author: JUSTICE TRIEWEILER

text:
    LaSCHELL K. DAY, Plaintiff and Respondent, v. ROBERT R. PAYNE, Defendant and Appellant.
    No. 96-311.
    Submitted on Briefs October 31, 1996.
    Decided December 17, 1996.
    53 St.Rep. 1400.
    280 Mont. 273.
    929 P.2d 864.
    See C.J.S. Courts § 18.

      For Appellant: William A. Douglas, Douglas Law Firm, Libby; Tom K. Hopgood; Luxan & Murfitt; Helena.
    For Respondent: Mark L. Stermitz and Heidi Fanslow; Warden, Christiansen, Johnson & Berg; Kalispell.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

On May 20, 1994, LaSchell Day filed a complaint in the District Court for the Nineteenth Judicial District in Lincoln County against her adoptive father, Robert R. Payne, in which she alleged that she had been sexually abused by Payne and in which she sought special, general, and punitive damages from Payne for that abuse. Following a four-day jury trial in January 1996, the jury returned a verdict in favor of Day and awarded her $80,000 in compensatory damages. The jury farther indicated by special verdict that Day was entitled to an award of punitive damages, and following a separate proceeding pursuant to § 27-l-221(7)(a), MCA, the jury returned an award of punitive damages against Payne in the amount of $100,000. On March 7,1996, the District Court entered its findings of fact, conclusions of law, and order in which it found and concluded that the jury’s award of punitive damages was reasonable and appropriate, pursuant to § 27-1-22 l(7)(c), MCA. Payne appeals the jury’s verdict which awarded punitive damages, and the District Court’s order which approved them. We affirm the jury’s verdict and the order of the District Court.

On appeal, Payne alleges that the recovery of punitive damages in a legislatively-revived action violates the ex post facto and Due Process Clauses of the United States and Montana Constitutions.

FACTUAL BACKGROUND

On May 20,1994, LaSchell Day filed a complaint in the Nineteenth Judicial District Court against her adoptive father, Robert Payne. In her complaint, Day alleged that Payne had sexually abused her from 1969 to 1976, when Day was between the ages of nine and sixteen.

At the time the sexual abuse occurred, and until 1989, the applicable statute of limitations for a childhood sexual abuse claim was three years, pursuant to § 27-2-204(1), MCA. Because Day was a minor when the abuse occurred, however, the statute of limitations was tolled until she reached the age of majority. See § 27-2-401(1), MCA. Day reached the age of majority on April 23, 1978; the period of limitation expired on April 23, 1981.

In 1989, the Montana Legislature enacted § 27-2-216, MCA, which creates a specific period of limitation for the recovery of “damages for injury suffered as a result of childhood sexual abuse.” Subsection (l)(b) of that statute provides that an action for the recovery of damages for childhood sexual abuse must be commenced not later than “3 years after the plaintiff discovers or reasonably should have discovered that the injury was caused by the act of childhood sexual abuse.” Section 27-2-216, MCA, was expressly made retroactive and applicable to “all causes of action commenced on or after October 1, 1989, regardless of when the cause of action arose.” Mont. Sess. Laws, Ch. 158, § 5 (1989).

Day commenced her action in the District Court on May 20, 1994. On January 22,1996, the juryreturned a verdict in whichit concluded that Day was sexually abused by Payne; that Day suffered injuries as a result of the abuse; and that, prior to May 20,1991, Day did not discover, nor should she reasonably have discovered, that her injuries were caused by acts of childhood sexual abuse.

DISCUSSION

On appeal, Payne contends that the recovery of punitive damages in a legislatively-revived action violates the ex post facto and Due Process Clauses of the United States and Montana Constitutions. Payne admits that he did not raise this constitutional issue at the district court level, but maintains that his failure to raise the objection does not preclude consideration of the issue by this Court.

Payne first maintains that he attempted to raise the issue at the district court level, but was denied the opportunity when the court disallowed his post-trial motions. Areview of the District Court record reveals, however, that Payne failed to file those motions within “10 days after the service of the notice of the entry of the judgment,” as required by Rules 59(b) and 59(g), M.R.Civ.P. Furthermore, the record reveals that Payne not only failed to obj ect to the propriety of punitive damages in a timely post-trial motion, but he failed to raise the issue in an appropriate pre-trial motion, in a motion or objection during trial, or in an objection to Day’s four proposed — and given — jury instructions which related to the issue of punitive damages.

Nevertheless, Payne maintains that this Court may consider the constitutional issue because it relates to the District Court’s subject matter jurisdiction, and may therefore be raised at any time. See, e.g., In re Marriage of Miller (1993), 259 Mont. 424, 426,856 P.2d 1378,1380; O’Donnell v. Ryans, Inc. (1987), 227 Mont. 48,49,736 P.2d 965, 966. Specifically, Payne asserts that in this case the District Court did not have authority to entertain a claim for punitive damages, and therefore did not have jurisdiction to consider the issue. In support of his contention that a court’s ability to grant relief of a particular type or amount is jurisdictional, Payne notes that justice courts in Montana are limited in their jurisdiction to claims that do not exceed $5,000 and that federal courts are limited in their diversity jurisdiction to a specified amount in controversy. Such limits are, however, statutory. Indeed, it is well established that “[t]he jurisdiction of courts ... can be limited by constitutional or statutory provisions on the basis of the amount in controversy, or the amount in dispute, between parties.” 20 Am. Jur. 2d Courts § 116, p. 415 (1995). District courts in Montana are not constrained by such limits. See Mont. Const, art. VII, § 4; § 3-5-302, MCA. Therefore, the amount and type of a damage claim in a district court may not be raised to challenge a district court’s subject matter jurisdiction. In this case, then, the availability of punitive damages does not relate to a district court’s subject matter jurisdiction. Therefore, Payne may not now claim that the District Court did not have subject matter jurisdiction to award punitive damages.

As a final matter, Payne maintains that this Court may consider the constitutionality of punitive damages because this Court has the authority to review constitutional issues raised for the first time on appeal. In particular, Payne notes that this Court has reserved to itself the power to examine constitutional issues not raised at the district court level when the issue “affects the substantial right of a litigant.” Eastman v. Atlantic Richfield Co. (1989), 237 Mont. 332, 337, 777 P.2d 862, 865. In this case, Payne maintains that his substantial rights were “affected by the retroactive punishment inflicted as the result of the punitive damage award.”

In Montana, the general rule is that “[a]n issue which is presented for the first time to the Supreme Court is untimely and cannot be considered on appeal.” Akhtar v. Van de Wetering (1982), 197 Mont. 205, 209, 642 P.2d 149, 152. The rule

applies to both substantive and procedural matters, as well as to a change in a party’s theory of the case. It is based on the principle that it is fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider. Furthermore, it is unfair to allow a party to choose to remain silent in the trial court in the face of error, taking a chance on a favorable outcome, and subsequently assert error on appeal if the outcome in the trial court is unfavorable.

5 Am. Jur. 2d Appellate Review § 690, pp. 360-61 (1995). This Court has recognized an exception to the general rule where “an alleged ... error affects the substantial rights of a litigant.” In re N.B. (1980), 190 Mont. 319, 323,- 620 P.2d 1228, 1231. In those cases, however, the Court’s decision to review the alleged error is discretionary and “[the] Court is not sympathetic to a broad definition of ‘substantial rights.’ ” Reno v. Erickstein (1984), 209 Mont. 36, 42, 679 P.2d 1204,1207.

In this case, we have carefully reviewed the record and decline to extend the “substantial rights” exception to the facts before us. We therefore decline to review the issue raised on appeal, and affirm the judgment of the District Court.

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


source: Caselaw Access Project

author: JUSTICE TRIEWEILER JUSTICE LEAPHART,

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WILLIAM R. PATTON, Defendant and Appellant.
    No. 95-535.
    Submitted on Briefs November 14, 1996.
    Decided December 17, 1996.
    53 St.Rep. 1402.
    280 Mont. 278.
    930 P.2d 635.

      See C.J.S. Criminal Law § 487.

      For Appellant: Wendy Holton; Attorney at Law; Helena; Joseph R. Massman; Massman Law Firm; Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena; Valerie D. Wilson, Jefferson County Attorney, Boulder.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The defendant, William R. Patton, was charged by information, filed in the District Court for the Fifth Judicial District in Jefferson County, with the offense of deliberate homicide, in violation of § 45-5-102, MCA. Following a trial by jury, Patton was convicted of the crime with which he was charged. He appeals the judgment of the District Court. We affirm the District Court.

