author: JUSTICE HARRISON

text:
    IN THE MATTER OF T.A., Youth in Need of Care.
    No. 90-538.
    Submitted on briefs May 16, 1991.
    Decided July 2, 1991.
    249 Mont. 186.
    814 P.2d 994.

      Marcey Femling Schwarz, Schwarz Law Firm, James Graves, Oliver & Graves, Billings, for appellant.
    Marc Racicot, Atty. Gen., Jennifer Anders, Asst. Atty. Gen., Helena, Dennis Paxinos, Yellowstone County Atty., David Hoefer, Deputy County Attorney, Damon Gannett, Gannett & Ventrell, Billings, for respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Thirteenth Judicial District, in and for the County of Yellowstone, Montana, the Hon. G. Todd Baugh, presiding. The natural parents of T.A. appeal from an order issued by the District Court, Yellowstone County, declaring T. A. a youth in need of care and granting temporary custody to the Department of Family Services until T.A. reaches the age of eighteen.

Appellants present the following issues:

1. Did the District Court abuse its discretion by failing to dismiss, on the basis of insufficient evidence, the petition of the Department of Family Services for temporary custody of T.A.?

2. When awarding temporary custody of a child to the Department of Family Services until the child reaches eighteen, must the State prove by clear and convincing evidence that the child has been abused or neglected?

Due to neglect and abuse by her mother, T.A. has been a dependent child in the custody of the Department of Family Services (DFS) since 1987 when she was eight years of age. At the time of the proceedings in question, T.A. was eleven years old. T.A.’s father had not paid child support and had not attempted to contact T.A. up to the time of the hearing in this matter, January 10, 1990.

In May, 1987, through the Yellowstone County Attorney’s Office, DFS petitioned the District Court for an order granting DFS ternporary investigative authority over T.A. and two of her half-brothers, a fifteen-year-old and a baby of seven months. All three children had different fathers, and the identity of T.A.’s father was unknown at the time of the 1987 hearing. The 1987 report to the court filed by DFS in support of its petition contained nearly two dozen referrals relating to the three children over a ten-year period.

The earliest referrals to DFS involving T.A. were in 1980 when T.A. was two years old. Child Protective Services received a report that the mother had taken T.A. to a bar while she played pool and that T.A. had a bruise on her cheek and a black eye. On another occasion, the mother became so drunk that she was unable to care for T.A., and the bar management called police to investigate the matter.

The report to the court in support of the 1987 petition for temporary care refers to numerous incidents of neglect, the mother’s drug abuse, sale of drugs by the mother, and evidence of prostitution by the mother in the home. One report received from a tenant who had rented a basement to the mother stated that the mother used crank, did not feed her children regularly, and fought constantly with the man living with her. A report based on statements of T.A.’s older half-brother to a social worker states in part:

“[The mother] takes and sells drugs out of the home. There are numerous people coming in late at night to buy drugs. Mom shoots up drugs and is awake for IV% to 2 days prowling around the house keeping everyone up. Then she sleeps for 2 days. He said his mother walks around the house naked or dressed only in a see-through nightgown.”

Among the reports was an alleged “spanking” given T.A. by both the mother and the youngest child’s father in 1987 which resulted in “massive bruising on her right buttock and left buttock and down her right thigh.” These injuries were documented at Billings Deaconess Hospital and resulted in TA’s immediate placement in emergency foster care.

The record indicates at least four temporary placements over a period of some three years for T.A. With approval from DFS, from December 1987 to June 1988, T.A. lived with her maternal grandmother in North Dakota. Although T.A. adjusted well in North Dakota, she was returned to Billings. T.A. was again placed in foster care, and DFS was granted a motion for a six-month extension of temporary custody in July 1988.

In September 1988 the mother moved to Broadus, Montana, with a new boyfriend, and T.A. was allowed to return to her mother’s care on a trial basis. T.A. did well in school in Broadus, but the mother’s relationship with her new boyfriend disintegrated, and in December 1988 T.A. was returned to foster care while her mother attempted to stabilize her environment. T.A. remained in foster care after DFS was granted six month extensions of temporary custody of T.A. in February 1989 and in June 1989.

A treatment plan devised in June 1989 provided that T.A. could be returned to her mother’s care on a trial basis in August 1989 if the mother complied with the terms of the plan. The conditions were not met, and in November 1989, DFS petitioned the court for an order continuing temporary custody of T.A. until she reached age eighteen.

On January 10, 1990, a hearing on the petition was held and several medical people testified including Dr. Agosto, a licensed clinical psychologist who had examined T.A. on numerous occasions. He testified that T.A. showed stress reactions caused by her mother and that T.A. needed “quite a bit of help” in the area of stability and security. He further stated that in his opinion the mother was unable to provide stability and structure for T.A. at the present time.

Jerri Tate, a social worker for DFS who had been involved with the case since its inception, testified that the mother had six living arrangements in a period of six years. At the time of the hearings the mother had plans to move again. Ms. Tate testified that the mother would not participate in counseling and refused to take her lithium for her recently diagnosed manic-depressive disorder, or bipolar illness. The mother failed to complete the recommended re-evaluations by Dr. Yaney, the mental health professional who first diagnosed her bipolar illness.

Over the course of her involvement with T.A., Ms. Tate testified that T.A. had shown positive improvement, but she had not seen similar improvement in the mother. Ms. Tate recommended continued contact between mother and daughter, although she advised the court to continue temporary custody of the child with DFS because of the mother’s instability.

The District Court, which had presided at all of the prior hearings involving DFS custody of T.A., awarded temporary custody of T.A. to DFS until she reached age eighteen.

I.

The first issue is whether sufficient evidence supports the District Court’s decision that T.A. was a youth in need of care and ordering that she be placed in the temporary custody of DFS. More than sufficient evidence supported the decision. Nearly every page of the record presented to the court and the court’s own knowledge of the case over many years are indicative of a badly abused child in need of care.

Section 41-3-101, MCA, sets forth the policy of the State of Montana regarding the youths of this state. All youth should be afforded “an adequate physical and emotional environment to promote normal development,” if possible, in the environment of a child’s own family. When a healthy family environment is not possible and when the rights of a child to an adequate physical and emotional environment are trampled by acts or omissions on the part of the child’s natural parents, then the rights of the youth must be paramount over the desires of parents. See In re Gore (1977), 174 Mont. 321, 328, 570 P.2d 1110, 1114.

The District Court had to find that the child was abused, neglected, or dependent before awarding temporary custody of T.A. to DFS. Section 41-3-406, MCA. In awarding temporary custody, the ruling of the District Court is presumed correct and cannot be reversed by this Court unless there is (1) a mistake of law, or (2) lack of substantial, credible evidence to support the findings amounting to an abuse of discretion. Matter of S.P. (1990), 241 Mont. 190, 194, 786 P.2d 642, 644; Matter of R.T.L.P. (1989), 238 Mont. 384, 387, 777 P.2d 892, 894.

The natural parents claim that the court’s finding was a clear abuse of discretion because of the testimony of Dr. Ralph Yaney, a Billings psychiatrist, and Dr. Richard Agosto, a clinical psychologist.

Dr. Yaney made the statement that he “would prefer to see the child back with the mother and with the Family Services observing her from that point of view.” Dr. Yane/s contact with the mother consisted of four appointments, the last on January 12, 1989, and a twenty-minute talk with the mother immediately before the hearing on January 10, 1990. Dr. Yaney based his recommendation on the fact that the mother, at the time of the hearing, did not have strong indications of continued bipolar illness. Dr. Yaney conceded that he did not have enough information to “make a solid statement.” In addition, Dr. Yaney admitted that he had not had access to the mother’s history, could not make a personality diagnosis, had no knowledge of the mother’s abilities to parent T.A., and was not familiar with the extent of the mother’s abuse of alcohol and drugs.

Dr. Agosto testified that, although a reunification of T.A. and her mother at a future time was possible, at this time T.A. needed the stability of being in the same school with the same social group and required the assistance and care she was receiving from her foster family. Dr. Agosto advised that the mother would have to have counseling to “work on some of her own personal responsibility and involvement in improving her own situation and her situation with her children” before reunification with T.A. would be feasible.

Both Dr. Agosto and Dr. Yaney testified in favor of continued supervision of T.A. by DFS. Although Dr. Yaney said that he thought the child should be placed with her mother, he admitted that his recommendation was not based on all of the facts concerning the history of the mother. The natural parents failed to show any abuse of discretion on the part of the District Corut. Rather, the record shows years of abuse by the mother and a complete absence of involvement with the child by the father. The findings and conclusions of the District Corut show thoughtful consideration of not only constitutional authority, but statutory directives and judicial precedent. The record contains substantial credible evidence to support the decision of the District Court. See Matter of R.T.L.P., 238 Mont. at 389-90, 777 P.2d at 895.

Living under these circumstances, T.A. and her brothers are part of “a generation of lost children.” In T.A.’s case the hopeful indication in the record is that she has been placed in a loving home and that her efforts in school are improving. There is hope for T.A.

II.

The second issue is whether the standard of proof imposed on the State should be clear and convincing evidence when awarding temporary custody with DFS until the child reaches age eighteen.

The parents assert that the proper standard of proof for temporary custody with DFS until the child reaches age eighteen should be the clear and convincing standard required for termination of parental rights. In Matter of J.L.B. we concluded that in a case involving termination of parental rights, “the higher standard represented by the ‘clear and convincing’ test more adequately furthers the policy of family unity and more nearly approximates the previous approach of this Court than does the ‘preponderance of the evidence’ test.” In the Matter of J.L.B. (1979), 182 Mont. 100, 117, 594 P.2d 1127, 1137. The parents argue that the same standard of proof required of the State should be adopted when temporary custody is granted to DFS until the child reaches age eighteen, since “T.A. has, in effect, been taken away from her mother until adulthood.”

