text:
    RICHARD E. REICHLE and LINDA REICHLE, Plaintiffs and Respondents, v. M. McKEE ANDERSON and JUDY Y. ANDERSON, RICHARD J. RANKIN and DONNA R. RANKIN, Defendants and Appellants.
    No. 97-062.
    Submitted on Briefs June 12, 1997.
    Decided September 8, 1997.
    54 St.Rep. 930. 943 P.2d 1324.
    284 Mont. 384.

      For Appellants: W. Cecil Jones and Calvin J. Erb, Attorneys at Law, Dillon (for Andersons); Mark David Hoffman; Hoffman & Suenram, Dillon (for Rankins).
    For Respondents: Christine D. Somers; Haxby & Somers, Butte.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Appellants M. McKee Anderson and Judy Y. Anderson (Andersons) appeal from the Judgment of the Fifth Judicial District Court, Beaverhead County, holding that the Respondents, Richard E. and Linda Reichle (Reichles), are the owners of a thirty foot right-of-way easement through Andersons’ property. We affirm.

We address the following issues on appeal:

1) Whether the District Court erred when it determined that language in the Rankin-Anderson contract for deed was sufficient to create an easement?

2) Whether the District Court erred when it refused to allow Andersons to inspect or review a file that a witness used on the witness stand to refresh his memory?

Factual and Procedural Background

In June of 1980, Andersons entered into a buy-sell agreement with Richard J. and Donna R. Rankin (Rankins) to purchase a piece of property in Beaverhead County. The buy-sell agreement specifically stated as follows:

Sellers are keeping an easement 30’ Wide across the South side of this tract of land for access to property that lies on the west side of the tract being sold to the Andersons.

The buy-sell agreement called for a survey to be performed to establish the boundary of the property to be sold to the Andersons. A certificate of survey was prepared and recorded but does not contain any reference to, or description of, an easement reserved by the Rankins.

The Andersons entered into a contract for deed with the Rankins in November of 1980 (Rankin-Anderson contract for deed). The Rankin-Anderson contract for deed was ten pages long with an attached Exhibit “A,” which described the real property being transferred. Exhibit “A” stated that the property was purchased “[sjubject however, to reservation of an easement of right of way with ingress and egress by Richard J. Rankin and Donna R. Rankin, which easement is more particularly described as follows ....” The Rankin-Anderson contract for deed also stated that the parties shall be bound by the terms and conditions contained in the buy-sell agreement and that the agreement was to be incorporated by reference and made a part of the contract for deed in all particulars.

A notice of purchaser’s interest signed by both Rankins and Andersons and recorded in the Beaverhead County Clerk’s Office also contains the same Exhibit “A,” describing the real property and including the same “[s]ubject however, to reservation of an easement” language. In 1986, a warranty deed from Rankins to Andersons was filed after Andersons prepaid pursuant to the terms of the Rankin-Anderson contract for deed. This deed states that the Rankins reserved an easement of right-of-way for ingress and egress through the Andersons’ newly acquired property. At the same time, the Andersons recorded a homestead exemption for their property that again specifically reserved a thirty foot right-of-way easement for the Rankins.

In October of 1992, Reichles entered into a buy-sell agreement with the Rankins to purchase a ten acre piece of land located on the west side of a canal running between the ten acre piece of land and property already owned by the Reichles on the east side of the canal. The Reichles buy-sell agreement states: “Buyer to receive a 30’ easement from public railroad crossing to tract A retained by Seller across McKee Anderson south property line.” The buy-sell agreement also has language typed in under the “special provisions” section which states: “Buyer shall be able to use bridge and road on Seller’s ground to reach tract Auntil Buyer is able to build own bridge.” This language was included because the Reichles needed use of the Rankins’ bridge to access the ten acre piece until they constructed a bridge from the easement access to the ten acre piece. The ten acre piece of property was conveyed to Reichles by warranty deed on March 24, 1993. The warranty deed specifically describes a private road easement through Andersons’ property by metes and bounds.

Reichles used Rankins’ existing road and bridge from the time of their purchase until December 1993, when they informed the Andersons that they, Reichles, intended to fence off the purported easement and graze llamas on the property. Thereafter, Rankins notified Reichles’ attorney that Reichles would not be allowed any further use of the easement. Reichles then filed a declaratory judgment action against Andersons and Rankins. Reichles’ complaint requested judicial enforcement of a right-of-way easement for ingress and egress that they claimed was expressly granted to them by the terms of their warranty deed. The complaint was answered by both defendants, and cross-claims were filed by both defendants against each other.

A bench trial was held and judgment was entered on August 10, 1995, in which the District Court ordered that the Reichles were entitled to a thirty foot right-of-way easement for ingress and egress through the southern boundary of Andersons’ property as expressly recited in their warranty deed and as originally reserved by the Rankins when they sold the property to the Andersons in 1986.

Andersons filed a motion for reconsideration in August of 1996, requesting that the court reconsider it’s judgment based upon this Court’s decision in Ruana v. Grigonis (1996), 275 Mont. 441, 913 P.2d 1247. The District Court denied the motion, and Andersons thereafter filed this appeal.

Discussion

1) Whether the District Court erred when it determined that language in the Rankin-Anderson contract for deed was sufficient to create an easement?

The District Court’s determination that the language in the Rankin-Anderson contract for deed created an easement is a conclusion of law. The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686. In this case, the District Court held that the language in the Rankin-Anderson contract for deed, stating that the conveyed property was “[s]ubject however, to reservation of an easement,” clearly established the reservation of an easement over Andersons’ property.

Andersons rely on our decisions in Wild River Adventures, Inc. v. Board of Trustees of School Dist. No. 8 (1991), 248 Mont. 397, 812 P.2d 344 and Ruana, 913 P.2d at 1253, for their proposition that “subject to” language in a deed is not enough to create an easement where the certificate of survey does not also contain a description of the easement.

However, in both Wild River and Ruana, the actual intent of the grantors was not clear from the deed language itself. In Wild River, 812 P.2d at 346, the appellants claimed the following language in a deed created the alleged easement: “subject to and together with a 40 foot private road easement.” In determining whether this language could create an easement, we held:

The words “subject to” used in their ordinary sense, mean subordinate to, subservient to or limited by. There is nothing in the use of the words “subject to”, in their ordinary use, which would even hint at the creation of affirmative rights or connote a reservation or retention of property rights.

Wild River, 812 P.2d at 346-47. Because the language in the deed purporting to create an easement contained no affirmative reservation or retention of rights and because the grantors could not have reserved an easement at that time, we held that no easement had been reserved. Wild River, 812 P.2d at 347.

We relied on Wild River in Ruana in determining that language in a deed conveying land “subject to an access easement” did not create an easement. We went on to note that “an easement by reservation can be established when, in conjunction with a division of land, the subject easement is shown on the certificate of survey and the certificate of survey is referred to and incorporated in the deed of conveyance.” Ruana, 913 P.2d at 1253 (emphasis added). We held that an easement had not been granted or reserved when the original grantors subdivided the land because neither the language of the deed nor the certificate of survey established the easement. Ruana, 913 P.2d at 1253.

In the instant case, although there is no mention of the easement in the certificate of survey, the language in Exhibit “A” of the Rankin-Anderson contract for deed clearly reserves an easement and states: “Subject however, to reservation of an easement of right of way.” As we held in Wild River, “ ‘[a] conveyor who, in terms, “excepts” or “reserves” an easement, is permitted to have the rights thereby intended to be enjoyed by him. ...’” Wild River, 812 P.2d at 346 (quoting 3 Powell on Real Property, § 407, pp. 34-39 to 34-42) (emphasis added). Rankins, in terms, reserved an easement through the language “[s]ubject however, to reservation of an easement right of way.”