The issues on appeal are:

1. Did the State suppress exculpatory evidence and thereby deny Patton his right to a fair trial?
2. Did the District Court err when it instructed the jury?

FACTUAL BACKGROUND

William R. Patton was charged with the offense of deliberate homicide, in violation of § 45-5-102, MCA. The information alleged that on June 12,1994, in Boulder, Montana, Patton caused the death of Aubrey “Sonny” Bradley when he stabbed him with a knife. Patton entered a plea of not guilty.

Prior to the trial, a private investigator by the name of Albert “Turtle” Johnson was appointed to assist Patton with the preparation of his defense. During his investigation, he determined that Bradley was romantically involved with Cheryl Dupuis. He also learned that, in the past, Dupuis’ ex-husband, William Hagman, had assaulted both her and her boyfriend. On that basis, he concluded that Hagman should be a suspect in Bradley’s homicide.

Johnson contacted Agent Ward McKay, an investigator with the Montana Department of Justice Criminal Investigation Bureau, and informed him of his suspicions and conclusions.

Agent McKay was familiar with the case and agreed to investigate the possibility that Hagman committed the homicide. He traveled to Butte and interviewed Hagman. Hagman admitted that he knew Bradley and that, on June 12, 1994, he went to Boulder to watch Dupuis. However, he stated that he did not visit the O-Z Motel, and he denied any involvement with Bradley’s homicide. The forty-two minute interview was transcribed, and a copy was issued to Patton.

Agent McKay subsequently continued his investigation of Hag-man, and interviewed Dupuis and other witnesses. None of the witnesses at the motel had seen Hagman at or near the time and place of the homicide. He also obtained Hagman’s fingerprints, and sent them to the state crime lab. The lab reported that Hagman’s fingerprints were not on any of the items recovered from the crime scene.

Ultimately, Agent McKay concluded that he had no evidence, witnesses, or information, other than Johnson’s theory, to connect Hagman to Bradley’s homicide. The State, therefore, dropped its investigation of Hagman, and continued to pursue a conviction of Patton.

Patton received a copy of Agent McKay’s report and unsuccessfully attempted to interview Hagman. One week prior to trial, Patton obtained a court order for Hagman’s deposition and hired a private process server to serve him with the order. However, the attempt to serve Hagman was unsuccessful, and despite the assistance of the sheriff’s office, he could not be located before the trial.

Trial by jury commenced on May 8, 1995. The State presented evidence and testimony to show that, on the morning of June 12,1994, Bradley drove from Butte to Boulder. At some point, he stopped and picked up Patton, who was hitchhiking north on Interstate 15. Upon their arrival in Boulder, they consumed food and drinks at Phil and Tim’s Restaurant, and then went across the street to their room at the O-Z Motel.

The next morning, Cheryl Dupuis went to the front desk of the O-Z Motel, and asked for Bradley. Debbie Kipp, who worked at the motel, escorted her to his room. They checked the room, and discovered Bradley’s body on the floor between two beds.

The police determined that Bradley had been stabbed eight times with a knife. His pockets were turned inside out, and his empty wallet was found in the trash-can. On top of the mattress was an empty beer can which contained Patton’s fingerprints, and underneath one of the beds was a bloody t-shirt. The police also found Patton’s razor and hair samples in the bathroom.

Later that afternoon, a deputy sheriff spotted Patton near the highway three miles south of Boulder. When Patton saw the officer, he grabbed his black bag, and fled up a ravine. He was not apprehended at that time.

Three days later, on June 15, 1994, a highway patrol officer found Patton hitchhiking on the interstate south of Boulder. When the officer approached him, he turned around, dropped his black bag, and raised his hands over his head. When questioned, he told the officer that his name was “Beau Justice.” Additionally, his pants were stained with Bradley’s blood.

At the trial, Debbie Kipp and Dan Gosselin, the owner of the motel, testified that, on the night of June 12, 1994, Patton told them that he and Bradley had an argument, and that he had been locked out of their room. Gosselin further testified that Patton wore a buck-knife sheath on his belt.

Michael Mix worked at the front desk of the motel on June 12,1994. He testified that Patton told him that he and Bradley had an argument about the television, but that their disagreement had been resolved. He also testified that Patton wore a buck-knife sheath on his belt, and that there was a large red stain on the front of Patton’s shirt.

Patton testified on his own behalf. He claimed that on the night of June 12, 1994, he fell asleep in the motel room. When he awoke the next morning, he found Bradley dead on the floor. He pulled his pants out from under Bradley’s body, dressed himself, packed his things, and left.

At the close of all the evidence, the District Court instructed the jury. Relevant to this appeal are the following jury instructions:

INSTRUCTION NO. 3
To convict the defendant of Deliberate Homicide ... the State must prove the following elements:
1. That the defendant caused the death of Aubrey Bradley... and
2. That the defendant acted purposely or knowingly.
If you find from your consideration of the evidence that all of these elements have been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find ... that any of these elements has not been proved beyond a reasonable doubt then you should find the defendant not guilty.
INSTRUCTION NO. 4
A material element of every offense is a voluntary act, which includes an omission ....
INSTRUCTION NO. 6
Aperson acts purposely when it is his conscious object to engage in conduct of that nature or to cause such a result.
INSTRUCTION NO. 9
If you are satisfied that the crime charged in the information has been committed by someone, then you may take into consideration any testimony showing, or tending to show, concealment by the defendant. This testimony may be considered by the jury as a circumstance tending to prove a consciousness of guilt, but is not sufficient of itself to prove guilt. The weight to be given such circumstance and significance if any, to be attached to it, are matters for the jury to determine.
INSTRUCTION NO. 10
If you are satisfied that the crime charged in the information has been committed by someone, then you may take into consideration any testimony showing, or tending to show, flight by the defendant. This testimony may be considered by the jury as a circumstance tending to prove a consciousness of guilt, but is not sufficient of itself to prove guilt. The weight to be given such circumstance and significance if any, to be attached to it, are matters for the jury to determine.

The jury returned a guilty verdict, and the District Court ordered a presentence investigation. At the sentencing hearing, the District Court sentenced Patton to a term of seventy-five years at the state prison, and determined that he will not be eligible for parole until he has served twenty-five years of his sentence.

ISSUE 1

Did the State suppress exculpatory evidence and, thereby, deny Patton his right to a fair trial?

On appeal, Patton contends that the State suppressed exculpatory evidence by the manner in which it conducted its investigation of William Hagman. He maintains that it was readily apparent that Hagman was a viable suspect in the homicide, and that the defense needed Hagman for its investigation. Therefore, he asserts that the State suppressed exculpatory evidence when it failed to “preserve” Hagman as a witness, and that, as a result, he was denied his right to due process and a fair trial.

The State points out that Patton did not raise his due process claim in the District Court before, during, or after the trial. He did not ask the District Court for any relief, nor did he make any objection with regard to his inability to secure Hagman’s presence for a deposition or testimony at trial.

We have consistently held that “ [t]his Court will not consider issues raised for the first time on appeal when the appellant had the opportunity to make an objection at the trial level.” State v. Weeks (1995), 270 Mont. 63, 86, 891 P.2d 477, 491. The contemporaneous objection rule at § 46-20-104, MCA, and the limitations set forth at § 46-20-701, MCA, preclude appellate consideration of alleged errors unless a timely objection was made at trial, or unless certain statutory criteria are met. Patton does not assert that he made a timely objection, nor does he contend that this claim falls within one of the narrow statutory exceptions found at § 46-20-701, MCA.

Therefore, review of Patton’s due process claim by this Court can only be conducted pursuant to the common law plain error doctrine. We recently held that before the plain error doctrine will be invoked a defendant must show that the failure to review an alleged error would either: (1) result in a manifest miscarriage of justice; (2) leave unsettled the question of the fundamental fairness of the trial or proceedings; or (3) compromise the integrity of the judicial process. State v. Finley (1996), 276 Mont. 126, 136, 915 P.2d 208, 215.

