author: JUSTICE ERDMANN

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DANIEL GEORGE SWAN, Defendant and Appellant.
    No. 95-069.
    Submitted on Briefs August 29, 1996.
    Decided November 26, 1996.
    53 St.Rep. 1246.
    279 Mont. 483.
    928 P.2d 933.

      For Appellant: John Keith, Attorney at Law, Great Falls.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Elizabeth L. Griffing, Assistant Attorney General, Helena; Brant Light, Cascade County Attorney, Great Falls.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

Daniel George Swan appeals from the judgment and conviction, and order denying his motion for a new trial by the Eighth Judicial District Court, Cascade County. After a jury trial, Swan was convicted of felony aggravated assault pursuant to § 45-5-202(1), MCA. We affirm.

The issues on appeal are as follows:

1. Did the District Court err in instructing the jury as to the lesser included offenses?

2. Was Swan deprived of his right to be present during all critical stages of the proceeding when he was not present at an in camera hearing?

3. Did the District Court err when it joined the felony assault charge and the felony aggravated assault charge?

4. Did the District Court err in denying Swan’s motion for a new trial based on his claim of ineffective assistance of counsel?

FACTS

On July 12, 1993, Swan was charged with felony assault arising out of a fight between he and Ralph Toulouse, a/k/a Ralph Whitney, at the home of Lindsey Martin. Later that year, on September 8,1993, Swan was an inmate at the Cascade County Jail when Toulouse was placed in the same cell as Swan. Swan and Toulouse fought in jail that night and as a result of this fight Toulouse was severely injured on his face and head. Toulouse’s right eyelid was lacerated and his right tear duct was severed, resulting in a permanent injury. Toulouse also suffered a broken nose, broken facial bones, broken teeth, and his head was severely swollen. Swan did not suffer any injuries which required medical attention. As a result of this fight, Swan was charged with aggravated assault, a felony, pursuant to § 45-5-202(1), MCA.

The felony assault charge and the felony aggravated assault charge were consolidated. At trial Swan was represented by H. William Coder. Swan was acquitted of the felony assault but was found guilty of the aggravated assault. Swan filed a motion for a new trial on February 22, 1994, alleging that the jury had been improperly instructed regarding application of the assault as a lesser included offense, that the two cases were improperly joined, and that Coder had provided ineffective assistance. A hearing was held and the District Court denied the motion for new trial. Swan appeals from the judgment and conviction and the denial of the motion for new trial.

ISSUE 1

Did the District Court err in instructing the jury as to the lesser included offenses?

The standard of review of jury instructions in a criminal case is whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. State v. Brandon (1994), 264 Mont. 231, 237, 870 P.2d 734, 737.

Swan argues that the District Court erred in its instructions because there was no instruction similar to 1-011, MCJI, defining lesser included offense or advising the jury how to proceed in determining whether to consider a lesser included offense. Swan, however, did not offer an instruction regarding lesser included offense at the time of settling the instructions. We have previously stated that this Court will not predicate error upon the failure to give an instruction when the party alleging the error failed to offer the instruction. State v. Courchene (1992), 256 Mont. 381, 847 P.2d 271; State v. Evans (1991), 247 Mont. 218, 806 P.2d 512. Swan not only failed to make a timely objection to the instructions, he expressly agreed to the instructions that were given. He cannot now directly raise this issue on appeal. Section 46-20-104, MCA.

ISSUE 2

Was Swan deprived of his right to be present during all critical stages of the proceeding when he was not present at an in camera hearing?

Swan argues that his constitutional and statutory right to be present at every stage of his trial was infringed when he was not present during an in camera discussion of a note from the jury. The jury sent a note to the District Court Judge inquiring whether the assault instruction applied to the felony aggravated assault as well as the felony assault. Both counsel were present for the discussion of the note. Neither counsel objected to the court’s answer.

Swan did not make an objection at the time the note was discussed nor did he raise this objection in his motion for new trial. Section 46-20-104, MCA, provides that failure to make a timely objection constitutes waiver of the objection except as provided in § 46-20-701(2), MCA. The exceptions found in § 46-20-701(2), MCA, do not apply in this situation. We therefore decline to address this issue raised for the first time on appeal.

ISSUE 3

Did the District Court err when it joined the felony assault charge and the felony aggravated assault charge?

The State filed a Just notice in the aggravated assault case, giving notice of its intent to introduce evidence of the earlier fight. At the hearing on the Just notice, an oral motion was made by Coder to continue the felony aggravated assault trial until after the felony assault trial. State v. Just (1979), 184 Mont. 262, 602 P.2d 957. The parties also discussed the possibility of consolidating the cases. There is no record of the oral motion for consolidation by Coder; however, the District Court’s order granting consolidation specifically provides that Coder, with Swan’s consent, requested and agreed to consolidating the two cases.

Swan’s objection to the consolidation is untimely and we decline to address the objection except in regard to his assertion that Coder’s performance was deficient when moving for and agreeing to such joinder, which is discussed in Issue 4.

ISSUE 4

Did the District Corut err in denying Swan’s motion for a new trial based on his claim of ineffective assistance of counsel?

Swan’s motion for new trial also sought to reverse the judgment on the grounds of ineffective assistance of counsel. Swan asserts that the court abused its discretion in denying his motion for new trial because of alleged errors committed by Coder in regard to the instruction of the jury, the failure to have Swan present during all critical stages of the trial, the joinder of the charges, and on the basis that Coder misrepresented his experience when he stated that he had previously participated in a felony trial.

We review a district court’s decision to grant or deny a motion for new trial to determine whether the court abused its discretion. State v. Hatfield (1995), 269 Mont. 307, 888 P.2d 899; State v. Mummey (1994), 264 Mont. 272, 871 P.2d 868. This Court applies the two-part test from Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, to evaluate claims of ineffective assistance of counsel. First, Swan must establish that Coder’s performance was deficient in that counsel did not act within the range of competence demanded of attorneys in criminal cases. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; State v. Baker (1995), 272 Mont. 273, 901 P.2d 54. In making this determination, judicial scrutiny of counsel’s actions is highly deferential and counsel’s performance is strongly presumed to fall within a wide range of reasonable professional assistance. Kills on Top v. State (1995), 273 Mont. 32, 901 P.2d 1368. Second, Swan must establish that he was prejudiced by his counsel’s performance, and that “but for” Coder’s performance the result of the trial would have been different. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Swan therefore must establish both deficient performance and prejudice to prevail on a claim of ineffective assistance of counsel. Furthermore, this Court will not second-guess trial tactics and strategy. Baker, 901 P.2d at 59.

Swan first argues that Coder’s performance was deficient because he failed to request an instruction describing how the lesser included offense of assault should have been considered by the jury in regard to the aggravated assault charge. Section 46-16-607(2), MCA, requires that a lesser included offense instruction must be given when there is a proper request by one of the parties and when, based on the evidence, the jury could be warranted in finding the defendant guilty of a lesser included offense. We have previously held that a lesser included offense instruction is not required if it is not supported by the evidence. State v. Kills on Top (1990), 241 Mont. 378, 394, 787 P.2d 336, 346.

Coder testified at the hearing on Swan’s motion for new trial that he did not believe there was “any evidence to support” a lesser included offense instruction for the aggravated assault charge. Coder explained that “simply by virtue of the fact that those [Toulouse’s] injuries were so serious and they were permanent.” Although Toulouse did not testify as to his injuries, the record supports Coder’s assessment of these injuries.

Aggravated assault pursuant to § 45-5-202(1), MCA, is committed if the defendant purposely or knowingly causes serious bodily injury to another. The jury was instructed that “serious bodily injury” is “bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement or protracted loss or impairment of the function or process of any bodily member or organ.” Section 45-2-101(64), MCA. Expert medical testimony is not required to prove the permanency of an injury where the permanency is undisputed and apparent from the nature of the injury itself. State v. Bower (1992), 254 Mont. 1, 10, 833 P.2d 1106, 1112.

The injuries inflicted by Swan on Toulouse were uncontested. The permanency of these injuries was uncontroverted. Lindsey Martin testified to the scarring on Toulouse’s face, the continuous tearing of the eye, and the sagging of his eye. Coder properly interpreted the law in determining that there was not evidence to support a jury finding of the lesser included offense of assault as it applied to the aggravated assault charge. We have previously held that a defense counsel’s performance is not deficient as a matter of law where counsel properly interprets the law. Brown v. State (1996), [277 Mont. 430], 922 P.2d 1146, 1152. Swan’s argument that Coder’s performance was deficient when he did not request the lesser included offense instruction for the aggravated assault charge fails the first part of the Strickland test, as counsel’s performance was within the range of competence demanded of attorneys in criminal cases and therefore we need not address the second prong of the test.

Swan next asserts that Coder’s failure to have Swan present when the jury sent a note to the District Court Judge asking if the simple assault applied to both cases was in violation of his Sixth Amendment rights under the United States Constitution to be present at every stage of his trial, and also a violation of § 46-16-121, MCA. Swan, however, was present at all stages of the trial where his presence was essential to a fair and just determination of a substantive issue. See State v. Hart (1981), 191 Mont. 375, 625 P.2d 21; State v. Schenk (1968), 151 Mont. 493, 444 P.2d 861.

The District Court specifically found that the note from the jury on whether assault could be considered in both cases did not indicate confusion, but rather demonstrated that the jury knew “what to do with it and only wanted to know if it applied to both offenses.” The absence of Swan from the discussion of the legal question by the jury was not injurious to his right of due process or his right of confrontation. Furthermore, in order to fulfill the Strickland two-part test Swan is required to show that but for counsel’s performance the outcome would have been different. Swan has made no showing that the jury did not fully understand the operation of the lesser included offenses when it sent the inquiry to the court, and he also has made no showing that if the jury had formally been given the lesser included offense instruction the outcome would have been different. Coder’s performance was not deficient in this area.

