author: JUSTICE WEBER,

text:
    W. BOYD BOYLAN, Plaintiff and Appellant, v. ARNOLD VAN DYKE, Ann Jeanette Van Dyke, Lawrence J. Van Dyke, Berna Sue Van Dyke, and VAN DYKE IRRIGATION SERVICE, INC., Defendants, Respondents, and Cross-Appellants.
    No. 90-089.
    Submitted on briefs Dec. 13, 1990.
    Decided Feb. 14, 1991.
    Rehearing Denied March 28, 1991.
    247 Mont. 259.
    806 P.2d 1024.

      H.A. Bolinger, Bozeman, for plaintiff and appellant.
    William L. Madden, Jr., Brigitte M. Anderson, Goetz, Madden & Dunn, Bozeman, for defendants, respondents, and cross-appellants.
   JUSTICE WEBER,

delivered the Opinion of the Court.

This cause of action arose when defendants constructed a pond. Plaintiff, W. Boyd Boylan (Mr. Boylan) filed suit alleging that the pond interfered with his use of a ditch which traverses that area. The District Court for the Eighteenth Judicial District, Gallatin County, found that the pond had no effect on the flow of water in the ditch and that Mr. Boylan did not suffer any damages as a result. From that decision, Mr. Boylan appeals. We affirm in part and reverse in part.

The issues before us are:

1. Did the District Court err in concluding that defendants did not unlawfully interfere with Mr. Boylan’s ditch easement?

2. Did the District Court err in denying Mr. Boylan’s motion to refer determination of his water rights to the Water Court?

3. Did the District Court err in excluding evidence of the nature, priority and extent of Arnold Van Dyke’s water right in Dry Creek; of his purported, unlawful diversions therefrom; and of the damages which Mr. Boylan thereby allegedly sustained?

4. Did the District Court err in entering summary and final judgments in favor of Arnold and Ann Van Dyke?

5. Did the District Court err in refusing to award Mr. Boylan actual damages, punitive damages and injunctive relief?

6. Did the District Court err in refusing to award attorney fees and costs to the prevailing party?

Mr. Boylan is a retired rancher and the owner of approximately 252 acres located north of the defendants property.

Defendants, Arnold and Ann Van Dyke are husband and wife and the parents of Larry Van Dyke. Defendants, Larry and Berna Sue Van Dyke, husband and wife own what will be referred to hereinafter as ‘.‘Tract A”. Larry and Berna Sue are the sole shareholders and directors of the Van Dyke Irrigation Service, Inc. Larry manages the corporation which engages in irrigation related construction and installation of irrigation related equipment, such as pipes, headgates, flumes, and the like.

In the spring of 1988, defendants Larry and Berna Sue Van Dyke constructed a one-acre pond on their land where Spring Creek intersects an irrigation ditch known as Tudor Lane Ditch. The construction of the controversial pond occurred on Tract A on or about May 17, 1988, until approximately May 22, 1988, prior to the irrigation season for 1988. Pond construction involved placement of a dam across the Tudor Lane Ditch and excavation of approximately 600 feet of ditch to form the pond.

Mr. Boylan filed suit against defendants claiming that construction of the pond interfered with his ditch right to transport irrigation water down the Tudor Lane Ditch across Larry and Berna Sue’s land for which he seeks damages, actual and punitive. Mr. Boylan also sought a permanent injunction enjoining the defendants from interfering with his ditch and water rights and for a mandatory injunction requiring the defendants to replace his drainage ditch.

On April 4, 1989, Ann and Arnold Van Dyke filed a motion for summary judgment to remove them as parties on the ground that there were no material facts supporting liability by them to Mr. Boylan. Mr. Boylan responded by claiming that all defendants conspired to build a major subdivision with a fish pond and access road and to destroy the Tudor Lane Ditch. He further claimed that Ann and Arnold Van Dyke aided in, abetted, assisted in or knew of the destruction of the Tudor Lane Ditch and were liable to him on that basis.

On October 1, 1988, Mr. Boylan requested that the District Court request that the water court adjudicate his rights, the defendants’ rights, and the rights of other persons not parties to the lawsuit, to Dry Creek water. Defendants responded that this was a ditch rights case based on the construction of Larry and Berna Sue Van Dykes’ pond and that it did not necessitate a final adjudication of the water rights of the parties and those who are not parties. Defendants did not dispute Mr. Boylan’s water right to Dry Creek water as decreed to him in the temporary preliminary decree for the Gallatin Basin.

The District Court concluded that the issue in this case was “whether the pond interfered with Mr. Boylan’s use of the Tudor Lane Ditch, and if so, what the damages were.” The District Court denied Mr. Boylan’s motion and limited the adjudication of the case to the question of ditch right and the construction of the pond and any damages that might have resulted.

A three-day trial, without a jury, was held in May 1989. The court ordered that further proceedings be held in abeyance until such time as the 1989 irrigation season would be completed, suggesting that both parties try and settle the matter before such time.

Soon thereafter, Mr. Boylan filed a motion requesting permission to file findings of fact and conclusions of law. He also filed a motion for an injunction pendente lite, asking the court to enjoin defendants from doing any work in the pond and the ditch and from making any “improvements” on the land until the case was decided. The court did not act on this motion.

After personally examining the pond and ditch in question, and making extensive findings of fact, the District Court concluded that Mr. Boylan failed to prove his claims against Ann and Arnold Van Dyke based on the alleged conspiracy, and his aiding and abetting theories. It held that neither Ann nor Arnold Van Dyke had any title or other interest in the land upon which the pond was constructed. In discussing its examination of the premises, the court stated:

“In August of 1989, the Court viewed the premises and saw a full flow from the diversion point in Dry Creek into the pond of defendant and out of the pond of the defendant through the rather sophisticated but very satisfactory headgate that was fully opened when the Court viewed it during the irrigation season... . The Court walked over to where the flumes were installed, and the waters of the Spring Creek were fully flowing into the pond and would naturally flow out of the pond into the Tudor Lane Ditch together with the waters of Dry Creek. Therefore, the Complaint of the plaintiff that they were deprived of the waters of Spring Creek is dispelled ...
“If in the future the dam would break, and the plaintiff would suffer damages as a result thereof, clearly the plaintiff at that time would have a cause of action, but there is certainly no damages proved now at this point about the construction of the dam.”

In addition the District Corut made the following pertinent findings of fact:

“76. In stun, there simply was no evidence whatsoever supporting (Mr. Boylan’s) conspiracy and aiding and abetting claims against Arnold and Ann Van Dyke.
“77. There was no evidence whatsoever supporting [Mr. Boylan’s] claim that defendants or any of them acted with any malice towards him.
“78. [Mr. Boylan] failed to establish that he has suffered any damages or may suffer any future damages.
“80. The flow of water through the Tudor Lane Ditch has not been interfered with. The water flows from Dry Creek into the ditch, through the pond and further down the ditch onto [Mr. Boylan’s] land.
“81. The operation of [Mr. Boylan’s] diversion system is essentially the same as it was before; except, that the headgates in the ditch installed by Lawrence Van Dyke improved [Mr. Boylan’s] facilities.
“82. Maintenance of the ditch has not been increased and has actually been facilitated through the road which [Mr. Boylan] can now use for access to the ditch.
“83. In sum, the preponderance of the evidence demonstrated that [Mr. Boylan] has not been damaged at all by the defendants.”

The District Court then concluded that Mr. Boylan failed to prove by a preponderance of the evidence that he is entitled to any compensatory damages or any injunctive relief. It then denied Mr. Boylan’s application for injunctive relief and ordered that each party pay their own costs and attorney fees. From that decision, Mr. Boylan appeals.

I.

Did the District Court err in concluding that defendants did not unlawfully interfere with Mr. Boylan’s ditch easement?

Mr. Boylan maintains that the construction of the pond was an unlawful interference with his ditch easement. He maintains the pond deprived him of irrigation water for his land and reduced the value of his land to half of what it was worth prior to construction of the pond and the destruction of his ditch. He argued that his son, Doug Boylan, who was a tenant on his ranch was no longer able to make a living on the ranch because of a significant reduction in available water since the pond’s construction.

Defendants maintain that the ditch caused no interference with Mr. Boylan’s ditch right or easement. They further maintain that the ditch has the same carrying capacity after construction of the pond as it did before. Defendants urge that after the construction of the pond Mr. Boylan receives the same amount of water, if not more, than he did before. Defendants contend Mr. Boylan has essentially the same maintenance chores required of him before the pond’s construction. They urge that maintenance is actually easier now due to installation of improved headgates. Finally, defendants ruge that Mr. Boylan sustained no damages during the course of construction, nor is he likely to sustain any in the future.

The standard of review for a judge sitting without a jury, pursuant to Rule 52(a), M.R.Civ.P., is that the court’s findings shall not be set aside unless clearly erroneous. Thus, when the District Court’s findings are based on substantial credible evidence, they are not clearly erroneous. Downing v. Grover (1989), 237 Mont. 172, 772 P.2d 850.

The District Corut correctly noted that Mr. Boylan’s son, Doug, is not a party to this lawsuit. The District Court further noted that the Van Dyke pond had nothing to do with Mr. Boylan’s shortage of water in his ditch during the month of July, but rather that the shortage was caused by an upstream user, exercising his full right to Dry Creek water for the first time that Doug Boylan testified he could remember. After reviewing the record in this case, it is clear that there is no evidence to support Mr. Boylan’s claims. We conclude that the District Court’s findings of fact are not clearly erroneous. We hold that the District Court was correct in concluding that defendants did not unlawfully interfere with Mr. Boylan’s ditch easement.

II.

Did the District Court err in denying Mr. Boylan’s motion to refer determination of his water rights to the Water Court?

As pointed out in the above stated facts, Mr. Boylan requested that the District Court request that the water court adjudicate his rights, defendants’ rights and the rights of people not parties to the lawsuit. As defendants correctly point out, Mr. Boylan did not raise the water rights question in his complaint; the District Court specifically excepted such issues from trial; the issue was not raised in the Pretrial Order; and it was expressly waived by Mr. Boylan at the start of the trial. A reviewing court will not hold a trial court in error for a procedure in which the appellant acquiesced at trial. In re Marriage of West (1988), 233 Mont. 47, 758 P.2d 282. We conclude that the District Court correctly narrowed the focus of its review to whether the pond interfered with Mr. Boylan’s use of the Tudor Land Ditch and any damages so caused. We hold that the District Court did not err in denying Mr. Boylan’s motion to refer determination of his water rights to the Water court.