In neither Wild River nor Ruana did the deeds in question contain the word “reservation;” they simply stated that the conveyed property was “subject to” the purported easement. In these cases, because the deeds themselves did not clearly reserve an easement, we looked for other indications that an easement had been created. In Wild River, we looked to the grantors’ intent; in Ruana, we looked to a certificate of survey. In the instant case, we need look no further than the deed itself. Rankins clearly reserved an easement when they conveyed the property to Andersons. Therefore, we affirm the District Court’s conclusion that Rankins reserved an easement in the deed to Andersons and could thereby convey the easement to Reichles.

2) Whether the District Court erred when it refused to allow Andersons to inspect or review a file that a witness used on the witness stand to refresh his memory?

The standard of review of discretionary trial court rulings is abuse of discretion. May v. First Nat’l Pawn Brokers, Ltd. (1995), 270 Mont. 132, 134, 890 P.2d 386, 388. At trial, Andersons introduced a copy of the contract for deed between themselves and Rankins. This copy was allegedly made by McKee Anderson at the closing before Judy Anderson had signed the contract. The material provisions of the contract for deed “copy” were the same as found in the original, except for the absence of Judy Anderson’s signature and the absence of any reference to a reservation of an easement by the Rankins in Exhibit “A.” Andersons claimed that the original contract for deed had been in the sole possession of Rankins from 1980 until 1983 and that Exhibit “A” could have been altered during that time.

During trial, the attorney for Rankins who prepared the contract for deed testified and was asked to compare the language in the original contract for deed with the language in the Anderson copy. Rankins’ attorney referred to a copy of the contract for deed in his possession to refresh his memory. Counsel for Andersons asked to review the witness’ entire “file” for purposes of cross-examination. The District Court denied the request. Andersons argue on appeal that the District Court abused its discretion under Rule 612, M.R.Evid., in refusing their request to review the file and in failing to preserve the file for appellate review. Rule 612 governs writings used to refresh memory and provides:

If a witness uses a writing to refresh memory for the purpose of testifying, either

(1) while testifying, or
(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce into evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objection shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

Rule 612, M.R.Evid.

Andersons claim the District Court’s decision not to allow them to review the file foreclosed their opportunity to effectively cross-examine the witness as to the contents of the file. Additionally, they claim the court’s failure to preserve the file for appeal has forever denied them access to the file.

Questions concerning the admissibility of evidence must be left to the sound discretion of the trial judge, subject to review only in situations that indicate a manifest abuse of discretion. Cech v. State (1979), 184 Mont. 522, 604 R2d 97. No such manifest abuse of discretion exists here. The Rankin-Anderson buy-sell agreement, the notice of purchaser’s interest, and the warranty deed each contain a reference to the easement in question. The “copy” of the Rankin-Anderson contract for deed appeared only days before trial despite the fact that the notice of purchaser’s interest, which included the easement language, was recorded fourteen years earlier and the warranty deed, also including the easement language, was recorded nine years earlier. Additionally, at the time the warranty deed was recorded, Andersons recorded a homestead exemption for their property which included an Exhibit “A” (with the easement language) identical to the Exhibit “A” that Andersons were challenging at trial. Therefore, the District Court could easily have concluded that the “interests of justice” did not require inspection of the witness’ copies of these documents. Accordingly, the District Court did not abuse its discretion in refusing Andersons’ request to review the witness’ file. Affirmed.

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


source: Caselaw Access Project

author: JUSTICE REGNIER

license: Public Domain

text:
    IN RE MARRIAGE OF JANET STICE DORSEY, Petitioner and Appellant, and GEORGE W. DORSEY, III, Respondent and Respondent.
    No. 97-246.
    Submitted on Briefs August 7, 1997.
    Decided September 8, 1997.
    54 St.Rep. 934. 945 P.2d 430.
    284 Mont. 392.

      For Appellant: James D. McKenna, Walsh & McKenna, Bozeman.
    For Respondent: Edmund P. Sedivy, Jr.; Sedivy, Bennett & White; Bozeman.
   JUSTICE REGNIER

delivered the Opinion of the Court.

The marriage of Janet Stice Dorsey and George W. Dorsey was dissolved pursuant to a decree issued by the Eighteenth Judicial District Court, Gallatin County. Subsequently, Janet moved the court to alter or amend the decree. Janet appeals the District Court’s order denying her motion to alter or amend.

Affirmed.

The issues on appeal are:

1. Did thé District Court abuse its discretion when it denied Janet’s motion to alter or amend the judgment with respect to the distribution of certain personal property items?

2. Did the District Court abuse its discretion when it denied J anet’s motion to alter or amend the judgment with respect to the division of the individual retirement accounts?

FACTUAL BACKGROUND

Janet and George Dorsey were married on February 23, 1980, in New York City, New York, and have been married since that time. The parties have been separated and have lived apart since January 1, 1995. On November 2, 1995, Janet Dorsey filed a petition for dissolution of marriage with the Eighteenth Judicial District Court, Gallatin County.

This case was tried before the District Court on October 23 and 24, 1996. On December 9, 1996, the District Court issued its findings of fact, conclusions of law, and dissolution of marriage. On December 31,1996, the District Court issued its decree of dissolution.

On January 10, 1997, Janet filed a motion to alter or amend judgment pursuant to Rule 59(g), M.R.Civ.P. On February 25, 1997, the District Court issued an order denying Janet’s motion to alter or amend judgment. Janet now appeals from the District Court’s order denying her motion.

DISCUSSION

The amendment of a judgment is within the discretion of a district court. See Marriage of Grounds / Coward (1993), 256 Mont. 397, 402-03, 846 P.2d 1034, 1037-38; Marriage of Vakoff (1992), 252 Mont. 56, 59-60, 826 P.2d 552, 554.

Janet’s motion to alter or amend judgment requested relief in two areas. First, Janet seeks to amend the decree to award her certain personal property items which she listed on Exhibit A, which was attached to her proposed findings of fact and conclusions of law. Second, she seeks to amend the decree to provide that each of the parties shall receive one-half of the individual retirement account (IRA) funds owned by them, either in the form of actual funds and accounts, or at each party’s option, the cash equivalent of those funds. In denying her motion to alter or amend judgment, Janet contends that the District Court abused its discretion and should be reversed. We address these items separately to determine whether the District Court abused its discretion in denying Janet’s motion to alter or amend judgment.

ISSUE 1

Did the District Court abuse its discretion when it denied Janet’s motion to alter or amend the judgment with respect to the distribution of certain personal property items?

Paragraph 7 of the decree of dissolution states:
The assets and debts of the parties are distributed as set forth in Exhibit A, attached hereto and by this reference made a part of this Decree. Unless otherwise agreed by the parties, transfer of all property, including stock certificates, all items set forth in Findings of Fact No. 17, the Jersey Pride loan and other property shall be made within ten (10) days from the date hereof, and Respondent’s temporary support obligations shall cease as of December 1, 1996.

Janet argues that this paragraph of the court’s decree should be amended to allow her to be awarded not only the items set forth in the District Court’s Finding of Fact No. 17, but also all the items listed on petitioner’s Exhibit A attached to her proposed findings of fact and conclusions of law.

The District Court’s Finding of Fact No. 17 reads:

When the parties, separated, Respondent moved from the marital home and removed furniture and other items at that time. Petitioner requested at trial that she have returned to her possession the items on Exhibit A of Petitioner’s Amended Proposed Findings of Fact and Conclusions of Law. Respondent objected to that and to the value placed on the items in the houses. The Court accepts the values placed on the items by Vellinga Auction Company as little evidence was offered, (except as to the jewelry), to support any other values. The Court will order that Petitioner have returned to her possession the “Cherry Blossom” green and pink Depression ware, items made by Petitioner’s father and mother, all gifts given to the Petitioner by her children, friends and family, one-half of the Wallace Nutting pictures, one-half of the camping equipment, and the Madame Alexander Doll Collection. The Court gives respondent item #229, the antique dining table with six matching chairs. The Court declines to further attempt to divide the household furnishings, but leaves the parties to negotiate any change in such division themselves.

Attached to the District Court’s findings of fact and conclusions of law was the court’s Exhibit A, an itemized distribution of the parties’ assets and debts. Among the items, the District Court awarded Janet “Items on Petitioner’s Exhibit A,” with a value of $560.