We examined the differences between termination of parental rights and grant of custody until the child reaches age eighteen in Matter of R.T.L.P., where we held that the same statutory criteria should not be required for “long-term custody until age eighteen” as for termination of parental rights. Matter of R.T.L.P., 238 Mont. at 390-92, 777 P.2d at 895-97. When custody of the child until age eighteen is awarded to a party other than the natural parent, continued contact with the parent may be allowed, and the parent has a right at some point in the future to petition the court for less restricted visitation or for physical custody of the child. The award of temporary custody until age eighteen gives the child stability and prevents repeated litigation over custody. Matter of R.T.L.P., 238 Mont. at 391, 777 P.2d at 896.

Since an order of temporary custody under § 41-3-406, MCA, does not unalterably deprive parents of their right to raise the child, we conclude that the higher burden of clear and convincing evidence need not be met for a district court to order temporary custody of the child with DFS until age eighteen. When the evidence demonstrates that a child is a “youth in need of care” who is “abused, neglected, or dependent” under § 41-3-404, a district court may order that the child be placed in the temporary legal custody of DFS until the child reaches majority if the court determines that such custody is in the child’s best interest. Matter of R.T.L.P., 238 Mont. at 389-90, 777 P.2d at 895.

The arrangement ordered by the court gives T.A. a chance for stability and consistency in her life and will also allow for the possibility of future contact between both natural parents and T.A. The court determined that T.A. was a youth in need of care, and that the arrangement that DFS made for the care of this child was in her best interest. Under these circumstances, the District Court possessed all the authority and requisite discretion to enter the order that is the subject of this appeal. We hold that the District Court did not abuse its discretion by awarding temporary custody of T.A. to the Department of Family Services.

The decision of the District Court is affirmed.

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


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    TED EVERTZ, Petitioner and Appellant, v. STATE OF MONTANA; MONTANA BOARD OF COMMISSIONERS; Department of State Lands; Cory B. Martinson and Irene B. Martinson, Respondents.
    No. 90-582.
    Submitted on briefs May 10, 1991.
    Decided July 2, 1991.
    249 Mont. 193.
    815 P.2d 135.

      James A. Patten, Patten Law Firm, Billings, for petitioner and appellant.
    Lon J. Maxwell, Dept, of State Lands, Helena, for respondents State of Montana.
    Jock O. Anderson, Gough, Shanahan, Johnson & Waterman, Helena, for respondents Martinson.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

Ted Evertz appeals the decision of the District Court of the First Judicial District for Lewis and Clark County, affirming an appraisal made by the Department of State Lands of improvements to a State Land lease formerly owned by Evertz. We affirm the District Court.

The issue on appeal is whether the District Court erred in accepting the Department’s appraisal over the values proffered by Evertz. Specifically, Evertz contends that: (1) the District Court’s decision cannot be supported by the record; (2) he was denied due process; and (3) the District Court used the wrong criteria in arriving at the value of his improvements.

Evertz is the former lessee of Department of State Lands Lease No. 4458, which consisted of approximately 1500 acres in Prairie County. Evertz’s lease was canceled due to mismanagement of the property, and the lease was transferred to Cory and Irene Martinson. Pursuant to § 77-6-302, MCA, Evertz sought compensation from the Martinsons for the improvements to the land. However, the parties could not agree on a value. In accordance with § 77-6-306, MCA, a panel of arbitrators was chosen to decide the value of the improvements. Each party selected one arbitrator. The arbitrators selected by the parties chose the third member of the panel.

The arbitrators entered their decision, assigning a value of $2800 to the improvements. Evertz’s valuation of the improvements was $53,132. Dissatisfied with the arbitrators’ valuation, the petitioner appealed the decision to the Department of State Lands, pursuant to § 77-6-306(3), MCA. The Department and its employee, Sharon Moore, reviewed the arbitrators’ findings. Ms. Moore prepared a 16 page document detailing each and every improvement to the lease claimed by Evertz, and indicated she agreed with the findings of the arbitrators. Relying on Moore’s findings, the Department thereafter affirmed the decision of the arbitrators.

Evertz petitioned the District Court for judicial review of the Department’s decision, pursuant to subsection (4) of § 77-6-306, MCA. The court found that “the decision of the arbitrators and supported by the investigation of Ms. Moore is more credible than Evertz’s assertions” and affirmed the decision of the Department of State Lands. The court then directed the successors in interest to Evertz, the Martinsons, to pay $2800 to Evertz. This appeal followed.

Evertz contends that the procedure followed at the agency level and upon judicial review denied him due process, and that he is entitled to a trial de novo before the District Court. Evertz states that the record before the lower court was compiled without any opportunity on his part to challenge or dispute the parties providing the information.

In cases where the parties cannot agree on the value of improvements, there is a procedure provided by statute to reach an equitable decision. Section 77-6-306, MCA, states that if a decision cannot be reached between the parties, both the former lessee and the current lessee are allowed to appoint an arbitrator. The arbitrators then appoint a third arbitrator. Together they assign a value to the improvements. This procedure was utilized by Evertz and the Martin-sons. Both parties were on equal footing, having personally selected the person to serve as their arbitrator. Both parties were free to provide information or documentation to the arbitrators. Evertz’s chosen arbitrator, who was presumably familiar with the property in question, participated in the panel’s joint decision setting the value of the improvements at $2800.

Upon request for agency review of the decision, the Department sent Sharon Moore into the field to inspect the tract and gather information. Moore was familiar with the property, having been there some 30 times in the prior six years. In the scope of her review, Moore sought the advice of many individuals knowledgeable of the leasehold and of appraising methods. She then compiled a report for the Department’s review.

The Department, upon reviewing all the evidence before it, including information supplied by Evertz, affirmed the panel’s decision. The petitioner then sought judicial review.

At that review, Evertz argued that the record should consist solely of the depositions of himself and Sharon Moore. He argued that the record proffered by the Department was compiled without his input, and that he was unable to cross-examine any of the people who had supplied the information. The Department argued, and the court agreed, that all testimony and documentation created by the arbitrators and the Department in reaching their valuation should be included in the record. The District Court gave Evertz the opportunity to cross-examine any or all of the witnesses that Sharon Moore relied on and submit their deposition testimony. However, he chose to present only the testimony of Ms. Moore and himself.

We conclude that the District Court properly considered all the documentation regarding the leasehold upon its review. There is no indication in § 77-6-306, MCA, that the judicial review is to be a trial de novo, as Evertz maintains. The lower court is in a better position to understand how a decision was reached if it is able to review all of the material used to reach that decision. As the District Court stated, Evertz had ample opportunity to provide the court with depositions of any of the people involved in the valuation process or mentioned in Sharon Moore’s report. He did not do so.

Evertz correctly notes that one of the primary purposes of judicial review is to assure that parties have been afforded due process. State ex rel. Bailey v. Grande, 154 Mont. 437, 445, 465 P.2d 334, 339 (1970). This Court stated in Great Northern Railway Co. v. Roosevelt County, 134 Mont. 355, 362, 332 P.2d 501, 505 (1958), that “ ‘[d]ue process of law' refers to and means certain fundamental rights which our system of jurisprudence has always recognized, that is, of requiring notice to be given and a hearing had before property may be taken....” Evertz had two opportunities to present evidence on his behalf, both at the Department review of the arbitration proceedings and at the judicial review. While § 77-6-306(3), MCA, does not provide for a hearing and an opportunity to examine witnesses as part of the Department review, he clearly had that opportunity on appeal to the District Court. He cannot now claim he was not afforded due process if he chose not to exercise his rights at either of those reviews. The petitioner has not offered credible evidence to show that he was denied an effective opportunity to be heard. Goldberg v. Kelly, 397 U.S. 254, 268, 90 S.Ct 1011, 25 L.Ed 287 (1970).

Evertz next contends that the District Court improperly received the opinion testimony of Moore, and that her opinion was based on hearsay.

While Sharon Moore was not a professional appraiser, the statute does not require the use of professional appraisers. The statute requires that the Department “shall examine the improvements” and decide whether the arbitrators’ award should be upheld. Sharon Moore was qualified to make that examination for two reasons: (1) She had extensive knowledge of the property in question, based on her supervisory authority over the State lease in question since 1983, and had visited the land some 30 times prior to her review; and (2) The primary focus of her inquiry was the property’s original cost and its current condition. Section 77-6-303, MCA. This inquiry did not require the expertise of a professional appraiser. The credibility and weight to be given to opinion testimony are matters for the district court’s determination in a non-jury proceeding. We conclude that no abuse of discretion resulted from the District Court’s reliance on Sharon Moore’s opinion in this case. City of Fairview v. Deming, 238 Mont. 496, 778 P.2d 876 (1989).

As to Evertz’s contention that part of Moore’s opinion was based upon hearsay, this Court held in State Highway Commission v. Greenfield, 145 Mont. 164, 169, 339 P.2d 989, 992, (1965), that an opinion on land valuation may be based upon hearsay, if it is found to be reliable.

Evertz next contends that the District Court did not properly consider the factors used by him in determining the value of his improvements. Specifically, Evertz states that in determining the value of the improvements the District Court should not be limited to the initial cost, but should include the replacement cost as well..

The statute regarding valuation, § 77-6-303(1), MCA, states in pertinent part:

“In determining the value of these improvements, consideration shall be given to their original cost, their present condition, their suitableness for the uses ordinarily made of the lands on which they are located....”

The statute refers to original cost and present condition as starting points for valuation. It is clear that the purpose is to compensate lessees for their expenses with some consideration of the extent to which the improvement has been depreciated.

