author: JUSTICE TRIEWEILER JUSTICE NELSON

text:
    IN RE THE MARRIAGE OF TANYA TRUAX, Petitioner and Appellant, and H. V. “BILL” TRUAX, Respondent and Respondent.
    No. 94-535.
    Submitted on Briefs March 23, 1995.
    Decided April 26, 1995.
    52 St.Rep. 347.
    894 P.2d 936.
    271 Mont. 122.

      For Appellant: Stephen C. Berg, Warden, Christiansen, Johnson & Berg, Kalispell.
    For Respondent: Marshall Murray and Shelly F. Brander, Murray and Kaufman, Kalispell.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Petitioner Tanya Truax petitioned the District Court for the Twentieth Judicial District in Lake County for dissolution of her marriage to respondent, H.V. “Bill” Truax, and for equitable division of the couple’s property. The District Court entered a decree in which it dissolved the parties’ marriage, and distributed certain assets to each. Tanya appeals from the District Court’s property distribution. We affirm the decree of the District Court.

The following issues are raised on appeal:

1. Did the District Court abuse its discretion by its apportionment of the pension funds earned by Bill from Frontier Airlines?

2. Did the District Court err when it included Tanya’s Glacier Bank account in the marital estate?

FACTUAL BACKGROUND

Bill and Tanya were married on November 20, 1980, in Kalispell. Tanya had worked as a teacher in North Dakota prior to the parties’ marriage, but quit her teaching position and withdrew the retirement funds she had earned when she married Bill. Tanya moved to Kalispell with Bill, helped care for two of his children from a prior marriage, and helped maintain the couple’s home. In 1989, she returned to work as a teacher. At the time of trial, she earned $27,000 annually in that occupation.

Bill worked as a pilot for Frontier Airlines from 1962 until 1986. During that employment, Frontier contributed to a pension fund on his behalf.

In 1986, Frontier Airlines declared bankruptcy. For several years afterward, Bill worked for other airlines. However, he received no additional contributions to any retirement plan. He retired from flying in 1992. Tanya and Bill separated in April 1994. At the time of trial, she was 46 and he was 61 years old.

Bill’s Frontier pension was distributed in a lump sum amount of $328,916.12 on December 26,1989. The funds were then divided into two IRAs. One was deposited at BankWest, and the other at D.A. Davidson. There were withdrawals from the pension funds during the marriage for living expenses and for construction of a new home. At the time of trial, the total amount remaining in the two IRAs was $267,358.

Bill testified that he is now unable to fly commercially because he is over age 60, and is retired. Tanya testified that she is now employed as a tenured teacher earning approximately $27,000 per year.

The parties agreed on the distribution of marital assets, with the exception of Bill’s Frontier Airlines pension. They also disagreed on the question of whether Tanya’s Glacier Bank account should be designated a marital asset.

Johnnie McCann, a CPA retained by Tanya, testified that the value of Bill’s retirement at the time of the marriage was approximately $32,000, based on figures obtained from a loan application. However, she admitted that she was unable to obtain third-party documentation of the actual value. She arrived at the amount earned during the marriage by subtracting $32,000 from the current balance. Tanya contended that one-half of that balance was the share of Bill’s pension to which she was entitled.

Tom Torgenson, a CPA retained by Bill, valued the pension by taking the total number of months Bill was employed at Frontier (291), and dividing that number by the number of months Bill was employed by Frontier during the marriage (69). The result was 23.7 percent. He thereby concluded that 23.7 percent of the pension was earned during the marriage. It was and is Bill’s contention that Tanya is entitled to one-half of that amount, but that the remaining amount is a pre-marital asset. The District Court agreed. It distributed approximately $32,000 of the pension balance to Tanya.

The District Court also designated a Glacier Bank account as a marital asset, but awarded the entire account to Tanya. Tanya testified that of the $15,587 in the account, $10,000 was a gift to her from her father and the remainder belonged to a Canadian friend.

ISSUE 1

Did the District Court abuse its discretion by its apportionment of the pension funds earned by Bill from Frontier Airlines?

When we review a district court’s division of marital property, we will uphold the district court unless the findings upon which that division is based are clearly erroneous or there has been an abuse of discretion. In re Marriage of Maedje (1994), 263 Mont. 262, 265-66, 868 P.2d 580, 583.

Retirement benefits are part of the marital estate. Rolfe v. Rolfe (1988), 234 Mont. 294, 296, 766 P.2d 223, 225 (citing Karr v. Karr (1981), 192 Mont. 388, 628 P.2d 267). The question is how to equitably divide those benefits.

In this case, the court heard testimony from the parties’ experts, both of whom are certified public accountants, regarding the value of the pension earned during the marriage. Tanya’s valuation depended on the assumption that the pension had a value of $32,000 on the date of the couple’s marriage. However, that amount came from a loan application which Bill had not signed and which was based on a figure that he stated he had not provided. He testified that he did not know the actual value at the time of the couple’s marriage, and neither party was able to provide independent confirmation of that value. Under these circumstances, it was not unreasonable for the District Court to rely on the testimony of Bill’s accountant and apportion benefits based on the time rule approved (for other reasons) in Rolfe, 766 P.2d at 226. Applying that formula, “the marital interest is represented by a fraction, the numerator of which is the length of the employee’s service during the marriage, and the denominator is the employee’s total length of service.” Rolfe, 766 P.2d at 226.

The dissent contends that Bill’s pension should have been distributed based on its present value without regard to the time rule. However, an equitable apportionment of the pension based merely on its present value would require some determination of the value accumulated during the marriage. While the dissent makes the factual argument that the value at the time of marriage should be found based on an unsigned financial statement, the accuracy of which could not be established, it was the District Court’s responsibility to resolve the factual issue created by this circumstantial evidence and Bill’s denial that he knew the value of the pension at the time of marriage. The dissent would have us disregard the District Court’s fact-finding function, and establish our own value for the pension on the date of marriage. However, doing so would not only require that we ignore the limited scope of our review, but also that we assume that during the first 18 years of contributions to Bill’s pension, he earned only $32,000, but that during the next six years of contributions, plus three years of interest, he earned nearly $297,000. The implausibility of this assumption supports its rejection by the District Court.

While it is true, as pointed out by the dissent, that Rolfe adopted the time rule based upon contingencies that affected the value of a party’s pension after the marriage, the rule is equally applicable in this case where the District Court had no reliable evidence with which to evaluate the pension at the beginning of the parties’ marriage.

We conclude that substantial credible evidence supports the District Court’s apportionment of Bill’s retirement benefits. The District Court’s findings were not clearly erroneous, and it did not abuse its discretion by the manner in which these benefits were distributed.

ISSUE 2

Did the District Court err when it included Tanya’s Glacier Bank account in the marital estate?

Tanya claims that the Glacier Bank account contained only money that was a gift to her from her father and money which she was holding for a Canadian friend, and should not have been designated as a marital asset. However, the District Court awarded the entire amount in the Glacier Bank account to Tanya, even though it was designated a marital asset. We have held that dissolution decrees will not be reversed for error which does not materially affect the substantial rights of the parties. In re Marriage of Dreesbach (1994), 265 Mont. 216, 226, 875 P.2d 1018, 1024 (citing In re Marriage of Lopez (1992), 255 Mont. 238, 245, 841 P.2d 1122, 1126). Since the parties agree upon the distribution of all assets other than Bill’s retirement benefits (which we have affirmed were distributed equitably), and since the Glacier Bank account was distributed to Tanya in its entirety, regardless of its classification, we conclude that Tanya’s substantial rights were not affected by any misclassification that might have occurred. While the dissent disagrees with this resolution of our second issue, it offers no explanation of how Tanya’s substantial rights were adversely affected by the District Court’s disposition of her bank account.

The judgment of the District Court is affirmed.

JUSTICES HUNT, WEBER and LEAPHART concur.

JUSTICE NELSON

dissenting.

I respectfully dissent. In deciding Issue 1, we hold that the District Court properly applied the “time rule” in dividing Bill’s Frontier Airlines pension. I disagree. In Rolfe v. Rolfe (1988), 234 Mont. 294, 766 P.2d 223, a case in which the time rule was applied, we recognized the general rule that “the proper test for determining the value of a pension is present value.” Rolfe, 766 P.2d at 225, citing In re Marriage of Bowman (1987), 226 Mont. 99, 734 P.2d 197. See also Kis v. Kis (1982), 196 Mont. 296, 301, 639 P.2d 1151, 1153. In Rolfe, the time rule was utilized because various unknowns and contingencies in the husband’s pension, including his contributions, nonvested benefits, employer’s future contributions, benefit formulations, early retirement and disability, made application of the generally accepted “present value rule” inadequate. Rolfe, 766 P.2d at 223-224.

We are clearly not presented with that situation in the instant case. To the contrary, the value of Bill’s retirement benefits as of the date of the parties’ marriage was ascertainable; his benefits were liquidated during the marriage; and the remaining balance of those benefits was not only clearly ascertainable, but was sitting in two bank accounts ready for distribution.

While the majority discounts Tanya’s evidence of the value of Bill’s pension at the start of the marriage, Bill offered nothing to refute that evidence, and, in fact, was contradictory in his own testimony. When asked his opinion of the value of the pension at the start of the marriage in 1980, Bill stated, alternatively, that it “[p]robably didn’t have any value at that time,” or that he had “no idea.” Yet, having taken that position, he, nevertheless, maintained that the ultimate value of the pension accrued over a period of 24 years and 3 months, from 1962 to 1986. Moreover, while he denied that the figures were in his hand writing, Bill was apparently willing, nonetheless, to let stand for purposes of his banking business, the $32,000 valuation of his pension on his personal financial statement dated December 3, 1980, submitted to First Security Bank of Kalispell, and the $24,000 valuation on his financial statement dated August 27, 1979, both of which were admitted at trial. Taken together, those statements and Bill’s inability or unwillingness to place any other valuation on his pension as of 1980, provide substantial, and, in fact, the only, evidence that the value of his pension at the time of the marriage was $32,000.