Janet argues that this description of personal property, and the value, was taken from the proposed distribution set forth on Exhibit B to her amended proposed findings of fact and conclusions of law. This description, and the value, was taken from Paragraph 25 of Janet’s amended proposed findings and conclusions and includes all the property on Janet’s Exhibit A to her proposed findings and conclusions. Janet contends that the District Court had actually intended to adopt her proposed distribution of these assets, and that she was to receive all of those personal property items. Thus, Janet concludes that the decree of dissolution does not conform to the District Court’s findings of fact and conclusions of law and the District Court abused its discretion in failing to alter or amend the decree of dissolution.

George counters that the marital property that Janet was to receive in the dissolution was clear and definite. He states that the District Court properly exercised its discretion in dividing the marital property and by denying Janet’s motion to alter or amend judgment.

This Court determines that the District Court’s distribution of the marital personal property assets was clear and definite. The District Court further clarified the distribution of the personal property for both parties in a minute entry dated December 31, 1996. In the minute entry, issued after the decree of dissolution and the findings of fact and conclusions of law, the District Court stated that the court signed decree “accurately reflects the Court’s intent in this matter.” The District Court further states that “[petitioner is only entitled to the property listed on Exhibit ‘A,’ which is specifically mentioned in Finding of Fact No. 17.”

The District Court specified in Finding of Fact No. 17 that certain items from petitioner’s Exhibit A be returned to Janet. This Court concludes that by specifying that certain items from petitioner’s Exhibit A be returned to Janet, the District Court intended that the remaining items stay in George’s possession. Furthermore, taken as a whole, the District Court’s findings of fact and conclusions of law, the decree of dissolution, and the minute entry of December 31,1996, conform in all material respects.

We conclude that the District Court did not abuse its discretion in declining to amend the personal property award and give Janet all the items listed on petitioner’s Exhibit A.

ISSUE 2

Did the District Court abuse its discretion when it denied Janet’s motion to alter or amend the judgment with respect to the division of the individual retirement accounts?

Janet argues that the District Court abused its discretion by not amending Paragraph 8 of the dissolution decree to provide that each of the parties receives one-half of the IRA funds owned by them, either in the form of actual funds and accounts, or at each party’s option, the cash equivalent of those funds. In the decree, the District Court gave George the option of either paying Janet one-half of the current cash value of both IRA accounts and keeping the IRA accounts for himself, or transferring one-half of each individual IRA account to Janet.

The parties stipulated that the IRA accounts had a current cash value of $38,666. This figure was determined by taking the current balances of the two IRA accounts and adding them together for a total of $64,445. From this amount, the parties subtracted 10 percent for a penalty charge and 30 percent for income taxes if the accounts were liquidated at the time of stipulation to determine the current cash value of $38,666. In Exhibit A attached to the District Court’s findings of fact and conclusions of law, both Janet and George were awarded $ 19,333, one-half of the total current cash value of both IRA accounts.

J anet argues that by allowing George the option of keeping the IRA accounts and paying her $19,333, the District Court is allowing for a grossly disproportionate distribution of the IRA accounts. Janet asserts that if George exercises this option, he will only pay her $ 19,333 and keep an asset worth $64,445. She argues that this result would be contrary to the plain language of the District Court’s findings of fact and conclusions of law, and significantly alters the overall distribution of the marital estate from what is shown on Exhibit A.

George argues that the division of the IRA accounts was equitable and that Janet received her fair share. George states that neither party is of an age that he or she can cash in the IRAs without paying a penalty and income taxes. At this time, the IRA accounts cannot be cashed in for $64,445, they only have a net redemption value of $38,666.

In the order denying Janet’s motion to alter or amend judgment, the District Court stated, with respect to the IRA accounts, that as long as Janet received one-half of the total present value of the IRA accounts as stipulated by the parties, she is receiving an equitable distribution.

This Court concludes that the District Court did not abuse its discretion in denying to amend its judgment with respect to the division of the IRAs. Both parties stipulated on October 22,1995, the first day of trial, that the IRAs had a present value of $38,666. Under Paragraph 8 of the dissolution decree, the District Court gave George the option of either transferring ownership of one-half of the IRA accounts or paying Janet $19,333, the net value of those accounts. If George chooses to pay Janet $19,333 in cash, she is still receiving one-half of the total present value of the IRA accounts, and thus, she is receiving an equitable distribution.

George requests that this Court award him attorney fees and costs for defending this appeal. Under § 40-4-110, MCA, this Court may allow the recovery of attorney fees incurred after entry of judgment by the district court, including attorney fees incurred in defending an appeal.

The discretionary nature of § 40-4-110, MCA, does not mandate the Court to award costs and attorney fees. We decline to do so here.

In conclusion, this Court holds that the District Corut did not abuse its discretion in denying Janet’s motion to alter or amend judgment with respect to the distribution of the personal property assets or the IRA accounts.

Affirmed.

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


author: JUSTICE LEAPHART

text:
    JAMES V. KRAUSE and DOLORES R. KRAUSE, Plaintiffs and Appellants, v. DAN NEUMAN and RITA NEUMAN, Defendants and Respondents.
    No. 97-092.
    Submitted on Briefs August 14, 1997.
    Decided September 9, 1997.
    54 St.Rep. 937. 943 P.2d 1328.
    284 Mont. 399.

      For Appellants: Jon G. Beal; Datsopoulos, MacDonald & Lind, Missoula; Michael G. Black; Lukins & Annis, Spokane, Washington.
    For Respondents: William C. Watt, Sara J. Johnson; Mullendore, Tawney & Watt, Missoula.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Appellants, James V. Krause and Delores R. Krause (the Krauses) appeal from the December 10, 1996 order of the Montana Fourth Judicial District Court, Missoula County, dismissing their amended complaint for lack of subject matter jurisdiction. We affirm.

We restate the issues raised on appeal as follows:

1) Under federal statutory law, is jurisdiction to adjudicate interests in Indian trust lands vested in federal courts to the exclusion of state courts?

2) Does resolution of the Krauses’ claims of breach of contract, tortious misrepresentation, and fraudulent inducement require a determination of rights involving Indian trust lands over which the state District Court has no subject matter jurisdiction?

Factual and Procedural Background

Respondent Dan Neuman is an enrolled member of the Confederated Salish and Kootenai Tribes (the Tribes). He has a beneficial interest in two tracts of Indian allotment land located within the exterior boundaries of the Flathead Indian Reservation. The United States holds title to the two tracts, which cover approximately 1.46 acres, in trust for the benefit of Mr. Neuman. Since their allotment, the two tracts have been transferred three times: from the original allottees to the Tribes, from the Tribes to Mr. Neuman’s mother, Josephine Neuman, and from Josephine to her son. All of these transfers were made with the approval of the Bureau of Indian Affairs (BIA) pursuant to federal statute.

In May 1994, desiring to sell his land and the house situated thereon, Mr. Neuman sought the assistance of the Division of Lands of the Tribes, which processes all documents for the conveyance of trust land on the Flathead Reservation, to advertise the sale of the trust property. In June 1994, the Division of Lands and the BIA began working to clear title to the two tracts of land so that Mr. Neuman could transfer his interest outside of the Tribes. Mr. Neuman also listed the property with a Missoula real estate agent.

The Krauses are residents of the state of Washington. While visiting their daughter in Missoula, Montana, they saw Mr. Neuman’s listing in a Missoula real estate brochure. The Krauses were interested in finding a retirement home near Missoula and contacted the listing agent. The Krauses proceeded to negotiate with the agent to purchase Mr. Neuman’s trust property and eventually signed a standard buy-sell agreement. The handwritten portion of the agreement gave the Krauses the option of pur chasing “in trust or patented.” Mrs. Krause is an enrolled member of the Turtle Mountain Chippewa Tribe, Pembina Band, so the Krauses first sought to purchase the land in trust. However, upon being informed by the Tribes that it would not recognize Mrs. Krause as an Indian eligible to purchase the land in trust, the Krauses decided to purchase the land in fee. The parties dispute whether the Krauses were ever made aware that the federal government would have to approve the sale in fee and issue a patent before the land could be transferred. However, in a counter-offer that amended the buy-sell agreement, the Krauses required that the seller “help arrange to transfer property from trust to deeded status.”