We begin our analysis of Patton’s due process claim with the following well-established principles of constitutional and criminal law:

[I]t is well settled that while a criminal defendant has a constitutional right to obtain exculpatory evidence and that the denial of such right is a violation of due process, this right is only a personal right to obtain exculpatory evidence. It does not require that police officers take initiative or even assist in procuring evidence on behalf of a defendant. State v. Swanson (1986), 222 Mont. 357, 360-362, 722 P.2d 1155, 1157-1158; In re Martin (1962), 58 Cal. 2d 509, 24 Cal. Rptr. 833, 835, 374 P.2d 801, 803.
“... Police officers do not have an affirmative duty to search out favorable evidence for the defendant....”
[State, City of Bozeman v. / Heth [(1988), 230 Mont. 268, 272], 750 P.2d [103,] at 105. We reaffirmed this rule in State v. Clark (1988), 234 Mont. 222, 225, 762 P.2d 853, 855-856, holding that there is no affirmative duty on police officers to obtain exculpatory evidence, but they must avoid interference with the efforts on the part of the accused to obtain such evidence.

State v. Sadowski (1991), 247 Mont. 63, 79, 805 P.2d 537, 547. Furthermore, we have previously held that:

[0] nly a deliberate or intentional suppression of exculpatory evidence is a per se violation of due process. To amount to a violation of due process, negligently suppressed evidence must be material and of substantial use, vital to the defense, and exculpatory.

Sadowski, 247 Mont, at 79, 805 P.2d at 547 (citing State, City of Bozeman v. Heth (1988), 230 Mont. 268, 272, 750 P.2d 103, 105).

Patton’s private investigator concluded that Hagman should be a suspect in the Bradley homicide. He contacted Agent McKay of the Montana Department of Justice Criminal Investigation Bureau and informed him of his suspicions. Although the State does not have an affirmative duty to obtain and gather exculpatory evidence for a defendant, Agent McKay agreed to investigate Hagman. His investigation involved the following actions: he conducted a forty-two minute interview of Hagman; the interview was transcribed, and a copy was issued to Patton; he interviewed Cheryl Dupuis and other witnesses; he submitted Hagman’s fingerprints to the crime lab; and he issued a copy of his report, which documented his conclusions, to Patton.

Based on his investigation, Agent McKay concluded that he had no physical or testimonial evidence to connect Hagman to the crime, and therefore, the State discontinued its investigation.

Unfortunately, Patton was unable to secure Hagman’s presence at either a deposition or the trial. While the State is strictly prohibited from suppressing exculpatory evidence and from obstructing a defendant’s efforts to put together his defense, it is not obligated to assist with his defense. However, Patton does not assert that the State took any affirmative steps to insure that Hagman would be unavailable for trial; nor does he claim that the State impeded his efforts to investigate and serve Hagman.

We conclude, therefore, that the State did not suppress exculpatory evidence, and that it did not violate Patton’s due process rights to a fair trial. The State did not engage in any conduct that hindered Patton’s defense. In fact, the State fulfilled its obligations when it responded to Patton’s requests and conducted its investigation of Hagman.

Based on the principles of law established in Sadowski, and the application of the facts of this case to those principles, we hold that even if Patton had properly raised his due process claim in the District Court, it would not have affected the outcome of his trial. Therefore, his claim does not warrant review pursuant to the common law plain error doctrine, and accordingly, it must be denied.

ISSUE 2
Did the District Court err when it instructed the jury?

The standard of review of jury instructions in criminal cases is 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). Additionally, we recognize that a district court has broad discretion when it instructs the jury. State v. Ross (1995), 269 Mont. 347, 358, 889 P.2d 161, 167.

On appeal, Patton contends that the District Court erred when it instructed the jury. Specifically, he makes the following three claims: (1) the District Court erred when it failed to include the element of voluntariness in its jury instruction which set forth the statutory elements of deliberate homicide (Instruction No. 3); (2) the District Court erred when it instructed the jury on the evidence of his post-crime concealment and flight (Instruction Nos. 9 and 10); and (3) the District Court erred when it defined the term “purposely” (Instruction No. 6).

THE ELEMENT OF VOLUNTARINESS

When the District Court defined the elements of deliberate homicide, it gave the following jury instructions:

INSTRUCTION NO. 3

To convict the defendant of Deliberate Homicide ... the State must prove the following elements:
1. That the defendant caused the death of Aubrey Bradley... and
2. That the defendant acted purposely or knowingly.
If you find from your consideration of the evidence that all of these elements have been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find ... that any of these elements has not been proved beyond a reasonable doubt then you should find the defendant not guilty.

INSTRUCTION NO. 4

A material element of every offense is a voluntary act, which includes an omission ....

Although the District Court instructed the jury that a material element of every offense is a voluntary act (Instruction No. 4), Patton contends that the District Court erred when it failed to include the element of voluntariness in its jury instruction which set forth the statutory elements of deliberate homicide (Instruction No. 3). He claims that the separate instructions could have misled the jury with regard to the extent of the State’s burden of proof, and that the element of voluntariness should have been listed with the elements of the statutory offense in a single jury instruction.

In support of his contention, Patton cites several federal court decisions. However, this Court has previously addressed this issue, and we conclude that our prior cases are controlling.

In State v. Zampich (1983), 205 Mont. 231, 667 P.2d 955, the defendant submitted a proposed jury instruction which incorporated the term “voluntarily” alongside the mental state elements of “purposely” and “knowingly.” The district court struck the term “voluntarily” from the proposed instruction, and instead, gave a separate instruction which stated that a “material element of every offense is a voluntary act.”

On appeal, we concluded that the district court’s other instructions adequately established the State’s burden to prove each element of the crime beyond a reasonable doubt, and that the instructions, when read together, properly instructed the jury. On that basis, we held that the district court did not err when it failed to include the element of voluntariness in its jury instruction which set forth the statutory elements of the charged offense.

In State v. Byers (1993), 261 Mont. 17, 861 P.2d 860, the defendant asserted that the district court erred when it gave separate jury instructions on (1) the element of voluntariness, and (2) the statutory elements of the crime. He claimed that the separate instructions confused the jury, and that they might not have fully considered the voluntary act requirement.

On appeal, we held that the separate instructions correctly reflected the law, and adequately established the State’s burden of proof. Furthermore, we concluded that the separate instruction on voluntariness did not prejudice the defendant.

In this case, the separate jury instruction on voluntariness did not prejudice Patton. He did not claim to have acted involuntarily during the commission of the offense, and the element of voluntariness was never an issue in the case. Rather, his entire defense was that a third party committed the crime.

Therefore, based on our prior holdings, we conclude that the separate instructions (Instruction Nos. 3 and 4), when read together, fully and fairly instructed the jury on the law applicable to the case. Accordingly, we hold that the District Court did not err when it failed to include the element of voluntariness in its jury instruction which set forth the statutory elements of deliberate homicide.

PATTON’S CONCEALMENT AND FLIGHT

At trial, the State presented evidence and testimony which established that, on June 12,1994, Patton left the scene of the crime. Later in the afternoon, a deputy sheriff spotted Patton near the highway three miles south of Boulder. When Patton saw the officer, he grabbed his black bag and fled up a ravine. Three days later, on June 15,1994, a highway patrol officer apprehended Patton while he was hitchhiking on the interstate south of Boulder. When the officer questioned him, he concealed his true identity, and stated that his name was “Beau Justice.”

Based on this evidence and testimony, the District Court gave the following jury instructions:

INSTRUCTION NO. 9
If you are satisfied that the crime charged in the information has been committed by someone, then you may take into consideration any testimony showing, or tending to show, concealment by the defendant. This testimony may be considered by the jury as a circumstance tending to prove a consciousness of guilt, but is not sufficient of itself to prove guilt. The weight to be given such circumstance and significance if any, to be attached to it, are matters for the jury to determine.
INSTRUCTION NO. 10
If you are satisfied that the crime charged in the information has been committed by someone, then you may take into consideration any testimony showing, or tending to show, flight by the defendant. This testimony may be considered by the jury as a circumstance tending to prove a consciousness of guilt, but is not sufficient of itself to prove guilt. The weight to be given such circumstance and significance if any, to be attached to it, are matters for the jury to determine.

On appeal, Patton contends that the District Court erred when it instructed the jury on the evidence of his post-crime flight and concealment.

Patton does not claim that these instructions (Nos. 9 and 10) vary impermissibly from the Montana Criminal Jury Instructions from which they were derived; nor does he assert that the State’s evidence of his flight and concealment is insufficient to support the use of these instructions. In fact, he concedes that the State is allowed to introduce evidence of his flight and concealment, and that the jury is allowed to consider that evidence.

However, he contends that when the District Court gave Instruction Nos. 9 and 10 it improperly commented on the evidence, invaded the province of the jury, and gave unfair weight to the evidence in favor of the State.