III.

Did the District Court err in excluding evidence of the nature, priority and extent of Arnold Van Dyke’s water right in Dry Creek; of his purported, unlawful diversions therefrom; and of the damages which Mr. Boylan thereby allegedly sustained?

Defendants maintain that the proffered evidence was irrelevant to any issue raised by the complaint and thus properly disregarded. We agree. Rule 401, M.R.Evid. provides:

“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.”

Arnold Van Dyke’s water rights are of no consequence to the determination of whether the pond interfered with Mr. Boylan’s use of the Tudor Lane Ditch. We conclude the District Court correctly excluded evidence of Arnold Van Dyke’s water right in Dry Creek; of his purported, unlawful diversions therefrom; and of the damages which Mr. Boylan thereby allegedly sustained.

IV.

Did the District court err in entering summary and final judgments in favor of Arnold and Ann Van Dyke?

Mr. Boylan contends the District court erroneously granted summary judgment. The District court ruled on Mr. Boylan’s motion for summary judgment on the first day of trial. It granted the motion with regard to the claim for actual interference with Mr. Boylan’s ditch right, but allowed the conspiracy claims to be tried. After trial, the court entered judgment in favor of Arnold and Ann Van Dyke on the conspiracy claim.

Summary judgment is only proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R Any inferences to be drawn from the factual record must be resolved in favor of the party opposing summary judgment. Summary judgment is never a substitute for a trial on the merits. Batten v. Watts Cycle and Marine, Inc. (1989), 240 Mont. 113, 783 P.2d 378.

Here, the District Court only granted partial summary judgment. It ruled that Arnold and Ann Van Dyke did not interfere with Mr. Boylan’s ditch rights. As stated previously, under Issue I, Mr. Boylan failed to present any evidence to support his claims of unlawful interference.

With regard to the conspiracy claim against Arnold and Ann Van Dyke, the District Court allowed a trial on the merits of that claim. To prove a claim of civil conspiracy one must prove the following elements: (1) two or more persons; (2) an object to accomplish; (3) a meeting of minds on the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof. If the object of an alleged conspiracy is lawful, and the means used to attain that object are lawful, there can be no civil action for conspiracy. Duffy v. Butte Teachers’ Union, No. 332 (1975), 168 Mont. 246, 541 P.2d 1199.

The District Court stated: “Clearly there is no showing that [Arnold and Ann Van Dyke] participated in any manner whatsoever”. The record supports the District Courts conclusion. Thus, Mr. Boylan’s claim of conspiracy fails. We hold the District Court was correct in entering summary and final judgments in favor of Arnold and Ann Van Dyke.

V

Did the District Court err in refusing to award Mr. Boylan actual damages, punitive damages and injunctive relief?

In light of our holdings on the foregoing issues, we conclude that Mr. Boylan was not entitled to actual damages, punitive damages or injunctive relief. We hold that the District Court correctly refused to award Mr. Boylan any damages or injunctive relief.

VI.

Did the District Court err in refusing to award attorney fees and costs to the prevailing party?

Defendants maintain that as the prevailing party, they are entitled to attorney fees. Section 70-17-112, MCA, provides:

“(2) No person may encroach upon or otherwise impair any easement for a canal or ditch usedfor irrigation or any other lawful domestic or commercial purpose, including carrying return water.
“(5) If a legal action is brought to enforce the provisions of this section, the prevailing party is entitled to costs and reasonable attorney’s fees.”

The plaintiffs if successful would claim under the provision of subsection (2). Defendants claim attorney fees under subsection (5).

The District Court concluded that the Tudor Lane Ditch was in part destroyed and removed by the defendants and that therefore neither party “prevailed” for the purpose of receiving attorney fees. Defendants rely on Knudsen v. Taylor (1984), 211 Mont. 459, 685 P.2d 354. However Knudsen is distinguishable. In Knudsen, the plaintiff asked for $117,000 in damages and was awarded $10,000. The court in that case concluded that neither party “prevailed” and neither party was entitled to attorney fees.

Here, Mr. Boylan failed to prevail in any of his claims. Under § 70-17-112(5), MCA, defendants prevailed and are therefore entitled to costs and attorney fees as a matter of law. We hold that the District Court erred in refusing to award attorney fees and costs to defendants. We remand this issue to the District Court for determination of an award of costs and attorney fees in defendants’ favor.

Affirmed in part. Reversed in part.

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


source: Caselaw Access Project

author: JUSTICE McDONOUGH

license: Public Domain

text:
    IN THE MATTER OF A. W. and A. V., Youths in Need of Care.
    No. 90-480.
    Submitted on briefs Dec. 20, 1990.
    Decided Feb. 14, 1991.
    247 Mont. 268.
    806 P.2d 520.

      J. Dennis Corbin, Brown, Huss & Corbin, Miles City, for appellant.
    Marc Racicot, Atty. Gen., Deanne L. Sandholm, Asst. Atty. Gen., Helena, Keith Haker, County Atty., Garry P. Bunke, Deputy Co. Atty., Miles City, for respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from an order of the Montana Sixteenth Judicial District Court, Custer County, terminating the parental rights of Roxanne Weaver Vingoe, the natural mother of A. W. and A. V. The mother appeals, alleging that the District Court erred in concluding that her daughters A. W. and A. V. are youths in need of care and terminating her parental rights. We affirm the order of the District Court.

A. W. was born on September 22,1982 and A. V. was bom on June 14, 1987. At the time of the district court hearing the mother was 26 years old. The natural father of A. V, Edward Vingoe, is currently incarcerated at Deer Lodge for sexual abuse and the natural father of A. W. is unknown.

The record discloses that between January 1987 and July 1988, the Custer County Department of Family Services (DFS) received six formal referrals regarding A. W. and A. V. The referrals included: 1) a January 20, 1987 notice of domestic violence between the mother and Edward Vingoe, the result of which extensively damaged their rented trailer home; 2) a September 21,1987 referral that DFS make living arrangements for the children due to the mother’s arrest on charges of assault; 3) an October 15, 1987 referral that DFS make living arrangements for the children due to the mother’s arrest on theft charges; 4) a December 24,1987 report to DFS from the mother that A. W. had been sexually abused by the mother’s cousin, Charlie Weaver; 5) a July 11, 1988 report by a police officer that living conditions were such that A. V. had flies crawling all over her and that Charlie Weaver was present in the house and in the midst of sexual activity with an unknown girl (A. W. was not on the premises at the time); and 6) an anonymous July 6,1988 report that A. W. had been seen out as late as 11 p.m. approximately five to six times per month, sometimes with her alleged abuser, Charlie Weaver, and that the children were cared for out of the home for a period of two to three weeks because the house was infested with crabs.

These referrals led to the court’s first order of August 8, 1988 declaring the children as youths in need of care and granting temporary legal custody to DFS for six months. From July 11,1988 through September 28,1989, and again from March 19,1990 until the present time, the children have been in the protective custody of DFS. After a hearing on September 18, 1989, a stipulation was entered between the Custer County Attorney’s Office, DFS, the mother, and the children’s guardian ad litem. The stipulation provided that a prior petition for permanent legal custody by DFS filed in August of 1989 be dismissed, and that within two weeks of the stipulation custody of the children would be returned to their mother. The stipulation also provided that DFS would have temporary investigative authority for a period not to exceed six months and that DFS had a right to develop a treatment plan for the family to be presented to the court within thirty days for approval, and that such plan would not require the mother to participate in any treatment or programs that had already been completed by herself. The treatment plan approved by the court was designed to assist the mother in improving her personal and parental skills. It included alcohol and drug evaluation and treatment, mental health counseling to help the mother deal with her own victimization from sexual abuse as a child, career counseling and work on self-esteem, and an effort to improve her judgment in protecting her children from harm by other persons. The stipulation further provided that neither Kenneth Yother nor the mother’s cousin, Charlie Weaver, have any contact with A. W. or A. V. at the mother’s home or elsewhere. The mother of A. W. and A. V. became involved with Ken Yother around December 1988. Their relationship was volatile. In January 1989, the mother filed a petition for a temporary restraining order against Yother. In her supporting affidavit she indicated that on December 31, 1988, Yother physically abused her and her unborn child by throwing her on the floor, stepping on her midsection and threatening to abort the fetus.

Kenneth Yother is an admitted sex offender. He recently was charged with deviate sexual conduct regarding his relationship with a seventeen-year-old boy over some ten years and pled guilty to misdemeanor sexual assault on that charge. (Custer County Criminal Cause No. 3313.) He received a two year deferred imposition of sentence with certain terms and conditions, one of which provided that he would obey the court order with respect to A. V. and A. W. and have no contact with them.

In spite of the District Court’s order the mother of A. W. and A. V. left Miles City, Montana with Yother for Las Vegas, Nevada, taking A. V. and A. W. in violation of the stipulation with DFS. A few days prior to leaving, Yother’s 13-year-old daughter allegedly told the mother that she had been raped by her father. During the move, A. W. did not attend school from October 1989 to January 1990. In March of 1990, the mother of A. W. and A. V gave birth to a girl whose natural father is Kenneth Yother.

In its order terminating the mother’s parental rights, the District Court took judicial notice of the earlier proceedings that were dismissed when the stipulation was entered. The District Court concluded that A. W. and A. V. are youths in need of care within the meaning of § 41-3-102(11), MCA, and that termination of the parent-child relationship was appropriate because the mother failed to comply with the court ordered treatment plans and that the conduct or condition of the mother was not likely to change within a reasonable time. The court further determined that the best interests of the children would be served by termination of the parent-child relationship and by awarding the permanent legal custody to DFS with the lawful authority to consent to the children’s adoption.

The mother contends that the District Court erred in several respects. She contends that there were inadequate grounds to terminate her parental rights, that the evidence was insufficient to support termination, and that the termination therefore constitutes an abuse of discretion by the district court.