Both parties made considerable efforts and expenditures to consummate the sale. However, at the time of contracting, neither party, the Tribes’ Division of Lands, nor the BIA knew that title to the two tracts was seriously clouded. The Tribes had acquired the land through an order issued by the Secretary of the Interior, which transferred the land from the non-consenting heirs of the original allottee, and the validity of the order was being questioned. In an affidavit dated January 26,1996, the Superintendent of the Flathead Agency of the BIA stated that the Agency had been working to clear the title defect since July 1994, “and efforts to clear title continue.” Three months after the agreement was signed, Mr. Neuman informed the listing agent that he wished to terminate the sale as it was apparent that the federal government would not approve the transfer of the trust property anytime soon.

The Krauses filed a complaint in the Montana Fourth Judicial District alleging breach of contract, constructive fraud, and fraudulent inducement. The Krauses prayed for specific performance or contract damages. The Neumans filed a motion to dismiss and supporting brief arguing that the District Court lacked subject matter jurisdiction over a contract action involving the sale of land located on the Flathead Indian Reservation and that the Tribes assert exclusive jurisdiction over trust land disputes. The next day, the Krauses filed an amended complaint adding fraud and negligent misrepresentation claims and deleting any prayer for specific performance. The Neumans renewed their motion to dismiss.

Subsequently, the District Court converted the Neumans’ motion to dismiss into a motion for summary judgment pursuant to Rule 56, M.R.Civ.R Both parties were allowed to submit proof of additional facts. The District Court referred the matter to a special master for oral argument on the following issues:

1) Whether the District Court lacks subject matter jurisdiction to hear the issues presented in the complaint;
2) Whether the contract claims presented by the Krauses are null and void as a matter of law; and
3) Whether the Krauses failed to name the United States as an indispensable party to the action in their complaint.

After hearing oral argument, the special master found that the claims alleged by the Krauses had a substantial nexus to Mr. Neuman’s allotment of Indian trust land and that, therefore, federal law precluded the District Court from exercising jurisdiction. The special master further found that state court jurisdiction would interfere with the Tribes’ right to self-governance.

The Krauses filed an objection to the special master’s report; however, on December 10, 1996, the District Court issued an order affirming the special master’s report and dismissing the action without prejudice for lack of subject matter jurisdiction. The court applied the test laid out in State ex rel. Iron Bear v. District Court of the Fifteenth Judicial Dist. (1973), 162 Mont. 335, 512 P.2d 1292, and determined it was precluded by federal law, specifically 28 U.S.C. §§ 1353 and 1360, from exercising jurisdiction. The court reasoned that it could not decide the Krauses’ breach of contract and tort claims without determining whether Mr. Neuman owned the land in fee or in trust and whether he had the ability to transfer his interest.

Standard of Review

We review a district court’s grant of summary judgment de novo. Motarie v. Northern Montana Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156. Thus, we apply the standards set forth in Rule 56, M.R.Civ.P., to determine that no material issues of fact exist and that the movant is entitled to summary judgment as a matter of law. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903.

Discussion

Because Congress has plenary and exclusive powers to regulate Indian affairs, a state court’s subject matter jurisdiction over such affairs is limited to that explicitly allowed by Congress. Bryan v. Itasca County (1976), 426 U.S. 373, 96 S.Ct. 2102, 48 L.Ed.2d 710. Further, the U.S. Supreme Court has recognized that Indian tribes are self-governing entities and, “until Congress acts, the tribes retain their existing sovereign powers.” U.S. v. Wheeler (1978), 435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303, 313. Thus, in determining whether the District Court properly dismissed for lack of subject matter jurisdiction, we must consider the interests of the federal and tribal courts in adjudicating disputes involving Indian affairs.

In Iron Bear, this Court held that before a district court can assume jurisdiction over any matters involving Indian affairs, “it must find subject matter jurisdiction by determining: (1) whether the federal treaties and statutes applicable have preempted state jurisdiction; (2) whether the exercise of state jurisdiction would interfere with reservation self-government; and (3) whether the Tribal Court is currently exercising jurisdiction or has exercised jurisdiction in such a manner as to preempt state jurisdiction.” Iron Bear, 512 P.2d at 1299. If the court finds that assuming jurisdiction over a dispute involving Indian affairs is preempted by federal law or that assuming jurisdiction will interfere with the Tribes’ right to govern or to resolve the dispute, it has no subject matter jurisdiction over the dispute. Geiger v. Pierce (1988), 233 Mont. 18, 758 P.2d 279.

In its order, the District Court found that two federal statutes, 28 U.S.C. §§ 1360 and 1353, preempt state courtjurisdictioninthis case. The Neumans also argue that state court jurisdiction over this action would impermissibly interfere with tribal self-government. However, because we agree with the District Court’s finding that federal statutes preclude state subject matter jurisdiction, we will limit discussion to the first part of the Iron Bear test.

1. Under federal statutory law, is jurisdiction to adjudicate interests in Indian trust lands vested in federal courts to the exclusion of state courts?

The General Allotment Act of 1887, ch. 119, § 1,24 Stat. 388 (1887), provided the statutory framework by which certain Indian lands were first designated for allotment. Each allotment had to be approved by the Secretary of the Interior and would then be held in trust by the United States for the benefit of the individual Indian allottee. The 1887 Act provided that at the expiration of the trust period, the United States would convey the trust land by patent in fee to the allottee. General Allotment Act, ch. 119, § 1, 24 Stat. 388 (1887).

Today, the General Allotment Act is codified at 25 U.S.C. §§ 331-58. Under the Act, an allottee wishing to transfer his or her interest in Indian trust land before the expiration of the trust period must have the approval of the Secretary of the Interior, 25 U.S.C. §§ 405,483, and any conveyance of land, or contract concerning the same, without this approval is “null and void.” 25 U.S.C. § 348. The Allotment Act also creates a cause of action in the federal district court for those claiming an interest under the Act. 25 U.S.C. § 345. This section states:

All persons who are in whole or in part of Indian blood or descent who are entitled to an allotment of land under any law of Congress, or who claim to be so entitled to land under any allotment Act or under any grant made by Congress, or who claim to have been unlawfully denied or excluded from any allotment or any parcel of land to which they claim to be lawfully entitled by virtue of any Act of Congress, may commence and prosecute or defend any action, suit, or proceeding in relation to their right thereto in the proper district cotut of the United States.

25 U.S.C. § 345.

The Supreme Court has held that this language vests exclusive jurisdiction in federal courts to determine disputes involving allotments. See U.S. v. Mottaz (1986), 476 U.S. 834, 106 S.Ct. 2224, 90 L.Ed.2d 841; McKay v. Kalyton (1907), 204 U.S. 458, 27 S.Ct. 346, 51 L.Ed. 566 (interpreting the predecessor statute to 25 U.S.C. § 345). In Mottaz, the Court stated that § 345 grants federal district courts subject matter jurisdiction over two types of cases: (1) suits seeking the issuance of an allotment; and (2) suits involving “the interest and rights of the Indian in his allotment or patent after he has acquired it.” Mottaz, 476 U.S. at 845, 106 S.Ct. at 2231 (quoting Scholder v. U.S. (9th Cir. 1970), 428 F.2d 1123, 1129, cert. denied (1970), 400 U.S. 942, 91 S.Ct. 240, 27 L.Ed.2d 246). The Ninth Circuit has also interpreted this statute as giving federal district coruts subject matter jurisdiction over suits involving ownership, title, or other rights appurtenant to title in allotted land. Pinkham v. Lewiston Orchards Irr. Dist. (1988), 862 F.2d 184; Christensen v. U.S. (9th Cir. 1985), 755 F.2d 705; Loring v. U.S. (9th Cir. 1979), 610 F.2d 649.

