author: MR. CHIEF JUSTICE TURNAGE MR. JUSTICE SHEEHY,

text:
    YELLOWSTONE CONFERENCE OF THE UNITED METHODIST CHURCH, Plaintiff and Appellant, v. D.A. DAVIDSON, INC., Larry Dover, Warren Drew and Dick Hughes, Defendants and Respondents.
    No. 86-458.
    Submitted May 28, 1987.
    Decided Sept. 10, 1987.
    741 P.2d 794.

      Paterson, Marsillo, Tornabene & Schuyler; Charles J. Tornabene argued, Missoula, for plaintiff and appellant.
    Mulroney, Delaney & Scott; Dexter L. Delaney argued, Milodragovich, Dale & Dye; Lon J. Dale, Missoula, for D.A. Davidson, Dover and Hughes.
    David Rodli argued, Missoula, for Drew.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Plaintiff Yellowstone Conference of the United Methodist Church (Church) appeals an order of the Fourth Judicial District, Missoula County, dismissing its claim following presentation of the Church’s case, for failure to file the claim within the required time period. We affirm.

The following issues are raised on appeal:

1. Did the District Court abuse its discretion when the court denied the Church’s motion to amend its complaint?

2. Did the District Court err when it held that Section 27-2-204(1), MCA, barred the Church’s cause of action?

3. Did the District Court abuse its discretion when it failed to specifically separate its findings of fact and conclusions of law?

Plaintiff and appellant Church, a Montana corporation, maintained financial accounts with funds received from local Methodist church donations. Donations received by the Church were disbursed to fund various Methodist church programs, including the clergymen’s pension fund. The Church’s monthly balance in these accounts varied greatly, fluctuating between $20,000 and $300,000. Annually, $200,000 to $500,000 flowed through the Church’s accounts.

Defendant Larry Dover was hired in 1969 as the Church’s treasurer. Dover’s duties included bookkeeping, payment of bills and a general responsibility for the Church’s financial accounting. At the time Dover became the Church’s treasurer, he was employed as a loan officer by Midland National Bank. Dover had worked for Midland since 1955. Dover later moved to Missoula and became employed by First Bank Southside. Dover kept the Church funds invested at First Bank Southside. In 1970 and 1971, Dover’s annual income was between $10,000 and $11,000.

In 1971, Dover invested with D. A. Davidson $20,000 of the Church’s funds. Dover testified that he wanted to become a “hero” by investing the Church’s money in stocks and securities and thereby increasing the Church’s pension funds. Later, Dover opened a $20,000 account under the name of “CB Radio Club of America.”

From 1972 to 1975, defendant Warren Drew was D.A. Davidson’s account representative. Drew never requested Church authorization from Dover to invest Church funds. Drew encouraged Dover to invest in “speculative stocks.” In 1974, 50 percent of the Church’s portfolio was invested in speculative stock. In 1977, Dover personally loaned Drew $10,000 that Dover had wrongfully taken from the Church.

In July 1976, defendant Richard Hughes became D.A. Davidson’s account representative. Hughes maintained the Church’s high investment ratio of speculative stock. In 1976 Dover invested $40,000 into a Missoula subdivision project located on Grant Creek. Additionally, Dover opened an account with D. A. Davidson for each of his three children. His children’s investment of Church funds totaled approximately $30,000.

In 1974, Dover requested the Council of Finance and Administration (COFA) to pass resolution granting Dover authority to “sell some stocks.” Reverend Hugh Herbert, Chairman of COFA, signed approximately twenty stock authorization forms. In January 1978, Dover contacted Reverend Hugh Herbert and again requested that Herbert, as chairman of COFA, give approval authorizing Dover to invest Church funds in stocks and securities. Reverend Herbert granted Dover’s request and Dover invested additional Church funds.

From 1971 to 1978, the Church employed the accounting firm of Galusha, Higgins, and Galusha to annually review the Church’s finances. Following the audit, the Galusha firm customarily presented its findings to Dover. Dover passed the audit information on to COFA. Dover did not present the audit itself, but rather gave general information concerning the Church’s financial condition. In June 1978, Dover failed to present an audit statement to COFA at the annual meeting. Dover assured Reverend Herbert and Bishop Wheatley, and the members of COFA that the audit statement would be forthcoming. Dover also spoke with Reverend Herbert on numerous occasions during 1978. Dover told Herbert the Church was experiencing financial difficulties but assured Herbert by year’s end, “[T]his would all be straightened out.”

In December 1978, Dover contacted Herbert and stated the Church was facing serious financial problems “due to the poor stock market.” Herbert then contacted Bishop Wheatley and, the new chairman of COFA, Reverend Wilbur Whanger on or about December 15, 1978. Herbert notified them of Dover’s improprieties and the resulting financial problems. In January 1979, COFA met to discuss the Church’s financial problems. At that time, Dover told COFA that he had both invested and wrongfully taken Church funds. Additionally, Dover told COFA that many of the Church’s investments had failed. As a result of the January 1979 COFA meeting, Dover was terminated as the Church’s treasurer. Dover later pleaded guilty to felony theft, Section 45-6-301(1)(a), MCA.

Appellant Church claims that D. A. Davidson, and agents Drew and Hughes acted negligently and fraudulently in handling the Church’s investments. The Church contends that respondents: (1) failed to require proper authorization to invest Church funds; (2) invested a large proportion of Church funds into volatile and speculative stocks in violation of recognized investment procedures; and (3) frequently changed or “churned” the Church’s investments to increase brokerage fees. As a result, the Church lost in excess of $109,000 in stock market investments and in excess of $62,000 in brokerage fees.

Appellant Church filed its original complaint on January 12, 1982, for negligence, a tort which is governed by statute of limitations set forth in Section 27-2-204(1), MCA. The District Court found, in its April 29, 1986, amended order:

“[T]hat plaintiff [Church] knew in 1979 that Dover had been taking funds and the last conversion had occurred on December 7, 1977. In December 1978, plaintiff knew that some of the money entrusted to Dover had been converted according to the loss report received by plaintiff’s insurance carrier and admitted into evidence at trial.” The court’s April 18, 1986, opinion and order dismissed the Church’s complaint against all defendants.

Appellant Church, two weeks prior to trial and more than four years after filing the original complaint, filed a pretrial order by which the Church proposed to amend its complaint. The Church generally alleged securities fraud claiming D.A. Davidson and its agents Drew and Hughes violated the following laws and rules:

1) Securities Act of Montana;
2) Securities and Exchange Act of 1934;
3) Securities Act of 1933;
4) National Association of Securities Dealers Rule of Fair Practice;
5) Rule of the Board of Governors of the Pacific Stock Exchange, Inc.;
6) Midwest Stock Exchange Rules;
7) Montana Uniform Management of Institutional Funds Act; and
8) Montana Consumer protection Act.

The court held that the Church, by including these claims of statutory violation, was “[S]eeking to amend its original action, expanding the previous negligence action into an action for securities fraud, one couched in the broadest terms.”

ISSUE I

Did the court abuse its discretion when it denied appellant’s pretrial motion to amend the pleadings?

The standard of review employed by this Court when reviewing a District Court’s denial of a motion to amend the pleadings is whether the District Court abused its discretion. Betor v. Chevalier (1948), 121 Mont. 337, 193 P.2d 374, 378.

Rule 15(a), M.R.Civ.P., provides, “[A] party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires . . .”

In Prentice Lumber Co. v. Hukill (1972), 161 Mont. 8, 17, 504 P.2d 277, 282, citing Foman v. Davis (1962), 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222, 226, we held it is error, in the absence of any declared or apparent reason, for a District Court to deny leave to amend the complaint.

“. . . In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. — the leave sought should, as the rules require, be ‘freely given.’ . . .” [Emphasis added.]

Prentice Lumber, 161 Mont. at 17, 504 P.2d at 282.

In the case at bar, plaintiff Church, two weeks prior to trial and more than four years after filing the original complaint attempted to amend the pleadings. The Church sought to introduce a securities fraud cause of action in addition to its negligence claim. The District Court found that plaintiff was attempting to introduce a wholly different cause of action. Secondly, the court found plaintiff was attempting to extend the three-year statute of limitations, Section 27-2-204(1), MCA, by amending its complaint to include securities fraud. Finally, the court found the Church’s accounting audit and evidence gathered through discovery served to place the Church on notice of its cause of action.

In McGuire v. Nelson (1973), 162 Mont. 37, 42, 508 P.2d 558, 560, we held it was an abuse of discretion to grant an amendment to the pleadings on the eve of trial, when the amendment constituted a different cause of action. The Church’s amended complaint, offered after four years of discovery and two weeks prior to trial, was properly denied by the District Court. The evidence also supports the District Court’s finding that defendants would be unduly prejudiced by allowing the amended complaint. Therefore, in accord with McGuire and Prentice Lumber Co. v. Hukill (1972), 161 Mont. 8, 17, 504 P.2d 277, 282, the court properly denied defendant’s motion for an amended complaint.

ISSUE II

Did the District Court err when it held Section 27-2-204(1), MCA, barred the Church’s complaint?

Section 27-2-204(1), MCA, provides: “The period described for commencement of an action upon liability not founded upon an instrument in writing is within three years.” This Court has generally held that in non-malpractice tort actions, the statute of limitations begins to run on the date of the plaintiff’s injury. Kerrigan v. O’Mera (1924), 71 Mont. 1, 7, 227 P. 819, 821.