Swan’s third assertion is that Coder was ineffective in allowing the cases to be joined. At the hearing on the motion for new trial, Coder testified that he wanted the cases consolidated for strategic reasons. Coder testified he believed that evidence of the earlier fight would support Swan’s self-defense argument and would show that Toulouse held a grudge against Swan and that many of the same witnesses would be called to testify. Coder also testified Swan had agreed to the consolidation.

Swan, however, asserts there were no common witnesses necessary for both cases, as the victim did not testify. He argues that the State was simply trying to avoid the necessity of complying with the Just notice rule requirements by having the matters consolidated.

We have previously held that questions of the propriety of the joinder of offenses in a single trial are subject to an abuse of discretion standard. State v. Slice (1988), 231 Mont. 448, 753 P.2d 1309. This Court has frequently stated that it will not second-guess trial tactics or strategy of defense counsel. Brown, 922 P.2d at 1148. Coder testified that he made a tactical decision to allow the cases to be tried at the same time because it would allow “an excellent claim for self defense.” Furthermore, Swan agreed to the consolidation. Under Strickland, Coder is entitled to rely upon his client’s representations and decisions. Strickland, 466 U.S. at 691, 104 S.Ct. at 2066-67. We therefore hold that Swan’s allegations of ineffective assistance of counsel by allowing joinder of the two cases must fail.

Swan’s final assertion under his theory of ineffective assistance of counsel is that Coder misrepresented his experience when he stated that he had had a felony trial in Glasgow. This argument fails to address the merits of Coder’s representation and does not reflect upon Coder’s performance. We thus decline to address this argument as we have determined that the District Court did not abuse its discretion in denying Swan’s motion for new trial on the basis that Coder’s representation of Swan was deficient.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    IN RE MARRIAGE OF JOYCE S. COWAN, Petitioner and Respondent, and ARDEN R. COWAN, Respondent and Appellant.
    No. 96-083.
    Submitted on Briefs September 19, 1996.
    Decided November 26, 1996.
    53 St.Rep. 1250.
    279 Mont. 491.
    928 P.2d 214.

      For Appellant: John H. Gilliam, Skjelset & Gilliam, RL.L.R, Missoula.
    For Respondent: Clinton H. Kammerer, Kammerer Law Offices, Missoula.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

On April 4, 1995, Arden Cowan moved the District Court for the Twenty-First Judicial District in Ravalli County to modify his child support obligation. His former spouse, Joyce Cowan, opposed the motion and filed a motion to have Arden held in contempt for failure to pay past support. Following a hearing at which both motions were considered, the District Court increased Arden’s child support obligation from $250 to $762 per month. The District Court refused to reduce Arden’s arrearages by the amount recommended by the Child Support Enforcement Division (CSED), and refused to credit certain Social Security benefits against his past due obligation. The District Court also denied Joyce’s motion to hold Arden in contempt. Arden appeals the District Court’s order which modified his child support obligation and which refused to grant him credit against his arrearages. We affirm in part and reverse in part the order of the District Court and remand to that court for a determination of Arden’s child support obligation consistent with this opinion and with the Uniform Child Support Guidelines.

We address five issues on appeal:

1. Did the District Court abuse its discretion when it modified Arden’s child support obligation without considering the factors set forth in § 40-4-204, MCA, and the Uniform Child Support Guidelines?

2. Did the District Court err when it refused to apply the monthly Social Security disability payments made to Arden’s children toward Arden’s monthly child support obligation?

3. Did the District Court err when it refused to apply the monthly Social Security disability payments made to Arden’s two children in excess of Arden’s support obligation as a credit toward his accrued arrearages?

4. Did the District Court err when it refused to apply the Social Security lump sum disability payment made to Arden’s two children as a credit toward his accrued arrearages?

5. Did the District Court err when it refused to reduce Arden’s accrued arrearages by $1,593.20, as recommended by the Child Support Enforcement Division?

FACTUAL BACKGROUND

In 1982, the District Court for the Twenty-First Judicial District dissolved the marriage of Arden and Joyce Cowan and awarded J oyce monthly child support in the amount of $100 per child for each of the couple’s two children. Joyce filed a petition for modification of child support on December 5, 1988, and the District Court increased Arden’s child support obligation to $200 per month per child beginning June 15, 1989.

In January 1994, Joyce filed a motion in the District Court to have Arden held in contempt for his failure to keep his child support obligation current. At that time, Arden’s past due child support amounted to $17,700, and he owed an additional $800 for attorney fees. Following a hearing at which J oyce’s motion was considered, the District Court adjudged Arden in contempt of court and entered a judgment against Arden in the amount of $18,550. However, based on its finding that Arden had been “beset with financial hardships attributable to health and unemployment,” the court reduced Arden’s child support obligation to $250 per month for both children.

Arden filed a motion to further modify his child support obligation in April 1995. By that time, the Social Security Administration (SSA) had determined that he had been disabled since November 1992 and had awarded him monthly benefits in the amount of $924, retroactive to May 1993. The SSA had also awarded Arden’s children $512 per month retroactive to the same date. Based on the Social Security payments, Arden alleged in his petition that his child support should be modified because of “changed circumstances so substantial and continuing as to make the terms [of the decree] unconscionable,” pursuant to § 40-4-208, MCA. Specifically, Arden maintained that (1) his child support obligation should be modified to conform to the Uniform Child Support Guidelines; (2) his support obligation should be modified to reflect a credit for Social Security disability benefits paid to the children; and (3) any Social Security disability benefits received by his children that exceeded his support obligation should be applied as a credit against his accrued arrearages.

Before Arden filed his motion for modification of his child support obligation, the SSA delivered to him two lump sum payments totaling $19,456.00 for Social Security benefits earned from the date of his entitlement to the date of payment. After Arden filed his motion, the SSA sent to Joyce a lump sum payment of $9,728.00 representing benefits to the children as a result of Arden’s disability. In addition, the CSED determined that Arden’s child support arrearages should be reduced by $1,593.20.

Following the distribution by the SSA of the lump sum payments, and the recommendation by CSED that Arden’s arrearages be reduced, Arden filed a brief in support of modification of his child support obligation. In his brief, Arden contended that both the lump sum payment received by his children and the amount of monthly Social Security payments paid in excess of his child support obligation should be credited against his accrued arrearages. Arden further contended that those accrued arrearages should be reduced by the amount recommended by the CSED.

Following a hearing at which Arden’s motion to modify his child support obligations and Joyce’s motion for contempt were considered, the District Court issued its findings of fact, conclusions of law, and order. In its order, the court modified Arden’s child support obligation from $250 per month to $762 per month. Although the court did not specifically address the reduction of Arden’s arrearages by either the amount recommended by the CSED or by the amounts paid for Social Security benefits, the court stated that it “[found] generally for Joyce and against Arden on all issues not specifically addressed herein.” The District Court denied Joyce’s motion to hold Arden in contempt.

STANDARD OF REVIEW

We review a district court’s findings of fact and conclusions of law which underlie an order for the modification of child support to determine whether the court’s findings of fact are clearly erroneous and whether its conclusions of law are correct. In re Marriage of Brandon (1995), 271 Mont. 149, 151-52, 894 P.2d 951, 952-53. We review the court’s decision to modify child support to determine whether the court abused its discretion. In re Marriage of Kovash (1995), 270 Mont. 517, 521, 893 P.2d 860, 863.

ISSUE 1

Did the District Court abuse its discretion when it modified Arden’s child support obligation without considering the factors set forth in § 40-4-204, MCA, and the Uniform Child Support Guidelines?

On April 4, 1995, Arden Cowan filed a motion for modification of his child support obligation. Arden maintained that his circumstances had changed substantially, as evidenced by the SSA’s determination in January 1995 that he is totally disabled. Because his disability precludes meaningful employment, Arden asserted that his child support obligation of $250 per month was “unconscionable” and should be reduced to conform with the Montana Child Support Guidelines.

It is well established that “[w]henever the court issues or modifies an order relating to child support, the district court is required to determine the child support obligation on the basis of the factors set out in § 40-4-204(1) and (2), MCA, and the Uniform Child Support Guidelines.” In re Marriage of Wackler (1993), 258 Mont. 12, 15, 850 P.2d 963, 965. In this case, the District Court’s specific obligations with respect to Arden’s child support determination are set forth in § 40-4-204, MCA (1993), which provides in pertinent part:

(2) The court shall consider all relevant factors, including:
(a) the financial resources of the child;
(b) the financial resources of the custodial parent;
(c) the standard of living that the child would have enjoyed had the marriage not been dissolved;
(d) the physical and emotional condition of the child and the child’s educational and medical needs;
(e) the financial resources and needs of the noncustodial parent;
(f) the age of the child;
(g) the cost of day care for the child;
(h) any custody arrangement that is ordered or decided upon; and
(i) the needs of any person, other than the child, whom either parent is legally obligated to support.
(3) (a) Whenever a court issues or modifies an order concerning child support, the court shall determine the child support obligation by applying the standards in this section and the uniform child support guidelines adopted by the department of public health and human services pursuant to 40-5-209. The guidelines must be used in all cases .... The amount determined under the guidelines is presumed to be an adequate and reasonable support award, unless the court finds by clear and convincing evidence that the application of the standards and guidelines is unjust to the child or to any of the parties or is inappropriate in that particular case.
(b) If the court finds that the guideline amount is unjust or inappropriate in a particular case, it shall state its reasons for finding that the application of the standards and guidelines is unjust to the child or a party or is inappropriate in that particular case. Similar reasons must also be stated in a case in which the parties have agreed to a support amount that varies from the guideline amount. Findings that rebut and vary the guideline amount must include a statement of the amount of support that would have ordinarily been ordered under the guidelines.

(Emphasis added.)

