babysitters diming this time. These visits frightened the babysitters and several of them quit because of the intimidation. Most encounters with the babysitters occurred at Pamela’s residence. Neighbors corroborated that on some of these occasions, Wong pulled his police cruiser into Pamela’s driveway, flashed the cruiser’s lights, honked the horn and waited for his children to leave the house and come out to the car. He would then speak to the babysitter.

Pamela attempted to stop the unannounced visits to her home by obtaining a restraining order against Wong. This failed to stop him. When the one-year restraining order lapsed and the visits continued, Pamela called Chief Ellis E. Kiser, Wong’s supervisor, to complain. On November 2, 1988, Chief Kiser issued Wong a written order to cease visiting his ex-wife’s home while on duty. Wong violated Chief Kiser’s order on numerous occasions between the time it was issued and his termination on May 11, 1990.

Wong harassed Pamela’s friends, Wally and Sandy Persoma and their children, by making rude gestures to them on numerous occasions while they were in public. The Persomas telephoned Chief Kiser to complain of Wong’s continued harassment; their calls prompted Chief Kiser to issue a written reprimand and warning to Wong.

In December of 1988 and March of 1989, Wong filed charges against Pamela alleging neglect of their children. Caseworkers for the Department of Family Services investigated the charges. No neglect was found.

In August of 1989, Wong initiated a police report against Pamela regarding her “harassment” of him while she worked in her official capacity as a detention officer. Pamela’s supervisor determined that these allegations were without merit, but Wong persisted in pressuring Pamela’s superiors to take action, threatening to go to the sheriff and possibly the police commission if Pamela did not receive at least a reprimand.

Pamela filed a citizen’s complaint with the police department against her former husband in August of 1989. A copy of this complaint was sent to Wong on August 14, 1989. The complaint alleged an ongoing pattern of harassment against herself, her babysitters, certain friends and others. Most of the actions complained of occurred while Wong was on duty and in uniform.

Pamela’s complaint prompted an internal investigation by the Billings Police Department during which it was discovered that Wong also had been using police department property for his own purposes. Because the allegations lodged against Wong were of a serious nature, Wong was advised in November of 1989 that a Commission hearing would be held.

Wong contacted Montana Public Employees Association counsel Dave Stiteler (Stiteler) in November, 1989, with regard to the upcoming Commission hearing. Stiteler told Wong that he would provide representation if scheduling permitted.

A formal complaint alleging thirty-nine charges was served on Wong March 27,1990, twenty-two days before the Commission hearing was scheduled to begin on April 18. Wong contacted Stiteler immediately upon receiving the complaint, but he did not provide Stiteler with a copy of the complaint for approximately a week thereafter. Stiteler mailed a request for postponement on Wong’s behalf to the Commission on April 5, 1990. The Commission denied the request on April 10,1990, one day after receiving it.

Stiteler then referred Wong to private counsel in Billings. Wong consulted with counsel on or about April 12,1990, and was informed that counsel would represent him upon payment of a retainer. Wong declined. Two days prior to the start of the hearing, Wong contacted the same Billings attorney and requested representation at the hearing. Counsel declined to undertake the representation at that point on the basis that, at that late date, there was insufficient time for him to prepare Wong’s case.

The hearing was held April 18,1990 through May 2, 1990. Bonnie Sutherland represented the City of Billings; Wong presented his own defense. The Commission assisted Wong with hearing procedures. Wong subpoenaed witnesses, admitted exhibits, and cross-examined witnesses.

The Commission ultimately concluded that Wong was guilty of thirty-five of the thirty-nine charges, thirty-one of which represented conduct which bore no relationship to legitimate activities of a police officer and required disciplinary action. Wong was permanently discharged from his position as police officer on May 11, 1990. The Commission concluded that “Police Officer William Wong repeatedly violated the Law Enforcement Code of Ethics by permitting his personal feelings and animosities to influence his personal and professional decisions toward Pam Wong and other citizens” and that the proven incidents constituted “Conduct Unbecoming a Police Officer, Misconduct in Office, and Conduct bringing Reproach Upon the Police Department.” City Administrator Alan Tandy issued an order affirming Wong’s discharge on May 15, 1990.

The District Court reviewed the entire record and the briefs of the parties and concluded that the evidence before the Commission was sufficient to support Wong’s discharge. The court then concluded that the notice Wong received was statutorily sufficient, but that the Commissions’s denial of Wong’s request for a continuance was arbitrary, capricious and an abuse of discretion which denied Wong procedural due process. As a result, the District Court reversed the decision of the Commission and the order of the City of Billings discharging Wong, and remanded the matter to the Commission for a new hearing. The City of Billings appeals.

The police commission has the responsibility to hear and decide all charges against police officers. Section 7-32-4155, MCA. Charges must be in writing and served upon the police officer at least fifteen days before the time fixed for the hearing. Section 7-32-4156, MCA. Following the police commission hearing, the mayor or city manager may either approve, modify or veto the decision of the police commission. Sections 7-32-4153, 7-32-4160, 7-32-4161, MCA. The district court has jurisdiction to review all questions of fact and law decided by a police commission. Section 7-32-4164, MCA.

The City of Billings contends that the District Court erred in holding that the formal complaint should have been served on Wong prior to March 27, 1989. We note that, while the court expressed its concern over the lack of service at an earlier date, it concluded that the service was statutorily sufficient. We agree that the service was timely under § 7-32-4156, MCA, which requires service of the charges at least fifteen days prior to the time fixed for hearing. Wong was served twenty-two days in advance of the hearing. The statutory notice and service requirement having been met, the Commission was empowered to proceed. Gentry v. City of Helena (1989), 237 Mont. 353, 773 P.2d 309.

The dispositive issue is whether the District Court erred in reversing the decision of the Police Commission and remanding for another hearing, based upon the Commission’s failure to grant a continuance.

The City of Billings contends that the Police Commission’s denial of Wong’s request for a continuance was within its discretion and, therefore, that the District Court erred in concluding that the Commission’s denial was “arbitrary, capricious and an abuse of discretion which resulted in denying petitioner procedural due process ....” Wong sought the continuance on the grounds that his preferred legal representative was not available for the hearing dates, that he did not have sufficient preparation time, and that the formal charges against him included several new charges in addition to those contained in Pamela’s initial complaint of August, 1989. In denying the continuance, the Commission determined that good cause for the postponement was not shown in that Wong was given more than the statutorily required notice, he waited more than a week after receiving the complaint to mail his request, and he had sufficient time to prepare his case.

An administrative agency possesses broad discretion in deciding whether to grant or deny a motion for continuance. Bickham v. Selcke (Ill.App. 1 Dist. 1991), 576 N.E.2d 975. Thus, our standard of review for the Police Commission’s denial of the continuance at issue is whether the Commission’s decision to deny the continuance was “arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion ...” Section 2-4-704(2)(a)(vi), MCA. In addition, because the District Court also based its conclusion regarding the Commission’s denial upon procedural due process grounds, we will review the Commission’s decision under § 2-4-704(2)(a)(i), MCA, to determine whether it violated this constitutional guarantee.

The City of Billings argues that the Police Commission’s denial of the continuance was not an abuse of discretion. Wong argues that the City of Billings overlooks the hardship that the denial of the continuance caused him. Seeking a continuance due to lack of representation does not ensure the grant of a continuance. Grunewald v. Missouri Pacific Railroad Co. (8th Cir. 1964), 331 F.2d 983; M.D. Rutledge v. Electric Hose and Rubber Co. (9th Cir. 1975), 511 F.2d 668. In making its decision on a requested continuance due to lack of counsel, a court or agency must assess whether the party petitioning for continuance has acted diligently in seeking counsel. 17 Am.Jur.2d § 23. If the party has not acted diligently in procuring representation, a tribunal does not abuse its discretion in denying the continuance.

Here, Wong knew that his preferred representative would represent him only if scheduling permitted. He was served with the formal complaint on March 27 but did not forward a copy to Stiteler for a week thereafter. His request for postponement was not mailed until April 5 nor received by the Commission until April 9; by that time, more than half of Wong’s preparation time had elapsed. The Commission’s April 10 denial of Wong’s request was received by Stiteler on April 12, 1990.

On receipt of the denial of the postponement, Wong sought the representation of a private attorney. The private attorney told Wong that he would represent him if Wong paid an advance retainer. While Wong claims he did not have the money for the retainer and, therefore, could not retain counsel, the record reflects that two days before the hearing, Wong sought the representation of the same private attorney who then refused to represent Wong as insufficient time remained to prepare Wong’s defense. For these reasons, the City of Billings contends that Wong’s own conduct brought about his lack of legal representation and asserted lack of preparation time.

