author: MR. JUSTICE McDONOUGH

text:
    CARL WEISSMAN & SONS, INC., Plaintiff and Appellant, v. MARTY PAULSON, d/b/a Montana Fence, Defendant and Respondent.
    No. 87-78.
    Submitted on Briefs May 14, 1987.
    Decided July 21, 1987.
    739 P.2d 495.
    Robert Kolesar, Bozeman, for appellant.

      A. Michael Salvagni, Co. Atty., James McKenna, Deputy Co. Atty., Bozeman, for respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

Plaintiff Carl Weissman & Sons, Inc. appeals the December 15, 1986, order of the Eighteenth Judicial District Court, Gallatin County, finding storage costs assessed by the Gallatin County Sheriff to be reasonable. We affirm.

On appeal, defendant Paulson is no longer involved in the case. Plaintiff Carl Weissman & Sons, Inc. (Weissman & Sons) contests the Gallatin County Sheriff’s assessment of storage costs which eliminated any recovery by Weissman & Sons against Paulson.

Weissman & Sons originally filed an action in justice court against Paulson for failure to pay the amount due on his account. Weissman & Sons obtained a writ of prejudgment attachment from the Justice Court directed to a Honda motorcycle owned by defendant Paulson. The sheriff seized the motorcycle March 18, 1986, and arranged for towing and storage by Art’s Towing Service. The motorcycle was stored in a heated area of the garage at $5 a day.

Weissman & Sons subsequently filed a complaint against Paulson in District Court on May 19, 1986, alleging failure to pay the amount due and owing on his account, $2,210. On June 19, 1986, a Sheriff’s Return Showing Defendant Not Found was filed declaring defendant was unable to be located in Gallatin County. On that same date, attorney for Weissman & Sons filed a summons for publication. Publication occurred June 14, July 1 and 8, 1986. On August 5, 1986, Weissman & Sons filed a request for entry of default, which was granted. Subsequently, a motion for default judgment was heard before the District Court which was granted August 14, 1986, in the amount of $2,210.92 plus interest, and a civil penalty of $500.

Following the entry of default judgment, Weissman & Sons obtained a writ of execution August 27, 1986. A sheriff’s sale was held September 24, 1986, at which time the motorcycle was removed from storage and sold for $450. The towing and storage costs amounted to $1,080.00.

Weissman & Sons subsequently filed a motion to determine reasonable costs. A hearing on the matter was held October 29, 1986. At the hearing Weissman & Sons introduced evidence that the standard storage cost in Bozeman at a storage warehouse for a motorcycle to be $18 monthly. The testimony did not reveal whether such storage was heated. The Sheriffs Department produced testimony from a towing service operator and from an auto parts store manager that their inside heated storing charges would be $7.50 and $10 a day respectively.

The District Court ruled against Weissman & Sons, finding a lack of communication by Weissman & Sons and that the sheriff erred on the side of keeping the property in an insured, heated storage area. Weissman & Sons appeals and raises the following issues:

1) Whether the Gallatin County Sheriff exceeded his authority in placing property seized pursuant to a writ of prejudgment attachment with a third party keeper without obtaining a court order?

2) Whether a county sheriff, in seizing and storing property pursuant to a writ of prejudgment attachment, is acting as a trustee for all parties to writ of prejudgment attachment?

3) Whether the District Court erred in finding that the storage costs were reasonable?

The first issue raised by Weissman & Sons is whether the sheriff violated Section 27-18-301, MCA, and Section 7-32-2142, MCA, by employing a keeper without first obtaining a court order. Section 27-18-301, MCA, provides that a writ of attachment must direct the sheriff to “attach and safely keep” the defendant’s property. Section 7-32-2142, MCA, provides:

“For the expense in taking and keeping possession of and preserving property under attachment, execution, or other process, the sheriff shall receive such sum as the court or judge may order, not to exceed the actual expense incurred. No keeper must receive to exceed $10 per day, and no keeper must be employed without an order of court or be so employed unless the property is of such character as to need the personal attention and supervision of a keeper. No property shall be placed in charge of a keeper if it can be safely and securely stored or where there is no reasonable danger of loss.”

The record shows Weissman & Sons did not raise violation of Section 7-32-2142, MCA, before the District Court and the court did not consider this section in rendering its decision.

Weissman & Sons filed a motion to determine reasonable costs alleging the sheriff did not attempt to locate storage at a reasonable price. Weissman & Sons did not raise violation of Section 7-32-2142, MCA, in its affidavit supporting the motion, proposed findings, at the hearing, or in its motion to reconsider. Weissman & Sons contends that language in its brief in support of motion to reconsider raised the issue of employment of a keeper by the sheriff without court order. We find no language in Weissman & Sons’ briefs or in the hearing transcripts which brought this issue to the attention of the District Court. There was no citation of Section 7-32-2142, MCA, nor was the statute mentioned at the hearing on the motion to reconsider. The District Court found the costs to be reasonable which was the only issue clearly presented to the court. We will not address an issue on appeal which was not presented to the District Court. Chadwick v. Giberson (Mont. 1980), 618 P.2d 1213, 37 St.Rep. 1723.

The next issue raised by Weissman and Sons is that the sheriff in seizing property under writ of attachment acts as a trustee to the parties with an interest in the seized property. Weissman & Sons contends that the sheriff violated his duty as a trustee by failing to secure the cheapest available storage. Weissman & Sons cite Sherlock v. Vinson (Mont. 1931), 90 Mont. 235, 1 P.2d 71, wherein this Court held the sheriff to be a trustee for the debtor and creditor in conducting an execution sale. We are not concerned with an execution sale in this case, but with reasonable storage costs.

The duty of the sheriff in this instance was to “attach and safely keep” the debtor’s property pursuant to the writ of attachment. The expenses of keeping the seized property should be reasonable, which is consistent with the safekeeping of the property. 30 Am.Jur. 2d, Execution, Section 272. There is no dispute that the sheriff placed the motorcycle in a heated, insured storage area. Testimony reveals that the motorcycle had part of its engine disassembled and protection from the weather was necessary. Whether or not the sheriff violated his duty to safely keep the property due to alleged exorbitant storage costs is next addressed. Weissman & Sons contends that $5 a day storage costs are clearly unreasonable and that the testimony established the “going rate” for storage costs in Bozeman to be exorbitant. Weissman & Sons presented testimony that storage at a commercial storing facility for a motorcycle would be approximately $18 a month. The testimony did not reveal whether such storage space was heated.

The sheriff presented testimony that two Bozeman area businesses charge $7.50 and $10 a day for inside, heated storage. These businesses provide storage but are not in the storage business and determine their storage prices based on the “going rate” in Bozeman.

Further testimony at the hearing revealed that the sheriff’s department did not make an effort to find the cheapest storage available for the seized property. Weissman & Sons admitted that it was aware the motorcycle was being stored at Art’s Towing but never inquired as to storage costs during the 190 days the motorcycle was in storage.

The District Court found the storage costs to be reasonable. There is substantial credible evidence in the record supporting this finding. As noted by the District Court, it is not unusual for the value of seized property to be consumed by storage costs and creditors should be aware of that fact.

The District Court is affirmed.

MR. JUSTICES WEBER, GULBRANDSON, SHEEHY and HUNT concur.


source: Caselaw Access Project

author: MR. JUSTICE GULBRANDSON

license: Public Domain

text:
    JEROME JOHNSON, Claimant and Respondent, v. J.W. GIBSON, Employer, and FIDELITY & CASUALTY COMPANY OF NEW YORK, Defendants and Appellants.
    No. 86-486.
    Submitted on Briefs April 3, 1987.
    Decided July 23, 1987.
    740 P.2d 665.

      Herndon, Harper & Munro; Donald R. Herndon, Billings, for defendants and appellants.
    Keefer Law Firm, Gene R. Jarussi, Billings, for claimant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Fidelity & Casualty Company of New York (the insurer) appeals a Workers’ Compensation Court order which grants a lump sum advance to the claimant, Jerome Johnson. Johnson cross-appeals contending the court should have increased his award by 20% for insurer unreasonableness. The issues on appeal are (1) whether the court erred in granting a lump sum advance to claimant to pay a debt which he had incurred in anticipation of a settlement of his claim, which settlement did not occur; (2) whether the court erred in awarding attorney’s fees and costs to claimant; and (3) whether the court erred in refusing to impose a 20% penalty upon the insurer for unreasonably refusing the lump sum advance. We affirm.

In April 1981, claimant suffered a severe injury while working for J.W. Gibson. The injury was compensable for workers’ compensation purposes. As a result of the injury, claimant is a paraplegic and is confined to a wheelchair. The insurer accepted liability for claimant’s injury and has paid, and apparently continues to pay, temporary total disability benefits to claimant.

In the fall of 1982, claimant bought a new vehicle as his old car was unreliable on snow and ice. The insurer provided claimant with a $9,100 lump sum advance settlement to enable him to buy a new two-door car, a Dodge 400. Because of his disability, claimant had difficulties with his new vehicle. To get in and out of the car, he had to disassemble his wheelchair, place it on the seat next to him and assemble the chair again to get out. In taking the wheelchair in and out of the car, claimant tore up the car’s interior with the chair’s frame. Moreover the chair was very difficult to disassemble in cold weather. The car was also unsatisfactory in that claimant could not effectively strap his legs down to the car seat. Claimant suffers occasionally from leg spasms. Without being able to strap his legs down, claimant suffered bruises on his legs from having leg spasms while driving.

Beginning at least in 1984, claimant was aware that his attorney was conducting settlement negotiations with the insurer. Claimant’s attorney informed him of at least one settlement proposal whereby the insurer would pay claimant $50,000 “upfront” and monthly payments. Claimant had regular discussions with his attorney about a possible settlement of the workers’ compensation claim. The parties apparently exchanged several different proposals.