Another statutory basis for federal court jurisdiction over disputes involving allotted lands is found in Title 28, which encompasses district court jurisdiction. See 28 U.S.C. § 1353. Section 1353 states that “[t]he district cotuts shall have original jurisdiction of any civil action involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land. ...” 28 U.S.C. § 1353. One circuit has held that this statute was enacted for the limited purpose of giving district courts jurisdiction over any claims of right of original allotments or allotments in the first instance. Dry Creek Lodge, Inc. v. U.S. (10th Cir. 1975), 515 F.2d 926. However, the special master found this interpretation inconsistent with the U.S. Supreme Court’s holding in McKay, 204 U.S. at 458, 27 S.Ct. at 346. In that case, the Court held that state courts have no jurisdiction over “controversies necessarily involving a determination of the title and incidentally of the right to the possession, of Indian allotments while the same were held in trust by the United States.” McKay, 204 U.S. at 468, 27 S.Ct. at 350. We recognize that 25 U.S.C. § 345 and 28 U.S.C. § 1353 both provide for federal jurisdiction over disputes involving claims of right or title to allotted lands to the exclusion of state courts.

The District Court also held that 28 U.S.C. § 1360 preempted its jurisdiction. The land at issue is located on the Flathead Indian Reservation, the only reservation over which the state of Montana has subject matter jurisdiction in “civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country.” Pub. L. No. 280, § 7,67 Stat. 588,590 (1953), codified as amended at 28 U.S.C. § 1360. Though 28 U.S.C. § 1360 allows state courts to exercise jurisdiction over certain civil causes of action arising in Indian country, it provides:

Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property... belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States ...; or shall confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein.

28 U.S.C. § 1360. This Court has stated that “[a]ny state action that affects ownership of Indian trust land is closely circumscribed by 28 U.S.C. § 1360(b), even where state jurisdiction has been acquired pursuant to P.L. 280.” In re Marriage of Wellman (1993), 258 Mont. 131, 138, 852 P.2d 559, 563. We determine that “[o]n its face, this statute precludes state jurisdiction to adjudicate any interest in Indian trust land.” Marriage of Wellman, 852 P.2d at 563.

2. Does resolution of the Krauses’ claims of breach of contract, tortious misrepresentation, and fraudulent inducement require a determination of rights involving Indian trust lands over which the state District Court has no subject matter jurisdiction?

Having determined that federal statutory law preempts state subject matter jurisdiction over actions involving title to an allotment, it is necessary to decide whether a contract claim or a tort claim arising out of a contract for sale of allotted land is such an action. The Ninth Circuit has held that in determining whether 25 U.S.C. § 345 or 28 U.S.C. § 1353 preempt state subject matter jurisdiction, “of critical importance ... are the claims''advanced by plaintiffs.” Pink-ham, 862 F.2d at 187. The Krauses argue that, as amended, their complaint states a simple contract and tort action arising off of the reservation. They argue that “where the claims of the complaint are properly characterized as one for damages sounding in tort, they are not related to the ownership of title, or any rights appurtenant to an allotment, and subject matter jurisdiction cannot exist in federal court.”

The U.S. Supreme Court, however, has held that state courts have no jurisdiction over “controversies necessarily involving a determination of the title and incidentally of the right to the possession” of Indian trust land. McKay, 204 U.S. at 468, 27 S.Ct. at 349 (emphasis added). The District Court found that the Krauses’ breach of contract and tort claims necessarily hinge on a determination of title to Indian trust land. The District Court stated that:

[e]ssential to proving Plaintiffs’ [claims] ... is a requirement that the district court determine that the Defendants owned the land in fee simple and thus resolve the claim to land as an Indian allotment. The right of possession of land, as well as the right to sell said land, necessarily involves a question of the existence of title. Plaintiffs’ aforementioned claims of action cannot be separated from the issues of title to this property.

We agree with the District Court’s analysis. Count I of the Krauses’ amended complaint states that the Neumans failed to honor a contract to convey real property. They also claim that the Neumans “misrepresented their ability to offer for sale and convey deeded property to the Krauses ... and admittedly committed torts with respect to their misrepresentations as to the status of the property and their ability to convey the same.”

The Krauses’ pleadings therefore put at issue the Neumans’ “ability to offer for sale” and the “status” of the land. Further, the Neumans argue that under the Allotment Act, they could not transfer an interest in Indian trust lands without the approval of the Secretary of the Interior and that any contract to convey the same without such approval is null and void. Thus, whether Mr. Neuman properly offered his land for sale, whether a contract was formed, or whether the Neumans were justified in not performing the contract are all issues that cannot be separated from questions of title to Indian trust property. In the context of the claims advanced by the Krauses, the District Court correctly found that it had no subject matter jurisdiction.

The Krauses also argue that because they amended their original complaint to delete the prayer for specific performance, no interest in the trust property would be affected by the District Court’s adjudicating their claims. However, the state does not acquire subject matter jurisdiction over Indian trust property simply because the plaintiff seeks only money damages. In Marriage of Wellman, 852 P.2d at 559, the parties were a married couple who lived on the Blackfeet Reservation and had accumulated approximately 4,000 acres of Indian trust land. The legal title to the land was held by the United States in trust for the benefit of Mrs. Wellman, a member of the Blackfeet Tribe. Mrs. Wellman filed a petition for dissolution in state district court, and Mr. Wellman sought an equitable distribution of real and personal property or, if the property could not be distributed, a monthly award for his support, care, and maintenance from the income produced by the property. Marriage of Wellman, 852 P.2d at 561. The district court found that it had no jurisdiction to adjudicate the disposition of the Indian trust land.

On appeal to this Court, Mr. Wellman recognized that “the District Court has no authority to transfer title to the trust land to a non-Indian,” but argued that the relief he sought was a monetary share of the trust lands. Marriage of Wellman, 852 P.2d at 564. This Court stated:

[W]e are urged to assert state court jurisdiction over Indian trust land by figuratively bringing it into state court for valuation prior to an ordered sale and division of proceeds or a monetary award equal to Robert’s equitable share of the value of the land. Based on our discussion of 28 U.S.C. § 1360(b) ... we conclude that any of these actions would result in a prohibited adjudication of interests in Indian trust land.

Marriage of Wellman, 852 P.2d at 564.

Similarly, here, the Krauses assert in their brief to this Court that “the express terms of the amended complaint, which controls this matter, seek compensatory and punitive damages, as well as attorney fees but do not seek an interest in Indian trust land.” Regardless of whether the Krauses pray for specific performance of the contract or for money damages for its breach, the District Court must decide the issues of liability which, as stated above, it cannot do without impermissibly asserting jurisdiction over Indian trust land.

The Neumans also ask this Court to sanction the Krauses for filing a frivolous appeal and to award the Neumans attorneys’ fees, costs, and other appropriate damages. This Court, when satisfied that an appeal “was taken without substantial or reasonable grounds,” may assess such damages as we deem proper. Rule 32, M.R.App.P.; CNA Ins. Co. v. Dunn (1995), 273 Mont. 295, 902 P.2d 1014. We find that the Krauses had reasonable grounds for filing this appeal; thus, we decline to impose sanctions under Rule 32.

For the foregoingreasons, we affirm the decision of the District Court.

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


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. PATRICK DALE NEARY, Defendant and Appellant.
    No. 96-392.
    Submitted on Briefs June 26, 1997.
    Decided September 11, 1997.
    54 St.Rep. 942. 944 P.2d 750.
    284 Mont. 409.

      For Appellant: Terry J. Hanson, Miles City.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Christina Goe, Assistant Attorney General, Helena; Garry P. Bunke, Comity Attorney, Miles City.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

A jury in the Sixteenth Judicial District Court, Custer County, found Patrick Neary guilty of aggravated assault. Neary appeals. We affirm.

