author: MR. JUSTICE SHEEHY

text:
    DONALD W. LAKE and Bernadine A. Lake, husband & wife, Plaintiffs and Appellants, v. LAKE COUNTY, Montana, and Individual Members of the Lake county Board of Commissioners, Defendants and Respondents. The CITY OF RONAN, a Montana Municipal corporation, Plaintiff and Respondent, v. DONALD WILLIAM LAKE, a/k/a Donald W. Lake, and Bernadine A. Lake, Defendants and Appellants.
    No. 87-513, 87-542.
    Submitted on Briefs June 9, 1988.
    Decided Aug. 2, 1988.
    759 P.2d 161.

      Edward K. Duckworth, Ronan, for plaintiffs and appellants.
    William H. Coldiron, Gough, Shanahan, Johnson & Waterman, Helena, Larry J. Nistler, County Atty., David Tilton, Deputy County Atty., Poison, for defendants and respondents.
    Philip J. Grainey, French, Mercer & Grainey, Poison, for amicus curiae.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

This action was commenced as an eminent domain proceeding brought by the City of Ronan (Ronan) to condemn land owned by the Lakes in furtherance of an airport expansion project. Donald and Bernadine Lake responded by seeking a preliminary injunction halting the action by Ronan, summary judgment and a delay in the proceedings. The Lakes also sought a preliminary injunction against Lake County prohibiting funding of Ronan’s actions. Following a hearing, the District Court of the Twentieth Judicial District, Lake County, issued orders denying the Lake’s motions and quashing the motion for preliminary injunction as to Lake County. We affirm.

The issues before the Court are:

1. Does formation of a joint airport board pursuant to Sections 67-10-204, -206, MCA, preclude independent exercise of the power of eminent domain by a member municipality for airport purposes?

2. Does Ronan’s independent eminent domain proceeding constitute a violation of the Lakes’ right to due process?

3. Did the District Court err in denying the Lakes’ application for a preliminary injunction against Ronan?

4. Did the District Court err in granting Lake County’s motion to quash the Lakes’ application for a preliminary injunction?

On October 16, 1947, Lake County, the City of Poison, the Town of St. Ignatius, and Ronan entered an agreement providing for the establishment of a joint airport board. As the original agreement neared its expiration date, the parties again joined together in an attempt to further the public good. On March 18, 1966, the parties entered an agreement for a term of 25 years which, as amended, provides, in pertinent part:

“I

“CREATION OF JOINT BOARD

“There is hereby created, pursuant to the provisions of Chapter 288, Laws of 1947, a Joint Airport Board, to have, and which shall have, the jurisdiction over the planning, acquiring, establishment, development, construction, enlargement, improvement, maintenance, equipment, operation, regulation, protection and policing of said joint airports or landing fields or other air navigation facilities established, owned or controlled, or to be established, owned or controlled by the county and cities and town aforementioned, located upon the sites above mentioned and which shall have, as well, jurisdiction over the airport hazards as authorized by Chapter 288, Laws of 1947.

“V

“POWERS AND DUTIES

“The Joint Airport Board created and established hereby shall have the following powers and duties:

“(1) To provide for the planning, acquisition, establishment, development, construction, enlargement, improvement, maintenance, equipment, operation, regulation, protection and policing of the joint airports or landing fields on the sites above described, and other air navigation facilities established thereon or to be established thereon and all airport hazards, but the said Joint Airport Board shall make no contract nor incur any obligation for such purposes, nor for any one of them, which singly or in the aggregate shall involve an expenditure of any more money than is available under the Joint Airport Board Budget for such purpose.”

The agreement does not vest the joint airport board with the power to tax or the power of eminent domain. In addition, although the agreement provides for joint ownership of the various airports, Ronan has held record fee simple title to the Ronan airport property since its construction in the early 1950’s. The controversy at hand arises as a result of Ronan’s efforts to condemn the Lake’s land in order to expand the airport without benefit of the consent and approval of the joint airport board.

On August 29, 1986, Ronan and Lake County jointly applied to the Federal Aviation Administration (FAA) for an airport expansion grant in order to fund acquisition of the land. Following approval of a $256,500 grant by the FAA, and written acceptance of the same by Ronan and Lake County, the money was deposited in the “Airport Fund for the City of Ronan.” Shortly thereafter, Ronan began eminent domain proceedings against the Lakes. Ronan’s efforts were funded by the “Airport Fund for the City of Ronan.”

EMINENT DOMAIN

The crucial question is the effect of the 1966 agreement entered into by Ronan and the other signators. The Lakes argue that as a result of the adoption of the joint airport board agreement, Section 67-10-205(2)(c), MCA, mandates that Ronan may bring an eminent domain proceeding for airport purposes only as a joint action with the other signators. We conclude, however, that the Lakes take an overly narrow view of Ronan’s power of eminent domain.

Generally, the power of eminent domain is viewed as an inherent attribute of sovereignty existing without reliance on constitutional acknowledgment. State v. Aitchison (1934), 96 Mont. 335, 341, 30 P.2d 805, 808. At its heart, the sovereign’s right of eminent domain is little more than an embodiment of the principle that the rights of the individual sometimes pale in comparison with the needs of the common welfare. Butte, Anaconda & Pacific Ry. v. Montana Union Ry. Co. (1895), 16 Mont. 504, 536, 41 P. 232, 243. It is a right necessarily incident to the government’s duty to serve the common need and advance the general welfare.

From the days of early statehood, the legislature has recognized the need to endow municipalities with the power of eminent domain for the good of the whole. Consequently, with the advent of the broad availability of commercial aviation, the 1947 Montana Legislature acted to ensure that Montanans would reap the benefits inherent in increased air service. See, Ch. 288, Laws of Montana (1947). Then, as now, “Expansion, not restriction, [was] the legislative watchword.” See Montana Talc Co. v. Cyprus Mine Co. (1987), [229 Mont. 491,] 748 P.2d at 444, 448, 44 St.Rep. 2161, 2166.

Chapter 288 of the Laws of Montana (1947), declared itself to be an act “providing for acquisition, construction, maintenance, operation, and regulation” of airports by municipalities and counties. In addition, the Act authorizes counties and municipalities to accomplish this task either jointly or separately, through the use of eminent domain. See, Ch. 288, Sections 3, 14, Laws of Montana (1947). However, consistent with the broad grant of authority embodied by the Act, and the earlier enactments of the 1929 legislature granting similar rights, the 1947 legislation did not specifically provide that the creation of a joint airport board constituted a waiver of the right to independent action. Both the 1929 and 1947 Acts, as codified in Title 67, Ch. 10, remain substantially unchanged.

At issue in the instant case is the interaction of the various sections of Title 67, Ch. 10. The statutes at issue provide in pertinent part:

“67-10-102. Acquisition and establishment of airports and landing fields. (1) Counties, cities, and towns in this state may, either individually or by the joint action of a county and one or more of the cities and towns within its border, acquire by gift, deed, purchase, or condemnation land for airport or landing field purposes and thereon establish, construct, own, control, lease, equip, improve, operate and regulate airports . . .

“(2) In addition a county, city, or town may do the acts authorized by this section by acting jointly with one or more counties, with one or more cities, with one or more towns, or any combination of such counties, cities, or towns . . .

“67-10-103. Public purpose. (1) Any lands acquired, owned, controlled, or occupied by any county, city, or town, individually or pursuant to joint action as herein provided for the purposes enumerated in 67-10-102, are acquired, owned, controlled, and occupied for a public use and as a matter of public necessity, and such counties, cities, and towns, whether acting individually or jointly, have the right to acquire property for such purposes under the power of eminent domain as and for a public use or necessity.

“(2) The acquisition of any land or interest therein pursuant to this chapter; the planning, acquisition, establishment, development, construction, improvement, maintenance, equipment, operation, regulation, protection, and policing of airports and air navigation facilities, including the acquisition or elimination of airport hazards; and the exercise of any other powers 'herein granted to municipalities and other public agencies, to be severally or jointly exercised, are public and governmental functions, exercised for a public purpose and matters of public necessity . . .

“67-10-201. General municipal powers (1) Every municipality may, out of any appropriations or other money made available for such purposes, plan, establish, develop, construct, enlarge, improve, maintain, equip, operate, regulate, protect, and police airports and air navigation facilities, either within or without the territorial limits of such municipality and within or without the territorial boundaries of this state, including the construction, installation, equipment, maintenance, and operation at such airports of buildings and other facilities for the servicing of aircraft or for the comfort and accommodation of air travelers and the purchase and sale of supplies, goods, and commodities as an incident to the operation of its airport properties. For such purposes the municipality may use any available property that it may now or hereáfter own or control and may, by purchase, gift, devise, lease, eminent domain proceedings, or otherwise, acquire property, real or personal, or any interest therein,

“67-10-202. Creation of board funding rules. (1) The county, city, or town, acting individually or acting jointly as authorized by 67-10-102, having established an airport or landing field and acquired property for such purpose, may construct, improve, equip, maintain, and operate the same and for that purpose may create a board or body from the inhabitants of such county, city, or town, or such joint subdivisions of the state for the purpose of conferring upon them, and may confer upon them, the jurisdiction for the improvement, equipment, maintenance, and operation of such airport or landing field ....

“67-10-204. Joint exercise of powers. (2) All powers, privileges, and authority granted to any municipality by this chapter may be exercised and enjoyed jointly with any public agency of this state and jointly with any public agency of any other state or of the United States to the extent that the laws of such other state or of the United States permit such joint exercise or enjoyment ....