The language of Instruction Nos. 9 and 10 was taken verbatim from the Montana Criminal Jury Instructions (1990), published by the State Bar of Montana, and based upon the authority of State v. Walker (1966), 148 Mont. 216, 419 P.2d 300. Furthermore, we have repeatedly upheld the use of jury instructions regarding a defendant’s flight. See, e.g., Byers, 261 Mont, at 45, 861 P.2d at 877; State v. Campbell (1990), 241 Mont. 323, 330, 787 P.2d 329, 334; State v. Charlo (1987), 226 Mont. 213, 219, 735 P.2d 278, 281; State v. Shurtliff (1980), 187 Mont. 235, 244, 609 P.2d 303, 308; State v. Gone (1978), 179 Mont. 271, 277, 587 P.2d 1291, 1295.

Although most of the cases cited deal with a defendant’s flight, it is well established that evidence of concealment is “treated in the same manner as flight.” See MCJI1-019 (citing State v. Shaw (1982), 199 Mont. 248, 648 P.2d 287; State v. Armstrong (1980), 189 Mont. 407, 616 P.2d 341; State v. Adair (Ariz. 1970), 469 P.2d 823).

Additionally, we recognize that “[a] jury instruction may be given when it is relevant to evidence or issues in a case, and when it is supported either by some evidence or some logical inference from other evidence presented at trial.” Charlo, 226 Mont, at 218-19, 735 P.2d at 281 (citing State v. Kirkaldie (1978), 179 Mont. 283, 292, 587 P.2d 1298, 1304).

In this case, the District Court did not improperly comment on the evidence or invade the province of the jury. Instruction Nos. 9 and 10 were based on and supported by the State’s evidence, and merely reflected the testimony of the State’s witnesses.

Patton also asserts that when the District Court instructed the jury on the evidence of his flight and concealment it gave unfair weight to the evidence in favor of the State.

However, Instruction Nos. 9 and 10 accurately reflect the law in Montana, that the jury may consider flight by a defendant as a circumstance that tends to prove consciousness of guilt. State v. Pierce (1982), 199 Mont. 57, 63, 647 P.2d 847, 851.

Additionally, the instructions were conditioned by the phrase, “may take into consideration any testimony.” (Emphasis added.) The instructions, therefore, were not mandatory, and did not impermissibly shift the burden of proof to the defendant. State v. Goltz (1982), 197 Mont. 361, 371, 642 P.2d 1079, 1085. Instruction Nos. 9 and 10 merely instructed the jury to determine the weight and significance, if any, of the evidence of Patton’s flight and concealment; and they plainly instructed that evidence of his flight and concealment “is not sufficient of itself to prove guilt.”

Lastly, we recognize that Instruction Nos. 9 and 10 are in accord with our holding in Walker, in which we stated:

The evidence is sufficient to support the giving of the [flight and concealment] instruction[s], it was a matter for the jury to accept or reject [defendant’s] reasons .... It was the jury’s task then to weigh the evidence accordingly.

Walker, 148 Mont, at 226, 419 P.2d at 306.

Therefore, we conclude that when the District Court instructed the jury regarding Patton’s post-crime flight and concealment, it did not give unfair weight to that evidence and did not err.

THE DEFINITION OF “PURPOSELY”

When the District Court defined the term “purposely,” it gave the following jury instruction:

INSTRUCTION NO. 6

A person acts purposely when it is his conscious object to engage in conduct of that nature or to cause such a result.

On appeal, Patton contends that the District Court erred when it defined the term “purposely.” He asserts that Instruction No. 6 impermissibly broadened the mens rea element of the crime charged, and thereby reduced the State’s burden of proof as to that element. He maintains that he could only have acted “purposely,” for purposes of a deliberate homicide conviction, if it was his conscious object to cause the death of Bradley, and that the jury was improperly instructed that he could be convicted if the State proved that he had the purpose to “engage in conduct,” even though it did not prove that he engaged in that conduct for the purpose of causing another’s death.

In State v. Rothacher (1995), 272 Mont. 303, 901 P.2d 82, the district court instructed the jury that in order to convict the defendant of deliberate homicide it was not necessary for the State to prove that the defendant intended to cause the death of the victim, so long as the act which caused the death was done purposely, and no circumstances of mitigation, excuse, or justification were present.

After an extensive analysis of the plain language of the pertinent statutes, we concluded that:

[Wjhile our statutory law does not require proof that [the defendant] intended the specific result of his act, it does at least require that he intended a similar kind of harm. It is not sufficient, as indicated in [the District Court’s jury instruction], that the act which caused the harm be done purposely without regard to whether any harm was intended.

Rothacher, 272 Mont, at 307, 901 P.2d at 85.

In this case, we conclude that, pursuant to Rothacher, the District Court erred when it instructed the jury that “[a] person acts purposely when it is his conscious object to engage in conduct of that nature or to cause such a result.” (Emphasis added.) Instruction No. 6 defined “purposely” in an either-or-fashion, and allowed the jury to convict Patton solely on the basis that he consciously engaged in conduct without regard to whether harm was intended.

However, our conclusion that Instruction No. 6 was erroneous is simply the first part of our analysis. Pursuant to § 46-20-701, MCA, a district court’s judgment will not be reversed for error unless the defendant’s substantial rights are affected.

The potential prejudice from Instruction No. 6 could occur where a defendant acted “purposely,” but did not intend to cause any harm. However, in this case, as in Rothacher, no facts were presented from which a credible argument could be made that when Bradley was stabbed eight times his assailant did not intend to cause any harm. Patton’s only asserted defense was that the crime was committed by another person.

Therefore, we hold that, although the District Court erred when it instructed the jury on the definition of “purposely” (Instruction No. 6), the error was harmless and does not require a reversal of the judgment.

Accordingly, the judgment of the District Court is affirmed.

JUSTICES GRAY, NELSON, HUNT and LEAPHART concur.

JUSTICE LEAPHART,

specially concurring.

I concur in the opinion of the Court. I write separately with regard to Instruction No. 10 regarding the jury’s consideration of evidence of flight by the defendant. The defendant has argued that this instruction is an improper comment upon the evidence and should not be given. He cites a number of federal authorities in support of his argument.

I agree with the Court that Instruction No. 10 is a proper statement of the law under existing precedent. State v. Hurlbert (1988), 756 P.2d 1110, 232 Mont. 115. Furthermore, the circumstantial evidence in this case was so overwhelming that a different instruction on flight would not have made a difference in the outcome.

However, Ido think that the Court should re-examine the propriety of giving an instruction on flight. I think there is considerable merit to the views expressed by the Committee' drafting the Ninth Circuit Model Jury Instructions. That Committee expresses the view that instructions on particular kinds of evidence should be avoided as much as possible. “Aside from being unnecessary, instructions on particular inferences are undesirable in that they tend to inject argument into the judge’s charge and lengthen it unnecessarily.” Ninth Circuit Model Jury Instructions (West 1995), at 49. The Committee recommends against giving instructions such as those dealing with flight, resistance to arrest, missing witness, failure to produce evidence etc.

As the Seventh Circuit stated in United States v. Jackson (1978), 572 F.2d 636, 639-40:

[T]he probative value of flight as circumstantial evidence of guilt depends on the degree of confidence with which four inferences can be drawn: (1) from the defendant’s behavior to flight; (2) from flight • to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. The court also noted that
[t]he use of evidence of flight has been criticized on the grounds that the second and fourth inferences are not supported by common experience and it is widely acknowledged that evidence of flight or related conduct is “only marginally probative as to the ultimate issue of guilt or innocence.”
Id. [citations omitted]. Indeed, the Supreme Court has expressed its lack of confidence in the probative value of flight evidence. In Wong Sun v. United States, 371 U.S. 471 483 n. 10, 83 S.Ct. 407, 415, 9 L.Ed.2d 441 (1963), the Court remarked that
we have consistently doubted the probative value in criminal trials of evidence that the accused fled the scene of an actual or supposed crime. In Alberty v. United States, 162 U.S. 499, 511, 16 S.Ct. 864, [868], 40 L.Ed. 1051 this Court said: “ ... it is not universally true that a man, who is conscious that he has done a wrong, ‘will pursue a certain course not in harmony with the conduct of a man who is conscious of having done an act which is innocent, right and proper;’ since it is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses.. Nor is it true as an accepted axiom of criminal law that ‘the wicked flee when no man pursueth, but the righteous are bold as a lion.’ ”
In light of this doubt as to the probative value of flight evidence, we are of the opinion that although its use may be proper in many cases, its admission, especially followed by a jury instruction, should be regarded with caution.