Evertz’s methodology of valuation uses replacement cost. There is a great difference between the two methods, resulting, in this case, in two very different valuations. As noted by the Department, a former lessee, by using a replacement cost method and thereby assigningmarket prices to improvements on his lease could effectively “chill” the bidding process on a lease. It is not unlikely that the Martinsons, or any other potential lessee, would be reluctant to acquire the lease in this case if they were forced to pay Evertz’s replacement valuation of $54,000. The Department used the process called for in the statute, and the District Court did not err in accepting those values rather than the values offered by the petitioner.

We affirm the District Court.

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


author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RANDALL DEAN CRISP, Defendant and Appellant.
    No. 90-593.
    Submitted on briefs April 11, 1991.
    Decided July 2, 1991.
    249 Mont. 199.
    814 P.2d 981.

      Gary E. Wilcox, Billings, for defendant and appellant.
    Marc Racicot, Atty. Gen., Patricia J. Jordan, Asst. Atty. Gen., Helena, Dennis Paxinos, Yellowstone County Atty. and Charles Bradley, Deputy County Atty., Billings, for plaintiff and respondent.
   JUSTICE HUNT

delivered the opinion of the Court.

A jury impaneled in the Thirteenth Judicial District Court, Yellowstone County, found defendant and appellant, Randall Crisp, guilty of one count of criminal endangerment, a felony. Defendant appeals. We affirm.

The following issues are raised on appeal:

1. Is § 45-5-207, MCA, which defines criminal endangerment, unconstitutionally vague?

2. Did the District Court err in refusing defendant’s instruction defining “substantial risk of death”?

Defendant and Renae Yancey had lived together off and on for five years. On March 16, 1990, they were living in an area of Billings known as Lockwood. They spent that evening drinking with friends in Billings. Testimony at trial conflicted regarding the time the couple left the nightclub known as T-Birds, the route they took home, and, most importantly, the events that transpired during the ride home.

Yancey, who is 5 feet 3 inches tall and weighs 108 lbs., testified that on the way home defendant accused her of spending money on someone else, called her a tramp and a whore, grabbed her by the hair, beat her head between the seats, hit her in the shoulder and face, and threatened to kill her. Defendant drove past the turnoff to their trailer and stopped in a field. He opened the passenger door and yanked her out by her hair. When she landed on the ground on her hands and knees, defendant, who is 6 feet 4 inches tall and weighs between 205 and 210 lbs., proceeded to stomp on her and kick her with his cowboy boots until about 4 a.m., over three hours later. He kicked her in the head, neck, shoulder, arms, elbows, wrists, hands, back, chest, stomach, shins, buttocks, knees, and thighs — in short, every part of her body. She lost consciousness several times. He threatened to kill her numerous times.

She further testified that, after he quit beating her, defendant yanked her back into the Jeep, and took her to their trailer. There, he pulled her out of the car by her hair, pushed her up the steps, and continued to beat her. He followed her into the bathroom, where he began to draw a bath. He told her that she needed to get cleaned up to go to the hospital. When she went into the living room to get away from him, he grabbed a steak knife and threatened to kill her. She fell against a cupboard and crawled to the couch. He yelled at her for bleeding on the couch, then went to turn off the bath. She ran out of the front door and sought assistance from the neighbors.

Defendant took the stand on his own behalf and testified that he and Yancey began arguing on the way home. At one point, Yancey started kicking him. He struck back at her, slapping her on the arm, leg, shin, foot, and ribs. After he had resumed driving, he heard the door to the Jeep open and saw Yancey falling out of the vehicle. He grabbed her foot, but did not have the strength to pull her back into the Jeep. She fell out.

Law enforcement officers were called at approximately 4:30 a.m. The deputy who first responded to the call testified that Yancey was extremely afraid that defendant was going to kill her. Defendant was immediately arrested. He told the deputies that Yancey had jumped out of the Jeep while it was moving. At the Yellowstone County Detention Facility, he stated that any blood on his clothing would be hers.

Dr. Dennis Tek, the emergency room physician, testified that Yancey had suffered numerous bruises about the face, head, neck, chest, back, shoulders, thighs, and left shin. She had swelling over the left cheekbone and a two centimeter laceration on her scalp in the right superior temporal area.

Dr. Tek stated that being kicked about the head and body with cowboy boots could possibly cause protracted loss or impairment of a bodily member or organ, serious permanent disfigurement, or death. He testified that Yancey had received a concussion, which could have been a life-threatening condition if she had lost consciousness. In response to the State’s hypothetical on redirect, he answered that a two-hour beating that rendered the victim unconscious could place the victim in a substantial risk of serious bodily injury. He noted on recross-examination, however, that the injuries Yancey actually received from this incident did not pose a substantial risk.

The jury found defendant guilty of criminal endangerment, a felony, but acquitted him of resisting arrest, a misdemeanor. Defendant was sentenced to ten years in the Montana State Prison, with all ten suspended. This appeal followed.

I.

Is § 45-5-207, MCA, which defines criminal endangerment, unconstitutionally vague?

A defendant may challenge the constitutionality of a statute by arguing that the statute is so vague that it is void on its face or that it is vague as applied in his particular situation. City of Choteau v. Joslyn, 208 Mont. 499, 505, 678 P.2d 665, 668 (1984).

“A statute is void on its face if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.” State v. Woods, 221 Mont. 17, 22, 716 P.2d 624, 627 (1986); Joslyn, 208 Mont. at 505, 678 P.2d at 668. No person should be required to speculate as to whether his contemplated course of action may be subject to criminal penalties. State v. Conrad, 197 Mont. 406, 412, 643 P.2d 239, 243 (1982).

The statute challenged in this case defines the offense of felony criminal endangerment as follows:

“(1) A person who knowingly engages in conduct that creates a substantial risk of death or serious bodily injury to another commits the offense of criminal endangerment. This conduct includes but is not limited to knowingly placing in a tree, log, or any other wood any steel, iron, ceramic, or other substance for the purpose of damaging a saw or other wood harvesting, processing, or manufacturing equipment.
“(2) A person convicted of the offense of criminal endangerment shall be fined an amount not to exceed $50,000 or imprisoned in the state prison for a term not to exceed 10 years, or both. (Emphasis added.)” Section 45-5-207, MCA.

Defendant argues that the statute is vague on its face because it does not require a specific intent to cause the risk. In State v. Clawson, 239 Mont. 413, 421, 781 P.2d 267, 272 (1989), we indicated that a defendant may commit the offense of felony criminal endangerment by engaging in negligent or reckless conduct. A plain reading of the felony criminal endangerment statute, however, establishes that the State must prove that the defendant acted knowingly. If the State can establish only that the defendant acted negligently, the defendant may be convicted of violating § 45-5-208, MCA, misdemeanor negligent endangerment; he may not be convicted of violating § 45-5-207, MCA, felony criminal endangerment.

Knowingly is defined in § 45-2-101(33), MCA, as follows:

“[A] person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware of his conduct or that the circumstance exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offense when he is aware that it is highly probable that such result will be caused by his conduct. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence. Equivalent terms such as “knowing’ or ‘with knowledge’ have the same meaning.”

Accordingly, a defendant commits the crime of criminal endangerment when he is aware that there is a high probability that his conduct may cause a substantial risk of death or serious bodily injury to another. By incorporating the intent element of knowingly, a mental state that is adequately defined by statute, the legislature has given fair warning of the mental state required in order to be convicted of felony criminal endangerment. The use of the mental state of knowingly does not render a statute unconstitutionally vague. City of Billings v. Batten, 218 Mont. 64, 70, 705 P.2d 1120, 1124 (1985).

The defendant also takes issue with the phrase “substantial risk of death.” He argues that the term fails to define the type of conduct proscribed by the statute.

Montana statutes do not define the phrase substantial risk of death. The phrase is not so arcane or obscure, however, as to give insufficient notice of the conduct prohibited by the criminal endangerment statute. “Substantial” is defined as “not imaginary or illusory: real, true.” Webster’s Ninth New Collegiate Dictionary 1176 (1986). “Risk” is defined as “possibility of loss or injury: peril.” Webster’s at 1018. Thus, the term substantial risk of death, warns a person of ordinary intelligence that if he engages in conduct that could result in a real possibility of loss or injury — in this case, death — he could be found guilty of the crime of criminal endangerment. The fact that the phrase is not defined in the code does not make the statute vague on its face.

Defendant also argues that the term substantial risk of death is ambiguous because it fails to set forth the degree of the injuries that must be suffered by the victim. Defendant’s argument rests on the faulty premise that the victim’s injuries must pose a substantial risk of death. The statute, however, does not require that the victim suffer actual physical injury. See Campas v. Superior Court, 159 Ariz. 343, 345, 767 P.2d 230, 232 (1989) (interpreting Arizona’s reckless endangerment statute). It requires only that the defendant engage in conduct that creates a substantial risk of death or serious bodily injury. Defendant has not persuaded us that the statute is unconstitutionally vague on its face.

Nor is the statute unconstitutionally vague as applied to the facts of this case. Taking the facts in the light most favorable to the State, as we must on review, City of Whitefish v. O’Shaughnessy, 216 Mont. 433, 437, 704 P.2d 1021, 1024 (1985), defendant severely beat Renae Yancey for three hours. With cowboy boots, he kicked her in the head, the stomach, and almost every other part of her body. Surely, a person of ordinary intelligence would understand that such conduct created a substantial risk of death or serious bodily injury.

II.

Did the District Court err in refusing defendant’s instruction defining “substantial risk of death”?

At trial, the District Court refused to give defendant’s instruction defining substantial risk of death. The instruction read as follows:

“Substantial risk of death means something more than bodily injury. A substantial risk of death is posed by injuries which are graver and more serious. In order that substantial risk of death exist, it is not necessary that the person die; however, in order for a substantial risk of death to exist, it is necessary that a condition or injury exist that without treatment of which, the likelihood of death increases. A substantial risk of death is more than a risk of death.”