“[T]he fact that a party with a cause of action has no knowledge of his rights, or even the facts out of which the cause arises, does not delay the running of the statute of limitations until [the party] discovers the facts or learns of his rights under those facts.” Bennett v. Dow Chemical (Mont. 1986), 713 P.2d 992, 994, 43 St.Rep. 221, citing Carlson v. Ray Geophysical Division (1971), 156 Mont. 450, 454, 481 P.2d 327, 329.

However, when defendant’s “fraudulent concealment” prevents a plaintiff from discovering a cause of action, the statute of limitations is generally tolled. Much v. Sturm Ruger and Co., Inc. (D. Mont. 1980), 502 F.Supp. 743, 745. In a non-malpractice negligence action, there must be an affirmative act committed by the defendant, and the affirmative act must be calculated to obscure the existence of a cause of action. Much, 502 F.Supp. at 745.

A review of the record reveals that on December 9, 1978, defendant Larry Dover contacted Reverend Herbert and Bishop Wheatley and informed them of his tortious acts and resulting financial problems. Herbert testified he was aware of Dover’s improprieties in January 1978. The Church arguably had notice years earlier when Dover in 1974 requested and received COFA’s authorization for his stock transactions.

The District Court found that the Church had notice of Dover’s wrongdoing on December 15, 1978. However, the Church failed to file a complaint until January 12, 1982. The Church argues that although it was aware of defendant Dover’s wrongdoing, the Church was not aware that defendant D.A. Davidson, Inc., was fraudulently “churning” stocks and negligently investing in highly speculative securities.

The Church was placed on notice to investigate defendant’s tortious acts following defendant’s meeting with Reverend Herbert and Bishop Wheatley in December 1978. The record reveals the Church failed to properly investigate its cause of action. Additionally, no evidence was presented to show that defendants fraudulently concealed the fact of injury. Much, 502 F.Supp. at 744. Plaintiff’s cause of action is barred by Section 27-2-204(1), MCA.

The Church also contends the District Court erred when it failed to apply equitable estoppel. Keneco v. Cantrell (1977), 174 Mont. 130, 136, 568 P.2d 1225, 1228. In order to apply equitable estoppel, the party to be estopped must have concealed facts material to another’s injury. Keneco, 174 Mont, at 136, 568 P.2d at 1228.

Defendant Dover revealed his improprieties to Church officials in 1978. Defendant D.A. Davidson and its employees did not conceal their alleged improprieties. Therefore, the District Court properly denied appellant’s motion to apply equitable estoppel.

ISSUE III

Did the District Court abuse its discretion when it failed to specifically separate findings of fact and conclusions of law?

Rule 52(a), M.R.Civ.P., provides in pertinent part: “In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law . . .”

The Church contends that the court’s failure to separate its findings of facts and conclusions of law was prejudicial. Montana Power Co. v. Kravik (1980), 189 Mont. 369, 372, 616 P.2d 321, 322, provides three reasons for Rule 52(a): (1) as an aid in the trial judge’s process of adjudication, (2) for purpose of res judicata and estoppel by judgment, and (3) as an aid to the appellate court on review.

Although the District Court did not adhere to Rule 52(a), M.R.Civ.P., appellant Church has failed to provide this Court with evidence of undue prejudice. We hold the District Court did not commit reversible error. However, we caution the District Court to comply with Rule 52(a), M.R.Civ.P.

We hold the District Court properly denied plaintiff’s motion to amend the complaint and properly dismissed its suit for failure to file the action within the required time period.

Affirmed.

MR. JUSTICES HARRISON, WEBER and GULBRANDSON and HON. LEONARD H. LANGEN, District Judge, sitting for MR. JUSTICE MORRISON concur.

MR. JUSTICE SHEEHY,

concurring:

The essential issue in this case is whether the District Court should have permitted an amendment to the pleadings under Rule 50(a), M.R.Civ.P.

My concurrence turns essentially on the point that allowance of the amendment would have made a completely different lawsuit as it affected D.A. Davidson, and that therefore the doctrine of relation back under Rule 15 should not apply.

If the amendment had been permitted the first problem which the District Court would have to determine is whether a fiduciary relationship existed between D.A. Davidson and the church. A fiduciary relationship is not automatically established in a stockbroker-client relationship as the court in Paine, Webber, Jackson, and Curtis, Inc. v. Adams (Colo. 1986), 718 P.2d 508, 515, pointed out. Whether a stockbroker is a fiduciary to its customer depends on the attendant facts and circumstances. Thus discovery in this case would have to begin all over related to different issues of fact just on the point of whether the stockbroker in this case was a fiduciary of the church. Then, if the relationship was established in the eyes of the law, it would make no difference that Dover himself was cheating the church. The obligation of the fiduciary would run directly to the church. Thus, if the amendment had been allowed, the prejudice to D.A. Davidson is evident in that a completely different kind of lawsuit would have resulted.

In like manner, I think equitable estoppel is not available in this case. In Kenneco v. Cantrell (1977), 174 Mont. 130, 568 P.2d 1225, we approved the use of equitable estoppel to set aside a statute of limitations so as to prevent hardship. The elements of equitable estoppel set out in that case do not apply here because the question is not the same. Equitable estoppel was used to set aside an applicable statute of limitations. In the case at bar, the question is simply whether the amendments should have been allowed by the District Court. If the court had allowed the amendment, there would be no question of statute of limitations because the amendment would bring the case within the statute.

I therefore concur in the opinion.

MR. JUSTICE HUNT concurs in the foregoing special concurrence of MR. JUSTICE SHEEHY.


source: Caselaw Access Project

author: MR. JUSTICE SHEEHY

license: Public Domain

text:
    JOAN McWILLIAMS, Plaintiff and Respondent, v. JEAN CLEM, Clem’s Word Processing Center, Clem’s Placement Service, Dee Ann Langel and Stan Tenney, Defendants and Appellants, v. GEORGE McWILLIAMS, Third Party Defendant.
    No. 87-80.
    Submitted on Briefs June 4, 1987.
    Decided Sept. 10, 1987.
    Rehearing Denied Oct. 27, 1987.
    743 P.2d 577.

      Wellcome, Frost & Bartlett, Albert Frost, Bozeman, Corette, Smith, Pohlman & Allen; Lisa Swan, Butte, Eula Compton, Bozeman, for defendants and appellants.
    Heberling Law Firm, Allan McGarvey, Kalispell, Karl Knuchel, Livingston, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

We have here a case where a notary public, at the behest of a husband, took the acknowledgment of a deed transferring real property without the notary knowing or having satisfactory evidence that the wife, whose name appeared on the deed as a signator-grantor, was the individual described in and who executed the deed. The wife was not present before the notary public at the time of the acknowledgment, nor was contact made with the wife by the notary public. Nevertheless, the notary public signed the certificate of acknowledgment contained in the deed instrument as if the wife had personally appeared before the notary public and made the acknowledgment. We determine principally that the notary public was negligent in the performance of official duty, and is liable for such damages as are proximately caused by such negligence.

This appeal comes to us from the District Court, Eighteenth Judicial District, Gallatin County, Montana. Judgment was entered by the court, sitting without a jury, in favor of the wife, Joan McWilliams, holding that the deed was void as to Joan; that Joan should recover $19,950 from the notary public for loss of use, and $17,000 in attorney fees; and that Dee Ann Langel, the grantee in the deed, was jointly and severally liable with the notary public for Joan’s loss of use in the sum of $19,950. Jean Clem, Clem’s Word Processing Center, Clem’s Placement Service, Dee Ann Langel and Stan Tenney, all appeal from the judgment, some from different facets of the judgment, which will be explained as we go along.

In the issues presented on appeal, no attack is made by the appellants on the findings of fact of the District Court. We utilize those findings therefore as background for this case.

George and Joan McWilliams were married in 1955. Eight children were born to their marriage. They constructed a residence in 1975 large enough to accommodate their family on the real property here involved. The residence was subject to a trust indenture in the principal amount of $70,000, for a loan in 1976 by Home Federal Savings and Loan Association.

During the course of their marriage, George McWilliams handled all of the business transactions of the family, and Joan relied on him for all business decisions. Joan is not knowledgeable in the ways of business or law. She denied ever knowingly signing blank documents and claimed that she tried to understand what she was signing. She admitted sometimes that her husband pressured her to sign documents without explanation. She never knew the extent of her husband’s business or personal dealings.

In 1980, the McWilliams’ subdivided their real property into building lots called Tracts A and B with the residence located on Tract A.

Joan McWilliams left the residence in June, 1980. At the time, the property was in good condition and had a rental value of $700 to $800 per month and a fair market value of $165,000. Tract B was valued at $30,000. Joan McWilliams knew the property had been listed for sale, and from her husband’s statements, she believed that the property was rented.

In 1981, Joan McWilliams moved to Ft. Collins, Colorado. The parties separated in June, 1981, and thereafter, the contacts were very limited because there had been a violent encounter at the time of the separation. At times, George would return without his wife’s consent to her apartment and stay overnight. Their feelings after the date of separation were not amicable, and there were no business dealings after the separation date.