We disagree. The applicable criteria for termination are set out at § 41-3-609, MCA, which provides:

“41-3-609. Criteria for termination. (1) The court may order a termination of the parent-child legal relationship upon a finding that the circumstances contained in subsection (l)(a), (l)(b), or (l)(c), as follows, exist:
“(c) the child is an adjudicated youth in need of care and both of the following exist:
“(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
“(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.”

Section 41-3-609, MCA; See, e.g., In the Matter of A.H., T.H., and J.A.H. (1989), 236 Mont. 323, 326, 769 P.2d 1245, 1247-48. The statutes further provide that a “youth in need of care” is a dependent, neglected or abused youth. Section 41-3-102(11), MCA. The definition of a dependent youth includes a person under 18 years of age (1) who is without parents or guardian or not under the care and supervision of a suitable adult, or (2) who has no proper guidance to provide for the youth’s necessary physical, moral, or emotional well-being. Section 41-3-102(10), MCA. An abused or neglected child or youth is defined as any person under the age of 18 whose normal physical or mental health or welfare is harmed or threatened with harm by the acts or omissions of the child’s parent or other person responsible for the child’s welfare. Sections 41-3-102(1) through (2), MCA.

In this case, there is sufficient evidence meeting the necessary criteria to support termination of the mother’s parental rights. In affirming the District Court’s order, we are nevertheless mindful of the State’s high burden in demonstrating that such termination is necessary. “Parental rights involve a fundamental liberty interest, and a judicial decree terminating such rights must be supported by clear and convincing evidence. In the Matter of the Adoption of D. J. V. (Mont. 1990), [244 Mont. 209,] 796 P.2d 1076, 1077-78, 47 St.Rep. 1522, 1524; In re the Adoption of C.R.D. (1989), 240 Mont. 106, 109, 782 P.2d 1280, 1282; citing Santosky v. Kramer (1982), 455 U.S. 745, 753-4,102 S.Ct. 1388, 1394-95, 71 L.Ed. 2d 599, 606. Parental rights do not exist without concomitant obligations. D. J. V., 796 P.2d at 1078. Here, there is clear and convincing evidence supporting the decree terminating the mother’s parental rights. The mother continually exposed her children to a harmful living environment fraught with potential for sexual abuse. She apparently has a propensity to associate herself with physically and sexually abusive men and has shown no likely prospect that she will change this course of conduct. She has failed to comply with her treatment program in keeping herself and her children away from Ken Yother and in refraining from using alcohol. She reported a possible rape upon A. W. by her cousin Charlie Weaver but despite the terms of the stipulated order has failed to keep A. W. away from this man.

Thus, the District Court properly adjudicated A. W. and A. V. “youths in need of care” because they are not under the care and supervision of a suitable adult, § 41-3-102(10)(b), MCA; they have no proper guidance to provide for their necessary physical, moral, or emotional well-being, § 41-3-102(10)(c), MCA; and they are threatened with sexual and physical abuse due to the continued harmful associations of their mother, § 41-3-102(2), MCA. The mother has failed to comply with an appropriate court approved treatment plan, furthermore such plan has not shown any indications of success. The conduct and condition of the mother in associating herself with sexually abusive men is unlikely to change — indeed it has failed to change — within a reasonable time so as to make her a fit parent. Section 41-3-609, MCA.

The mother contends that the District Corut’s dismissal of the first petition for permanent legal custody and return of the children to her absolves her of any past misconduct that might be construed as abuse and neglect. This contention lacks merit. At no time have the earlier orders of the corut adjudicating the children as youths in need of care ever been appealed. Once that determination is made, the court may terminate parental rights if the other two statutory criteria are met: (1) that an appropriate corut approved treatment plan has been unsuccessful or not complied with, and (2) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time. Section 41-3-609, MCA; In the Matter of T. C. and R. C. (1989), 240 Mont. 308, 313-14, 784 P.2d 392, 395. The statute only requires that the parents fail to comply with an appropriate court approved treatment plan; it does not require that a treatment plan is in effect at the time of termination. Matter of J. L. S. and A. D. S. (1988), 234 Mont. 201, 206, 761 P.2d 838, 841. The District Court’s earlier decision to dismiss the initial petition and not terminate the mother’s parental rights was based in part on the formulation of a treatment program for the mother and was contingent upon future compliance with such program. The mother’s continued failure to comply with treatment and to continually endanger her children preclude her from claiming that the dismissal has cleared her of her past conduct.

Finally, the court also met its obligation to consider the factors set out in subsections (2) and (3) of § 41-3-609, MCA, which provide:

“(2) In determining whether the conduct or condition of the parents is unlikely to change within a reasonable time, the court must enter a finding that continuation of the parent-child legal relationship will likely result in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care. In making such determinations, the court shall consider but is not limited to the following:
“(a) emotional illness, mental illness, or mental deficiency of the parent of such duration or nature as to render the parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time;
“(b) a history of violent behavior by the parent;
“(c) a single incident of life-threatening or gravely disabling injury to or disfigurement of the child caused by the parent;
“(d) excessive use of intoxicating liquor or of a narcotic or dangerous drug that affects the parent’s ability to care and provide for the child;
“(e) present judicially ordered long-term confinement of the parent;
“(f) the injury or death of a sibling due to proven parental abuse or neglect; and
“(g) any reasonable efforts by the protective service agencies that have been unable to rehabilitate the parent.
“(3) In considering any of the factors in subsection (2) in terminating the parent-child relationship, the court shall give primary consideration to the physical, mental, and emotional conditions and needs of the child. The court shall review and, if necessary order an evaluation of the child’s or the parent’s physical, mental, and emotional conditions.”

Sections 41-3-609(2) through (3), MCA. In determining that the mother is unfit and unlikely to change her conduct or condition in this case, the court apparently gave considerable weight to subsections (2)(d) and (2)(g) of § 41-3-609, MCA, listed above. Also the mandate of subsection (3) instructs the court to give primary consideration to the needs of the children when evaluating whether a parent’s conduct is likely to change within a reasonable time. Thus, the inquiry really focuses on the mental and physical health of the children and the urgency of their needs. In the Matter of H. R. B. & K. R. B. (1989), 239 Mont. 387, 390, 780 P.2d 1139, 1141. The District Court’s findings of fact and conclusions of law set forth the testimony and opinions of mental health and child care professionals regarding the mental and emotional states of the children and indicate the court’s careful consideration of the needs of the children in its decision. This Court will not overturn a transfer of custody of abused, neglected, or dependent youth to the State absent a clear showing of abuse of discretion. T. C., 784 P.2d at 394; A. H., 769 P.2d at 1249. We find no abuse of discretion in this case. The order of the District Court is

AFFIRMED.

JUSTICES HARRISON, HUNT, WEBER and BARZ concur.


author: JUSTICE HARRISON

text:
    TERRY RYLES, Claimant and Appellant, v. SPRINGHILL RANCH EGGS and STATE COMPENSATION INSURANCE FUND, Employer and Defendant, Respondent and Cross-Appellant.
    No. 90-034.
    Argued Sept. 6, 1990.
    Submitted Dec. 6, 1990.
    Decided Feb. 19, 1991.
    247 Mont. 276.
    806 P.2d 525.

      Mark L. Guenther, Nash, Guenther, Zimmer & Serenar, Bozeman, for claimant and appellant.
    Thomas E. Martello, Hughes, Kellner, Sullivan & Alke, Helena, for employer and defendant, respondent and cross-appellant.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the Workers’ Compensation Court of the State of Montana. We affirm in part and reverse in part.

The issues presented by claimant are:

1. Whether the Workers’ Compensation Court erred in finding claimant 30% permanently partially disabled pursuant to § 39-71-706, MCA (1983).

2. Whether the Workers’ Compensation Court erred in allowing defendant credit for permanent partial benefits paid claimant from May 23, 1984, through March 5, 1985.

3. Whether the Workers’ Compensation Court erred by denying claimant attorney’s fees and costs.

The sole issue presented by defendant is whether the Workers’ Compensation Court erred in estopping the State Fund from taking credit for disability benefits paidfrom March 6,1985, through December 24,1987.

We affirm the Workers’ Compensation Court on Issue 1 and on the estoppel issue, and reverse on Issues 2 and 3.

Defendant, State Compensation Insurance Fund (State Fund), was claimant’s insurer. Claimant, Terry Ryles, lived with his wife, Kathy, and their three children in Belgrade, Montana. At the time of trial, Terry was 41 years old.

In 1982, Terry and Kathy purchased Springhill Ranch Eggs (Springhill). Springhill is a wholesale broker of eggs, selling to stores, restaurants and institutions. The couple first operated the business as a partnership, but on July 1, 1984, the business was changed to a corporation, closely held. The change to a corporation made no real difference in the operation and management of the business. Terry performed most of the labor, driving, delivery and marketing duties, which required of him a fifty to sixty hour work week. Kathy did the business’s bookkeeping.

On May 23, 1984, Terry suffered a back injury as a result of the repeated use of his back and the heavy labor required by the physical aspects of the business. Following his back injury, Terry ceased performing heavy labor duties for Springhill. Thereafter, he worked roughly ten hours per week performing light sedentary work and management activities. On July 27, 1984, Terry filed an Employer’s First Report of Occupational Injury and claim for compensation of lost wages due to his back injury.

During the spring of Terry’s injury, Terry and Kathy, together, drew $2,500 per month from the income of Springhill. From January through June of 1984, Terry’s share of net partnership earnings was $7,737.

The State Fund accepted liability for the claim and paid biweekly benefits from May 23,1984, until September 7,1989. 'Ibrry’s temporary total and permanent partial disabihty rates are each $138.47 per week.

For 41 weeks from May 23, 1984, through March 5, 1985 (period A), Terry’s payments were designated as permanent partial benefits. On January 29,1985, surgery was performed to repair the herniated disc in Terry’s back. The State Fund designated payments for the period March 6, 1985, through December 23, 1987 (period B), as temporary total disability benefits. From December 24, 1987, to September 7, 1989 (89 weeks) (period C), payments were again designated as permanent partial benefits. In total for periods A and C, 130 weeks of the benefits paid to Terry were designated as permanent partial benefits.