In Weston v. Denny (Ariz. 1971), 480 P.2d 24, the Arizona Court of Appeals found that the plaintiff’s lack of counsel was due to the plaintiff’s own actions and, therefore, the trial court did not abuse its discretion in denying the continuance. Wong argues that Weston is not applicable as he did nothing which obstructed procuring representation. The record, however, does not support Wong’s position. Wong was aware as early as November of 1989 that the charges filed against him would be heard by the Police Commission and that he would need the assistance of counsel. He was aware that Stiteler’s possible representation was conditioned on scheduling considerations. When Wong received the formal complaint, he delayed in forwarding it to Stiteler. The request for postponement was not mailed until nearly half of Wong’s preparation time had elapsed. Finally, counsel clearly was available to Wong even after the denial of his request for a continuance. We conclude that Wong’s own actions, or lack thereof, prevented him from obtaining counsel. Therefore, the Commission did not act arbitrarily or capriciously in denying the request for continuance.

The City of Billings further contends that the charges which were formally served upon Wong on March 27,1990, were essentially the same as those contained in Pamela Wong’s August 1989 citizen’s complaint. Wong claims that the formal charges included several which were not contained in the initial complaint and that the new charges hampered his ability to prepare for the hearing in the time provided. The record reflects that following an internal investigation subsequent to Pamela’s original complaint, several charges were added to those brought against Wong by his ex-wife; for the most part, these additional charges related to unauthorized use of police department property in his campaign of harassment against Pamela. We conclude that the formal charges filed against Wong in March of 1990 were essentially the same as those contained in Pamela’s initial citizen’s complaint, that they were minimal when compared to the totality of the charges and, therefore, that they did not adversely impact on the sufficiency of the preparation time available to Wong. The Commission did not act arbitrarily or abuse its discretion in denying the requested postponement in light of the new charges.

Finally, the City of Billings and Wong agree that when an employee has a property interest in his or her employment, certain due process protections are mandated. The United States Supreme Court has decided that an employee with a property interest in his employment must be given notice and an opportunity to respond. Cleveland Board of Education v. Loudermill (1985), 470 U.S. 532, 542, 105 S.Ct. 1487, 1496, 84 L.Ed. Sd 494, 504. The Montana statutory safeguards for police officers direct that all charges must be in writing and served upon the police officer at least fifteen days before the required hearing; in addition, officers have a right to be present at the hearing in person and by counsel and to be heard and furnish evidence in their defense. Sections 7-32-4155, et seq., MCA.

The City of Billings argues that the Commission met both the Loudermill standard and the Montana statutory safeguards for police officers in providing due process to Wong. We agree. Wong was provided the notice required by both Loudermill and the Montana statutes. A hearing was held at which he appeared and presented witnesses in his own defense. That Wong appeared without counsel was due to his own actions. Therefore, we hold that the District Court erred in its evaluation of the Police Commission’s denial of Wong’s continuance; the Commission’s denial was not arbitrary, capricious or an abuse of discretion and it did not violate Wong’s due process rights.

We reverse the District Court’s order and direct that the final decision of the Commission and the order of the City of Billings enforcing that decision be reinstated.

Reversed.

CHIEF JUSTICE TURNAGE, and JUSTICES HARRISON, TRIEWEILER, HUNT and McDONOUGH concur.

JUSTICE WEBER,

dissenting:

After a review of the entire record, the District Court concluded that the Commission’s denial of Mr. Wong’s request to continue the hearing was arbitrary, capricious and an abuse of discretion. I agree with that conclusion.

The record discloses that Pam Wong and the City of Billings Police Department signed the complaint filed against Mr. Wong on November 27, 1989. While the complaint was filed with the Billings Police Commission on February 10, 1990, Mr. Wong was not served with a copy of the complaint until March 27, 1990, some six weeks after its filing and just three weeks prior to the hearing.

On April 4, 1990, Mr. Stiteler, as attorney for Mr. Wong, requested a continuance, stating that Mr. Stiteler had prior commitments which conflicted with the scheduled hearing dates, and due to the nature of the charges in the complaint, Mr. Wong needed additional time to prepare an adequate defense. The Commission denied Mr. Wong’s request for continuance claiming that Mr. Wong failed to show good cause for the postponement; however, the Commission does not challenge Mr. Stiteler’s unavailability on the hearing dates. The Commission’s order stated:

Police Officer Wong was served with a copy of the Notice of Hearing and a copy of the Complaint filed against him on March 27, 1990. On April 2, 1990, the City Attorney’s office provided Officer Wong with copies of statements and information pertinent to the charges pending against him. Officer Wong’s Attorney David Stiteler, did not mail his Request for Postponement until April 5, 1990, more than one week after service of the complaint.
Officer William Wong has been given more than the statutorily required 15 days notice of hearing. He has sufficient time to prepare his case ...

In this case, the Commission’s denial of a continuance effectively prohibited Mr. Stiteler from representing Mr. Wong.

Here, the complaint charging Mr. Wong contained 39 counts. The hearing on the complaint was held on April 18, 19, 20, 24, and 25, 1990, and lasted over twenty-three hours. Thirty-four witnesses appeared on behalf of the parties. Yet, despite the complexity of this hearing, Mr. Wong represented himself pro se without the assistance of an attorney.

In considering the complexity of the charges, the number of witnesses, the unavailability of counsel chosen by Mr. Wong, and the City’s six week delay in serving Mr. Wong with the complaint after its filing; the Commission’s refusal to continue the hearing adversely effected Mr. Wong’s ability to prepare an adequate defense. The fact that the Commission complied with the statutory fifteen day notice does not eliminate the potential prejudice. I therefore agree with the District Court’s conclusion that the decision of the Commission was arbitrary, capricious and an abuse of discretion. I would affirm the District Court.


source: Caselaw Access Project

author: JUSTICE WEBER JUSTICE McDONOUGH

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff & Respondent, v. GLORIA WELLS, Defendant & Appellant.
    No. 90-565.
    Submitted on briefs December 12, 1991.
    Decided February 25, 1992.
    49 St.Rep. 175.
    252 Mont. 121.
    827 P.2d 801.

      For Appellant: Torger S. Oaas, Lewistown.
    For Respondent: Marc Racicot, Attorney General, Helena; Patricia J. Jordan, Assistant, Helena; Tom Meissner, Fergus County Attorney, Lewistown.
   JUSTICE WEBER

delivered the Opinion of the Court.

Defendant, Gloria Wells, appeals from her conviction of felony theft and misdemeanor theft after a bench trial in the District Court for the Tenth Judicial District, Fergus County. We reverse.

The sole issue for our review is whether the District Court erred in admitting evidence of other crimes, wrongs, or acts of the defendant.

Our summary of facts is taken from the extensive findings of fact on the part of the District Court. The defendant, Gloria Wells, and Debra McNamee (Debra), were friends and visited each other frequently from 1986 to September 1988. During June of 1988, Debra attempted to sell her diamond and ruby wedding ring from a previous marriage. Sometime in June, Debra authorized defendant to take the ring with her to Billings to try and sell it there. The next day, defendant returned the ring to Debra who then put it in her jewelry box for safe keeping. Some time after that, Debra looked for the ring and found it missing. Debra was the only person with authority to remove the ring from the jewelry box.

In July of 1988, while traveling, Debra saw the defendant in Billings and noticed defendant was wearing her ring. When Debra returned home to Lewistown she found her house in a state of disarray with various items missing.

Debra later saw defendant in a Lewistown bar and demanded the immediate return of all the items from her house. The items were not returned and on August 19, 1988, Debra reported the theft of various items from her home, including the ring and some missing checks, to the Lewistown Police Department. Later that same day, defendant was arrested in Billings for Felony Forgery Conspiracy for trying to pass a forged check in the amount of $1,700 drawn on the account of “Anna Duffy”.

While defendant was being held on the charges in Yellowstone County the Billings Police Department removed Debra’s diamond and ruby wedding ring from defendant’s hand and also found in defendant’s purse a series of checks belonging to Debra of which several had been removed.

While defendant testified that she had Debra’s permission to have both the ring and the check blanks, she pled guilty to the offense of misdemeanor theft for unauthorized control over the checks belonging to Debra.

The District Court concluded that the defendant purposely and knowingly exerted unauthorized control over the wedding ring owned by Debra and purposely and knowingly exercised unauthorized control over the checks owned by Debra. Defendant appeals from the court’s determination that she was guilty of Count I Felony Theft and Count II Misdemeanor Theft.

Did the District Court err in admitting evidence of other crimes, wrongs, or acts of the defendant?

The day before trial the State filed a Just Notice with the court which read:

Please be notified that the State of Montana will introduce evidence of other crimes, wrongs or acts specifically thefts, attempts of theft and forgery to show proof of motive on the part of the Defendant in this action to obtain money illegally during the summer of 1988.

The evidence introduced included testimony by Debra that defendant was “into heavy drugs”, “involved with stealing”, and had once pointed a gun at Debra. At trial, defendant objected to such testimony and a continuing objection was noted by the District Court.