From June, 1980, to June, 1981, the residence was vacated and had fallen into disrepair. Thomas and Dee Ann Langel moved to the property on June 14, 1981, as a rental and later purported to purchase the residence. After they moved in, they did considerable work on the residence in the form of repair and replacement. By warranty deed dated August 26, 1981, George McWilliams and Joan McWilliams purported to sell their interest in both Tracts A and B to Dee Ann Langel. The court found, however, that the evidence established that Joan C. McWilliams did not sign the deed, although her signature on the deed is legitimate. The court stated, “George McWilliams somehow obtained her signature prior to that time, and, thereafter, filled in the information to convey Tracts A and B to Dee Ann Langel. The deed was then presented to Jean Clem for completion of the acknowledgment, and notarization of the deed.”

The court found that Jean Clem, as a notary public, did not make the necessary verification that Joan C. McWilliams had signed the deed, nor did she require that Joan C. McWilliams appear before her and make the acknowledgment. When Home Federal Savings and Loan Association found out about the deed, it declared the unpaid balance on the trust indenture of $66,012.31 accelerated and demanded payment. On January 28, 1982, an agreement was made with Home Federal Savings and Loan Association whereby Thomas and Dee Ann Langel agreed to assume the loan at an increased interest. The modification agreement contained a forgery of Joan C. McWilliams’ signature.

At the time of the acknowledgment, Joan McWilliams was living in Colorado. In September, 1982, she heard from an acquaintance that the house had been sold. She expressed surprise and shock at this information and investigated the matter in December, 1982, in Bozeman, Montana. She obtained a copy of the Langel deed at the courthouse and confronted Jean Clem about the improper acknowledgment. Jean Clem admitted that she assumed Joan McWilliams’ signature was legitimate and stated she had similarly completed acknowledgments of existing signatures for George McWilliams at other times. Joan McWilliams also confronted Thomas Langel and was then shown documents of sale.

The District Court outlined other questionable transactions that had occurred at and following the time of the purported transfer of the real property from the McWilliams’ to Dee Ann Langel. George McWilliams obtained a $30,000 loan from Western Federal on August 26, 1981, forging his wife’s signature on the loan documents. Of this borrowed amount, $25,000 was said to be credited to Thomas Langel as a downpayment on the residence, with McWilliams also receiving a lot in a subdivision known as Hyalite Foothills. Langel was a business associate at times with McWilliams. The court found that Thomas Langel was “also prone to questionable business transactions.” As an example, on August 27, 1981, one day after the purported purchase of the residence, he caused a contract for deed to be prepared for Tract B. A friend, Stan Tenney, a Bozeman police officer, was said to be the purchaser, and the purchase price was listed at $37,500, although no consideration was ever paid. Langel caused the contract to be sold to Gallatin Dairy pension plan and agreed privately with Tenney to make the Tenney payments to the pension plan. This fictitious transaction Apparently was for the purpose of raising money for Langel.

No title insurance was obtained concerning the purported transfer from the McWilliams to Dee Ann Langel in August, 1981. In September, 1982, Joan McWilliams found unsigned deeds dated November, 1981, with the McWilliams as grantors and Thomas and Dee Ann Langel as grantees of Tract A and B respectively.

In the meantime, Joan McWilliams had been pursuing dissolution of marriage proceedings in Colorado, and had hired a Colorado attorney. The divorce action was commenced in January, 1983, in Colorado and a decree was obtained in April, 1985. The Colorado attorney attempted to locate property hidden by George McWilliams but was unable to satisfactorily accomplish this task. In June, 1984, the Colorado attorney arranged for Joan McWilliams to be represented by her present Montana attorneys who filed a complaint on August 27, 1984, seeking to nullify the purported McWilliams/Langel transfer of Tracts A and B.

The court found that Joan McWilliams, having received $3,500 in support from George McWilliams ended up on welfare and she and her family sold all of her possessions including their clothes to survive.

Dee Ann Langel, the purported transferee under the deed, lost the house at a foreclosure sale in February, 1986. Joan McWilliams lacked funds to redeem the property in the amount of $7,000, and did not have the ability to pay the balance of the loan. Later, Dee Ann Langel made arrangements with the bank to repurchase the house.

Neither Thomas nor Dee Ann Langel ever dealt with Joan McWilliams concerning the property and she received no consideration from the transfer.

Jean Clem, a notary public, operates a typing and copying service and performs secretarial services for persons in need thereof. She did not charge fees for her services in this transaction. George McWilliams was a customer and used her telephone answering service and other clerical services.

The Colorado petition for dissolution ended in a decree on April 23, 1985. The proceedings included a separation agreement dated October 15, 1984. Distributed by the terms of the agreement were the household items in the possession of each party, motor vehicles and certain debts incurred by Joan McWilliams in Ft. Collins, Colorado. The agreement provided for maintenance, child support and delinquent support. The parties then released all rights; including property rights and claims which each might have against each other. The four page agreement was said to include all of the agreements made between the parties. The complaint in the present action, filed by the Montana attorneys was filed on August 27, 1984. The agreement made no mention of this action.

Although George McWilliams has served as a third-party defendant in this action and was at one time represented by an attorney who later withdrew, he made no appearance personally or by counsel at the trial.

Based on those findings of fact, the District Court concluded and accordingly entered judgment, declaring that Joan McWilliams was entitled to an undivided one-half interest in and to Tracts A and B; that Jean Clem had negligently completed the certificate of acknowledgment on the deed and had violated her duties as a notary public by certifying that she had personally taken the acknowledgment of Joan McWilliams signature; that thereby Joan McWilliams suffered a cloud upon her title and lost the use of the property resulting in the sale of Tract A at a trustees sale; that she was forced to bring this action to set aside the conveyance and to clear her title and incurred attorney fees and costs of $17,000; that her equity in property as of August 26, 1981, was $49,494; that Stan Tenney had no equitable or legal interest in Tract B of the property; that Dee Ann Langel had unjustly benefited from occupancy and use of the residence in question and should be jointly and severally liable with Jean Clem for the sum of $19,950; that George McWilliams was liable to the plaintiff for the full rental loss as damages; that the Colorado decree of dissolution was not a bar to this action; that Joan McWilliams was not barred by the statute of limitations, nor was she guilty of laches; that she was not barred in prosecuting her claim because she had dismissed as a defendant in this cause the bond insurer which on behalf of Jean Clem paid the sum of $1,000 to plaintiff; that Dee Ann Langel and Stan Tenney were not bona fide purchasers for value without notice because the August 26, 1981 deed was void as to Joan McWilliams; and that the statute, Section 70-20-315, MCA, did not cure the defective acknowledgment in this case.

Dee Ann Langel and Stan Tenney have appealed the District Court’s judgment as have Jean Clem, Clem’s Word Processing Center and Clem’s Placement Service.

The position of appellants, Dee Ann Langel and Stan Tenney on appeal is that the proximate cause of Joan’s damages was the concurrent and joint conduct of the joint tortfeasors, the notary, Jean Clem, and the husband, George McWilliams. Except for such concurrent conduct, these appellants contend they would not have accepted a deed otherwise ordinary on its face. They contend that the deed should be valid as to Dee Ann Langel and to the extent that the deed is not validated, they should be indemnified by the guilty parties, Jean Clem and George McWilliams on the same basis as Langel and Tenney are liable to Joan McWilliams.

The position of Jean Clem on appeal (the other appellants named Clem are business entities utilized by Jean Clem) is that the judgment against Clem is improper because Joan McWilliams’ signature on the deed was genuine; Clem recognized her signature and notarized it as she had done in the past “at plaintiff’s request and approval;” that the mutual release and waiver clause in the settlement agreement in the dissolution proceedings in Colorado barred any further action on the matter; and that defendants Dee Ann Langel and Stan Tenney did not see the August 26, 1981 deed and did not rely on Clem’s acknowledgment of plaintiff’s signature in acquiring the property. Tangentially, Clem argues that Joan was negligent in signing the deed for her husband and that Joan’s negligence is the sole proximate cause of her own damages and that the negligence of the notary public is not the proximate cause of Joan’s damages.

The first problem for us to determine is the liability, if any, of the notary public in this case for the improper acknowledgment contained in the deed.

In Montana, a notary public is one of several officials authorized by law to take proof of the acknowledgment of an instrument. Section 1-5-101, MCA. By statute, the acknowledgment of an instrument must not be taken unless the officer taking it knows or has satisfactory evidence that the person making such acknowledgment is the individual described in and who executed the instrument. Section 1-5-201, MCA. The officer taking the acknowledgment must endorse on the instrument or attach thereto a certificate of acknowledgment substantially in the form prescribed by law. Sections 1-5-202, -203, MCA. The acknowledgment of a married person to an instrument purported to be executed by such person must be taken in the same manner as that of any other person, Section 1-5-206, MCA, and the form of the certificate by a married person must be substantially in the form prescribed for other individuals in Section 1-5-203, MCA. Section 1-5-207, MCA.

A notary public must give an official bond in the sum of $5,000 ($1,000 at the time of this incident, Section 1-5-405, MCA) and, for the official misconduct or neglect of a notary public, the notary and the sureties under the official bond are liable to the parties injured thereby for all damages sustained. Section 1-5-406, MCA.

Although an unrecorded instrument is valid as between the parties and those who have notice thereof, Section 70-21-102, MCA, before a deed transferring real property can be recorded with the county clerk and recorder in a Montana county, its execution must be acknowledged by the person executing, and the acknowledgment must be certified by an official authorized to do so. Section 70-21-203, MCA.