At the time of trial, Terry was employed by the U.S. Department of Agriculture as a purchasing agent at Montana State University in Bozeman, Montana, at an annual salary of $15,111. Terry and Kathy still owned Springhill. Teriy participated in the management decisions of the business, but did not receive a salary.

Terry filed his petition in the Workers’ Compensation Court on September 6, 1988. The Workers’ Compensation Court heard the case and issued its findings of fact and conclusions of law and judgment on September 7, 1989, awarding benefits. The court concluded that (1) Terry was 30% permanently partially disabled and thus entitled to receive 150 weeks (500 weeks X 30%) of benefits. (2) Any previously paid permanent partial benefits already paid to Terry are to be credited to the 150 weeks owed to him by insurer. Therefore, since State Fund had already paid permanent partial benefits to Terry for periods A and C totalling 130 weeks, State Fund owes him only 20 weeks of benefits at $138.47 per week. (3) State Fund is estopped from taking credit for previously paid temporary total disabihty benefits (for period B) by claiming the benefits should have been characterized as permanent partial. (4) Terry is entitled to an award of reasonable costs and attorney’s fees pursuant to § 39-71-612, MCA. Terry’s attorney’s fees and costs were denied after a hearing held on December 4,1989. From this judgment and the order denying attorney’s fees, both Terry and defendant appeal.

I.

Did the Workers’ Compensation Court err in finding Terry 30% permanently partially disabled pursuant to § 39-71-706, MCA(1983)?

Terry contends that the Workers’ Compensation Court should have found him 50% permanently partially disabled rather than 30%. The basis for this contention is Terry’s evidence that the manager of a competing egg business earns $30,000 per year. Such a finding would entitle Terry to 250 weeks (50% X 500 weeks) of permanent partial benefits rather than 150 weeks (30% X 500 weeks).

Atissueisthepropertesttodeterminethedegreeofpermanent partial disability. The factors this Court must consider in determining disability under § 39-71-706, MCA, include the claimant’s age, education, work history, pain and disability, actual wage loss and loss of future earning capacity. Holton v. F. H. Stoltze Land & Lumber Co. (1981), 195 Mont. 263, 266, 637 P.2d 10, 12. This Court has emphasized that the primary factor in calculating an award is “earning capacity impairment.” If the court can make a determination of the claimant’s earning capacity impairment, it is not necessary for the court to consider any other factors. If the court can determine that a claimant’s earning capacity has been impaired to a certain degree, then that is the figure to be used in computing his benefits. Hafer v. Anaconda Aluminum Company (1984), 211 Mont. 345, 353, 684 P.2d 1114, 1118.

When reviewing a decision by the Workers’ Compensation Court, this Court’s function is to determine whether substantial evidence exists to support the Workers’ Compensation Court’s findings of fact and conclusions of law. Coles v. Seven Eleven Stores (1985), 217 Mont. 343, 347, 704 P.2d 1048, 1050.

The court, in Conclusion No. 4, assigned to Terry a 30% permanent partial disability rating pursuant to § 39-71-706, MCA. The corut carefully set forth the criteria it considered in arriving at this permanent partial disability percentage:

“In considering an award for future loss of earning capacity, the Corut must consider Claimant’s age, education, work history and his physical condition post injury. Given the seriousness of his back injury, there is little argument that Claimant can not do heavy labor work. However, Claimant is a well educated person. He has finished high school and has attended college, though he did not complete a college degree. He served as a U.S. Navy aviation electrician. His non-formal education is significantly enhanced by his work history, which includes being a loan officer in a bank. Presently he works as a purchasing agent for the U.S. Department of Agriculture, earning slightly over $15,000 per year.
“At the time of his injury, Claimant’s reported earnings for purposes of Workers’ Compensation was $900/month or less than $11,000 per year. Though that amount is artificially limited by a statutory maximum (Section 39-71-118, MCA), the tax returns for the business demonstrates similar earnings for the Claimant. Taking all factors into account and recognizing the fact that mathematical certainty is virtually impossible to find, the Court concludes that a 30% disability rating is appropriate.”

After a careful review of the record, we hold that the 30% figure is sufficiently supported therein. We affirm the Workers’ Compensation Court on this issue.

II.

Did the Workers’ compensation Court err by allowing defendant credit for payments paid to claimant from May 23, 1984, through March 5, 1985 (period A)?

State Fund characterized the benefits it paid to Terry for period A as permanent partial disability payments. Permanent partial disability payments may not exceed 500 weeks pursuant to § 39-71-703, MCA (1983), and would be deducted from Terry’s eventual permanent disability award. Terry argues that his benefits for period A should be characterized as temporary total disability payments which are unlimited in duration according to § 39-71-706, MCA (1983), and which would have no effect on his eventual permanent disability award.

The court determined that Terry was not entitled to temporary total disability benefits for period A because of wages he received during this period. Terry takes exception to this strict reading of the statute.

Temporary total disability was defined at the time as:

“[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.” (Emphasis added.)

Section 39-71-116(19), MCA (1983).

On the other hand, the statute defining permanent partial disability stated:

“[A] condition resulting from injury as defined in this chapter that results in the actual loss of earnings or earning capability less than total that exists after 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.” (Emphasis added.)

Section 39-71-116(12), MCA (1983).

Under the foregoing statutes, the payments made to Terry for period A, immediately following his report of injury, could not have been permanent partial disability benefits because he had not reached maximum healing. Yet, that is what the State Fund suggests by designating his payments as permanent partial for period A. Likewise, because as a proprietor, or as a corporate officer, some of his income is designated as profits or as wages, he did not come under the definition of temporary total disability because his injury did not result in his total loss of wages.

One possible conclusion is that because he did not fit the definition of either permanent partial disability or temporary total disability, Terry was not entitled to any workers’ compensation benefits at all for period A. However, the State Fund did not so argue. We conclude that it is precluded from so arguing. In her deposition, Eleanor Bowen, the Policy Services section supervisor for the State Fund, stated that, following discussions with Springhill bookkeeper Kathy Ryles, the State Fund credited Springhill for all premiums for workers’ compensation paid for Terry from at least July 1984 through 1987. We hold that this operates as an admission on the part of the State Fund that Terry was entitled to workers’ compensation benefits for period A. Moreover, the determination that premium payments were not due for this period was based on a conclusion on the part of the State Fund that Terry was not earning wages during period A. We further hold that the State Fund is estopped from denying liability for temporary total disability benefits during period A.

In its judgment, the Workers’ Compensation Court found Terry to be 30% permanently partially disabled and thus entitled to receive 150 weeks of benefits. Against that, the court allowed credit to the State Fund for 130 weeks of payments for the periods A and C. We vacate this part of the Workers’ Compensation Court’s order. We hold that the benefits paid to Terry from May 23, 1984, through March 5, 1985, a period of 41 weeks, should have been designated as temporary total rather than permanent partial benefits and should not have been deducted from Terry’s total of 150 weeks of permanent partial benefits. On remand, the Workers’ Compensation Court is directed to enter judgment in conformity with this holding.

III.

Did the court err in denying Terry attorney’s fees?

Under § 39-71-612, MCA (1983), successful claimants are entitled to attorney’s fees and costs when an insurer acknowledges liability but disputes the amount of compensation due the claimant. This is the situation in this case. However, the court here denied attorney’s fees under § 39-71-612, MCA (1983), when it decided that the State Fund could take credit for the payments from May 23,1984, through March 5, 1985. Since we have decided that State Fund should not have been allowed to take this credit, Terry may be entitled to attorney’s fees and costs pursuant to § 39-71-612, MCA (1983), the law in effect at the time of his injury. We therefore reverse and remand this cause to the Workers’ Compensation Court for proceedings and entry of judgment in conformity with this Opinion on the issue of attorney’s fees and costs.

IV.

Did the Workers’ Compensation Court err in estopping the State Fund from taking credit for disability benefits paid from March 6, 1985, through December 24, 1987?

State Fund, in its brief, attacked the Workers’ Compensation Court’s findings regarding each element of estoppel as set forth in Lindblom v. Employers’Liability Assur. Corporation (1930), 88 Mont. 488, 295 P. 1007. The Workers’ Compensation Court found the following facts to satisfy the first four elements of estoppel:

Terry was informed by State Fund that the benefits he received were for temporary total disability; Terry was never advised that the benefits were anything but temporary total and he had no reason to know since the dollar amount of each benefit was the same. Furthermore, Terry never tried to hide the fact that he received salary from Springhill; this salary was reported to State Fund; Kathy Ryles, bookkeeper, requested specific guidance from State Fund (but received none) as to correct reporting of Terry’s earnings and simultaneous receipt of temporary total disability benefits.

The fifth and sixth elements of estoppel require a showing that Terry relied on State Fund’s representations to his detriment. The Workers’ Compensation Court satisfied these elements with its finding that Terry would be harmed if the temporary total benefits were reclassified as permanent partial because permanent partial benefits may not exceed 500 weeks (§ 39-71-703, MCA (1983)) whereas temporary total benefits are unlimited.

There is substantial evidence in the record to support the Workers’ Compensation Court on the issue of estoppel. We affirm the Workers’ Compensation Court on the estoppel issue.

Affirmed in part, reversed in part, and remanded to the Workers’ Compensation Court.

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


author: JUSTICE WEBER

text:
    ALVIN F. FILLER; Joan M. Filler; Cynthia Heisler; Rita Oakland; Kevin F. Filler; Clinton A. Filler; and Kathleen A. Filler, Plaintiffs and Appellants, v. RICHLAND COUNTY, MONTANA, a quasi-municipal corporation, the unknown heirs and devisees, if any, of each of the said defendants herein above named, and all other persons, known or claiming or who might claim any right, title, estate or interest in, or lien or encumbrance upon, the real property described in the complaint, or any part thereof adverse to the ownership of the plaintiffs, or cloud upon the title to the plaintiff, whether such claim or possible claim be present or contingent, including, any claim or possible claim of dower, inchoate, or accrued, Defendants and Respondents.
    No. 90-178.
    Submitted Jan. 21, 1991.
    Decided Feb. 19, 1991.
    247 Mont. 285.
    806 P.2d 537.