The majority concludes that it is implausible, based on Tanya’s evidence, that the value of Bill’s pension increased from $32,000 in 1980 to $371,765, in 1989, when the lump sum was paid. Yet, the majority apparently has no trouble in accepting the plausibility of Bill’s testimony that his pension increased from “no value” to $371,765, during that same period of time. At least Tanya’s expert explained that increase, referencing unusually high interest rates. Bill offered no explanation.

While the trial court is obviously charged with finding the facts and resolving disputed facts based upon the testimony and the evidence, the court is not at liberty to simply ignore what evidence there is in order to arrive at some more seemingly preferable result. Here, according to the only testimony offered, the pension had either “no value” in 1980 (according to Bill) or it had a value of $32,000 (according to Tanya); either way the time-of-marriage value was established by the parties’ testimony, and that evidence could not be simply disregarded.

In short, the facts in this case presented none of the unknowns or uncertainties that necessitated the application of the Rolfe time rule. Rather, I would hold that the court erred in not valuing and distributing Bill’s pension on the basis of the generally accepted present value rule. There is nothing in this case to justify application of the Rolfe exception. Unfortunately, in failing to follow the proper rule, we further muddy the waters in an area of the law where there are already few clear rules to guide the bench and practicing bar.

With respect to Issue 2,1 conclude that, on the evidence presented at trial, the Glacier Bank account should not have been included as a marital asset. Clearly, at least two-thirds of the account balance derived from a gift from Tanya’s father; approximately one-third of the account did not belong to either Tanya or Bill; and Bill did not contribute to the maintenance of the account.

On the basis of the foregoing, I would reverse and remand for further proceedings. Accordingly, I respectfully dissent.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    STATE ex rel. HARLEM IRRIGATION DISTRICT, MATT McCANN, RALPH SNIDER and KNUTE KULBECK, Relators, v. MONTANA SEVENTEENTH JUDICIAL DISTRICT COURT, BLAINE COUNTY, and THE HONORABLE JOHN McKEON, Presiding Judge, Respondents, and CLINTON LOVE and ROSE MARY LOVE, Plaintiffs and Respondents.
    No. 94-411.
    Submitted on Briefs February 16, 1995.
    Rehearing Denied May 25, 1995.
    Decided May 4, 1995.
    52 St.Rep. 364.
    894 P.2d 943.
    271 Mont. 129.

      For Relators: Robert D. Morrison, Morrison Law Firm, Whitefish.
    For Respondents: David L. Irving, Attorney at Law, Glasgow.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The plaintiffs, Clinton Love and Rose Mary Love, filed an amended complaint in the District Court for the Seventeenth Judicial District in Blaine County in which they alleged several claims against the defendants, the Harlem Irrigation District and its commissioners, based on the District’s refusal to provide water to the Loves. Pursuant to Rule 12(c), M.R.Civ.P., the District moved for judgment on the pleadings, based in part on the doctrine of res judicata. The District Court denied the motion and the District petitioned this Court to reverse the District Court by the exercise of supervisory control. We accepted original jurisdiction pursuant to Rule 17(a), M.R.App.P., and in the exercise of supervisory control, reverse the order of the District Court.

The Irrigation District raises the following dispositive issue: Does the doctrine of res judicata preclude litigation of the issues raised in the Loves’ amended complaint?

FACTUAL BACKGROUND

The Harlem Irrigation District is a public corporation, comprised of elected commissioners, which is responsible for managing a water irrigation system in Blaine County. The Loves owned property located in the Irrigation District. Based on its contention that they failed to pay their share of the taxes required for the operation of the Irrigation District, the commissioners have terminated the Loves’ irrigation water on several occasions since 1983.

In August 1983, the Loves filed a complaint, given Blaine County Cause No. 8195, in which they alleged that the District and two of its commissioners were liable for lost crops and punitive damages as a result of the termination of the Loves’ water supply. That complaint was consolidated with another complaint, No. 8342, in which the same allegations were made against a third commissioner. The Loves alleged that the defendants acted “willfully, maliciously and were guilty of wanton disregard of the rights of the Plaintiffs and in violation of Montana Law and the bylaws of the District ....” The Irrigation District moved for summary judgment, and on November 9, 1989, the District Court granted its motion based on sovereign immunity. This Court affirmed that judgment based on its interpretation of former § 2-9-211, MCA (1989). Love v. Harlem Irrigation Dist. (1990), 245 Mont. 443, 802 P.2d 611 (Love I).

After our decision in Love I, the Loves filed another complaint on May 20,1991, as Blaine County Cause No. DV 91-31, and an amended complaint on April 7,1992. In Count One of their amended complaint, the Loves alleged that the District’s denial of water in 1983, 1988, and 1989 violated contractual and statutory duties owed to the Loves.

In Count Two, they alleged that the Irrigation District’s actions were “arbitrary, careless and negligent,” as well as “willful and malicious acts of negligence.” Count Two claimed that the District’s conduct violated the implied covenant of good faith and fair dealing.

In Count Three, they alleged that the District’s actions constituted actual or constructive fraud, and in Count Four they claimed that the District’s acts deprived them of property without due process, in violation of 42 U.S.C. § 1983.

As in their first complaint, the Loves claimed damages for crop loss and the right to recover punitive damages. In addition, they alleged damage to their property.

The District moved for judgment on the pleadings pursuant to Rule 12(c), M.R.Civ.P., based in part on the doctrine of res judicata. The District Court denied the Irrigation District’s motion.

In response to the Irrigation District’s petition for supervisory control, we accepted original jurisdiction pursuant to Rule 17(a), M.RApp.P, in order to prevent extended and needless litigation.

DISCUSSION

Does the doctrine of res judicata preclude litigation of the issues raised in the Loves’ amended complaint?

The District Court held that based on Boucher v. Dramstad (D. Mont. 1981), 522 F. Supp. 604, the doctrine of res judicata bars a subsequent cause of action if the following three criteria are satisfied: (1) if “the prior judgment was rendered by a court of competent jurisdiction;” (2) if “the decision was a final judgment on the merits;” and (3) if “the same cause of action and the same parties or their privies were involved in both cases.” See Boucher, 522 F. Supp. at 606.

The court reasoned that in Love I, summary judgment was granted based on immunity provisions of former § 2-9-111, MCA (1989), and as a result, the court held that there had been no prior judgment on the merits. The court stated that even if the present claims were the same as those previously litigated, the second requirement in Boucher was not satisfied. The court added (also in reliance on Boucher) that res judicata should not apply because it would be manifestly unfair to the Loves. See Boucher, 592 F. Supp. at 607.

The Irrigation District argues that this Court does not follow the three-part test from Boucher and that this court’s res judicata analysis does not involve a case-by-case consideration of fundamental fairness. While our discussions of the doctrine of res judicata do (in a different form) consider all of the elements discussed in Boucher, we have not yet had occasion to reject the application of that doctrine based on considerations of fairness. We have held:

The doctrine of res judicata states that a final judgment on the merits by a court of competent jurisdiction is conclusive as to causes of action or issues thereby litigated, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.

Meagher County Water Dist. v. Walter (1976), 169 Mont. 358, 361, 547 P.2d 850, 852 (citing 46 Am. Jur. 2d Judgments § 394).

In addition to the elements inferred from the previous definition, we have held that the doctrine includes the following four elements: (1) the subject matter of each action must be the same; (2) the parties or their privies of each action must be the same; (3) the issues must be the same and relate to the same subject matter; and (4) the capacities of the persons must be the same in reference to the subject matter and to the issues between them. Whirry v. Swanson (1992), 254 Mont. 248, 250-51, 836 P.2d 1227, 1228; Filler v. Richland County (1991), 247 Mont. 285, 291, 806 P.2d 537, 541; Wellman v. Wellman (1983), 205 Mont. 504, 507, 668 P.2d 1060, 1061.

Therefore, we do not agree that our own criteria for the application of the doctrine would not require a final judgment on the merits. However, neither do we agree that because the Loves’ first suit was dismissed by summary judgment, based on § 2-9-111, MCA (1989), there was no prior judgment on the merits.

In Smith v. Schweigert (1990), 241 Mont. 54, 59, 785 P.2d 195, 198, we held that summary judgment is a decision on the merits because it is a conclusive determination of a legal issue presented by the facts of a case. In Mills v. Lincoln County (1993), 262 Mont. 283, 285, 864 P.2d 1265, 1267, we reaffirmed this holding, even though the summary judgment in the prior decision had been based on immunity pursuant to the pre-1991 amendment of § 2-9-111, MCA. Based on our decision in Mills, we hold that the District Court’s dismissal of the Loves’ original claims was a final judgment on the merits for purposes of applying the res judicata bar.

The Loves contend that the Boucher court’s refusal to apply that doctrine based on considerations of fundamental fairness should guide our decision in this case because their claim, like the claim in Boucher, is based in part on 42 U.S.C. § 1983. However, as pointed out in Boucher, the United States Circuit Courts of Appeal are not in agreement on the question of whether res judicata bars a § 1983 action in federal court where the constitutional claims could have been raised in an earlier state court proceeding, but were not. Boucher, 522 F. Supp. at 606. That court recognized that the Ninth Circuit has held that such a failure bars a subsequent § 1983 action in federal court. Boucher, 522 F. Supp. at 606 (citing Scoggin v. Schrunk (9th Cir. 1975), 522 F.2d 436).

Although the Boucher decision did not apply the bar, based on the court’s concern for manifest unfairness, its decision was based on the unique facts of that case. We are not presented with the same considerations in this case and conclude, as we did in Whirry, that we are not here presented with facts which would justify rejection of the doctrine of res judicata based on principles of fundamental fairness. We hold that the doctrine of res judicata does bar § 1983 claims in Montana’s courts when the constitutional claims could have been raised in an earlier proceeding, but were not.

The Loves also claim that new theories of recovery, and new facts alleged in their amended complaint in this case, preclude the application of res judicata. However, applying our four-part test, we conclude otherwise.