In this case, the District Court modified Arden’s child support obligation based upon its conclusion that “$762.00 per month contribution is reasonable considering all the circumstances.” However, the court made no finding regarding Arden’s yearly income and admitted that it “[had] no data as to Joyce’s income.” The court, in fact, made no attempt to apply the Uniform Child Support Guidelines or to consider the factors set forth in § 40-4-204, MCA. Instead, the court cavalierly stated: “Whether [the $762 monthly obligation] meets the criteria of the so called mandatory guide lines, the Court will leave to the Child Support Enforcement Division.”

We have repeatedly held, however, that the district court must consider the Uniform Child Support Guidelines and the statutory criteria set forth at § 40-4-204, MCA, when it makes its child support determination. See, e.g., Brandon, 271 Mont. at 154, 894 P.2d at 954; In re Marriage of Griffin (1993), 260 Mont. 124, 140, 860 P.2d 78, 88; Wackler, 258 Mont. at 15, 850 P.2d at 965. The purpose of that requirement is to ensure that there is an evidentiary basis upon which a court’s child support determination is based. In re Marriage of Kukes (1993), 258 Mont. 324, 328, 852 P.2d 655, 657. Failure to set forth findings that demonstrate that the statutory criteria have been considered is a clear abuse of discretion. Griffin, 260 Mont. at 140, 860 P.2d at 88.

In this case, the District Court failed to set forth any factual basis to support its conclusion that Arden’s child support obligation should be increased to $762 per month. Furthermore, those findings that the court did make with regard to Arden’s ability to contribute to his children’s support were not supported by substantial credible evidence. For example, although the court found that Arden was capable of contributing $250 per month from his self-employment income, the evidence submitted at trial demonstrated that Arden had only earned a cumulative total of $700 to $1,000 in the twenty months preceding the district court hearing. In addition, although the court found that Arden had regularly worked as a professional hunting guide and as an electrician, Arden testified that he had never received any monetary payment for his services as a guide and that he had only earned about $1,000 performing odd jobs as an electrician. Clearly, the evidence submitted at trial did not establish Arden’s capacity to contribute $250 monthly in addition to Social Security benefits his children were already being paid.

Therefore, because the District Court failed to apply the Uniform Child Support Guidelines and § 40-4-204, MCA, when it ordered the modification of Arden’s support obligation, and because those findings that the District Court did make with regard to Arden’s ability to contribute to his children’s support were not supported by substantial credible evidence, and were, therefore, clearly erroneous, we hold that the District Court abused its discretion when it modified Arden’s monthly child support obligation from $250 to $762. We therefore reverse the District Court’s order modifying Arden’s child support obligation and remand to that court with instructions that the court consider the Uniform Child Support Guidelines, the factors listed in § 40-4-204, MCA, and Rule 46.30.1542, ARM, and enter findings of fact which support its child support award.

ISSUE 2

Did the District Court err when it refused to apply the monthly Social Security disability benefits paid to Arden’s children toward Arden’s monthly child support obligation?

In this case, the District Court concluded that Arden’s child support obligation should be adjusted to $762 permonth — $512 to be paid from the Social Security disability payments and $250 to be paid by Arden. The court’s order did not alter Arden’s standard $250 monthly obligation, but, in effect, denied Arden the opportunity to offset that obligation with the Social Security disability payments. On appeal, Arden maintains that the Social Security disability benefits received by his children should have been credited against the amount of his monthly obligation, as required by this Court in In re Marriage of Durbin (1991), 251 Mont. 51, 823 P.2d 243.

In Durbin, this Court held that the receipt of Social Security benefits by a child based on a parent’s disability following a dissolution of marriage should serve as a credit toward that parent’s child support obligation. Durbin, 251 Mont. at 58, 823 P.2d at 247. We concluded, however, that such an offset constituted a modification of the original child support decree, pursuant to § 40-4-208(1), MCA, and limited the application of the credit to those payments which accrued after the petition for modification of child support had been filed. Durbin, 251 Mont. at 58, 823 P.2d at 247. Accordingly, we held that the non-custodial father in Durbin was entitled to a credit for those Social Security benefits received by his children after he had filed a motion to modify his child support obligation, but denied him credit for those benefits received prior to the date on which he filed his petition. Durbin, 251 Mont. at 58, 823 P.2d at 247. Our holding was based, in part, on the language of § 40-4-208(1), MCA, which provides that a dissolution decree can be modified “only as to installments accruing subsequent to actual notice to the parties of the motion for modification.” (Emphasis added.)

Upon further review of Durbin, however, we are persuaded that we were incorrect when we concluded that an offset of a child support obligation by Social Security benefits constitutes a modification of the original child support order. As this Court noted in Durbin, Social Security benefits are paid as a result of a parent’s disability and serve as a substitute for that parent’s lost earning capacity. Durbin, 251 Mont. at 58, 823 P.2d at 249. As such, those payments are simply a replacement for a parent’s lost wages due to an acknowledged disability. Thus, a credit for those Social Security benefits does not retroactively modify the disabled parent’s monthly child support obligation; it merely changes the source of the payments. Therefore, although we affirm that portion of Durbin which allowed a credit against a noncustodial parent’s child support obligation for Social Security benefits received by his children, we reverse that portion of the opinion which held that a credit for Social Security benefits received prior to the motion to modify would constitute a retroactive modification of the district court’s original child support order. We also reverse In re Marriage of Malquist (1994), 266 Mont. 447, 880 P.2d 1357, to the extent that it adopted Durbin’s rationale.

A majority of states follows the rule that Social Security benefits received as a result of a parent’s disability do not modify a parent’s original child support obligation. See, e.g., Perteet v. Sumner (Ga. 1980), 269 S.E.2d 453; In re Marriage of Henry (Ill. 1993), 622 N.E.2d 803; Board v. Board (Ky. 1985), 690 S.W.2d 380; Mooneyham v. Mooneyham (Miss. 1982), 420 So. 2d 1072; Weaks v. Weaks (Mo. 1991), 821 S.W.2d 503; Hanthorn v. Hanthorn (Neb. 1990), 460 N.W.2d 650; Griffin v. Avery (N.H. 1980), 424 A.2d 175; Mask v. Mask (N.M. 1980), 620 P.2d 883. The Illinois Supreme Court, for example, has acknowledged that Illinois law provides for modification of only future child support installments, but has held that “a distinction exists between ‘crediting an obligation with payment made from another source and increasing, decreasing or terminating, or otherwise modifying a specific dollar amount.’ ” Henry, 622 N.E.2d at 808. Based on its conclusion that the substitution of Social Security benefits is not a retroactive modification of child support, the court has concluded that

because social security dependent disability benefits are earned by the noncustodial parent, made on behalf of such parent, and, in fact, paid at least in part with contributions from the noncustodial’s own earnings, payment of social security dependent disability benefits satisfies a noncustodial parent’s child support obligation.

Henry, 622 N.E.2d at 809.

Other courts have rejected Durbin’s rationale that there need be a modification of the original divorce decree before Social Security payments can be credited toward a parent’s support obligation. The Missouri Supreme Court, for example, has held that the minority view, as set forth in Durbin, is “harsh and unjust.” Weaks, 821 S.W.2d at 506. That court stated:

A minority of states follows the rule that a credit for social security disability payment is available against the child support obligation only after a modification by the trial court.
This view, followed by a distinct minority of jurisdictions, is harsh and unjust. To impose the requirement of a court proceeding, i.e., modification hearing, on a party seeking to credit disability payments received by the custodial parent for the benefit of the parties’ children is overly harsh. In situations involving disability benefits, the party seeking credit most likely faces a reduction of income, financial uncertainty, physical or mental impairment and other attendant consequences of the disability. The additional burden of petitioning the court for a modification typically wastes time and money and helps no one.

Weaks, 821 S.W.2d at 506-07.

In this case, the Social Security benefits received by Arden’s children were paid as a result of Arden’s disability and were a substitute for Arden’s lost earning capacity. Accordingly, we hold that those benefits should be treated as a contribution from Arden toward the support of his children and should serve as a credit toward Arden’s monthly obligation. We further hold that the substitution of the Social Security benefits for Arden’s child support obligation does not constitute a retroactive modification of the District Court’s original child support order, and was therefore immediately effective as a credit against Arden’s child support obligation.

In this case, because Arden’s monthly $250 child support obligation was completely offset by the monthly $512 Social Security benefit paid to his children, we hold that Arden was not liable for any contributions after the Social Security benefits began. We therefore hold that Arden should be credited for any contributions made by him personally since that time and that those credits should be applied to Arden’s accrued arrearages. See, e.g., Miller v. Miller (Ky. Ct. App. 1996), 929 S.W.2d 202, 205.

On the basis of our holdings, we reverse the District Court’s order which denied Arden the opportunity to offset his obligation with the Social Security disability benefits received by his children and remand to the District Court with instructions to (1) credit the Social Security benefits received by Arden’s children against Arden’s monthly child support obligation, and to (2) credit Arden for any contributions made by him after the Social Security benefits began and apply that credit to any arrearages owed by Arden.

ISSUE 3

Did the District Court err when it refused to apply the monthly Social Security disability payments made to Arden’s two children in excess of Arden’s support obligation as a credit toward his accrued arrearages?

In this case, the District Court did not apply the Social Security disability payments received by Arden’s children as a credit toward Arden’s support obligation, but instead increased Arden’s obligation to a sum equal to the total of his $250 monthly support obligation and the $512 monthly Social Security benefit. On appeal, Arden maintains that the District Court should have offset his $250 monthly obligation with the $512 Social Security payment and credited the remaining $262 per month to his existing arrearages.