      Loren J. O’Toole, O’Toole & O’Toole, Plentywood, for plaintiffs and appellants.
    Mike Weber, Richland County Atty., Sidney, for defendants and respondents.
   JUSTICE WEBER

delivered the Opinion of the Court.

The plaintiffs (Fillers), brought this action in the Seventh Judicial District, Richland County, seeking to quiet title to the oil, gas and other mineral interests in and under real property known as NW14, SWV4, of Section 25; SE 14 NE14, NE14, NE14, NE14, SE14 of Section 26 in Township 26 North, Range 59 East, Richland County, Montana. Richland County claims to own a 6V4% royalty interest in the oil, gas, and other minerals. The District Court granted summary judgment in favor of Richland County. Fillers appeal. We reverse and order summary judgment be entered in favor of the plaintiffs.

The issues we find determinative are:

1. Can Richland County obtain relief from a 1937 Quiet Title Decree under Rule 60(b), M.R.Civ.R, for fraud?

2. Is Richland County barred by the doctrine of laches from asserting its claim that the County’s reservation is still valid?

3. Is Richland County prevented from relitigating its reservation claim under the doctrine of res judicata?

The real property in this action was acquired by Richland County under a tax deed issued for non-payment of taxes on January 7,1937. Richland County sold the property to Delaney on March 1, 1937, reserving 6¥é% of “all minerals contained in and hereafter mined, produced, extracted or otherwise taken” from the property. Approximately one month later Delaney filed a quiet title action, naming Richland County as one of the defendants. Default judgment was entered against Richland County. The Decree does not in any way recognize Richland County’s reservation.

In 1943 Emanuel Filler acquired the property from Delaney, and in 1950 he received and recorded a warranty deed from Delaney. The deed contains no references to mineral or royalty reservations. The plaintiffs in this action acquired the property from their father and grandfather Emanuel Filler. Oil has been produced from the property and royalty payment has been suspended due to Richland County’s claim.

Fillers filed their complaint on October 5,1988 to quiet title in the property as against Richland County’s reservation contained in the 1937 deed from Richland County to Delaney. Both parties filed motions for summary judgment. On March 9,1990, the District Court granted Richland County’s motion and denied Fillers’ motion.

I.

Can Richland County obtain relief from a 1937 Quiet Title Decree under Rule 60(b), M.R.Civ.R, for fraud?

The residual clause of Rule 60(b), M.R.Civ.R, recognizes the power of a court to entertain an independent action to set aside a judgment for fraud upon the court. The power of the court to set aside a judgment on the basis of fraud upon the court is inherent and independent of statute, and the timeliness of the proceedings to set aside a prior judgment as obtained is not subject to the 60-day time limit in Rule 60(b), M.R.Civ.P., but must ultimately depend upon equitable principles and the sound discretion of the court. Salway v. Arkava (1985), 215 Mont. 135, 141, 695 P.2d 1302, 1306. Montana adheres to the general rule that the fraud must be extrinsic, as opposed to intrinsic, to support an independent action for fraud under the residual clause of Rule 60(b). Salway, 215 Mont. at 140, 695 P.2d at 1305.

Extrinsic fraud is some intentional act or conduct by which the prevailing party has prevented the unsuccessful party from having a fair submission of the controversy. Salway, 215 Mont. at 140, 695 P.2d at 1306. Fraud upon the court embraces only that species of fraud which does or attempts to subvert the integrity of the court itself, or is fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner in its impartial task of adjudicating cases that are presented for adjudication. Salway, 215 Mont. at 141, 695 P.2d at 1306. Such fraud has been construed to include only the most egregious conduct, such as bribery of a judge or member of the jury; the fabrication of evidence in which an attorney has been implicated; or the employment of counsel to influence the court. Salway, 215 Mont. at 141, 695 P.2d. at 1306. Richland County argues that Delaney and his attorney subverted the County’s interest in the 1937 case which amounts to extrinsic fraud upon the court. Delaney’s attorney was also the Richland County Attorney at the time. No appearance was made for Richland County, and default judgment was entered against the County.

Richland County cites 7 Am.Jur.2d, p. 240, § 188, that an attorney cannot represent both governmental body and a private citizen even with full disclosure. Richland County argues that because the County Attorney violated this rule, Richland County was prevented from appearing and presenting its side fully and fairly which amounted to extrinsic fraud.

Richland County has failed to produce facts that would substantiate its theory that Delaney and the County Attorney acted to subvert the County’s interest by preventing the County from appearing and presenting its case in the 1937 hearing. Therefore Richland County has failed to prove fraud under Rule 60(b) which would warrant a setting aside of the 1937 Decree.

II.

Is Richland Comity barred by the doctrine of laches from asserting its claim that the County’s reservation is still valid?

Section 1-3-218, MCA, states that “[t]he law helps the vigilant before those who sleep on their rights.” Laches is a concept of equity. Richardson v. Richland County (1985), 219 Mont. 48, 56, 711 P.2d 777, 782. It means negligence in the assertion of a right and is the practical application of the maxim, “Equity aids only the vigilant.” Richardson, 219 Mont. at 56, 711 P.2d at 782. Laches is not a mere matter of elapsed time, but principally a question of the inequity of permitting the claim to be enforced. Each case must be determined according to its own particular circumstances. Richardson, 219 Mont. at 56, 711 P.2d at 782. It exists when there has been an unexplained delay of such duration or character as to render the enforcement of the asserted rights inequitable. Richardson, 219 Mont. at 56, 711 P.2d at 782.

In determining whether laches shall bar a particular claim it is proper to consider (1) whether a party or an important witness had died, and the party against whom the claim is asserted has been deprived thereby of important testimony, (2) whether the property involved has increased in value, (3) whether the property has passed into the hands of an innocent third party, or (4) whether the position of the parties has changed resulting in injustice if laches is not applied. Richardson, 219 Mont. at 57, 711 P.2d at 782.

Richland County has failed to attack the 1937 Quiet Title Decree in the fifty one years preceding the filing of this claim by the Fillers. Richland County claims it had no reason to suspect its reservation interest was not fully protected. The 1937 deed had been on record since 1937, and Richland County alleges it filed a ratification of its reservation interest in 1971 when the Fillers executed an oil and gas lease to the property. Richland County asserts this confirms its belief that it was protected.

The 1937 Quiet Title Decree follows the 1937 Delaney deed in the chain of title to the property. The Decree specifically states that a default judgment had been entered against Richland County and that the County was “forever enjoined, estopped, foreclosed, and debarred from ever asserting any right, title, lien, claim or interest in and to the said real property hereinafter specifically described, or any part thereof.” The Decree does not make an exception for Richland County’s royalty interest. The Decree was filed in Richland County’s public records and Richland County was on notice that title had been quieted against the County. Richland County has failed to present a reasonable explanation for the failure to challenge the Decree for fifty one years. The land and minerals have now appreciated in value significantly and have passed into the hands of innocent third parties. Purchasers for value are entitled to rely on the public records concerning title to real property. When weighing these factors, equity requires that laches prevent Richland County from now claiming a 614% royalty interest after fifty-one years of ownership by plaintiffs and their predecessors in interest without an adverse claim by Richland County.

We note that Richland County has not asserted that the 1937 Decree was a void judgment for lack of service of process. Therefore cases such as Shields v. Pirkle Refrigerated Freight Lines, Inc. (1979), 181 Mont. 37, 45, 591 P.2d 1120, 1125, and Joseph Russell Realty Co. v. Kenneally (1980), 185 Mont. 496, 501, 605 P.2d 1107, 1110, which hold that a void judgment cannot acquire validity because of laches do not apply.

III.

Is the County prevented from relitigating its reservation claim under the doctrine of res judicata?

Once there has been full opportunity to present an issue for judicial decision in a given proceeding, the determination of the court in that proceeding must be accorded finality as to all issues raised or which fairly could have been raised, else judgments might be attacked piecemeal and without end. Wellman v. Wellman (1982), 198 Mont. 42, 46, 643 P.2d 573, 575. The four criteria that must be met before a plea of res judicata can be sustained are: (1) the parties or their privies must be the same; (2) the subject matter of the action, must be the same; (3) the issues must be the same, and must relate to the same subject matter; and (4) the capacities of the persons must be the same in reference to the subject matter and to the issues before them. Hopper v. Hopper (1979), 183 Mont. 543, 557, 601 P.2d 29, 36.

Richland County asserts that Wellman does not apply because the County had no opportunity to litigate the reservation in 1937 when the County was denied any opportunity for appearance by Delaney and the County attorney. As we have already pointed out, Richland County has failed to produce evidence to show that the County was unfairly denied an opportunity to have its case heard. Absent such showing, the four criteria have been met and Richland County is prevented from relitigating its reservation claim under the doctrine of res judicata.

We reverse and order summary judgment be entered in favor of the plaintiffs.

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


author: JUSTICE HUNT

text:
    CAROL CRITTENDON, Claimant and Respondent, v. TERRI’S RESTAURANT & LOUNGE and STATE COMPENSATION MUTUAL INSURANCE FUND, Employer/Defendant and Appellant.
    No. 90-254.
    Submitted on briefs Aug. 30, 1990.
    Decided Feb. 19, 1991.
    247 Mont. 293.
    806 P.2d 534.

      Thomas E. Martello, Sp. Asst. Atty. Gen., Helena, for employer/defendant and appellant.
    James P. Harrington, Butte, for claimant and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant State Compensation Mutual Insurance Fund appeals from an order of the Workers’ Compensation Court granting the claimant Carol Crittendon a lump sum award for the purchase of an apartment house.

We affirm.

The issues presented on appeal are:

1. Was the decision of the Workers’ Compensation Court granting claimant a lump sum award in claimant’s best interest?

2. Was the State Compensation Mutual Insurance Fund denied its right to a fair and impartial hearing?

Carol Crittendon (claimant) injured herself on March 17, 1984, while employed at Terri’s Restaurant and Lounge in Butte, Montana. She began receiving disability benefits shortly thereafter. In April of 1989, claimant filed a petition for hearing with the Workers’ Compensation Court. The substance of the relief sought by the claimant was a conversion of future permanent total disability benefits into a single lump sum to be used for the purchase of an apartment complex in Helena, Montana.