“67-10-205. Joint airport board. (1) Public agencies acting jointly pursuant to 67-10-204 through 67-10-206 shall create a joint board which shall consist of members appointed by the governing body of each participating public agency .... The joint board shall have power to plan, acquire, establish, develop, construct, enlarge, improve, maintain, equip, operate, regulate, protect, and police any airport or air navigation facility or airport hazard to be jointly acquired, controlled, and operated; and such board may exercise on behalf of its constituent public agencies all the powers of each with respect to such airport, air navigation facility, or airport hazard, subject to the limitations of Subsection (2) of this section ....

“(2)(c) Eminent domain proceedings under 67-10-204 through 67-10-206 may be instituted only by authority of the governing bodies of the constituent public agencies of the joint board. If so authorized, such proceedings shall be instituted in the names of the constituent public agencies jointly, and the property so acquired shall be held by said public agencies as tenants in common until conveyed by them to the joint board.” (Emphasis added.)

By its terms, Section 67-10-205(2)(c), MCA, requires joint action when an eminent domain proceeding is brought pursuant to the authority of a joint airport board. However, it does not, on its face, preclude action separate and apart from the joint airport board. Statutes cannot be examined in a vacuum. Rather, statutes affecting the same topic should be read together and, if possible, harmonized so as to give effect to each of them. See, Schuman v. Bestrom (Mont. 1985), [214 Mont. 410,] 693 P.2d 536, 42 St.Rep. 54.

In the instant case, Sections 67-10-102, -103, -201, and -202, MCA, evidence a legislative intent to empower municipalities to act either jointly or independently. In addition, our state constitution demonstrates an intent to endow cities with a broad grant of power. “The powers of incorporated cities and towns and counties shall be liberally construed.” Art. XI, Section 4(2), 1972 Mont. Const. Further, when the authority of a city is in question, “every reasonable doubt as to the existence of a local government power or authority [is to] be resolved in favor of the existence of the exercise of that power or authority.” Section 7-1-106, MCA.

To limit the statutory scheme to the narrow interpretation suggested by the Lakes would fly in the face of both constitutional and legislative directive. We are not prepared to do so. Neither the joint airport board agreement nor any of the provisions of Title 67, Ch. 10, specifically prohibit the independent exercise of a municipality’s power of eminent domain. Rather the power in this case is expressly granted. We must conclude that Ronan acted within its statutory powers to exercise eminent domain.

DUE PROCESS

The crux of the Lakes’ due process argument is that it is unfair to allow Ronan to bring an independent eminent domain proceeding and thereby manipulate the geographical area subject to a public necessity determination. However, although ably argued, the Lakes are unable to cite authority in support of their contention. We conclude that such a failure is not the result of a lack of diligence, but rather reflects the lack of merit of the claim.

The right to due process guarantees that no person shall be deprived of property pursuant to eminent domain proceedings without adequate notice, a hearing and just compensation. See Housing Authority v. Bjork (1940), 109 Mont. 552, 98 P.2d 324. Ronan’s compliance with the eminent domain procedures contained within Title 70, Ch. 30, MCA, clearly satisfies those requirements.

PRELIMINARY INJUNCTION

As the Lakes’ claim to entitlement to a preliminary injunction was founded on the alleged statutory and constitutional violations committed by Ronan, the claim is clearly without merit. We therefore limit our discussion to the issue of the quashing of the application for preliminary injunction against Lake County.

The first allegation of error concerns the adequacy of the District Court’s order denying the Lakes’ application for preliminary injunction and granting Lake County’s motion to quash. Specifically, that the District Court failed to make adequate findings of fact and conclusions of law.

Pursuant to Rule 52(a), M.R.Civ.P., orders granting or refusing interlocutory injunctions shall be accompanied hy findings of fact and conclusions of law. See Ensley v. Murphy (1983), 202 Mont. 406, 658 P.2d 418. However, the extent of such findings and conclusions is necessarily dependent on the facts and circumstances of each case. Consequently, the litmus test in such cases is whether the District Court’s order sets forth its reasoning in a manner sufficient to allow informed appellate review. Accord, Clemans v. Martin (Mont. 1986), [221 Mont. 483,] 719 P.2d 787, 43 St.Rep. 994.

In the instant case, the District Court found that the Lakes’ prayer for relief failed because they retained a plain, speedy, and adequate remedy at law •— the Lakes complaint for damages. Although the court failed to state its findings and conclusions in the recommended form, the court’s reasoning is nevertheless clear. Under such circumstances, we conclude the Lakes’ specification of error is meritless.

In the second and third specifications of error, the Lakes contend that the District Court’s order is erroneous because the possible award of damages is not sufficient to remedy Lake County’s illegal funding of Ronan’s illegal eminent domain proceedings, and that the County’s action results in the indirect seizure of the Lakes’ land because the land will be held by the joint airport board. We disagree.

As noted above, Ronan is free to pursue independent eminent domain proceedings. Upon the successful completion of the eminent domain proceedings, and payment of just compensation, title to the property will be vested in Ronan alone. Neither Lake County nor the joint airport board will hold an interest in the property. The Lakes’ contention that Lake County is indirectly seizing their land must therefore fail.

In addition, the Lakes have made no showing that the funding of the project is unlawful. Lake County merely acts as custodian of the separate airport funds. When not bound by the procedural constraints of joint action under Section 67-10-201, et seq., MCA, Lake County remains free to release funds to Ronan upon lawful request.

The judgment is affirmed.

MR. JUSTICES HARRISON, WEBER, GULBRANDSON, HUNT, McDONOUGH and MR. CHIEF JUSTICE HASWELL, retired, sitting for MR. CHIEF JUSTICE TURNAGE, concur.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ROBERT DARRELL MARTZ, Defendant and Appellant.
    No. 87-287.
    Submitted on Briefs June 30, 1988.
    Decided Aug. 5, 1988.
    760 P.2d 65.

      Larry Jent, Bozeman, for defendant and appellant.
    Mike Greely, Atty. Gen., Betsy Brandborg, Asst. Atty. Gen. Helena, Wm. Neis Swandal, County Atty., Livingston, Daniel B. Mc-Gregor, Deputy County Atty., for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Defendant Robert Martz appeals his plea of guilty and subsequent conviction of tampering with physical evidence, a felony, in violation of Section 45-7-207, MCA. Martz plead guilty to the charge on January 19, 1987, in the Sixth Judicial District, Park County, in accordance with a plea agreement and was released on his own recognizance until the sentencing hearing, scheduled for February 2, 1987. Martz was arrested for various misdemeanor crimes before sentencing. At the sentencing hearing, the District Court refused the suspended sentence recommended by the State. Martz received a sentence of four years in prison. We affirm.

Defendant raises four issues on appeal:

1. Whether the District Court properly denied defendant’s motion for new counsel.

2. Whether defendant received effective assistance of counsel.

3. Whether the District Court properly accepted defendant’s guilty plea to the felony charge of tampering with physical evidence.

4. Whether the defendant was entitled to withdraw his guilty plea following the District Court’s rejection of the plea agreement.

At 1:10 a.m. on November 1, 1986, Robert Martz was arrested in Livingston, Montana, for obstructing a police officer. While being booked, the police officer discovered in Martz’s pocket a cellophane packet containing a green substance. Martz attempted to wrest the packet from the police officer and a struggle ensued. Martz gained control and swallowed the packet. He was then charged by information with the felony of tampering with physical evidence, in violation of Section 45-7-207(l)(a), MCA. The defendant later claimed that he was intoxicated at the time of arrest.

Defendant appeared initially on November 14, 1986, before Park County District Court Judge Byron Robb. At the appearance Public Defender Dan Yardley was appointed counsel to Martz. Judge Robb told defendant that if Martz negotiated a plea agreement with the State, according to Section 46-12-204, MCA, the court had no duty to accept a recommended sentence and was not bound to allow any guilty plea withdrawal. Defendant was then arraigned on November 21, 1986, and plead not guilty to the counts charged in the information. On December 29, 1986, Yardley filed a motion to disqualify Judge Robb for prejudice against the defendant. Judge Robb denied the motion on the grounds that (1) the defendant failed to submit an affidavit in support of the motion, as required by Section 3-1-805, MCA, and (2) there was no evidence of prejudice by the District Court.

Martz filed a motion pro se for dismissal of Yardley as his counsel claiming Yardley was incompetent in the area of criminal law. The motion was filed also on the grounds of prejudice and conflict of interest claiming Dan Yardley’s brother Jack had prosecuted Martz previously, causing Jack to adversely influence Dan’s counseling.

The District Court denied the motion after holding a hearing sua sponte to discuss defendant’s reasons for his motion. Judge Robb stated there was no prejudice simply because Dan Yardley and Jack Yardley were brothers and Jack Yardley had prosecuted Martz in a completely separate action. In addition, the District Court also appointed Jack Yardley to act as co-counsel for Martz.

On January 16, 1987, the State and Martz negotiated a plea agreement in which defendant would plead guilty to the charges of tampering with physical evidence in exchange for a recommendation to Judge Robb by the State of a four-year suspended sentence.

Martz entered a" change of plea on January 19, 1987, after a detailed colloquy between Judge Robb and Martz. The District Court informed the defendant of his right to an attorney and inquired as to whether he was satisfied with the representation. The District Court addressed the right to jury trial, the maximum penalty for the crime, and the charges filed. After accepting Martz’s guilty plea, the District Court directed that defendant be released on his own recognizance until sentencing.

On January 24, 1987, prior to the sentencing hearing, defendant was arrested and charged with several misdemeanors, including theft and resisting arrest.