Although the question of excess benefits has not yet been addressed by this Court, the majority of jurisdictions faced with this issue have not allowed the application of excess benefits to reduce arrearages. See, e.g., Windham v. State ex rel. Windham (Ala. Civ. App. 1990), 574 So. 2d 853; In re Marriage of Robinson (Colo. Ct. App. 1982), 651 P.2d 454; Kirwan v. Kirwan (Fla. Dist. Ct. App. 1992), 606 So. 2d 771; Newman v. Newman (Iowa 1990), 451 N.W.2d 843; In re Marriage of Williams (Kan. 1995), 900 P.2d 860; Weaks v. Weaks (Mo. 1991), 821 S.W.2d 503; Fuller v. Fuller (Ohio Ct. App. 1976), 360 N.E.2d 357; Children & Youth Servs. v. Chorgo (Pa. Super. Ct. 1985), 491 A.2d 1374. Those courts reason that “[a]ny excess is deemed a gratuity to the extent that it exceeds the amount of support mandated by the decree.” Weaks, 821 S.W.2d at 507.

This view is consistent with the administrative rules of the Department of Public Health and Human Services. Specifically, Rule 46.30.1542(l)(b), ARM, which the Department was authorized to adopt pursuant to § 40-5-202(12), MCA, provides:

(1) Social security benefits which are based on the earning record of the non-custodial parent shall be considered in establishing new support orders or modification of existing orders under the following conditions:
(b) the parent’s obligation is satisfied if the amount of the of the child’s benefit for a given month is equal to or greater than the parent’s child support obligation. Any benefit received by the child for a given month in excess of the child support obligation is not treated as an arrearage payment or as future support....

(Emphasis added.)

In accord with the other jurisdictions cited that have addressed this issue, and with Rule 46.30.1542(l)(b), ARM, we hold that Arden is entitled to credit for the amount of his monthly obligation for child support, but not exceeding that amount. Therefore, although we hold that the District Court abused its discretion when it failed to apply the Social Security benefits received by Arden’s children toward Arden’s monthly support obligation, we further hold that it did not abuse its discretion when it failed to apply any excess monthly benefits to Arden’s accrued arrearages. We therefore affirm that part of the District Court’s judgment.

ISSUE 4

Did the District Court err when it refused to apply the Social Security lump sum disability payment made to Arden’s two children as a credit toward his accrued arrearages?

In this case, the District Court made no specific determination that the Social Security lump sum benefits received by Arden’s children should or should not be credited toward Arden’s accrued arrearages. Instead, the court made a sweeping finding “against Arden on all issues not specifically addressed” in its order. On appeal, Arden maintains that the District Court abused its discretion when it failed to grant him credit for a Social Security lump sum disability payment of $9,728 paid to Joyce for his children.

As we stated above, Social Security disability benefits are paid as a result of a parent’s disability and serve as a substitute for that parent’s lost earning capacity. In this case, the $9,728 lump stun Social Security payment was paid to Arden’s children to compensate them for overdue benefits for the period from May 1993, the date of Arden’s eligibility, through the date when their monthly Social Security benefit payments commenced. They were paid in recognition of Arden’s inability to earn income since November 1992. As such, that lump sum was an accumulation of monthly Social Security payments which accrued for the children’s benefit. The lump sum payment, then, like the other monthly Social Security disability payments, should have been credited to Arden’s monthly child support obligation for the months during which the lump sum accumulated. See, e.g., Romero v. Romero (N.M. Ct. App. 1984), 682 P.2d 201, 202.

This interpretation is supported by Rule 46.30.1542(l)(d), ARM, which provides:

(1) Social security benefits which are based on the earning record of the non-custodial parent shall be considered in establishing new support orders or modification of existing orders under the following conditions:
(d) whenever a custodial parent receives for the benefit of the child, a lump sum payment which represents an accumulation of monthly benefits:
(i) the lump sum payment should not be treated as income of the parent;
(ii) the lump sum should be credited to the child support obligation for each month a payment accumulated for the child’s benefit

(Emphasis added.)

We hold that the lump sum payment received by Joyce for the benefit of her children should have been credited to Arden’s child support obligation from May 1993 until the monthly benefits commenced. We further hold that, since those benefits completely offset Arden’s monthly support obligation, any support payment made by Arden during that time was in addition to his actual obligation and should now be credited to his accrued arrearages. Accordingly, we reverse the order of the District Court which refused to apply the Social Security lump sum disability payment made to Arden’s two children as a credit toward Arden’s accrued arrearages. We remand to the District Court with instructions to (1) apply the lump sum toward any arrearages which accrued during the period of Arden’s disability and prior to the commencement of monthly Social Security payments to Arden’s children, and to (2) credit Arden’s accrued arrearages by the amount of child support paid directly by Arden during that period.

ISSUE 5

Did the District Court err when it refused to reduce Arden’s accrued arrearages by $1,593.20, as recommended by the Child Support Enforcement Division?

On May 19, 1994, the District Court entered an order in which it determined that Arden owed child support arrearages in the aggregate of $17,200.00, in addition to $850 for attorney fees and $500.00 for past due arrearages, for a total judgment of $18,550.00. In April 1995, Arden applied to the CSED for a credit of $4,020.88 against his past-due obligation. Following a review of Arden’s application, CSED granted him credit in the amount of $1,593.20.

In his memorandum in support of his petition for modification of child support, Arden maintained that the District Court should reduce his accrued arrearages by the amount credited by CSED. In support of his claim, Arden submitted CSED’s letter granting him a credit in the amount of $1,593.20 and CSED’s debt computation worksheet which showed Arden’s accrued arrearages in the amount of $15,467.87.

In its order modifying Arden’s child support obligation, the District Court did not acknowledge CSED’s determination that Arden’s past-due arrearages should be reduced. Although the court did not directly address the issue, it stated:

All prior orders of this Court except as may be modified herein shall remain in fall force and effect. This includes but is not limited to the judgment for child support arrearage in the amount of $18,550.

(Emphasis added.) The court allowed, however, that either Arden or Joyce could have the court’s child support award “adjusted by the CSED.”

The District Court’s refusal to apply a credit to Arden’s child support arrearages in the amount of $1,593.20, as allowed by CSED, was clearly an abuse of discretion. Section 40-5-601(6), MCA, provides that:

Certified payment records maintained by a clerk of court or administrative agency authorized by law or by the support order to collect support are admissible in a [civil contempt] proceeding under this section and are prima facie evidence of the amount of support paid and any arrearages under the support order.

In this case, the Child Support Enforcement Division of the Department of Social and Rehabilitation Services (now the Department of Public Health and Human Services) filed a notice of registration, pursuant to § 40-5-271, MCA, of the District Court’s order of May 19, 1994. Section 40-5-271(4), MCA, provides that once an order is registered by CSED it “must be treated in the same maimer and have the same effect as a support order issued by the department.” CSED was therefore authorized by law to collect Arden’s child support obligation. Accordingly, pursuant to § 40-5-601(6), MCA, its payment records were prima facie proof of Arden’s accrued arrearages.

At the District Court’s concomitant hearing on Arden’s motion for child support modification and Joyce’s motion for contempt, Arden submitted CSED’s letter granting him a credit in the amount of $1,593.20 and CSED’s debt computation worksheet which showed Arden’s accrued arrearages in the amount of $15,467.87. The exhibits were not objected to as hearsay and were admitted. Both exhibits constituted prima facie proof, pursuant to § 40-5-601(6), MCA, that Arden’s accrued arrearages pursuant to the District Court’s order of May 19,1994, had been reduced by $1,593.20. Because Joyce submitted no evidence to refute that proof, the District Court was required to accept CSED’s determination of Arden’s accrued arrearages, which CSED had calculated should be reduced by $1,593.20.

We therefore hold that the District Court abused its discretion when it reaffirmed its judgment against Arden for child support arrearages in the amount of $18,550.00, without considering CSED’s calculated reduction of Arden’s arrearages. We remand to the District Court with instructions to include in its order modifying Arden’s child support a reduction of his accrued arrearages by $1,593.20, as calculated by CSED.

On the basis of our holdings, we affirm in part and reverse in part the child support modification order of the District Court and remand to that court for a determination of Arden’s child support obligation consistent with this opinion, the Uniform Child Support Guidelines, and Rule 46.30.1542, ARM.

JUSTICES HUNT, ERDMANN, LEAPHART and NELSON concur.

      . CSED’s computation does not include either the $850 in attorney fees or the $500 in past due arrearages which the District Court determined that Arden owed in its order of May 19,1994.


author: JUSTICE LEAPHART

text:
    MAXINE RYAN, Plaintiff and Respondent, v. CITY OF BOZEMAN, Defendant and Appellant.
    No. 96-086.
    Submitted on Briefs October 17, 1996.
    Decided November 26, 1996.
    53 St.Rep. 1258.
    279 Mont. 507.
    928 P.2d 228.

      For Appellant: Philip F. Walsh; Walsh & McKenna, Bozeman.
    For Respondent: Rienne H. McElyea; Berg, Lilly, Andriolo & Tollefsen, Bozeman.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Maxine Ryan (Ryan) filed suit against the City of Bozeman (City) alleging that a City employee negligently drove a City vehicle such that it collided with Ryan’s vehicle at the intersection of Cottonwood and Montana Streets. A jury returned a verdict that Ryan and the City were each 50% negligent and found damages in the amount of $37,000. The court granted Ryan’s motions for directed verdict and for judgment notwithstanding the verdict (JNOV) on the issue of liability and granted a new trial on the issue of damages. The City appealed from the grant of a new trial (Cause No. 96-086) and filed a petition for writ of supervisory control (Cause No. 96-263) with regard to the grant of a JNOV since the grant of a JNOV is not subject to appeal under Rule 1, M.R.App.P. In its petition for the writ, the City asked that the two issues be combined for purposes of briefing; Ryan did not oppose the motion. Given the posture of this case and in the interests of judicial economy, we granted the writ and ordered that both the granting of the JNOV and the granting of the new trial be combined for briefing in Cause No. 96-086. We reverse and remand for a new trial.