Therefore, the statutory duty of the notary in taking an acknowledgment of an instrument is clear: he or she must know or have satisfactory evidence that the person making such acknowledgment is the individual who is described in and executed the instrument. A married person’s acknowledgment to an instrument is to be taken the same as any other person. We agree with the Idaho Supreme Court as to the purpose of these statutes:

“We believe that the manifest intent of the legislature in requiring a notary public to execute a certificate of acknowledgment is to provide protection against the recording of false instruments. The sine qua non of this statutory requirement is the involvement of the notary, a public officer in a position of public trust. If the notary faithfully carries out his statutory duties, it makes little difference whether he remembers whether to fill in the blanks in the certificate. Similarly, if the notary conspires with the forger, or fails to require the personal appearance of the acknowledger, or is negligent in ascertaining the identity of the acknowledger, the statutory scheme is frustrated whether the form is completely filled in or not.” Farm Bureau Finance Company, Inc. v. Carney (1980), 100 Idaho 745, 605 P.2d 509, 514.

The District Court in this case did not find the notary public was fraudulent in making the certificate of acknowledgment. Rather, it found that the notary was negligent. It makes little difference here. The statement of the notary in the certificate that Joan McWilliams had personally appeared before the notary to acknowledge the instrument was false. Based on the false certificate of acknowledgment by the notary, the deed was entitled to be accepted for recording. The ensuing transactions relating to the real property, including the change in the trust indenture by the mortgagee, the transfer to Tenney, and the subsequent transfer of a portion of the real estate interest to the pension fund all were the direct and proximate result of the false certificate of acknowledgment which led to the recording. The false certificate of acknowledgment was a proximate cause of those subsequent transactions. To hold otherwise would be to frustrate the very purpose of the statutes requiring such certificates.

True, Joan McWilliams may have been negligent in signing a blank deed for her husband. At most her negligence would be remote. It was the false certificate of acknowledgment of the notary which led to the recording of the deed and which gave the deed purported life for the subsequent transactions.

Two prior cases by this Court must be explained. In Mahoney v. Dixon (1904), 31 Mont. 107, 77 P. 519, Mahoney sued Dixon, a notary public, on the grounds that Dixon had falsely certified to the execution of a mortgage by a person who had not appeared before the notary and that Mahoney had lent $1,800 on the strength of the security under the mortgage. The District Court instructed the jury that if the notary violated an express provision of the statute in the performance of an official act done by him as a notary public that he and his sureties were liable for the damage suffered by the plaintiff. The Montana Court reversed because the instruction did not tie the liability of the notary public to damages proximately caused by his official misconduct.

In Ellis v. Hale (1920), 58 Mont. 181, 194 P. 155, a similar situation occurred. Ellis, a real estate loan agent, had made a loan upon a mortgage. The acknowledgment of said instrument had been forged by a notary public. There the court held that an action against the sureties on the official bond of the notary could not succeed in the absence of evidence showing that the real estate agent loaned the money relying on the forged acknowledgment.

In this case, Clem relies on the Ellis and Mahoney cases as authority that recovery cannot be made against the notary public unless one relied on the false statements in the certificate. However, the factual bases for Ellis and Mahoney are completely different from this case. Joan McWilliams did not lose her property because she relied on a false certificate; rather, she was divested of her property by virtue of a false certificate. Ellis and Mahoney are not applicable here.

An issue raised by Clem, Langel and Tenney is whether the Colorado decree of dissolution is res judicata to this action. An action is barred by res judicata when the following criteria are met:

1) The parties or their privies are the same;
2) The subject matter of the action is the same;
3) The issues are the same, and relate to the same subject matter; and
4) The capacities of the persons are the same in reference to the subject matter and to the issues between them.

Fox v. 7L Bar Ranch Co. (1982), 198 Mont. 201, 206, 645 P.2d 929, 931.

Clearly, none of these factors are met in the instant action. The Colorado action had as parties Joan versus George McWilliams; this action has Joan versus Clem, Langel and Tenney. The subject matter of the Colorado action was a dissolution of marriage; this action is to collect damages for negligence and to set aside a void deed. The issues in the Colorado action were a determination of child support, maintenance and division of marital property (in which the house was not listed); the issues in this case are the duty and breach of duty of a notary public, and title to property in Bozeman, Montana. Since the parties, subject matter and issues are different in each action, the capacities of the parties in relation to those areas cannot be similar. The Colorado decree of dissolution is not a bar to the action in Montana for negligence, quiet title and loss of use of real property.

Joan’s suit is not barred by the statute of limitations or laches. The negligent action occurred August 26, 1981, when the warranty deed was improperly notarized and transferred to Langel. The statute of limitations in an action for negligence is three years. Section 27-2-204(1), MCA. The statute of limitations begins to run when the cause of action accrues or when the negligence is discovered. Masse v. Dept. of Highways (1983), 204 Mont. 146, 151, 664 P.2d 890, 892. In this case Joan’s complaint was filed August 27, 1984, three years and one day after the deed was improperly notarized. However, August 26, 1984, was a Sunday, so the final day for the action to be filed was Monday, August 27. Sections 1-1-216(1)(a), 1-1-306 and 1-1-307, MCA. Further, Joan did not discover the existence of the void deed until August, or September, 1982, when a friend informed her the house had been sold. We hold that Joan filed her complaint within the time allowed for filing an action in negligence.

Laches is an equitable defense applicable when the complainant has delayed in the assertion of a right for such time as would now make assertion of the right inequitable. Hereford v. Hereford (1979), 183 Mont. 104, 108, 598 P.2d 600, 602. The record does not indicate Joan took unnecessary delay in asserting her right to her property. She was not aware the property was transferred until 1982, at which time she began searching for the documents necessary to her case. When she found the warranty deed, she immediately confronted both Clem and Langel with the forgery. As we noted above, her complaint in this action was filed within the applicable time for statute of limitations. We hold the doctrine of laches does not apply.

Appellants have also argued that Section 70-20-315, MCA, Montana’s curative statute for validation of unacknowledged deeds, validates the forged warranty deed. However, that statute applies to deeds executed by grantors and signed in due form, deeds which are otherwise valid except for the lack of an acknowledgment or other witness thereto. The statute is not intended to validate a void deed. As we have stated in the context of tax deeds, “a curative statute cannot breathe life and validity into . . . void . . . deeds.” Lowery v. Garfield County (1949), 122 Mont. 571, 583, 208 P.2d 478, 485. Section 70-20-315, MCA, does not validate the August 26, 1981, warranty deed as to Joan since she, as one of the necessary grantors, never made the grant.

Clem’s Fifth issue is whether the payment of the $1,000 bond fully satisfies Joan for her damages against Clem. On or about October 25, 1984, Joan entered into an agreement with Reliance Insurance Company in which she released all her claims against the company upon its payment to her of a $1,000 penal bond. On November 14, 1984, Joan stipulated that all her claims against Reliance Insurance Company had been fully compromised and settled, and the District Court dismissed the company from the action with prejudice. Nothing in the agreement, stipulation or order evidences the intention to release or compromise Joan’s claims against Clem. Reliance simply performed its bond contract and it does not appear that the release document “ ‘is intended to release the other tortfeasors, or the payment is full compensation, or the release expressly so provides.’ ” Kussler v. Burlington Northern, Inc. (1980), 186 Mont. 82, 88, 606 P.2d 520, 524 (quoting Adams v. Dion (Ariz. 1973), 109 Ariz. 308, 509 P.2d 201, 203). However, the $1,000 payment should be deducted from the total amount of damages owed by Clem to Joan. State ex rel. Deere & Co. v. District Court (Mont.1986), [224 Mont. 384,] 730 P.2d 396, 405, 43 St.Rep. 2270, 2279. We remand this issue to the District Court for an amendment to the findings of fact, conclusions of law, and judgment deducting $1,000 from the amount of damages for loss of use owed to Joan.

The next issue raised by defendants Langel and Tenney is whether the District Court erred in denying them relief under Section 70-20-404, MCA. That statute states that the rights to real property of a purchaser in good faith and for value are not to be impaired when a conveyance of property is made with intent to defraud prior or subsequent purchasers or encumbrances. This is not the situation in this case. Here, the fraud was perpetrated by one grantor upon the other. The deed was conveyed to Langel without the execution and acknowledgment of one of the married grantors, and therefore the deed is void as to her. Section 70-20-101 and -106, MCA. The District Court was correct in finding that Section 70-20-404, MCA, was inapplicable to the facts of the case.

Another issue raised by Langel and Tenney is whether the District Court erred in failing to rule on their cross-claim for indemnification from Clem. The District Court concluded Dee Ann Langel had unjustly benefited from the occupancy and use of the Gallatin Gateway home, and that Langel was liable in the amount of $19,950, such liability being joint and several with Clem. Langel argues that since Clem was found negligent and she, Langel, was not found negligent, she should be fully indemnified by Clem.