The underlying subject matter which formed the basis for the complaints in Love I and the current litigation are the same. In Love I, the Loves claimed that the Irrigation District shut off their water in violation of their rights, Montana law, and the District’s bylaws. The amended complaint filed in this case claimed that the District’s alleged failure to provide water violated contractual obligations, statutory duties, bylaws, 42 U.S.C. § 1983, the covenant of good faith and fair dealing, and constituted fraud. The underlying subject matter in the amended complaint in this case was the District’s failure to provide water. The same subject matter that gave rise to the initial claim was the basis for the additional causes of action.

Both actions were brought by the Loves against the Irrigation-District and its individual members. Therefore, the parties or their privies are the same.

The third element is whether the issues in the two cases are the same and whether they relate to the same subject matter. The Loves contend that because new theories of recovery are alleged, the issues are not the same.

However, the doctrine of res judicata bars not only issues that were actually litigated, but also those that could have been litigated in a prior proceeding. Mills, 864 P.2d at 1267. A party should not be able to litigate a matter that the party already had the opportunity to litigate; public policy dictates that there must be some end to litigation. Sheffield Ins. Co. v. Lighthouse Properties (1992), 252 Mont. 321, 324, 828 P.2d 1369, 1371; First Bank v. Fourth Judicial Dist. Court (1987), 226 Mont. 515, 519-20, 737 P.2d 1132, 1134-35. Once a party has had an opportunity to present a claim, the judgment in a previous case is final as to the issues that were raised, as well as those that could have been raised. See Burgess v. Montana (1989), 237 Mont. 364, 366, 772 P.2d 1272, 1273. This notion arises from public policy designed to prevent endless piecemeal attacks on previous judgments. Wellman v. Wellman (1982), 198 Mont. 42, 46, 643 P.2d 573, 575. We conclude that the theories of recovery alleged in this cause of action could have been litigated in the prior proceeding.

The Loves, in another attempt to distinguish Love I from the current case, claim that the only damages claimed in Love I were for lost crops in 1983, and for punitive damages. In this case, they claim damage for 1983, 1988, 1989, and the years affected thereafter, as well as costs of reconditioning the land. However, their prior complaint was not dismissed until November 9,1989. The same damages could have been alleged by amendment of their complaint in the Love I litigation, or they could have claimed damages, as they have in this case, for 1983 and years affected thereafter. Additional damages, like new theories, could have been alleged in the previous proceeding. Further, had they succeeded in their original action, they could have sought equitable relief which would have avoided the damage now complained of.

Finally, the fourth requirement is satisfied. The Loves were the plaintiffs, and the Irrigation District, as well as its individual commissioners, were the defendants in both actions. The capacities of the parties involved have not changed in relation to the subject matter and the issues in the litigation. See First Bank, 737 P.2d at 1135.

The petition for supervisory control is granted. The order of the District Court which denied the Irrigation District’s motion for judgment on the pleadings based on the doctrine of res judicata, pursuant to Rule 12(c), M.R.Civ.P., is reversed and this case is remanded to the District Court for entry of judgment for the defendants.

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


author: JUSTICE LEAPHART

text:
    JOLANDA “SUSIE” GLAUDE, Petitioner and Appellant, -vs-STATE COMPENSATION INSURANCE FUND, Respondent and Respondent.
    No. 94-472.
    Submitted on Briefs April 6, 1995.
    Decided May 4, 1995.
    52 St.Rep. 367.
    894 P.2d 940.
    271 Mont. 136.

      For Appellant: Steve Fletcher; Bulman Law Associates, Missoula.
    For Respondent: Charles Adams, State Fund Legal Counsel, Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Jolanda “Susie” Glaude (Glaude) appeals from an order of the Workers’ Compensation Court dismissing her petition against the State Compensation Insurance Fund (State Fund) for failure to state a claim upon which relief can be granted. We reverse.

Background

Glaude’s petition alleges that she was injured on November 17, 1993, in the course of her employment as a pilot car driver for Don Ellis. The petition states that Don Ellis was an uninsured independent sub-contractor hired by Transit Homes of America (Transit). Transit, in turn, was an uninsured independent contractor hired by Rangitsch Brothers Mobile Homes (Rangitsch). Rangitsch was enrolled under compensation plan III of the Workers’ Compensation Act and is insured by State Fund.

On July 19,1994, Glaude filed her petition for workers’ compensation benefits, naming State Fund as the respondent. On August 10, 1994, State Fund responded to Glaude’s petition and filed a motion to dismiss. On September 21,1994, the Workers’ Compensation Court entered its order dismissing Glaude’s petition for failure to state a claim upon which relief could be granted. The sole issue we address is whether the Workers’ Compensation Court erred in dismissing Glaude’s petition for failure to state a claim upon which relief could be granted.

Standard of Review

We have stated that a court’s determination that a complaint failed to state a claim is a conclusion of law. Boreen v. Christensen (1994), 267 Mont. 405, 884 P.2d 761, 762. We review the Workers’ Compensation Court’s conclusions of law to determine if the court’s determination of the law is correct. Stordalen v. Ricci’s Food Farm (1993), 261 Mont. 256, 258, 862 P.2d 393, 394.

We have announced some general considerations regarding dismissals for failure to state a claim. We have stated that:

A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. A motion to dismiss under Rule 12(b)(6), M.R.Civ.P., has the effect of admitting all well-pleaded allegations in the complaint. In considering the motion, the complaint is construed in the light most favorable to the plaintiff, and all allegations of fact contained therein are taken as true.

Boreen, 884 P.2d at 762 (quoting Willson v. Taylor (1981), 194 Mont. 123, 126, 634 P.2d 1180, 1182).

Discussion

Section 39-71-405(1), MCA, states:

An employer who contracts with an independent contractor to have work performed of a kind which is a regular or a recurrent part of the work of the trade, business, occupation, or profession of such employer is liable for the payment of benefits under this chapter to the employees of the contractor if the contractor has not properly complied with the coverage requirements of the Workers’ Compensation Act. Any insurer who becomes liable for payment of benefits may recover the amount of benefits paid and to be paid and necessary expenses from the contractor primarily liable therein. State Fund argues that the plain language of the statute would

extend Rangitsch’s coverage to employees of Transit, the uninsured contractor with whom Rangitsch directly contracted, but cannot be read to extend Rangitsch’s coverage to employees of Don Nelson, the uninsured subcontractor with whom Transit contracted.

Glaude contends that § 39-71-405(1), MCA, read in conjunction with § 39-71-117(4), MCA, extends Rangitsch’s coverage to Glaude. Section 39-71-117(4), MCA, reads:

(4) Notwithstanding the provisions of subsection (3), an interstate or intrastate common or contract motor carrier doing business in this state who utilizes drivers in this state is considered the employer, is liable for workers’ compensation premiums, and is subject to loss experience rating in this state unless:
(a) the driver in this state is certified as an independent contractor as provided in 39-71-401(3); or
(b) the person, association, contractor, firm, or corporation furnishing drivers in this state to a motor carrier has obtained workers’ compensation insurance on the drivers in Montana both at the inception of employment and during all phases of the work performed. [Emphasis added.]

Glaude argues that § 39-71-117(4), MCA, operates to make Transit, as a common motor carrier, her employer.

All that needs to be shown to survive a motion for judgment for failure to state a claim is that there is a set of facts under which the claimant could recover. Boreen, 884 P.2d at 762. We have stated that:

As a practical matter, a dismissal under Rule 12(b)(6) is likely to be granted only in the unusual case in which plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief. In other words, dismissal is justified only when the allegations of the complaint itself clearly demonstrate that the plaintiff does not have a claim.

Wheeler v. Moe (1973), 163 Mont. 154, 161, 515 P.2d 679, 683.

Here, there is a set of facts under which Glaude could recover. If Transit is determined to be an interstate or intrastate common motor carrier and neither of the exceptions in § 39-71-117(4)(a) or (b), MCA, apply, then Transit may be considered Glaude’s employer. If that determination is made, then applying § 39-71-405(1), MCA, in conjunction with § 39-71-117(4), MCA, Rangitsch’s workers’ compensation insurance applies to Glaude as Transit’s employee.

State Fund argues that § 39-71-117(4), MCA, is intended to apply only to premiums and experience ratings, not to benefit or claim liabilities. However, § 1-2-107, MCA, states that “[w]henever the meaning of a word or phrase is defined in any part of this code, such definition is applicable to the same word or phrase wherever it occurs, exceptwhere a contrary intention plainly appears.” Here, Transit was an independent contractor working for Rangitsch. To properly determine who qualifies as Transit’s employee under § 39-71-405(1), MCA, reference must be made to § 39-71-117(4), MCA.

State Fund also argues that Glaude is barred from making this combined statutory argument on appeal since it was not raised in the Workers’ Compensation Court. In support, State Fund cites Sherrod v. Morrison-Knudsen (1991), 249 Mont. 282, 815 P.2d 1135. In Sherrod, the plaintiff was attempting to recover on a contract claim based on fraud. On appeal, the plaintiff for the first time raised the argument that it should recover under a mutual mistake theory. In refusing to address the mutual mistake theory, we stated that we will not address a “theory” raised for the first time on appeal. Sherrod, 815 P.2d at 1137.

Here, Glaude has constantly argued that she is entitled to benefits under the correct application of § 39-71-405(1), MCA. In order to properly apply that statute, this Court must examine the statute in relation to another statute which effects the terms contained in § 39-71-405(1), MCA. “Ageneral rule of statutory construction is that when several statutes may apply to a given situation, the construction adopted should be one which will harmonize the several statutes and, if possible, give effect to all.” Montana Power Co. v. Fondren (1987), 226 Mont. 500, 506, 737 P.2d 1138, 1141. In the present case, the definition of employer in § 39-71-117(4), MCA, may determine the appropriate application of § 39-71-405(1), MCA. We will not ignore the correct application simply because § 39-71-117(4), MCA, was not cited below.