The instruction erroneously indicates that the victim must sustain an injury that poses a substantial risk of death. As we noted above, however, the statute does not require that the victim suffer any injuries. It requires only that the defendant engage in conduct that creates a substantial risk of death or serious bodily injury.

Furthermore, the jury need not be instructed on words or phrases of common understanding or meaning. State v. Gould, 216 Mont. 455, 477, 704 P.2d 20, 34 (1985); State v. Camitsch, 192 Mont. 124, 138, 626 P.2d 1250, 1258 (1981). As we stated earlier, substantial risk of death is composed of commonly understood words. The jury was perfectly capable of determining whether defendant’s conduct posed a substantial risk of death without an instruction defining the term.

The instruction clouded, rather than clarified, the issues for the jury. The District Court did not err in refusing it.

Affirmed.

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


author: CHIEF JUSTICE TURNAGE

text:
    In the Matter of the PARENTAL RIGHTS OF BABY GIRL W., A Minor Child.
    No. 90-630.
    Submitted on briefs May 10, 1991.
    Decided July 2, 1991.
    249 Mont. 206.
    814 P.2d 976.

      Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena, for appellant.
    William P. Driscoll and Michael S. Lattier, Gough, Shanahan, Johnson & Waterman, Randi Hood, Public Defender’s Office, Nicholas C. Jacques, Helena, for respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

R.T.C., the natural father of Baby Girl W., appeals an order of the First Judicial District, Lewis and Clark County, which terminated the parental rights of R.T.C. and D.M.W., the natural mother, to Baby Girl W., awarded custody of Baby Girl W. to Catholic Social Services for Montana, Inc. (CSS), and granted CSS the right to consent to Baby Girl W.’s adoption. We affirm.

R.T.C. presents the following three issues for review. We note that we restate the first issue:

1. Did the District Court err in denying R.T.C.’s August 14, 1989 motion to dismiss?

2. Did the District Court err when it determined that it had subject matter jurisdiction over this matter?

3. Did the District Court err when it determined that R.T.C. could not specifically determine who had the right to adopt his child when he terminated his parental rights?

On March 29, 1989, thirty-eight-year-old D.M.W. gave birth to Baby Girl W. in Great Falls, Montana. It is undisputed that R.T.C. is the natural father of Baby Girl W. D.M.W. and R.T.C., both residents of Wyoming, never married, but lived together intermittently from December of 1985 until February of 1989. They continue to live apart in Wyoming.

On March 30, 1989, D.M.W. executed a voluntary release of custody, consent to termination of parental rights for purposes of adoptive placement, and a waiver of right to notice and right to appear regarding Baby Girl W. In this document, D.M.W. transferred and assigned custodial rights of Baby Girl W. to CSS, a licensed adoption agency. Thereafter, CSS placed Baby Girl W. in a foster home in Helena, Montana.

On April 18, 1989, CSS petitioned the District Court for termination of D.M.W. and R.T.C.’s parental rights. In its petition, CSS also sought an award of custody and the right to consent to Baby Girl W.’s adoption. On April 18, 1989, the District Court notified R.T.C. of a May 15, 1989 hearing concerning the termination of his parental rights.

R.T.C. responded by letter to the District Court and to CSS’s counsel, and later appeared at the May 15, 1989 hearing to contest the termination of his parental rights. At this hearing, the District Court determined R.T.C. to be indigent, appointed him counsel, and continued the termination hearing to a later date.

On August 14,1989, R.T.C. moved the court to dismiss this action on the ground that CSS did not have standing. The District Court dismissed R.T.C.’s motion to dismiss in an order dated September 26, 1989.

On April 20,1990, R.T.C. moved the court to dismiss this action on the ground that the court lacked subject matter jurisdiction under § 40-4-211, MCA. The District Court determined in an order dated July 13, 1990, that R.T.C.’s reliance on § 40-4-211, MCA, was misplaced; the court held that it had subject matter jurisdiction of this action under §§ 41-3-101 to 1143, MCA, based on the presence of Baby Girl W. in Montana. The District Court further held that even if § 40-4-211, MCA, applied, the court still had subject matter jurisdiction of this action because Montana is the “home state” of Baby Girl W.

On October 15, 1990, R.T.C. executed a voluntaiy release of custody, consent to termination of parental rights for purposes of adoptive placement, and waiver of right to notice and right to appear. In this document, R.T.C. stated in part:

“2. I hereby voluntarily relinquish, transfer and assign to [the foster parents] ... all of the custody rights which I now have to the minor child because I believe the transfer and assignment made herein is in the best interests of the minor child with respect to her physical, mental, social, and economic well being.
“5.1 do hereby voluntarily consent to the termination of any and all of my parental rights in my child forever; and I agree to the adoption of my minor child by [the foster parents] because such adoptive placement is in the best interests of my minor child with respect to her physical, mental, social and economic well being.
“6. I do hereby declare that this termination of parental rights, however, does not eliminate my right of visitation to my minor child and my right to have contact with the same. It is my understanding that [the foster parents] have consented to keeping me informed about my daughter and to allow me visitation as deemed reasonable between them and myself. However, I do expressly agree that I am not entitled to have custody of my daughter and specifically agree not to take my daughter outside the jurisdiction of the State of Montana without the written consent of [the foster parents].”

On October 17, 1990, the District Court heard argument concerning CSS’s petition to, inter alia, terminate parental rights of Baby Girl W. It is undisputed that R.T.C. received notice of this hearing. R.T.C. did not attend this hearing, but his attorney presented to the court his voluntary release of custody, consent to termination of parental rights for purposes of adoptive placement, and waiver of right to notice and right to appear. Following discussion regarding this document, the District Court judge stated:

“This signed document that he [R.T.C.] has provided this Court among a whole lot of other things he has stated that he is the child’s father ... that he voluntarily relinquishes all of his parental rights, he believes that that [sic] is in the best interest of his child.”

Later R.T.C.’s counsel stated:

‘Your honor, I guess before we proceed here I think the Court before we took a recess made a finding that [R.T.C.] has acknowledged that the best interest of the child are [sic] not going to be served by the child being with him [R.T.C.]. Therefore I would have an objection to any evidence about or concerning [R.T.C.]. I don’t think that is relevant at this point.”

The District Court judge agreed and disallowed any evidence regarding R.T.C., even though CSS was prepared to present witness testimony regarding R.T.C.’s lack of fitness as a parent. The District Court stated “Well, that testimony, I don’t believe, is necessary at this particular hearing since [R.T.C.] has stated that he does not want custody of the child, that it is in the best interest of the child that he relinquish his parental rights of the child.”

In an order dated October 19,1990, the District Court terminated R.T.C. and D.M.W.’s parental rights, awarded custody of Baby Girl W. to CSS, and granted CSS the right to consent to Baby Girl W.’s adoption. From this order, R.T.C. appeals.

1. Did the District Corut err in denying R.T.C.’s August 14, 1989 motion to dismiss?

R.T.C. argues that the District Court erred when it denied his August 14,1989 motion to dismiss CSS’s petition based on the ground that CSS had no standing. R.T.C. argues that CSS needed and lacked R.T.C.’s consent under § 40-8-lll(l)(a), MCA, before it could petition the cotut for Baby Girl W.’s adoption.

R.T.C.’s argument fails as it reflects a misunderstanding of the nature of CSS’s petition. CSS’s petition states:

“NOW, THEREFORE, Petitioner [CSS] prays this court [to] issue an order as follows:
“1. Terminating the parental rights of the child’s natural mother ... and the child’s natural father. ...
“2. Awarding permanent, legal custody of the child to Catholic Social Services for Montana, Inc., a licensed adoption agency for the state of Montana.
“3. Authorizing Catholic Social Services for Montana, Inc., to appear in any court where adoption proceedings are pending and consent to the adoption of Baby Girl [W.].”

In its September 26, 1989 order, the District Court properly held that CSS’s petition did not pray for Baby Girl W.’s adoption. Instead, the District Court held that the petition, inter alia, prayed for the termination of R.T.C.’s parental rights regarding Baby Girl W, which is a necessary procedural step before an adoption proceeding can be initiated. The District Court properly stated that CSS did not need R.T.C.’s consent to petition the court for the termination of his parental rights. Therefore, the District Court properly held that § 40-8-lll(l)(a), MCA, a statute requiring parental consent prior to a child’s adoption in most instances, does not apply to these facts. See also Brost v. Glasgow (1982), 200 Mont. 194, 202-03, 651 P.2d 32, 36 (a discussion regarding the legislative history of § 40-8-111, MCA, which indicates that terminating parental rights should be determined in separate proceedings from adoption proceedings).

As stated by the District Court, the applicable statute, § 40-6-125, MCA, provides:

“(1) If the mother of a child born out of wedlock proposes to relinquish the child for adoption and the relinquishment or consent of the birth father cannot be obtained, the child may not be placed for adoption until the parental rights of the father are terminated by the court as provided in this part, by the court pursuant to Title 41, chapter 3, or by a court of competent jurisdiction in another state or county.
“(2) Pending the termination or other disposition of the rights of the father of the child born out of wedlock, the mother may execute a relinquishment terminating her rights to the child. If the mother relinquishes the child, the agency of the state of Montana or the licensed adoption agency to whom the child is relinquished may file a petition under this part or a petition of dependency or neglect pursuant to Title 41, chapter 3. Pending disposition of the petition, the court may enter an order authorizing temporary care of the child.”

See also §§ 40-6-128 and -130, MCA.