Defendant contends that the notice was insufficient because it failed to specify when the other crimes, wrongs or acts occurred and did not give her sufficient information to prepare a defense. Defendant further maintains that the evidence introduced that defendant had stolen other items from Debra was inadmissible because such allegations referred to crimes subsequent to the crime for which defendant was on trial. Defendant contends that evidence of subsequent acts is not admissible.

The State maintains that the evidence that defendant was “into heavy drugs” was introduced to show motive to obtain money illegally. The State’s theory at trial was that the defendant had a motive of illegally obtaining money during the summer of 1988 to support her drug use. The State maintains that the gun incident was introduced to show the state of mind of the victim, i.e., fear of defendant, not to show that the defendant acted in conformity therewith.

However, the State concedes that specific notice was not given that the State intended to introduce evidence of defendant’s drug use or the incident where the gun was pointed at the victim. The State claims that any prejudice to the defendant was minimized by the cross-examination of the victim, wherein the victim stated that she had used drugs with the defendant. Finally, the State contends that in a bench trial, the dangers of improper use of other crimes evidence are minimal.

Under the Modified Just Rule, the other crimes, wrongs or acts must be similar. State v. Matt (Mont. 1991), [249 Mont. 136,] 814 P.2d 52, 56, 48 St.Rep. 614, 616; Rules 404(b) and 403, M.R.Evid. The Modified Just Rule provides:

(1) The other crimes, wrongs or acts must be similar.

(2) The other crimes, wrongs or acts must not be remote in time.

(3) The evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity with such character; but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(4) Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence. [Emphasis added.]”

Paragraph (1) of the Modified Just Rule provides that the other crimes, wrongs or acts must be similar. We conclude there is no similarity between the alleged drug usage and the gun incident and the crimes of theft with which the defendant was charged. We hold that the State’s introduction of the evidence of defendant’s alleged drag use and the gun incident constituted reversible error, even in a bench trial.

For assistance on retrial we have further comments with regard to the Modified Just Rule. The notice required by the prosecution to the defendant under the Modified Just Rule provides:

Evidence of other crimes, wrongs or acts may not be received unless there has been written notice to the defendant that such evidence is to be introduced. The notice to the defendant shall specify the evidence of other crimes, wrongs or acts to be acts to be admitted, and the specific Rule 404(b) purpose or purposes for which it is to be admitted. [Emphasis added.]

State v. Matt, 814 P.2d at 56. The notice given in the present case with regard to other thefts stated that evidence of “other thefts, attempts of thefts, and forgery would be offered to show proof of motive.” Such notice is inadequate to give the specificity of the evidence of other crimes, wrongs or acts to be produced. These must be identified in such a manner that the defendant may identify the specific incidents upon which evidence is to be admitted. As an example here, the notice properly could have referred to the items taken from Debra’s home.

As indicated, the notice stated that the evidence would be offered to show proof of motive. 22. C. Wright & K. Graham, Federal Practice and Procedure, § 5240, makes the following general observation with regard to motive:

Evidence of motive may be offered to prove that the act was committed, or to prove the identity of the actor, or to prove the requisite mental state. It is important to determine which of the ultimate issues is to be proved by motive because the relevance of the evidence and its admissibility may not be the same on one issue as on another.

Graham, Volume 22, page 480. Wright & Graham discusses at length the basis for admission of evidence to prove motive, intent, and absence of mistake, any one of which might be appropriate in the present case depending upon the nature of the evidence submitted on retrial.

We emphasize that in analyzing the admissibility, the trial court should follow all of the steps set forth in the Modified Just Rule.

The State also introduced evidence showing that the defendant was involved in a conspiracy to commit forgery on the bank account of Anna Duffy. Detective Cummings testified that defendant was detained to determine her involvement in the forgery of the $1,700 Anna Duffy check; and further testified that defendant was arrested for conspiracy to commit forgery. As we analyze that evidence under the Modified Just Rule, we conclude that the proof of involvement in the Anna Duffy forgery does not demonstrate the type of proof of motive which is admissible under the Modified Just Rule. This is the type of evidence which is not admissible because its purpose apparently was to demonstrate that because defendant was involved in other similar crimes, she would have been involved here. That is prohibited under the first portion of paragraph (3) of the Modified Just Rule which states that evidence of other crimes is not admissible to prove the character of the person in order to show that she acted in conformity with that character. Unless other evidence is submitted establishing a relationship not in the present record, we point out that the evidence with regard to the Anna Duffy check would not be admissible under the Modified Just Rule.

We reverse on the admission of evidence of the drug usage and the gun incident and remand to the District Court.

JUSTICES HUNT, HARRISON, GRAY and McDONOUGH concur.

JUSTICE McDONOUGH

specially concurring:

I concur with the foregoing majority opinion. In addition, the introduction of evidence that the defendant was “into heavy drugs” as proof of a motive, violates subdivision (4) of the Modified Just Rule. Such evidence, even if relevant, should be excluded under these facts. The probative value of the evidence is outweighed by unfair prejudice to the defendant.


author: JUSTICE GRAY

text:
    THE ESTATE OF DAVID SCHWENKE, By and Through Its Guardian DIANA HUDSON, Plaintiff and Respondent, v. JOHN CARL BECKTOLD, Defendant, and STATE FARM FIRE AND CASUALTY COMPANY, Appellant.
    No. 91-391.
    Submitted on Briefs October 31, 1991.
    Decided March 3, 1992.
    49 St.Rep. 180.
    252 Mont. 127.
    827 P.2d 808.

      For Appellant: K. D. Peterson; Peterson & Schofield, Billings.
    For Respondent: Christopher P. Thimsen and Charles A. Murray, Jr., Billings.
   JUSTICE GRAY

delivered the Opinion of the Court.

State Farm Fire and Casualty Company appeals from an order of the District Court of the Thirteenth Judicial District, Yellowstone County, denying its motion to intervene in a personal injury action brought by the estate of David Schwenke against John Becktold. We affirm.

The issues on appeal are:

1. Is the denial of the motion to intervene appealable?

2. Did the District Court err in denying the motion to intervene?

On October 8, 1989, David Schwenke received severe, disabling and permanent head injuries in an automobile accident southwest of Winnett, Montana. David was a passenger in a vehicle driven by J ohn Becktold.

The estate of David Schwenke, by and through its guardian, Diana Hudson (Schwenke), filed a personal injury action on January 16, 1990 against John Becktold alleging that he was negligent in operating the vehicle involved in the accident and that his negligence was the proximate cause of David’s injuries. On February 5, 1990, attorney Kenneth Strong entered an appearance and subsequently filed an answer to the complaint on behalf of John Becktold.

In order to determine whether insurance coverage existed for John Becktold, Schwenke’s counsel took two depositions. John was deposed on February 19, 1990. He testified that he had been a permanent resident of his parents’ household since his graduation from high school in 1982.

Ralph Becktold, John’s father, was deposed on March 2,1990. The purpose of the deposition was to obtain copies of all insurance policies which might provide coverage for Ralph Becktold and members of his household. Ken Amrein, a representative of State Farm, and attorney Dane Schofield of the law firm of Peterson and Schofield attended the deposition. Mr. Schofield is the partner of Kenneth Peterson, counsel for State Farm in this action.

One of the policies obtained as a result of Ralph Becktold’s deposition was a State Farm personal liability umbrella policy that provided certain coverage for members of Ralph Becktold’s household. Schwenke’s counsel believed that policy provided insurance coverage for the accident in which David Schwenke was injured and, on March 27, 1990, sent a letter to State Farm demanding payment of the policy limit. State Farm apparently never responded to the letter.

Trial on the personal injury action in the District Court was set for May 13, 1991. On April 19, 1991, John Becktold filed a notice of appearance in which he advised the court and counsel that he was substituting himself, pro se, in place of attorney Strong. The District Court issued an order allowing Mr. Strong to withdraw as counsel on April 25, 1991.

Schwenke had filed a declaratory judgment action in federal court on April 27, 1990 on the question of whether John Becktold was covered under the umbrella policy. The federal district court granted summary judgment in favor of State Farm on May 8, 1991, ruling that there was no coverage under the policy. That same day, Schwenke appealed to the Ninth Circuit Court of Appeals.

On May 6,1991, two days before the federal district court granted summary judgment to State Farm in the declaratory judgment action, State Farm filed a motion to intervene in the personal injury action. The stated purpose of the motion was limited to “obtaining [a] continuance of the Trial presently set and a stay of the proceedings in this case pending final resolution of the Plaintiff’s Declaratory Judgment action pending in the Federal District Court.” State Farm specifically requested that it not be made a party to the action. The District Court denied the motion to intervene on May 10, 1991, stating:

Given the action in Federal Court, movant has been aware of this case for a long time. Not only are the motions not timely but also the Court is not aware of any basis that allows one not willing to be a party to an action to intervene for the sole purpose of postponing a trial between those who are parties to the action.