Although the State can argue the issue of flight, for the reasons set forth above, I question whether it is appropriate to have the court comment upon flight evidence in its charge to the jury.


text:
    IN RE MARRIAGE OF REBECCA JEAN YATES, Petitioner and Respondent, and JUSTIN GREG YATES, Respondent and Appellant.
    No. 95-575.
    Submitted on Briefs November 21, 1996.
    Decided December 19, 1996.
    53 St.Rep. 1410.
    280 Mont. 294.
    930 P.2d 644.

      See C.J.S. Bankruptcy S 330.

      For Appellant: Richard O. Harkins; Attorney at Law; Ekalaka.
    For Respondent: Joan Meyer Nye; Nye & Meyer; Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Justin Greg Yates filed a petition pursuant to Chapter 7 of the Bankruptcy Code on September 6, 1994, in the United States Bankruptcy Court in the District of Montana, in which he named his ex-wife, Rebecca Jean Yates, as a creditor. In response, Rebecca filed an adversarial proceeding in Bankruptcy Court, in which she objected to the discharge of Justin’s obligations to her. On January 12, 1995, the Bankruptcy Court entered an order in which it abstained from the proceeding and remanded the question of dischargeability to the District Court for the Thirteenth Judicial Court in Yellowstone County. Following a hearing, the District Court issued an order in which it concluded that, pursuant to 11 U.S.C. § 523(a)(5), Justin’s debts to Rebecca for maintenance and property settlement are not dischargeable. Justin appeals the District Court’s order. We affirm in part and reverse in part the order of the District Court.

We address three issues on appeal:

1. Did the District Court have jurisdiction to decide the issue of dischargeability, pursuant to 11 U.S.C. § 523?
2. Did the District Court err when it concluded that Justin’s maintenance obligation is not dischargeable?
3. Did the District Court err when it concluded that Justin’s property settlement obligation is not dischargeable?

FACTUAL BACKGROUND

The marriage of Justin and Rebecca Yates was dissolved by decree on June 30, 1992. The dissolution decree required Justin to pay Rebecca the amount of $23,171.50 for property settlement, and maintenance in the amount of $300 per month for twenty-four months or until full-time employment or remarriage.

As of 1994, Justin had not paid any of the amount owed to Rebecca for property settlement or maintenance. Following a hearing on August 11,1994, the District Court entered an order in which it found that Justin had property and income sufficient to make some payments on the two obligations to Rebecca. The court therefore found Justin to be in contempt and ordered him to sell certain items of property and to sign a partial assignment of wages to purge himself of contempt. Justin did not appeal the District Court’s order.

On September 6,1994, Justin filed a petition pursuant to Chapter 7 of the Bankruptcy Code in the United States Bankruptcy Court and sought a discharge from his property division and maintenance obligations. In response, Rebecca filed an adversarial proceeding in which she claimed that Justin’s debts to her were not dischargeable. On January 12, 1995, the Bankruptcy Court issued an order of abstention and remanded the case to the Thirteenth Judicial District Court for a determination of dischargeability.

The District Court held a hearing to consider the issue of the dischargeability of Justin’s two debts to Rebecca on October 27,1995. In its findings of fact, conclusions of law, and order, entered November 15,1995, the court concluded that, pursuant to 11 U.S.C. § 523(a)(5), neither Justin’s maintenance obligation nor his property settlement obligation are dischargeable. The court therefore ordered Justin to comply with its contempt order of August 23, 1994.

STANDARD OF REVIEW

Our review of a district court’s order is two-fold. First, we review the district court’s findings of fact to determine whether they are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 R2d 904, 906. Second, we review a district court’s conclusions of law to determine 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.

ISSUE 1

Did the District Court have jurisdiction to decide the issue of dischargeability, pursuant to 11 U.S.C. § 523?

In this case, the United States Bankruptcy Court in the District of Montana entered an order in which it abstained from the issue of the dischargeability of Justin’s debts and transferred the issue to the Thirteenth Judicial District Court in Yellowstone County. The Bankruptcy Court reasoned that the proper forum for the issue of the discharge of a support claim in a divorce action is the state district court. In support of its conclusion, the court relied on In re Rough (Bankr. Mont. 1986), 3 Mont. B.R. 1,3, in which the same court stated:

It is a well settled rule that the Bankruptcy Court has concurrent jurisdiction, as opposed to exclusive jurisdiction to determine the dischargeability of a debt under Section 523(a)(5). In re Aldrich, 34 B.R. 776, 780 (BAP 9th Cir. 1983); State of Montana ex rel. Rough v. District Court, [218 Mont. 499, 502, 710 P.2d 47, 49], 42 St. Rep. 1773, 1775 (1985); 3 Collier on Bankruptcy, 523.15(6), pp. 108-109 (15th edition).

The District Court accepted concurrent jurisdiction and concluded that (1) Justin’s maintenance obligation is not dischargeable, pursuant to 11 U.S.C. § 523(a)(5), and that (2) Justin’s property-settlement obligation is not dischargeable, pursuant to 11 U.S.C. § 523(a)(5).

It is well established that a state district court has concurrent jurisdiction with a federal bankruptcy court to determine the issue of the dischargeability of debts pursuant to 11 U.S.C. § 523(a)(5). State ex rel. Rough v. District Court (1985), 218 Mont. 499, 502, 710 P.2d 47, 49. Therefore, we hold that the District Court in this case had jurisdiction, following the Bankruptcy Court’s abstention, to decide the issue of the dischargeability of Justin’s maintenance and property division obligations pursuant to § 523(a)(5).

ISSUE 2

Did the District Court err when it concluded that Justin’s maintenance obligation is not dischargeable?

The parties’ decree of dissolution, entered on June 30, 1992, required Justin to pay Rebecca the amount of $23,171.50 as the value of her interest in marital property, and maintenance in the amount of $300 per month for twenty-four months or until full-time employment or remarriage. In support of its award of maintenance, the District Court made a finding that:

Rebecca had no skills or job training at the time of separation. She has embarked on a plan of vocational training, and she needs some financial assistance to complete that so that she can become self-supporting. She is receiving financial assistance during her training by reason of a PELL grant. Justin’s living expenses are very low because he lives on his parents’ ranch and is able to contribute something to Rebecca’s reasonable maintenance .... Commencing July 1st, 1992 Justin should pay Rebecca $300 per month until she obtains full employment or remarries, but in any event not to exceed 24 months.

Justin did not appeal the District Court’s order which awarded Rebecca maintenance.

In determining the issue of the dischargeability of Justin’s debt, the District Court concluded that its original maintenance award is not dischargeable pursuant to 11 U.S.C. § 523(a)(5).

11 U.S.C. § 523(a)(5) excepts from discharge a debt to a spouse, former spouse, or a child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental emit, or property settlement agreement....

Section 523(a)(5)(B) provides that the exception does not extend to a debt to the extent that

such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support.

In this case, Justin maintains that the District Court’s award of maintenance is not “in the nature of... maintenance,” pursuant to 11 U.S.C. § 523(a)(5)(B), and is thus dischargeable. Specifically, Justin alleges that Rebecca became self-supporting in mid-September 1992, so that the District Court’s maintenance award was no longer necessary after that date. Justin therefore maintains that “[t]he portion payable after Rebecca became self-supporting ... should be discharged.”

The determination of whether a debt to a former spouse qualifies as nondischargeable support pursuant to 11 U.S.C. § 523(a)(5)(B) is a matter of federal law. In re Gianakas (3d Cir. 1990), 917 F.2d 759, 762. Federal courts have held that “[t]he critical question in determining whether the obligation is, in substance, support is ‘the function served by the obligation at the time of divorce.’ ” In re Sampson (10th Cir. 1993), 997 F.2d 717, 725. Factors relied on by bankruptcy courts in making such a determination include:

(1) Whether the obligation under consideration is subject to contingencies, such as death or remarriage;
(2) Whether the payment was fashioned in order to balance disparate incomes of the parties;
(3) Whether the obligation is payable in installments or a lump sum;
(4) Whether there are minor children involved in a marriage requiring support;
(5) The respective physical health of the spouse and the level of education;
(6) Whether, in fact, there was a need for spousal support at the time of the circumstances of the particular case.

In re Robinson (Bankr. N.D. Ga. 1996), 193 B.R. 367, 372. See also In re Bowsman (Bankr. M.D. FI. 1991), 128 B.R. 485, 487; In re Graves (Bankr. S.D. Fla. 1987), 69 B.R. 626, 628.