Sentencing was held February 2, 1987. After inquiring into the crimes charged to defendant while on his own recognizance, Judge Robb explained that he did not think a suspended sentence was proper under the circumstances and sentenced defendant to four years in the Montana State Prison.

The first issue brought forth on appeal is whether the District Court properly denied appellant Martz’s request for new counsel. Appellant claims that Dan Yardley is (1) incompetent in the field of criminal law, and (2) was prejudiced in his representation because he was unduly influenced by his brother Jack, who prosecuted Martz previously. In the hearing held sua sponte by Judge Robb, the defendant was informed that Dan Yardley had been a practicing attorney for thirty years and had handled criminal cases in the past. He was therefore regarded as competent counsel.

Judge Robb also addressed the complaints of prejudice. According to the court, Jack Yardley had been employed in the past as both county attorney and public defender and understood well “representing people on both sides of the table.” Prejudice and conflict of interest would be present only if Jack Yardley’s prosecution of Martz and the charges at issue overlapped. The District Court denied the motion because the proceedings were entirely separate.

It is within the sound discretion of the trial court to rule on the substitution of counsel. Absent a showing of abuse of that discretion, the decision will not be overturned. State v. Long (1983), 206 Mont. 40, 45, 669 P.2d 1068, 1071, citing Good v. United States (9th Cir. 1967), 378 F.2d 934, 935.

When considering a motion for substitution of counsel, the trial court must inquire adequately into the complaint of the defendant and must discover whether the conflict was so great that it resulted in a total lack of communication. Brown v. Craven (9th Cir. 1970), 424 F.2d 1166; United States v. Mills (9th Cir. 1979), 597 F.2d 693. The District Court discovered that although Martz and Dan Yardley did not have a “meaningful relationship,” they had discussed the case at length. Morris v. Slappy (1983), 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610. Martz charges that Yardley gave little encouragement of winning the case. But the court found that this was evidence that Yardley and Martz had communicated and was sufficient to warrant retaining Yardley as Martz’s counsel. We hold that the District Court properly denied the motion for substitution of counsel.

Issue two is whether the defendant received effective assistance of counsel from Dan Yardley and Jack Yardley. Appellant claims that his case was prejudiced because Dan and Jack Yardley were brothers and Jack would influence Dan into giving poor representation. Also, Jack Yardley was his attorney now even though Martz had been prosecuted by him before.

The court found no merit to the accusation that Dan Yardley’s representation was insufficient. Martz himself admitted at the change of plea proceedings that he was not dissatisfied with his attorney. The District Court inquired into the effectiveness of counsel:

“The Court: And you have had some question about Mr. Yardley’s ability or competency to advise you concerning the matter, do you feel satisfied at this time with his services to you?

“Mr. Martz: Yes.

“The Court: And has he in fact gone over and discussed with you the written agreement here, the acknowledgment of rights?

“Mr. Martz: Yes.

“The Court: Do you feel that you do understand it all right?

“Mr. Martz: Yes.

“The Court: Any questions that you would have about it?

“Mr. Martz: None.”

Appellant now claims that he was prejudiced because his counsel failed to file an affidavit with the motion for disqualification of Judge Robb and failed to investigate all possible defenses. However, we held in State v. Forsness (1972), 159 Mont. 105, 110, 495 P.2d 176, 178, and State v. Rose (1980), 187 Mont. 74, 89, 608 P.2d 1074, 1082:

“Claimed inadequacy of counsel must not be tested by a greater sophistication of appellate counsel, nor by that counsel’s unrivaled opportunity to study the record at leisure and cite different tactics of perhaps doubtful efficacy. Success is not the test of efficient counsel, frequently neither vigor, zeal, nor skill can overcome the truth.” Martz’s own words show that the assistance of counsel was sufficient.

Appellant also contends that Jack Yardley, who was appointed co-counsel after Judge Robb denied the motion, could not adequately defend Martz because Yardley had previously prosecuted him. Appellant relies heavily on In Re Petition of Lucero (1972), 161 Mont. 136, 504 P.2d 992, in which this Court held there was prejudice between the defendant and his attorney where the attorney had originally filed the charges in the same case as the acting deputy county attorney. But here, there is no prejudice. Jack Yardley’s prosecution of Martz was a completely separate case from the one at issue. In Petition of Pepperling (1973), 162 Mont. 524, 525, 508 P.2d 569, 570, it was stated that:

“It is not the law that the one-time prosecution of a defendant by a former county attorney forever prohibits that attorney from defending that individual on a separate and distinct criminal charge.” Where the District Court found no prejudice, we hold that Jack Yardley was properly appointed as co-counsel for appellant Martz, and that received effective assistance of counsel.

Issue three is whether the District Court properly accepted defendant’s plea of guilty to tampering with physical evidence. Section 46-16-105, MCA, provides that:

“(1) Before or during trial, a plea of guilty may be accepted when:

“(a) the defendant enters a plea of guilty in open court; and

“(b) the court has informed the defendant of the consequences of his plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea.”

The plea given, according to Section 46-16-105, MCA, must be a voluntary and intelligent choice after the defendant has heard defense alternatives open to him as affirmatively disclosed by the record. State v. Lance (1982), 201 Mont. 30, 651 P.2d 1003; Schantle v. Crist (1980), 188 Mont. 176, 612 P.2d 673; Yother v. State (1979), 182 Mont. 351, 597 P.2d 79.

Appellant argues that the court did not adequately inform him of his alternatives to a guilty plea and, therefore, prevented him from making a voluntary and intelligent choice. However, in the initial appearance by Martz on November 14, 1986, Judge Robb informed Martz that if he made a plea bargain agreement with the State, the court was not bound by the recommended sentence, nor was the court bound to allow the defendant to withdraw the guilty plea. Also, the colloquy between Judge Robb and Martz demonstrates that the appellant made a well-informed decision:

“The Court: All right. In regards to the matter, Mr. Martz, I want to try to make certain you do understand your rights concerning the matter. I had previously set the case for a jury trial on February 2, which is about two weeks away. And of course notwithstanding anything that has occurred up to this time you are entitled to that jury trial to determine your guilt or innocence in this case if you want, you are aware of that?

“Mr. Martz: Yes.

“The Court: In the event of a jury trial, Mr. Martz, you understand, of course, it is up to the jury alone to decide your guilt or innocence and not me?

“Mr. Martz: Yes.”

After the appellant entered a plea of guilty, the court continued its colloquy:

“The Court: ... I previously advised you [at the initial appearance] of the penalty prescribed by our State law, and I would readvise you, Mr. Martz, that that, of course, is up to ten years in the State Prison or a fine of up to $50,000.00 or both, you are aware of that possible penalty still?

“Mr. Martz: Yes.

“The Court: And in the event I did not accept or approve the plea bargain agreement you realize that possible penalty could still be imposed?

“Mr. Martz: Yes.”

Therefore, appellant was informed of his constitutional rights and made aware of the possible alternative pleas and their consequences.

The appellant contends that the foregoing colloquy was not sufficient. Martz claims that he was unaware of Section 45-2-203, MCA, which allows the court to take into consideration the defense of intoxication, where the existence of a mental state is an element of the offense. According to appellant, in order for him to make a voluntary and intelligent decision, the court must inform him of all available defenses. However, in State v. Day (1981), 195 Mont. 151, 155-156, 635 P.2d 568, 571, we held that:

“A discussion of defense strategy goes beyond the realm of trial court duty. If trial courts had to discuss potential defenses with an accused, the judge would have to advise the accused regarding potential constitutional challenges, as well as affirmative defenses existing under statutes. These responsibilities are vested in defense counsel and not in the trial judge.”

Here, the District Court informed Martz of his constitutional rights, the consequences of a guilty plea, the possible maximum penalty involved, and that the court could not involve itself in the plea agreement and was not obligated to accept the recommended sentence. This is sufficient under Section 46-16-105 and fulfills the requirements for a voluntary and intelligent plea.

The last issue is whether the defendant was entitled to withdraw his plea of guilty following the District Court’s rejection of the recommended sentence. Review of a motion to withdraw a guilty plea requires the consideration and balancing of relevant factors:

“(1) the adequacy of the interrogation by the District Court of the defendant at the entry of the guilty plea as to the defendant’s understanding of the consequences of his plea, . . . and (3) the fact that the defendant’s plea was apparently the result of a plea bargain in which the guilty plea was given in exchange for dismissal of another charge ...”

State v. Huttinger (1979), 182 Mont. 50, 54, 595 P.2d 363, 366.

We have already established that the inquiry by the trial court was sufficient, that the plea was a result of a plea bargain agreement, and also that the defendant fully understood the circumstances and consequences of making the guilty plea.

“. . . the granting or refusal of permission to withdraw a plea of guilty and substitute a plea of not guilty rests in the discretion of the trial court and is subject to review only where an abuse of discretion has been shown.”

State v. Nance (1947), 120 Mont. 152, 164, 184 P.2d 554, 560; State v. Doty (1977), 173 Mont. 233, 566 P.2d 1388, 1930. We rely on the discretion of the trial court in denying the attempted withdrawal of the guilty plea.

Appellant contends that Section 46-12-204, MCA, which lists the requirements of plea bargains, is unconstitutional. Section 46-12-204 provides:

“(1) The defendant shall enter a plea of guilty or not guilty to the indictment, information, or complaint. If the defendant refuses to plead to the indictment, information, or complaint, a plea of not guilty must be entered.