In July 1984, claimant traded his Dodge 400 car in on a new 1984 GMC van because of his difficulties with the car. He could enter and exit the van without disassembling his wheelchair. He could also strap his legs down in the van so as to avoid bruising his legs when he suffered leg spasms. Prior to the purchase, claimant made no request to the insurer to provide him with a lump sum advance to pay for the van nor did he notify the insurer of his intentions of purchasing the van. Claimant received trade-in value for his car and signed a one year promissory note obligating him to make one approximately $21,000 payment in July 1985 in full payment for the van. Claimant testified that he signed the promissory note with the idea that his attorney and the insurer were close to a settlement agreement and would settle his claim within one year.

Eventually, the settlement negotiations broke down and no final settlement was reached. Claimant requested that the insurer provide him with a lump sum advance sufficient to pay off his debt on the van. The insurer refused to make that lump sum advance. In March 1985, however, the insurer did make a lump sum advance of $1,285 to claimant for tuition for a correspondence course in gemology. In June 1986, claimant filed a petition with the Workers’ Compensation Court requesting a lump sum advance to pay off the debt on his van. In September 1986, the court filed its judgment ordering the insurer to pay to claimant a lump sum advance sufficient to pay off the debt plus accrued interest. The court refused to impose the 20% penalty upon the insurer but did award claimant his costs and attorney’s fees. This appeal followed.

The first issue is whether the court erred in granting the lump sum award to claimant. Section 39-71-741, MCA, provides the Workers’ Compensation Court with general authority to grant lump sum awards. The date of claimant’s injury predates the 1985 amendments to Section 39-71-741, MCA, and, therefore, those amendments are not applicable to this case. Buckman v. Montana Deaconess Hosp. (Mont. 1986), [224 Mont. 318,] 730 P.2d 380, 43 St.Rep. 2216; Odenbach v. Buffalo Rapids Project (Mont. 1987), [225 Mont. 96,] 731 P.2d 1297, 44 St.Rep. 67. The applicable law was stated in Byrd v. Ramsey Engineering (1985), [217 Mont. 18,] 701 P.2d 1385, 1387, 42 St.Rep. 991, 993-994; quoting in part from Willoughby v. Arthur G. McKee & Co. (1980), 187 Mont. 253, 256-257, 609 P.2d 700, 701-702;

“The general rule concerning the award or denial of lump sum settlements under the Workers’ Compensation Act is well settled in this state. Lump sum settlements are only granted in exceptional circumstances. Where the best interests of the claimant are generally served by paying compensation in regular periodic installments, the conversion of benefits to a lump sum settlement has been recognized as the exception rather than the rule. (Citations omitted) . . .
“Lump sum settlements are only granted where there is ‘outstanding indebtedness,’ ‘pressing need,’ or where ‘the best interests of the claimant, his family and the general public will be served.’ . . . the decision to award or deny a lump sum settlement will not be interfered with on appeal unless there hás been an abuse of discretion. (Citations omitted.)”

The Byrd case is similar to the situation presented by this appeal. There, the claimant purchased a house in anticipation of his workers’ compensation award. The Workers’ Compensation Court declined to award Byrd a lump sum advance to pay off his house loan. We reversed and held that Byrd was entitled to receive the remainder of his benefits in a lump sum.

Similarly, we now hold that the court did not abuse its discretion in awarding claimant Johnson a lump sum award to pay for his van. Claimant has shown a pressing need for the van. The bank will repossess the van if claimant does not receive a lump sum advance to pay for it and he could also be liable for a deficiency judgment. It is his only automobile and he lives seven miles out of town. We also note the severe difficulties which claimant had with his previous vehicle and handling his wheelchair. Finally, it appears that claimant sincerely believed that a settlement would be reached enabling him to pay for the van. The best interests of claimant, his family and the general public will be served by a lump sum award sufficient to pay off this outstanding indebtedness.

The second issue is whether the lower court erred in refusing to impose the Section 39-71-2907, MCA, 20% penalty upon the insurer for unreasonable delay or refusal to pay.

“Whether an action is ‘unreasonable’ under this statute is a question of fact which is subject on appeal to the limited review of the substantial evidence test. (Citation omitted.) If there is substantial evidence to support a finding of ‘unreasonableness,’ this Court cannot overturn the finding.”

Wight v. Hughes Livestock Co., Inc. (Mont. 1981), 634 P.2d 1189, 1192, 38 St.Rep. 1632, 1636. The Workers’ Compensation Court held that the insurer was not unreasonable and, as part of its reasoning behind that holding stated:

“The Court is aware of the defendant’s predicament and agrees in principal. This debt was incurred by the claimant without any authorization or approval by the defendant. Defendant had no voice in the making of a debt for which it is now held responsible . . .
“The claimant has acted irresponsibly. Yet given the claimant’s earnings when injured, his age and the severity of his injury, it is no surprise that he has little expressed appreciation for the financial predicament he has created .... We caution counsel to advise their clients to not spend money that does not exist... In fairness to all parties, it is appropriate that the repayment of the advance begin immediately by reducing the current biweekly benefits being paid to the claimant.”

Substantial evidence supports the court’s determination that the insurer was not unreasonable and we defer to that finding. We note that previously the insurer had freely provided two lump sum advances to claimant, one of those being for the purchase of a vehicle.

The last issue is whether the court erred in awarding attorney’s fees and costs to the claimant under Section 39-71-612, MCA. Appellant argues that this section is not authority for a grant of attorney’s fees where the sole controversy is the propriety of a lump sum advance. We disagree. In Polich v. Whalen’s O.K. Tire Warehouse (Mont. 1981), 634 P.2d 1162, 38 St.Rep. 1572, we held that attorney’s fees may be awarded under this section where a dispute over a lump sum advance is resolved in the claimant’s favor. Appellant also argues that Lasar v. Oftedal & Sons (Mont. 1986), [222 Mont. 251,] 721 P.2d 352, 43 St.Rep. 1239, mandates that no attorney’s fees can be awarded. That case is inapplicable. There, the insurer conceded permanent total disability three weeks before trial and, therefore, “no controversy existed at trial and the amount awarded was the same as that agreed upon as due.” Lasar, 721 P.2d at 354. Here, there was a controversy at trial which was resolved in claimant’s favor and, therefore, the award was proper.

Affirmed.

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


author: MR. JUSTICE WEBER

text:
    THOMAS G. WALLER and Linda L. Waller, Plaintiffs and Appellants, v. DONALD ENGELKE, individually; Charles Engelke, individually; Charles Engelke and Donald Engelke, Doing Business as Charles and Don Engelke, a partnership, Defendants and Respondents.
    No. 86-512.
    Submitted May 28, 1987.
    Decided July 27, 1987.
    Rehearing Denied Aug. 18, 1987.
    741 P.2d 385.

      David L. Irving, Glasgow, David S. Evinger argued, Robins, Zelle, Larson and Kaplan, Minneapolis, Minn., for plaintiffs and appellants.
    Loren J. O’Toole, O’Toole & Hunt, Plentywood, Thomas M. Monaghan argued, Lucas & Monaghan, Miles City, for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiffs Tom and Linda Waller brought suit in the Fifteenth Judicial District, Roosevelt County, against Donald Engelke and his father, Charles Engelke, both individually and as a partnership, to recover damages for injuries suffered by Tom Waller while he was a passenger in a plane which crashed while piloted by Donald Engelke. The District Court granted the summary judgment motions of Donald Engelke and Charles Engelke. The Wallers appealed both summary judgment orders. We affirm in part, reverse in part and remand for appropriate proceedings.

The issues are:

1. Did the District Court err in granting summary judgment to Charles Engelke?

2. Did the District Court err in granting summary judgment to Donald Engelke?

On January 5,1984, Donald Engelke was the pilot and Tom Waller the passenger in a Cessna 152 airplane. The District Court found that they were flying at an altitude of 300 or 400 feet and were looking for and hunting coyotes when the airplane stalled and crashed. Donald Engelke and Tom Waller were both seriously injured in the crash. Donald Engelke did not have his private pilot’s license, although he did have his student permit.

The National Transportation Safety Board (NTSB) found that the probable causes of the accident were: (1) improper airspeed maintained by the pilot; and (2) improper use of the aircraft and inadequate initial training by the pilot. The NTSB found that factors relating to the accident were: (1) inadequate preflight preparation; (2) excessive aircraft weight and balance loads; and (3) improper altitude.

The District Court found that the hunting was not related to a farming partnership between Charles Engelke and Donald, his son, and granted Charles Engelke’s motion for summary judgment, stating:

“In order to impose liability on Charles Engelke, the plaintiffs would have to show that the alleged negligence of Donald Engelke took place in the ordinary course of the business of the alleged partnership between Donald and Charles Engelke or that the wrongful act or omission of Donald Engelke was performed with the authority of Charles Engelke. (Section 35-10-305, MCA.) The plaintiffs offered no proof that the hunting of coyotes was in any way related to the alleged farming partnership of Donald and Charles Engelke. The plaintiffs offered no proof that Charles Engelke had ever given Donald Engelke authority to fly the airplane on behalf of the partnership on hunting trips.
“Thus, the Court is unable to find any evidence which would support either of the two conditions which would impose liability on Charles Engelke for the alleged negligence of Donald Engelke.”

The District Court also granted Donald Engelke’s motion for summary judgment. It concluded that the accident happened while Donald Engelke and Tom Waller were engaged in an illegal activity of hunting coyotes from an airplane and thus were in pari delicto. The Wallers appealed both summary judgment orders.

I

Did the District Court err in granting summary judgment to Charles Engelke?

Section 35-10-305, MCA, regarding partnership liability provides:

“Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership or with the authority of his copartners, loss or injury is caused to any person not being a partner in the partnership or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act.”

Section 35-10-304, MCA, regarding partnership knowledge or notice, provides:

“Notice to any partner of any matter relating to partnership affairs and the knowledge of the partner acting in the particular matter, acquired while a partner or then present to his mind, and the knowledge of any other partner who reasonably could and should have communicated it to the acting partner operate as notice to or knowledge of the partnership, except in the case of a fraud on the partnership committed by or with the consent of that partner.”

The issue is whether there is any evidence that Donald Engelke’s flight activities were performed in the ordinary course of any partnership between Donald and his father Charles, or whether the flights were performed with the authority of Charles Engelke. The Wallers contend that there are genuine issues of material facts on both of these questions.