This suit arises out of a collision at the uncontrolled intersection of Montana Street and Cottonwood Street in the City of Bozeman. Lindsey Korell, a summer employee for the City was driving east on Cottonwood in a City-owned pickup truck. She collided with Ryan who was traveling north on Montana and entered the intersection on Korell’s right. At the time of the accident, there was a hedge of at least six feet in height on the southwest corner of the intersection. The hedge ran adjacent to Cottonwood Street for approximately 20-30 feet in such a manner that it obstructed the view of both drivers as they entered the intersection. The City vehicle hit Ryan’s automobile on the driver’s side door and pushed it into a telephone pole. Ryan suffered injuries as a result of the collision.

Standard of Review

The standard of review in appeals from a judgment notwithstanding the verdict made pursuant to Rule 50(b), M.R.Civ.R, is the same as that for review of a motion for a directed verdict, and a directed verdict may be granted only where it appears as a matter of law that a party could not prevail upon any view of the evidence including the legitimate inferences to be drawn therefrom. Wilkerson v. School District (1985), 216 Mont. 203, 211, 700 P.2d 617, 622. Motions for directed verdict or for a JNOV are proper only when there is a complete absence of any evidence to warrant submission to a jury. Jacques v. Montana Nat. Guard (1982), 199 Mont. 493, 504, 649 P.2d 1319, 1325. The courts will exercise the greatest self-restraint in interfering with the constitutionally mandated processes of jury decision. Unless there is a complete absence of any credible evidence in support of the verdict, a JNOV motion is not properly granted. Barmeyer v. Montana Power Company (1983), 202 Mont. 185, 191, 657 P.2d 594, 597 (overruled on other grounds). Rulings on the admissibility of evidence are within the discretion of the trial court. Cooper v. Rosston (1988), 232 Mont. 186, 189-90, 756 P.2d 1125, 1127. Absent an abuse of discretion this Court will not reverse a district court’s rulings on the admissibility of evidence. Glacier National Bank v. Challinor (1992), 253 Mont. 412, 416, 833 P.2d 1046, 1049.

Discussion

I. Did Ryan properly plead a cause of action for negligence regarding the City’s failure to enforce the street vision triangle ordinance?

In granting respondent Ryan’s motion for a directed verdict and a JNOV, the court found that the corner lot where the intersection occurred contained a hedge between six and ten feet tall in the street vision triangle. The court reasoned that the City of Bozeman had an affirmative duty to enforce the Bozeman Municipal Code Section 18.50.080, which requires that no hedge obstructions be permitted within the street vision triangle, and that the City’s failure to require that the hedge be trimmed was the sole proximate cause of the collision and of Ryan’s injuries.

On appeal, the City contends that the trial court erred in allowing Ryan to introduce evidence as to the City’s failure to enforce the ordinance and in granting a directed verdict on that basis. It is the City’s assertion that the only negligence alleged by Ryan was the negligence of the City employee, Lindsey Korell, who was driving the City vehicle at the time of the accident; that there were no allegations that the drivers’ views were obstructed by the hedge or that the City was negligent for failing to require that the hedge be trimmed.

Aplaintiff must allege a cause of action in a complaint or other pleading with sufficient specificity to apprise a defendant of the nature of the claim. A district court does not have jurisdiction to grant relief outside of the issues presented by the pleadings unless the parties stipulate that other questions be considered or the pleadings are amended to conform to the proof. Old Fashion Baptist Church v. Montana Dep’t of Revenue (1983), 206 Mont. 451, 457, 671 P.2d 625, 628. A judgment must be based upon a verdict and must be within the issues presented to the court. Old Fashion Baptist Church, 671 P.2d at 628 (citing National Surety Corp. v. Kruse (1948), 121 Mont. 202, 205-206, 192 P.2d 317, 319).

In reviewing Ryan’s complaint, we determine that the City is correct. The only allegation of negligence against the City of Bozeman in the entire complaint is that its employee, Lindsey Korell, “negligently drove a City vehicle into plaintiff’s vehicle.” The parties also prepared and filed a pre-trial order which superseded the allegations in the complaint. In the pre-trial order, Ryan’s “Contentions,” in their entirety, are as follows:

The automobile collision was a result of the negligence of Lindsey Korell in failing to yield the right of way to Maxine Ryan, in driving at a rate of speed that was too fast for the circumstances, and in failing to keep a proper lookout and to take proper evasive steps to avoid the accident. As a result of the negligence of Lindsey Korell and the ensuing collision, Maxine Ryan has sustained serious physical injuries resulting in past and future medical expenses, lost wages and lost earning capacity, pain and suffering, and loss of enjoyment of her established way of fife. Because Lindsey Korell was an employee of the City of Bozeman and was acting within the scope of her employment, the City of Bozeman is liable for her negligence.

Although the pre-trial order section on “Determination of legal issues in advance of trial” does make mention of a possible motion in limine to be filed by the City as to whether the City of Bozeman could advise the jury that it had no legal responsibility for trimming the hedge, there were no affirmative allegations by Ryan that the hedge obstructed the view or that the City was negligent in failing to require that the hedge be trimmed. In concluding that the City’s failure to comply with the ordinance constituted negligence, the court ignored the fact that neither the complaint nor the pre-trial order alleged any negligence by the City related to the height of the hedge. Furthermore, the City objected to the introduction of any evidence related to the height of the hedge for the reason that Ryan had not contended that the height of the hedge was a basis for a claim of negligence. In allowing Ryan to pursue a claim of negligence based upon the height of the hedge, the District Court faulted the City for not following through and filing a motion in limine on that issue. However, as the City contends, it is not a defendant’s burden to file motions in limine in order to defeat unpled claims. Rather, the burden is on the plaintiff to adequately plead a cause of action. In Rambur v. Diehl Lumber Co. (1963), 142 Mont. 175, 382 P.2d 552, we adopted the proposition that it is sufficient if the complaint concisely states facts upon which relief can be granted upon any legally sustainable basis.

This court agrees that plaintiffs’ pleading should be so viewed. Yet a complaint must state something more than facts which, at the most, would breed only a suspicion that plaintiffs have a right to relief. Liberality does not go so far as to excuse omission of that which is material and necessary in order to entitle relief.

Rambur, 382 P.2d at 554 (citations omitted).

In the present case, Ryan did not plead any facts as to the drivers’ views being obstructed nor any facts as to the height of the hedge. Accordingly, her complaint and contentions in the pre-trial order did not even “breed a suspicion” that she was entitled to relief on any theory other than that the driver of the City vehicle was negligent in failing to yield the right of way and in exceeding the speed limit.

In McJunkin v. Kaufman & Broad Home Systems (1987), 229 Mont. 432, 748 P.2d 910, we upheld the trial court’s refusal to submit to the jury an impleaded claim of breach of an express warranty against the seller. While recognizing that amendment to pleadings should be liberally allowed, we held that leave to amend under Rule 15(b), M.R.Civ.P., cannot be granted arbitrarily or perfunctorily. McJunkin, 748 P.2d at 913-14. Noting that McJuhkins had two and one-half years to amend their complaint and that the pretrial order specifically stated that the express warranty claim applied only to K & B and not the seller, we held that the court did not abuse its discretion in refusing to submit the issue to the jury. McJunkin, 748 P.2d at 919.

In the present case, the City correctly points out that Ryan did not move to amend her pleading to conform to the evidence under Rule 15(b), M.R.Civ.R Rule 15(b), M.R.Civ.R, states:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the obj ecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party’s action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

Under Rule 15(b), M.R.Civ.R, pleadings can be amended to conform to the evidence when the issues have been tried by express or implied consent of the parties or when there has been a motion made and granted to conform the pleadings to the evidence. Here, neither circumstance pertains. Having objected to the admission of the evidence as to the height of the hedge, it cannot be said that the City impliedly consented to that issue being tried. See Glacier National Bank, 833 P.2d at 1049 (no implied or express consent in light of repeated obj ections to evidence). Further, Ryan did not request that the pleadings be amended. Rather, the court ruled that the issue had been generally pled; blaming the City for not having narrowed the issues through a motion in limine. Although pleadings are to be liberally construed and amendments liberally allowed, as we stated in Rambur, 382 P.2d at 554, “liberality does not go so far as to excuse omission of that which is material and necessary in order to entitle relief.”

We conclude that the allegations in the complaint and the pre-trial order were insufficient to state a cause of action for negligence arising out of the height of the hedge or the City’s failure to have the hedge trimmed. Accordingly, we hold that the court abused its discretion in admitting evidence as to the height of the hedge and the requirements of Bozeman Municipal Code Section 18.50.080. The court further compounded this error when, based upon that same evidence as to the height of the hedge, it ruled that the City’s failure to enforce the City Code was negligence per se and such negligence was the sole cause of Ryan’s damages and granted a JNOV and directed verdict against the City on the issue of liability.

II. Did the trial court err in determining that Ryan was not negligent as a matter of law and that contributory negligence was not applicable under the facts of the case?

In granting the directed verdict and a JNOV, the court held that it had committed error in submitting the question of comparative negligence to the jury. In so ruling, the court stated:

As a matter of fact, I find that there is no credible evidence that the plaintiff committed any acts of negligence which were [the] proximate cause of the accident in this matter, nor any acts of negligence which contributed in any way to her injuries. ... I will make a specific finding of no negligence on the part of plaintiff that would justify a comparative negligence disposition of the case either by the Court or the jury, and I order a new trial in this matter on the issue of damages alone.

In the subsequent written order, the court held that, even if there were any negligence by Ryan, such negligence was not a proximate cause of the accident and her damages.