Trial was held on June 15, 1989. On January 9, 1990, the hearing examiner issued Findings of Fact, Conclusions of Law, and an “Interim Order” tentatively granting claimant the requested lump sum but directing the claimant to submit within 15 days an appraisal of the apartment building and written reports concerning heating, phimbing, and electrical systems. The State Compensation Mutual Insurance Fund (State Fund) then filed a motion asking the Workers’ Compensation judge to exercise supervisory control, alleging that the issuance of the proposed findings had been served on the parties prematurely, that the order allowing post-trial appraisals violated the State Fund’s due process right to cross-examine opposing witnesses, and generally opposing the hearing examiner’s decision. The court reviewed the file and briefs and, based on its review, denied the request on February 22,1990. On April 5,1990, the court adopted the Findings of Fact and Conclusions of Law of the hearing examiner, and entered judgment. From that judgment the State Fund appeals.

The first issue is whether the decision to grant claimant a lump sum award to purchase an apartment building is in her best interest.

The Workers’ Compensation laws in effect at the time of a claimant’s injury are controlling. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986). On March 17, 1984, the date of the claimant’s injury, the Workers’ Compensation statute regarding lump sum awards stated:

“The biweekly payments provided for in this chapter may be converted, in whole or in part, into a lump-sum payment. Such conversion can only be made upon the written application of the injured worker or the worker’s beneficiary, with the concurrence of the insurer, and shall rest in the discretion of the division, both as to the amount of such lump-sum payment and the advisability of such conversion. The division is hereby vested with full power, authority, and jurisdiction to allow and approve compromises of claims under this chapter. All settlements and compromises of compensation provided in this chapter are void without the approval of the division. Approval of the division must be in writing. The division shall directly notify every claimant of any division order approving or denying a claimant’s settlement or compromise of a claim. A controversy between a claimant and an insurer regarding the conversion of biweekly payments into a lump sum is considered a dispute for which the workers’ compensation judge has jurisdiction to make a determination.”

Section 39-71-741, MCA (1983).

This statute has been interpreted to mean that “[l]ump 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.’ ” Willoughby v. General Accident Fire and Life, 187 Mont. 253, 257, 609 P.2d 700, 702 (1980) (citations omitted). While the presumption is in favor of periodic payments, where the best interests of the parties will be served by lump sum conversions, “they should be awarded without hesitancy ...” Utick v. Utick, 181 Mont. 351, 355, 593 P.2d 739, 741 (1979). Appellant argues that because the apartment house investment is a “passive investment” and because the investment puts the balance of claimant’s lifetime benefits at risk, it is not in her best interest and is therefore contrary to Montana law.

Decisions regarding “active” and “passive” investments are, as pointed out by the Workers’ Compensation Court, made on a case-by-case, fact-by-fact basis. The State Fund maintains that the facts of Daniels v. Kalispell Regional Hospital, 230 Mont. 407, 750 P.2d 455 (1988), and Komeotis v. Williamson Fencing, 232 Mont. 340, 756 P.2d 1153 (1988), both denying lump sums, are so similar to the facts before us that this request should also be denied. A review of those facts, twice by the Workers’ Compensation Court and now by us, yields a different conclusion.

In Daniels, the claimant requested a lump sum conversion in order to set up an excavation business in which she would do the office work and her husband would run the backhoe. The Court held that Ms. Daniels’ role was too remote and the business was too risky (her husband had only limited backhoe experience and had never bid on an excavation job) to justify investing a large portion of her benefits. In Komeotis, the claimant requested a partial lump sum conversion for the purchase and operation of rental property. This Court held, however, that the lower court had properly determined that the claimant’s need was not pressing enough and his physical and mental disabilities were such that a lump sum was not in his best interest.

Here there are none of the drawbacks of Daniels or Komeotis. This will not be a “passive” investment as evidenced by the extensive list of tasks claimant will perform in managing the building. These include handling accounts, coordinating maintenance, performing bookkeeping, and meeting with tenants. While it is true she will receive help from family members, she will still be the chief overseer of the rentals and will take responsibility for the work of her employees. Although she may only need to be “on site” for a few hours a month, most of her labor will be “behind the scenes.” That fact, however, does not diminish her role as owner/manager. The claimant has also demonstrated a pressing need and her physical limitations are not debilitating. Thus her situation is not similar to those presented by the State Fund and no abuse of discretion by the Workers’ Compensation Court is evidenced.

The second issue is whether the State Fund was denied its right to a fair and impartial hearing.

The State Fund claims that by requesting appraisals on the heating, plumbing, and electrical systems of the apartment building after the trial, the court deprived the Fund of its right to cross-examine opposing witnesses, and allowed the claimant to prove her case after trial. Citing the court’s order denying motion for writ of supervisory control:

“The Court has granted lump sum conversions when specific documentation was unclear at the time of trial as to the exact nature or extent of the debt and directing the parties to obtain that information post-hearing, and if consistent with the claim and allegations made at the time of trial, has awarded such benefits.”

The Workers’ Compensation Court reviewed claimant’s evidence for the hearing and again for the defendants’ motion for the Writ of Supervisory Control. We find nothing in the record to show the court abused its discretion in finding overwhelming support for the feasibility of the claimant’s proposal. It reached this conclusion without benefit of the post-trial appraisals and therefore did not deprive the State Fund of its right to a fair hearing.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICE HARRISON, SHEEHY, McDONOUGH, BARZ and WEBER concur.


text:
    CITY OF COLUMBIA FALLS, Plaintiff and Respondent, v. STEVEN M. BENNETT, Defendant and Appellant.
    No. 90-284.
    Submitted on briefs Nov. 29, 1990.
    Decided Feb. 19, 1991.
    247 Mont. 298.
    806 P.2d 25.

      Terry A. Wallace, Missoula, for defendant and appellant.
    Katherine R. Curtis, Columbia Falls City Atty., Columbia Falls, Marc Racicot, Atty. Gen., Paul Johnson, Asst. Atty. Gen., Helena, for plaintiff and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

On October 27,1989, defendant and appellant Steven Bennett was found guilty of the offense of disorderly conduct in a non-jury trial in the Eleventh Judicial District Court, Flathead County. He appeals from that conviction.

We affirm.

Two issues are raised on appeal:

1. Whether the District Court erred in finding the defendant used “threatening, profane, or abusive language” in violation of § 45-8-101(c), MCA.

2. Whether the District Court erred in finding the defendant’s language disturbed the peace.

Just after midnight on August 21, 1988, an officer of the City of Columbia Falls Police Department stopped a driver on suspicion of driving under the influence of alcohol. The officer pulled the driver over into a parking lot adjacent to the Circle K convenience store, which was across the street from the Paul Bunyan Bar. The officer administered field sobriety tests to the driver, and subsequently arrested him for driving under the influence. The officer called a wrecker to tow the vehicle and the driver was confined in the patrol car.

At this point, the defendant, owner of the Paul Bunyan Bar, came across the street and spoke to the driver. The defendant then returned to the bar and the wrecker arrived to tow the vehicle. As the wrecker driver was preparing to hook up the vehicle, the defendant again came out of the bar and began loudly and vehemently protesting the activity. The defendant told the wrecker driver in a loud and threatening voice that he was a “son of a bitch” and a “bastard” and that he (the defendant) was going to “put a stop to it.”

The policeman told the defendant to “back off.” The officer testified that the defendant then told him, among other things, ‘You’re fucking out of line. You’ve done it this time, you’re fucked.” The defendant returned to the Paul Bunyan Bar. The confrontation lasted five or ten minutes.

On September 20,1988, a complaint was filed in the City Court of the City of Columbia Falls, charging the defendant with one count of disorderly conduct and one count of obstructing a peace officer. He was found guilty of disorderly conduct, and he appealed from that conviction. The District Court, in a non-jury trial de novo, found the defendant guilty of disorderly conduct.

The first issue raised on appeal is whether the District Court erred in finding the defendant used “threatening, profane, or abusive language” in violation of § 45-8-101(c), MCA.

Section 45-8-101, MCA, provides in part:

“(1) A person commits the offense of disorderly conduct if he knowingly disturbs the peace by:
“(c) using threatening, profane, or abusive language;

The District Court stated that the defendant’s words were of such a nature that “men of common intelligence would understand that the words were likely to cause an average person to fight.” Defendant maintains that his words were neither threatening nor obscene and therefore could not be labeled “fighting words.”

It was not necessary, however, for the defendant’s words to be “fighting words.” Section 45-8-101(l)(c), under which the defendant was charged, simply makes it a violation to use “threatening, profane, or abusive” language. The defendant knowingly disturbed the peace by using profane and abusive language, within the common understanding of those terms, to both the wrecker driver and to the officer. He had therefore violated the statute.

Both parties to this appeal rely on City of Whitefish v. O’Shaughnessy, 216 Mont. 433, 704 P.2d 1021 (1985). The defendant in Whitefish was charged under a municipal ordinance forbidding offensive behavior when he called the officer a “[m.f.]” and “this statement was made willfully, maliciously, visually, and directly to the officer, and that the language used constituted ‘fighting’ words.” Whitefish at 436, 704 P.2d at 1023. At trial, the court instructed the jury that “threatening, profane and obscene words, said without a disarming smile, are generally considered to be ‘fighting words.’ ” On appeal, we held that certain taunting and namecalling directed toward a peace officer did constitute “fighting words” within the definition set out by the United States Supreme Court in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct.766, 86 L.Ed. 1031 (1942).

Whitefish is distinguishable from the case before us. Here we have no “fighting words” requirement in the charging document or in a jury instruction. As the statute is written, the District Court did not err in finding a violation.

The defendant’s initial appellate brief to this Court does not challenge the constitutionality of § 45-8-101(l)(c) either under the United States Constitution or under the Montana Constitution, so we need not reach that issue. His discussion of constitutionality is limited to his reply to the City’s brief, and therefore is not properly a subject of this Opinion.

The second issue is whether the District Court erred in finding the defendant’s language disturbed the peace.