In Consolidated Freightways Corp. v. Osier (1979), 185 Mont. 439, 447, 605 P.2d 1076, 1081, we defined “indemnity” as the principle which shifted “the entire loss from one party compelled to bear it to the shoulders of another who should bear it instead.” In this instance, Joan was awarded $19,950 in damages for her loss of use of the house and property. Langel had the sole use of the house for over four years without paying Joan any consideration for her interest in it. Joan had a present interest in the house, since the purported transfer of her interest to the Langels was not valid. Langel and Tenney did possess the house and real estate and thus owe Joan for Joan’s loss of use. We hold Langel and Tenney are not entitled to indemnification from Clem.

Finally, Langel and Tenney argue that it was error for the District Court to fail to grant them a default judgment against and indemnification from George McWilliams. George was not present at trial and his counsel had been given leave to withdraw from the case. However, he had been given notice of the trial and had informed one of the attorneys of record that he did not plan to attend. At the opening of the trial and at a later hearing, the attorney for Langel and Tenney requested that a default judgment be entered against George in their favor. The motion was never ruled on by the District Court.

When an attorney is removed or ceases to act as such, the party to the action for whom the attorney was acting must, before any further proceedings are had against that party, be required by the adverse party, upon written notice, to appoint another attorney or appear in person. Section 37-61-405, MCA. The record does not show that George McWilliams was served with such a notice, and therefore the case against McWilliams is stayed by virtue of Section 37-61-405, MCA. Judgment against him cannot be granted until the proper notice is served.

Remanded to the District court for amendment of the judgment as herein provided. As so amended, the judgment is affirmed.

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


text:
    The STATE OF MONTANA, Plaintiff and Respondent, v. MARTIN MORRIS REDFERN, Defendant and Appellant.
    No. 86-569.
    Submitted on Briefs July 30, 1987.
    Decided Sept. 10, 1987.
    741 P.2d 1339.
    E. June Lord, Great Falls, for defendant and appellant.
    Mike Greely, Atty. Gen., Barbara Claassen, Asst. Atty. Gen., Helena, Patrick L. Paul, Cascade Co. Atty., Great Falls, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

The defendant was initially charged by information in the District Court, Eighth Judicial District, Cascade County, with deliberate homicide in connection with the shooting death and subsequent concealment of the body of Scott Scissons. Following a jury trial in which the jury could not reach a verdict, a plea bargain agreement was entered into between the defendant and the Cascade County Attorney’s office. Pursuant to the plea bargain agreement, the defendant entered a plea of guilty to an amended information charging negligent homicide.

The District Court sentenced the defendant to a term of ten years in prison with an additional ten years to run consecutively for the use of a dangerous weapon. The defendant now challenges the application of the enhancement statute, Section 46-18-221, MCA, to his sentence. We affirm.

Defendant presents the following issues to the Court:

1. Does Section 46-18-221, MCA, providing for an additional sentence if a firearm is used during the commission of a crime, apply to negligent homicide?

2. Does Section 46-18-221, MCA, as written and applied deprive the defendant of due process of law in violation of the Montana and United States Constitutions?

We shall address the issues in the order presented.

The crux of the defendant’s argument is that the “knowingly” mental state required by the sentence enhancement statute precludes its application to a situation where the victim of a homicide is “negligently” or more particularly “accidentally” killed. Such an interpretation of the enhancement statute conflicts with the plain meaning of the language used by the legislature. Section 46-18-221, MCA, provides, in pertinent part:

“A person who has been found guilty of any offense and who, while engaged in the commission of the offense, knowingly displayed, brandished, or otherwise used a firearm . . . shall, in addition to the punishment provided for the commission of such offense, be sentenced to a term of imprisonment in the state prison of not less than 2 years or more than 10 years, . . .” (Emphasis added.)

By its terms, the enhancement statute applies to the commission of “any offense.” The defendant asserts that the “knowingly” mental state required by the enhancement statute and the “negligent” mental state required by the negligent homicide provision are mutually exclusive. We disagree. As this Court has stated, “a person can knowingly use a firearm and still be negligent by grossly deviating from the conduct of a reasonable person in a similar situation with regard to the results of his actions.” State v. Hubbard (1982), 200 Mont. 106, 112, 649 P.2d 1331, 1334; State v. Stroud (Mont. 1984), [210 Mont. 58,] 683 P.2d 459, 41 St.Rep. 919.

The defendant’s attempt to distinguish Hubbard and Stroud, supra, based on the allegedly accidental nature of the homicide in the instant case does not hold water. In each case, the defendant was found to have committed negligent homicide. Negligently, within the meaning of negligent homicide, is defined in Section 45-2-101(37), MCA. It provides:

“ ‘Negligently’ — a person acts negligently with respect to a result or to a circumstance described by a statute defining an offense when he consciously disregards a risk that the result will occur or that the circumstance exists or when he disregards a risk of which he should be aware that the result will occur or that the circumstance exists. The risk must be of such a nature and degree that to disregard it involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. ‘Gross deviation’ means a deviation that is considerably greater than lack of ordinary care.”

Whether the gross deviation occurs because the offender “only intended to wing [the victim]” as in Hubbard or accidentally released the hammer of the pistol as is alleged in the instant case is immaterial. In both situations the result is the same, a person lost their life due to the inexcusably negligent and criminal actions of another. Either situation satisfies the definition of criminal negligence.

Defendant next contends that the enhancement statute as written and applied is violative of due process as guaranteed by the Montana and United States Constitutions. A review of the trial proceedings demonstrates that the issue was not raised at the time, however. Subject to the exceptions of Section 46-20-702, MCA, this Court will not entertain issues not raised at trial. State v. St. Goddard (Mont. 1987), [226 Mont. 158,] 734 P.2d 680, 682, 44 St.Rep. 551, 554.

We hold that the sentence enhancement statute was properly applied in this case.

Affirmed.

MR. JUSTICES HARRISON, WEBER, HUNT and McDON-OUGH concur.


author: MR. JUSTICE WEBER

text:
    STATE OF MONTANA, ex rel., BOYNE USA, INC., Relator, v. The DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, In and For the COUNTY OF MADISON, and the Hon. Judge Thereof, Frank M. Davis, Respondents.
    No. 87-213.
    Submitted on Briefs Aug. 18, 1987.
    Decided Sept. 10, 1987.
    742 P.2d 464.

      Worden, Thane & Haines, Patrick G. Frank, Missoula, for relator.
    Wellcome, Frost & Bartlett, Page Wellcome, Bozeman, Schulz, Davis & Warren, John S. Warren, Dillon, Keller, Reynolds, Drake, Sternhagen & Johnson, Thomas Q. Johnson, Helena, Boone, Karlberg & Haddon, Sam E. Haddon, Missoula, for respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Boyne USA, Inc. (Boyne), has filed its application for a writ of supervisory control in a civil action currently pending in the District Court of Madison County, Cause No. 7457, entitled The Association of Unit Owners of the Deer Lodge Condominium, Inc., et al., v. Big Sky of Montana Realty, Inc., et al. The action relates to the construction of the Deer Lodge Condominium located at Big Sky, Montana. We grant the application for supervisory control as to certification of the underlying suit as a class action.

The issue is whether supervisory control is both necessary and appropriate.

While we do not have an official record before us, the facts as contained in the various briefs and memoranda are not in dispute. Boyne is a Michigan corporation which owns and operates Big Sky Resort at Big Sky, Montana. Boyne is one of the defendants in Cause No. 7457 brought by The Association of Unit Owners of the Deer Lodge Condominium, Inc. (Association). The plaintiffs in that cause are the Association and the Board of Directors of the Association. The case arose out of the construction and reconstruction of two buildings called Deer Lodge Condominium, located at Big Sky Resort. The buildings were completed in 1975 by Inland Construction Company. Defendant Lloyd W. Darg and Associates was construction engineer, and defendant Douglas A. Moe, Architects, Inc., was the architect. Big Sky of Montana, Inc. (Big Sky) sold units in the buildings during 1974 and 1975. Big Sky itself was owned by Chrysler Realty Corporation (Chrysler) and a number of other shareholders. In May 1976, the shareholders of Big Sky formed Big Sky of Montana Realty, Inc. (Realty), as a subsidiary of Big Sky. In June 1976, the shareholders sold the resort operations to Boyne. Prior to closing that sale, Big Sky transferred the operating assets, including various real estate condominiums and developments, to Realty, whose shares were then distributed to the shareholders who in turn transferred the shares of Big Sky to Boyne. After the sale, Realty owned the unsold interest in the Deer Lodge Condominium and was the only entity that sold inventory after that date.

In the summer of 1976, significant structural defects were discovered in the buildings and Big Sky retained defendants MorrisonMaierle, Inc., and Martell Construction to repair them. In December 1976, after the repairs had been completed, Boyne purchased 34 out of the 126 units in Deer Lodge Condominium. In July 1978, Big Sky merged into Boyne and the surviving corporation was Boyne. The present lawsuit was initiated in 1984. We are advised by the Association that only Big Sky-Boyne, Chrysler, Realty, and MorrisonMaierle, Inc., remain as defendants.