Since we determine that, under a given set of facts not yet adduced in the Workers’ Compensation Court, Glaude may be able to recover under her petition, we reverse the Workers’ Compensation Court’s order dismissing Glaude’s petition for failure to state a claim upon which relief can be granted. For this reason, we reverse and remand for further proceedings.

JUSTICES TRIEWEILER, NELSON, HUNT and GRAY concur.


author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, -vs-LAWRENCE CLARIC, Defendant and Appellant.
    No. 94-222.
    Submitted on Briefs January 19, 1995.
    Decided May 9, 1995.
    52 St.Rep. 377.
    894 P.2d 946.
    271 Mont. 141.

      For Appellant: Laurence J. Ginnings, Ginnings Law Office, Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; Mitchell Young, Deputy Lake County Attorney, Poison.
   JUSTICE NELSON

delivered the Opinion of the Court.

Defendant, Lawrence Claric was charged with felony assault in violation of § 45-5-202(2)(a), MCA, and criminal mischief, a misdemeanor in violation of § 45-6-101(1)(a), MCA. Following a jury trial held in the Twentieth Judicial District Court, Lake County, the jury convicted Claric of both charges. The District Court entered judgment upon the verdict on January 24, 1994. Claric appeals from this judgment.

Claric raises two issues on appeal:

1. Whether the District Court properly instructed the jury on justifiable use of force?
2. Whether Claric was prejudiced by the District Court’s ruling which excluded defense witnesses from the courtroom but did not similarly exclude the State’s witnesses?

The following facts gave rise to the charges against Claric and his subsequent conviction. Claric lives on Detwiler Road which is located in Arlee, Montana. The ownership of Detwiler Road is disputed, and Claric believes he owns the road. On July 1, 1993, Merle McCready drove down Detwiler Road in order to visit his fiance, Charlotte Foust, who also lives on Detwiler Road. McCready encountered Claric, and observed that Claric was digging in the road with a crowbar. As McCready drove past, Claric shoved the crowbar into the ground and said something to McCready. McCready stopped his truck and walked over to Claric to ask him why he was digging in the road. McCready and Claric got into an argument over McCready’s use of the road.

Claric’s wife, Verna Claric, was in the house and heard the argument. Verna testified she was afraid for her husband, so she telephoned her son-in-law, Butch Pierce, and asked him to come over right away.

McCready testified that after arguing for a few minutes, he got back into his truck. As McCready tried to drive away, Claric grabbed the driver’s side mirror and pulled loose one of the screws which fastened the mirror to the truck. McCready then got out of the truck and asked Claric who was going to pay for the damage.

According to McCready, Verna Claric, who had come out of the house, stepped up to McCready and grabbed him around his neck. McCready claims he grabbed her hands, and put them down by her side. Verna testified that she merely put her hands on McCready’s shoulder and he knocked her out of the way. After this incident, McCready testified that Claric hit him in the chest with a shovel. Claric attempted to hit McCready with the shovel again, but McCready was able to block the shovel with his right forearm. About this time, Pierce and Claric’s daughter drove up. Pierce got out of his pickup and a fight ensued between Pierce and McCready. At some point during the fight, McCready’s shirt came off. After losing his shirt, McCready moved to the back of the pickup, with his back to Claric. Pierce and McCready were still fighting when McCready felt a sharp sting on the back of his head, and he knew someone had hit him with an object. McCready turned and saw Claric run off with a shovel. The fight broke up moments later, and McCready drove to his fiance’s residence to call the police.

Lake County Deputy Sheriff Kerry Reynolds was dispatched to the scene as a result of two 911 calls, one from the Claric residence and one from the Foust residence. Deputy Reynolds testified he went to McCready’s fiance’s residence first, because the report indicated that the injured party was there. Upon approaching McCready, who was sitting out in front of the house, Deputy Reynolds noticed that McCready did not have a shirt on, and he saw blood on the front of McCready’s chest, back, and neck area. Deputy Reynolds asked McCready what had transpired. While explaining the story to Deputy Reynolds, McCready showed him his right forearm which had a bump and an abrasion, and told him that he had received the injury by blocking the blow from the shovel. McCready also explained that the mirror had been pulled loose from his truck. Deputy Reynolds testified that he observed a gash on the back of McCready’s head, and that McCready appeared shaken, but was calm and spoke in a normal tone of voice.

After receiving McCready’s version of the story, Deputy Reynolds went to the Claric residence and observed Claric standing outside. Deputy Reynolds asked Claric what had happened. Claric was very agitated, pacing around yelling that he owned the road and could do whatever he wanted, and that people were vandalizing his property. After explaining to Claric that he could be facing a very serious assault charge, Claric, Pierce, Verna, and Claric’s daughter, who were all present, stated that McCready had started the fight. Claric stated that McCready was threatening him so he told Verna to call Pierce. Verna reported that McCready had Claric cornered and was threatening him, so she went to the house to call Pierce. Verna stated that when she came back outside Claric and McCready were really arguing so she got between them, at which point McCready pushed her.

Pierce stated that when he arrived McCready hit him, and they fought until McCready left. When Deputy Reynolds asked Claric if he had hit McCready with a shovel, Claric responded that he could not remember, but did state that he had a shovel with him where he was working on the road. Deputy Reynolds testified that no one would tell him details about the incident, and were very evasive about what happened. Deputy Reynolds also testified that while Pierce and Verna had stated they had been physically assaulted, he did not observe any injuries to either Pierce or Verna, and neither complained of any injury.

Upon leaving the Claric residence, Deputy Reynolds noticed McCready’s shirt laying in the road. Deputy Reynolds then went back to the Foust residence to look at McCready’s pick-up. Deputy Reynolds observed that one rivet holding the driver’s side mirror to the door was torn loose from the sheet metal. Deputy Reynolds documented his investigation in a written report which was admitted at trial.

1. JURY INSTRUCTIONS

Claric maintains that he had two theories which were essential to his defense: (1) that Claric was justified in his use of force because he was defending his property; and (2) that Claric was justified in using force against McCready because he had a reasonable apprehension of bodily harm for himself and members of his family. Claric argues that the District Court erred by refusing five of his proposed instructions which he claims were necessary to fully and fairly instruct the jury.

This Court’s standard of review of jury instructions in criminal cases is to determine whether the instructions as a whole, fully and fairly instruct the jury on the law applicable to the case. State v. Brandon (1994), 264 Mont. 231, 237, 870 P.2d 734, 737, citing State v. Lundblade (1981), 191 Mont. 526, 529-30, 625 P.2d 545, 548. While the District Court must instruct the jury on each issue or theory which is supported by the record, Brandon, 870 P.2d at 737, the defendant is not entitled to have the jury instructed on every nuance of its theory of the case. State v. Webb (1992), 252 Mont. 248, 253, 828 P.2d 1351, 1354, citing State v. Graves (1981), 191 Mont. 81, 622 P.2d 203.

Claric first argues that in refusing his proposed instructions, Nos. 16 and 17, the court eliminated one of his defense theories from the jury’s consideration; namely that Claric was entitled to use force to eject McCready, a trespasser, from his property.

This Court has previously held that a court may properly refuse to instruct the jury on a defense theory where there is no evidence in the record supporting each element of the defense. State v. Owens (1979), 182 Mont. 338, 347, 597 P.2d 72, 77. The defense of justifiable use of force in defense of property is defined at § 45-3-104, MCA. That statute provides in relevant part:

A person is justified in the use of force or threat to use force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other’s trespass on ... real property ... [that is] lawfully in his possession. [Emphasis added].

While Claric contends that McCready was trespassing on his property, and refused repeated requests to leave, he also admits that the ownership of Detwiler Road is in dispute. Other than making personal declarations of ownership, Claric did not present any evidence in support of his claims of ownership. We conclude that the record failed to demonstrate that McCready was trespassing on Claric’s property and therefore Claric had a legal right to evict McCready. Because Claric failed to prove that he had a legal right to evict McCready, we conclude that the District Court properly refused Claric’s instructions regarding defense of property.

Claric’s second theory of the case, was that he was justified in using force against McCready because he had a reasonable apprehension of bodily harm for himself and other members of his family. Claric contends the court erred by refusing his proposed instructions Nos. 14 and 15 because they would have instructed the jury that the “defendant was free to act upon his perceptions, if reasonable, and was not bound to exercise force only if faced with actual danger.” The District Court concluded that the proposed instructions were adequately covered in its instructions. We agree, and conclude that the District Court adequately instructed the jury that Claric was free to act upon his perceptions if reasonable. The relevant portion of the instruction provided by the court states:

(4) The defendant must actually believe that the danger exists, that is, use of force by him is necessary to avert the danger and that the kind and amount of force which defendant uses is necessary;
(5) The defendant’s belief, in each of the aspects described, is reasonable even if it is mistaken.

We conclude that the court properly refused Claric’s instructions because they were repetitive. State v. Hess (1992), 252 Mont. 205, 214, 828 P.2d 382, 388. In addition, the instruction given in this case regarding the justifiable use of force has been previously approved by this Court as an accurate statement of the law. State v. Stone (1994), 266 Mont. 345, 348-49, 880 P.2d 1296, 1298-99. The District Court was not required to provide anything more.

Finally Claric argues that the court erred by refusing to include his proposed instruction No. 18 which provided:

Where the assailant is a much larger and stronger man than the Defendant, the latter may reasonably apprehend great bodily harm, even though his assailant is unarmed.

It is well established that the defendant is not entitled to have the jury instructed on every nuance of its theory of the case. Webb, 828 P.2d at 1354. While the jury instructions did not present every nuance of Claric’s case, the instructions given accurately reflected the law of self-defense and are therefore sufficient. Moreover, Claric was afforded the opportunity to argue in closing that McCready, a younger and larger man, caused reasonable apprehension of grievous bodily injury in Claric, an older and frail man. In addition, because both Claric and McCready were present in the courtroom, the jury was capable of observing both men and noting the size and age difference. Therefore, we conclude that the District Court did not err by refusing Claric’s proposed instruction No. 18, and hold that the court properly instructed the jury.