We restate the following two issues Neary raises on appeal:

1. Is the jury verdict supported by substantial evidence?

2. Did the District Court err when it granted the State’s proposed jury instruction No. 13 and denied Nealy’s proposed weapon instruction?

BACKGROUND

On June 7, 1995, Patrick Neary invited Victoria Haaser to his house in Miles City, Montana. The two spent much of the day in bed together. That afternoon, Neary received a phone call from another woman. Haaser left, informing Neary, “I’m finished with you.” Later, Haaser and Neary separately visited several Miles City bars. When the bars closed, Neary stopped to talk with Haaser after he saw her van parked outside Linda Merchant’s house.

Various individuals gathered in a room above a flight of stairs leading from Merchant’s garage to her house observed Neary and Haaser standing together on the stairs. Donald Bair heard a “thud” and ran to investigate. He saw Haaser falling down the stairs as Neary backed away and headed for the garage door saying, “I’m getting the hell out of here.” Bair rushed down the stairs. Haaser had landed with her head on the floor and her feet lying up the stairs. Blood was flowing from her head, nose, and ear. Bair propped Haaser up, placed her over his shoulder in a “fireman’s carry,” and drove her to the hospital.

Bair did not see Neary holding Haaser. During cross-examination, he maintained that Haaser was still falling when he arrived. Bair testified that when he sat Haaser on the stairs, her head was nowhere near a pipe which protruded from the garage wall. Darin Ewalt heard a “loud crack.” As he came to the top of the stairs, Haaser was still falling. He observed Neary leaving the garage, but did not see him holding Haaser at any time.

According to Linda Merchant, Neary and Haaser had an argument at her house earlier the evening of June 7,1995. After she asked them to leave, Neary and Haaser departed separately. When Neary returned to Merchant’s house after the bars closed, Haaser agreed to speak with him, but Merchant was nervous about what might happen. She testified:

I wanted them to come upstairs so ... we could keep an eye on them. I left the door open to the top of stairs into the house to where we were at, just above them. So we could hear in case ... it got out of hand.
[A]fter I checked on them, I walked up ... into my bedroom ... and sat down on my stool. I just barely got sat down, and I heard it. It sounded like, I believe, a shotgun. It was just a bang.
I have a china closet in my bedroom that’s against the far wall, the dishes in it rattled. And that’s when I looked and Donny Bair and Darin Ewalt were literally falling over each other to go down and see what happened, and that’s when I went down.

As Merchant stood at the top of the stairs, she saw Bair attempting to sit Haaser up on the stairwell. Neary was standing in the garage, and Merchant yelled at him to leave. She did not notice whether Neary had anything in his hands.

Shannon Dalbec, one of Neary’s friends, testified that Neary arrived at her home around 3:00 a.m. Neary stated Haaser had fallen, he was innocent, and “he was going to leave town because even if he was innocent nobody would believe him.” Later that morning, Neary called Dalbec and said he was going to Canada and was going to take a boat to Mexico. Monica Foreman testified that Neary telephoned her between 3:30 and 4:30 a.m. He stated, “I hurt Vicki really bad. It’s my fault.” Neary informed Foreman that he was leaving town or probably the country.

At 7:30 a.m., Miles City police arrived at Merchant’s house. Inside her garage, they photographed blood stains on the wall, concrete floor, and stairs. They also searched the area for a weapon but were unable to find one.

Due to the severity of Haaser’s injuries, she was airlifted to St. Vincent Hospital in Billings, Montana. Upon learning this information, Neary drove to Billings. Ella Wood, Haaser’s mother, testified that Neary was already at St. Vincent Hospital when she arrived at 10:00 a.m. Neary told her a friend had called him and that was how he learned about the accident. Haaser’s sister was also at the hospital. When she asked Neary what happened, he responded that he did not know. Neary explained he was not at Merchant’s house when the accident occurred and that a friend had called him. Then he stated, “This is all my fault.” Donald Wood, Haaser’s father, confirmed that Neary claimed not to know anything about how Haaser was injured.

Billings police arrested Neary at St. Vincent Hospital and seized his blood-stained clothes. At trial, the State’s forensic scientist testified that the blood on Neary’s shirt and pants was not his but belonged to the same type as Haaser’s.

Neary testified that he stopped at Merchant’s house because he wanted Haaser to leave, claiming to be concerned about her children and career. Haaser was standing on the steps with her back leaning against the wall near a pipe. Neary started walking away from her. Haaser fell, and when Neary turned around, she was lying on the floor. Neary knelt beside Haaser and turned her over on her back. Bair “shouldered” him out of the way, and Merchant yelled at him to leave.

Neary denied hitting Haaser on June 8. He claimed his statements to friends and Haaser’s family were either taken out of context or were lies. During cross-examination, he stated that when he examined Haaser, he did not observe anything stuck to her head. He further claimed that he received blood stains on his clothing when he knelt down to examine Haaser.

As a result of her injuries, Haaser has no memory of the incident and suffers long-term brain damage. She testified that prior to the incident, however, Neary had not shown any concern for her children or her career.

At trial, two physicians testified regarding the extent of Haaser’s injuries. Dr. Fred McMurry, Haaser’s attending neurosurgeon and the State’s medical expert, testified that Haaser suffered a subdural hematoma and an extradural hematoma on the right and left sides of her head. She also received a fracture to the left side of her head and a scalp injury. Dr. McMurry testified that the injury, “a round hole in the scalp going right down to bone,” was probably caused by a blow to the side of the head. It would be unlikely for a fall to cause such an injury unless it was from a considerable distance onto an object.

Dr. Scott Callaghan, a neurologist and Neary’s medical expert, testified by deposition that Haaser’s injuries would not be expected to result from a punch from a bare fist but could have been caused by a fall from a considerable distance and hitting an object on the floor. Her scalp wound could not have been caused by hitting a flat surface. Dr. Callaghan did not disagree with Dr. McMurry’s opinion that Haaser’s injury could also have been caused by a blow to the side of the head with an object. According to Dr. Callaghan, Haaser had a blood alcohol level of .15, tested positive for amphetamines, and was taking a prescription medication. This combination would cause her to have a propensity to fall.

On June 26,1995, the State charged Neary with attempted deliberate homicide, or in the alternative, aggravated assault. The information stated:

[O]n or about June 8,1995, in Custer County, Montana,... Patrick Neary... did commit the offense of attempted deliberate homicide, a felony, as specified in section 45-4-103(1) and 45-5-102(l)(a) ... or, in the alternative, aggravated assault, a felony, as specified in section 45-5-202(l)[.]

The State alleged the facts constituting the offense of aggravated assault as:

Patrick Neary ... purposely or knowingly caused serious bodily injury to Victoria Haaser, by striking her with some type of blunt weapon, on the left side of her head, just above the ear, with enough force to cause trauma to the left side of the skull with right subdural hematoma.

At the close of the State’s case-in-chief, Neary moved for a directed verdict or to dismiss the information based on insufficient evidence. The court took his motion under advisement. At the conclusion of the case, Neary again moved for a directed verdict and to dismiss the information. The court granted a directed verdict on the charge of attempted deliberate homicide but concluded there was sufficient evidence for the charge of aggravated assault to go to the jury.

During settlement of jury instructions, Neary objected to the State’s proposed instruction No. 13 because it stated “caused serious bodily injury’ but did not include that the serious bodily injury was caused by a weapon. Neary requested the addition of the words “with a weapon” to the State’s proposed instruction No. 13. The court overruled the objection and gave the State’s proposed instruction No. 13.

A jury found Neary guilty of aggravated assault, and the District Court sentenced him to twelve years at the Montana State Prison with seven years suspended. Neary appeals.

DISCUSSION

1. Is the jury verdict supported by substantial evidence?

The standard of review of sufficiency of the evidence is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Bower (1992), 254 Mont. 1, 6, 833 P.2d 1106, 1110. The credibility of witnesses and the weight to be given to their trial testimony are determined by the trier of fact, and if events are capable of different interpretations, the trier of fact determines which is the most reasonable. State v. Ahmed (1996), 278 Mont. 200, 212, 924 P.2d, 679, 686; State v. Brogan (1993), 261 Mont. 79, 87, 862 P.2d 19, 24.