“(2) The court may refuse to accept a plea of guilty and shall not accept the plea of guilty without first determining that the plea is voluntary with an understanding of the charge.

“(3) (a) A plea bargain agreement is an agreement between a defendant and a prosecutor that in exchange for a particular plea the prosecutor will recommend to the court a particular sentence. A judge may not participate in the making of, and is not bound by, a plea bargain agreement. If a judge does not impose a sentence recommended by a prosecutor pursuant to a plea bargain agreement, the judge is not required to allow the defendant to withdraw a plea of guilty.

“(b) Before a judge accepts a plea of guilty, he must advise the defendant:

“(i) of all the provisions of subsection (3)(a);

“(ii) of the punishment as set forth by statute for the crime charged;

“(iii) that prior to entering a plea of guilty, the defendant and his counsel should have carefully reviewed Title 46, chapter 18, and considered the most severe sentence that can be imposed for a particular crime; and

“(iv) that the judge may impose any sentence allowed by law.”

Appellant alleges that because the judge would not allow him to withdraw his guilty plea after rejecting the recommended sentence, he deprived defendant of his constitutional rights. It is understood that defendant waives certain constitutional rights by pleading guilty, among those the right to trial and the right against compulsory self-incrimination. Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. If the defendant makes a voluntary and intelligent plea, he knowingly waives these constitutional rights, regardless of whether or not the judge accepts the recommendation of the State. Where there has been a proper colloquy regarding the defendant’s rights and liabilities of a guilty plea, where he has been informed of his constitutional rights, where the defendant is aware that he is giving up those rights, and where the plea bargain agreement is clear as to its limitations, then the judge does not have to accept a guilty plea withdrawal attempt. Section 46-12-204, MCA, is not unconstitutional.

Next the appellant argues that the trial court rejected the plea agreement and, therefore, the plea of guilty itself. However, the judge accepted the plea of guilty in this case, but rejected the recommended sentence by the State. Section 46-12-204, MCA, clearly states that the judge does not have to accept a recommendation by the State and does not have to allow a withdrawal of the guilty plea.

The language in the Federal Rules of Criminal Procedure, Rule 11(e) is similar to Section 46-12-204, MCA. Under Rule 11(e)(1)(B) the government can make a recommendation with the understanding that such recommendation is not binding on the court. In interpreting Rule 11(e), the Ninth Circuit Court of Appeals, in United States v. Henderson (9th Cir. 1977), 565 F.2d 1119, held that a judge could accept the plea of guilty and reject the recommendation by the State without being bound to allow withdrawal of the plea.

The District Court in the case on appeal, accepted the plea of guilty, but rejected the recommended sentence. According to the District Court, because Martz had committed a series of misdemeanors while on his own recognizance, he was not worthy of the prosecution’s recommended sentence. “[I]t is the sole province of the trial court to determine whether a motion to withdraw a guilty plea should be granted.” In re Matter of Hardy (1980), 188 Mont. 506, 509, 614 P.2d 528, 531. On these grounds the court properly denied the motion to withdraw the guilty plea.

Affirmed.

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


author: MR. JUSTICE GULBRANDSON

text:
    DAVID ERICKSON, an individual, and Doreen Vair, an individual, f/d/b/a Starhaven Ranch, Ltd., a Montana corporation, Plaintiffs and Appellants, v. BURTON CROFT, an individual, Shirley Croft, an individual, Larry Rule, an individual f/d/b/a Rule Realty; Ronald Schoen, an individual; John Warren, an individual, Schultz, Davis & Warren, a partnership, Defendants and Respondents.
    No. 88-86.
    Submitted on Briefs June 9, 1988.
    Decided Aug. 5, 1988.
    760 P.2d 706.

      O’Brien & Conrad, James P. O’Brien, Missoula, for plaintiffs and appellants.
    Hooks & Budewitz, Patrick F. Hooks, Townsend, Garlington, Lohn & Robinson, Sherman V. Lohn, Missoula, for defendants and respondents.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

David Erickson (Erickson) and Starhaven Ranch (Starhaven) appeal a Fifth Judicial District Court, Beaverhead County, grant of summary judgment to defendants real estate broker Larry Rule (Rule), attorney John Warren (Warren), and the Dillon, Montana law firm of Schultz, Davis & Warren. We affirm.

This case is related to the litigation involved in Erickson v. First National Bank of Minneapolis (Mont. 1985), [215 Mont. 350,] 697 P.2d 1332, 42 St.Rep. 423. In Erickson we determined that the First National Bank of Minneapolis had properly quieted title as against Erickson to certain ranch property located in Beaverhead County. Erickson, d/b/a Starhaven Ranch, Ltd., purchased the property on a contract for deed on January 15, 1981 from Burton and Shirley Croft who had in turn purchased the property on a contract for deed from Herman and Patricia Clarno in 1976. The Crofts borrowed money from the First Bank of Minneapolis (the Bank) and, on August 5, 1980, assigned their purchaser’s interest in the Clarno-Croft contract for deed to the Bank as collateral security. The Crofts subsequently defaulted on their obligations to the Bank and on July 1, 1981, the Bank recorded a quitclaim deed previously executed by the Crofts. Erickson, as president of Starhaven, was unaware of the assignment to the Bank or the Bank’s quitclaim deed at the time he purchased the property from the Crofts in January of 1981.

Under the Croft-Starhaven contract for deed, Starhaven was required to make a down payment and installment payments at specific dates to the Crofts who in turn were to deposit the money into an escrow account payable to the First National Bank of Minneapolis. In addition, Starhaven executed a quitclaim deed at closing which was placed in the escrow account. Starhaven failed to make the payments as required and the Bank sent a notice of default on July 24, 1981, to inform Starhaven that it had sixty days to cure the default or the property would be repossessed. The July notice from the Bank was Starhaven’s first indication that the Bank was involved.

On February 16, 1982, the Bank filed Starhaven’s quitclaim deed and, three days later, served Starhaven with notice to quit the property and notice of termination. Starhaven failed to quit the property and instead filed a quiet title action in Beaverhead County District Court. The Bank brought an unlawful detainer action against Starhaven and the two actions were subsequently consolidated. The trial court quieted title to the property in the Bank and Starhaven appealed to this Court. We reversed the District Court in our first opinion. The Bank subsequently petitioned for rehearing and, on rehearing, we affirmed that portion of the judgment quieting title in the Bank. Erickson, 697 P.2d at 1338.

Defendant Rule acted as the real estate broker for the Crofts and attorney John Warren of the law firm of Schultz, Davis & Warren drafted the buy/sell agreement and contract for deed in the transaction between Erickson and the Crofts. On January 15, 1986, Erickson filed this lawsuit against the Crofts et al. Erickson’s complaint alleged separate counts of fraud, negligence, and breach of contract against real estate broker Rule and his realty company and counts of malpractice, constructive fraud, and breach of an implied oral contract against Warren and his law firm. Rule and Warren moved separately for summary judgment on the basis that the applicable statutes of limitation had run and that Erickson’s causes of action were time barred.

On December 7, 1987, the District Court granted the motions for summary judgment on the grounds that no genuine issue of material fact existed as to the causes of action stated against Rule, Rule Realty, Warren and his law firm. Erickson appeals the order of summary judgment and raises the following issues:

1. Does the doctrine of equitable tolling permit plaintiffs to maintain an action in tort more than three years after the discovery of the alleged negligent act?

2. Did the District Court correctly rule that Count VII of plaintiff’s complaint was a tort claim for purposes of the statute of limitations?

3. Must a cause of action for the breach of an implied contract of employment and conflicts of interest in the context of the attorney/ client relationship be brought within the statutory period prescribed by Montana’s attorney malpractice statute, Section 27-2-206, MCA?

The first two issues above apply only to defendant Larry Rule and Rule Realty in this action while the last issue applies to defendants Warren and his law firm Schultz, Davis & Warren.

Summary judgment is proper only were there are no genuine issues of material fact. Rule 56(c), M.R.Civ.P. The facts material to this case are not disputed on appeal. The issues to be decided by this Court on appeal are questions of law and we are free to review the District Court’s legal analysis to draw our own legal conclusions. Schneider v. Leaphart (Mont. 1987), [228 Mont. 483,] 743 P.2d 613, 616, 44 St.Rep. 1699, 1703.

Erickson’s first issue relates to the statutes of limitation for fraud and negligence. Section 27-2-203, MCA, prescribes a two-year limitation in which to commence an action for fraud in Montana. Actions based on negligence must be commenced within three years. Section 27-2-204, MCA. Erickson admits that the statute of limitations has run on both of his actions for fraud and for negligence. However, Erickson urges this Court to adopt and apply a doctrine called “equitable tolling” to avoid the consequences of the statute of limitations in this case.

Erickson contends that his action in filing a complaint against Rule with the Montana Board of Realty Regulation (the Board) on November 29, 1983, serves to toll the applicable statutes of limitation until such time as the outcome of the complaint was determined by the Board. In the Board of Realty complaint, Erickson admits having knowledge of the facts which allegedly give rise to the causes of action against the defendants in this case as early as June of 1981. The Board investigated Erickson’s complaint against Rule and on May 5, 1985, dismissed the complaint. The Board of Realty complaint was filed within two years of Erickson’s discovery of Rule’s alleged misrepresentations. The complaint in Beaverhead County District Court was filed nearly five years after Erickson’s discovery of the facts which allegedly give rise to the causes of action against Rule.