The case proceeded to trial as scheduled on May 13, 1991. John Becktold was not present and a jury trial was waived. Evidence was received by the court in the form of deposition and live testimony. On June 6, 1991, the District Court entered its findings of fact and conclusions of law. The court found in favor of Schwenke and awarded damages in the amount of $3,642,685.32. Judgment was entered on the same day. Thereafter, State Farm filed this appeal of the denial of its motion to intervene.

I

Is the denial of the motion to intervene appealable?

Schwenke, citing Continental Insurance Co. v. Bottomly (1988), 233 Mont. 277, 760 P.2d 73, contends that the District Court’s denial of State Farm’s motion to intervene is not appealable pursuant to Rule 1, M.R.App.P. In Bottomly, we held that in accordance with Rule 1, M.R.App.P, a party who unsuccessfully sought to intervene in a district court action could not appeal prior to the entry of final judgment. We have already addressed the appealability of the District Court’s order in this action. In an order dated September 17, 1991 denying Schwenke’s motion to dismiss the appeal, we ruled that Bottomly is not controlling and that the order denying the motion to intervene is appealable because in this case there has been a final judgment. If State Farm were denied the opportunity to appeal the District Court’s order, even though a final judgment has been entered, there would be no procedure by which to challenge the propriety of that order.

II

Did the District Court err in denying the motion to intervene?

State Farm first asserts that it was entitled to intervene as a matter of right in the personal injury action between Schwenke and John Becktold. Rule 24 (a), M.R.Civ.P., governs intervention as of right and provides in pertinent part:

Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

Rule 24(a), M.R.Civ.P., is almost identical to Federal Rule 24(a). As noted in 3B Moore’s Federal Practice, ¶ 24.07[1], at 24-50 (2d ed. 1987), an application for intervention as a matter of right under Rule 24(a) must: (1) be timely; (2) show an interest in the subject matter of the action; (3) show that the protection of the interest may be impaired by the disposition of the action; and (4) show that the interest is not adequately represented by an existing party. The applicant must satisfy each of the four criteria to be entitled to intervene as a matter of right. Keith v. Daley (7th Cir. 1985), 764 F.2d 1265, 1268, cert. denied, (1985), 474 U.S. 980, 106 S.Ct. 383, 88 L.Ed.2d 336.

The District Court’s denial of the motion to intervene was based primarily on its determination that State Farm’s motion was not timely. Timeliness is determined from the particular circumstances surrounding the action and such a determination is within the sound discretion of the trial court. NAACP v. New York (1973), 413 U.S. 345, 366, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648, 663.

State Farm cites Johnson v. Cape Industries, Limited (Ill. App. Ct. 1981), 414 N.E.2d 470, in support of its position that it was entitled to intervene. In Johnson, a personal injuiy action was filed against Cape Industries, Limited (Cape), on February 4,1980. Cape, an English corporation, was sued as the agent and shareholder of another corporation which was the direct insured. Both corporations instructed the insurer’s counsel not to make an appearance on Cape’s behalf, fearing certain adverse consequences of an appearance under English law. On March 28, 1980, a default judgment was entered against Cape and the cause was set for the presentation of evidence of damages on May 8, 1980. On April 7, 1980, the insurer filed a declaratory judgment action on the question of insurance coverage and also filed a petition to intervene in the underlying personal injury action. The trial court denied the petition to intervene. The appellate court reversed, ruling that the motion to intervene was timely in view of the difficulty between Cape and the insurer and the less than two-month period between the filing of the complaint and the entry of default.

Johnson is distinguishable from the case at bar. Here, State Farm’s motion to intervene was filed more than fifteen months after the personal injury action was initiated and only one week before the date of trial. More critically, State Farm was aware of the litigation for more than one year before trial. An attorney for State Farm and a representative of the company were present at the March 2, 1990 discovery deposition of its insured, Ralph Becktold. It was aware that John Becktold was being sued, that John Becktold was related to its insured, that an insurance policy existed which Schwenke maintained provided coverage for John Becktold, and that Schwenke was looking to State Farm to pay any judgment. Despite all of this, State Farm did nothing until one week before trial.

State Farm further argues that its motion was timely because it was filed shortly after John Becktold’s attorney of choice was permitted to withdraw as counsel, leaving him unrepresented. This argument might be persuasive if the purpose of State Farm’s motion to intervene was to provide a defense for John Becktold. Such is not the case here. The motion’s only purpose was to delay the trial in state court until the declaratory judgment action was finally resolved in the federal courts. We have stated previously that “[t]he intervention rule is a discretionary judicial efficiency rule used to avoid delay, circuity and multiplicity of suits.” Grenfell v. Duffy (1982), 198 Mont. 90, 95, 643 P.2d 1184, 1187. We cannot conclude under the circumstances of this case that the District Court abused its discretion in finding the motion to intervene untimely where to allow intervention would have created that which the intervention rule seeks to avoid — undue delay of the trial for an undetermined period of time.

Moreover, State Farm sought to intervene based on its assertion that if insurance coverage exists it should be allowed to pursue vigorously all available defenses. Interestingly, however, State Farm justifies its inaction until the week before trial by asserting that it has never had any duty to defend John Becktold. In our view, State Farm failed to protect its interest in a timely fashion after it first became aware of the action. If State Farm believed it had no duty to defend but desired to protect its interest, it could have hired an attorney to defend John Becktold under a reservation of rights, rather than waiting until one week before trial to move to intervene for the sole purpose of delaying the trial.

Having determined that State Farm’s motion was not timely, it is unnecessary to consider whether the other requirements for intervention as a matter of right under Rule 24(a), M.R.Civ.R, were satisfied. Accordingly, we hold that the District Court did not abuse its discretion in denying State Farm’s motion to intervene as a matter of right.

State Farm next contends that the District Court erred in denying permissive intervention under Rule 24(b), M.R.Civ.P. This rule provides in relevant part:

Permissive intervention. Upon timely application anyone may be permitted to intervene in an action: ... (2) when an applicant’s claim or defense and the main action have a question of law or fact in common .... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

As the language of each subsection of Rule 24, M.R.Civ.P., indicates, a motion to intervene must be timely regardless of whether intervention is sought as of right under 24(a) or by permission under 24(b). Because we have already concluded that State Farm’s motion to intervene was not timely, State Farm did not satisfy the threshold prerequisite for permissive intervention. We hold that the District Court did not abuse its discretion in denying State Farm’s motion to intervene.

Affirmed.

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


author: JUSTICE WEBER

text:
    ROBERT J. KASETA, and MARGARET R. KASETA, d/b/a JOHNNY’S HOUSE OF FINE FOODS, Plaintiffs and Appellants, v. NORTHWESTERN AGENCY OF GREAT FALLS, and HAWKEYE-SECURITY INSURANCE COMPANY, Defendants and Respondents.
    No. 91-365.
    Submitted on Briefs December 19, 1992.
    Decided March 3, 1992.
    49 St.Rep. 183.
    252 Mont. 135.
    827 P.2d 804.

      For Appellant: Patrick F. Flaherty, Great Falls.
    For Respondent: Joseph R. Marra; Marra, Wenz, Johnson & Hopkins; Robert J. Vermillion; Smith, Walsh, Clarke & Gregoire, Great Falls.
   JUSTICE WEBER

delivered the Opinion of the Court.

Robert and Margaret Kaseta, d/b/a Johnny’s House of Fine Foods brought suit against Hawkeye-Secudty Insurance Co., Inc. (Hawkeye) and Northwestern Insurance Agency of Great Falls (Northwestern) for breach of contract, negligent misrepresentation, constructive fraud, unfair claim settlement practices, and insurance company malpractice. The District Court of the Eighth Judicial District, Cascade County, Montana found no genuine issues of material fact and granted summary judgment in favor of both defendants. Kasetas appeal. We affirm.

The Kasetas raise the following issues on appeal:

1. Did the court err in granting summary judgment in favor of Hawkeye?

2. Did the court err in granting summary judgment in favor of Northwestern?

Robert and Margaret Kaseta, d/b/a Johnny’s House of Fine Foods, bring this suit against their insurer, Hawkeye, and their insurance agent, Northwestern. In July 1990, while covered by a Hawkeye insurance policy, Kasetas contend a hail storm caused approximately $26,000 damage to their bar and restaurant. Hawkeye paid $7,318 on the claims, contending the business was insured for less than 80% of its actual value. First, the Kasetas dispute that the business was underinsured. Next, in the alternative, they claim if the business was underinsured the defendants led them to believe they were properly insured, and had a duty to provided them with a different policy.