Neary argues this is a circumstantial evidence case and the evidence does not support the verdict. He contends, as he did at trial, that Haaser lost her balance, fell down the stairs, and struck the floor where there was a beer bottle cap which removed a piece of her scalp. When Haaser was taken to the hospital, the bottle cap fell from her head. Neary relies on State v. Lucero (1984), 214 Mont. 334, 693 P.2d 511, to argue that when circumstantial evidence is susceptible to two reasonable interpretations, one pointing to innocence and one pointing to guilt, a jury must adopt the interpretation that points to innocence.

In Lucero, we concluded that absent affirmative evidence to the contrary, the jury did not err as a matter of law in finding that the defendant’s interpretation of the circumstantial evidence was not reasonable. Lucero, 693 P.2d at 513-14. At trial Neary did not produce a bottle cap or any physical evidence of Haaser’s missing hair or scalp. He testified that he examined Haaser and did not see anything stuck to her head. Neary did not provide affirmative evidence that Haaser fell on a bottle cap, or other similar object, with such force to cause her injuries. His bottle cap theory was nothing more than an alternative theory for the jury’s consideration.

The State argues the verdict against Neary is supported by substantial evidence. We agree. Neary and Haaser were involved in a sexual relationship and argued on June 7. Merchant testified that she was afraid to leave the two alone together. Three witnesses at Merchant’s house testified they heard a loud noise and ran to the stairs to investigate. When they arrived, Neary was not touching Haaser, but was backing away towards the garage door.

This testimony is inconsistent with Neary’s explanation that he received blood on his clothing because he kneeled to examine Haaser. A forensic expert identified the blood type on Neary’s pants and shirt as Haaser’s. Blood spatters covered the wall, stairs, and floor near where Neary and Haaser were standing. Neary left Merchant’s house immediately after Bair, Ewalt, and Merchant arrived. The State’s medical expert testified it would be unlikely that Haaser’s injuries were caused by a fall onto a flat surface.

Neary’s statements and actions following the incident also support the jury’s verdict. After leaving Merchant’s house, Neary arrived at Dalbec’s home and informed her that he was leaving town. Later, he called her and said he was going to Canada and would take a boat to Mexico. Foreman testified that Neary called and told her that he had hurt Haaser badly, that it was his fault, and that he was going to leave town or probably the country. Although Neary admitted being at Merchant’s house, Haaser’s family testified that Neary did not know what happened to Haaser, that he was not there, and that a friend had called him. Neary relies on State v. Gommenginger (1990), 242 Mont. 265, 790 P.2d 455, to argue that his statements made to various persons after the incident as subsequent inconsistent statements cannot be the sole substantive evidence upon which a jury should be allowed to base guilt. Gommenginger is distinguishable from this case. Gommenginger involved testimony from a drug informant who had a motive to lie. Here, the State’s witnesses had no identifiable motive to lie. In Gommenginger, the court restricted cross-examination of the informant. Neary was free to cross-examine and impeach the State’s witnesses, which he attempted to do.

Bair’s only prior inconsistent statement in this case was his testimony from the hearing on Neary’s motion to dismiss. At trial, Neary attempted to impeach Bair by using his previous testimony. Bair explained the inconsistencies and the jury was free to weigh Bair’s testimony.

Moreover, Neary’s subsequent inconsistent statements were not the only evidence upon which the jury could base Neary’s guilt. Neary’s acts before, during, and after the incident would allow a jury to find him guilty. We conclude that Neary’s subsequent inconsistent statements were not the sole substantive evidence upon which a jury could have found him guilty of aggravated assault.

In further support of his argument that the verdict is unsupported by the evidence, Neary relies on State v. Gould (1985), 216 Mont. 455, 466, 704 P.2d 20, 28, to argue that his out-of-court statements do not meet the requisite trustworthiness as competent admissions against interest. Gould differs from the present case. Gould moved to suppress his pretrial admission pursuant to § 46-13-301, MCA (1981). Neary did not move to suppress his out-of-court statements, and he did not object to the admission of his statements at trial. We will not review issues which have not been properly preserved for appeal. See § 46-20-104(2), MCA; State v. Arlington (1994), 265 Mont. 127, 151, 875 P.2d 307, 321.

When the evidence is viewed in a light most favorable to the prosecution, the jury, as a rational trier of fact, could reasonably have concluded that Neary purposely or knowingly caused Haaser serious bodily injury. We hold that the verdict convicting Neary of aggravated assault is supported by substantial evidence.

2. Did the District Court err when it granted the State’s proposed jury instruction No. 13 and denied Neary’s proposed weapon instruction?

We review jury instructions in a criminal case to determine whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. State v. Leyba (1996), 276 Mont. 45, 51, 915 P.2d 794, 797.

Section 45-5-202(1), MCA (1985), provides, “(1) A person commits the offense of aggravated assault if he purposely or knowingly causes serious bodily injury to another.” Section 45-5-202(2), MCA (1985), provides, in relevant part, “(2) A person commits the offense of felony assault if he purposely or knowingly causes: (a) bodily injury to another with a weapon [.]”

The State’s proposed instruction No. 13, adopted by the court, stated:

To convict the defendant of aggravated assault, the State must prove the following elements:

1. That the defendant caused serious bodily injury to Vicki Haaser, and

2. That the defendant acted purposely or knowingly.

Neary requested the addition of the words “with a weapon” to the above instruction.

Neary argues that the District Court erred when it granted the State’s proposed instruction No. 13 and refused his proposed weapon instruction because the information alleged that he caused Haaser serious bodily injury using a weapon.

The State charged Neary with aggravated assault, not felony assault. Felony assault requires the use of a weapon; aggravated assault does not. Cf. § 45-5-202(2), MCA (1985) and § 45-5-202(1), MCA (1985). See also Arlington, 875 P.2d at 307.

The information charged Neary with attempted deliberate homicide, or in the alternative, aggravated assault. Under the section “facts constituting the offense,” the information stated:

Neary ... purposely or knowingly caused serious bodily injury to Victoria Haaser, by striking her with some type of blunt weapon, on the left side of her head, just above the ear, with enough force to cause trauma to the left side of the skull with right subdural hematoma.

The District Court’s jury instruction No. 13 stated the elements of aggravated assault as they are enumerated in § 45-5-202(1), MCA (1985). Because § 45-5-202(1), MCA (1985), does not require that serious bodily injury be caused by a weapon, the jury was not required to find that Neary used a weapon to find him guilty of aggravated assault.

Neary maintains he was prevented from preparing an adequate defense because instruction No. 13 does not require the use of a weapon, but the facts in the information alleged that he used a weapon. He relies on State v. Later (1993), 260 Mont. 363, 860 P.2d 135. In Later, the State charged the defendant with misdemeanor official misconduct. Dining settlement of jury instructions, the State conceded that it had charged the defendant under the incorrect statute. The State offered an alternative instruction charging the defendant with violation of another statute. We reversed, reasoning that the function of an information is to notify the defendant of the offense charged, thereby giving him the opportunity to defend. Later, 860 P.2d at 137, citing State v. Tropf (1975), 166 Mont. 79, 88, 530 P.2d 1158, 1163.

Neary’s reliance on Later is misplaced. Unlike in Later, the State charged Neary with aggravated assault, which was contained in the information, and the District Court instructed the jury using the same language taken from the aggravated assault statute contained at § 45-5-202(1), MCA (1985). Notwithstanding the recital of facts contained in the information, Neary knew with what offense he was being charged and its elements. The jury had to find that Neary purposely or knowingly caused serious bodily injury to Haaser in order to convict him of aggravated assault. We conclude that Neary was not prevented from preparing an adequate defense based on the court’s instruction of the elements of aggravated assault.