Erickson relies on case law from California, Alaska, and Arizona to support his argument. The cases cited stand for the proposition that, in certain well-defined instances, the statute of limitations will not be available as a defense where equitable principles justify tolling of the statute. See e.g., Jones v. Tracy School District (1980), 27 Cal.3d 99, 165 Cal.Rptr. 100, 611 P.2d 441; Elkins v. Derby (Cal.1974), 12 Cal.3d 410, 115 Cal.Rptr. 641, 525 P.2d 81; Gudenau v. Sweeny Ins. Co. (Alaska 1987), 736 P.2d 763; Hosogai v. Kadota (1985), 145 Ariz. 227, 700 P.2d 1327. A California court summarized the doctrine of equitable tolling as follows:

“[C]ourts have adhered to a general policy which favors relieving plaintiff from the bar of a limitations statute when, possessing several legal remedies he, reasonably and in good faith, pursues one designated to lessen the extent of his injuries or damage. (Citations omitted.)”

Addison v. State (1978), 21 Cal.3d 313, 146 Cal.Rptr. 224, 578 P.2d 941, 943.

In Collier v. City of Pasadena (1983), 142 Cal.App.3d 917, 191 Cal.Rptr. 681, 685, the Second District California Court of Appeals listed the three requirements which a party seeking to avoid the consequences of a statute of limitations must meet to invoke the doctrine of equitable tolling:

“(1) timely notice to the defendant [within the applicable statute of limitations] in filing the first claim;

“(2) lack of prejudice to defendant in gathering evidence to defend against the second claim; and

“(3) good faith and reasonable conduct by the plaintiff in filing the second claim.” (Additions ours.)

Collier also notes the historic circumstances in which the doctrine of equitable tolling has been invoked:

“Prior to the 1970’s, statutes of limitation had been tolled when a plaintiff filed a case which promised to lessen damages or other harm that might have to be remedied through a second case. The statute for the second case was tolled while the plaintiff pursued the first, presumably for the purpose of minimizing harm . . . Another line [of cases] tolled statutes of limitation when administrative remedies had to be exhausted before a court would consider the case. . . Still a third line of cases tolled the limitation period of a second action during the pendency of a first action later found to be defective

“Starting in 1974, the California Supreme Court weaved these earlier lines of cases in to a new, broader doctrine — ‘equitable tolling.’ This doctrine applies ‘ “[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one.” ’ ” (Citations omitted; additions ours.)

Collier, 191 Cal.Rptr. at 684.

Rule asserts that Erickson’s complaint against him to the Board of Realty Regulation does not give him notice to begin investigating the facts which form the basis of the second claim in District Court. For this reason, Rule contends, Erickson has not met the first requirement of equitable tolling, timely notice to the defendant, as set forth in Addison and Collier. We agree.

As pointed out by Rule, the Board of Realty Regulation governs the licensing of real estate brokers and salesmen. Sections 37-51-201 et seq., MCA. Upon receiving a complaint against a real estate broker, and after investigation and hearing, the Board may revoke or suspend a broker or salesman’s license. Section 37-51-321, MCA. Persons found to have violated the statutes pertaining to real estate brokers and salesmen may face criminal penalties and may also have damages in a civil action imposed against them by a “court of competent jurisdiction.” Section 37-51-323, MCA. Therefore, Rule is correct in his assertion that the Board of Realty may only revoke or suspend a broker’s license and has no power to award damages for negligence or fraud. Section 37-51-323, MCA. Rule also points out that the Board is not designated by law as a quasi-judicial board pursuant to Section 2-15-124, MCA. See Section 2-15-1867, MCA. Under these circumstances, Erickson’s Board of Realty Regulation complaint does not give adequate notice of the existence of a legal claim. Gudenau, 736 P.2d at 768. Under the facts as presented, Erickson has failed to meet the first element of equitable tolling. Consequently, we need not decide whether this Court recognizes the doctrine of equitable tolling and we need not address the parties’ arguments with regard to the remaining two elements of the doctrine.

Erickson also makes an argument in passing that the litigation involved in Erickson v. First National Bank of Minneapolis (Mont. 1985), [215 Mont. 350,] 697 P.2d 1332, 42 St.Rep. 423, somehow gave Rule notice of the facts which form the basis of the second claim. We note that Rule was not a party to the Erickson litigation nor were the claims in Erickson the same as presented in this action. The Erickson litigation does not satisfy the notice requirement of the doctrine of equitable tolling.

Count VII of Erickson’s complaint incorporated by reference the fraud and negligence counts. Count VII went on to allege that an implied contract existed between Erickson and Rule and that Rule breached certain duties that arose from the implied contractual relationship. The duties allegedly breached are identical to those alleged in the fraud and negligence counts. Erickson acknowledges that no express oral or written contract existed between him and Rule. Nonetheless, Erickson argues in his second issue on appeal that Count VII is an implied contract action and that the five year statute of limitations for unwritten contracts specified in Section 27-2-202(2), MCA, applies. The District Court ruled that the “gravamen” of the causes of action alleged in Count VII sound in common law fraud and negligence. The District Court relied on this Court’s decision in Quitmeyer v. Theroux (1964), 144 Mont. 302, 395 P.2d 965, to conclude that, regardless of the contract label placed on Count VII by Erickson, Count VII “simply rehashes” the fraud and negligence claims and is, therefore, time barred by the statutes of limitations, Section 27-2-203 and Section 27-2-204, MCA.

Erickson contends that he may elect between a contract theory or negligence theory where his claim has a basis under either theory and cites to Unruh v. Buffalo Bldg. Co. (Mont. 1981), 633 P.2d 617, 618, 38 St.Rep. 1156, 1158, for support. Erickson’s contention in this regard begs the question because the election to pursue one cause of action over another must be more than a mere relabeling of a claim to avoid the consequences of a statute of limitations.

In Unruh this Court recognized that ‘[u]nder certain circumstances, a ground of liability in tort may coexist with a liability in contract, giving the injured party the right to elect which form of action he will pursue.’ ” Unruh, 633 P.2d at 618 (citing Garden City Floral Co. v. Hunt (1953), 126 Mont. 537, 255 P.2d 352). Unruh is unpersuasive in this case. The Unruh holding was premised on the fact that the claim in question was not based on negligence but was based on the breach of an implied warranty. For that reason, this Court concluded that the plaintiff could elect to pursue the implied warranty theory and the eight year statute of limitations for contracts would apply. Unruh distinguishes Quitmeyer because the claim in Quitmeyer was based on negligence. While Count VII of Erickson’s complaint alleges the existence of an implied contract, the asserted actionable conduct is based on the same fraud and negligence allegations contained in the time barred negligence and fraud counts of his complaint. The gravamen of the claim, not the label attached, controls the limitations period to be applied to that claim. Thiel v. Taurus Drilling Ltd. (Mont. 1985), [218 Mont. 201,] 710 P.2d 33, 38, 42 St.Rep. 1520, 1527; Quitmeyer, 395 P.2d at 969. The gravamen of Count VII is fraud and negligence and the claim is time barred by Section 27-2-203 and Section 27-2-204, MCA.

Rule also argues that Erickson has failed to present a genuine issue of material fact as to the existence of an implied contract between him and Erickson. The above discussion presumes that an implied contract existed but finds that the claim asserted sounds in fraud and negligence and is, therefore, time barred. From the above analysis it is apparent that Erickson’s Count VII is time barred regardless of the existence of an implied contract because of the nature of the claim asserted. While we tend to agree with Rule that there are no facts to establish an implied contract, we need not address the parties’ arguments on the subject in light of the foregoing discussion.

Erickson’s final issue affects only defendant Warren and his law firm. The District Court found Erickson’s legal malpractice claim against Warren to be time barred by the legal malpractice statute of limitations, Section 27-2-206, MCA. Erickson’s complaint also alleged the existence of an implied contract in the context of the attorney-client relationship. The District Court ruled that this implied contract claim, though “novel and somewhat ingenious,” was also time barred by the legal malpractice statute of limitations. The District Court reasoned as follows:

“To escape the obvious consequences of the legal malpractice statute . . . the Plaintiffs seek to stay in court on an implied contract theory by invoking the five year statute (27-2-202, MCA).

“The Court will not allow a party to escape the consequences of a specific malpractice statute [of limitations] by permitting a party to state a claim for professional negligence in terms of a breach of contract. To do so would make the malpractice statute meaningless. If Plaintiff’s position is sound, there would have been no need for the 1977 malpractice statute . . .

“The Court has considered the authorities cited by Plaintiffs but finds them to be inapplicable since the jurisdictions have no malpractice statute similar to Section 27-2-206, MCA.

“In summary, there are no disputed issues of fact. The Plaintiffs admittedly had knowledge of the facts essential to their malpractice claim in 1981. Such claims are accordingly barred by the three-year limitation of action (Section 27-2-206, MCA). This section applies whether the action is premised in tort or contract.” (Emphasis theirs; additions ours.)

The District Court’s order granting summary judgment to Warren is dated December 7, 1987. Erickson filed a notice of appeal on January 7, 1988. On March 25, 1988, this Court decided the case of Schweitzer v. Estate of Halko (Mont. 1988), [231 Mont. 283,] 751 P.2d 1064, 1066, 45 St.Rep. 611, 613-614. Warren argues that the legal malpractice statute of limitations applies to all claims against an attorney in the attorney-client relationship regardless of how those claims are enumerated and cites to Schweitzer for support.