The amended complaint is very long. In pertinent part it alleges that on or about April 1, 1976, Realty and Big Sky informed the Association there were significant structural and safety deficiencies in the Deer Lodge Condominium and thereafter attempted to make the necessary corrections and repairs. The complaint contains extensive general allegations of defects in framing, supports, foundations, and other essential elements of construction. The complaint alleges that the engineer and architect for the Association determined that the condominium buildings were unsafe for habitation. The buildings have been vacated and the Association has been advised that the cost of making the buildings habitable would be $6,318,000 and alternatively that the reduction in value is $10,000,000. They allege that the value of the loss of use of the buildings was $3,500,000; the cost of storage of various furnishings and equipment was $150,000; and that emergency repairs of $50,000 were required. The complaint then further alleges the right of recovery under various theories. The theories include express warranty, implied warranty, breach of contract, negligence, strict liability, fraud and violation of the breach of the implied covenant of good faith and fair dealing, deceptive business practices, promissory estoppel, negligent supervision, breach of the implied warranty of habitability, and a separate claim against Morrison-Maierle, Inc. The damages sought are the above described amounts together with punitive damages in the amount of $25,000,000 and treble damages under Section 30-14-133, MCA, together with reasonable attorney fees.

Plaintiffs did not take any action to certify the claim as a class action suit under Rule 23, M.R.Civ.P. The Association, which owns one of the 126 units, asserts the claims on its own behalf and on the behalf of the owners of the remaining 125 units. The Association contends that it has the right to present the claims on behalf of the individual unit owners, including Boyne. Boyne moved to segregate its claim and align itself as a party plaintiff so it could prosecute its claim in its own name. Boyne’s motion was denied. All of the defendants moved for summary judgment based in part upon statutes of limitation. The motions of defendants Lloyd W. Darg and Associates and Douglas A. Moe, Architects, Inc., were granted. The District Court ruled that the plaintiffs had knowledge of the claims no later than September 1976. Boyne sought to be dismissed on the same basis but that motion was denied. Chrysler moved to dismiss for failure to join necessary parties and lack of a real party in interest and that motion was denied.

In its petition for supervisory control, Boyne requests that its motion to segregate and align be granted. It also asks that its motion for summary judgment be granted based upon non-disparate application of the statute of limitations.

Is supervisory control both necessary and appropriate in the underlying case?

This Court has stated that supervisory control is appropriate where there are procedural entanglements that may prolong the litigation and appeal is an inadequate remedy, or where it is apparent from the record that relator will be deprived of a fundamental right unless supervisory control is granted. State v. District Court of Eighth Jud. Dist. (Mont. 1985), [217 Mont. 106,] 703 P.2d 148, 153-54, 42 St.Rep. 1061, 1065-66. In the underlying case, there have been many depositions taken as well as interrogatories and other types of discovery. As pointed out by the District Court and the Association, the litigation has been dragging on and it is essential for the protection of all parties that the litigation move forward as rapidly as is reasonably possible. Yet Boyne’s claim is that it is being denied its right to an attorney by being forced to accept the Association as its representative.

We note that the complaint seeks to recover damages suffered by the Association itself as well as damages which can be classed as personal to the individual unit owners. The Association’s claims cover repair and replacement of the common elements. The individual owners’ claims include expenses of moving and storage of personal property, loss of use, diminution in value of units, loss of rent, and claims for breach of the covenant of good faith resulting in punitive damages.

As pointed out by the parties, Rule 17(a), M.R.Civ.P., provides that every action shall be prosecuted in the name of the real party in interest. In addition, that Rule provides that a party authorized by statute may sue in his own name without joining the party for whose benefit the action is brought. The Association was formed under the Unit Ownership Act, Sections 70-23-101 to 70-23-1002, MCA. The Association in acting as plaintiff relied upon Section 70-23-901, MCA, which in pertinent part provides:

“(1) Actions may be brought on behalf of two or more of the unit owners, as their respective interests may appear, by the manager with respect to any cause of action relating to the common elements or more than one unit.”

The Association contends that this statute is broad enough to give it standing as the manager of the Association to bring this action which concerns the common elements of the condominium units and is brought on behalf of more than two of the unit owners.

The Association relies upon Brickyard Homeowners’ Ass’n. v. Gibbons Realty (Utah 1983), 668 P.2d 535, in which the Supreme Court of Utah applied a statute similar to our Section 70-23-901, MCA. The Utah Court concluded that the statute-authorized management committee could bring suit on behalf of unit owners without making it a class action or joining the unit owners as necessary parties. While the Utah statute was not identical to the Montana statute, it is definitely comparable. The Utah case involved questions with regard to fresh water ponds and glass installation in common areas, and other negligent design and workmanship. The defects were not alleged to have been sufficient to render the Utah condominiums unusable. In holding that the management committee could represent all of the unit owners, the Utah court also concluded that the holdings would be binding upon the unit owners as a matter of res judicata. Towerhill Condo. Assoc. v. American Condo. (1983), 66 Or.App. 342, 675 P.2d 1051, was decided in a similar way although the Oregon statute clearly gave the right to the Association to institute, defend, or intervene in behalf of two or more unit owners.

We distinguish the present case from the cases cited. The following significant factors present in this case were not present in the Utah and Oregon cases. Twenty-seven percent of the condominium units are owned by Boyne, a party which does not wish to have the Association represent it. Boyne is also a party defendant, which raises a further difficulty. Next, the materials furnished to us demonstrate that some but not all of the other unit owners have executed postcard consents to be bound by the results of this litigation. Some of the postcards indicate that the unit owners reserve the right to take further action on their own. We find a very confused position so far as individual unit owners are concerned which was not present in the Utah or Oregon cases.

The Unit Ownership Act of Montana provides no procedure describing how a manager is to proceed where a difference of opinion is present as in this case. Without ruling on the obvious constitutional questions involved, we conclude that it would be inappropriate to allow the action to proceed in the absence of authority to represent so many of the unit owners. We grant the petition for supervisory control.

Under Rule 19(a), M.R.Civ.P., a person who is subject to service of process must be joined as a party if he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may leave any of the persons already parties subject to substantial risk of incurring double, multiple or otherwise inconsistent obligations. Certainly that type of contention may be made in the present case. Several of the defendants have requested that this Court dismiss the action below for lack of a real party in interest. Yet clearly, various parties in the action are properly parties plaintiff. That, of course, includes the Association. We conclude that it would be inappropriate to dismiss the underlying action for lack of real parties in interest.

On July 2, 1987, the District Court denied defendants’ motion to designate this case as a class action. Defendants and the relator have asked this Court to direct that the action be maintained as a class action. Rule 23, M.R.Civ.P., sets forth the class action requirements in Montana. In substance, Rule 23(a) provides that parties may sue as a class if the class is so numerous that joining all members is impractical, there are questions of law or fact common to the class, claims are typical of the claims of the class, and representative parties will fairly and adequately protect the interest of the class. Rule 23(b) and (c) describe in detail when a class action may be maintained and the determinations which are normally required by the court.

We note that in a class action maintained under Rule 23(b)(3), M.R.Civ.P., the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. Rule 23(c)(2), M.R.Civ.P. The notice must advise each member that (A) the court will exclude that member from the class if so requested by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if desired, enter an appearance through counsel. Under the facts of this case as presented to us, this type of procedure appears to be most fair as to all parties. It will allow Boyne to request exclusion and to appear through its own counsel. It will also allow others of the unit owners to be excluded if they choose to do so. Last, and important for the plaintiffs, if a unit owner does not request exclusion, then the judgment will be binding upon him. This appears to be the appropriate result in the present case.

From the uncontradicted materials presented by both relator and respondents, we conclude that the requirements of Rule 23(a), M.R.Civ.P., are met. We conclude that the class of unit owners is so numerous that joinder of all members is impractical, and that there are questions of law and fact common to the class and that the claims of the plaintiffs are typical of the claims of the class. We further conclude that there is a sufficient identity to the types of claims made by the various unit owners that the representative parties will fairly and adequately protect the interests of the class. As a result, no further findings are required by the District Court on Rule 23(a). As we analyze Rule 23(b), M.R.Civ.P., we conclude that the questions of law or fact common to the members of the plaintiff class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

We hold that the underlying action shall proceed as a class action on the part of the unit owners as plaintiffs. In doing so, we recognize that the District Court will be required to make additional decisions and orders. In particular, the District Court shall order the unit owners be given the best notice practicable under the circumstances, including individual notice to all unit owners who can be identified through reasonable effort. The notice shall meet the requirements of Rule 23(c)(2), M.R.Civ.P. We specifically recognize the continuing jurisdiction on the part of the District Court under Rule 23(d), M.R.Civ.P., so that the power of the District Court to make appropriate orders in the course of this litigation is not in any way restricted, so long as such orders are consistent with this opinion.

We decline to exercise supervisory control as to the orders and motions on statutes of limitation. In a similar manner, we do not address the other requests of the parties. We conclude it would be premature to rule on these until the final determination has been made as to the parties constituting both plaintiffs and defendants. All of such parties should be given the opportunity to present their contentions on such motions and requests.

The matter is remanded to the District Court for further action consistent with this opinion.

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


author: MR. CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOSEPH EUGENE OLIVER, Defendant and Appellant.
    No. 87-124.
    Submitted on Briefs June 11, 1987.
    Decided Sept. 11, 1987.
    742 P.2d 999.

      Moses Law Firm; Stephen C. Moses, Billings, for defendant and appellant.
    Mike Greely, Atty. Gen., Joe Roberts, Asst. Atty. Gen. Helena, Peter LaPanne, Co. Atty., Roundup, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Defendant Joseph Eugene Oliver appeals his conviction for burglary from the Fourteenth Judicial District, Musselshell County. Oliver was sentenced to eight years in the Montana State Prison with three years suspended.