First, the Wallers assert that Donald Engelke and Charles Engelke were partners in a farming operation and that the flight activities on the date of the accident took place in the ordinary course of the farming partnership. In support of that theory, the Wallers contend: (1) that seed crop, a partnership asset, was used in part as collateral for the purchase of the plane; (2) that the plane was listed by Donald Engelke as an expense of his farming operation; (3) that on at least one occasion Donald Engelke used the plane to pick up parts for crop spraying; and (4) that one purpose of the flight on the day of the accident was to check out the farming operation. We conclude that the plaintiffs have failed to establish that the flight took place in the ordinary course of any farming partnership between Donald and Charles Engelke.

The depositions and affidavits show that Tom Waller took his shotgun and shotgun shells with him on the plane and that both Tom Waller and Donald Engelke were hunting at the time of the crash. The flight occurred in early January when farming was not taking place on the Engelke farm. The Wallers failed to show that either Tom Waller or Donald Engelke were checking on any aspect of the farming operation. The depositions show that Tom Waller and Donald Engelke intended to hunt something of value on the date of the accident. The flight pattern and altitude of 300 to 400 feet is consistent with hunting. The Wallers failed to rebut the deposition testimony that Tom Waller had not been asked by anyone to check out the farming operations of either Donald or Charles Engelke.

Furthermore, the depositions of both Tom Waller and Donald Engelke establish that the crash took place on land owned by Melvin Nelson. At the time of the crash they could not have been checking any farming operation of either Donald or Charles Engelke. The depositions and affidavits establish without contradiction that Tom Waller and Donald Engelke were hunting from the airplane on the day of the accident and were not engaged in a farming operation. The Wallers have failed to establish an issue of material fact.

In addition, the Wallers have failed to establish that the flight activities on the date of the accident were performed with the authority of Charles Engelke. The Wallers contend that Section 35-10-305, MCA, provides that a partner can authorize an action by implicit as well as explicit means; and argue that Charles must have known about Donald’s use of the plane in the farming operation and therefore he must have authorized such usage. However, the uncontradicted deposition testimony submitted by the defendants established that Charles Engelke did not authorize anyone, either explicitly or implicitly, to check out the farming operation by air.

Charles Engelke, Donald Engelke, and Delores Engelke, Charles’ wife, all testified by deposition that the plane was purchased by Donald for his own use. The Wallers failed to establish any connection between the flight at the time of the crash and Charles Engelke. The hunting of coyotes from the plane was not connected to the alleged farming partnership of Donald and Charles Engelke. The fact that Donald Engelke owned and piloted the plane in which Tom Waller was hunting in no way has been connected to Charles Engelke. Simply put, Charles Engelke had no connection to the events which led to the claimed injury of plaintiffs.

In summary, the plaintiffs have failed to establish that the alleged negligence of Donald Engelke took place in the ordinary course of the alleged farming partnership between Donald and Charles Engelke, or that the alleged negligence was performed with the authority of Charles Engelke. The District Court’s summary judgment order as to Charles Engelke is affirmed.

II

Did the District Court err in granting summary judgment to Donald Engelke?

The District Court concluded that the airplane accident occurred while Donald Engelke and Thomas Waller were engaged in the illegal activity of hunting coyotes from an airplane without a proper permit. We note that in general no game birds, game, or fur-bearing animals may be killed, taken or shot at from any type of aircraft. Section 87-3-126, MCA. However, predatory animals that prey upon livestock, specifically including coyotes and lynx, may be hunted from the air if Department of Livestock regulations are followed. See Section 81-7-101, MCA, and following sections. Under A.R.M. Sections 32.22.101 to 32.22.106, permits to' hunt predatory animals from the air will be issued only to Montana-domiciled licensed pilots with at least 200 total flying hours whose aircrafts meet federal and Montana aeronautical requirements.

The court granted Donald Engelke’s motion for summary judgment based upon the in pari delicto doctrine. We agree with the court’s conclusion that the accident occurred while Donald Engelke and Thomas Waller were engaged in an illegal activity. The record clearly demonstrates that Donald Engelke and Thomas Waller were hunting coyotes from the airplane moments before the crash. However, we disagree with the court that the in pari delicto doctrine bars this lawsuit as to Donald Engelke.

The in pari delicto doctrine, found at Section 1-3-215, MCA, provides:

“Between those who are equally in the right or equally in the wrong, the law does not interpose.”

The Montana statute was originally enacted in 1895. The statute is not clear in its wording. What is meant by “those who are equally in the right?” The cases which we have examined have not applied a theory to people equally in the right so that we are unable to state what was intended by that phrase. In a similar way, what does “equally in the wrong” mean? In interpreting this doctrine, the courts of other states have not required the trial court to analyze the evidence and determine if in fact there is an equality in wrongdoing similar to the comparisons required under our comparative negligence law in Montana. Instead, the courts have indicated that if the conduct is grievously wrong from a moral or criminal standpoint, the law will deem the parties to be equally in the wrong and not allow one wrongdoer to sue the other. We further point out that the statute does not establish whether the wrong mentioned includes wrongfully engaging in, as an example, negligent action, or is to be limited to some form of criminal conduct. If it is limited to criminal conduct, there is no suggestion of the nature of the wrongdoing which is sufficient to come under the statute. In the absence of clear statutory guidance, we are required to look to case law to establish the nature of the in pari delicto doctrine.

The doctrine long has been recognized in both English and American jurisprudence. Washington Gaslight Co. v. District of Columbia (1896), 161 U.S. 316, 16 S.Ct. 564, 40 L.Ed. 712, contains a good discussion of the in pari delicto doctrine. This case involved a personal injury claim by a woman who stepped into an open box placed in the city sidewalk by the gas light company. After recovery by the woman from the District of Columbia, the District attempted to recover from the gas company. The company contended that both the District and the company had a legal obligation to keep the sidewalk free of the hazard of an open box, and that as a result the District and company were in pari delicto, barring recovery by the District. The U. S. Supreme Court concluded that the doctrine did not bar recovery between the company and the District, and stated:

“The principle thus announced qualifies and restrains within just limits the rigor of the rule which forbids recourse between wrongdoers. In the leading case of Lowell v. Railroad, 23 Pick. 24, 32, the doctrine was thus stated:
“ ‘Our law, however, does not in every case disallow an action by one wrongdoer against another to recover damages incurred in consequence of their joint offense. The rule is, “In pari delicto, potior est conditio defendentis.” If the parties are not equally criminal, the principal delinquent may be held responsible to his codelinquent for damages incurred by their joint offense. In respect to offenses in which is involved any moral delinquency or turpitude, all parties are deemed equally guilty, and courts will not inquire into their relative guilt. But where the offense is merely malum prohibitum, and is in no respect immoral, it is not against the policy of the law to inquire into the relative delinquency of the parties, and to administer justice between them, although both parties are wrongdoers.’ ”

Washington Gaslight Co. v. District of Columbia (1896), 161 U.S. 316, 327-28, 16 S.Ct. 564, 568, 40 L.Ed. 712, 718-19.

This case points out that the in pari delicto doctrine generally forbids recourse between wrongdoers but also points out that the doctrine does not apply to every case of wrongdoing. The Court emphasized that in respect to offenses which involved moral delinquency or turpitude, all parties were deemed equally guilty and the Court would not inquire into their relative guilt. While we agree with the theory, we do not choose to adopt the terminology of moral delinquency or turpitude. Instead we conclude that where offenses have involved criminal conduct or delinquency of which the law strongly disapproves as a matter of public policy, the parties are to be deemed equally guilty and the courts will not inquire further into their relative guilt. Following the guidance of Washington Gaslight Co., we further conclude that conduct prohibited by law which is not strongly condemned by public policy as a matter of serious criminal conduct or delinquency, may not be sufficient to bar recovery; and that in such a case, it is appropriate for the law to inquire into the relative delinquency of the parties and to administer justice between them.

In a similar manner, courts from Washington and Oregon have recently been faced with negligence cases where the parties were allegedly in pari delicto, and in both cases the courts allowed the lawsuit to continue for public policy reasons. In McKinley v. Weidner (1985), 73 Or.App. 396, 698 P.2d 983, a client brought a negligence action against his attorney, alleging the attorney told him to tender and then dishonor a check in a ploy to recover a boat from a third party. The Oregon Court of Appeals reversed the lower court’s decision that the suit was barred and discussed the in pari delicto doctrine:

“Oregon has also recognized the public policy orientation of the doctrine. In McElwee v. McElwee, 171 Or. 462, 138 P.2d 208 (1943), the court said:
“ ‘The maxim being one founded on public policy, public policy may require its relaxation. Even when the parties have been found to be in pari delicto, relief has at times been awarded on the ground that in the particular case public policy has been found to be best conserved by that course.’ 171 Or. at 467, 138 P.2d 208, quoting Condit v. Condit, 115 Or. 481, 482-83, 237 P. 360 (1925).”

McKinley, 698 P.2d at 986.

Likewise, in Goldberg v. Sanglier (1982), 96 Wash.2d 874, 639 P.2d 1347, the Washington Supreme Court reversed the lower court’s decision that the case was barred and reinstated the trial court’s judgment. After an extensive discussion of the in pari delicto doctrine, the Washington Court held that the suit was not barred because “[pjublic policy is better served by upholding the trial court in this case.” Goldberg, 639 P.2d at 1355. On the issue of the barring of a lawsuit by the in pari delicto doctrine, the Goldberg court stated:

“Where the conduct of the party who seeks to enlist support of the doctrine outrages public sensibilities more than the conduct of the party against whom the doctrine is sought to be applied, courts will not support application of the rule.
“Ultimately, a decision as to whether a party is in pari delicto relies on public policy considerations and not a neat calculus for determining differential fault. The fundamental concern that should guide a court in making its decision is whether the ‘public good [will be] enhanced.’ (Cite omitted.)”

Goldberg, 639 P.2d at 1353.