In Schweitzer, the District Court was presented with several claims, including an implied contract claim, in the context of an attorney-client relationship. The District Court noted that, when an attorney undertakes to represent a client, a contract and relationship is formed. If the attorney’s services are improper, the District Court reasoned, there is a breach of contract. These improper services, by definition are “bad” acts, or “bad” practices — hence, malpractice. The District Court concluded that acts of legal malpractice, however denominated, fall within the purview of Section 27-2-206, MCA. The District Court also noted that a specific statute, Section 27-2-206, MCA, prevails over a general statute, Section 27-2-202, MCA, to the extent the two statutes are inconsistent with each other. We found the District Court’s reasoning to be correct in Schweitzer and find Warren’s related argument to control in this matter.

Erickson’s claims against Warren and the law firm of Schultz, Davis & Warren sound in legal malpractice and are time barred by Section 27-2-206, MCA. Schweitzer, 751 P.2d at 1066; see also, Southland Mechanical Constructors Co. v. Nixen (1981), 119 Cal.App.3d 417, 173 Cal.Rptr. 917, 923.

We hold that Erickson’s claim against Rule, Rule Realty, Warren and Schultz, Davis & Warren are time barred and summary judgment was properly granted by the District Court.

AFFIRMED.

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


author: MR. JUSTICE MCDONOUGH

text:
    TIM ZIMMERMAN, individually and as Personal Representative of the Estate of Dan Zimmerman, Plaintiff and Appellant, v. BOZEMAN PRODUCTION CREDIT ASSOCIATION, Defendant and Respondent.
    No. 87-546.
    Submitted on Briefs June 19, 1988.
    Decided Aug. 8, 1988.
    759 P.2d 166.

      Leonard J. Haxby, Butte, for plaintiff and appellant.
    Michael J. Lilly, Lilly, Andriolo & Schraudner, Bozeman, for defendant and respondent.
   MR. JUSTICE MCDONOUGH

delivered the Opinion of the Court.

Tim Zimmerman, individually and as Personal Representative of the estate of Dan Zimmerman, appeals from the judgment of the District Court of the Eighteenth Judicial District, Gallatin County, entered upon a jury verdict. The jury found on a special verdict form that defendant Bozeman Production Credit Association (hereafter referred to as PCA) did not wrongfully convert certain farm equipment. We affirm.

Appellant frames three issues for review by this Court:

1. “Is the Jury’s verdict in error in that it was not in conformance with the preponderance of the evidence?”

2. “Were the improper comments during closing argument of the Respondent’s counsel of sufficient magnitude as to be error, which would mandate a reversal of the verdict?”

3. “Was the court’s giving of Respondent’s instructions 11 and 18, over the objection of the Plaintiff, error, and if so, was it error of sufficient magnitude that would warrant a reversal of the decision herein?”

Certain facts of this case are disputed, but a summary of those facts important to the above issues are as follows:

In 1981, Dan Zimmerman entered into a lease for farm land near Dillon, Montana, with the intention of moving to that area to go into the farming business. In order to pursue farming operations on the leased land, Dan Zimmerman purchased an Allis-Chalmers 7060 tractor, an Allis-Chalmers 26-foot disc and a Rollflex 26-foot tool bar for a total price of $44,000. He made a down payment of $15,000, and financed the remainder through PCA’s Dillon office.

In January of 1982, Dan Zimmerman was killed in an airplane crash. His brother, Tim Zimmerman, was appointed personal representative of his estate. Dan Zimmerman had credit life insurance through PCA that paid the balance owing on the farm equipment in question. However, the farm lease remained an obligation of the estate. The Zimmerman family contacted Jerry Ryan, a friend of the deceased who lived in the Dillon area, about taking over the farm lease. He agreed, but informed the Zimmermans that in order to farm the additional land, he would need more equipment. The Zimmermans agreed to allow Ryan to use the equipment purchased by Dan Zimmerman to farm the leased land, which he did for the 1982 season.

During January of 1983, Ryan contacted PCA’s Dillon office about renewing his operating loan for the 1983 farming season. On his application forms for the loan, and later on the loan financing statement, Ryan listed the Allis-Chalmers tractor and 26-foot disc as collateral. The purpose of placing this equipment on the forms was disputed at trial.

PCA asserts Ryan represented to their employee that he had arranged to purchase the equipment from the Zimmermans, giving an $8,000 down payment with the balance to be paid in November of 1983. Tim Zimmerman (hereafter referred to as Zimmerman), on the other hand, argues that the equipment was listed on the application documents at the behest of the PCA employee, even though Ryan told him that he was only using the equipment and would not purchase it until November.

In the fall of 1983, Ryan defaulted on his loan from PCA. PCA took possession of all the items listed as collateral in the financing statement, including the tractor and disc at issue here. Zimmerman sought the return of the equipment, which PCA refused. On July 18, 1985, Zimmerman filed a complaint seeking possession of the equipment, as well as actual and punitive damages. The verdict was returned in favor of PCA and judgment entered, and this appeal ensued.

I.

Zimmerman first asserts that the jury’s verdict was in error in that it did not conform with the preponderance of the evidence. The rule in this Court is that a jury’s verdict will not be overturned if there is substantial evidence in the record to support the jury’s finding. Lane v. Dunkle (Mont. 1988), [231 Mont. 365,] 753 P.2d 321, 45 St.Rep. 686, and cases cited therein.

The record in this case supports the jury’s verdict. PCA’s Exhibit C introduced at trial is a security agreement dated February 11, 1983, between Jerry and Colleen Ryan and PCA. The agreement lists collateral pledged by the Ryans to secure an $87,609.00 loan. Included in that list is an Allis-Chalmers 7060 tractor and 26-foot disc, subject to a lien held by “B. Zimmerman.” PCA’s Exhibit H is a financial statement signed by the Ryans, which lists $23,500 as being owed to “Zimmerman” for the tractor and disc.

Peter Moe, the PCA employee who negotiated the Ryans’ loan, testified at trial regarding PCA’s Exhibit H. He stated the information was entered on the financial statement as the result of Ryan telling Moe that he had arranged the purchase of the equipment at issue from Zimmerman on the terms stated above. Moe testified that the money owed on the equipment was entered on the form as a liability for use in calculating Ryan’s ability to repay the PCA loan.

PCA also offered testimony by its employees Bruce Parker and Boyd Hanson concerning telephone conversations they had with Bob Zimmerman, another brother of the deceased, after PCA took possession of the equipment at issue. In those conversations, Bob Zimmerman confirmed that a sale of the equipment to Ryan had taken place. The testimony of these employees was buttressed by PCA’s Exhibit G, a letter from Hanson to Bob Zimmerman confirming the contents of their telephone conversation. The letter asked for a written response if any of the information was incorrect, but no response was received.

While Zimmerman presented evidence supporting his version of the facts at issue, our function is not to agree or disagree with the verdict rendered by the jury. We simply review the record to search for sufficient evidence upon which the verdict could be based. Kleinsasser v. Superior Derrick Service, Inc. (Mont. 1985), [218 Mont. 371,] 708 P.2d 568, 42 St.Rep. 1662. The record contains probative facts sufficient to support the jury’s verdict that PCA did not wrongfully convert the equipment.

II.

Zimmerman next asserts that PCA’s attorney made improper comments to the jury during closing argument that were sufficiently prejudicial to require reversal of the jury’s verdict: The record shows, however, that Zimmerman’s counsel did not object to the allegedly prejudicial comments at trial, and in fact responded to them in his own closing argument.

Generally, under Rule 103, M.R.Evid., failure to object waives a claim of error unless a substantial right of the party is affected. Clark v. Norris (Mont. 1987), [226 Mont. 43,] 734 P.2d 182, 44 St.Rep. 444. However, Zimmerman draws our attention to subsection “d” of Rule 103, which states that a trial or appellate court is not precluded from “taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.” Rule 103(d), M.R.Evid.

The “plain error doctrine” is used only in exceptional cases. Reno v. Erickstein (1984), 209 Mont. 36, 679 P.2d 1204. The comment complained of by Zimmerman was an instance of “wondering aloud” by PCA’s counsel as to why Ryan’s wife was not called as a witness, because she was present when Ryan allegedly told Moe he had purchased the equipment at issue. While Zimmerman does not set forth the particular right this comment is to have affected, it appears from his brief that he is asserting his right to a fair trial. However, we do not see evidence in the record of this case to indicate that Zimmerman’s right to a fair trial was affected. We decline to apply the plain error doctrine, and instead rest on the general rule stated above that Zimmerman’s failure to interpose timely objection to the comment precludes him from raising this alleged error on appeal.

III.

Zimmerman’s final assertion is that the District Court committed reversible error in giving PCA’s jury instructions 11 and 18. Zimmerman’s brief on this point concludes, “The contentions of the Appellant in this case are that the instructions given were so erroneous and conflicting that the jury could not, without broad legal experience and expertise, separate one from the other to come up with what is a correct statement of the law as a whole ...”

At trial, Zimmerman’s counsel objected to the instructions on grounds other than those argued to this Court. The objection to instruction 11 was that it did not fit the facts as presented at trial and might therefore mislead the jury. The objection to instruction 18 was that it referred to a creditor’s right to possession of collateral without specifying that such collateral had to be “lawfully obtained.” At no point did counsel state that the two instructions conflicted.

In Reno, 679 P.2d at 1209, we stated, “Plaintiffs will not be heard to challenge on appeal an instruction for reasons not raised before the trial court. Rule 51, M.R.Civ.P. requires that the grounds for objection to jury instructions must be stated with particularity.” The ruling in Reno is dispositive of this issue. Zimmerman will not be allowed to raise an objection to the instructions in this Court that was not presented to the District Court.

We affirm the judgment of the District Court.