Here, it is undisputed that Baby Girl W. was born out of wedlock. D.M.W., the child’s mother executed a voluntary relinquishment of custody to CSS, and she voluntarily consented to termination of her parental rights. In this document, D.M.W. expressly authorized CSS to arrange for and complete the adoptive placement of Baby Girl W. by such persons as selected by CSS. CSS then properly proceeded by petitioning the District Court to 1) terminate the parental rights of R.T.C. and D.M.W. to Baby Girl W., 2) award custody of Baby Girl W. to CSS, and 3) grant CSS the exclusive right to consent to Baby Girl W.’s adoption before it proceeded with the commencement of an adoption proceeding. We therefore hold that the District Court committed no error when it dismissed R.T.C.’s motion to dismiss on the ground that CSS had no standing.

2. Did the District Court err when it determined that it had subject matter jurisdiction over this matter?

Inits order dismissing R.T.C.’s April 20,1990 motion to dismiss, the District Court held that it had subject matter jurisdiction of this matter under the dependency and neglect statutes, §§ 41-3-101 to -1143, MCA. Under these statutes, subject matter jurisdiction is granted to the District Court if the child is present in Montana. Section 41-3-103(l)(a), MCA. R.T.C. argues that the District Court improperly applied the abuse and neglect statutes to these facts. Instead, R.T.C. argues that § 40-4-211, MCA, a jurisdictional statute involving custody matters, applies. Under § 40-4-211, MCA, R.T.C. argues that because he and D.M.W. are Wyoming residents, Montana is not Baby Girl W.’s “home state” and the District Court does not have subject matter jurisdiction.

This action was filed under the provisions of §§ 40-6-125 to - 135, MCA. Unfortunately, these statutes provide no specific guidance for jurisdiction where one or more of the parties reside outside of Montana. We, however, agree with the District Court that it had subject matter jurisdiction of this matter under the abuse and neglect statutes.

CSS petitioned for, inter alia, the termination of parental rights regarding Baby Girl W. As the District Court states:

“That action [termination of parental rights] necessarily proceeds as one to first determine whether the child is a youth in need of care under [Title 41, Chapter 3, MCA]; in the event such a determination is made by the court, then a specific procedure to terminate parental rights must be followed. Sections 41-3-601 to 41-3-612, MCA. Jurisdiction under this Chapter is conferred under Section 41-3-103, MCA, which states in part: ‘In all matters arising under this chapter, the youth court shall have concurrent jurisdiction with the district court over ... all youths who are within the state of Montana for any purpose.’
“This same chapter governs a child whose parents have voluntarily relinquished custody of the child and whose legal custody has been transferred to a licensed agency. Section 41-3-102(10)(f), MCA. It also includes the Court’s authority to transfer legal custody to a child-placing agency. Section 41-3-406(3)(b), MCA.
“Since the present petition alleges that the child has been voluntarily relinquished to a licensed agency and that the father’s parental rights should be terminated, the action is governed by the Dependency and Neglect Statutes, and jurisdiction is established by the mere fact that the child is in Montana, in accordance with Section 41-3-103, MCA.”

We agree with the District Court’s reasoning and hold that the Montana’s dependency and neglect statutes, §§ 41-3-101 to - 1143, MCA, apply to these facts. Accordingly, the District Court has subject matter jurisdiction over this matter based solely on the presence of Baby Girl W. in Montana. In passing, we wish to note that we agree with the District Court that even if § 40-4-211, MCA, applied, the District Court would still have subject matter jurisdiction of this matter because 1) Montana is the “home state” of Baby Girl W. under § 40-4-211(l)(a)(i), MCA, and 2) it is in Baby Girl W.’s best interest that the District Court assume jurisdiction of this matter under § 40-4-211(l)(b), MCA.

3. Did the District Court err when it determined that R.T.C. could not specifically determine who had the right to adopt his child when he terminated his parental rights?

R.T.C. executed a voluntary release of custody, consent to termination of parental rights for purposes of adoptive placement, and waiver of right to notice and right to appear (release of custody) on October 15,1990. In his release of custody, R.T.C. relinquished his parental rights to Baby Girl W. and agreed to her adoption by her foster parents.

On October 17, 1990, the District Court conducted a hearing regarding CSS’s April 18, 1989 petition. R.T.C. did not attend the hearing. R.T.C.’s counsel presented R.T.C.’s release of custody to the court. Following discussion regarding R.T.C.’s release of custody, R.T.C.’s counsel objected to, and the court disallowed, the admittance of any testimony regarding R.T.C. in light of R.T.C.’s release of custody, where he stated that it was in the child’s best interest that he relinquish his parental rights. On October 19, 1990, the District Court terminated the parental rights of R.T.C. and D.M.W. to Baby Girl W, awarded custody of Baby Girl W. to CSS, and granted CSS the right to consent to Baby Girl W.’s adoption.

R.T.C. argues that his release of custody was limited to Baby Girl W.’s adoption by the foster parents only. R.T.C.’s argument lacks merit. R.T.C. failed to appear at the October 17,1990 hearing regarding the termination of his parental rights, and therefore his parental rights were subject to termination under §§ 40-6-128(6) and - 129, MCA. Additionally, R.T.C. executed a release of custody, which also subjected bis parental rights to termination under § 40-6-129(l)(a), MCA. Under these facts, R.T.C. has no authority to direct the placement of his child.

Furthermore, the District Court awarded custody of Baby Girl W. to CSS, a duly qualified adoption agency, holding that this action was in Baby Girl W.’s best interest. There was nothing erroneous about the District Court’s decision. In conclusion, we hold that the District Court committed no error when it terminated the parental rights of R.T.C. and D.M.W. to Baby Girl W, awarded custody of Baby Girl W. to CSS, and granted CSS the authority to consent to Baby Girl W.’s adoption.

Affirmed.

JUSTICES WEBER, HUNT, HARRISON and McDONOUGH concur.


author: JUSTICE McDONOUGH

text:
    MARTHA TAYLOR, Plaintiff and Appellant, v. JOHN AUSTIN KOSLOSKY, Defendant and Respondent.
    No. 91-064.
    Submitted on briefs May 23, 1991.
    Decided July 2, 1991.
    249 Mont. 215.
    814 P.2d 985.

      Thomas J. Murphy, Conklin, Nybo, LeVeque & Murphy, Great Falls, for plaintiff and appellant.
    Joseph R. Marra, Marra, Wenz, Johnson & Hopkins, Great Falls, for defendant and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

The plaintiff Martha Taylor appeals the order of the Eighth Judicial District Court, Cascade County, granting summary judgment to the defendant John Koslosky. The court determined that Taylor failed to raise a genuine issue of material fact and that there was no evidence of actual or constructive fraud, undue influence or breach of fiduciary responsibility. We affirm.

Taylor raises the following issue on appeal:

Did the District Court err in determining that there was no genuine issue of material fact regarding whether the decedent Oswald Koslosky executed trust documents disinheriting his daughter Martha Taylor as a result of undue influence by his son?

On September 25,1984, Oswald Koslosky created a trust whereby his four children were to receive equal shares of the trust corpus existing at the time of his death. Oswald Koslosky died testate in Great Falls, Montana in July of 1987 at the age of 85. He was survived in part by four adult children: Marjorie Wolford, of Klamath Falls, Oregon; Mary Lawrence of Little Falls, Minnesota; Martha Taylor of North Home, Minnesota, plaintiff here; and John Koslosky of Great Falls, Montana, the defendant.

Prior to his death, the decedent contemporaneously executed a will and an amendment to the trust agreement on September 2, 1986. The will is a pour-over will leaving all of Oswald’s property to be disposed in accordance with the amended trust. The amended trust document provides:

“The donor has four children, namely, MARJORIE LOUISE WOLFORD, MARY FRANCIS LAWRENCE, MARTHA JEAN TAYLOR, and JOHN AUSTIN KOSLOSKY; it is understood and agreed, however, that MARTHA JEAN TAYLOR shall not be a ‘child’ or one of the ‘children’ for purposes of benefiting or becoming a beneficiary under this Trust Agreement. The donor’s purpose and intent in excluding MARTHA JEAN TAYLOR from any benefits under this trust result from the receipt or retention by his daughter of other property of the donor during the donor’s lifetime which shall be deemed to be in lieu of any right, title, interest, benefits or distributions under this Trust Agreement.”

Thus, the new will and trust amendment disinherited his daughter, Martha Taylor, the plaintiff. The other three children remain as beneficiaries under the trust.

The plaintiff filed a complaint on September 2,1988 to declare the trust amendment invalid, alleging three counts: breach of fiduciary responsibility and undue influence, actual fraud and constructive fraud. Taylor alleged that due to the decedent’s suffering from Parkinson’s disease, he was not competent to execute the changes to the trust agreement. She further alleged that because of animosity between her and the defendant, the defendant breached his duties as the decedent’s fiduciary and exercised undue influence over the father, causing her to be disinherited. The defendant moved for summary judgment and the District Court granted the motion on December 4th, 1990. From this judgment Taylor now appeals, alleging the District Court erred in determining that there were no genuine issues of material fact regarding whether the decedent executed the trust documents as a result of undue influence by his son.

Summary judgment is governed by Rule 56(c) of the Montana Rifles of Civil Procedure, which provides in pertinent part:

“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Emphasis added.)”

This Court has held that in order for summary judgment to issue, the movant must show there is no genuine issue as to all facts considered material in light of the substantive principles entitling the movant to a judgment as a matter of law. Frigon v. Morrison-Maierle, Inc. (1988), 233 Mont. 113, 117, 760 P.2d 57, 60; Cerek v. Albertson’s, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 511. If the movant meets this burden, the burden then shifts to the non-moving party to demonstrate a genuine issue of a material fact. Frigon, 760 P.2d at 60. “Mere denial or speculation will not suffice, the non-moving party must show facts sufficient to raise a genuine issue.” Frigon, 760 P.2d at 60; Gamble Robinson Co. v. Carousel Properties (1984), 212 Mont. 305, 312, 688 P.2d 283, 287.