We agree with the holding of the Washington Court that if the conduct outrages public sensibilities, then the doctrine may properly be applied. In general we also agree with the theory that the fundamental concern should be whether the public good will be enhanced. However, we prefer not to use those terms because of difficulty in defining what public good was intended to mean.

For the assistance of the trial court, we will attempt to point out the broad parameters of the in pari delicto doctrine. We do so by the use of two examples. In the first example we assume that in the course of a bank robbery, one bank robber fires his gun and injures the other bank robber. May the injured bank robber sue the other bank robber for that negligent conduct in shooting him? Clearly the public policy aimed at the elimination of bank robbery outweighs the policy of allowing one person to sue another for personal injury. In that circumstance we would conclude that both robbers would be deemed equally responsible and the courts would not inquire into their relative guilt and would not allow recovery for personal injury. Our second example is at the other extreme. We assume two trucks are involved in a collision in which one driver was clearly negligent and the other driver was absent any fault. We further assume that one axle on each truck carried a load of 20,100 pounds which is 100 pounds over the allowable gross weight on one axle under Section 61-10-107, MCA. Would the equal wrong here in violating the maximum gross weight statute bar recovery by the non-negligent truck driver? In this example we would conclude that no significant public policy would be offended in allowing recovery and would therefore allow recovery by the non-negligent truck driver from the negligent truck driver. The in pari delicto doctrine would not be applicable in that factual circumstance.

We now consider the case before us. Our Montana statutes do allow hunting of coyotes from an airplane, but place limitations upon the right to hunt. The statutes limit the places and condition where hunting may take place from an airplane and especially require qualified flight training by the pilot so that the hunting may be done in safety and also in consistency with Montana wildlife goals. Here the defendant Donald Engelke did not have the required flight training and he had not made any application for a license. The hunting statute is not aimed at correcting serious criminal conduct comparable to armed robbery, homicide or other serious felonies. While there is a public policy of requiring a license before hunting from an airplane may be allowed, the public policy of Montana also gives the right to recover for injuries caused by the negligence of another party. We are required to compare or balance these public policies. We conclude that the hunting statute is not of a type involving criminal conduct or delinquency of which the law so strongly disapproves as a matter of public policy that access to the courts should be denied for tort purposes. We conclude that the in pari delicto doctrine should not be applied to bar a continuation of the present tort action.

In light of this decision, we conclude that we must overrule two prior Montana cases which relied on the in pari delicto doctrine to bar lawsuits. In Melville v. Butte-Balaklava Copper Co. (1913), 47 Mont. 1, 130 P. 441, an action to recover damages for the death of Michael Melville was brought by his widow and minor children. Mr. Melville’s death was alleged to have been caused by the wrongful act of the defendant. The Court affirmed the lower court’s judgment for the defendant, citing the in pari delicto doctrine, because Mr. Melville had worked in the defendant’s mine for more than eight continuous hours in violation of Montana law. The Court noted that the eight-hour law could be broken by both the employee and employer if the employee worked more than eight hours and that violation of the law was a misdemeanor.

In Jackson v. Lomas (1921), 60 Mont. 8, 198 P. 434, a minor, bought firecrackers from the defendant, a Butte businessman. A Butte ordinance prohibited the sale and discharge of fireworks within the city limits. The plaintiff injured himself when he discharged the fireworks and sued the defendant. The Court reversed the $1200 jury verdict based upon the in pari delicto doctrine because both the plaintiff and defendant had violated the city fireworks ordinance.

Although these two cases involved death or serious injury, tort recovery was barred based upon the in pari delicto doctrine. In Melville, the conduct which barred recovery of the miner’s widow was Mr. Melville’s working in excess of eight continuous hours. Today we view the eight hour law responsibility as resting primarily on the shoulders of the employer, and consider the obligation of the employer in that regard as being very significant as a matter of public policy. However, we do not conclude there is a similar public policy which attaches to the breach of law by the employee, as we recognize the extreme compulsion which normally rests upon the employee to comply with such requirements on the part of his employer. We therefore conclude that the conduct of Mr. Melville in working beyond the eight hours is not conduct of which the law strongly disapproves as a matter of public policy.

In a similar manner, in Jackson, the child had purchased fireworks in violation of the law and the court concluded that recovery for his injuries was therefore barred. Again we distinguish between the conduct of the adult seller of fireworks and the minor purchaser of the same. We conclude that the conduct on the part of the child in purchasing the fireworks is not conduct of which the law strongly disapproves as a matter of public policy.

In both Melville and Jackson we conclude that the conduct involving the plaintiff would today not be strongly condemned by public policy as a matter of serious delinquency or criminal conduct. We are required to balance the public policy in each case with regard to the prohibition of an employee working more than eight hours and the purchase of fireworks by a minor against the public policy of allowing the injured persons the right to recovery for injuries caused by the negligence of the other parties. In making this balance we today conclude that the in pari delicto doctrine would not bar recovery. We specifically overrule Melville v. Butte-Balaklava Copper Co. (1913), 47 Mont. 1, 130 P. 441, and Jackson v. Lomas (1921), 60 Mont. 8, 198 P. 434. We emphasize that these cases further assist in establishing the parameters of the in pari delicto doctrine.

We note that Kallio v. Northwestern Improvement Co. (1913), 47 Mont. 314, 132 P. 419, and Lencioni v. Long (1961), 139 Mont. 135, 361 P.2d 445, also involved the in pari delicto doctrine. Because these cases are more difficult to analyze, we do not choose to overrule them at this time. We prefer to allow the boundaries of the in pari delicto doctrine to be developed by future cases which come before us.

We affirm the District Court as to Charles Engelke, reverse the District Court as to Donald Engelke, and remand for further proceedings consistent with this opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY, HUNT and GULBRANDSON and HON. LEONARD H. LANGEN, District Judge, sitting for the former MR. JUSTICE MORRISON concur.


text:
    The STATE OF MONTANA, Plaintiff and Respondent, v. RICHARD McLEOD, Defendant and Appellant.
    No. 87-46.
    Submitted May 14, 1987.
    Decided July 28, 1987.
    As Amended Aug. 4, 1987.
    740 P.2d 672.

      Manley, Smith & Dupuis, James A. Manley, St.Ignatius, for defendant and appellant.
    Mike Greely, Atty. Gen., Clay R. Smith, Asst. Atty. Gen., Helena, Larry Nistler, Co. Atty., Poison, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Defendant Richard McLeod was found guilty by a jury of one count of criminal sale of dangerous drugs (marijuana). The District Court for the Twentieth Judicial District, Lake County, sentenced him to 40 years in the Montana State Prison, with 10 years suspended. He appeals. We reverse and remand for new trial.

Mr. McLeod has raised three issues on appeal. Because we return this case for new trial, we will not address the issue of whether the prison sentence given constitutes an abuse of discretion. The issues we consider are:

1. Was the conduct of the county attorney prejudicial to Mr. McLeod, thereby denying him a fair trial?

2. Did the District Court err in denying Mr. McLeod’s discovery motion for disclosure of the identity of a confidential informant?

In April 1986 Mr. McLeod was charged with two counts of criminal sale of dangerous drugs, stemming from alleged sales to undercover agents in November and December of 1985. His arrest was part of an areawide drug dragnet. Twenty-two arrests were made in all. The charge arising out of the November sale was dismissed before trial. On the remaining charge, Mr. McLeod was offered a plea bargain of 10 years in prison with all but 90 days suspended. The sentence would be served in the Lake County jail. Mr. McLeod refused to accept the plea bargain, and was the first of the dragnet defendants to go to trial.

The trial involved the sale, in Mr. McLeod’s home, of approximately 9 grams of marijuana to an undercover agent. The undercover agent testified at trial that a confidential informant had arranged the transaction and accompanied him to Mr. McLeod’s residence, observing the sale. The identity of the confidential informant was never disclosed to the defense, despite its efforts to discover the informant’s identity.

Pursuant to a motion in limine, the dismissed charge regarding the November sale was not to be discussed at trial. Nevertheless, the county attorney asked Mr. McLeod several questions about that event. Defense counsel objected to these questions and the District Court sustained the objections. The county attorney also questioned Mr. McLeod about whether he paid income taxes and about his past experience with and knowledge of drugs.

Mr. McLeod was convicted of felony sale of dangerous drugs. He was sentenced to 40 years in prison with 10 years suspended.

I

Was the conduct of the county attorney prejudicial to Mr. McLeod, thereby denying him a fair trial?

Mr. McLeod made a motion in limine prior to trial, to prohibit the county attorney from mentioning or offering into evidence any criminal or wrongful acts other than the act which was the subject of this trial. In granting the motion, the court stated:

“The defendant’s motion in limine concerning other wrongful acts is granted. That includes any reference to any general statements of this particular defendant with respect to whether he was or was not known to be a drug dealer. That simply is not relevant. This defendant is prepared to go to trial on the single and sole issue of Count II of the Information, which is whether he did or did not on December 19, 1985 purposely or knowingly sale [sic] marijuana to an undercover agent.
“And to be consistent with the Court’s ruling with respect to dismissing Count II, the motion in limine precluding the State’s introduction of any evidence relating to the alleged prior act of November 6th is granted. The motion in limine is granted so the State is precluded from, in any manner, introducing any evidence with respect to the alleged sale of November 6, 1985 by Gwen Davis or any other person.”

Mr. McLeod’s testimony on direct examination was very brief. He denied that he had seen the undercover agent prior to the initiation of these proceedings and denied that he had made the drug sale. Cross-examination, on the other hand, was extensive and lengthy. One of the first questions was, “Do you recall selling marijuana to a female person on November 6th of 1985?” This brought an immediate objection based on the motion in limine, followed by extensive in-chambers discussion between the attorneys and the court. The court told the county attorney several times that he could not go into questions on Mr. McLeod’s past drug dealings. The county attorney continued to argue the position that Mr. McLeod was lying and that he should be allowed to ask questions on previous drug dealings to test Mr. McLeod’s credibility. The court correctly concluded that no general statement by Mr. McLeod had opened the issues of his credibility or character. The court specifically told the county attorney that he could not ask Mr. McLeod if he had ever sold drugs before.