The City contends that the court’s determination that Ryan was not negligent is contrary to the evidence. The speed limit on Cottonwood and Montana Streets in Bozeman is 25 m.p.h. Ryan’s expert determined that she was going at least 22 m.p.h. at the point of impact. The City’s expert concluded that she was traveling between 28 m.p.h. and 37 m.p.h. just before impact. Thus there was testimony before the jury from which it could conclude that Ryan was exceeding the 25 m.p.h. speed limit. Despite this testimony, the court, in effect, held, as a matter of law, that the speed of Ryan’s vehicle was totally irrelevant to the question of causation. This conclusion is in error. If she were exceeding the speed limit, then there was credible evidence from which the jury could determine that she was negligent. If she were negligent, it was the jury’s prerogative, as fact finder, to determine whether that negligence contributed to her injuries. It was clear error for the court to preempt the jury’s determination in that regard.

The court’s order granting the directed verdict states that even if Ryan were negligent, her negligence was not a proximate cause of the collision, and, further, contributory negligence is not applicable under the facts of this case. Although it is not apparent what the court meant when it said that contributory negligence was not applicable under the facts, we can only assume that it concluded that Ryan’s ordinary negligence (if any) could not be compared with what the court determined was the City’s negligence per se for violating the City Ordinance. Such a conclusion is without support. Since Ryan had not pled a cause of action with regard to the hedge, there was no basis for the court’s finding that the City was negligent per se. Even assuming, arguendo, that the City violated the ordinance, violation of an ordinance or traffic statute does not preclude comparison of such negligence with the ordinary negligence of the plaintiff. In Hart-Anderson v. Hauck (1989), 239 Mont. 444, 781 P.2d 1116, the trial court granted the plaintiff’s motion for a directed verdict in an intersection collision in which the defendant had rear ended the plaintiff. On appeal, the defendant argued that, regardless of whether she was guilty of negligence per se for following too closely in violation of § 61-8-329, MCA, she was entitled to have the jury consider her claim that plaintiff was contributorily negligent in stopping in front of her. Hart-Anderson, 781 P.2d at 1117. Relying on our decision in Reed v. Little (1984), 209 Mont. 199, 206, 680 P.2d 937, 940, we held that the conflicting evidence as to whether plaintiff stopped in front of the defendant supported a claim of contributory negligence. In light of this conflicting evidence, we stated:

It is not appropriate for the court to weigh conflicting evidence; rather, that is the function of the trier of fact, in this case, the jury. As in Reed, it was possible for the jurors to find that plaintiff came to an abrupt stop in front of defendant and was contributorily negligent. We conclude that reasonable men might differ in drawing conclusions from the evidence. Thus a directed verdict in favor of plaintiff was not appropriate. We remand this case to the District Court. ...

Hart-Anderson, 781 P.2d at 1118.

As in Hart-Anderson, there was testimony before the jury from which it could determine that Ryan was contributorily negligent. Regardless of whether the trial judge found the evidence credible or not, it was the jury’s prerogative to weigh that evidence.

For the above reasons, we conclude that the court abused its discretion in allowing the issue of the City’s alleged negligence in failing to enforce the street vision ordinance to go to the jury and in granting the directed verdict and judgment notwithstanding the verdict. We reverse and remand for a new trial on both liability and damages.

JUSTICES HUNT, ERDMANN, TRIEWEILER and GRAY concur.


author: JUSTICE GRAY

text:
    IN THE MATTER OF THE ESTATE OF KATHERYN MAY BROOKS, Deceased.
    No. 96-112.
    Submitted on Briefs August 22, 1996.
    Decided November 26, 1996.
    53 St.Rep. 1263.
    279 Mont. 516.
    927 P.2d 1024.

      For Appellant: Howard C. Greenwood, Attorney at Law, Hamilton.
    For Respondent: Richard A. Weber, Jr.; Koch, Johnson, Weber & Goheen, Hamilton.
   JUSTICE GRAY

delivered the Opinion of the Court.

Bruce C. Brooks appeals from the Findings of Fact, Conclusions of Law and Order of the Twenty-First Judicial District Court, Ravalli County, denying admission of a document dated March 21, 1995, to probate, declaring that Katheryn May Brooks died intestate, and ordering that her estate be distributed accordingly. We affirm.

The restated dispositive issue on appeal is whether the District Court erred in denying admission of the March 21, 1995, document to probate.

Katheryn May Brooks (Kay) died on March 24, 1995, in Ravalli County, Montana, at the age of seventy-nine. She was survived by two children, Bruce C. Brooks (Bruce) and Jean K. Mercer (Jean). At the time of Kay’s death, Bruce resided in the family home in Hamilton, Montana. Jean lived in Spokane, Washington.

The relevant circumstances surrounding Kay’s final years are generally undisputed. Prior to the death of his father, Virgil Brooks (Virgil), in 1992, Bruce lived in a small house behind the family home owned by Kay and Virgil. Thereafter, he moved into the family home.

Kay lived with Jean in Spokane from the time of Virgil’s death in the spring of 1992 until late in December of 1993, when she returned to the family home in Hamilton. Bruce cared for her there until he was called away on business in early June of 1994. At that time, Kay returned to Jean’s care in Spokane.

The following month, Kay moved to the Discovery Care Center (Discovery), a nursing home in Hamilton, as a result of deteriorating health. Jean drove over from Spokane to visit Kay at Discovery approximately monthly thereafter. Bruce visited daily when he was not away on business. Kay, Bruce and Jean began to discuss the disposition of the family home, resulting in ill feelings between Bruce and Jean which upset Kay.

Kay had executed a “home-drawn” will prior to Virgil’s death. On or about March 10, 1995, Bruce assisted Kay in updating that will. He brought it to Discovery and, according to his testimony, reviewed each provision with Kay, making changes as she directed. Bruce tape-recorded a conversation between himself and Kay during which they discussed the revisions to Kay’s will. On March 21,1995, Bruce typed up the new document. Kay signed the document that same day, in the presence of Bruce and his long-time friend Carolynne Merrell (Merrell). Merrell signed the document as a witness. The document listed specific bequests to Bruce, Jean and their children, and left the family home and the remainder of the furnishings and contents— Kay’s most substantial asset — to Bruce.

Bruce and Merrell then took the document to Leroy White (White), a notary public and Brooks family friend. White had known Kay for more than fifty years and recognized her signature. At Bruce’s request, White signed the document as the second witness and affixed his notarial seal. Kay died three days later.

On May 5, 1995, Bruce filed a petition for formal probate of the March 21,1995, document as Kay’s last will and testament, determination of testacy and heirs, and appointment as personal representative. In response, Jean requested that the document be denied admission to probate, that Kay’s estate be distributed via intestate succession, and that she be appointed co-personal representative with Bruce.

The District Court held a hearing on Bruce’s petition and, thereafter, entered its findings of fact, conclusions of law and order. Briefly stated, the court denied admission to probate of the March 21, 1995, document and declared that Kay died intestate. Bruce appeals.

Additional facts are provided below as necessary to our resolution of the issue before us.

STANDARDS OF REVIEW

We will not disturb a district court’s findings of fact unless they are clearly erroneous. Rule 52(a), M.R.Civ.P.; Flikkema v. Kimm (1992), 255 Mont. 34, 37, 839 P.2d 1293, 1295. A court’s findings are clearly erroneous if they are not supported by substantial credible evidence, the court has misapprehended the effect of the evidence, or our review of the record convinces us that a mistake has been committed. Daines v. Knight (1995), 269 Mont. 320, 325, 888 P.2d 904, 906 (citation omitted). We review a district court’s conclusions of law to determine whether the interpretation of the law is correct. Flikkema, 839 P.2d at 1295 (citation omitted).

DISCUSSION

Did the District Court err in denying admission of the March 21, 1995, document to probate?

A. Section 72-2-522, MCA

In contested cases, the proponent of a will must establish that it has been duly executed. Section 72-3-310, MCA. Section 72-2-522(1), MCA, contains the requirements for a duly executed will:

Except as provided in 72-2-523 ... a will must be:
(a) in writing;
(b) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction; and
(c) signed by at least two individuals, each of whom signed within a reasonable time after having witnessed either the signing of the will as described in subsection (l)(b) or the testator’s acknowledgement of that signature or acknowledgement of the will.

(Emphasis added.) Bruce argued that the March 21,1995, document had been duly executed under § 72-2-522(1), MCA, and that it should be admitted to probate as Kay’s will. The District Court concluded that the document had been signed by only one person who met the criteria set forth in § 72-2-522(l)(c), MCA, and, therefore, that the document was not duly executed.

The March 21,1995, document is in writing and signed by Kay. Thus, the § 72-2-522(l)(a) and (b), MCA, criteria are met.

The document also contains two signatures on signature lines labeled “witness.” The first signature is Merrell’s. She signed the document as a witness in Kay’s presence immediately after observing Kay sign the document and acknowledge that it was a will. The other “witness” signature is White’s. However, White was not present when Kay signed the document. Nor did Kay acknowledge to White either her signature or that the document was her will. Therefore, White’s signature is not the signature of a second witness, as required by § 72-2-522(l)(c), MCA, and Bruce did not meet his burden under § 72-3-310, MCA, of establishing that the document had been duly executed.

Bruce cites to Matter of Estate of Weidner (1981), 192 Mont. 421, 628 P.2d 285, as authority for admitting the document to probate as Kay’s will “on the testimony of one witness.” He does not present any analysis or application of that case to the circumstances presently before us.

Estate of Weidner involved two wills. One was a joint will executed by Leona and E. J. Weidner in 1954, which left all of their property— except for five dollars — to their daughter, Lorraine Brown. The other was an unexecuted copy of a will purportedly executed by Leona in 1965, after E.J.’s death, which “contain[ed] a standard revocation clause.” Estate of Weidner, 628 P.2d at 286. Upon Leona’s death, Lorraine sought to probate the 1954 will. Gale Weidner, E.J. and Leona’s son, petitioned for a formal determination of intestacy and offered an unexecuted copy of the 1965 will. The 1965 will apparently revoked the 1954 will but did not dispose of Leona’s property. Estate of Weidner, 628 P.2d at 286.