The defendant maintains that because the environment surrounding the incident was noisy from vehicle and bar activity, there was no “peace” to be disturbed and he therefore could not have committed the offense of disorderly conduct. The conduct here did not disturb a quiet residential neighborhood like that in City of Billings v. Batten, 218 Mont. 64, 705 P.2d 1120 (1985), but it nevertheless caused a crowd to form and caused people to stop other business and observe the confrontation. As such it upset the status quo, or “disturbed the peace.”

The appellant’s next argument that the only ones disturbed were police or their agents who “must not conceive that every threatening or insulting word or gesture or motion amounts to disorderly conduct,” is equally without merit. The wrecker driver to whom the language was addressed was not a police officer and the crowd that formed was not comprised of police officers. The District Court did not err in finding disorderly conduct by disturbing the peace.

Affirmed.

JUSTICES HARRISON, BARZ, SHEEHY and WEBER concur.


author: JUSTICE TRIEWEILER

text:
    IN THE MATTER OF THE GRIEVANCE OF: DORIS I. BRANDER, Petitioner and Respondent, v. DIRECTOR, MONTANA DEPARTMENT OF INSTITUTIONS, Respondent and Appellant.
    No. 90-292.
    Submitted on briefs Jan. 10, 1991.
    Decided Feb. 19, 1991.
    247 Mont. 302.
    806 P.2d 530.

      James Obie, Dept, of Institutions, Helena, for respondent and appellant.
    Peter Michael Meloy, The Meloy Law Firm, Helena, for petitioner and respondent.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Doris I. Brander petitioned the District Court of the First Judicial District in Lewis and Clark County for judicial review pursuant to § 2-4-702, MCA, of a decision by the Director of the Department of Institutions for the State of Montana. That decision rejected the findings of the Department’s grievance committee to the effect that petitioner had been wrongfully denied employment within the Department. The District Court reversed the decision of the Director and remanded the matter to the Department of Institutions with the order that it adopt the recommendation of the grievance committee. From that judgment, the Department appeals. We affirm.

The Department asserts that the issue on appeal is:

Whether the District Court applied the proper standard for reviewing an agency decision pursuant to § 2-4-704, MCA?

Brander asserts that the issue on appeal is more properly stated as follows:

Whether the District Court correctly concluded that the Director of the Department of Institutions failed to properly apply § 2-4-621(3), MCA, when reviewing factual determinations made by its duly appointed grievance committee.

Section 2-7-704, MCA, sets forth the statutory standards for judicial review of agency decisions. It provides in relevant part as follows:

“2-4-704. Standards of review. (1)...
“(2) The court may not substitute its judgment for that of the agency as. to the weight of the evidence on questions of fact. ... The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because:
“(a) the administrative findings, inferences, conclusions, or decisions are:
“(i) in violation of constitutional or statutory provisions;
“(ii) in excess of the statutory authority of the agency;
“(iii) made upon unlawful procedures;
“(iv) affected by other error of law;
“(v) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;
“(vi) arbitrary and capricious or characterized bv abuse of discretion or clearly unwarranted exercise of discretion:” (Underlining added.)

Section 2-4-621, MCA, is also found in the Administrative Procedure Act in that chapter which sets forth the procedures to be followed by state agencies in deciding contested cases. Section 621 pertains to those situations where the agency official who renders the decision is not the person who personally heard or observed the evidence. Subsection (3) provides in relevant part as follows:

“(3) ... The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the proposal for decision hut may not reject or modify findings of fact unless the agency first determines from a review of the complete record and states with particularity In the order that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law ...” (Underlining added.)

We conclude that an answer to the issue raised by the appellant is dependent upon the answer to the issue raised by the respondent. We further conclude that a resolution of those issues is dispositive of this case, and, therefore decline to address the second issue raised by the appellant.

Summary of the Facts

Doris Brander went to work at Warm Springs State Hospital as the medical records supervisor in 1976. From 1981 until 1986, she worked under the supervision of Jane Edwards, who was the director of Treatment and Residential Services. During that time, petitioner had strained relations with Edwards over the appropriate procedure to be followed in the medical records department and over petitioner’s approach to dealing with employees who were under her supervision.

In February of 1986, Edwards became the superintendent of the Montana State Hospital. In that capacity, she recommended to Carroll South, the Director of the State Department of Institutions, that the position of medical records supervisor at Warm Springs be consolidated with the corresponding position at Galen State Hospital and that there be one supervisor for both institutions. That recommendation was accepted by South in July of 1986 and petitioner was advised of the Department’s intention in mid-August of 1986.

Edwards appointed an interview committee consisting of four people to interview and evaluate applicants for the combined position. In early September the petitioner and Billy Holmlund, her counterpart, at Galen State Hospital, were notified of the new position. They were invited to apply and were advised that theirs were the only applications that would be accepted.

On October 7, the committee interviewed the two applicants and evaluated them in four areas. The formal appraisal, awarded points in (1) education and training; (2) work experience; (3) the interview; and, (4) past work performance. As a result of that appraisal, Holmlund received a total of 225 points and the petitioner received 137 points. The following day, petitioner was notified that Holmlund would be hired for the combined position of medical records supervisor of the Montana Staté Hospitals and petitioner was terminated from employment effective October 24, 1986.

Petitioner filed an employee grievance which was finally accepted by the Department on December 2,1986. Pursuant to Departmental rules for non-union grievances, a three person committee was selected to hear evidence of the petitioner’s grievance. One committee member was chosen by the petitioner; one was chosen by the Department; and, those two members selected a third member to act as chairperson of the committee.

The grievance committee met on July 11, 1988. They heard testimony from the petitioner, Jane Edwards, and several other witnesses, including members of the evaluation committee. At the hearing, petitioner testified that she had not been hired because she had been treated in a discriminatory fashion by Edwards and because of other errors made in the evaluation process. Prominent among those errors was the interview committee’s failure to credit her with 30 points to which she was entitled because of her four years of education in the field of medical records.

On July 15, 1988, the committee unanimously found that the petitioner and Edwards had a troubled working relationship which adversely affected her work evaluations (Ray Lappin, a member of the evaluation committee had previously testified that in order to evaluate petitioners prior work performance the committee simply looked at her evaluation forms. This category, alone, resulted in petitioner’s loss of 67 points compared to Holmlund in the formal appraisal that was done).

In addition, the grievance committee found as a matter of fact that the evaluation was unfair to the petitioner because of inadequate credit to her for her education, inadequate credit to her for her work experience, and general misapplication of the interview process which made it unreliable. The committee found that the cumulative effect of these mistakes was a misapplication of the Department of Institutions personnel policies and procedures. As a result, the committee recommended that the petitioner be made whole by the payment of the salary for a combined medical records supervisor from the date of her termination, less any income she might have earned in the interim.

The committee’s unanimous recommendations were passed along to Carroll South, who had the responsibility for entering a final decision of the Department of Institutions. Without conducting an additional hearing or receiving any additional evidence, South rejected two of the committees factual findings:

“(1) He stated that there was nothing in the record to indicate that the grievance committee received into evidence any of the petitioner’s performance evaluations and that, therefore, there was no evidence in the record to sustain the grievance committee’s finding that petitioner’s ‘troubled relationship with Edwards’ adversely affected her appraisal.
“(2) While agreeing that petitioner had been awarded 30 points less than she should have received in her formal appraisal, he determined that that deficiency, plus any other irregularities in the interview and appraisal were not sufficient to have changed the evaluation committee’s overall result.”

Based upon these findings, South rejected the recommendations of the grievance committee.

On November 10, 1988, Brander petitioned the District Court for the First Judicial District in Lewis and Clark County to review the Director’s decision pursuant to the provisions of § 2-4-702, MCA. The District Court considered a transcript of the grievance committee hearing, the records reviewed by the Director of the Department and the briefs and arguments of the parties. Based upon that information, the District Court concluded that there was factual evidence to support the grievance committees factual findings and that by rejecting those factually supported findings, South violated § 2-4-621(3), MCA. The District Court concluded that in doing so South exceeded his statutory authority and abused his discretion under § 2-4-704, MCA. The District Court reversed the decision of the Department of Institutions and remanded with an order that it adopt the recommendation of the grievance committee.

I.

On appeal, the Department argues that the District Court had no authority to reverse or modify the Department’s decision unless the petitioner’s substantial rights were prejudiced for one of the reasons set forth in § 2-4-704, MCA. That is correct.

The appellant then, however, proceeds from the incorrect premise that the District Court’s decision was based solely upon its reversal of factual findings made by the Department and sets forth authority, including City of Billings v. Billings Firefighters, Local 251 (1982), 200 Mont. 421, 651 P.2d 627 and Chagnon v. Hardy Construction Co. (1984), 208 Mont. 420, 680 P.2d 932 for the proposition that an agency’s factual determinations cannot be overturned unless they are clearly erroneous in view of the evidence in the record. The Department argues that since there was evidence in the record (the testimony of Jane Edwards) to support the Director’s findings, they were not clearly erroneous.

The Department’s argument would be persuasive if the District Court’s decision was rendered pursuant to § 2-4-704(2), MCA, which provides in relevant part that:

“(2) ... The court may reverse or modify the decision if substantial rights of the appellant had been prejudiced because:
“(a) The administrative findings, inferences, conclusions, or decisions are:
“(v) clearly erroneous in view of the rehable, probative, and substantial evidence on the whole record.”

However, the District Court’s decision was based upon the next subparagraph of § 2-4-704, MCA, which allows reversal if the Department’s findings were, “(vi) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion;...”

The District Court concluded that it was an abuse of the Director’s discretion to reject the factual findings of the grievance committee if, in doing so, he violated § 2-4-621(3), MCA. That section, as previously pointed out, prohibits the Director, who neither heard nor personally observed the testimony from arbitrarily rejecting the factual findings of the grievance committee which actually did hear and observe the witnesses. Before he can do so, the Director must first determine from a review of the complete record that the grievance committee findings were not based upon “competent, substantial evidence.” We agree with the District Court that if the Director rejected the grievance committee’s factual recommendations in violation of this section, it constituted an abuse of discretion within the meaning of § 2-4-704 (2)(a)(vi), MCA.

II.

The remaining issue is whether the District Court properly concluded from its review of the record that there was competent, substantial evidence to support the factual findings of the grievance committee. We conclude that there was.