Back in open court, the county attorney asked Mr. McLeod several questions about his employment and friends, then asked, “Have you ever handled or touched a bag of marijuana in the last five years?” An objection was sustained.

The county attorney asked a series of questions ahout Mr. McLeod’s income as shown on his income tax, the sole purpose of which appears to be a suggestion that he was illegally earning his income through drug dealings. Two such questions were: “Was a major source of your income selling drugs?”, and “Was that [selling drugs] not your source of income in November of ‘85?”

The county attorney continued his questioning, asking a few pages later in the transcript, “Have juveniles come to you are [sic] house to purchase drugs?” The defense’s objection was sustained. The county attorney next asked, “Would you do anything like that [sell drugs to juveniles and others]?” The defense’s objection was sustained. Finally, the county attorney asked, “So what you’re telling me, you’re not the kind of person that would engage in that activity [selling drugs]; is that right?” At this point, defense counsel objected to the question and moved for a mistrial, stating:

“[t]he basis for my objection is that the county attorney is repeatedly and apparently deliberately acting in contradiction of this Court’s order which has been argued extensively. And I’m going to have no choice but to request a mistrial because of the innuendos and the suggestions and the unfair implications that are inherent in each of the approximately a half dozen questions that the county attorney has asked, all of which have been objected to, all of which have been sustained.”

The court sustained the objection, but denied the motion for mistrial without further comment.

“This Court has recognized that evidence of the same kind as that previously ruled incompetent should not be repeatedly offered within the hearing of the jury, and if so offered, even though rejected, may be grounds for reversal.” (Citations omitted.) State v. Bain (1978), 176 Mont. 23, 28, 575 P.2d 919, 922. Mr. McLeod argues that by repeatedly forcing his counsel to object to questions about his knowledge and use of drugs, the county attorney led the jury to believe that he had much to hide, denying him a fair trial. After reading the transcript, we must agree. We conclude that the county attorney’s repeated questions on other wrongful acts by Mr. McLeod violate the rule stated in Bain. We therefore reverse the conviction and remand for a new trial. We point out that the county attorney who prosecuted this case in District Court was the predeceased of the respondent county attorney on appeal.

II

Did the District Court err in denying Mr. McLeod’s discovery motion for disclosure of the identity of a confidential informant?

We discuss this issue for the court and counsels’ guidance on retrial. The undercover agent testified that the informant went with him to Mr. McLeod’s house to consummate the drug deal. Mr. McLeod argues that he had wished to rely upon an entrapment defense at trial, but that the refusal to allow him to speak to the informant crippled his ability to present such a defense. The District Court denied the defense’s motion for disclosure of the identity of the informant, ruling that disclosure would result in “substantial risk” to the operational effectiveness of the informant. Mr. McLeod therefore dropped that defense prior to trial, and relied on a defense that the events described by the undercover agent did not happen.

Rule 502, M.R.Evid., provides in relevant part:

“(a) Rule of privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law.
“(c) Exceptions and limitations.
“(2) Testimony on relevant issue. If it appears in the case that an informer may be able to give testimony relevant to any issue in a criminal case . . . and the public entity invokes the privilege, the court shall give the public entity an opportunity to show facts relevant to determining whether the informer can, in fact, supply that testimony.”

Section 46-15-324(3), MCA, provides:

“(3) Disclosure of the existence of an informant or of the identity of an informant who will not be called to testify is not required if:
“(a) disclosure would result in substantial risk to the informant or to his operational effectiveness; and
“(b) the failure to disclose will not infringe the constitutional rights of the accused.”

The United States Supreme Court has adopted a balancing test for determining whether disclosure of an informant’s identity is constitutionally required. The balancing test was described in Roviaro v. United States (1957), 353 U.S. 53, 62, 77 S.Ct. 623, 628-29, 1 L.Ed.2d 639, 646:

“We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.”

Several United States Courts of Appeals have interpreted this rule in cases in which defendants wanted to know informants’ identities to support entrapment defenses. Illustrative of the standard prescribed is that the defendant “must adduce some evidence of entrapment before the government is called upon to disclose to the defendant identity of an informant . . .” United States v. Sharp (6th Cir. 1985), 778 F.2d 1182, 1187. The Eleventh Circuit ruled that “[m]ere conjecture or supposition about the possible relevancy of the informant’s testimony is insufficient to warrant disclosure. . . The defendant must show that the informant’s testimony would significantly aid in establishing an asserted defense”. United States v. Kerris (11th Cir. 1984), 748 F.2d 610, 614. (Citations omitted.) We approve of these statements of the standard.

The State’s position that the unnamed informant was present at the alleged drug sale by Mr. McLeod to the undercover agent presents the possibility that the informant would be a material witness on an entrapment defense. However, Mr. McLeod presented no affidavits or other evidence to support his bald assertion that he needed to speak with the informant to establish and support an entrapment defense. The State, on the other hand, presented testimony by the head of the Lake County Sheriff detective’s office. He explained how disclosure of the identity of the informant would interfere with the informant’s continued operational effectiveness. We conclude that Mr. McLeod did not meet his burden of showing that the informant would be a material witness whose testimony might result in exoneration, and that he did not show that the failure to disclose the identity of the informant would' infringe his constitutional rights. We hold that the District Court’s order permitting nondisclosure was correct.

Reversed and remanded for new trial.

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

MR. JUSTICES McDONOUGH and HUNT concur in the result but do not feel the second issue needed to be addressed because of possible changes of circumstance on retrial.


author: MR. CHIEF JUSTICE TURNAGE

text:
    TOWN & COUNTRY ESTATES ASSOCIATION, Plaintiff and Respondent, v. KEN SLATER and Alice D. Slater, Defendants and Appellants.
    No. 87-91.
    Submitted on Briefs May 14, 1987.
    Decided July 28, 1987.
    740 P.2d 668.

      Pedersen & Conrad; Carol Hardy Conrad, Billings, for defendants and appellants.
    Gary Beiswanger, Billings, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Defendants Ken and Alice Slater appeal a November 5, 1986 permanent injunction by the Thirteenth Judicial District Court, Yellowstone County. The injunction prevented the Slaters from building a house in Town & Country Estates until a Design Review Committee approves the Slaters’ building plans and specifications. We reverse and vacate the injunction.

The Slaters present three issues for our review:

1. Did the District Court err in finding that a restrictive covenant which allows a Design Review Committee (DRC) to disapprove house plans and prevent construction is enforceable, when the disapproval is based upon “harmony of external design”?

2. Did the District Court err in finding that the covenant had not been abandoned, although none of the plans for previously-constructed houses had been approved by the DRC?

3. Did substantial credible evidence support the District Court’s findings that the DRC acted reasonably, in good faith, and not arbitrarily or capriciously?

Town & Country Estates Association (TCE) is a subdivision in Billings, Montana. TCE contains sixteen single-family houses, one duplex, and several vacant lots. The deeds to the TCE lots incorporate by reference a “Declaration of Covenants, Conditions and Restrictions,” which was publicly recorded on December 20, 1973.

The Declaration, in Article V, grants architectural control to the DRC and outlines relevant aesthetic factors.

“No residential . . . structure . . .shall be made . . . upon the Properties . . . until plans and specifications showing the nature, kind, shape, height, materials, colors and location of the same shall have been submitted to and approved in writing as to harmony of external design, location and relation to surrounding structures and topography, the construction, colors, and the materials to be used in the construction have been approved in writing by a Design Review Committee consisting of five members appointed by the Board of Directors of Town & Country Estates Association. [Emphasis added.]”

Article V does not place a minimum value on TCE houses, which vary in size, shape, color, building materials, and architectural style. However, the TCE houses all have a minimum of 2,400 square feet and shake roofs.

Prior to 1986, all TCE houses had either been built or approved by the developer of the subdivision. In early 1986, the Slaters expressed an interest in a TCE lot. They were aware of the prior approval restriction of Article V. In April of 1986, they learned that the developer had left the area, and that a five-member DRC was being formed to review Slaters’ house plan. The plan was the first to be reviewed by the newly-formed DRC. Slaters’ proposed house had a shake roof, wood siding, and 2,600 square feet of living space.

On May 1, 1986, Slaters bought the TCE lot before receiving approval of their house plan. On May 19, 1986, Slaters received a letter from DRC rejecting Slaters’ plan because the house did not “conform to the general tone of the area.” The letter also stated, “We would suggest that the price of the lot commands a residence more near the size of houses in the surrounding area. As you know, the neighborhood consists of $200,000 plus homes, and this is the kind of conformity that you should look to.” Without approval, Slaters began house construction on August 5, 1986.

On August 6, 1986, TCE obtained a temporary restraining order prohibiting the Slaters from building, alleging that Slaters’ house violated the minimum size restrictions contained in the Declaration. Based on the court’s order, Slaters resubmitted their plans to DRC. On August 26, 1986, the DRC again rejected the plan and stated, “we find that the structure is not in harmony of external design to surrounding structures and topography as specified in [the Declaration].” (Emphasis added.) On November 5, 1986, the District Court granted a permanent injunction against Slaters, until they complied with the TCE Declaration.

Issue 1

Did the District Court err in finding that a restrictive covenant which allows a Design Review Committee to disapprove house plans and prevent construction is enforceable, when the disapproval is based upon “harmony of external design?”

The District Court based its permanent injunction on the fact that the Slaters had not complied with Article V. The court held that the restrictive covenant was enforceable, and that the committee’s review was performed in good faith and not unreasonable.

Slaters contend that a prior approval covenant is not enforceable if it contains no specific objective standards. Slaters argue that the term “harmony of external design” is too vague and ambiguous to be enforceable. Slaters further argue that their house has major features found in existing TCE houses, and therefore their house would not differ in aesthetic merit from the other houses.

TCE contends that Article V is enforceable, even without express standards of application, because the DRC acted reasonably and in good faith. TCE admits that other TCE houses share some of the same physical characteristics and materials of the Slater house, but argues that Slaters’ design is not as attractive and harmonious as the existing houses.