2. EXCLUSION OF WITNESSES

Before the court had received testimony in this case, the State moved to exclude witnesses from the courtroom. The court granted the State’s motion, however, it allowed Deputy Reynolds to stay in the courtroom as the State’s representative. The effect of the Court’s ruling was to exclude all of the defense witnesses but none of the State’s witnesses. Claric contends that the exclusion of the defense witnesses resulted in prejudicial error.

Rule 615, M.R.Evid., provides for the exclusion of witnesses at the request of a party, and we have held that the operation of the rule is left to the sound discretion of the trial court. State v. Radi (1975), 168 Mont. 320, 326, 542 P.2d 1206, 1210; State v. Meidinger (1972), 160 Mont. 310, 320, 502 P.2d 58, 64.

Rule 615, M.R.Evid., provides three categories of witnesses who may be exempted from an order of exclusion: (1) parties; (2) a representative of a party not a natural person; and (3) a person necessary for the presentation of evidence. In regards to the exemption of Deputy Reynolds under the exclusionary rule this Court has recognized that law enforcement personnel may be exempted from the exclusionary rule. Meidinger, 502 P.2d at 64; State v. Walsh (1924), 72 Mont. 110, 117, 232 P. 194, 197. Law enforcement officers are excluded as a representative of a party according to subsection (2) of the rule. See, United States v. Auten (5th Cir. 1978), 570 F.2d 1284, cert. denied, Auten v. United States (1978), 439 U.S. 899, 99 S.Ct. 264, 58 L.Ed.2d 247; United States v. Thomas (9th Cir. 1987), 835 F.2d 219, 223, cert. denied, Thomas v. United States (1988), 486 U.S. 1010, 108 S.Ct. 1741, 100 L.Ed.2d 204.

A similar situation occurred in Radi, where the court granted the State’s motion to exclude witnesses, but exempted law enforcement officers, thereby excluding all defense witnesses and none of the prosecution witnesses. In Radi, we held that the district court’s ruling was not reversible error in light of the express provision allowing the exemption of a “party’s representative.” Radi, 542 P.2d at 1210. While so holding, we went on to advise future courts to exclude all witnesses who are to testify from the courtroom. Radi, 542 P.2d at 1210.

Notwithstanding, in the instant case, Claric failed to demonstrate that he was prejudiced by the District Court’s ruling. Deputy Reynolds was not an eye witness to the incident, and his only role at trial was to describe what he learned from the participants and other witnesses who observed the incident. Deputy Reynolds documented his observations in a report which was consistent with his testimony and admitted as evidence at trial. If Deputy Reynolds’ testimony was not consistent with his report, he was subject to impeachment. Accordingly, we conclude that while the District Court should have excluded Deputy Reynolds from the courtroom because he was a witness who would be testifying, we hold that the court did not commit reversible error, because Claric was not prejudiced by the ruling.

AFFIRMED.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, GRAY and LEAPHART concur.


author: JUSTICE WEBER

text:
    IN RE THE MARRIAGE OF PAULETTE M. BRANDON, Petitioner and Respondent. -v-ROBERT A. BRANDON, Respondent and Appellant.
    No. 94-360.
    Submitted on Briefs February 23, 1995.
    Decided May 9, 1995.
    52 St.Rep. 381.
    894 P.2d 951.
    271 Mont. 149.

      For Appellant: Daniel A. Boucher, Altman & Boucher, Havre.
    For Respondent: Chris R. Young, Young, Brown & Richardson, Havre.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a decision by the Twelfth Judicial District Court, Hill County, concerning modification of the court’s initial dissolution order with regards to maintenance and child support. We affirm in part and reverse in part and remand.

The following two issues are dispositive of the case:

I. Did the District Court err by not using the Uniform Child Support Guidelines?

II. Did the District Court abuse its discretion by denying the husband’s Motion to Terminate Maintenance?

Paulette Brandon (Paulette) and Robert Brandon (Robert) were divorced in 1986 after twenty-two years of marriage. Paulette retained physical custody of the two children, a son and a daughter, born to the marriage. At the time of the dissolution, Paulette worked as a beautician for only two and one half days per week for a total of $480 per month. Due to an increasing health deterioration caused by a double curvature of the spine, she had to leave her work as a beautician and take a job with the State of Montana as an inspector of beauty salons. The State job is full time, paying about $20,000 per year, and requires her to travel a good deal of the time.

Robert owns his own drapery and floor covering business and is remarried. Robert’s total income for the last three years was $198,000 plus, or an average of $66,000 per year. Robert has been paying $300 per month for maintenance and until the daughter reached the age of majority, $350 for child support for two children. The daughter reached the age of majority in 1990, but the son, Kelly, is still a minor.

When Paulette began working full time she was required to move from Havre to Helena. Kelly remained in Havre living with his father. Robert did not stop the child support payments to Paulette despite Kelly living with him.

On November 9, 1993, almost two years after Kelly began living with his father, Robert moved the court for modification of provisions regarding custody, child support, and maintenance. On May 23,1994, the court issued its Findings of Fact and Conclusions of Law stating that Robert must continue to pay maintenance to Paulette but that Robert could stop paying child support for those months he had custody of Kelly. The court also determined that Paulette did not have to pay support for Kelly.

Robert appeals the court ruling on maintenance and lack of support for Kelly.

I.

Did the District Court err by not using the Uniform Child Support Guidelines?

Robert argues that Paulette failed to present evidence to warrant non-application of the Guidelines. According to Robert, the court is required to use the Guidelines and the Guidelines require that Paulette pay at least a minimal amount of child support.

Paulette contends that she does not make enough money to support herself and that she should not have to pay child support. According to Paulette the District Court did give reasons for deviating from the Guidelines.

The District Court made various findings and conclusions with regards to the income earning capacity of the parents. We review the findings of the District Court as to whether the findings are clearly erroneous. Marriage of Eschenbacher (1992), 253 Mont. 139, 831 P.2d 1353. Conclusions of law are reviewed to see if the court interpreted the law correctly. In re Marriage of Barnard (1994), 264 Mont. 103, 870 P.2d 91. The court also made a determination that modification of maintenance was not warranted because its former decree was not unconscionable. A district court’s overall decision on modification of child support awards is determined by whether the district court clearly abused its discretion. A district court’s overall decision on modification of child support awards is determined by whether the district court clearly abused its discretion. Marriage of Kovash (1995), [270 Mont. 517], 893 P.2d 860.

In its conclusions of law, the court stated that:

2. The Court having found and concluded that the application of the statutory standards of Section 40-4-204, MCA, and Uniform Child Support Guidelines are inappropriate in this case, it is hereby ordered that the Petitioner [Paulette] shall not be required to pay past or future child support to the Respondent [Robert] for the times during which he has custody of Kelly.

The court alludes to its findings of fact when justifying its deviation from the Guidelines but it does not give us written specific findings. The Guidelines must be used in all cases. Section 40-4-204(3)(a), MCA. The court must produce “clear and convincing” evidence pursuant to § 40-4-204(3)(a), MCA, in order to justify its failure to follow the Guidelines. While the court issued findings, it did not do so in connection with its decision to deviate from the Guidelines.

In the Findings of Fact, the court stated that:

11. ... A combination of the Petitioner’s declining health, physical limitations, limitations of employability and skills will cause the further decline in her standard of living ....

Despite this finding, other findings state that Paulette has a full time j ob which she likes and which nets her $900 take home pay per month, twice what it was during the 1986 dissolution. During the division of the marital estate in 1986, she received approximately $170,000 in marital assets. In addition to this, she has no responsibility for either child now, the only minor son, at 16, is living with his father for most of the year. The daughter is an adult and married herself.

It is regrettable that Paulette suffers double curvature of the spine. But she is managing to work full time despite this malady. The court cannot base its determination of whether to use the Guidelines upon mere speculation that Paulette’s health may deteriorate in the future.

The Guidelines themselves point out that:

REBUTTABLE PRESUMPTION (1) The guideline creates a presumption of the adequacy and reasonableness of child support awards. However, every case must be determined on its own merits and circumstances and the presumption may be rebutted by evidence that a child’s needs are not being met.
(2) ... Any consideration of a variance from the guidelines must take into account the best interests of the child.
(3) A court or administrative hearing officer may find evidence to rebut the presumption and vary from the guidelines in a particular case only if the decree, separation order or support order contains a specific written finding showing justification that application of the guidelines would be unjust or inappropriate.
(4) Findings that rebut and vary the guidelines must include a statement of the amount of support that would have been ordered under the guidelines without a variance.
(5) A court or administrative hearing officer may vary from the guidelines based on a stipulation or agreement of the parties only if the stipulation or agreement meets the following criteria:
(a) it is in writing executed by the parties; (b) the parties have signed the stipulation or agreement free of coercion', (c) it contains specific justification as to why application of the guidelines is unjust or inappropriate; (d) it contains a statement of the amount of support that would have been appropriate under the guidelines without the variance.
(7) A support order granting a variance shall provide that upon termination of the circumstances which justify the variance, the support amount shall immediately be the amount which would have been ordered under the guidelines without the variance. (Emphasis added.)

46.30.1507, ARM. The court did not consider the majority of the above criteria. The court also did not provide us with a total for support that Paulette should pay according to the Guidelines, had the court not deviated:

MINIMUM SUPPORT OBLIGATION (1) Except for parents with extremely low net income, a specific minimum contribution towards child support should be ordered in all cases even though a parent does not have sufficient net income to meet their own self support reserve needs. (Emphasis added.)

46.30.1538, ARM.

On remand the court must focus on the above rules from the Guidelines. Further, the court must follow the Guidelines unless it specifically sets out the “clear and convincing” proof it is using to deviate from the Guidelines. Even if the court decides on remand that Paulette need not pay support, according to the Guidelines, it must at least make a determination of what the support would have been if the court had followed the Guidelines. Likewise, the court must make the same determination in terms of support from Robert for those times in which Kelly lives with his mother.