In Montana, undue influence is defined by statute. The statute provides:

“28-2-407. What constitutes undue influence. Undue influence consists in:
“(1) the use by one in whom a confidence is reposed by another or who holds a real or apparent authority over him of such confidence or authority for the purpose of obtaining an unfair advantage over him;
“(2) taking an unfair advantage of another’s weakness of mind; or
“(3) taking a grossly oppressive and -unfair advantage of another’s necessities or distress.”

In construing this definition, Montana courts consider the same criteria in determining whether a donor making a gift or a testator executing a will was subject to undue influence at the time the gift was made or the will executed. Cameron v. Cameron (1978), 179 Mont. 219, 229, 587 P.2d 939, 945. The criteria are well-settled in Montana case law. They are:

“(1) Confidential relationship of the person attempting to influence the testator;
“(2) The physical condition of the testator as it affects his ability to withstand influence;
“(3) The mental condition of the testator as it affects his ability to withstand the influence;
“(4) The unnaturalness of the disposition as it relates to showing an unbalanced mind or a mind easily susceptible to undue influence, and
“(5) The demands and importunities as they may affect the particular donor taking into consideration the time, the place, and all the surrounding circumstances.”

Matter of Estate of Luger (Mont. 1990), [244 Mont. 301,] 797 P.2d 229, 231, 47 St.Rep. 1642, 1644; Christensen v. Britton (1989) 240 Mont. 393, 398, 784 P.2d 908, 911; Blackmer v. Blackmer (1974), 165 Mont. 69, 75, 525 P.2d 559, 562. To prove an assertion of undue influence one must satisfy each of these criteria. Christensen, 784 P.2d at 911.

This Court recently held that summary judgment is proper in a case where the party contesting a will failed to demonstrate a material fact issue regarding the naturalness of the disposition. In Matter of Estate of Luger, supra, 797 P.2d at 231, the decedent devised his entire estate equally between Shodair Children’s Homes and Intermountain Deaconess Children’s Home in his 1980 will. Decedent’s charitable intent in this will was consistent with his intent in a previous 1948 will and an unsigned copy of a 1976 will with the exception of adding Deaconess as a beneficiary in the 1980 will. In addition, the decedent specifically stated that his nieces and nephews were to receive nothing from his estate because of previous inheritances from the decedent’s deceased parents’ estates. Anephew contested the will on the ground of undue influence. Examining the criteria set forth above, we held that the nephew failed to demonstrate a material fact issue regarding the naturalness of the disposition, huger, 797 P.2d at 231.

In this case, Taylor has also failed to meet her burden of showing disputed material facts regarding whether the disposition was unnatural. In her deposition, the plaintiff did not present any facts to controvert that the decedent’s will accomplished exactly what the decedent intended it to do. Taylor merely alleges that because her brother was acting as the decedent’s fiduciary, and that because of alleged animosity between her and her brother, he exercised undue influence over the decedent to have her cut out of the will. This is insufficient:

“Mere general influence in the affairs of life or method of living at the time of the execution of a will by a testator is not proof of undue influence in the contemplation of our statute, and, in order to establish it as a fact, it must be shown by proof that it was exercised upon the mind of the testator directly to procure the execution of the will. Mere suspicion that undue influence may have or could have been brought to bear is not sufficient. It is never presumed, and must be proven like any other fact. (Emphasis added.)”

Blackmer, 525 P.2d at 563. In Blackmer, this Court reversed a trial court’s finding of undue influence. This case is an appeal from summary judgment. When a motion for summary judgment is made and supported an adverse party may not rest upon the mere allegations or denials of his pleading, but his response must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate shall be entered against him. Rule 56(e), M.R.Civ.P. Thus, on a motion for summary judgment

“the party opposing the motion must present facts in proper form— conclusions of law will not suffice; and the opposing party’s facts must be material and of a substantial nature, not fanciful, frivolous, gauzy, nor merely suspicious.
“The trial court ... has no duty to anticipate possible proof that might be offered under the pleadings. Asking for such foresight demands clairvoyance not possessed by even a trial judge.”

Silloway v. Jorgenson (1965), 146 Mont. 307, 310, 406 P.2d 167, 169. Taylor introduced into evidence nurses’ reports indicating that the decedent was confused and disoriented at times surrounding the execution of the will and trust amendment. However, with respect to whether the decedent was competent to execute the trust amendment or was subject to undue influence from his son, these notes are speculative at best. The deposition testimony of the attorneys who worked on the amendment indicates that the decedent was competent at the time the trust amendment was executed. Furthermore, Taylor also offered the affidavit of her own counsel regarding a telephone conversation counsel had with the decedent’s treating physician. In the transcription of the phone call the physician indicated that he believed that the decedent was competent to execute the trust amendment and that he saw nothing to indicate that he was unduly influenced by anyone.

The testator’s intent in excluding Martha was clear in the trust instrument: “The donor’s purpose and intent in excluding MARTHA JEAN TAYLOR from any benefits under this trust result from the receipt or retention by his daughter of other property of the donor during the donor’s lifetime which shall be deemed to be in lieu of any right, title, interest, benefits or distributions under this Trust Agreement.” Both attorneys who worked on the trust amendment, the decedent’s doctor, who was a witness to decedent’s execution of the will, and three of Oswald’s children testified that the decedent was of sound mind and knew why he wanted to exclude the plaintiff. The record indicates that Martha and her ex-husband had borrowed significant sums of money during the decedent’s lifetime which they failed to pay back, and the decedent felt that they had already received their share of his property during his lifetime.

In light of the uncontroverted evidence in the record, there was no question of material fact regarding whether the disposition was natural, the result of undue influence, or that the decedent was incompetent to execute the trust amendment and will.

The order of the District Court is

AFFIRMED.

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


text:
    FIRST SECURITY BANK OF BOZEMAN, Plaintiff and Respondent, v. MILTON E. JONES and HELEN C. JONES, Defendants and Appellants,
    No. 91-136.
    Submitted on briefs June 6, 1991.
    Decided July 2, 1991.
    249 Mont. 221.
    814 P.2d 988.

      Gerald B. Murphy and Thomas E. Smith, Moulton, Bellingham, Longo & Mather, P.C., Billings, for defendants and appellants.
    Calvin L. Braaksma, Landoe, Brown, Planalp & Kommers, P.C., Bozeman, for plaintiff and respondent.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

Milton and Helen Jones appeal from the order of the District Court for the Eleventh Judicial District in Flathead County, granting First Security Bank of Bozeman summary judgment in a foreclosure action. We affirm the District Court.

The issue raised by the defendants is whether the doctrines of merger or res judicata, or public policy prevent the Bank from obtaining a judgment in Flathead County after already obtaining a judgment in Gallatin County on the same promissory note.

This case has been before this Court previously. In First Security Bank of Bozeman v. Jones, 243 Mont. 301, 794 P.2d 679 (1990), (Jones I), we considered essentially the same facts. We will briefly summarize the proceedings in Jones I.

The defendants executed a promissory note to the Bank and pledged five parcels of property as security. Four of the parcels were located in Gallatin County and one was located in Flathead County. The defendants defaulted on the promissory note, and the Bank instituted this foreclosure action. The Bank filed two complaints— one in Flathead County and one in Gallatin County. Each complaint made reference to the other, and it was made clear that the Bank sought a single integrated foreclosure proceeding and a single judgment.

The defendants raised as affirmative defenses Montana’s one-action rule, waiver, and estoppel. The District Court of Gallatin County granted the Bank’s motion for summary judgment, and the defendants appealed. On appeal, this Court determined that the granting of summary judgment was proper. We found that the Bank did not violate the purpose of § 71-1-222, MCA, (the one-action rule) by filing simultaneous foreclosure proceedings in both Gallatin and Flathead Counties, and stated that the Bank was attempting to comply with § 25-2-123(l)(d), MCA, which determines the proper place of trial for foreclosure actions.

On November 6, 1990, the Bank renewed its motion for summary judgment in Flathead County District Court. The defendants opposed the motion, arguing the doctrines of merger and res judicata prohibited the bank from acquiring a second judgment on the same promissory note. On January 28,1991, the Flathead County District Court granted the Bank summary judgment. The defendants did not seek a stay, and both the Flathead and Gallatin properties have since been purchased by the Bank. The defendants appeal the summary judgment entered in the Flathead County District Court.

The defendants state that the doctrine of merger prohibits the Bank from acquiring a judgment in Flathead County on the same promissory note that was the basis for a judgment in Gallatin County. They contend that the note was merged into the judgment in Gallatin County, and is thereby extinguished. They cite Lepper v. Jackson, 102 Mont. 259, 57 P.2d 768 (1936), in which this Court stated:

“When the statute is followed and the court has secured jurisdiction over the person of the debtor, or debtors, and the property, the debt is merged in the judgment and decree rendered, and though the property may not bring [a sum] sufficient to satisfy the judgment, no further action can be brought on the debt evidenced by the note.”

The defendants contend that the merger doctrine is recognized by many of Montana’s judicial districts, which have adopted rules or policies requiring the creditor to surrender the original promissory note at the time judgment is entered. They argue that a final judgment was rendered upon the promissory note by the Gallatin County District Court, and that the subsequent Flathead County District Court judgment, relying on the same note, violates the merger doctrine.