The dispositive issue on appeal was whether the 1965 will was duly executed. See Estate of Weidner, 628 P.2d at 286-87. We noted that the proponent of a will bears the burden of proving due execution. Estate of Weidner, 628 P.2d at 287 (citing § 72-3-310, MCA). We also noted that, in a contested case, at least one of the attesting witnesses generally must testify. Estate of Weidner, 628 P.2d at 287 (citing § 72-3-309, MCA). In Estate of Weidner, the attorney who drafted the 1965 will testified that he witnessed Leona’s signing of the will and was “quite certain” that he was an attesting witness. He further testified that, while he was not certain who the other witness was, he believed it was his secretary. The secretary did not testify at trial, but the attorney stated that she did not recall signing the will. On the record before us, we concluded that there was insufficient evidence to support a determination that the 1965 will was duly executed. Estate of Weidner, 628 P.2d at 287.

Estate of Weidner does not support Bruce’s position here that the March 21, 1995, document can be admitted to probate where it indisputably was not duly executed as required by § 72-2-522, MCA. The number of attesting witnesses who must testify in a contested will proceeding pursuant to § 72-3-309, MCA, is an entirely different question from whether the purported will met the requirements for a duly executed will under § 72-2-522, MCA. Neither § 72-3-309, MCA, nor Estate of Weidner varies, or could vary, the separate and distinct statutory requirements for a duly executed will which must be established by the proponent of the will.

The record before us in this case demonstrates that the March 21,1995, document was signed by only one person who witnessed Kay signing the will or acknowledging either her signature or the will. We hold, therefore, that the District Court correctly concluded that the March 21, 1995, document was not duly executed under § 72-2-522, MCA.

B. Section 72-2-523, MCA

As discussed above, the proponent of a will has the burden of establishing due execution. See § 72-3-310, MCA. Where a duly executed will is admitted to probate, a presumption exists that the testator was competent and of sound mind. See In re Bodin’s Estate (1965), 144 Mont. 555, 559, 398 P.2d 616, 618-19 (citations omitted). Accordingly, § 72-3-310, MCA, requires the contestant of such a will to establish lack of testamentary intent or capacity or one of the other statutorily-specified circumstances.

Even absent due execution, however, a document still can be admitted to probate as a valid will under certain circumstances. Section 72-2-523, MCA, provides in pertinent part:

Although a document or writing added upon a document was not executed in compliance with 72-2-522, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute:
(1) the decedent’s will....

(Emphasis added.) Under the express language of this statute, the proponent of a document bears the burden of proving the decedent’s intent that the writing constitutes his or her will.

“Intent” is defined as “the state of mind or mental attitude with which an act is done.” Webster’s Third New International Dictionary, 1176 (1971). “INTEND implies that the mind is directed to some definite accomplishment or end. ...” Webster’s Third New International Dictionary, 1175 (1971). It is axiomatic that for Kay to have intended the document to be her will, she must have been competent to execute a will at the time she signed the document on March 21, 1995. Indeed, § 72-2-521, MCA, requires that a person be of sound mind to make a will.

“Sound mind,” as that term is used in § 72-2-521, MCA, means “that [the] testator must have been able to understand and carry in mind, in a general way, [the] nature and situation of [her] property, [her] relations to those having claim to [her] remembrance, and [the] nature of [her] act.” Black’s Law Dictionary, 1567 (1968). Similarly, it is well-established in Montana that a testator is mentally competent if she

is possessed of the mental capacity to understand the nature of the act, to understand and recollect the nature and situation of [her] property and [her] relations to persons having claims on [her] bounty whose interests are affected by [her] will. [Citation omitted.] The “testator must have sufficient strength and clearness of mind and memory to know, in general, without prompting, the nature and extent of the property of which [she] is about to dispose, and [the] nature of the act which [she] is about to perform, and the names and identity of the persons who are to be the objects of [her] bounty, and [her] relation towards them.”

Bodin’s Estate, 398 P.2d at 619 (citations omitted). See also Matter of Estate of Lien (1995), 270 Mont. 295, 299, 892 P.2d 530, 532; Matter of Estate of Jochems (1992), 252 Mont. 24, 29, 826 P.2d 534, 537.

Thus, unlike the situation in which a duly executed will is admitted to probate, no presumption that the decedent was competent to execute a will exists where § 72-2-523, MCA, applies. In light of Bruce’s burden of proof pursuant to § 72-2-523, MCA, therefore, § 72-3-310, MCA — insofar as it imposes a burden upon the contestant of a will to prove lack of testamentary intent or capacity — has no application here.

Bruce attempted to have the March 21, 1995, document admitted to probate pursuant to § 72-2-523, MCA. The District Court listened to testimony and accepted evidence and, thereafter, determined that Bruce had not proved by clear and convincing evidence that Kay was competent when she signed the document on March 21, 1995, and intended the document to be her will.

An underlying finding upon which the court based its ultimate determination that Bruce did not satisfy his burden of proof under § 72-2-523, MCA, was that Kay “did not know what property she had and which would be disposed of by her will.” The record contains substantial evidence in support of this finding. Bruce testified that Kay had already given away numerous items of personal property disposed of by the March 21,1995, document. Indeed, Jean and Kay’s grandchildren had received most of the property the March 21,1995, document purported to bequeath to them. Moreover, the tape-recorded conversation between Brace and Kay in which they discussed the proposed changes to Kay’s will reveals that Kay was unaware that she owned stock until reminded by Brace.

BRUCE: You own stock in Ford Motor Company and stock in Australia New Zealand Bank.
KAY: I do? (laughs)
BRUCE: Yes, which has your’s, mine, and Jean’s names on them as tenants in common. Okay. How do you want to handle those stocks? That’s also the Montana Power Stock that Dad bought prior.
KAY: I am no good at that kind of thing. I have no idea.

The foregoing evidence indicates that Kay did not have the “clearness of mind and memory to know, in general, without prompting, the nature and extent of [her] property.” See Bodin’s Estate, 398 P.2d at 619. Without such clearness of mind, and absent the mental capacity to recollect the nature and situation of her property, Kay was not competent to execute a will. See Estate of Lien, 892 P.2d at 532. Thus, this evidence would be sufficient, on a stand-alone basis, to support the District Court’s determination that Bruce did not meet his burden of proving, by clear and convincing evidence, that Kay was competent when she signed the will.

The record also is replete with evidence that Kay’s mental capacity had deteriorated in the months preceding her death. Kay began seeing Dr. Lisa Milch (Milch) in January of 1994 for abdominal and back pain. Milch noted in office notes dated February 3, 1994, that Kay had trouble relating her medical history and was probably suffering from dementia. Milch’s notes also indicate that she spoke with Bruce the following day regarding Kay’s memory problems. Bruce told Milch that Kay’s memory had been declining and she had become more forgetful in the preceding three to four months.

Milch’s office notes of March 16, 1994, state that Kay had complained of progressive forgetfulness and that other people around her had noticed her forgetfulness. Approximately six weeks later, Milch noted that Bruce “feels that [Kay] has had further mental status changes. She seems a little bit more tired and a little bit more forgetful even than a month ago.”

In December of1994, Milch noted that Kay’s confusion had increased. Milch again noted Kay’s confusion in her office notes dated March 10, 1995. Tests taken on March 22,1995, showed a high level of acid and an extremely elevated level of carbon dioxide in Kay’s blood. According to Milch, the elevated carbon dioxide level indicated that Kay’s lungs were unable to dispose of the poisons in her system. Moreover, in Milch’s opinion, a high level of acid in the bloodstream has a profound effect on a person’s organs, including the brain. Additionally, Milch stated that Kay took a variety of medications that could affect her mental capabilities and memory. Overall, Milch’s opinion was that Kay had a history of increasing forgetfulness and suffered from disorientation, especially as to higher thinking levels and cognitive processes.

Dr. Paul Bach (Bach), a clinical psychologist, reviewed Milch’s office notes and deposition testimony, Kay’s medical records and Discovery’s records regarding Kay; he also listened to the tape-recorded conversation of Bruce and Kay discussing Kay’s will. Bach testified that the following facts caused him concern about Kay’s mental competence: Milch diagnosed Kay with dementia in 1994; Kay had difficulty breathing which affected the amount of oxygen in her lungs and could affect Kay’s cognitive ability; Kay was on medications including Prednisone, Flexeril, Darvocet, Percocet and Atarax which could have affected her cognitive functioning; and Milch’s notes regularly commented on Kay’s poor cognitive status.

Bach further testified that a blood test done on February 19,1995, revealed that the carbon dioxide level in Kay’s blood was very elevated and that approximately one month later, on March 22, that level was even higher. He noted that Kay signed the purported will less than twenty-four hours prior to the second blood test and, based on the test results, Kay’s carbon dioxide level was most likely elevated on March 21 as well. He testified that this certainly could have affected her cognitive functioning.

Bach also was concerned about Kay’s mental competence based on his review of the tape-recorded conversation between Bruce and Kay.

Most remarkable was the number of times [Kay] responded to questions put to her by saying something on the order [of] ... “I’m not good at that kind of thing ..., decisions to make ..., I wish ..., I want someone else to do it..., I don’t know ..., I don’t remember ..., I can’t remember.” Particularly her mention was made of stocks and bonds, and she responded, “I do have some?”, as if uncertain that she did. But basically, her verbal responses indicated a woman who was uncertain at the time of the tape recording, and just would continuously give inaccurate responses to a question at different points throughout the tape.

Although Bach did not testify that Kay was not competent when she signed the document on March 21, 1995, he stated that her medical records and the tape-recorded conversation raised serious concerns about whether she was competent at that time. Based on this record, substantial evidence supports the District Court’s determination that Bruce did not establish by clear and convincing evidence that Kay was mentally competent — that is, that she had the requisite testamentary capacity and intent — to execute the March 21,1995, document.