We conclude that the District Court made a legal error when it deviated from the Uniform Child Support Guidelines and, therefore, we must remand this case for a further determination of child support due from each parent based upon the Guidelines. If the court on remand chooses to deviate from the Guidelines, it must do so with specificity and by presenting “clear and convincing” evidence for such deviation.

II.

Did the District Court abuse its discretion by denying the husband’s Motion to Terminate Maintenance?

Robert argues that he should not have to pay support to Paulette because she is now employed full time. Paulette argues that though she is employed full time she does not make enough money to sustain herself.

The District Court determined that although Paulette did work full time, her financial condition was not sound. The District Court stated in Finding #15:

The Court further finds that the Respondent should continue to pay maintenance to Petitioner in the amount of $300.00 per month because there has not been a showing of changed circumstances so substantial and continuing as to make the terms concerning maintenance unconscionable. The evidence is to the contrary. Respondent’s standard of living is improving while Petitioner’s is deteriorating.

Also, the court’s Conclusion #3 states:

The Court concludes that the maintenance order set forth in the Decree should continue in effect due to the inability of the Petitioner to meet her adequate needs under the circumstances independently; the standard of living established during the marriage, the duration of the marriage, her age and physical condition, and the ability of the Respondent from whom maintenance is sought to meet his needs while meeting those of the Petitioner. There has not been a showing of changed circumstances so substantial and continuing as to make the terms unconscionable, as required by § 40-4-208, MCA.

The court then ordered:

The Court having found and concluded that there has not been a showing of changed circumstances so substantial and continuing as to make the terms of the Decree’s maintenance provision unconscionable, it is hereby ordered that Respondent shall continue paying maintenance to the Petitioner in accordance with the Decree. Respondent is ordered to make up any past child support payments not paid.

The burden is on Robert to show that circumstances have changed so substantially from the time of the original decree that the terms of the original agreement are “unconscionable.” Section 40-4-208, MCA. Robert’s entire argument rests on the fact that Paulette is now employed full time and can afford to care for herself.

The record indicates that this was a marriage that lasted 22 years. The record also shows that Paulette was instrumental in helping to sustain the carpet and drape business from which Robert now derives an average income over the years of $45,000 per year, and more for the last three years. It is true that instead of $480 per month Paulette now brings home over $900 per month plus up to $9,000 per year from interest and reimbursement for her travel expenses. However, this still does not begin to approach the standard of living that she had when she was married to Robert, nor that Robert has currently. Nothing that Robert presented to the court shows that the $300 per month amount of maintenance originally set by the court is in any way unconscionable.

We conclude that Robert has failed to meet his burden to prove that the $300 per month that he provides Paulette is unconscionable.

We hold that the court did not abuse its discretion in failing to grant the husband’s request to terminate maintenance.

This case is affirmed in part and reversed in part and remanded for proceedings to determine Kelly’s proper child support from both parents.

JUSTICES TRIEWEILER, GRAY, NELSON and LEAPHART concur.


author: JUSTICE HUNT JUSTICE WEBER

text:
    EVELYN KELMAN, Plaintiff and Appellant, v. RICHARD LOSLEBEN, Defendant and Respondent.
    No. 94-265.
    Submitted on Briefs February 28, 1995.
    Decided May 12, 1995.
    52 St.Rep. 387.
    894 P.2d 955.
    271 Mont. 156.

      For Appellant: Curtis G. Thompson, Thompson & Jacobsen, Great Falls; Steven T. Potts, Jardine, Stephenson, Blewett & Weaver, Great Falls.
    For Respondent: Maxon R. Davis and Paul E. Haffeman, Cure, Borer & Davis, Great Falls.
   JUSTICE HUNT

delivered the Opinion of the Comet.

Appellant Evelyn Kelman appeals from an order of the Eighth Judicial District Court, Cascade County, granting respondent Richard Losleben’s motion to dismiss.

We reverse and remand for further proceedings in accordance with this opinion.

The dispositive issue on appeal is:

Did the District Court err in granting respondent’s motion to dismiss?

Appellant applied to the Montana Department of Justice, Gambling Control Division, for a gambling operator’s license in connection with her contractual interest in two Great Falls casinos. The Department of Justice assigned respondent to investigate and report on appellant’s application. In August 1993, respondent submitted a 37 page “Offense Report,” recommending that the Department of Justice deny appellant’s application. In addition, respondent recommended that the State prosecute appellant and others listed in his report for alleged criminal violations.

On September 24, 1993, appellant filed suit against respondent alleging invasion of privacy, injurious falsehood, wrongful use of civil proceeding, tortious interference with contract, and actual fraud. Respondent filed a motion to dismiss under Rule 12(b)(6), M.R.Civ.P., claiming prosecutorial immunity, and a motion for a protective order from discovery. Appellant filed a motion to compel discovery.

On April 15,1994, both parties appeared and argued their motions before the District Court. On April 25,1994, the District Court issued its order granting respondent’s motion to dismiss. The District Court concluded that the parties’ discovery motions were rendered moot by its grant of respondent’s motion to dismiss. It is from the District Court’s order that appellant appeals.

Did the District Court err in granting respondent’s motion to dismiss?

The District Court granted respondent’s motion to dismiss after concluding that respondent was a government official entitled to absolute prosecutorial immunity. The District Court reasoned that “whether [appellant’s] complaint is unfounded or not is irrelevant, because a government official entitled to prosecutorial immunity is absolutely immune from suit, regardless of the merits of the claim involved.”

“In reviewing a motion to dismiss, we construe the complaint in the light most favorable to the plaintiff and take the allegations of the complaint as true.” Goodman Realty, Inc. v. Monson (1994), 267 Mont. 228, 883 P.2d 121, 123; King v. State (1993), 259 Mont. 393, 395, 856 P.2d 954, 955. Our scope of review is broad and we examine the entire case and make a determination in accordance with our findings. Goodman, 883 P.2d at 123; King, 856 P.2d at 955. We will affirm the dismissal only if we find that the plaintiff is not entitled to relief under any set of facts which could be proved in support of the claim. Goodman, 883 P.2d at 123; King, 856 P.2d at 955.

Appellant argues that the District Court erred by granting prosecutorial immunity to respondent. Appellant asserts that prosecutorial immunity should not shield respondent, who was performing an administrative function while investigating appellant’s application for a gambling license.

Respondent is a Department of Justice investigator who acts as an agent of the Attorney General “to conduct criminal investigations and perform related duties” pursuant to § 44-2-111, MCA. The doctrine of prosecutorial immunity is not limited to persons who hold the title of “prosecutor.” It extends to persons involved in prosecutorial or quasi-prosecutorial functions. State ex rel. Dept. of Justice v. District Court (1977), 172 Mont. 88, 560 P.2d 1328. The District Court determined that the critical question was whether respondent was acting within his authority as a Department of Justice employee to be directly involved with the prosecution of a gambling violation when he issued an “Offense Report” recommending criminal prosecution of appellant, thereby entitling him to absolute prosecutorial immunity The District Court concluded that respondent’s conduct qualified for prosecutorial immunity because the “Offense Report” was “more or less connected to his responsibility to conduct criminal investigations and perform related duties for the Department of Justice.” In addition, the District Court concluded that the issuance of the “Offense Report” was “intimately associated with the judicial phase of the criminal process since the report contains a recommendation that criminal prosecution should occur.” We disagree.

When determining whether a defendant is entitled to prosecutorial immunity, we focus on whether the alleged wrongful conduct occurred in the course of filing and maintaining criminal charges. Smith v. Butte-Silver Bow County (1994), 266 Mont. 1, 6, 878 P.2d 870, 873. Our functional approach to analyzing claims of prosecutorial immunity is similar to the approach taken by the United States Supreme Court. In Imbler v. Pachtman (1976), 424 U.S. 409, 422-23, 96 S. Ct. 984, 991, 47 L. Ed. 2d 128, 139, the Supreme Court held that a prosecutor was immune from civil liability when initiating a prosecution and presenting the state’s case. The Supreme Court reasoned that this conduct was “intimately associated with the judicial phase of the criminal process” and should not be hindered by the prospect of civil liability. However, a prosecutor engaged in administrative duties is not entitled to immunity from civil liability. Smith, 878 P.2d at 874.

A review of the statutes and administrative regulations that govern the authority of the Department of Justice to approve or reject an application for a gambling license demonstrates that as an investigator for the Department of Justice, respondent was performing an administrative function while investigating and reporting on appellant’s application. Operating a casino in Montana requires a valid license issued by the Department of Justice, Gambling Control Division. Section 23.16.102(1), ARM. An application for a gambling license must be submitted to the Department of Justice. Section 23.16.102(2), ARM. Upon receipt of an application for a gambling license, the Department of Justice must make a thorough investigation as to the qualifications of the applicant. Section 23.16.104, ARM. If, after a thorough investigation, the applicant fails to qualify, the Department of Justice may deny the issuance of a license or it may take any action authorized in § 23-5-136, MCA. See § 23-5-176, MCA. The Department of Justice is authorized under § 23-5-177, MCA, to charge the applicant a fee to cover the administrative costs incurred in determining whether the applicant qualifies for a license.

While it may be within the scope of respondent’s duties to conduct criminal investigations for the Department of Justice, in the present case respondent was assigned to the administrative task of investigating appellant’s application as opposed to the prosecutorial function of filing and maintaining criminal charges against appellant. There is nothing in the record to demonstrate that at the time of the hearing on the motion to dismiss, respondent or the Department of Justice had filed or maintained criminal charges against appellant. We fail to see how respondent’s investigation and recommendation were intimately involved in the judicial phase of the criminal process.

After reviewing the record and applying the relevant statutes and administrative regulations to the facts, we conclude that respondent was acting in an administrative capacity while investigating and reporting on appellant’s application as an agent of the Department of Revenue, rather than in a prosecutorial capacity. As a result, respondent is not entitled to prosecutorial immunity.