We affirm.

Three issues are presented for our review:

1. Did the District Court abuse its discretion when it denied defendant’s motion in limine to prohibit testimony of events which occurred in Helena?

2. Did the District Court abuse its discretion when it allowed Officer John Hitchcock to testify as an expert?

3. Was there substantial credible evidence to support the jury’s verdict?

On August 20, 1986, defendant and appellant Joseph Eugene Oliver visited the residence of Robert Smith between 1:00 and 2:00 p.m. The Smith residence is located approximately five miles from Roundup in Musselshell County. Oliver was accompanied by his stepfather, Everett Handvold, and both were friends and acquaintances of Robert Smith and his wife, LaDonna.

Robert and LaDonna Smith were preparing to leave on a fishing trip, so the conversation took place in the driveway and on the front porch. The conversation ended in ten or fifteen minutes because Smith had loaded his car and was ready to leave on the fishing trip.

Smith testified at trial the defendant was driving a green colored older model Ford LTD with a black vinyl top. Smith also stated, “[Joseph Oliver] is the only friend I have that comes to visit me and wears tennis shoes.”

Robert Smith owned several rifles which were displayed on a rack in his house. They were: a 1917 Winchester Enfield; a 7-mm Mauser (WWI German infantry rifle); a 12-gauge Mossberg shotgun; a .22 semi-automatic Marlin; and a 22.250 Remmington Model 788.

Robert and LaDonna Smith testified that both doors to their residence were locked when they left to go fishing. They also testified that the doors were locked upon their return at approximately 10:00 p.m. At 11:30 p.m. the Smiths discovered that the rifles had been stolen. Since the doors were locked upon their return, it was apparent that someone had gained entry to the house by opening and climbing through a window.

John Hitchcock, deputy sheriff of Musselshell County, arrived at the crime scene at approximately 11:45 p.m. Robert Smith and Deputy Hitchcock inspected all possible entrances into the home. They found an open window in the rear of the residence with a tennis shoe tread print on the ground below. Deputy Hitchcock photographed the tennis shoe tread print. He later matched the photograph to tennis shoes worn by the defendant.

Sergeant Troy McGee of the Helena police department testified that he was contacted on August 21, 1986, by Chuck Lidman, manager of a Helena pawnshop called Alias Smith and Jones. Lidman reported that a man had been in the pawnshop trying to pawn some guns. Lidman described the man as nervous, fidgety and stated that the man refused to bring the guns into the store for inspection. The description of the guns given by the man matched the general description of the guns stolen from the Smith residence.

Lidman described the man in the pawnshop as being over six feet tall, weighing approximately 225 pounds with red hair, arm tattoos and wearing a Harley Davidson tee-shirt with “takes guts” on it. Lidman testified the man in the pawnshop, whom he later identified as defendant, was driving an older model green Ford automobile with Illinois license plate number 505466. Pawnshop employee, Todd Stoos, also identified defendant as the man in Alias Smith & Jones Pawnshop on August 21, 1986. Stoos’s testimony corroborated testimony of Chuck Lidman.

On September 5, 1986, defendant was arrested. After defendant was “booked” into jail, Deputy Hitchcock obtained one of the tennis shoes he was wearing at the time of his arrest. Officer Hitchcock performed a detailed comparison of defendant’s tennis shoe and the photograph of the tread print found outside the bedroom window of the Smith residence. He concluded the tread pattern of the print and defendant’s tennis shoe were “similar, if not identical.”

George Eppers of the Montana Highway Patrol testified that on July 30, 1986, three weeks prior to the alleged burglary, he issued a speeding ticket to defendant Joe Oliver. Patrolman Eppers testified that defendant was driving an older model Ford, green in color, with a black, vinyl top. Patrolman Eppers stated that defendant’s license plate number was Illinois plate number 505606. However, cross-examination established that the actual number of defendant’s license plate was Illinois license plate number 505466.

Defendant did not testify at trial and called one witness. Debbie Ritterodt, a dispatcher at the sheriffs office, testified that when Robert Smith reported the burglary, he stated the defendant had lived with him for the two or three weeks prior to the crime. Robert Smith denied making this statement. Smith stated that defendant had parked his trailer for three or four days at the Smith residence when defendant first moved to Roundup.

Issue 1

Did the District Court abuse its discretion wnen it denied defendant’s motion in limine to prohibit testimony of events which occurred in Helena?

Defendant Oliver contends that evidence of his activities in Helena following the alleged burglary of the Smith residence are not relevant to the elements of the crime as charged. Defendant argues the evidence must be excluded because it does not conclusively prove that he committed the burglary.

Relevancy is defined in Rule 401, M.R.Evid., which provides in pertinent part:

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

In State v. Fitzpatrick (1980), 186 Mont. 187, 207, 606 P.2d 1343, 1354, we adopted the Criminal Code Commission comments:

“The test of relevance is whether an item of evidence will have value, as determined by logic and experience, in proving the proposition for which it is offered. The standard used to measure this acceptable probative value is ‘any tendency to make the existence of any fact . . . more or less probable than it would be without the evidence.’ This standard rejects more stringent ones which call for evidence to make the fact or proposition for which it is offered more probable than any other. It is meant to allow wide admissibility of circumstantial evidence limited only by Rule 403 or other special relevancy rules in Article IV.”

Defendant does not raise Rule 403, M.R.Evid., or any other relevancy limitation.

At trial, the State introduced undisputed evidence the defendant had the opportunity to commit the offense. He was at the Smith residence on the afternoon the guns were stolen and was aware the Smiths were leaving their residence for a fishing trip. Secondly, the State presented evidence that entrance to the Smith residence was gained through a rear bedroom window. Underneath the window, a tennis shoe print was found which matched defendant’s tennis shoe prints. Defendant was wearing tennis shoes on the day of the burglary and was the only person known to the Smiths who had done so in the area of their house.

The State then produced the evidence at issue: (1) that a person matching defendant’s description and (2) driving an automobile which matched the description of defendant’s automobile (3) attempted to sell guns of the same general description as those stolen from the Smiths to a Helena pawnshop. The above-mentioned testimony details motive, opportunity and evidence that defendant committed the crime as charged. The evidence in issue is circumstantial. Circumstantial evidence tends to establish a fact by proving another which, though true, does not of itself conclusively establish that fact but affords an inference or presumption of its existence, Section 26-1-102, MCA. We have approved the use of circumstantial evidence in criminal convictions. See State v. Shurtliff (1981), 195 Mont. 213, 218, 635 P.2d 1294, 1297.

Evidence is relevant when it naturally or logically tends to establish a fact in issue. State v. Fitzpatrick, 186 Mont. at 207, 606 P.2d at 1354. The question of admissibility of evidence must be left to the sound discretion of the trial court, subject to review only in case of manifest abuse. Cech v. State (1979), 183 Mont. 75, 89, 604 P.2d 97, 102.

The evidence of defendant’s activities in Helena naturally or logically establishes an additional fact which implicates defendant’s guilt of the crime as charged. The trial court properly admitted the evidence.

Issue 2

Did the District Court abuse its discretion when it permitted Officer John Hitchcock to testify as an expert on footprints?

Rule 702, M.R.Evid., provides:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.”

Previously, we recognized the need for expert testimony when identifying characteristics of shoe prints. See, State v. Smith (1986), [220 Mont. 364,] 715 P.2d 1301, 1308, 43 St.Rep. 449, 457.

In the issue at hand, Officer John Hitchcock testified that on August 20, 1986, he photographed the tread print of a tennis shoe found below an open window located in the rear of the Smith residence. Officer Hitchcock testified that the photograph of the tread print found below the Smith’s open window was “similar if not identical” to the tread print of defendant’s tennis shoes. Hitchcock’s photographs were admitted into evidence at trial.

After defendant objected to Officer Hitchcock’s opinion testimony, the State laid a foundation to qualify Hitchcock as an expert witness. Hitchcock testified he was a seven-year veteran of the Mussel-shell County sheriff’s department; that he had received special training in footprints and latent prints and that he attended both the Montana Law Enforcement Academy’s basic and intermediate training sessions. Officer Hitchcock also stated he had received training in identifying and securing footprints and in the observation of individual characteristics of footprints. Finally, Hitchcock testified that he had participated in several criminal investigations “where the only physical evidence that was left at a crime scene was footprints” and that the evidence had supported arrests and convictions.

We have long held the standard for determination of the qualification of an expert witness is “a matter largely within the discretion of the trial judge and in the absence of a showing of abuse, ordinarily will not be disturbed.” Goodnough v. State (1982), 199 Mont. 9, 18, 647 P.2d 364, 369, citing Graham v. Richardson (1967), 150 Mont. 270, 285, 435 P.2d 263, 271. The degree of a witness qualification affects the weight rather than the admissibility of the testimony. State v. Berg (Mont. 1985), [215 Mont. 431,] 697 P.2d 1365, 1367, 42 St.Rep. 518, 520.

The State offered a witness with specialized training in footprints and with practical experience to apply his education. The District Court found Officer Hitchcock qualified to testify as an expert witness. We hold that the court did not abuse its discretion when it found Hitchcock qualified to testify as an expert.

Issue 3

Was there substantial credible evidence to support the jury’s verdict?