Bruce did offer evidence to rebut the evidence which raised doubts about Kay’s mental competence on March 21,1995. Bruce and Merrell testified that Kay was strong and not easily persuaded to do something which she did not want to do. Discovery employees testified to the same effect. The testimony of Bruce, Merrell and the Discovery employees depicted a strong woman who desired input on her daily life and was cognizant of her surroundings. Our standard of review, however, is not whether the record contains evidence which supports findings different from those made by the District Court. See Caekaert v. State Compensation Mutual Ins. Fund (1994), 268 Mont. 105, 110, 885 P.2d 495, 499 (citation omitted). Moreover, it is within the province of the trier of fact to weigh conflicting evidence and we will not substitute our judgment for that of the factfinder on such matters. Topco, Inc. v. State Dept. of Highways (1996), 275 Mont. 352, 362, 912 P.2d 805, 811 (citation omitted).

Finally, we address briefly Bruce’s lengthy argument that the District Court improperly imposed the burden of disproving undue influence on him. He contends that the District Court’s imposition of such a burden is contrary to §§ 72-3-310 and 72-2-523, MCA.

Here, Bruce failed to prove either that the March 21,1995, document was duly executed under § 72-2-522, MCA, or that Kay was competent and intended the document to constitute her will under § 72-2-523, MCA. We conclude, on those bases, that the document properly was denied admission to probate. Under such circumstances, as discussed above, Jean bore no burden of proof under § 72-3-310, MCA, as the contestant of the will. Jean could not have known during the hearing, however, that Bruce would not meet his alternative burdens of proof as the proponent of the document as Kay’s will. Consequently, she put on evidence attempting to establish undue influence pursuant to § 72-3-310, MCA, and the District Court determined that Bruce had exerted undue influence over Kay. The District Court then concluded that Bruce bore the burden of disproving undue influence.

Under these facts, it was unnecessary for the District Court to address undue influence at all. Bruce having failed to prove that the document was duly executed or, by clear and convincing evidence, that Kay possessed the requisite mental capacity to execute a will on March 21,1995, and intended the document to be her will, the District Court need have gone no further.

The District Court erred in interpreting § 72-2-523, MCA, as imposing a duty to disprove undue influence on the proponent of a document purportedly intended as a will. The court’s incorrect interpretation of § 72-2-523, MCA, had no effect on the outcome of this case, however. Therefore, we conclude that the error was harmless because it did not affect Bruce’s substantial rights. See Rule 14, M.R.App.P.; Abbey v. City of Billings Police Comm’n (1994), 268 Mont. 354, 364, 886 P.2d 922, 928.

We hold that the District Court did not err in denying admission of the March 21, 1995, document to probate.

Affirmed.

JUSTICES NELSON, HUNT, TRIEWEILER and ERDMANN concur.


author: CHIEF JUSTICE TURNAGE

text:
    HAROLD SORENSON, d/b/a SORENSON FARMS, Plaintiff, Appellant and Cross-Respondent, v. MASSEY-FERGUSON, INC., a nonresident corporation, Defendant, Respondent and Cross-Appellant.
    No. 96-180.
    Submitted on Briefs October 24, 1996.
    Decided November 26, 1996.
    53 St.Rep. 1269.
    279 Mont. 527.
    927 P.2d 1030.

      For Appellant: John Houtz, Forsyth.
    For Respondent: Kathleen H. Richardson, Havre.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Harold Sorenson brought this action to recover damages from his purchase of a defective Massey-Ferguson combine. The District Court for the Sixteenth Judicial District, Rosebud County, granted the motion of Massey-Ferguson, Inc., to dismiss Sorenson’s complaint pursuant to Rule 12(b)(6), M.R.Civ.R We affirm.

The sole issue Sorenson raises on appeal is whether the doctrine of equitable tolling should have been invoked to toll the statutes of limitation on his claims. Massey-Ferguson, Inc., filed a cross-appeal in which it argues that this appeal was taken without substantial or reasonable grounds, meriting an award of damages under Rule 32, M.R.App.P.

For purposes of ruling on the Rule 12(b)(6) motion, the District Court accepted as true the allegations pled in Sorenson’s complaint. In September 1984, Sorenson purchased two Massey-Ferguson combines from an implement dealer in Glasgow, Montana. The combines were represented as new, but were actually 1982 models. Sorenson obtained two-year warranties on the combines.

One of the combines performed well, but the other combine repeatedly broke down, beginning almost immediately. Over the years, Sorenson sought warranty coverage for repairs, but he usually had to pay for them himself. In 1993, an improperly cast transmission was identified as the source of the repeated problems with the combine, and was repaired.

In February 1995, Sorenson filed his complaint claiming breach of warranty, failure of consideration and breach of contract, mistake, negligence, and unfair trade practices. Massey-Ferguson moved to dismiss pursuant to Rule 12(b)(6), M.R.Civ.P., for failure to state a claim upon which relief can be granted. The District Court granted the motion as to all five counts of the complaint. The court’s ruling was based upon the running of the applicable statutes of limitation on the first four claims and, as to the claim of unfair trade practices, the unavailability of that remedy for equipment purchased for business purposes.

Issue 1

Should the doctrine of equitable tolling have been invoked to toll the statutes of limitation?

The applicable statutes of limitation for the claims dismissed due to passage of time are: four years for the breach of warranty claim and the claim of failure of consideration and breach of contract, under § 30-2-725, MCA; two years after discovery of the facts constituting a claim of mutual mistake, under § 27-2-203, MCA (the complaint alleged under this count that the combine was believed to be new and in proper working order when Sorenson purchased it); and three years on the negligence claim under § 27-2-204, MCA. Although Sorenson became aware of defects in the combine shortly after purchasing it, he did not file his complaint in District Court until over ten years later.

The doctrine of equitable tolling arrests the running of statutes of limitation while the claimant reasonably and in good faith pursues one of several possible legal remedies. Harrison v. Chance (1990), 244 Mont. 215, 797 P.2d 200. The claimant must meet three criteria: (1) timely notice to the defendant within the applicable statute of limitation in filing the first claim; (2) lack of prejudice to the defendant in gathering evidence to defend against the second claim; and (3) good faith and reasonable conduct by the claimant in filing the second claim. Harrison, 797 P.2d at 208.

The District Court ruled that Sorenson’s requests to MasseyFerguson to repair the combine under warranty provisions did not constitute “ ‘pursuit of a legal remedy’ as is contemplated by the cases discussing the doctrine of ‘equitable tolling.’ ”

Sorenson argues that the statutes of limitation should be equitably tolled in this case because he pursued his remedy of seeking warranty coverage from Massey-Ferguson during the warranty period and before any statute of limitation expired. He argues that the definition of“remedy”inthe Uniform Commercial Code at § 30-1-201(34), MCA, should be used here. Section 30-1-201(34), MCA, defines “remedy” as any remedial right to which an aggrieved party is entitled with or without resort to a tribunal.

Sorenson’s argument is off the mark. The UCC definition which he promotes defines “remedy,” not ‘legal remedies.” “Legal remedies” is not defined in Montana statutes.

The term ‘legal remedies” has been interpreted in Montana case law. In Hash v. U.S. West Communications Services (1994), 268 Mont. 326, 886 P.2d 442, Hash claimed that she had been wrongfully discharged from employment with U.S. West. The district court dismissed her claim because the applicable statute of limitation had expired.

Hash argued on appeal that the statute of limitation had been equitably tolled while she filed a complaint before the Montana Human Rights Commission. This Court ruled that the doctrine of equitable tolling did not apply. We stated that Hash did not have more than one legal remedy available to her. Instead, it was first her obligation to timely file her complaint before the Human Rights Commission, as a prerequisite to her filing in district court. While she also had the right to pursue an intra-company remedy, she was required to do so within the context of the time limitations imposed for filing before the Human Rights Commission. Hash, 886 P.2d at 446.

Implicit in Hash is that the term ‘legal remedies” does not include self-help measures such as informal efforts seeking intra-company remedies or warranty coverage. If it did, equitable tolling would virtually eradicate statutes of limitation. The Montana cases applying equitable tolling have dealt with ‘legal remedies” of filing court or administrative proceedings seeking to enforce the plaintiff’s legal rights. Chance v. Harrison (1995), 272 Mont. 52, 899 P.2d 537 (statute of limitation for filing a claim before the Montana Human Rights Commission was equitably tolled by the filing of a district court action for sexual harassment); Nicholson v. Cooney (1994), 265 Mont. 406, 877 P.2d 486 (statute of limitation for filing a complaint of constitutional violations in a referendum was equitably tolled by the filing of a petition for declaratory judgment as to the same subject).

The case at bar is the first action or proceeding, administrative or judicial, which Sorenson has filed to enforce his legal rights. We hold that Sorenson’s self-help pursuit of his rights under warranty was not a “legal remedy” available to him for purposes of the doctrine of equitable tolling. While he may have had rights under warranty, he was required to pursue those rights within the context of the time limitations imposed for filing his legal claims. We hold that the District Court did not err in dismissing Sorenson’s claims based on the lapsing of the applicable statutes of limitation.

Issue 2

Is an award of damages merited under Rule 32, M.RApp.R?

Rule 32, M.RApp.R, provides:

If the supreme court is satisfied from the record and the presentation of the appeal in a civil case that the same was taken without substantial or reasonable grounds, such damages may be assessed on determination thereof as under the circumstances are deemed proper.

Massey-Ferguson asserts that damages are justified in this case because the appeal is not warranted by existing law as expressed in Hash, and Sorenson has not made a good faith argument for a change in existing law.

While Sorenson’s argument for equitable tolling is unconvincing, there is no evidence that it was not made in good faith. Under the circumstances here presented, we are not persuaded that this appeal was taken without substantial or reasonable grounds, thereby justifying the assessment of damages. The request for damages under Rule 32, M.RApp.P., is denied.

Affirmed.

JUSTICES GRAY, NELSON, TRIEWEILER and LEAPHART concur.