By granting prosecutorial immunity to respondent, the District Court did not determine whether appellant had stated a claim upon which relief could be granted. Because respondent is not entitled to prosecutorial immunity, we hold that the District Court erred in granting respondent’s motion to dismiss.

On March 27,1995, respondent filed a motion to strike appellant’s reply brief. We allowed appellant to reply, and on April 11, 1995, appellant filed her response. After considering respondent’s motion in the course of this appeal, we conclude that the issues respondent raised did not affect the outcome of this appeal.

We reverse and remand for further proceedings in accordance with this opinion.

JUSTICES TRIEWEILER, GRAY and LEAPHART concur.

JUSTICE WEBER

specially concurs as follows:

Based upon the record which is before us, I do join in the result of the opinion.

However, the opinion specifically states that while it may be within respondent’s duty to conduct criminal investigations for the Department of Justice, in the present case he was assigned to the administrative task of investigating the application as opposed to the prosecutorial function of filing and maintaining criminal charges. Because there is nothing in the record to demonstrate that the Department of Justice had filed and maintained criminal charges, the opinion concludes that there is nothing to suggest that the respondent’s investigation was intimately involved in the judicial phase of the criminal process.

The opinion next concludes that the respondent was acting in an administrative capacity while investigating the application for the license and is therefore not entitled to prosecutorial immunity. As I have suggested, I agree with that conclusion based upon the present record.

However, if the record before us demonstrated that based upon the report given, the Department of Justice had proceeded with a criminal investigation and spent time and effort to determine whether or not criminal charges were appropriate, I would then believe it appropriate to grant immunity even though no charges were filed.


author: CHIEF JUSTICE TURNAGE

text:
    DANIEL E. MOORE and DOLORES MOORE, individually, and as husband and wife, Plaintiffs and Appellants, -vs-DOES 1 TO 25, inclusive, each in their individual and professional capacities and each other and with COURT E. BALL, Esq., individually, as an attorney at law and in his business relationship s with DOES 1 TO 25, inclusive, Defendants and Respondents.
    No. 94-531.
    Submitted on Briefs April 6, 1995.
    Decided May 17, 1995.
    52 St.Rep. 399.
    895 P.2d 209.
    271 Mont. 162.

      For Appellants: Don Edgar Burris, Attorney at Law, Billings.
    For Respondents: Peter F. Habein; Crowley, Haughey, Hanson, Toole & Dietrich, Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Daniel E. Moore and Delores Moore brought this action for legal malpractice in the District Court for the Thirteenth Judicial District, Yellowstone County. The court granted defendant Court E. Ball’s motion for summary judgment. The Moores appeal. We affirm.

The issue is whether the court erred in ruling that this action requires expert testimony and in granting summary judgment on the basis of the Moores’ failure to produce such testimony.

In January 1990, Donna Rostad and her daughters Deborah Birchell and Kathleen Riter (sellers) agreed in writing to sell the “Country Pride” restaurant in Big Timber, Montana, to the Moores. The buy/sell agreement stated “[r]ights to the sewer and right of way as well as the lift station to be transferred to buyers as part of this sale.” The agreement also stated that the buyers and the sellers were to share the legal costs of drafting the contract, but

[s]ellers request that their attorney represent them, draw the closing contract and documents. Buyers may request review of documents by their own legal counsel if they so desire.

The sellers asked attorney Court Ball for his services. Ball prepared various documents incident to the closing, including a contract of sale.

Ball did not include in the contract of sale the words “rights to the sewer and right of way as well as the lift station to be transferred to buyers as part of this sale.” Several months after the contract was executed, another individual represented to the Moores that he held rights to the sewer and right of way. The Moores rescinded the contract. They then brought this action against Ball, alleging legal malpractice.

Following discovery, Ball moved for summary judgment. The District Court noted that a factual issue existed as to whether an attorney/client relationship existed between the Moores and Ball. It concluded, however, that the Moores had failed to provide necessary expert testimony concerning the standard of care for an attorney under these circumstances. In so concluding, the court reasoned that the alleged misconduct by Ball was not so apparent that a lay juror could understand the issue. The court granted summary judgment on the basis that the Moores had failed to establish an issue of material fact as to one element of their cause of action, breach of an attorney’s standard of care.

Did the court err in ruling that this action requires expert testimony, and in granting summary judgment on the basis of the Moores’ failure to produce such testimony?

This Court’s standard of review of an order granting summary judgment is the same as the standard initially applied by the district court. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. The moving party must establish the absence of genuine issues of material fact in the record, and that he or she is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. The non-moving party may not rely upon mere conclusory or speculative statements to oppose a motion for summary judgment, but must produce facts of a substantial nature to show a genuine issue of material fact. Lueck v. United Parcel Service (1993), 258 Mont. 2, 9, 851 P.2d 1041, 1045.

In Lorash v. Epstein (1989), 236 Mont. 21, 767 P.2d 1335, this Court listed the elements of a legal malpractice claim:

In pursuing a negligence or breach of contract action against an attorney, the plaintiff must initially establish the existence of an attorney-client relationship. The plaintiff must then establish that acts constituting the negligence or breach of contract occurred, proximately causing damages to the plaintiff. The final requirement for the plaintiff is the need to establish “[t]hat 'but for’ such negligence or breach of contract the client would have been successful in the prosecution or defense of the action.”

Lorash, 767 P.2d at 1337. In the present case, the District Court concluded that the Moores failed to raise an issue of fact as to the element “acts constituting negligence.”

As a general rule, only expert testimony can establish the standard of care in a legal malpractice case. Carlson v. Morton (1987), 229 Mont. 234, 240-41, 745 P.2d 1133, 1137-38. The exception is that no expert witness is needed if “the attorney’s misconduct is so obvious that no reasonable juror could not comprehend the lawyer’s breach of duty.” Carlson, 745 P.2d at 1137.

Court Ball submitted the affidavit of attorney James W. Thompson in support of his motion for summary judgment. Thompson testified by affidavit that he had reviewed the documents prepared by Ball and that those documents were in his opinion competently prepared and effective for their intended purpose. He testified that in his opinion the contract transferred all rights of the sellers in the sewer line and the lift station serving the property.

Thompson’s expert testimony was the only independent expert testimony offered in this case. The Moores introduced two affidavits in connection with the motion for summary judgment. Neither affidavit addressed the applicable standard of care for an attorney under these circumstances.

The first affidavit submitted by the Moores was signed by the individual who claimed an interest in the sewer line. He did not claim to be an attorney. He set forth his point of view concerning ownership of the sewer line. The Moores also introduced an affidavit by their counsel in this action, Don Burris. Burris opined that “Mr. Ball viewed himself as a scrivener only in the transaction that is the subject of this lawsuit.” Burris’s affidavit was addressed primarily to the question of whether an attorney/client relationship existed between Ball and the Moores.

The Moores assert to this Court that a segment of the sewer line located outside of the Country Pride property was subject to different conveyancing requirements than a segment located on the Country Pride property, which they now claim was never at issue. This assertion only buttresses the argument that the standard of care for an attorney under these circumstances is a matter not obvious to a lay juror and requiring expert testimony.

The District Court stated, “An attorney’s standard of care involved in drafting a closing contract, specifically with how fixtures and appurtenances should be conveyed, is complex.” We agree. We hold that this case required expert testimony as to the standard of care for an attorney under the circumstances presented. The Moores’ failure to produce expert testimony that Ball did not meet the applicable standard of care was fatal to their case.

The Moores also argue to this Court that an attorney/client relationship existed between them and Ball. The presence of a question of fact on that element of the action for legal malpractice is irrelevant, because it was not the basis for summary judgment.

We hold that the District Court did not err in ruling that this action required expert testimony on the standard of care required of Ball and in granting summary judgment in his favor based on the Moores’ failure to produce such testimony. Affirmed.

JUSTICES GRAY, HUNT, NELSON and LEAPHART concur.


text:
    IN RE THE PETITION OF RICHARD D. HINMAN
    No. 94-599.
    Decided April 25, 1995.
    52 St.Rep. 351.
    895 P.2d 609.
    271 Mont. 167.
   ORDER

Richard D. Hinman pled guilty to sexual assault on June 2, 1994, and on July 2,1994, was sentenced to serve 12 years in the Montana State Prison.

Hinman has filed a petition for post-conviction relief with this Court. He claims that his guilty plea was not voluntarily made and was unlawfully induced. Hinman adds that his conviction was obtained based on: a coerced confession, evidence from an unconstitutional search and seizure, an unlawful arrest, a violation of his privilege against self-incrimination, and the prosecution’s failure to disclose evidence that was favorable to him in violation of the Constitution. He further claims that the judge was biased and that he was denied effective assistance of counsel.

The State responds that Hinman waived his claims regarding constitutional violations and judicial bias because he pled guilty to the charged offense. The State adds that Hinman’s ineffective assistance of counsel claim is not supported by the record.

In Hagen v. State (1994), 265 Mont. 31, 35, 873 P.2d 1385, 1387, we stated that “a plea of guilty which is voluntarily and understandingly made constitutes a waiver of nonjurisdictional defects and defenses, including claims of constitutional violations which occurred prior to the plea.” We added that the defendant thereafter “ ‘may only attack the voluntary and intelligent character of his plea.’ ” Hagen, 873 P.2d at 1387 (quoting State v. Hilton (1979), 183 Mont. 13, 18, 597 P.2d 1171, 1174 (citing Tollett v. Henderson (1973), 411 U.S. 258, 93 S. Ct. 1602, 36 L. Ed. 2d 235).

The transcript indicates that Hinman knowingly and intelligently pled guilty. The court asked Hinman several questions. Hinman’s responses indicate that he understood what he was doing, understood the consequences, was adequately advised by counsel, and was treated fairly. Hinman failed to provide evidence that his guilty plea was not voluntarily and intelligently made.

Hinman’s claim that the State failed to disclose evidence lacks merit because the evidence he refers to is mentioned in the affidavit in support of the State’s application for leave to file an amended information.