Our review of this issue is guided by Higdem v. Whitham (1975), 167 Mont. 201, 208-209, 536 P.2d 1185, 1189, where we held:

“The overriding policy of individual expression in free and reasonable land use dictates that restrictions should not be extended by implication or enlarged by construction.”

Article V establishes several restrictive factors upon which the DRC must predicate its approval. We will closely review any enlargement of restrictions which conflict with reasonable land use, and which hinder substantive due process. As we held in State v. District Ct. (1980), 187 Mont. 126, 130, 609 P.2d 245, 248, “Moreover, restrictive covenants are to be strictly construed; ambiguities therein are to be construed to allow free use of the property.” However, the free use of the property must be balanced against the rights of the other purchasers in the subdivision.

Each purchaser in a restricted subdivision is both subjected to the burden and entitled to the benefit of a restrictive covenant. Generally, these covenants are valid if they tend to maintain or enhance the character of a particular residential subdivision. However, such covenants are enforceable only when used in connection with some general plan or scheme. The approval of plans by an architectural control committee is one method which helps maintain the value and general plan of subdivision construction.

We recognize that aesthetic considerations have a place in prior approval covenants, and that there are no absolute standards to guide a committee’s judgment and taste. Aesthetic terms must be sufficiently flexible to cover a variety of house designs. The term “harmony of external design” is not ambiguous per se. However, a restrictive covenant which fails to define the. standard of approval is too vague to be enforceable.

The record reveals that every TCE house had a unique external design, in a cacophony of styles. The houses ranged from single and split-level to bi-level, the roofs from gable-end and hip to mansard, and the siding from stucco and wood to stone. The styles were a hybrid mix of traditional, Tudor, ranch, and contemporary. The only common design characteristics were a 2400 square foot minimum size and a shake roof. When questioned at the show cause hearing on August 29, 1986, DRC was unable to state any design standard for TCE.

If the subdivision itself lacks consonance, the Slaters’ plan cannot lack harmony. In the context of TCE and Slaters’ plan, the term “harmony of external design” lacks the mutuality of obligation central to the purpose of a restrictive covenant. In view of the wide variety of designs, no one seemed burdened by the covenant except the Slaters.

Slaters’ plan was not discordant with others in the subdivision. The proposed house would be split-level contemporary, 2600 square feet, with a gable-end shake roof and wood siding. The single most distinguishing feature of the Slaters’ house was its cost, which was not an express factor under Article V. The proposed house would be worth approximately $135,000. The other TCE houses appraised above $200,000. As revealed in its initial rejection letter, DRC seems more concerned with harmony of appraisal than harmony of design. However, DRC’s review of external design was limited to the factors set forth in Article V, and to observable characteristics of all other houses in the subdivision.

The approval or disapproval of plans by the DRC must be based upon an objective design standard. Without a quantifiable standard to guide them, the decision of DRC is unenforceable. The record shows neither a uniform standard of design, nor a general plan regarding “harmony of external design” in the subdivision. We hold that the Slaters’ house fell well within the broad architectural spectrum of TCE houses. Applied to the TCE subdivision and Slaters’ plan, we hold that Article V lacks sufficient objectivity, and is vague to a degree that denies substantive due process to the Slaters.

We therefore vacate the injunction based on this issue, and need not proceed to appellants’ issues of notice and good faith.

MR. JUSTICES GULBRANDSON, HARRISON, HUNT and Mc-DONOUGH concur.


author: MR. JUSTICE WEBER MR. JUSTICE HUNT

text:
    MICHAEL HOMME, Claimant and Appellant, v. RAUENHORST CORPORATION, Employer, and Continental Casualty Company, Defendant and Respondent.
    No. 86-343.
    Submitted on Briefs March 12, 1987.
    Decided July 28, 1987.
    740 P.2d 1110.

      Kelleher Law Office, Robert C. Kelleher, Billings, for claimant and appellant.
    Garlington, Lohn & Robinson, Bradley J. Luck, Missoula, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The Workers’ Compensation Court found claimant to be permanently partially disabled and not entitled to temporary total disability benefits while he was being retrained. Claimant appealed. We affirm.

The determinative issue is whether the Workers’ Compensation Court erred in deciding claimant was not entitled to be paid continued temporary total disability benefits under Section 39-71-116(19), MCA, while he was in college being retrained.

Claimant was employed as a construction laborer by Rauenhorst Corporation when a %” drill fell approximately 85 feet from a building and landed in the middle of his back, fracturing a vertebra in the thoracic area of his back. Rauenhorst’s insurer, Continental Casualty Company, accepted liability and paid medical benefits and temporary total disability benefits. Claimant is now receiving permanent partial benefits, but would like to begin receiving temporary total benefits again while he is being retrained.

Six days after the accident, claimant went to a hospital emergency room, where X-rays were taken. After this initial examination claimant was seen several times by Dr. Richard A. Nelson, a neurologist. Dr. Nelson last physically examined claimant on July 31, 1984. Dr. Nelson diagnosed central injuries to the vertebra and/or to the disk, a fracture of the spinous process at T-10, and a small bony density that was thought to be causing a slight encroachment upon the the-cal sac. The thecal sac consists of strong fibrous sheaths which enclose the canal of the vertebra column. Dr. Nelson also said there was some innervation of the stomach muscles which would lead to some lifting restrictions.

Of central importance to this case, Dr. Nelson stated in his deposition that the claimant had reached maximum healing with regard to the tissues which had been fractured and that he had no argument with a three percent impairment rating being assigned to claimant. However, Dr. Nelson did not believe claimant should go back to his old job as a laborer because of the possibility of reinjuring his back. Dr. Nelson also recommended that a nuclear magnetic resonance (NMR) be done to determine if claimant could be helped by surgery. The NMR would have had to be performed somewhere outside of Montana.

Claimant also saw Dr. Henry H. Gary, a neurosurgeon, and Dr. Robert A. Sterling, an orthopedist, on February 11, 1986, almost a year and a half after Dr. Nelson’s last examination. Dr. Gary and Dr. Sterling found that claimant suffered from a fracture of the spinous process, but did not believe the encroachment upon the thecal sac was causing claimant any pain. Neither Dr. Gary nor Dr. Sterling gave any credence to Dr. Nelson’s innervation theory. Both Dr. Gary and Dr. Sterling agreed that claimant had reached full recovery as far as maximum healing was concerned and neither recommended further treatment.

The Workers’ Compensation Court found that:

“Given the differing medical opinions reached by Dr. Nelson on the one hand and by Drs. Gary and Sterling on the other, it is not surprising to find that there is also a degree of disagreement as to whether claimant has reached maximum healing.”

This issue of whether claimant had reached maximum healing is central to whether he is entitled to temporary total disability benefits.

Dr. Nelson declined to issue an impairment rating. However, Dr. Gary and Dr. Sterling concluded that claimant had reached maximum healing. Dr. Nelson listed several restrictions on claimant’s physical activities, including no climbing, only intermittent carrying of light weights, and limited walking. In contrast, Dr. Gary and Dr. Sterling released claimant to return to his previous employment without restriction.

Because of his back problems, claimant contacted the Social and Rehabilitation Services (SRS) whose services are offered to anyone with a vocational handicap. The SRS sponsored claimant and agreed to pay claimant’s tuition of $323 per quarter to attend Eastern Montana College as long as claimant maintains a 2.0 GPA. Claimant’s counselor at SRS testified Mr. Homme would have also been suitable for on-the-job training and would currently qualify for some positions which would not require any retraining.

Based upon the above outlined medical evidence, injury, and vocational potential, the Workers’ Compensation Court concluded that the claimant was not entitled to temporary total disability benefits under Section 39-71-116(19), MCA, while he was in college. Claimant appealed.

The issue is whether the Workers’ Compensation Court erred in deciding claimant was not entitled to be paid continued temporary total disability benefits under Section 39-71-116(19), MCA, while he was in college being retrained.

The standard of review we will use in this case is well settled:

“The function of this Court is to determine whether there is substantial evidence to support the findings and conclusions of the Workers’ Compensation Court. . . This Court will not substitute its judgment for that of the trial court as to the weight of the evidence on questions of fact. . . Where there is substantial evidence to support the findings of the Workers’ Compensation Court, this Court will not overturn the decision . .

Tocco v. City of Great Falls (Mont. 1986), [220 Mont. 221,] 714 P.2d 160, 163, 43 St.Rep. 310, 314, citing Bond v. St. Regis Paper Co. (1977), 174 Mont. 417, 419, 571 P.2d 372, 373.

Claimant was injured on June 22, 1984. On that date, the definition of temporary total disability found at Section 39-71-116(19), MCA (1983), provided:

“ ‘Temporary total disability’ means a condition resulting from an injury as defined in this chapter that results in total loss of wages and exists until the injured worker is as far restored as the permanent character of the injuries will permit. Disability shall be supported by a preponderance of medical evidence.”

Although Section 39-71-116(19), MCA (1983), was amended effective October 1, 1985, we will not consider the amended statute since this Court has held that the statute in effect on the date of claimant’s injury controls. Buckman v. Montana Deaconess Hospital (Mont. 1986), [224 Mont. 318,] 730 P.2d 380, 43 St.Rep. 2216. Because amended Section 39-71-116(19), MCA, provides that [a] worker shall be paid temporary total disability benefits during a reasonable period of retraining”, we emphasize that this holding does not apply to cases determined under the statute as amended in 1985.

We will first discuss the implicit determination by the Workers’ Compensation Court that the claimant was not entitled to permanent total disability benefits while attending college. The Court considered the two-factor test contained in Metzger v. Chemetron Corporation (Mont. 1984), [212 Mont. 351,] 687 P.2d 1033, 41 St.Rep. 1788, and concluded that the claimant had “failed to carry his burden of proving [that] he is so vocationally disabled because of his injury that he has no reasonable prospect of finding employment in his normal labor market.” The two-factor Metzger test requires claimant to introduce substantial credible evidence of: (1) the jobs which constitute his normal labor market; and (2) a complete inability to perform the duties associated with those jobs because of his work-related injury. The court concluded that the claimant had failed to introduce substantial credible evidence showing that he was unable to perform the duties associated with his employment because of his work-related injury. We will discuss the evidence in more detail later, but conclude that the substantial credible evidencé supports the holding of the Workers’ Compensation Court that claimant had a normal labor market, even absent retraining. We affirm the conclusion of the court that claimant was not entitled to permanent total disability benefits.