On March 1, 1989, the Kasetas pruchased the restaurant from Johnny Austin on a contract for deed. Austin had informed the Kasetas that the commercial policy covering the business was a good policy. That policy, issued by Scottsdale Insurance, insured the building for $70,000 and the contents for $30,000. Austin represented to Kasetas that this policy had fully covered a $90,000 claim for fire damage in 1987.

After purchasing the business, the Kasetas purchased health and life policies from Lon Bowman of Northwestern Insurance Agency. Bowman referred the Kasetas to his associate at Northwestern, Joyce Jenkins, regarding a commercial policy. When Jenkins contacted the Kasetas, Robert Kaseta informed her that he wanted the same policy coverage they had through Scottsdale.

Jenkins informed Robert Kaseta that Hawkeye-Security Insurance would provide commercial coverage at a competitive rate. Kasetas applied for insurance, and Hawkeye issued a policy insuring the building for $70,000 and the contents for $30,000. Thus, the Kasetas received the policy and coverage they requested.

The policy declaration page contained a coinsurance percentage of 80%, indicating that Hawkeye would invoke a coinsurance penalty if the property was insured at less than 80% of its actual value at the time of the loss. The contract explained:

We will not pay the full amount of any loss if the value of Covered Property at the time of loss times the Coinsurance percentage shown for it in the Declarations is greater than the Limit of Insurance for the property.

Next, the contract describes the company’s method of calculating the maximum amounts payable if the company finds the business was underinsured. It states: “The amount determined ... is the most we will pay. For the remainder, you will either have to rely on other insurance or absorb the loss yourself.” This policy and this provision were in effect in July 1990, at the time the hail storm damaged Kaseta’s property.

After the storm, Kasetas submitted approximately $26,000 in claims. At that time, the insurance adjuster informed Kasetas that the business was underinsured. Thus, Hawkeye invoked the coinsurance penalty. At the hearing for summary judgment, the court granted summary judgment finding that no genuine issues of material fact existed, and as a matter of law the defendants should prevail. From this judgment Kasetas appeal.

I

Did the court err in granting summary judgment in favor of Hawkeye?

Under Rule 56(c), M.R.Civ.P., summary judgment is proper if the record discloses no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Payne Realty & Housing v. First Sec. Bk. (1991), 247 Mont. 374, 376, 807 P.2d 177, 178. In reviewing a motion for summary judgment, we view the evidence in the light most favorable to the party opposing the motion. Lorash v. Epstein (1989), 236 Mont. 21, 24, 767 P.2d 1335, 1337. Here, looking at the evidence in the light most favorable to the insured, we conclude the court properly granted summary judgment in favor of the insurer.

The Kasetas contend genuine issues of material fact exist which makes the breach of contract claim improper for summary judgment. In its findings, the District Court relies on Stott v. Fox (1990), 246 Mont. 301, 805 P.2d 1305. In that case, this Court held that a party cannot make a material issue of fact through the use of their own contradictory testimony. Stott, 246 Mont. at 309, 805 P.2d at 1309-1310. In Stott, the plaintiff claimed a genuine issue of material fact prevented the court from ruling summarily in support of the defendant. The material fact was created by the plaintiff’s affidavit which contradicted prior deposition testimony. We held: “[A] district court may grant summary [judgment] where a party’s sudden and unexplained revision of testimony creates an issue of fact where none existed before.” Stott, 246 Mont. at 309, 805 P.2d at 1310, citing Wilson v. Westinghouse (8th Cir. 1988), 838 P.2d 286, 289.

As in Stott, here summary judgment was proper because Kasetas created a material issue of fact by contradicting prior sworn statements. On April 20, 1991, the Kaseta’s responded to the following interrogatories:

INTERROGATORY NO. 7: Paragraph 24 of the complaint alleges that the insurance company sold “an inadequate and substandard insurance policy.” Please describe with specificity in what way the subject policy was “inadequate and substandard.”
ANSWER: We admit that the company has paid the sums due to date under the insurance policy that was issued ... (Emphasis added.)
INTERROGATORY NO. 8: Please state how a standard and proper insurance policy would have differed from the policy which was sold to the plaintiff.
ANSWER: The total value of building would have been nearer to $200,000.00 and would have covered all damages to that amount less the deductible. (Emphasis added.)
INTERROGATORY NO. 9: Do you allege that Hawkeye Insurance underpaid the plaintiffs under the terms of the policy?
ANSWER: Not under the terms of the policy issued. However, under the terms of the policy that the plaintiff thought he received, yes.
INTERROGATORY NO. 15: Your first claim for relief is entitled “Breach of Contract.” Please state what terms of the contract of insurance were breached.
ANSWER: We will amend the Complaint and dismiss the first claim for relief entitled Breach of Contract. Therefore, we will not give an answer to this.

Upon receiving these interrogatories, Hawkeye filed a motion for summary judgment on April 30, 1991. Then on May 13, 1991, Mr. Kaseta filed an affidavit which contradicted these sworn statements. The affidavit stated that: “in ... [Mr. Kaseta’s] opinion, as owner of the property, the building is properly valued at $100,000.” Thus, in contradiction of prior statements, Kasetas now contend Hawkeye incorrectly invoked the coinsurance penalty.

Like Stott, here Kasetas attempt to make a material issue of fact through the use of their own contradictory testimony. Accordingly, we conclude the plaintiffs simultaneous contradictory positions regarding the value of the building create no genuine issues of material fact, and Hawkeye is entitled to judgment as a matter of law. Thus, the court appropriately granted summary judgment in favor of Hawkeye on the breach of contract issue.

Next, Kasetas claim the court erred in granting summary judgment in favor of Hawkeye on the plaintiffs’ claim of unfair claims settlement practices under § 33-18-201(6) (7), MCA, the Unfair Trade Practices Act. § 33-18-201 states in part:

Unfair claim settlement practices prohibited. No person may, with such frequency as to indicate a general business practice, do any of the following:
(6) neglect to attempt in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear;
(7) compel insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds

In this case, the Kasetas have admitted that Hawkeye made proper payment under the terms of the contract. Thus, plaintiffs have presented no evidence of unfair claims settlement under § 33-18-201(6), or § 33-18-201(7), MCA. Accordingly, we conclude the court properly granted Hawkeye summary judgment -under the Unfair Trade Practices Act.

Finally, Kasetas contend the court improperly granted summary judgment on the claim of insurance company malpractice. Here, in their complaint, Kasetas allege Hawkeye breached its duty “to sell insurance to properly cover the insured’s needs.” However, the Kasetas admit Hawkeye provided them with the coverage they requested. Thus, we conclude the court properly granted summary judgment on this claim.

Finally, Kasetas have produced no evidence that Hawkeye made any representations to them regarding their coverage. Without such evidence Kasetas cannot support a claim of negligent misrepresentation or constructive fraud against the insurer, Hawkeye. Thus, we conclude the court properly granted summary judgment in favor of Hawkeye on this issue.

We hold that the court properly granted summary judgment in favor of Hawkeye-Security Insurance Co. Inc.

II

Did the court err in granting summary judgment in favor of Northwestern?

The Kasetas claim the District Court incorrectly granted summary judgment in favor of Northwestern on the issue of negligent misrepresentation and constructive fraud. Kasetas base these claims on Northwestern’s failure to supply them with material information regarding the value of their business and the coinsurance provision.

First, the Kasetas testified that Jenkins made no representations regarding the insurance. Further Jenkins provided them with a Hawkeye policy which contained the same amount of coverage as the Scottsdale policy. Finally, Kasetas do not dispute they received the coverage they requested. Thus, we agree with the District Court when it found that any damage suffered is attributable to Kasetas’ request to receive the same coverage they had under their Scottsdale policy. We conclude the District Court properly granted summary judgment on the claims of constructive fraud and negligent misrepresentation.

Next, the Kasetas appeal the summary judgment granted in favor of Northwestern on their claim of insurance agent malpractice. Here, the Kasetas did not plead a claim for relief based on insurance agent malpractice, and the District Court correctly disregarded this count with respect to Northwestern.

Finally, the Kasetas have submitted no proof that Northwestern acted as an insurance company or was a party to the contract, thus, this Court will not consider Kasetas’ claims for breach of contract and alleged violations of the Unfair Trade Practices Act.

We hold the court correctly granted summary judgment in favor of Northwestern Insurance Agency of Great Falls.

Affirm.

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


text:
    AUDIT SERVICES, INC., a Montana corporation, Plaintiff and Respondent, v. FRONTIER-WEST, INC., a corporation, Defendant and Appellant.
    No. 91-330.
    Submitted on Briefs October 10, 1991.
    Decided March 3, 1992.
    49 St.Rep 186.
    251 Mont. 142.
    827 P.2d 1242.

      For Appellant: Christopher B. Swartley; Datsopoulos, MacDonald & Lind, Missoula.
    For Respondent: Dennis Tighe; Cure, Borer & Davis, Great Falls.
   JUSTICE GRAY

delivered the Opinion of the Court.