The purpose of the merger doctrine is to compel the creditor who has taken security for his debt to exhaust the security before resorting to the general assets of the debtor. Lepper, 102 Mont. at 268, 57 P.2d 768. That is what the Bank attempted to do in this case. The Bank strove to pursue its security in both Gallatin and Flathead Counties at the same time. By integrating the proceedings in the two counties, the Bank sought to exhaust its security in one action, thereby avoiding multiple actions. As the Court noted in Jones I, the Gallatin and Flathead actions are not sequential actions, but are, in essence, one action to seek a single recovery by means of a single, integrated, coordinated foreclosure. The Bank did not violate the merger doctrine, but in fact followed its strictures by exhausting all security in one coordinated, integrated effort.

The defendants next contend that the doctrine of res judicata precludes the Bank from obtaining a second judgment on the same promissory note.

This Court stated in Brault v. Smith, 209 Mont. 21, 25, 679 P.2d 236, 238 (1984) “[t]he basic proposition embraced by the doctrine of res judicata has always remained the same: a party should not be able to relitigate a matter he or she has already had an opportunity to litigate.” However, as noted by the District Court and this Court in Jones I, the Bank is not relitigating the issue or seeking an additional judgment, but a judgment on the same obligation by means of an integrated proceeding.

The District Court found, and we agree, that:

“This Judgment is not in addition to the Judgment in Cause No. 89-298, Montana Eighteenth Judicial District Court, Gallatin County, but represents Judgment on the same obligation as described therein, it being of record in Flathead County to allow foreclosure of Flathead County real property ...”

We conclude there is no merit to the defendants’ claim that the doctrine of res judicata is a bar to a judgment in the Flathead County District Court.

Finally, the defendants contend that a multiple judgment on a single promissory note would be contrary to public policy. However, we have already determined in Jones I that the foreclosure proceedings in the two counties constituted an integrated action and a single deficiency judgment thereafter. The Bank did not attempt to circumvent the one-action rule, and therefore, did not violate public policy.

We conclude that this case is a proper one for summary judgment, there being no genuine dispute over material fact. We affirm the judgment of the District Court.

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


text:
    BRUCE PARKER, Petitioner and Appellant, v. GLACIER PARK, INCORPORATED and NATIONAL UNION FIRE INSURANCE COMPANY, Employer/Insurer, Respondent and Cross-Appellant.
    No. 91-030.
    Submitted June 6, 1991.
    Decided July 26, 1991.
    Rehearing Denied Aug. 21, 1991.
    249 Mont. 225.
    815 P.2d 583.

      Thomas J. Murphy, Conklin, Nybo, LeVeque & Murphy, Great Falls, for petitioner and appellant.
    Patrick G. Frank, Worden, Thane & Haines, Missoula, for employer/insurer, respondent and cross-appellant.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Bruce Parker appeals from a judgment rendered by the Workers’ Compensation Court finding him permanently partially disabled. The employer, Glacier Park, Inc., and its insurer National Union Fire Insurance Company cross-appeal from the Workers’ Compensation Court’s finding that Mr. Parker’s injuries were sustained in the course and scope of his employment. We affirm in part and reverse in part.

The only issues we find necessary for review are:

1. Whether Mr. Parker’s automobile accident occurred within the course and scope of his employment with Glacier Park;

2. Whether the evidence supports the Workers’ Compensation Court’s conclusion that Mr. Parker is permanently partially disabled as opposed to permanently totally disabled.

Bruce Parker was first hired by Glacier Park, Inc. as a roving relief night auditor in 1981. Eventually he became the hotel manager at the Rising Sun Motor Inn. On September 1,1986, the day preceding his accident, Mr. Parker was preparing to close the Rising Sun for the season. As he worked he noticed Troy Miller, Executive Chef of Lake McDonald Lodge and Bob Krohne, Executive Chef at the Rising Sun. Apparently, these two individuals were discussing the transfer of food products from Rising Sun to Lake McDonald Lodge and other locations remaining open longer than Rising Sun. Usually Mr. Parker would be involved in such discussions; however on this particular evening he was too busy fulfilling other tasks.

Later that evening Mr. Parker began loading his car with lettuce and potatoes which he intended to take to St. Mary’s Lodge. Apparently Rising Sun had borrowed lettuce and potatoes from St. Mary’s earlier that week. It was Mr. Parker’s intention to return the borrowed food that evening.

Strictly speaking, these types of food transfers were prohibited by Glacier Park, Inc. These regulations were generally not followed however. Informal food exchanges took place throughout the season when the need arose. When such exchanges occurred it was Mr. Parker’s responsibility to see that all loans were repaid.

As he was loading his car to return the borrowed food, Mr. Parker once again encountered Mr. Krohne and Mr. Miller who informed him that they were going to St. Mary’s that evening to have a beer. They invited Bruce Parker to join them and he decided to meet them to discuss the food transfers that had taken place earlier that day. In addition to returning the borrowed food to St. Mary’s, Mr. Parker also intended to pick up some change that would be needed for the next day’s business.

Mr. Parker left the Rising Sun Inn for St. Mary’s where he returned the food. After returning the food, he went to the front desk and obtained the change. He met Krohne and Miller, and had a couple of beers. According to all who were present, the conversation centered around business activities and the nearly completed season. Parker described the conversation as a general business discussion as to what went well and what did not go well during the season. Although general in nature, such discussions were important to Parker because he was responsible for making suggestions to management as to possible improvements based on the past year’s performance.

At approximately 12:00 a.m. Mr. Parker left St. Mary’s to return to the Rising Sun. Although he had consumed several beers and at least one shot of liquor, Parker maintains that he intended to go back to work so that he could count out the next morning’s banks. He also wanted to speak to the night auditor regarding the final night’s audit.

On his returning to the Rising Sun, Mr. Parker was involved in a single car accident which rendered him severely and permanently injured. He suffered a spinal cord injury resulting in complete paralysis from the waist down. In addition, Mr. Parker suffered a serious closed head injury. As a result of this injury he is plagued by severe mental deficits and he is noted to have suffered loss of memory as well as diminishment in abilities of reasoning, attention, problem solving, comprehension and stress management.

Mr. Parker’s injuries have caused further problems as well. At times he suffers from severe depression and at one time he attempted suicide. He has attempted to live on his own. However at time of trial he had failed in such an endeavor on at least two occasions and was, at that time, living with his parents in Washburn, Maine.

Following trial, the Workers’ Compensation Court determined that Mr. Parker had suffered an injury in the course and scope of his employment as required by § 39-71-407, MCA. The court further determined that Mr. Parker was permanently partially disabled as a result of these injuries. From this determination both parties appeal.

The first issue is whether Mr. Parker’s injuries “arose out of and in the course of his employment.” Section 39-71-407, MCA. In order for this Court to hold that Parker was properly awarded workers’ compensation benefits, it must be shown that he sustained (1) an injury that (2) arose out of and (3) in the course of his employment. Wiggins v. Industrial Accident Board (1918), 54 Mont. 335, 170 P. 9. It is obvious that the injuries sustained by Parker satisfy the definition of injury as set forth in § 39-71-119, MCA. Therefore, we need only determine whether Parker has satisfied the “arising out of’ and “in the course of’ requirements.

Analysis of the “arising out of’ requirement presupposes the existence of causal connection between the injury and employment. Landeen v. Toole County Refining Co. (1929), 85 Mont. 41, 277 P. 615. In general, if the claimant’s employment is one of the contributing causes which placed him in the path of harm and without which the injury would not have followed, the claimant is entitled to compensation. Rathbun v. Taber Tank Lines Inc. (1955), 129 Mont. 121, 183 P.2d 966.

In the case now before us, Bruce Parker had three reasons for driving to St. Mary’s on the night of September 1, 1986. First, he intended to return food that had been borrowed from St. Mary’s. Second, he needed to obtain small bills for the operating tills of Rising Sun; and third he wanted to meet with his employees to discuss the evening’s food transfers. Each of these reasons is job related. On his return from performing these tasks Bruce Parker was injured.

Glacier Park, Inc. has attempted to cast doubt on both the necessity of and the actual completion of these tasks. Its arguments in this regard have no merit. There is no evidence that Bruce Parker has testified untruthfully about his purpose in traveling to St. Mary’s. Furthermore, whether these tasks were absolutely necessary to the operations of the Rising Sim is irrelevant. Bruce Parker was the operating manager and had the discretion to complete these tasks. He deemed their completion to be necessary before the next business day and they were therefore part of his job requirements. Accordingly, the “arising out of’ requirement has been met.

Glacier Park, Inc. argues, however, that Parker’s accident occurred when he was acting outside of the course and scope of his employment. It therefore maintains that he cannot establish the third prong of § 39-71-407, MCA, and his injury is therefore not compensable.

In asserting this position Glacier Park, Inc., maintains that Bruce Parker acted outside of the course of his employment when he stopped in the St. Mary’s bar and consumed alcoholic beverages. Glacier Park, Inc., sets forth several public policy arguments, which it maintains should persuade this Court to hold in its favor. We need not delve deeply into these arguments. We refuse to overrule thirteen years of precedent to hold that an employee who may be under the influence of alcohol, without having abandoned the course of his employment, is precluded from recovering under the workers’ compensation system. See Steffes v. 93 Leasing Co. Inc. (1978), 177 Mont. 83, 580 P.2d 450. Here the evidence relative to the influence of alcohol is conflicting at best and we will not disturb the findings of the Workers’ Compensation Court that the defendant failed to meet its burden of showing an abandonment from the course and scope of employment.

There is no evidence that Parker was acting outside the scope of his employment when he wrecked his car. On the contrary, the evidence establishes that he was traveling back to the Rising Sun to talk with his night auditor about business-related matters and to count out the next day’s tills. This evidence supports the Workers’ Compensation Court’s conclusion that Parker’s injuries arose out of and in the course of his employment.