Hinman also claims he was denied effective assistance of counsel because his counsel failed to ask pertinent questions or subpoena witnesses on his behalf, and spoke to him for only ten minutes before trial. Hinman fails to allege that he was prejudiced under Strickland v. Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, which requires a showing that the outcome of a case would have been different had it not been for counsel’s errors. Nor has he shown that were it not for his counsel’s alleged deficient performance, he would have insisted on going to trial. State v. Mahoney (1994), 264 Mont. 89, 101, 870 P.2d 65, 73 (citing State v. Senn (1990), 244 Mont. 56, 59, 795 P.2d 973, 975).

Hinman admitted facts that establish the elements of felony sexual assault. The court asked Hinman several times if he was satisfied with his counsel’s performance. His responses were affirmative. He also stated that his attorney contacted him and conferred with him when he was asked to. Hinman has not offered evidence of his counsel’s deficient performance, nor has he shown that but for counsel’s performance, he would not have pled guilty.

We conclude that Hinman is not entitled to post-conviction relief based on alleged constitutional violations, judicial bias, or ineffective assistance of counsel. Therefore,

IT IS HEREBY ORDERED that Hinman’s petition for post-conviction relief is DENIED.

The Clerk is directed to mail a true copy hereof to petitioner personally and to counsel for respondent State of Montana.

DATED this 25TH day of April, 1995.

/S/J. A. TURNAGE, Chief Justice

/S/ KARLA M. GRAY, Justice

/S/ TERRY N. TRIEWEILER, Justice

/S/WILLIAM E. HUNT, SR., Justice

/S/W. WILLIAM LEAPHART, Justice

/S/ JAMES. C. NELSON, Justice

/S/ FRED J. WEBER, Justice


author: JUSTICE GRAY

text:
    CITY OF WHITEFISH, Plaintiff and Respondent, -vs-CAROL PINSON, Defendant and Appellant.
    No. 94-302.
    Submitted on Briefs February 16, 1995.
    Decided May 11, 1995.
    52 St.Rep. 384.
    895 P.2d 610.
    271 Mont. 170.

      For Appellant: Stephen J. Nardi; Sherlock & Nardi, Kalispell.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders, Ass’t Attorney General, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Carol Pinson (Pinson) appeals from the Order of Judgment and Sentence convicting her of a violation of § 61-8-401, MCA, entered by the Eleventh Judicial District Court, Flathead County. We reverse, holding that the District Court erred in denying Pinson’s motion to dismiss the charge.

The specific issue before us is whether Pinson’s due process rights were violated by the failure of the City of Whitefish to comply with a request for an independent blood test.

In the early morning hours of December 10, 1992, Officer Geno Cook (Cook) of the City of Whitefish Police Department (City) initiated a traffic stop of Pinson’s vehicle. He ultimately placed Pinson under arrest and transported her to the City police station for booking. Cook videotaped the booking procedure. Specific facts relating to events occurring during the videotaped booking procedure are set forth in our discussion of the issue.

Cook issued a citation charging Pinson with driving under the influence of alcohol in violation of § 61-8-401, MCA. Pinson moved the City Court of Whitefish to dismiss the charge, on the basis that her due process rights were violated by Cook’s failure to take her to obtain a blood test as she requested. The City Court denied the motion and ultimately found Pinson guilty of the charged offense. Pinson appealed to the District Court.

Pinson filed a motion to dismiss in the District Court on essentially the same grounds she raised in the City Court. Both Pinson and the City briefed the issue and the District Court held an evidentiary hearing on Pinson’s motion. The videotape was admitted into evidence. Pinson testified on her own behalf, as did her friend Alyse Ryan (Ryan), who had been present at the police station on the morning of Pinson’s arrest. Cook testified on the City’s behalf. The court viewed the videotape after the hearing was concluded.

The District Court denied Pinson’s motion to dismiss by minute entry and subsequently found her guilty of the charged offense. The court imposed sentence and stayed execution of the judgment of conviction pending appeal. Pinson appeals.

Were Pinson’s due process rights violated by the City’s failure to comply with a request for an independent blood test?

Pinson alleges that she requested a blood test during the booking procedure, Cook said the test would be obtained, and the blood test was not obtained. Relying primarily on State v. Swanson (1986), 222 Mont. 357, 722 P.2d 1155, and State v. Peterson (1987), 227 Mont. 418, 739 P.2d 958, she argues that her due process right to attempt to obtain exculpatory evidence was violated. Contending that Pinson did not make a timely request for a blood test, the City asserts that the District Court properly denied Pinson’s motion to dismiss pursuant to Peterson and State v. Klinkhammer (1993), 256 Mont. 275, 846 P.2d 1008.

The law is clear that a person accused of a criminal offense has a constitutional right to attempt to obtain exculpatory evidence. Klinkhammer, 846 P.2d at 1010-1011, citing Swanson, 722 P.2d at 1157. When the offense charged involves intoxication, we held in Swanson that this right encompasses the accused’s right “to obtain an independent blood test to establish his sobriety regardless of whether he submits to a police designated test.” Swanson, 722 P.2d at 1157.

We clarified the Swanson rule in Peterson. There, we determined that the rule applies only when (1) the accused timely asserts the right to an independent blood test; and (2) the law enforcement officer does not unreasonably impede the right to obtain the test. Peterson, 739 P.2d at 961. In the case presently before us, only the first Peterson criterion is at issue.

We apply the clearly erroneous standard in reviewing a court’s finding regarding whether an accused made a timely request for an independent test. See Klinkhammer, 846 P.2d at 1010; citing State v. Cope (1991), 250 Mont. 387, 819 P.2d 1280. Here, the District Court denied Pinson’s motion via minute entry and without entering findings or providing its rationale. Because the matter was submitted to the court solely on the basis of whether Pinson timely requested an independent blood test, however, the District Court necessarily found that no timely request was made. Thus, we examine the record before us to determine whether the court’s finding is clearly erroneous.

The record regarding Pinson’s request for an independent blood test reflects the following. The videotape of the booking procedure establishes that Pinson initially was somewhat confused regarding the breath test designated by Cook and whether she wanted to submit to that test. Cook explained the breath test requirement to Pinson several times and made it clear that an independent test would not be in lieu of the breath test he had designated. Pinson stated “Let’s do blood.” Thereafter, Cook advised that he was “marking that down as a refusal,” and Pinson responded that she did not know what to do. Cook then stated: ‘We’ll go get blood in a little while, but you realize it will be at your own expense.” Pinson replied, “I don’t care.” No further discussion regarding either the breath or blood test is contained on the videotape. The booking procedure was completed and Pinson was placed in a cell. No further videotaping occurred.

As evidenced by the videotape, Pinson’s request for a blood test was clearly stated and timely made. Moreover, Cook affirmatively told Pinson that they would get the requested test.

In addition, Pinson testified at the evidentiary hearing that she refused the breath test and requested the blood test, and that Cook said he would take her for the test. Cook’s own testimony concedes the issue:

Q. And do you recall that — I mean she initially was very confused and didn’t know what to do; right?
A. Yes, sir.
Q. But then she said exactly, I quote, “Let’s do blood,” right?
A. Yes, sir.
Q. And your reply was, quote, ‘We will go get blood in a little while, but you realize it is at your own expense"?
A. Yes, sir.
Q. And she replied, “I don’t care"?
A. Yes, sir.
Q. You said, “I will take you to get blood.” You promised her you would take her to the hospital to give blood?
A. That is my job. That is part of the statute that I have to follow, yes, sir.
Q. So my question is, at that point there was a request to get blood, and you had agreed to it; right?
A. Yes, sir.
Q. At that point she has requested, and you have consented to her request for a blood test; have you not?
A. Yes, sir.

On this record, the City’s characterization of the videotape as evidencing something less than a request by Pinson for the blood test is specifically belied by the videotape itself and by Cook’s testimony. Further, the City’s effort to recharacterize Pinson’s clear and timely request — by relying on certain responses she provided at the evidentiary hearing some four months after the videotape was made — is inappropriate. As we recently stated in a different context, the government “may not ‘undo’ clear notice provided at a specific point in time by relying on testimony given three months later.” See Magone v. Froehlich (1995), [270 Mont. 381], 892 P.2d 540, 545.

Nor, given this record, is the City’s reliance on the facts oí Klinkhammer well placed. There, the videotape evidenced the defendant requesting that a physician of his choice administer a test; the defendant did not appear to be requesting an independent test. Klinkhammer, 846 P.2d at 1009. Moreover, once the defendant understood that he was not entitled to his physician of choice to administer the officer-designated test, he consented to the offered test and did not request an independent test. Klinkhammer, 846 P.2d at 1010. Here, the videotape and the testimony indicated that Pinson requested the blood test and Cook agreed that it would be done. The officer-designated test was refused.

On the basis of the record before us, we conclude that the District Court’s implicit finding that Pinson did not timely request an independent blood test is not supported by substantial credible evidence and is clearly erroneous.

Finally, we observe that Pinson and the City offered conflicting testimony to the District Court regarding a conversation between Pinson and Cook which occurred at Pinson’s cell after the videotaping had ceased. Generally, Pinson’s version — confirmed by her friend Ryan — was that she re-requested the independent blood test at that time and Cook refused the request. In Cook’s version, premised on the lack of a previous timely request for the independent blood test, Pinson remained indecisive about the independent test during the later conversation, even when urged by Ryan to get the test; only after that did Cook break off further discussion of the blood test.

The parties reargue the conflicting testimony about the subsequent conversation here. Given our conclusion that Pinson clearly and timely requested an independent blood test during the videotaped booking procedure and the City’s sole reliance on the lack of such a request at that time, we need not address the conflicting versions of the later conversation.

We hold that, on the basis of the record before us in this case, the City’s failure to comply with Pinson’s request for an independent blood test violated her due process right to attempt to obtain exculpatory evidence. On that basis, we further hold that the District Court erred in denying Pinson’s motion to dismiss.

Reversed and remanded with instructions to the District Court to vacate its Order of Judgment and Sentence and enter an order dismissing the charge.

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