The Petitioner testified that in 1985, Edwards threatened her with disciplinary action for going over her head in a dispute over the proper procedure for preserving medical records. She further testified that in a continuation of the bad relationship which was caused by that experience and in the process of evaluating her as an employee, Edwards criticized her ability to supervise other employees. The petitioner clearly testified that she was rated poorly as an employee by Edwards for these reasons.

Ray Lappin, who succeeded Edwards as the petitioner’s supervisor, and who served as a member of the selection committee testified that in order to evaluate the applicant’s past work performance, the committee simply looked at her previous evaluation forms.

As a result of past evaluations, Holmlund received 100 points in her formal appraisal and the petitioner received only 33. If that disparity was the result of discriminatory action by Edwards, then it, in combination with the 30 points that the Director admits petitioner should have received for her prior education would have more than made up the difference in the total number of points received by Holmlund and petitioner.

The question is, therefore, whether there was substantial evidence to support the grievance committee’s finding that petitioner’s poor working relationship with Edwards was directly related to the termination of her employment.

The petitioner testified that it did. The direct evidence of one witness who is entitled to full credit is sufficient for the proof of any fact. Section 26-1-301, MCA.

Therefore, the District Court was correct in its conclusion that by rejecting the grievance committee’s findings South violated § 2-4-621(3), MCA.

For these reasons, the District Court decision and order is affirmed and this matter is remanded to the District Court for implementation of its judgment dated March 2, 1990 which orders that:

“... The decision of the Department of Institutions is reversed and the matter is remanded with the order to adopt the recommendation of the grievance committee.”

Affirmed.

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


text:
    GRAVELEY RANCH, Plaintiff and Appellant, v. THOMAS SCHERPING and ANITA SCHERPING, Defendants and Respondents.
    No. 90-323.
    Submitted on briefs Jan. 3, 1991.
    Decided Feb. 19, 1991.
    247 Mont. 310.
    806 P.2d 29.
    Charles A. Graveley, Helena, for plaintiff and appellant.
    G. Curtis Drake, Helena, for defendants and respondents.
   JUSTICE HUNT

delivered the Opinion of the Court.

Graveley Ranch appeals from an order of the First Judicial District, Lewis and Clark County, granting summary judgment in favor of Thomas and Anita Scherping.

We affirm.

The sole issue raised on appeal is whether the District Court properly granted summary judgment to the defendants.

Graveley Ranch held a permit to graze on the land adjacent to and surrounding what was the Scherpings’ property. On September 30, 1984, the residence on Scherpings’ property burned to the ground, leaving residue which included lead storage batteries. Several Graveley Ranch cattle subsequently became ill and died. On September 25, 1985, Graveley Ranch’s attorney wrote a letter to the Scherpings stating that six cattle had already died from the lead in the battery residue. At least by October 1, 1985, a fence was constructed around the site with materials provided by Graveley Ranch. On November 4, 1985, Graveley Ranch received a letter from the Solid and Hazardous Waste Bureau of the State Department of Health and Environmental Sciences, confirming the source of the poisoning. On October 29, 1987, Graveley Ranch filed a complaint against Thomas and Anita Scherping.

This is the second time this matter has come before us on appeal. After pleadings were complete below, the District Court granted summary judgment to the defendants. The court found that since the injury was known on September 25,1985, and the complaint was not filed 'until October 29, 1987, the two year statute of limitations had run. This Court on appeal stated that indeed the statute had begun to run upon discovery on September 25,1985, but that the continuing nature of the injury tolled the statute until the source of the injury abated. Graveley Ranch v. Scherping (Graveley Ranch I), 240 Mont. 20, 25, 782 P.2d 371, 375 (1989). We remanded the case to the District Court for further proceedings.

Once there, the defendants again moved for summary judgment claiming that the fence around the site had abated the nuisance. The District Court agreed, and again granted summary judgment.

Did the District Court properly grant summary judgment to the defendants?

The first time this issue was brought before us, we stated:

“... However, the presence of the lead batteries does constitute a nuisance which could have been abated at any time by the defendants. Thus, the nuisance is continuing until it is abated; the statute does not begin to run until the batteries are removed and the toxic residue cleaned from the site of the fire. If defendants have made no effort to remove the hazardous materials from the fire site, a new cause of action may arise each time a cow becomes ill or dies as a result of lead poisoning.”

Graveley Ranch I. Plaintiff here contends that since the batteries were not removed or the residue cleaned up, the nuisance continued, thus precluding the running of the statute.

On the first appeal, we were not made aware that the nuisance had in fact abated with the construction of the fence on or about October 1, 1985. Although our previous opinion stated that the batteries should be removed, the construction of the fence sufficed to keep the cows out of the toxic material, thus accomplishing the same result as removal of the batteries. Once the cows were cut off from the source of the poison, the nuisance abated as far as the plaintiff’s cows were concerned and the statute could run.

Contrary to plaintiff’s argument, it made no difference who was responsible for putting up the fence. Our earlier Opinion assumed that the defendants would be the ones to remove the nuisance, but the fact that the plaintiffs beat them to it is not material to the abatement issue. The nuisance had to be removed so that a time could be fixed beyond which the defendants would not be responsible for poisoning the cows. This was done with the construction of the fence. The statute then began to run either on September 25,1985, with the discovery of the injury, or on October 1, 1985, with the abatement of the nuisance. In either case, the October 29,1987, filing exceeded the statutory limit.

Affirmed.

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


author: CHIEF JUSTICE TURNAGE

text:
    CITY OF HELENA, Plaintiff and Respondent, v. JIM BUCK, Real Party in Interest, Defendant and Appellant.
    No. 90-499.
    Submitted on briefs Jan. 10, 1991.
    Decided Feb. 19, 1991.
    247 Mont. 313.
    806 P.2d 27.

      Michael Donahoe, Helena, for defendant and appellant.
    David N. Hull, City Atty., Helena, for plaintiff and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The District Court for the First Judicial District, Lewis and Clark County, dismissed Jim Buck’s appeal from Helena City Court and his alternative application for a writ of certiorari. Buck appeals. We affirm in part, reverse in part, and remand.

The issue is whether the District Court erred in granting the motion to dismiss.

Acting as an agent for American Bankers Insurance Company, defendant and appellant Jim Buck wrote bail bonds for defendants in criminal cases in Helena, Montana. Four of those defendants did not appear in the City Court of Helena at the designated times and the court ordered that their bail bonds be forfeited. The orders of bond forfeitures were issued on December 9, 1989; February 28, 1990; April 19, 1990; and May 4, 1990.

Buck refused to pay the forfeitures. On May 11, 1990, the City Court issued an order requiring him to show cause why he had not done so. At the show cause hearing on May 24, 1990, Buck argued that each of the four defendants had appeared in court within twenty-four hours of the scheduled hearing and had a reasonable explanation for the failure to appear. The City Court refused to accept Buck’s argument and orally advised him that the forfeiture orders remained in effect.

Buck filed a notice of appeal “of the final order of forfeiture that was entered by the City Court on May 24,1990.” The notice of appeal was received in the City Court on June 25,1990, and filed in District Court on July 6, 1990.

The District Court granted the motion of the City of Helena to dismiss the appeal as untimely. It ruled that this was a civil case subject to the thirty-day time for appeal under § 25-33-102, MCA, and that judgments were rendered on the dates of the orders that bonds be forfeited, the last of which was May 4. It concluded that the Jeme 25 notice of appeal was untimely as to all four forfeitures. The District Court denied Buck’s alternative request that his papers be treated as a petition for a writ of certiorari because 1) the papers were not filed within thirty days of the judgments forfeiting the bail bond money, and 2) the proper procedure for applying for a writ of certiorari was not followed.

Did the District Court err in granting the motion to dismiss?

Section 46-9-503(3), MCA, provides:

“(3) If at any time within 30 days after the forfeiture the defendant or his bail appear and satisfactorily excuse his negligence or failure to comply with the conditions of the bail, the court, in its discretion, may direct the forfeiture of the bail to be discharged upon such terms as may be just.”

The City of Helena argues that when Buck brought each defendant in to court within twenty-four hours of the scheduled hearing, he made the appearance allowed under § 46-9-503(3), MCA. We disagree. The statute does not grant one appearance, it grants thirty days. As to each forfeiture, Buck was entitled to a period of thirty days in which to appear and offer an excuse justifying discharge of forfeiture of the bond.

As to the first three forfeitures, more than thirty days passed before the City Court took further action. As to the May 4 forfeiture, however, Buck was not granted the thirty days to which he was entitled under § 46-9-503(3), MCA. The May 24 show cause hearing occurred less than thirty days after the May 4 forfeiture.

Because no order or final judgment issued out of the May 24 hearing, we must agree with the District Court and with the City of Helena that there is no right of appeal from that hearing. See §§ 25-33-101 and 46-17-311, MCA. We therefore affirm the judgment of the District Court dismissing the appeal from City Court to District Court.

We next turn to the matter of the application for a writ of certiorari. The procedural requirements for filing an application for a writ of certiorari are set forth at § 27-25-201, MCA. That section provides that an application for the writ must be made on affidavit by the party beneficially interested. Those procedural requirements were met when Buck submitted to the District Court an affidavit asking that his papers be considered as an application for a writ of certiorari. There is no requirement that an application for a writ of certiorari be filed within thirty days of judgment.

Under § 27-25-102, MCA, a writ of certiorari may be granted when an inferior tribunal has exceeded its jurisdiction and there is no appeal or, in the judgment of the court, any plain, speedy, and adequate remedy. We conclude that certiorari is a proper remedy as to the May 24 hearing on the May 4 forfeiture because the lower court has exceeded its jurisdiction and there is no remedy of appeal. See State ex rel. Van v. District Court (1918), 54 Mont. 577, 172 P. 540.

We affirm the judgment of the District Court as to the first three forfeitures. As to Buck’s May 4 forfeiture, we reverse the District Court’s judgment denying the application for a writ of certiorari and direct that on remand to the City Corut, Buck be granted thirty days to present his argument why that forfeiture should not occur.

Affirmed.

JUSTICES HARRISON, WEBER, HUNT and McDONOUGH concur.