In this case, an evaluation of the terms of the dissolution decree in light of 11 U.S.C. § 523(a)(5)(B) and federal bankruptcy factors clearly supports the District Court’s finding that the original maintenance award was in the nature of support, and therefore nondischargeable pursuant to 11 U.S.C. § 523(a)(5). As set forth above, the award was payable in monthly installments for a period of up to twenty-four months and was made contingent upon remarriage or full-time employment. Furthermore, the award was based on the court’s finding that Rebecca had no skills or job training at the time of the couple’s separation and therefore needed financial assistance for vocational training. Finally, the award referred to the couple’s disparate incomes and found that Justin had the means to contribute to Rebecca’s reasonable maintenance. Based on the foregoing factors, we hold that the District Court’s conclusion that Justin’s maintenance obligation was not dischargeable is correct.

Furthermore, we reject Justin’s contention that the District Court was required to re-evaluate the original maintenance award in light of Rebecca’s subsequent employment. The majority of federal bankruptcy courts holds that an inquiry into whether a maintenance award is in the nature of support, pursuant to 11 U.S.C. § 523(a)(5), should not include an examination of the present situation of the parties. See, e.g., Forsdick v. Turgeon (2d Cir. 1987), 812 F.2d 801, 803; In re Harrell (11th. Cir. 1985), 754 F.2d 902, 907; Boyle v. Donovan (8th Cir. 1984), 724 F.2d 681, 683; In re Stone (Bankr. D.Md. 1987), 79 B.R. 633, 639. The Second Circuit Court of Appeals, in fact, addressed the same issue and held:

As a secondary position the husband argues that even if the ... award was in the nature of alimony and hence was nondischargeable under § 523(a)(5), the bankruptcy court should have taken notice of the alleged “changed circumstances” of the parties and held that because the wife apparently no longer requires the support granted to her by the state court decision, the obligation is dischargeable despite the language of § 523(a)(5)....
There is no support in the language of § 523(a)(5) for the husband’s position. As the eleventh circuit noted in Harrell, 754 F.2d at 906, “[t]he language does not suggest a precise inquiry into financial circumstances to determine precise levels of need or support; nor does the statutory language contemplate an ongoing assessment of need as circumstances change.” To be exempt from discharge an award of alimony or support does not have to conform exactly to some level that a bankruptcy judge might deem necessary for maintenance of a former spouse or children; it merely has to be “in the nature of’ alimony or support. In short, there is no warrant for a federal bankruptcy court to evaluate the state court’s alimony award against the needs of the former spouse to whom it was granted.

Forsdick, 812 F.2d at 803-04 (emphasis added) (citation omitted).

In this case, then, the circumstances of Rebecca’s employment after the decree of dissolution are clearly irrelevant to a determination of the dischargeability of Justin’s maintenance debts. If Justin had chosen to contest Rebecca’s award of maintenance, he could have appealed the District Court’s original dissolution decree or petitioned that court for a modification of the decree. It is a matter of federal law, however, that the proper forum for a determination of “changed circumstances” is not a federal bankruptcy court or a state court sitting as a bankruptcy court.

We therefore hold that the District Court did not err when it declined to consider the changed circumstances of the parties. We affirm the District Court’s holding that Justin’s maintenance debt was not dischargeable, pursuant to 11 U.S.C. § 523(a)(5).

ISSUE 3

Did the District Court err when it concluded that Justin’s property settlement obligation is not dischargeable?

The District Court, in its “Order of Nondischargeability,” concluded that Justin’s obligation to pay Rebecca the amount of $23,171.50 for settlement of her interest in the marital property is not dischargeable pursuant to 11 U.S.C. § 523(a)(5), which provides that debts which constitute alimony, maintenance, or support are excepted from discharge. On appeal, Justin maintains that the $23,171.50 obligation is not a debt for alimony, maintenance, or support of Rebecca, and is thus dischargeable as a debt for the division of marital property.

It is well established that:

An indebtedness for a former spouse for alimony, maintenance, or support of the spouse or the couple’s children which is memorialized in the divorce decree is not dischargeable in bankruptcy. 11 U.S.C. § 523(a)(5). An indebtedness in the divorce decree that merely divides the marriage property, however, is dischargeable.

State ex rel. Rough v. District Court (1985), 218 Mont. 499, 503, 710 P.2d 47, 49 (quoting In re Coil (7th Cir. 1982), 680 F.2d 1170, 1171). See also In re Morel (8th Cir. 1992), 983 F.2d 104, 105; In re Brody (2d Cir. 1993), 3 F.3d 35, 38. This Court has adopted a test for the determination of whether an alleged property settlement is intended for a spouse’s support:

In determining whether an obligation is intended for support of a former spouse, the court must look beyond the language of the decree to the intent of the parties and to the substance of the obligation .... If an agreement fails to provide explicitly for spousal support, a court may presume that a so-called “property settlement” is intended for support when the circumstances of the case indicate that the recipient spouse needs support.... Factors indicating that support is necessary include the presence of minor children and an imbalance in the relative income of the parties .... Similarly, if an obligation terminates on the death or remarriage of the recipient spouse, a court may be inclined to classify the agreement as one for support.... A property settlement would not be affected by the personal circumstances of the recipient spouse; thus, a change in those circumstances would not affect a true property settlement, although it would affect the need for support. The court will look also to nature and duration of the obligation to determine whether it is intended as support. Support payments tend to mirror the recipient spouse’s need for support. Thus, such payments are generally made directly to the recipient spouse and are paid in installments over a substantial period of time.

Rough, 218 Mont, at 503-04, 710 P.2d at 50 (quoting Shaver v. Shaver (9th Cir. 1984), 736 F.2d 1314, 1316-17).

In this case, the District Court made no finding that the amount awarded for division of the couple’s marital property was actually in the nature of support. In fact, a review of the decree of dissolution makes clear that the $27,171.50 obligation was solely intended as a division of the couple’s marital estate. In the decree, the District Court entered the following finding:

The court finds that... the net estate of the parties at the time of separation is $61,855 ($54,099 [cattle and other assets] + $3,450 C.D. + $1,600 state income refund + $2,706 federal income refund). Accordingly, each party should receive $30,927.50 as that party’s one-half share of the net marital estate .... Justin shall transfer to Rebecca said certificate of deposit in the amount of $3,450 and transfer to her by endorsement of the check, or otherwise, the federal and state income tax refund in the amount of $4,306, which, when deducted from her share of the marital estate, leaves a balance due her of $23,171.50; said amount shall be paid Justin to Rebecca as soon as practicable, and in any event, not later than 60 days from the date of entry of judgment herein.

Based on the Rough factors, the District Court’s property division does not qualify does not qualify as an order in the nature of support. First, the award was not dependent upon Rebecca’s personal circumstances and was thus not terminable upon Rebecca’s death or remarriage. Second, the award was not payable in installment payments over a substantial period of time, but instead was to be paid in one lump sum within a period of sixty days. Finally, the dissolution decree provided separately for Rebecca’s support in the form of an award of maintenance, which, as set forth above, clearly addressed Rebecca’s need for support in light of the disparity in the couple’s income.

Because the property division award was not in the nature of alimony, maintenance, or support, it is not a nondischargeable debt pursuant to 11 U.S.C. § 523(a)(5). On appeal, however, Rebecca contends that even if Justin’s debt is not dischargeable pursuant to 11 U.S.C. § 523(a)(5), this Court may still affirm the District Court’s “Order of Nondischargeability” on the ground that Justin’s debt is not dischargeable pursuant to 11 U.S.C. § 523(a)(6).

In this case, the District Court did not address the issue of the dischargeability of Justin’s debts pursuant to 11 U.S.C. § 523(a)(6), which provides that a debtor may not be released from a debt “for willful and malicious injury by the debtor to another entity or to the property of another entity.” The District Court’s failure to address that issue was, however, correct. A claim pursuant to 11 U.S.C. § 523(a)(6), unlike § 523(a)(5), “may not be pursued in the state court as a result of the exclusive jurisdiction granted to the bankruptcy courts by the bankruptcy code.” In re Aldrich (Bankr. App. 1983), 34 B.R. 776,781. See also In re Martinez (Bankr. N.D. Ill. 1990), 110 B.R. 353, 355; In re Holt (Bankr. S.D. Ohio 1989), 102 B.R. 116, 119; In re Petronello (Bankr. W.D.N.Y. 1983), 33 B.R. 750, 751. Because the dischargeability of a debt pursuant to 11 U.S.C. § 523(a)(6) is within the exclusive jurisdiction of a federal bankruptcy court, the District Court in this case clearly did not have jurisdiction to determine whether Justin’s debt for property division was dischargeable pursuant to that section.