In order for claimant to receive temporary total disability benefits under the 1983 statute he must prove that his injury has resulted in a “total loss of wages” and his condition still exists because he is not “as far restored as the permanent character of the injuries will permit.” Section 39-71-116(19), MCA (1983).

Therefore, we will view the Workers’ Compensation Court findings of fact, conclusions of law, and judgment with an eye towards determining whether: (1) Mr. Homme’s injury resulted in his total loss of wages; and (2) whether his injury is as far restored as the permanent character of the injury will permit. Taking the second question first, the lower court determined that:

“Claimant has reached maximum healing, and is ‘as far restored as the permanent character of the injury will permit.’ Medically, claimant does not satisfy the statutory requirements for being temporarily totally disabled.”

This conclusion was reached after a careful discussion by the Workers’ Compensation Court of the medical testimony by Dr. Nelson, Dr. Gary, and Dr. Sterling. In essence, the court concluded that the medical evidence “undeniably weighs against Dr. Nelson’s innervation theory.” Regarding the healing of the fracture of the spinous process, both Dr. Gary and Dr. Sterling found that Mr. Homme had reached maximum healing. Dr. Nelson declined to issue an impairment rating. The Workers’ Compensation Court’s conclusion that Mr. Homme had reached maximum healing is supported by substantial evidence. Therefore, we affirm that conclusion.

Turning to the question of whether Mr. Homme’s injury has resulted in his total loss of wages, the lower court summarized the two vocational consultants’ testimony:

“. . . both of the vocational consultants who testified opined that claimant did have a normal labor market, even absent training.”

It is clear from the Workers’ Compensation Court’s conclusions that Mr. Homme’s injury has not resulted in his total loss of wages. Indeed, if Mr. Homme has had a normal labor market available to him since at least February 20, 1986, as the court found, then his injury has certainly not by necessity resulted in his total loss of wages.

Claimant also argues that the court was obligated to comment on testimony offered by five witnesses called by the claimant regarding his inability to work. In support of this argument, claimant cites a section from Professor Larson’s treatise on Workers’ Compensation law which states that a decision may be reversed as arbitrary and unsupported if uncontradicted evidence is not followed. In this case, the Workers’ Compensation Court had deposition testimony from medical doctors, as well as testimony from two vocational rehabilitation experts, who concluded claimant was presently able to work. Since the testimony of the five witnesses does not qualify as uncontradicted evidence, the court’s failure to comment on each witnesses’ testimony is not reversible error.

We affirm the Workers’ Compensation Court’s conclusion that Mr. Homme is not entitled to temporary total disability benefits, but only the permanent partial benefits which he is receiving. Based upon our decision as stated above, we also affirm the court’s denial of the 20 percent penalty and attorney fees and costs.

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

MR. JUSTICE HUNT

dissenting:

I dissent.

I do not see how the majority can hold that the Workers’ Compensation Judge is correct in finding that the claimant “failed to carry his burden of proving [that] he is so vocationally disabled because of his injury that he has no reasonable prospect of finding employment in his normal labor market in view of his present vocational retraining program.” He is either able to work and does not need to be retrained, or he cannot work and needs to be retrained. If it is the latter then he is entitled to total compensation whether it is temporary or permanent.

The evidence is that he cannot return to his job involving hard physical labor and needs to be retrained. That finding puts him within the meaning of the definition of temporary total disability found at Section 39-71-116(19), MCA (1983), provided:

“ ‘Temporary total disability’ means a condition resulting from an injury as defined in this chapter that results in total loss of wages and exists until the injured worker is as far restored as the permanent character of the injuries will permit. Disability shall be supported by a preponderance of medical evidence.”

The majority seems to hold that for the worker anything is possible and it is up to him to prove what he cannot do. There was testimony by experts that he could get a position in the banking business. The evidence shows the claimant to be an intelligent responsible person who may well have an aptitude for the banking business but how he would prove his capability one way or the other in that line without training is not clear from the evidence. Perhaps a claimant whose background is construction labor can move right into the banking business, but it will take a better record than the one before us to prove that. I would reverse the Workers’ Compensation Court.

MR. JUSTICE SHEEHY concurs in the dissent of MR. JUSTICE HUNT.


author: MR. JUSTICE HARRISON MR. JUSTICE HUNT,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BAILEY PETERSON, Defendant and Appellant.
    No. 86-92.
    Submitted on Briefs Feb. 19, 1987.
    Decided July 28, 1987.
    Rehearing Denied Sept. 15, 1987.
    741 P.2d 392.

      Charles M. Joslyn, Choteau, for defendant and appellant.
    Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Helena, James C. Nelson, Co. Atty., Cut Bank, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from a jury conviction entered in the District Court of the Ninth Judicial District, in and for Glacier County. Defendant was tried and convicted of narcotics-related offenses and now appeals. We reverse and remand for new trial.

Although defendant raises five issues for our review, because of our holding it is necessary to address only three:

(1) Did the District Court err when it denied defendant’s motion to suppress?

(2) Did the District Court err when it admitted evidence of telephone calls allegedly occurring between defendant and his drug supplier?

(3) Did the District Court err when it denied defendant’s jury instruction of a lesser included offense?

On April 6, 1985, the police department in Cut Bank, Montana, received an anonymous tip from Crimestoppers that a large shipment of “pot” was due to arrive in Cut Bank later that day via the bus. The parcel was said to be arriving from Texas and was to be picked up by any of three men, one of whom was said to be the defendant.

The information from the tip was given to Officer Richard Wevley of the Cut Bank Police Department. Officer Wevley went to the bus depot where he learned that the bus was scheduled to arrive in one hour. He also learned that the defendant had phoned the bus depot the previous day to see if a package had arrived for him.

Officer Wevley then met with the county attorney to prepare an application for a search warrant to seize and search the parcel that was the subject of the anonymous tip from Crimestoppers. Officer Wevley appeared before Justice of the Peace William L. Burns and signed the application for search warrant under oath. Justice of the Peace Burns issued a search warrant directing Officer Wevley to serve the warrant.

Officer Wevley returned to the bus depot as the defendant was signing a receipt for a parcel. Defendant took possession of the parcel and placed it in his truck parked outside the depot. At that point, Wevley approached the defendant and served the search warrant. Wevley and the defendant returned to the depot where Wevley opened the parcel and found a twenty-five pound, nine ounce bundle of marijuana. Wevley placed defendant under arrest and transported him to the police station.

At the station Wevley read defendant his Miranda rights and the asked him if he wished to make a statement. Defendant declined, stating that he could get shot in the back for making a statement. He did mention, however, that he had recently picked up another package similar to the one in question.

Defendant was charged with two felonies, possession of dangerous drugs and possession of dangerous drugs with intent to sell. He plead not guilty and stood trial in July 1985. He was convicted on each count and now appeals.

Issue 1

Did the District Court err when it denied defendant’s motion to suppress?

Defendant first challenges the validity of the search warrant pursuant to which Officer Wevley seized and searched the parcel of marijuana. Defendant filed a pretrial motion to suppress the seized marijuana on the grounds that the warrant was constitutionally defective. The District Court denied this motion. On appeal, defendant contends the District Court erred in denying his motion to suppress for two reasons — first, the warrant was unsupported by probable cause, and second, it failed to describe specifically what was to be seized.

Section 46-5-201, MCA, defines a search warrant:

“A ‘search warrant’ is an order:
“(1) in writing;
“(2) in the name of the state;
“(3) signed by a judge;
“(4) particularly describing the thing, place, or person to be searched and the instruments, articles, or things to be seized;
“(5) directed to a peace officer commanding him to search for personal property and bring it before the judge.”

We have reviewed the application for the search warrant and hold that it established probable cause for issuing the warrant.

The warrant in this case does not describe with particularity the article to be seized. The warrant authorizes the seizure of a package or parcel and the “contraband above described,” but there is not an “above described” large shipment of dangerous drugs or “pot” described in the warrant as mentioned in the application.

Standing alone, the warrant would be invalid for its failure to describe with particularity the contraband to be seized. If the warrant had been directed to an officer other than the officer who had made and signed the application, it would be invalid. However, in this case, Officer Wevley not only signed the application, which adequately described the contraband as a package containing “pot,” but he was also the same officer who served the warrant and seized the package of pot mentioned in the application.

When the application for the search warrant and the search warrant are read together and when, as in this case, the application is signed by the officer named in the warrant as the officer directed to make service of the warrant and who did personally make such service, the documents in combination satisfy the requirement of particularly describing the thing to be seized.

Officer Wevley did not go forth on a fishing trip with the search warrant. He identified the particular thing to be searched for in his application as a package of pot. He used the warrant to search for that particular thing, and that is what he seized. The District Court did not err in denying defendant’s motion to suppress the evidence seized.

Issue 2

Did the District Court err when it admitted evidence of telephone calls allegedly occurring between defendant and his drug supplier?

The District Court admitted evidence of telephone calls from various phone numbers in Montana to Texas. The phone numbers in Montana were of defendant’s mother, defendant’s brother, a business and a ranch. The State asserted that defendant made the calls. The State also presented evidence of phone calls from Texas to Montana.

No evidence was presented to link defendant to any of the phone calls. The State contends an inference is proper that defendant had knowledge of the drug shipment as evidenced by the phone calls.

Rule 402, M.R.Evid., states all relevant evidence is admissible. Rule 401, M.R.Evid., defines relevant evidence:

“Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence ...”

In State v. Smith (1983), 203 Mont. 346, 661 P.2d 463, 465, 40 St.Rep. 494, 496, we held that knowledge may be proven by “direct evidence or by evidence of acts, declarations, or conduct of the accused from which a jury may infer knowledge.”