The appellant, Frontier-West, Inc., appeals from a judgment entered by the District Court of the Fourth Judicial District, Missoula County. The judgment awarded the respondent, Audit Services, Inc., $1,791.32, representing $3,534.90 in delinquent contributions, liquidated damages, interest and audit fees less an offset of $1,743.58, plus $14,266 in attorney’s fees and $91.35 in costs. We affirm and remand for determination of reasonable attorney’s fees on appeal.

The issues on appeal are:

1. Did the District Court err in determining that a contract existed between the parties?

2. Did the District Court err in awarding judgment to Audit Services for liquidated damages, interest and audit fees?

3. Did the District Court err in awarding attorney’s fees to Audit Services?

4. Is Audit Services’ claim estopped due to a failure to act upon constructive notice by Frontier-West?

The appellant, Frontier-West, is a construction contractor. The respondent, Audit Services, is the assignee of the Laborers-A.G.C. Pension Trust Fund, the Laborers-A.G.C. Training Trust Fund, the Laborers-A.G.C. Health and Welfare Trust Fund and the Southwest Montana Vacation — Savings Trust Fund (Trust Funds) for claims for fringe benefit contributions, liquidated damages, interest, audit fees and attorney’s fees against Frontier-West.

From July 1987 through October 1987, Frontier-West was a subcontractor for American Asphalt, Inc. on a project at Malmstrom Air Force Base in Great Falls, Montana. On July 6,1987, Frontier-West signed a project-only compliance agreement with the Montana District Council of Laborers. The compliance agreement obligated Frontier-West to abide by the terms and conditions of the collective bargaining agreement between American Asphalt and the Laborers and to be bound by and become a party to the trust agreements establishing the Trust Funds. After Frontier-West signed the compliance agreement, the Laborers unilaterally added a clarifying clause to that agreement. The clarification related solely to American Asphalt’s obligations under the collective bargaining agreement.

The trust agreements establishing the Trust Funds obligate an employer delinquent in paying fringe benefit contributions to pay liquidated damages and interest. Under the trust agreements, an employer is delinquent if it does not pay contributions by the 20th day of the calendar month in which they are due. The trust agreements further provide that if an audit of an employer’s payroll records discloses that the employer has a reporting error greater than five percent of the total hours to be reported, the employer must bear the costs of the audit.

Frontier-West employed a number of people to perform laborer work on the Malmstrom project and paid fringe benefit contributions to the Trust Funds based upon the number of labor hours worked. However, Frontier-West did not make fringe benefit contributions to the Trust Funds for 957 hours worked by the three sons of the principal owners of the corporation and for 546 hours worked by four other employees performing laborer work.

On February 22,1988, H. G. “Gus” Sand, an independent accountant hired by the Trust Funds, completed an audit of Frontier-West’s corporate payroll records covering the work on the Malmstrom project. The audit disclosed the unreported hours. Mr. Sand calculated that Frontier-West owed the Trust Funds $6,386.47 for contributions, liquidated damages, interest and audit fees. The results of the audit were sent to Frontier-West.

Frontier-West took the position that it was not required to pay fringe benefit contributions for the hocus worked by the owners’ sons. It requested a revised audit separating the 957 unreported hocus for the owners’ sons from the total unreported hours. Mr. Sand supplied the revision, which recalculated the total into contested and uncontested portions. The contested portion of the audit covered the 957 unreported hocus for the owners’ sons and totalled $4,161.41. The uncontested portion of the audit covered the remaining 546 unreported hours and totalled $2,476.87, of which $1,730.45 represented fringe benefit contributions due to the Trust Funds. The remainder represented liquidated damages, interest and audit fees.

In May 1988, after receiving the revised audit, Frontier-West mailed a check to Mr. Sand for $1,730.45. The check was unaccompanied by instructions, remittance reports or correspondence. Mr. Sand forwarded the check to counsel for Audit Services who informed Frontier-West that the partial payment check would not be deposited pending receipt of the remaining money owed for the contested and uncontested portions of the audit. Frontier-West did not pay or offer to pay the remaining balance of the uncontested portion of the audit. Audit Services did not deposit the check, which was returned to Frontier-West after this suit was filed.

On September 16,1988, Audit Services filed suit against Frontier-West pursuant to the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq. Audit Services’ complaint alleged that Frontier-West breached its collective bargaining and trust agreement obligations to pay fringe benefit contributions. It sought payment of the delinquent contributions, together with liquidated damages, interest, audit fees and attorney’s fees for both the contested and uncontested portions of the audit.

On February 16,1990, the National Labor Relations Board issued a decision concerning American Asphalt’s collective bargaining agreement. The NLRB clarified that the bargaining unit excluded children and spouses of owners or substantial shareholders. It further stated that its order was limited to clarification of the unit as related to the specific issues before it and that it had no authority to resolve the contract dispute over fringe benefit contributions involving Frontier-West.

On March 12, 1991, Audit Services voluntarily dismissed that portion of its complaint which sought contribution payments for work performed by the owners’ sons. It continued to seek collection of the contributions, liquidated damages, interest, audit fees and attorney’s fees related to the uncontested portion of the audit. That same day, Frontier-West unconditionally tendered $1,730.45, representing the delinquent contributions, in partial satisfaction of the sums alleged to be due. Audit Services accepted Frontier-West’s tender.

The District Court held a hearing on Audit Services’ remaining claims related to liquidated damages, interest, audit fees and attorney’s fees and subsequently entered judgment in favor of Audit Services. The court concluded that an enforceable contract existed between the parties and that Frontier-West breached the contract by failing to pay fringe benefit contribution payments when due and liquidated damages, interest and audit fees when billed for those amounts. It concluded that Audit Services was entitled to recover $1,730.45 in delinquent contributions, $443.59 in liquidated damages, $724.29 in interest and $636. 57 in audit fees. The total owing was offset by $1,743.58, representing Frontier-West’s partial payment of $1,730.45 and an overpayment of $13.13 to the Trust Funds. The District Court further concluded that Audit Services was entitled to attorney’s fees of $14,266. This appeal followed.

I.

Did the District Court err in determining that a contract existed between the parties?

Initially, we note an issue of importance which has not been addressed by the parties or the District Court. From September 16, 1988, when the complaint was filed, until March 7, 1991, Frontier-West appeared in this action solely through its president, Edward P. Murphy. On March 7,1991, the law firm of Datsopoulos, MacDonald & Lind gave notice of appearance on Frontier-West’s behalf and continues to appear on its behalf on appeal. We take this opportunity to caution the district courts with respect to the propriety of allowing a corporate officer who is not an attorney to appear on behalf of a corporation. A corporation is a separate legal entity and cannot appear on its own behalf through an agent other than an attorney. Weaver v. Law Firm of Graybill, et al. (1990), 246 Mont. 175, 178, 803 P.2d 1089, 1091.

In a case brought to enforce a contract between an employer and a labor organization, state courts have concurrent jurisdiction with federal courts but, in exercising that jurisdiction, state courts must apply federal substantive law. Audit Services, Inc. v. Harvey Bros. Constr. (1983), 204 Mont. 484, 487, 665 P.2d 792, 794. A state court may rely on state contract law as long as it effectuates the policy underlying federal labor legislation. Kemmis v. McGoldrick (9th Cir. 1983), 706 F.2d 993, 996.

Frontier-West contends that it never approved the contract modification made by the Laborers. It asserts that there was no valid contract upon which Audit Services could collect.

The District Court ruled that the compliance agreement signed by Frontier-West was a valid, enforceable contract because the modification did not materially alter Frontier-West’s obligations under the agreement, Frontier-West ratified the agreement, and Frontier-West’s expectation when it entered into the agreement was to be bound. A trial court’s findings of fact in a non-jury trial will not be disturbed unless they are clearly erroneous. Rule 52(a), M.R.CivP. Conclusions of law will be upheld if they are correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.

In its answer to the complaint filed against it in this action, Frontier-West admitted to being bound by the compliance agreement. It is well settled that the parties are bound by and estopped from controverting admissions in their pleadings. Grimsley v. Spencer (1983), 206 Mont. 184, 199, 670 P.2d 85, 93; Fey v. A. A. Oil Corp. (1955), 129 Mont. 300, 323, 285 P.2d 578, 590.

In addition, Frontier-West also ratified the agreement. This Court defined ratification in Audit Services, Inc. v. Francis Tindall Constr. (1979), 183 Mont. 474, 478, 600 P.2d 811, 813:

“ ‘Ratification’ is defined to be the confirmation of a previous act done either by the party himself or by another. (Citing authority.) And a confirmation necessarily supposes knowledge of the thing ratified. (Citing authority.) It follows that to constitute a ratification there must be an acceptance of the results of the act with an intent to ratify and with full knowledge of all the material circumstances.”Koerner v. Northern Pac. Ry. Co. (1919), 56 Mont. 511, 520, 186 P. 337, 340.