Defendant argues his conviction is not supported by substantial evidence because the State did not prove beyond a reasonable doubt that defendant knowingly entered an occupied structure with the purpose to commit an offense therein. Section 46-6-204(1), MCA. Defendant contends the State’s presentation of circumstantial evidence merely shows that defendant had the opportunity to commit the burglary but fails to connect defendant to the crime.

The standard for review of the sufficiency of the evidence is: “Whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560, 573. We defined substantial evidence as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Kutnyak (Mont. 1984), [211 Mont. 155,] 685 P.2d 901, 910, 41 St.Rep. 1277, 1289,

After reviewing the record, we hold that substantial credible evidence was presented to the jury. A summary of the evidence establishes that defendant was aware that Robert and LaDonna Smith would be away from their home on the afternoon of August 20, 1986. Earlier, defendant had expressed interest in a number of Robert Smith’s rifles. Defendant had also indicated to Smith that he wanted to move from the Roundup area and needed money to do so.

When the Smiths left to go fishing, the doors to their residence were locked. The doors were still locked when they returned. However, a window was ajar and a tennis shoe tread print was found below the opened window. The tread print matched that of defendant’s tennis shoe.

On the morning following the burglary, the manager of a Helena pawnshop, Chuck Lidman, and an employee, Todd Stoos, witnessed the defendant trying to sell guns which matched the general description of those stolen from the Smith residence. Stoos and Lidman identified defendant out of a photo line-up. They described defendant as nervous and fidgety and testified that defendant refused to bring the guns into the shop for inspection. Lidman described defendant’s automobile as a green colored older model Ford with a black vinyl top and Illinois license plate number 505466.

Finally, the State presented evidence that defendant had been issued a speeding citation three weeks prior to the burglary. Montana Highway Patrolman George Eppers testified that defendant was driving a green colored, older model Ford Galaxy with a black vinyl top and Illinois license plate number 505606. Although Patrolman Eppers incorrectly recorded defendant’s license plate number, it is apparent the jury determined that both Chuck Lidman and Patrolman Eppers observed the same automobile.

In conclusion, the evidence was primarily circumstantial, there being no witnesses to the actual burglary. However, when the evidence is viewed in a light most favorable to the State, it is clear that substantial credible evidence supports defendant’s conviction for burglary. State v. Atlas (Mont. 1986), [224 Mont. 92,] 728 P.2d 421, 423, 43 St.Rep. 2042, 2044.

Affirmed.

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


author: MR. JUSTICE HUNT

text:
    THERESA CANTWELL, Plaintiff and Respondent, v. AUGUSTA GEIGER, Dawson County Assessor; Dawson County Board of Commissioners, Defendants and Respondents and The Montana Department of Revenue, Defendant and Appellant.
    No. 86-549.
    Submitted on Briefs July 23, 1987.
    Sept. 15, 1987.
    742 P.2d 468.
    Larry G. Schuster, Dept, of Revenue, Helena, for defendant and appellant.

      Ira Eakin, Billings, for Cantwell.
    Matthew W. Knierim, Gallagher, Archambeault & Knierim, Glasgow, for Geiger.
    Rodney Hartman, Herndon, Harper & Munro, Billings, for Dawson County.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal from the First Judicial District, Dawson County, Montana. The Montana Department of Revenue (DOR) appeals from an order granting a motion for summary judgment in favor of the Dawson County Commissioners, dismissing them with prejudice.

We affirm the order of the District Court.

The issues raised for our review on appeal are as follows:

1. Whether the District Court erred in granting summary judgment to the Dawson County Commissioners.

2. Whether the District Court erred in finding that no liability could be imputed to the Dawson County Commissioners for any wrongful acts of the Dawson County Assessor.

3. Whether the District Court erred in finding that the Dawson County Assessor was an agent of the DOR pursuant to Section 15-8-102, MCA.

The facts relevant to this appeal concern the Dawson County Assessor’s job and who was responsible for Augusta Geiger’s actions as her employer and supervisor.

Augusta Geiger was elected to the position of Dawson County Assessor in November, 1978. The position is a four year term. In 1982, Theresa Cantwell ran against Geiger for the job of assessor. Cantwell had been a clerk in the Assessor’s Office since 1976. She lost the election to Geiger, but continued working in the Assessor’s Office following the November, 1982, election. Cantwell now alleges that after losing the election to Geiger, she was subjected to political harassment to such a degree as to force her to quit her job as clerk in the office in January, 1983. In April, 1984, Cantwell filed a complaint against Augusta Geiger, the Dawson County Board of Commissioners and the Montana DOR charging political harassment.

Following extensive discovery by all parties, the District Court found that the Dawson County Commissioners were not liable for Geiger’s actions and dismissed the Commissioners from this law suit.

The issues raised on appeal will be discussed as one: Is DOR, as Augusta Geiger’s employer, liable for her actions while she was County Assessor?

The well-established rule in Montana is that summary judgment is proper only where there is no genuine issue of material fact. Rule 56(c), M.R.Civ.P. Once this burden has been met, the opposing party must demonstrate the existence of a genuine issue of fact. Fleming v. Fleming Farms, Inc. (Mont. 1986), [221 Mont. 237,] 717 P.2d 1103, 1106, 43 St.Rep. 776, 779. If the party opposing summary judgment fails to show any genuine issue of material fact, the law requires that summary judgment be granted in favor of the movant. Wagner v. Glasgow Livestock Co.(Mont. 1986), [222 Mont. 385,] 722 P.2d 1165, 1168, 43 St.Rep. 1352, 1354.

The main dispute in this appeal concerns the amount of supervisory control by the County Commissioners over the County Assessor.

Section 7-4-2110, MCA, states:

“Supervision of county and other officers. The board of county commissioners has jurisdiction and power, under such limitations and restrictions as are prescribed by law, to:
“(1) supervise the official conduct of all county officers and officers of all districts and other subdivisions of the county charged with assessing, collecting,, safekeeping, management, or disbursement of the public revenues;
“(2) see that they faithfully perform their duties;
“(3) direct prosecutions for delinquencies; and
“(4) when necessary, require them to renew their official bonds, make reports and present their books and accounts for inspection.”

County officers include the County Assessor. Section 7-4-2203(l)(i), MCA.

In 1973, Section 15-8-102, MCA, was amended to make county assessors agents of DOR. Prior to that time each of the 56 counties in Montana assessed property with a local appraisal system. The amended statute was intended to centralize and equalize property assessments statewide.

The record before this Court reflects that following the 1973 amendment, the County Commissioners in Dawson County treated the County Assessor with a “hands-off” policy with respect to the internal operations of the Assessor’s Office.

The Board met with the Assessor on occasion but primarily only when the office operations affected the county budget as a whole. For example, around the date of filing of this lawsuit by Theresa Cantwell, the Board became aware that there were serious delays in the Assessor’s Office which, if not rectified, would impact the entire Dawson County accounting and budget for that year. The Commissioners contacted DOR in Helena requesting that something be done to remedy the situation. However, the Commissioners did not undertake to resolve the problems themselves. The combined testimony of various County Commissioners state that the Commissioners’ only concern with the Assessor’s Office is the timeliness of their work. The Commissioners’ understanding is that any problem within the Assessor’s Office is a problem for DOR. There is nothing in the record to support the State’s allegation that the Commissioners exercised supervision and control over the activities of the Assessor’s Office. Extensive deposition testimony reveals a working relationship between the Assessor’s Office (located in the County Courthouse) and the County Commissioners, but no immediate supervision or directives issue from the Board with regard to any operations within the Assessor’s Office.

Testimony of Augusta Geiger reveals that she, too, believed that her immediate supervisor was an agent of DOR in Helena. Likewise, throughout the period between the 1982 election and Theresa Cantwell’s resignation from the Assessor’s Office, Cantwell telephoned and wrote letters to the Helena DOR office in an attempt to resolve the personnel problems in the office. She did not attempt to solicit the Commissioners’ help.

The Assessor’s Office employees were paid through DOR. Any termination of employees in the Dawson County Assessor’s Office was done through Geiger’s supervisor in Helena. DOR provided directives to all county assessors informing them of the correct assessment for all types of property. Whenever questions concerning the operations or functioning of the office arose, a DOR employee in Helena was contacted for guidance or help. The record shows that primarily the Board of Commissioners was called upon for advice or to relay information when problems in the Assessor’s Office were having an affect on the budgets or accountings of other county offices. All problems which were not internally resolved by the Assessor’s Office were referred to DOR, not to the County Commissioners.

Section 7-4-2110, MCA, gives the county commissioners supervisory power over the county assessors “under such limitations and restrictions as are prescribed by law . . .” Section 15-8-102, MCA, is such a limitation prescribed by law. This much newer statute makes the county assessor an agent of DOR. In construing a statute, this Court presumes that the legislature intended to make some change in existing law by passing it. State ex rel. Dick Irvin, Inc. v. Anderson (1974), 164 Mont. 513, 524, 525 P.2d 564, 570. The changes made in 1973 removed supervision of all internal operations of the Assessor’s Office from the County Commissioners and placed it with DOR.

In light of the record and foregoing discussion, we agree with the finding that there is no genuine issue of material fact as to the Dawson County Commissioner’s supervisory control over the Dawson County Assessor. The order granting summary judgment in favor of the Dawson County Commissioners is affirmed.

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