The cases cited by Neary from other states are also distinguishable from the facts of this case. In State v. Jones (Kan. 1995), 896 P.2d 1077, the trial court added another type of intent to the jury instruction which was not included in the information. In Atter berry v. State (Okla. Crim. App. 1986), 731 P.2d 420, the trial court broadened the definition of child abuse by adding elements not contained in the statute. In State v. DeSantos (N.M. 1976), 553 P.2d 1265, the court erred by adding instructions on felony murder and depraved mind murder when the evidence did not support the instruction.

We conclude that the District Court’s jury instructions, as a whole, fully and fairly presented the applicable law on aggravated assault. Neary’s proposed weapon instruction was an inaccurate statement of the law and was an attempt to broaden the statutory definition of aggravated assault. We hold that the District Court did not abuse its discretion when it adopted the State’s proposed instruction No. 13 and denied Neary’s proposed weapon instruction.

Affirmed.

JUSTICES NELSON, GRAY, HUNT and REGNIER concur.


text:
    PEGGY ESTABROOK and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY as Subrogee of PEGGY ESTABROOK, Plaintiffs and Appellants, v. SHAWN BADEN, AMY CLARK and HAROLD SMITH, Defendants and Respondents.
    No. 96-708.
    Submitted on Briefs August 28, 1997.
    Decided September 11, 1997.
    54 St.Rep. 947. 943 P.2d 1334.
    284 Mont. 419.

      For Appellants: Tracy Morin; Axelberg & Kalkstein, Missoula.
    No appearance was made by Respondents.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Plaintiff, State Farm Mutual Automobile Insurance Company (State Farm), as subrogee of Peggy Estabrook, appeals from the order of the Second Judicial District Court dismissing its amended complaint with prejudice. We reverse.

Issue Presented

May a court, sua sponte, raise the affirmative defense of the statute of limitations and dismiss a complaint on that basis?

Background

State Farm, as subrogee of Peggy Estabrook, filed an amended complaint alleging that on September 23, 1992, defendant Shawn Baden negligently operated a vehicle owned by defendants Amy Clark and Harold Smith, thereby colliding with and damaging Estabrook’s vehicle. It is alleged that Amy Clark and Harold Smith negligently entrusted the vehicle to Shawn Baden and that Clark and Smith were negligent in not having liability insurance as required by § 61-6-301, MCA.

State Farm sought and obtained a default judgment against Shawn Baden for $3,920.83. State Farm then sought a default judgment against defendant Amy Clark for damages in the amount of $2,715.62 plus an attorney’s fee of one-third, $1,066.21.

The District Court, noting that it is the practice in the Second Judicial District to limit attorney’s fees to twenty percent in default judgment cases, determined that State Farm’s request for a fee of one-third “triggered the court to a full review of the file.” In an October 18, 1996 letter to State Farm’s counsel, the court questioned the propriety of requesting a one-third fee and also indicated that the claim was barred by the two-year statute of limitations for property damage claims. The court stated: “Before I set aside the Judgment I have already entered [against Baden], I would appreciate your response to this matter.” In his responsive letter to the court, counsel for State Farm argued that in light of this Court’s decision in Ritland v. Rowe (1993), 260 Mont. 453, 861 P.2d 175, the three-year statute of limitations for tort claims, § 27-2-204, MCA, controlled over the two-year limitation period for property damage claims, § 27-2-207, MCA.

On November 18, 1996, the District Court issued its order and memorandum (1) denying the motion for default against Amy Clark; (2) setting aside the default judgment against Shawn Baden; and (3) dismissing, with prejudice, State Farm’s amended complaint. State Farm has appealed from that order contending that the court had no authority to raise, sua sponte, the Rule 8(c), M.R.Civ.R, affirmative defense of the statute of limitations and that the District Court applied the incorrect statute of limitations.

Discussion

This appeal presents the issue of whether a district court may, on its own motion, raise the statute of limitations as a bar to a claim despite the fact that the defendant is in default for failing to file an appearance and has not raised the statute of limitations as an affirmative defense as required under Rule 8(c), M.R.CÍV.P.

Rule 8(c), M.R.Civ.R, provides as follows:
In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.

The statute of limitations is one of the affirmative defenses set forth in Rule 8(c), M.R.Civ.R It must be affirmatively pled in the defendant’s answer, or it is waived as a defense. Bennett v. Dow Chemical Co. (1986), 220 Mont. 117, 713 P.2d 992. In Bennett, defendant Rancher’s Agra Services, Inc. asked this Court to direct the district court to grant its motion for summary judgment, arguing that the same statute of limitations that applied to the other defendants applied to Rancher’s as well. In rejecting Rancher’s argument, we stated:

We will now consider the request of Rancher’s Agra Services, Inc., for this Court to order the District Court to enter summary judgment by reason of the running of the statute of limitations in its favor. Rule 8(c), M.R.Civ.P., provides that a defense of the running of the statute of limitations is an affirmative defense and can only be raised by answer. Taylor v. Dept. of Fish, Wildlife & Parks (Mont. 1983), [205 Mont. 85, 96,] 666 P.2d 1228, 1233 .... Rancher’s has never filed an answer nor provided this Court with any reason for this failure. We can perceive no reason to excuse it from filing an answer. The request is denied.

Bennett, 713 P.2d at 995-96 (emphasis added).

Thus, despite the fact that other co-defendants had received the benefit of the statute of limitations defense, we denied Rancher’s request to apply the statute because Rancher’s had not affirmatively pled the defense as required by Rule 8(c). Having held that the Rule 8(c) waiver cannot be overcome by motion of the party, we must likewise conclude that the waiver cannot be suspended, sua sponte, by the court when the affected party has not only failed to file a motion but is in default for failure to appear at all.

In addressing this issue, other jurisdictions have also concluded that the affirmative pleading requirement of Rule 8(c) is not waived upon the intercession of the district court on behalf of a defendant and the district court cannot waive the requirement for the defendant or raise the affirmative defense for the defendant. In Smith v. Rheaume (Fla. Dist. Ct. App. 1993), 623 So.2d 625, the defendant wrote a letter to the trial judge requesting that charges against her be dismissed as frivolous. The district court, sua sponte, raised the issue of the statute of limitations and dismissed the suit. On appeal, the court, in interpreting a rule identical to our Rule 8(c), M.R.Civ.P, held that the statute of limitations was an affirmative defense which could be waived or raised by the defendant but not by the trial court. Thus, the trial court’s dismissal was reversed. Smith, 623 So.2d at 627. Similarly, the Court of Appeals for the District of Columbia held the statute of limitations is an affirmative defense which must be set forth in a responsive pleading and which may be waived if not promptly pleaded. Thus it follows that if a defendant fails to assert the limitations defense, the corut should not raise it sua sponte. Feldman v. Gogos (D.C. Ct. App. 1993), 628 A.2d 103, 105 (citing Davis v. Bryan (2nd Cir. 1987), 810 F.2d 42, 44). It is error for a trial court to sua sponte dismiss claims based upon the statute of limitations where the defendant fails to file an answer raising these affirmative defenses or otherwise respond to the pleading. Adams v. Inman (Mo. Ct. App. 1994), 892 S.W.2d 651, 653. But see Exeter Hospital v. Hall (N.H. 1993), 629 A.2d 88, 90, where the court held that it was unfair for the trial court, after raising the defense of statute of limitations sua sponte, to dismiss the hospital’s claim on a debt without allowing the hospital to present evidence to rebut the defense.

We conclude that under Rule 8(c), M.R.Civ.R, a “party” must raise the affirmative defense of the statute of limitations. If the party fails to appear or, having appeared, fails to raise the statute as a defense, the defense is waived and may not thereafter be raised by the court, sua sponte, on the party’s behalf. Accordingly, the District Court’s order and memorandum of November 19, 1996 is reversed, and this matter is remanded for further proceedings consistent with this opinion.

Since we have concluded that the court erred in raising the statute of limitations defense, we need not determine whether the court applied the correct period of limitations. Reversed and remanded.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, REGNIER and TRIEWEILER concur.