We further stated in Tindall that “[i]t is the manifestation of the ratifying party which controls.” Tindall, 183 Mont. at 478, 600 P.2d at 813. Here, Frontier-West’s outward expressions and actions clearly show its intention to be bound. Despite the present claim that no binding contract ever existed, Frontier-West voluntarily paid a substantial portion of the contributions due to the Trust Funds pursuant to the terms of the agreement. We have previously held that such voluntary payments over a period of time with no attempt to rescind result in ratification of the agreement. Audit Services, Inc. v. Harvey Bros. Constr. (1983), 204 Mont. 484, 665 P.2d 792. We hold that the District Court correctly concluded that a valid, binding contract existed between the parties.

II.

Did the District Court err in awarding judgment to Audit Services for liquidated damages, interest and audit fees?

Frontier-West asserts that Audit Services is not entitled to liquidated damages, interest and audit fees related to the uncontested claim. It argues that the underlying uncontested fringe benefit contribution obligation was extinguished by Audit Services’ rejection of its timely tender of the check for $1,730.45 prior to litigation. It cites Lehrkind v. McDonnell (1915), 51 Mont. 343, 350, 153 P. 1012, 1014, where this Court stated:

An unconditional offer in good faith to perform, by the party upon the obligation rests, coupled with the ability to perform, if rejected by the other party, is equivalent to full performance and extinguishes the obligation as to the party making the offer.

Thus, according to Frontier-West, it would be unreasonable to require it to pay penalties in the form of liquidated damages, interest and audit fees when it was Audit Services’ choice to litigate and Frontier-West had previously tendered substantial performance.

The District Court concluded that Frontier-West’s tender was insufficient and had no effect on its contractual obligations. We find no error in this conclusion. An unconditional tender of performance extinguishes the underlying obligation. Section 28-1-1202 (1), MCA; Lehrkind, 51 Mont. at 350, 153 P. at 1014. However, an offer of partial performance has no effect and will not extinguish the obligation. Section 28-1-1203, MCA. In order to constitute a valid tender, the party making the tender must offer a specific amount which covers all that the other party is entitled to including interest, costs and attorney’s fees. 86 C. J.S. Tender §§ 7, 8.

When Frontier-West signed the compliance agreement, it obligated itself, as it admitted in its answer to Audit Services’ complaint, to be bound by and comply with the terms and conditions of the trust agreements establishing the Trust Funds. Under the factual circumstances of this case, Frontier-West was obligated under the trust agreements to pay liquidated damages, interest, and audit fees as well as the delinquent contributions. The record shows that the fringe benefit contributions for the 546 hours worked by the four Frontier-West employees involved were delinquent, pursuant to the trust agreements, in that they were not paid by the 20th day of the calendar month when they were due. The trust agreements obligate an employer delinquent in paying fringe benefit contributions to pay liquidated damages and interest. In addition, the 546 unreported hours resulted in a reporting error by Frontier-West which was greater than five percent of the total hours reported; under the trust agreements, the magnitude of the reporting error obligated Frontier-West to bear the cost of examination of its payroll records.

At the time Frontier-West received the “uncontested” portion of the audit, it had a contractual obligation to pay the $2,476.87 in contributions, liquidated damages, interest and audit fees set forth in that audit. Performance according to the terms of the trust agreements required payment of $2,476.87. The $1,730.45 tendered by Frontier-West constituted merely an offer of partial performance and, thus, had no effect on its contractual obligations under § 28-1-1203, MCA. Audit Services specifically notified Frontier-West that its check was unacceptable and never deposited the check or reduced it to money. Given Frontier-West’s clear contractual obligations on the record before us, we hold that the District Court did not err in awarding judgment to Audit Services for liquidated damages, interest and audit fees.

III.

Did the District Court err in awarding attorney’s fees to Audit Services?

Frontier-West asserts that the District Court erred in determining that Audit Services was the prevailing party in this action and, therefore, abused its discretion in awarding attorney’s fees to Audit Services. Citing Medhus v. Dutter (1979), 184 Mont. 437, 603 P.2d 669, Frontier-West contends that the prevailing party is the one which successfully prosecutes or defends the main issue of a suit. It contends that the main issue in this case was whether Frontier-West owed fringe benefit contributions for the hours worked by the owners’ sons as reflected in the contested portion of the revised audit. It argues that, because Audit Services dismissed the owners’ sons issue, Frontier-West prevailed on the main issue of the case and is entitled to attorney’s fees. Frontier-West’s reliance on the "main issue” approach is misplaced.

Audit Services brought this action under ERISA to collect contributions due under the trust agreements. An action to collect delinquent contributions is specifically authorized by 29 U.S.C. § 1145. The provisions governing attorney’s fees under ERISA are set forth in 29 U.S.C. § 1132(g) as follows:

(1) In any action under this subchapter (other than an action described in paragraph (2)) by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.
(2) In any action under this subchapter by a fiduciary for or on behalf of a plan to enforce section 1145 of this title in which a judgment in favor of the plan is awarded, the court shall award the plan —
(D) reasonable attorney’s fees and costs of the action, to be paid by the defendant...

Under the above statute, attorney’s fees are discretionary in most actions under the subchapter in accordance with § 1132(g)(1). However, in actions by a fiduciary for or on behalf of plan to enforce § 1145, attorney’s fees are mandatory if judgment is awarded in favor of the plan. Operating Engineers Pension Trust v. Reed (9th Cir. 1984), 726 F.2d 513. Because this is an action to enforce § 1145, the only question is whether this is an action by a fiduciary for or on behalf of a plan in which judgment in favor of the plan was awarded.

Here, the trustees or fiduciaries of the Trust Funds irrevocably assigned ownership of their claims against Frontier-West to Audit Services. As assignee of the claims against Frontier-West, Audit Services is the proper party plaintiff. Audit Services, Inc. v. Rolfson (9th Cir. 1981), 641 F.2d 757. In addition, Audit Services was substituted as a new party to the legal relations with respect to the subject matter and acquired the trustees’ right to performance from Frontier-West. 4 Corbin on Contracts, § 861, at 421-22 (1963). Judgment was awarded to Audit Services for delinquent contributions, liquidated damages, interest and audit fees related to the uncontested portion of the audit. Therefore, the District Court’s judgment falls within the mandatory attorney’s fees provision of § 1132(g)(2) and not the discretionary provision of § 1132(g)(1). Accordingly, we hold that the District Court properly determined that Audit Services was entitled to attorney’s fees.

Frontier-West further asserts that even if the District Court properly determined that Audit Services was entitled to attorney’s fees, it abused its discretion by awarding Audit Services attorney’s fees in the amount of $14,266. It argues that Audit Services requested the specific dollar amount of $2,100 in its complaint for attorney’s fees and, because the complaint was never amended to account for other attorney’s fees, Audit Services should be entitled to a maximum of $2,100. We disagree.

In R & W Leasing v. Mosher (1981), 195 Mont. 285, 636 P.2d 832, we held that pursuant to Rule 15(b), M.R.Civ.P., relating to amendments to the pleadings to conform to the evidence, the district court did not err in awarding greater attorney’s fees than were originally requested in the complaint even though the complaint was not formally amended. We concluded that no error occurred because a motion for attorney’s fees, along with a supporting affidavit, had been filed with the court and, in conformity with the motion, a hearing on attorney’s fees was held. In this case, we find no error on the part of the District Court in awarding a greater amount of attorney’s fees than requested in the complaint. An evidentiary hearing was held, with full notice to both parties, on the precise issue of the amount of attorney’s fees to be awarded. Audit Services presented an affidavit in support of the amount of attorney’s fees requested, as well as testimony which was subject to cross-examination. At no time did Frontier-West object to the evidence on the basis that it did not conform to the dollar amount requested in the complaint.

Frontier-West, citing Northwestern Nat’l Bank v. Weaver-Maxwell, Inc. (1986), 224 Mont. 33, 729 P.2d 1258, also contends that where a lawsuit involves multiple claims and multiple theories, an award of attorney’s fees must be based only on the time spent on those claims and theories on which the prevailing party was successful. It maintains that the District Court abused its discretion in awarding Audit Services $14,266 in attorney’s fees because substantially all of the proceedings before the court centered around the owners’ sons fringe benefit contribution issue which ultimately was dismissed by Audit services.

The Ninth Circuit Court of Appeals has held that the correct method for calculating the amount of attorney’s fees under ERISA is to use the “lodestar/multiplier” approach adopted by the United States Supreme Court in Hensley v. Eckerhart (1983), 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed. 2d 40. D’Emanuele v. Montgomery Ward & Co., Inc. (9th Cir. 1990), 904 F.2d 1379. The lodestar/multiplier approach essentially contains two parts.