Parker has appealed the Workers’ Compensation Court’s conclusion that he is permanently partially disabled. Section 39-71-705(2), MCA, states:

“The loss of both hands, both arms, both feet, both legs, both eyes, or any two thereof in one accident, in the absence of conclusive proof to the contrary, shall constitute total disability, permanent in character.”

Parker maintains that as a paraplegic who has lost the use of both of his legs, he should receive the benefit of this statute. Since, in his view, Glacier Park, Inc., has failed to present conclusive proof of his employability he must be awarded permanent total benefits, or in the least temporary total benefits.

The term “conclusive proof’ is defined as:

"... either a presumption of law or evidence so strong as to overbear everything to the contrary; proof that is convincing in character after all evidence and support and rebuttal has been weighed. It has been held equivalent to ‘a moral certainty’ or beyond a reasonable doubt.’ 15A C.J.S. Conclusive”.

We agree that Glacier Park has failed to meet the burden set out under § 39-2-705(2), MCA. Three vocational rehabilitation experts testified regarding Mr. Parker’s injuries. Apparently, all three agreed that due to his head injuries and his diminished intellectual capacity, Bruce Parker would never again be able to work in a management position. However, they did determine that he could work in other occupations that were less intellectually demanding. The evidence is far from conclusive that he was ready or able to begin work in these areas at the time of trial, however.

Beverly Abbot, Glacier Park, Inc.’s, vocational rehabilitationist, testified during her deposition that Mr. Parker would need additional treatment before he could reenter the workforce. She further stated that he would require increased upper body strength, physical stamina and possibly a lower leg bracing program before he could become employed. Additionally, as a result of his paralysis, Mr. Parker has lost control of his bladder and bowel functions. He did not have, at the time of trial, a program that would effectively control these problems.

Bruce Parker, testifying on his own behalf, stated that although he wished it were different, he did not feel confident that he could live away from his parents’ home. He had tried living on his own on at least two occasions and had failed. As a result of these failures Mr. Parker believed that he needed his parents to help him with his daily living activities.

The testimony recited above refutes Glacier Park, Inc.’s, argument that conclusive evidence proved Mr. Parker was not permanently totally disabled. To the contrary, it is obvious that at the time of trial, Mr. Parker was totally disabled. Perhaps after further therapy, he can reenter the workforce and once again become a full working member of society. However, at this point, it is clear that he is reliant upon his parents for his daily needs and due to problems associated with his disability he cannot engage in full-time employment. Nor is there any evidence that he can find suitable full time employment in the vicinity of his parents’ home.

We hold that the Workers’ Compensation Court erred in finding Mr. Parker was permanently partially disabled. Conclusive proof, which is required under § 39-71-705(2), MCA, to support this conclusion, was not present in this case. We therefore reverse and direct the court to enter a finding holding Mr. Parker to be temporarily totally disabled. In all other respects this case is affirmed.

JUSTICES HARRISON, GRAY, TRIEWEILER, and WEBER concur.


text:
    JAMES PAUL SANDERS and KATHY SANDERS, Plaintiffs and Appellants, v. SCRATCH GRAVEL LANDFILL DISTRICT and Does One through Ten, Defendants and Respondents.
    No. 90-505.
    Submitted on briefs May 30, 1991.
    Decided July 15, 1991.
    249 Mont. 232.
    814 P.2d 1005.
    Carl A. Hatch, Small, Hatch, Doubek & Pyfer, Helena, for plaintiffs and appellants.
    Mike McGrath, County Atty., Lewis and Clark County, Helena, for defendants and respondents.
   JUSTICE HARRISON

delivered the Opinion of the Court.

James and Kathy Sanders appeal from an order of the District Court of the First Judicial District, Lewis and Clark County, Montana, granting the motion of Scratch Gravel Landfill District to dismiss their suit. The District Court held that Scratch Gravel Landfill District was immune from suit. We reverse and remand to the District Court.

The issue is whether the District Court erred in determining that, as an agent of a legislative body, Scratch Gravel Landfill District was immune from suit.

James and Kathy Sanders bought a home in Western Hills Subdivision, a few miles north of Helena, Montana, in 1987. In 1989 the couple learned that the aquifer from which they obtained their water had become contaminated with toxic chemicals which they alleged were leached from a nearby dump owned and operated by Scratch Gravel Landfill District. The Landfill District claimed that the chemicals came from a different source, namely from cleaning solvents dumped for years by laundry and dry cleaning establishments into a mine shaft above the property owned by the Landfill District.

Because of the contaminated water supply, the Sanders eventually moved from their home, even though they were unable to sell it. The Sanders filed suit against the Landfill District seeking to recover damages resulting from contamination of their water supply.

The Sanders learned of the water contamination when the Landfill District called a meeting on January 24, 1989, to inform local homeowners that the aquifer from which they obtained their water had become contaminated with toxic chemicals. The Landfill District offered to provide bottled water for drinking and cooking to those who were using contaminated water. The contaminated water was said to be safe for bathing, washing dishes, and watering lawns and gardens.

The Landfill District held other meetings to keep property owners informed and eventually offered a plan to the affected landowners. In a written agreement signed by the Sanders and other homeowners, the Landfill District agreed to provide a new water source and delivery system. In exchange, the homeowners agreed to release the Landfill District from “liability for inconvenience, mental anguish and temporary loss of property values resulting from alleged degradation of ground water.” The agreement allowed the homeowners to retain all “rights to seek compensation for any long-term or permanent loss of property value...” except for “potential personal injury claims for damages due to alleged contamination of Homeowners’ ground water.”

Before the Landfill District could implement a new water source and system, the Sanders decided in January 1990 to move from their home claiming they wanted to escape farther health risks. According to the Sanders, realtors refused to list their home until the new water supply was in operation. A realtor eventually agreed to list their house with the understanding that full disclosure of the toxic water problems be provided to potential buyers. When the Sanders were unable to sell their house, they filed suit against the Landfill District and “all unknown defendants Does One through Ten” seeking damages for permanent or long-term loss of value to the property.

The issue is whether the District Court erred in determining that Scratch Gravel Landfill District was immune from suit pursuant to § 2-9-111, MCA.

The Landfill District argues that it is immune from suit according to our holding in Burgess v. Lewis and Clark City-County Board of Health (Mont. 1990), [244 Mont. 275,] 796 P.2d 1079, 47 St.Rep. 1619. In Burgess, we held that an employee of the Scratch Gravel Landfill District could not sue the Lewis and Clark City-County Board of Health, which serves as the board of directors of the Landfill District. The Board, as an agent of a legislative body, the Lewis and Clark County Board of Commissioners, was immune from suit under § 2-9-111(2), MCA, extending governmental immunity to a “legislative body or a member, officer, or agent thereof.”

For the past number of years this Court has been divided on the question of legislative immunity granted by § 2-9-111, MCA, enacted in 1977. Case after case has brought dissent. See Love v. Harlem Irrigation District (Mont. 1990), [245 Mont. 443,] 802 P.2d 611, 47 St.Rep. 2190; Koch v. Yellowstone County (1990), 243 Mont. 447, 795 P.2d 454 (Judge Larry Moran, specially concurring); Eccleston v. Third Judicial District Court (1989), 240 Mont. 44, 783 P.2d 363; and Peterson v. Great Falls School District No. 1 and A (1989), 237 Mont. 376, 773 P.2d 316.

District Court Judge Larry W. Moran, sitting with the Court in Koch, noted in a concurring opinion:

“How beneficial it would be to see (or to write) an opinion on governmental immunity considering provisions of § 2-9-111, MCA, simply concluding: ‘the act giving rise to the cause of action is clearly administrative or executive, not legislative. Hence, governmental immunity does not attach’ — or the reverse, in applicable situations.”

That day has now arrived. The 1991 legislature amended § 2-9-111, MCA, by SB 0154 to read:

“Immunity from suit for legislative acts and omissions. (1) As used in this section:
“(a) the term ‘governmental entity’ means only the state, counties, municipalities, school districts, and any other local government entity or local political subdivision vested with legislative power by statute;
“(b) the term ‘legislative body1 means only the legislature vested with legislative power by Article V of The Constitution of the State of Montana and that branch or portion of any other local governmental entity or local political subdivision empowered by law to consider and enact statutes, charters, ordinances, orders, rules, policies, resolutions, or resolves;
“(c)(i) the term ‘legislative act’ means:
“(A) actions by a legislative body that result in creation of law or declaration of public policy;
“(B) other actions of the legislature authorized by Article V of The Constitution of the State of Montana; or
“(C) actions by a school board that result in adoption of school board policies pursuant to 20-3-323(1);
“(ii) the term legislative act does not include administrative actions undertaken in the execution of a law or public policy.
“(2) A governmental entity is immune from suit for a legislative act or omission by its legislative body, or any member or staff of the legislative body, engaged in legislative acts.
“(3) Any member or staff of a legislative body is immune from suit for damages arising from the lawful discharge of an official duty associated with legislative acts the legislative body.
“(4) The acquisition of insurance coverage, including self-insurance or group self-insurance, by a governmental entity does not waive the immunity provided by this section.
“(5) The immunity provided far in this section does not extend to any tort committed by the use of a motor vehicle, aircraft, or other means of transportation.
“Section 3. Effective date — retroactive applicability. [This act] is effective on passage and approval and applies retroactively, within the meaning of 1-2-109, to causes of action that have not been reduced to final judgment on or before [the effective date of this act].

Section 2-9-111, MCA (1991).

We conclude that Burgess is no longer controlling. In view of the revisions in § 2-9-111, MCA, as above set forth, including the effective date, this issue must be reconsidered by the District Court.

We reverse the decision of the District Court and remand for reconsideration.

CHIEF JUSTICE TURNAGE and JUSTICES GRAY, McDONOUGH, HUNT, TRIEWEILER and WEBER concur.