We hold that the District Court erred when it concluded that Justin’s debt for property division is not dischargeable pursuant to 11 U.S.C. § 523(a)(5). We further hold that the District Court did not have jurisdiction to address the issue of the dischargeability of that debt pursuant to § 523(a)(6). We therefore reverse that portion of the court’s “Order of Nondischargeability” which concluded that Justin’s $23,171.50 debt was not dischargeable and affirm that portion of the District Court’s order which concluded that Justin’s maintenance obligation was not dischargeable.

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


author: CHIEF JUSTICE TURNAGE JUSTICE TRIEWEILER

text:
    WILLIAM J. SEBENA, d/b/a LEWIS AND CLARK MOTEL OF BOZEMAN, MONTANA, Plaintiff and Appellant, v. AMERICAN AUTOMOBILE ASSOCIATION and AAA MONTANA, Defendants and Respondents.
    No. 96-049.
    Submitted on Briefs September 12, 1996.
    Decided December 19, 1996.
    53 St.Rep. 1415.
    280 Mont. 305.
    930 P.2d 51.

      See C.J.S. Damages § 162.
    For Appellant: Kevin E. Vainio, Butte.
    For Respondent: Barry G. O’Connell, Bozeman.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

William J. Sebena, d/b/a Lewis and Clark Motel of Bozeman, Montana, appeals a judgment of the First Judicial District Court, Lewis and Clark County. That court rejected Sebena’s claim that the American Automobile Association (AAA) and AAA Montana intentionally interfered with the Lewis and Clark Motel’s prospective business advantage by delisting the motel from the AAA travel directory. We affirm.

The following issues are dispositive of this appeal:

1. Whether the District Court erred in denying Sebena a jury trial.
2. Whether the court erred in ruling that Sebena failed to prove damages.

AAA is a nonprofit Connecticut corporation which maintains its principal place of business in Heathrow, Florida. There are approximately 36,000,000 AAA members. AAA publishes regional TourBooks which provide information for its members on attractions, lodging, and restaurants in various regions of the United States. AAA Montana, a nonprofit Montana corporation and a member club of AAA, maintains its principal place of business in Helena, Montana.

To be listed in a TourBook, an establishment must undergo an annual inspection and meet certain minimum standards. AAA ranks the motels listed in its TourBooks with one to five diamonds, in ascending order of quality.

Beginning in 1978, the Lewis and Clark Motel was listed in AAA’s annual TourBook for Montana, Idaho, and Wyoming. Until 1994, it was listed as a three- or four-diamond establishment. However, beginning in 1987, AAA’s annual inspectors noted deficiencies from AAA requirements in the Lewis and Clark Motel. Each year, Sebena was directed to correct these deficiencies to maintain the motel’s rating.

In March 1993, AAA advised Sebena that, based upon its most recent inspection, it would not list the Lewis and Clark Motel in its 1994 TourBook. Sebena subsequently brought this action, alleging that the defendants wrongfully and intentionally interfered with the motel’s business relationships with traveling members of AAA and with the motel’s expectancy of future economic benefit.

After a two-day nonjury trial, the court issued findings, conclusions, and judgment for the defendants. Sebena appeals.

ISSUE 1
Did the District Court err in denying Sebena a jury trial?

Sebena did not include a demand for jury trial in his complaint. He served his demand for jury trial as a separate document on June 16, 1994. The court granted the defendants’ motion to strike the demand for jury trial on the basis that the demand was untimely.

Rule 38(b), M.R.Civ.R, states:

Any party may demand a trial by jury ... by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleadingl] [Emphasis added.]

Sebena’s summons and complaint were served upon AAA on April 18, 1994. AAA and AAA Montana served a joint answer to the complaint on May 26. Thereafter, on May 31, AAA Montana was served with the summons and complaint.

The District Court ruled that Sebena’s June 16 demand for jury trial was untimely based upon its determination that the defendants’ joint answer served on May 26 was the last pleading served for purposes of Rule 38(b). Sebena argues that the last pleading served was, instead, the copy of the complaint served upon AAA Montana on May 31, with return of service filed on June 2. He maintains that with three additional days for service by mail pursuant to Rule 6(e), M.R.Civ.R, and excluding weekends pursuant to Rule 6(a), M.R.Civ.R, his time for filing a demand for jury trial did not expire until June 21, 1994.

Citing Matter of Texas General Petroleum Corp. (5th Cir. 1995), 52 E3d 1330, Sebena concedes that in the “usual” case, service of the last pleading would be the service of the answer or a reply to a counterclaim. The pleadings in this action consist of the complaint and the answer. See Rule 7(a), M.R.Civ.R

The May 26 answer to Sebena’s complaint clearly stated that it was filed by “the Defendants, American Automobile Association and AAA Montana.” When this joint answer was filed, the District Court was vested with jurisdiction over both defendants, because “|j]urisdiction may be acquired by our courts over any person through service of process as herein provided; or by the voluntary appearance in an action by any person either personally, or through an attorney [.]” Rule 4B(2), M.R.Civ.P. Service of the complaint upon AAA Montana after AAA Montana had already filed its answer to the complaint was thus superfluous for jurisdictional purposes.

We conclude that when the joint answer was served on May 26, 1994, the last pleading had been served for purposes of Rule 38(b), M.R.Civ.P. Allowing three additional days for mailing and excluding weekends, a timely demand for jury trial should have been filed by June 10, 1994. See Detienne Associates v. Montana Rail Link (1993), 261 Mont. 238, 862 P.2d 1106.

Sebena’s counsel admits that he overlooked the fact that the May 26 answer was a joint answer by both defendants. He argues, however, that even if his demand for jury trial was late, the District Court abused its discretion in denying him a jury trial as allowed under Rule 39(b), M.R.Civ.P. Under that Rule, a court may order a jury trial notwithstanding the parties’ failure to timely demand one.

Because there is no Montana case on point, we look to cases decided under the corresponding federal rule of civil procedure, after which Rule 39(b), M.R.Civ.R, was patterned. The inadequacy of attorney oversight in failing to timely demand a jury trial as a reason for ordering a jury trial under Rule 39(b) has been clearly established in the federal courts.

It is clear in the Ninth Circuit that a district court does not abuse its discretion in denying a request for a jury trial under Rule 39(b) when the only excuse for the failure to timely file a demand is oversight, inadvertence, neglect, or counsel’s unfamiliarity with federal practice and procedure. ... Indeed, Ninth Circuit authority suggests that the district judge may actually abuse his discretion by granting relief in these circumstances.

Robertson v. Equitable Life Assur. Soc. of U.S. (D.C. Cal. 1987), 661 F.Supp. 416, 424-25, aff’d, 869 F.2d 1498 (1989).

We hold that the District Court did not err in ruling that the time for demanding a jury trial pursuant to Rule 38(b), M.R.Civ.P, began to run upon the service of the defendants’ joint answer to Sebena’s complaint and expired before Sebena filed his demand for jury trial. We further hold that the District Court did not abuse its discretion by declining to order a jury trial under Rule 39(b), M.R.Civ.P.

ISSUE 2

Did the court err in ruling that Sebena failed to prove damages?

To establish a case of intentional interference with prospective business advantage, a plaintiff must show acts which (1) were intentional and willful; (2) were calculated to cause damage to the plaintiff’s business; (3) were done with unlawful purpose of causing damage or loss, without right or justifiable cause on the part of the actor; and (4) resulted in actual damages or loss. State Med. Oxygen v. Amer. Med. Oxygen (1988), 230 Mont. 456, 462, 750 P.2d 1085, 1088-89. Damages must be proven by substantial evidence which is not the product of mere guess or speculation. Lenz Const. Co. v. Cameron (1984), 207 Mont. 506, 511, 674 P.2d 1101, 1103.

Sebena argued that the defendants’ failure to list his motel in the TourBook cost him guests and, therefore, money. His evidence of damages consisted of his statement that the motel had a loss of 1,065 room rentals between 1993, the last year the motel was listed in the TourBook, and 1994, the first year it was not listed. He multiplied that number by a nightly room rental rate of $48.36 to arrive at a figure of $51,503.40 for his 1994 revenue loss from delisting.