First, the court must determine a “lodestar” amount by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. D’Emanuele, 904 F.2d at 1383. In determining the number of hours reasonably expended, the court, in addition to other factors which may be appropriate under the circumstances, should consider those factors identified in Kerr v. Screen Extras Guild, Inc. (9th Cir. 1975), 526 F.2d 67, cert. denied, (1976), 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195, which have been held to be subsumed in the lodestar calculation. See Blum v. Stenson (1984), 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891; Chalmers v. City of Los Angeles (9th Cir. 1986), 796 F.2d 1205. Those factors are: the novelty and complexity of the issues, the special skill and experience of counsel, the quality of the representation, the results obtained and the superior performance of counsel. Blum, 465 U.S. at 898-90, 104 S.Ct. at 1548-49.

The “results obtained” factor is particularly important where a party is deemed prevailing even though it succeeded on only some of the claims for relief. Hensley, 461 U.S. at 434. Unrelated claims must be treated as if they had been raised in separate lawsuits and, thus, no attorney’s fees may be awarded for services on an unrelated, unsuccessful claim. However, where a party’s claims involve a common core of facts or are based on related legal theories, “[m]uch of counsel’s time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis.” Hensley, 461 U.S. at 435. In such a situation, the court “should focus on the significance of the overall relief obtained... in relation to the hours reasonably expended on the litigation.” Hensley, 461 U.S. at 435.

Where a party has obtained excellent results, counsel should recover a full compensatory fee; the award should not be reduced simply because the party failed to prevail on every contention raised in the lawsuit. On the other hand, if a party has achieved limited success, a full compensatory fee may be an excessive amount even where the claims were interrelated. Hensley, 461 U.S. at 435-36. “The court necessarily has discretion in making this equitable judgment.” Hensley, 461 U.S. at 437.

Once the number of hours has been set, the court must determine a reasonable hourly rate considering the experience, skill, and reputation of the attorney requesting fees. D’Emanuele, 904 F.2d at 1384. This determination is not made by reference to the rate actually charged by counsel, but rather to the market rate in the community for similar services of lawyers of reasonably comparable skill, experience, and reputation. D’Emanuele, 904 F.2d at 1384.

Once the lodestar amount has been determined, the second part of the “lodestar/multiplier” approach allows the court to increase or decrease that amount based on the Kerr factors which are not subsumed in the initial lodestar calculation. D’Emanuele, 904 F.2d 1383. However, the initial lodestar amount is presumed to constitute a reasonable fee; thus, any upward or downward adjustments to that amount are rare. D’Emanuele, 904 F.2d at 1383.

Although fee awards are left to the discretion of the district court, “[ijt remains important ... for the district court to provide a concise but clear explanation of its reasons for the fee award.” Hensley, 461 U.S. at 437. The Ninth Circuit, in discussing what constitutes a concise but clear explanation, has stated that “[c]ourts need not attempt to portray the discretionary analyses that leads to their numerical conclusions as elaborate mathematical equations, but they must provide sufficient insight into the exercises of discretion to enable [the appellate court] to discharge [its] reviewing function.” Cunningham v. County of Los Angeles (9th Cir. 1988), 879 F.2d 481, 485, cert. denied, (1990), 493 U.S. 1035, 110 S.Ct. 757, 107 L.Ed. 2d 773.

Our review of the award of $14,266 in attorney’s fees under the “lodestar/multiplier” approach does not reveal an abuse of discretion on the part of the District Court. The court conducted an evidentiary hearing on the issue of attorney’s fees. Thereafter, it concluded that Audit Services was entitled to attorney’s fees pursuant to ERISA, 29 U.S.C. § 1132(g)(2), which authorizes an award of reasonable attorney’s fees. The court found that Audit Services’ counsel expended 222.5 attorney’s hours and 3.2 paralegal hours during the litigation of this action. It further found that the number of hours expended was reasonable considering the character of the legal services rendered, the labor and time involved, the character and importance of the litigation, ánd counsel’s standing in the profession. The District Court stated that an additional basis for its finding that the number of hours expended was reasonable was Frontier-West’s conduct in prolonging the litigation prior to such time as present counsel appeared on its behalf:

Unfortunately for the parties herein and the Court, many of defendant’s motions were repetitive and, under the law of the case established by the Court’s Orders, lacked merit. The litigation seemed to go on and on because of defendant’s contradictory positions and efforts to reargue settled issues. The defendant filed three Motions for Summary Judgment, a Motion for Relief From Order and a Motion for Reconsideration. The repetitive and successive motions together with plaintiff’s Motion to Compel and Motion for Summary Judgment necessitated four hearings in Missoula.

With regard to the hourly rate, the District Court found that Audit Services’ counsel possesses the professional skill and familiarity with labor law commensurate with his fifteen years’ experience in handling employee benefit plan collections. The court determined that counsel’s requested hourly rates of $65 for attorney’s time and $30 for paralegal time were “[Reasonable under the circumstances and well within the range of fees charged by attorney’s [sic] in Montana.” Because Frontier-West had already paid a court ordered sanction of $292.50 for attorney’s fees, the total amount of attorney’s fees owing to Audit Services was determined to be $14,266.

Although the District Court did not specifically rely on the “lodestar/multiplier” approach in setting the amount of attorney’s fees, it substantially complied with that standard. As required under D’Emanuele, the court calculated the “lodestar” amount, $14,266, by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. It considered several factors similar to those Kerr factors subsumed in the lodestar calculation, including the complexity of the issues, the special skill and experience of counsel, the quality of representation and the range of fees charged in Montana.

Audit Services’ original claims were for delinquent contributions, liquidated damages, interest, audit fees and attorney’s fees relating to both the uncontested portion of the audit and the contested owners’ sons portion of the audit. These claims all arose from the same core of facts: Frontier-West’s failure and refusal to pay certain contributions in accordance with the terms of the trust agreements. While the degree of success is important in calculating attorney’s fees even where all the claims are interrelated, the District Court placed significant emphasis on Frontier-West’s conduct in prolonging the litigation. As noted earlier, the court necessarily has discretion in making the equitable judgment of whether the fees requested are excessive. Given the District Court’s concise but clear explanation of its reasons for the fee award, we hold that the court did not abuse its discretion in setting the amount of attorney’s fees at $14,266.

We note that the District Court, after calculating what was effectively the lodestar amount, did not consider whether to apply a multiplier to either increase or decrease the award. However, we conclude that the court’s failure to consider a multiplier is not fatal to its award of fees in this action since, as noted earlier, the lodestar amount is presumed to constitute a reasonable fee and any adjustments to that amount are rare. D’Emanuele, 904 F.2d at 1383.

IV.

Is Audit Services’ claim estopped due to a failure to act upon constructive notice by Frontier-West?

Frontier-West contends that the Trust Funds were on notice in the summer of 1987 that it was not paying contributions for the hours worked by the owners’ sons and, therefore, Audit Services “is estopped from asserting that Frontier-West owes trust fund contributions for the sons of the owners ....” While the argument is not well presented, Frontier-West is apparently asserting that a timely investigation by the Trust Funds regarding its intent to pay contributions for the owners’ sons would have mitigated its liability.

The principles of equitable estoppel apply to employee benefit plans. Dockray v. Phelps Dodge Corp. (9th Cir. 1986), 801 F.2d 1149, 1155. Estoppel is available against a party “[w]ho has made a knowing false representation, or concealment of material facts, to a party ignorant of the true facts, with the intention that the other party should rely on the representation, and the other party actually and detrimentally relies on it.” Dockray, 801 F.2d at 1155.

The record shows that the Trust Funds received a remittance report from Frontier-West dated August 18, 1987 which stated only that the “sons of owners” were not reported. Frontier-West seems to rely on the Trust Fund’s lack of action between the summer of 1987 and February 1988 as a basis for estoppel. However, there is no evidence in the record that would give rise to estoppel.

It was not until the audit in February 1988 that the Trust Funds obtained information regarding the owners’ sons such as which sons were involved, whether they performed laborer work under the labor agreement and the number of hours they worked. At that time, it is clear that the Trust Funds requested full payment of the contributions. Stated simply, the record is devoid of any evidence that the Trust Funds had an obligation to act before the audit of Frontier-West’s payroll records, made a knowing false representation to Frontier-West or concealed any material facts from Frontier-West. In any event, the owners’ sons issue did not result in liability to Frontier-West; thus, there was no detrimental reliance on its part.

As a final matter, Audit Services has requested attorney’s fees in responding to this appeal. The attorney’s fees provision contained in 29 U.S.C. § 1132(g)(2) applies to attorney’s fees on appeal. Operating Engineers Pension Trusts v. B & E Backhoe (9th Cir. 1990), 911 F.2d 1347, 1356. Since these fees are mandatory, Audit Services is entitled to reasonable attorney’s fees on appeal.

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

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