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


author: MR. JUSTICE McDONOUGH

text:
    PIPE INDUSTRY INSURANCE FUND TRUST OF LOCAL 41, Plaintiff and Respondent, v. CONSOLIDATED PIPE TRADES TRUST OF MONTANA, Defendant and Appellant.
    No. 88-46.
    Submitted on Briefs May 19, 1988.
    Decided Aug. 8, 1988.
    760 P.2d 711.

      Anderson, Brown, Gerbase, Cebull, Fulton, Harman and Ross, Michael P. Heringer, Billings, for defendant and appellant.
    Burgess, Joyce & Whelan, Thomas F. Joyce, Butte, for plaintiff and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

Consolidated Pipe Trades Trust of Montana (Consolidated), appeals the Second Judicial District Court’s decision in favor of Pipe Industry Insurance Fund Trust of Local 41, (Pipe Industry). We affirm.

Consolidated presents the following issues for review:

(1) Whether the Court erred when it instructed the jury that it could not consider any evidence outside the terms of the agreement?

(2) Whether the Court erred when it refused testimony concerning the negotiations of the reciprocity agreement?

(3) Whether the Court erred when it instructed the jury on the legal principal of waiver?

(4) Whether the verdict is supported by substantial evidence?

(5) Whether the Court erred when it awarded prejudgment interest?

(6) Whether the prejudgment interest was calculated properly?

The relevant facts are as follows: Both parties collect funds from employers of union members under the jurisdiction of their respective locals. The funds finance trusts used to provide insurance plans for union members.

In 1980, members of the Butte local working under the jurisdiction of the Billings local faced ineligibility under both the Butte local’s insurance and the Billings local’s insurance. To solve this problem, Consolidated, representing the Billings local, agreed to collect funds for members of the Butte local working under the Billings local’s jurisdiction. The funds collected by Consolidated were to be remitted to Pipe Industry for the trust fund administered by Pipe Industry. Pipe Industry agreed to do the same for members of the Billings local working under the jurisdiction of the Butte local.

To effectuate this agreement, the parties executed a written document. The pertinent parts of this document read as follows:

“2. Each Trust Fund party hereto shall collect and receive the Employer contributions due for the work of each Temporary Member who has signed and deposited a transfer authorization card with the transferring fund, and shall keep separate accounts of these collections.

“3. No party shall be liable to any other party for any sums whatsoever except to the extent of contributions made on Temporary Members that are in fact received. Each party shall bear all expenses of collection, administration or accounting which it shall incur hereunder, and shall charge no part thereof to any other party.

“4. Each Trust Fund party hereto shall make an accounting monthly of the monies received by it during the period just ended on behalf of any Temporary Members and shall remit to the Temporary Members’ Home Fund all Employer contributions received by it on behalf of its Temporary Members. Said remittance must be made within thirty (30) days after the close of the calendar month and within thirty (30) days of termination of this Agreement as provided in Sections 11 and 12 hereof. However, any Temporary Member may direct the Transferring Fund in writing, with 30 days notice, that contributions on his behalf not be returned to his Home Fund.

“10. This Agreement may be modified or amended at any time by an instrument in writing executed by the parties hereto. Any party hereto may at any time withdraw from this Agreement by serving by Certified Mail on the other party hereto (at the address listed on the last page hereof) a notice of its intention to withdraw, not less than sixty (60) days prior to such date of withdrawal. Upon the effective date of withdrawal by any party hereto, this Agreement shall be terminated.”

In 1981, the parties began performance under the agreement. Consolidated collected funds from employers of Butte workers at the rate of $1 per hour of work. This rate equaled the rate Consolidated collected for the Billings local’s members. However, Consolidated remitted only 85 cents of each dollar collected for Butte workers to Pipe Industry because this was the amount needed to maintain coverage under the trust administered by Pipe Industry. Clause four of the written contract, however, provides that all funds collected shall be remitted.

On September 1, 1982, the amount needed to maintain coverage under Pipe Industry’s trust increased to $1 per wage hour. Consolidated continued to collect $1, and increased the amount remitted to Pipe Industry from 85 cents to $1. Thus, during this period, Consolidated complied with clause four of the contract.

On September 1, 1983, Consolidated’s rate rose to $1.45, and employers of Butte workers under Consolidated’s jurisdiction began to pay this rate. However, Consolidated continued to remit only $1 to Pipe Industry.

On August 1, 1984, Pipe Industry’s rate increased to $1.15, and Consolidated began to remit that amount from the $1.45 it continued to collect for Butte workers. After September 30, 1984, no members of the Butte local worked under the jurisdiction of the Billings local. Thus, no funds are disputed after that time.

On March 28, 1986, Pipe Industry filed suit against Consolidated claiming that Consolidated breached the parties’ agreement by not remitting the full amount it collected for Butte workers. The claim went to trial before a jury in Butte, and the jury verdict held Consolidated liable for the difference between the amounts collected and the amounts remitted. Consolidated unsuccessfully claimed that Pipe Industry had waived its right to the funds awarded by the jury. Consolidated also unsuccessfully claimed that an addendum to the agreement modified the contract to allow its collection procedures. An award of interest accompanied the judgment for Pipe Industry.

I.

Consolidated claims that the lower court erred by giving the following instruction:

“Whenever the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms. Therefore there can be between the parties no evidence of the terms of the agreement other than the contents of the writing except that other evidence may be offered to explain an extrinsic ambiguity in the written agreement. It is for the judge to construe a written agreement giving effect to all of its terms and to determine if an extrinsic ambiguity exists. I have concluded that there is no extrinsic ambiguity in Exhibit 3, the original reciprocity agreement made by the parties, and that agreement required that all monies received from employers by the defendant trust were to be remitted within 30 calendar days after the close of each calendar month to the plaintiff trust.” (Emphasis added.)

Consolidated argues that this instruction erroneously precluded the jury from considering extrinsic evidence regardless of its source. More specifically, Consolidated claims prejudice because the instruction prohibited the jury from considering extrinsic evidence of its waiver theory. Thus, according to Consolidated, the above instruction mislead the jury and prejudiced its case. Pipe Industry responds that evidence offered in the lower court on waiver was properly admitted to show waiver, and properly excluded to show variation of the contract terms. We agree.

The instruction set out above paraphrases parts of Section 28-2-905, MCA. This Court’s decisions interpreting Section 28-2-905, MCA, and the language of the statute itself, demonstrate that parol evidence may be admitted for one purpose, but not for another. See, e.g., Martin v. Laurel Cable T.V., Inc. (Mont. 1985), [215 Mont. 229,] 696 P.2d 454, 42 St.Rep. 314; Rase v. Castle Mountain Ranch, Inc. (Mont. 1981), [_Mont__,] 631 P.2d 680, 38 St.Rep. 992. In this case, despite Consolidated’s contentions to the contrary, extrinsic evidence was taken and argued at trial. During defendant’s closing, Consolidated’s counsel summarized this evidence:

“Billings has submitted evidence that shortly after the reciprocity began between these two people — two trusts in 1981, it sent an addendum to the reciprocity agreement. And Butte maintains that out of the large volume of mail that it receives, including correspondence and numerous checks, that it did not receive this addendum. The evidence shows that Billings Trust sent this addendum, at the same time it sent it to 15 other Trusts who it had reciprocity agreements with at the same time. This is the only piece of mail that has been claimed to have never been received. The addendum clearly showed how much Billings planned to transfer to Butte. But even without the addendum, Billing’s conduct showed that it was always going to pay the lower amount which Butte was fully aware and for which they accepted without complaint.

“Therefore, by its conduct, Butte assented to the change of the terms of the reciprocity agreement, and agreed to accept those terms.

“In summary, from day one, the Billings Trust paid the Butte Trust sufficient funds to provide insurance coverage for its members of local 41 in Butte when they worked within the jurisdiction of Local 30 in Billings. These payments almost amounted to $91,000 over a three-year period.

“And because the Plaintiff continued to accept these numerous payments without protest, they either waived their right to claim a higher contribution rate at the time, or they agreed to accept the change in the reciprocity agreement and, therefore, Billings was only required to remit the amount that it did.

“For these reasons, the Defendant, Consolidated Pipe Trades Trust respectfully requests that you return a verdict in its favor and award no money to the Plaintiff.”

The foregoing shows that the dispute hinged not on parol evidence going to prove the effect of the agreement’s terms. Rather, the dispute concerned whether the parol evidence, which was admitted, showed either waiver on the part of Pipe Industry in enforcing the undisputed terms of the contract, or subsequent amendment of clause four by the addendum.

This Court must review jury instructions keeping in mind the evidence offered. Baker National Bank v. Lestar (1969), 153 Mont. 45, 52, 453 P.2d 774, 777. Our review must also insure that the lower court provided instructions adaptable to the objecting party’s theory of the case when credible evidence supports the theory. Rix v. General Motors Corp. (Mont. 1986), [222 Mont. 318,] 723 P.2d 195, 198, 43 St.Rep. 1296, 1298.

Jury instructions on appeal are to be viewed in their entirety, and in light of the evidence in the case. Bushnell v. Cook (Mont. 1986), [221 Mont. 296,] 718 P.2d 665, 669, 43 St.Rep. 825, 830. Viewing the instructions in this case in their entirety, we hold that: the lower court’s instruction was compatible with the evidence in the case; that the arguments of counsel and the addition of instructions on waiver consistently presented the waiver issue apart from the prohibition on altering the terms of the contract by parol evidence; and that allowance of an instruction on waiver, and allowance of evidence on waiver, provided Consolidated with an adequate means to present its theory on waiver. More succinctly, our conclusion on this issue is that an instruction prohibiting consideration of parol evidence on what the contract language required for performance may coexist with an instruction and evidence on waiver. The closing argument of defense counsel demonstrates that this fact was not lost to appellant, and we must presume it was also not lost to the jury. See, e.g., Bass v. Barksdale (Tenn. App. 1984), 671 S.W.2d 476, 489 (reviewing court presumes jury understood instructions). Thus, we affirm on this issue.