Because we are reversing this case on other grounds, we need not reach this issue. However, we will note that a proper foundation must be developed before introduction of the telephone calls can be allowed.

Issue 3

Did the District Court err when it denied defendant’s jury instruction of a lesser included offense?

Defendant was charged with the offenses of possession of dangerous drugs (Count II) in violation of Section 45-9-102, MCA, and possession of dangerous drugs with intent to sell (Count I) in violation of Section 45-9-103, MCA. Both Count I and Count II were based on the same possession of contraband.

The jury found defendant guilty on both counts, and the court sentenced defendant on both counts.

The State may charge defendant with more than one offense when the same transaction may establish the commission of more than one offense, Section 46-11-502, MCA. However, a defendant may not be convicted of one offense if that offense is included in another. Section 46-11-502(1), MCA.

Section 46-ll-501(2)(a), MCA, provides:

“An offense is an ‘included offense’ when it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.”

The offense of criminal possession of dangerous drugs with intent to sell, Section 45-9-103, MCA, requires that each relevant element of criminal possession of dangerous drugs, Section 45-9-102, MCA, be proven along with the additional element of “intent to sell.” We hold that Section 45-9-102, MCA, is an included offense of Section 45-9-103, MCA.

Defendant’s proposed instruction Number 5 was refused by the District Court. It provided:

“If you are not satisfied beyond a reasonable doubt that the Defendant is guilty of the offense charged, he may, however, be found guilty of any lesser offense, the commission of which is necessarily included in the offense charged, if the evidence is sufficient to establish his guilt of such lesser offense beyond a reasonable doubt.
“The offense of Possession with Intent to Sell, Count II with which the Defendant is charged, necessarily includes the lesser offense of Possession of Dangerous Drugs, Count I.
“You may find the Defendant guilty of either the offense stated in Count I or in Count II, but not in both, or not guilty of either offense.”

If the evidence is such, the District Court is required to give an instruction on the lesser included offense. State v. Young (Mont. 1983), [206 Mont. 19,] 669 P.2d 239, 242, 40 St.Rep. 1474, 1478; State v. Gopher (Mont. 1981), [_Mont. _,] 633 P.2d 1195, 1197, 38 St.Rep. 1521, 1524. “[Defendant] may only be convicted of the greatest included offense about which there is no reasonable doubt.” Section 46-16-602, MCA.

We hold the District Court committed reversible error when it denied defendant’s instruction of a lesser included offense.

Reversed and remanded for new trial.

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

MR. JUSTICE HUNT,

concurring in part and dissenting in part:

I concur .in part and dissent in part. I concur with the majority’s conclusion that this case be remanded on the issue of the lesser included offense. I dissent in part because of the majority’s unsupported and unwarranted intrusion into the protections afforded by the Fourth Amendment of the United States Constitution and Article II, Section 11 of the Constitution of the State of Montana.

The Fourth Amendment clearly provides that no warrant shall issue without “particularly describing the place to be searched, and the persons or things to be seized.” Similarly, Article II, Section 11 of the Montana Constitution requires that:

“[n]o warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized . . .”

Despite these constitutional mandates, the following search warrant was issued:

“THE STATE OF MONTANA TO RICHARD WEVLEY, CUT BANK CITY POLICE OFFICER:
“A sworn application having been made before me by Richard Wevley, Cut Bank City Police, that he has reason to believe that at Treasure State News on west main street in Cut Bank, Mt. in a package or parcel addressed to any or all of the following, to wit: Baley [sic] Peterson . . .
“That I am satisfied that there is probable cause to believe that the property, evidence and contraband above describded [sic] is upon and in the package or parcel at Treasure State News said parcel or package described above.
“You are hereby commanded to serve this warrant and to search the described Treasure State News and the above described package or parcel for the evidence, contraband and property specified and if the property, evidence and contraband is found, you are to seize it along with any other contraband, property, and evidence of crimes which you may find . . .”

This warrant fails to describe with particularity the contraband to be seized. Nevertheless, under today’s ruling, the majority allows the State to use in its case-in-chief evidence obtained pursuant to an admittedly defective warrant. Not only does this “exception” to the particularity requirement lack any constitutional basis, it represents bad policy.

The majority seems to base its holding on the combination of two factors. The first is the search warrant application described with particularity that which was to be seized. And second, the same officer who submitted the search warrant application executed the search.

However appealing the majority’s holding appears at first glance, upon review it quickly becomes apparent this holding is based upon something other than the law. The majority relies upon the fact that Officer Wevley’s application for this warrant set forth with particularity that for which he sought authority to search. This is true but irrelevant. It is the search warrant itself, not the application, which provides the authority to conduct a search. Nowhere has it been argued that there exists any indication that the application was to be incorporated into the warrant. Without a valid authorization within the four corners of the search warrant, the officer who conducted this search was without constitutional authority to do so.

Yet the majority remarkably combines these two documents to satisfy the requirement of particularity. There is simply neither any factual nor legal basis for this conclusion. Before today, I thought it well established that the requirement of particularity was an express constitutional command, not a mere technicality. Lo-Ji Sales, Inc. v. New York (1979), 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920; Stanford v. Texas (1965), 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431. For an excellent discussion of this entire issue, see 468 U.S. 928, 104 S.Ct. 3430, 82 L.Ed.2d 702 (Mr. Justice Brennan dissenting to United States v. Leon (1984), 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 and Massachusetts v. Sheppard (1984), 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737.

The majority further bases its holding on the fact that the same officer both applied for the warrant and executed the search. Again, this circumstance should have no bearing on the legal issues at hand. Our state and federal constitutions require that before a search warrant may be executed, an officer must obtain prior judicial authority from a neutral and detached magistrate. It is this requirement of prior judicial authority which was designed to protect our individual constitutional liberties by defining precisely the conditions under which governmental agents could search private property. To insure continued protection of our individual rights, we must recognize this; we cannot rely upon the self-restraint of any governmental agency.

For the sake of simple expediency, the majority has sacrificed basic constitutional protections to the lure of convicting criminals. With scant discussion and absolutely no authority, the majority has created a remarkable exception to the Fourth Amendment to the United States Constitution and to Article II, Section 11 of the Montana Constitution. The majority ignores the fundamental constitutional importance of what is at stake here.


author: MR. JUSTICE HUNT,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BAILEY PETERSON, Defendant and Appellant.
    No. 86-092.
    Decided September 15, 1987.
    744 P.2d 870.
    Charles M. Joslyn, Choteau, for defendant and appellant.
    Mike Greely, Atty. Gen., Joe Roberts, Asst. Atty. Gen., Helena, James C. Nelson, Glacier Co. Atty., Cut Bank, for plaintiff and respondent.
   ORDER MODIFYING OPINION ON REHEARING

The State has petitioned for a rehearing in this case upon the limited issue of whether we have ordered an appropriate remedy for the improper multiple convictions of the defendant Bailey Peterson.

In its petition, the State points out that the offense of possession of dangerous drugs is a lesser-included offense of the possession of dangerous drugs with intent to sell, citing State v. Mitchell (Mont. 1981), [_Mont._,] 625 P.2d 1155, 1159, a case that involved the conviction of the defendant both upon an offense and a lesser-included offense. We held:

“. . . as previously stated, the trial court erred in entering judgment and conviction on both counts, not in submitting those charges to the jury. Consequently, if any prejudice to the defendant resulting from the district court’s error, it arose solely in the sentencing process which was conducted on the basis of an improper conviction of both solicitation and criminal mischief. Prejudice to the defendant in this regard can be cured by remanding the cause for resentencing.”

It appears that the general rule is that if a defendant is convicted of two crimes, one of which is a lesser-included offense of the other, the proper remedy is to remand the case to the trial court with instructions to vacate the conviction of the lesser charge where the sentence for the lesser-included offense does not exceed that for the main offense. U.S. v. Stromen (2d Cir. 1981), 667 F.2d 416, 417; U.S. v. Evans (2d Cir. 1981), 665 F.2d 54, 56; Tuckfield v. State (Alaska 1981), 621 P.2d 1315; People v. Brown (1974), 185 Colo. 272, 523 P.2d 986.

The defendant answers the petition, contending that he will be subject to double jeopardy if a new trial is had as ordered by the court, and that his conviction should be reversed and the case dismissed.

We conclude, however, that the better course is to reverse the conviction for the lesser-included offense only, and to remand for resentencing.

Therefore, following the path established by this Court in State v. Mitchell, supra, we modify our opinion decided July 28, 1987 as to the mandate for reversal and new trial. As modified, we order that this cause be remanded to the District Court. The conviction of the defendant for the offense of possession of dangerous drugs with intent to sell is by this Court affirmed. The conviction of the defendant for the offense of possession of dangerous drugs is by this Court vacated and set aside. The sentence heretofore imposed by the District Court is also vacated, and the District Court is ordered to re-sentence the defendant solely on the conviction here affirmed, after notice and hearing with respect to the resentencing.

DATED this 15th day of September, 1987.

s/J.A. Turnage, Chief Justice

s/John C. Sheehy, Justice

s/John Conway Harrison, Justice

s/Fred J. Weber, Justice

s/L.C. Gulbrandson, Justice

s/R.C. McDonough, Justice

MR. JUSTICE HUNT,

dissenting:

After reconsidering this case, I believe this case should have been dismissed on the grounds that the arresting officer had no judicial authority to undertake a search and seizure. As explained in my dissent, State v. Peterson (Mont. 1987), [225 Mont. 503,] 741 P.2d 392, 44 St.Rep. 1268, the search warrant involved did not set forth with particularity the items to be seized. It was facially defective and therefore, constitutionally invalid. The majority in their opinion, treats this defect as a mere technicality that is cured when the warrant applicant will be the same officer who executes the warrant. They cite no authority for this position and do not explain how it overrides the express constitutional mandate of warrant particularity. See Lo-Ji Sales, Inc. v. New York (1979), 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920.

The Fourth Amendment is designed to protect individuals from the potential over-zealousness of governmental agencies. But the majority in Peterson has eroded this protection into non-existence by undermining the integrity of the entire warrant process.