II.

Consolidated’s argument on issue two is largely settled by issue one. The argument assigned by appellant as issue two is that the lower court erred in not allowing evidence on negotiations of the contract. Consolidated argues that the testimony of witness Cliff Powell should have been allowed as relevant to waiver.

Consolidated’s faulty logic fails to support this argument. Section 28-2-905, MCA, prohibits evidence of the terms of an agreement:

“except in the following cases:

“(a) when a mistake or imperfection of the writing is put in issue by the pleadings;

“(b) when the validity of the agreement is the fact in dispute.

“(2) This section does not exclude other evidence of the circumstances under which the agreement was made or to which it relates, as described in 1-4-102, or other evidence to explain an extrinsic ambiguity or to establish illegality or fraud.”

The objection in the lower court concerned a question soliciting information on contract negotiations. Defense counsel stated in the defense’s offer of proof that:

“MR. HERINGER: Your Honor, in pre-trial agreement I provided the Court with the case law that parol evidence is admissible when there is a question of waiver before the Court. And this goes to the fact of what was waived and why it was possibly waived by them.

“That question simply asks what were the terms of the agreement as to what Mr. Powell understood of them.”

As shown by resolution of issue one, the distinction between waiver and parole evidence allowed to establish a variance from the contract’s terms explains and justifies the lower court’s decision to sustain the objection to Mr. Powell’s testimony on the contract negotiations. Thus, we affirm on issue two.

III.

Consolidated contends that the lower court erred by refusing to give one of the instructions on waiver offered by Consolidated, and by giving an instruction offered by Pipe Industry on waiver. The specific contention is that the two waiver instructions confused and mislead the jury.

Pipe Industry’s instruction on waiver reads as follows:

“You are instructed a party may waive a right afforded to him by contract. The party asserting a waiver, the defendant in this case, has the burden of proving waiver.

“A waiver is defined by law as a voluntary and intentional relinquishment of a known right. Waiver must be based on the words or conduct of the party against whom waiver is claimed, in this case, the plaintiff. The defendant must prove language or conduct by the plaintiff showing in an unequivocal manner that the plaintiff voluntarily and intentionally relinquished its right to receive the full payments as provided by the contract. Mere failure to take steps to enforce a legal right under a contract in a timely manner is not, by itself, sufficient to constitute proof of waiver.”

Consolidated objected to the above instruction contending that the last sentence inaccurately stated the law and effectively negated its waiver theory. The same assertions are made on appeal. Pipe Industry answers that the last sentence served the purpose of distinguishing between waiver and other defenses which preclude suits based on failure to bring them in a timely manner, i.e., laches or statute of limitations.

The last sentence constitutes a correct statement on the law of waiver. See e.g., Boles v. Ler (Mont. 1986), [222 Mont. 28,] 719 P.2d 793, 43 St.Rep. 1035 (vendor’s mere failure to return late payments did not preclude vendor from enforcing foreclosure rights). Pipe Industry, as well as Consolidated, has the right to instructions supporting its theory of the case. Pipe Industry’s theory was that Consolidated failed to prove waiver. Evidence supported this contention, and distinguishing waiver from other prohibitions on bringing causes of action furthered understanding of this theory. Thus, under the circumstances of this case, the lower court acted within its discretion in giving the instruction.

Consolidated argues that the lower court erred by failing to give the instruction on waiver it offered. The offered instruction was set out in Thiel v. Johnson (Mont.1985), [219 Mont. 271,] 711 P.2d 829, 831, 42 St.Rep. 2010, 2012. Pipe Industry responds that the instruction in Thiel was not approved by this Court because the issue in Thiel on this instruction was settled by the appellant’s failure in Thiel to object to the instruction in the lower court. See Thiel. 711 P.2d at 832. We agree that a variation from the instruction set out in Thiel is not a violation of any rule from Thiel. This Court in Thiel specifically refused to review the validity of part of the instruction. Thus, Thiel does not control.

The refused instruction reads as follows:

“You are instructed that when a payment for a sum certain is due pursuant to a contract, that payment may be waived by one who is to receive the payment. The waiver may be either express or implied.

“An implied waiver occurs when a contract payment is received and the amount paid is less than contract terms call for and the person who is to receive the payment makes no attempt to collect the full amount within the [sic] reasonable time. A reasonable time is presumable a short time after payment is due, and before the next payment is due.

“An. express waiver occurs when one who is to receive payment tells the one who is to make the payment either orally or in writing, that the full amount of the payment need not be made. An express waiver must continue for the period of time specified by the one who is to receive the payment.”

The District Court gave two instructions on waiver which adequately covered the applicable law. The District Court refused the instruction offered by appellant holding it inapplicable to the case.

No error may be predicated on the trial court’s failure to give an instruction when other instructions adequately cover the applicable law, or where the pleadings and evidence show that the offered instruction is inapplicable. Doble v. Lincoln County Title Co. (Mont. 1985), [215 Mont. 1,] 692 P.2d 1267, 1271, 42 St.Rep. 128, 132. We refuse to pass on the sufficiency of the Thiel instruction offered in this case because the two waiver instructions given by the Court adequately address the law on waiver in light of the evidence presented at trial.

A further contention on this issue concerns the giving of two waiver instructions. Consolidated claims that the lower court erred because the two instructions conflict and confuse on a material issue. Consolidated also claims they are repetitive.

These two contentions by Consolidated appear to be mutually exclusive, i.e., the presence of facts supporting the one appears to exclude facts supporting the other. We have reviewed both contentions and find merit in neither.

We have already set out the instruction on waiver offered by Pipe Industry, and given by the trial court. The second instruction on waiver, offered by Consolidated, and given by the lower court, reads as follows:

“A party may waive the benefit of a contract. Waiver means that a person is precluded from asserting a right, a claim or privilege because he has previously knowingly, voluntarily and intentionally given up that right, claim or privilege.

“Waiver must be a voluntary act and implies a knowing choice by a person to give up something of value or forego a right or advantage which he might have demanded and insisted upon. It only involves the conduct of the party against whom the waiver is asserted and consideration is not necessary for the doctrine to apply, nor need there be a detriment or harm to the party claiming the waiver.

“A person may waive a right, claim or privilege only if he has knowledge of the facts which are material or important to his decision. This knowledge may either be actual or constructive. Constructive knowledge is knowledge which one has the opportunity to acquire by the exercise of ordinary care and diligence, whether or not such knowledge is, in fact, acquired. If a person is ignorant of a material or important fact, that is, if he lacks actual or constructive knowledge, a waiver is not possible.”

This instruction properly covers areas left out of the instruction offered by Pipe Industry. Conversely, the instruction offered by Pipe Industry covers areas left out of this instruction. As pointed out by Consolidated, other portions are simply repetitive, not conflicting. See e.g., Pizza v. Wolf Creek Ski Development Corp. (Colo. 1986), 711 P.2d 671, 681 (instructions not essentially identical are not unduly repetitive). Thus, this contention fails, and we affirm on this issue.

IV.

Consolidated contends that substantial evidence does not support the jury’s verdict. In particular, Consolidated contends that evidence it presented conclusively demonstrates that Pipe Industry waived its rights under the contract.

We disagree. To counter Consolidated’s argument that Pipe Industry knowingly and intentionally relinquished the right to a portion of payments guaranteed under the contract, Pipe Industry presented evidence showing that other considerations influenced its decision to forestall prosecution for payment. The verdict demonstrates that the jury rejected Consolidated’s argument on the basis of this evidence. Inasmuch as substantial credible evidence supports the verdict, we must affirm on this issue. Clark v. Norris (Mont. 1987), [226 Mont. 43,] 734 P.2d 182, 184-85, 44 St.Rep. 444, 445.

V.

Consolidated claims that the lower court erred by awarding prejudgment interest. To support this contention, Consolidated cites portions of Section 28-1-1202(2), MCA, and Section 27-1-214, MCA.

Section 28-1-1202(2), MCA, reads as follows:

“An offer of payment or other performance duly made stops the running of interest on the obligation and has the same effect upon all incidents of the obligation as a performance thereof, whether or not the title to anything offered is transferred to the creditor.”

Consolidated contends this statute avails it of a defense to interest on the difference between the amount due under the contract, and the amount actually paid under the contract. The specific contention is that:

“Consolidated offered and Pipe Industry accepted these payments as payments in full.”

This thinly disguised repetition of Consolidated’s faulty waiver argument fails to persuade this Court to reverse on this issue.

Consolidated makes the same argument in regard to Section 27-1-214, MCA, which reads:

“Accepting payment of the whole principal, as such, waives all claim to interest.”

This assertion also fails because the jury verdict found that Consolidated did not pay the whole principal.

We hold interest was properly awarded under Section 27-1-211, MCA. See Price Building Services, Inc. v. Holms (Mont. 1985), [214 Mont. 456,] 693 P.2d 553, 42 St.Rep. 84. Thus, we affirm on this issue.

VI.

Consolidated contends that the lower court improperly calculated the interest, and Pipe Industry concedes the point. Thus, we remand only for the purpose of a proper calculation as agreed by the parties.

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