During cross-examination, Sebena and his daughter, the motel’s general manager, both admitted that they maintained no records showing the number of room rentals generated through AAA. Sebena’s daughter also admitted that additional motels built in Bozeman might have had an impact on the business of the Lewis and Clark Motel. Sebena’s accountant similarly testified that he did not have any records on the percentage of the motel’s business attributable to the AAA listing. The accountant further attested on cross-examination that no significant capital improvements had been made to the Lewis and Clark Motel between 1989 and 1993.

In short, Sebena offered no concrete information on the percentage of his motel business which was attributable to the AAA listing. Nor did he offer expert testimony specifying the portion of loss of business, if any, which was attributable to delisting by AAA, or the portion of the claimed lost revenue representing lost profits.

This Court has set forth the following rules pertaining to the recovery of lost profits:

Damages for loss of profits may be awarded if not speculative. The rule that prohibits speculative profits does not apply to uncertainty as to the amount of such profits but to uncertainty or speculation as to whether the loss of profits is the result of the wrong and whether such profit would have been derived at all. Once liability is shown, that is the certainty that the damages are caused by the breach, then loss of profits on a reasonable basis for computation and the best evidence available under the circumstances will support a reasonably close estimate of the loss by a District Court. But no damages are recoverable which are not clearly ascertainable both in nature and origin, and only profits which are reasonably certain may be awarded.

Stensvad v. Miners & Merchants Bank, Etc. (1982), 196 Mont. 193, 206, 640 P.2d 1303, 1310 (citations omitted).

The District Court concluded that Sebena failed to show that he suffered any damages, based on the absence of records regarding the portion of the motel’s business related to AAA and the absence of analysis by the accountant of lost profits relating to the delisting. We agree with the conclusion of the District Court.

Sebena has also raised two other issues on appeal. One of them concerned the court’s refusal to admit into evidence guests’ comment cards about the motel, which he offered as evidence that delisting his motel was unjustified. The other issue Sebena raised was whether the court should have addressed a breach of contract claim which he asserted. Any claim for breach of contract, like the claim of intentional interference with prospective business advantage, would have required nonspeculative proof of damages. See Bolz v. Myers (1982), 200 Mont. 286, 300-01, 651 P.2d 606, 613-14. Given our holdings on the issues discussed above, we conclude that we need not further address these other two issues.

Affirmed.

JUSTICES ERDMANN , NELSON and HUNT concur.

JUSTICE TRIEWEILER

specially concurring in part and dissenting in part.

I concur with the majority’s conclusions that Sebena’s demand for a jury trial was untimely pursuant to Rule 38(b), M.R.Civ.P., and that the District Court did not abuse its discretion when it declined to order a jury trial pursuant to Rule 39(b), M.R.Civ.P.

I dissent from the majority’s conclusion that Sebena failed to prove damages.

The majority seems to conclude that because Sebena has no specific record of how many room rentals were directly attributable to his listing by AAA, and because there might have been other factors which also contributed to a decrease in his rental rate, he has not, as a matter of law, proven damages. However, in arriving at its conclusion, the majority has misapplied our decision in Stensvad v. Miners & Merchants Bank of Roundup (1982), 196 Mont. 193, 640 P.2d 1303. Pursuant to Stensvad, it is not the amount of damages which must be proven with certainty. It is the fact that damages have been sustained which must be proven with reasonable certainty.

In this case, to conclude that there were no damages from being delisted by AAA is to ignore all of AAA’s admissions in the form of promotional materials suggesting there is an economic advantage to those who are listed. For example, Exhibit 77 admitted by the District Court includes testimonials from others listed by AAA who state that “[a] 90-day tracking period revealed that 50% of our business came from the AAA Tourbook” and that “[w]e feel that our AAA Tourbook ad accounts for about 50% of our total business.”

Gene DeFrance is the former employee of the Montana Automobile Association who first approached Sebena about a AAA listing. He promoted the listing by telling Sebena how many members AAA had and how reliant they were on the tour book for information about accommodations. He testified that it was economically advantageous to be listed in the book.

Lisa Sebena is the daughter of William Sebena, and at the time of trial had been the manager of the Lewis and Clark Motel for eight years. In that capacity, she worked in all aspects of the business and was familiar with the motel’s volume of business, both while it was listed with AAA and after it was delisted. Lisa testified that prior to the delisting by AAA, close to sixty percent of the motel’s business resulted from its inclusion in AAA’s tour book. She testified that from her personal observations while working at the motel, there has been a loss of business directly attributable to having the motel removed from the tour book. She testified that many of the people who came to the motel based on a AAA listing walked in off the street, and that for them there would be no record of the fact that they came to the motel because of AAA. However, she also testified that because on occasion potential guests called and asked for the AAA rate and were told that they were no longer affiliated with AAA, she was able to definitely state that they lost business by the loss of their affiliation.

William Sebena was asked the following questions and gave the following answers:

Q. Have you made an observation or a study of your business before when you were AAA affiliated, and your three and four-diamond listings in the tour book, as compared to what you’re left with now? A. As compared to after we were deleted?
Q. Right.
A. Yes.
Q. And what have been your observations with respect to that?
Q. Tell me about your observations. What have you observed, what have you done to make these observations about your lessening of business?
A. We went to our accounting records and compared figures.
Q. And what did you discover in making your comparison of before you were terminated from AAA and afterwards?
A. I discovered that we were, even though we, in 1994, January and February, we are still listed in the current book, that we had a considerable loss in room rentals by the number of 1,065 ....
Q. ... Can you compute a yearly loss for the year in 1994?
A. We averaged the cost of the 1993 rooms.
Q. What was that average?
A. We averaged $48 and some cents throughout the year.
Q. You, in fact, figured $48.36; is that correct?
A. Yes. And then we multiplied it by those 1,065 rooms and arrived at a quite accurate figure at a loss.
Q. In using those figures, can you tell us the amount of money that you lost during the 1994 calendar year?
A. $48.36?
Q. Right.
A. $51,503.40.

Steve Hamilton, who is a certified public accountant and has practiced in Montana since 1978, and was allowed by the District Court to testify as an expert witness, testified that he had been Sebena’s accountant for seven or eight years at the time of trial. He testified that the method used by Sebena to calculate his annual loss from being delisted by AAA was reasonable in light of what he knew about the business’s prior history and trends for other businesses in the Bozeman area. He also testified that as of 1993, Sebena had run a profitable business and that it would not have been unreasonable to expect him to continue operating the business in that fashion for an additional twenty years.

If there was no economic advantage to being listed, then how could AAA charge, and why would Sebena and thousands of others pay to be listed? If there was an economic advantage to being listed, then there had to be an economic disadvantage from being delisted.

In sum, it was not speculative that damages had been sustained as a result of the fact that the Lewis and Clark Motel was excluded from AAA’s Tourbook. Pursuant to our previous decisions, once the probability of damage has been shown, the loss of profits need only be computed on the basis of the best evidence available. Sebena provided the best evidence available and the District Court had an obligation to arrive at some calculation of damages based on that evidence.

Because I conclude that the District Court erred in its finding that no damages were sustained, I conclude that the District Court also erred when it failed to address the plaintiff’s specific claim that the defendant breached an express contract with the plaintiff by excluding his business from the AAA Tourbook, in spite of his alleged efforts to improve the premises to the extent of his financial ability. Rule 52(a), M.R.Civ.P, provides in part as follows: “In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon.”

In this case, the court made no finding that a contract did or did not exist, and therefore made no finding which resolved Sebena’s allegation that AAA had breached its contract with him. The District Court did conclude that plaintiff failed to prove that AAA had acted arbitrarily, capriciously, or fraudulently when it delisted the motel, and further concluded that plaintiff had not proven interference with a prospective business advantage, but made no conclusions regarding the existence of or breach of a contract between the parties.

Instead of entering findings or conclusions related to Sebena’s contract claim, the District Court simply concluded that: “Assuming AAA did do something wrong, Plaintiff has failed to show that he suffered any damages.”

For the reasons, and based on the facts set forth above, I conclude that plaintiff did offer proof of damages. The District Court’s responsibility was to determine whether there had been a breach of contract and the amount of damages that had been proven.

For these reasons, I dissent from the majority’s conclusion that no damages were proven. I would reverse the judgment of the District Court and remand for findings and conclusions regarding Sebena’s contract claim. If the District Court found and concluded that a contract existed between the parties and had been breached by AAA, then I conclude the District Court should have arrived at a calculation of damages sustained by Sebena as a result of AAA’s contractual breach.


text:
    ROBERT W. LUDWIG, JEANNE M. LUDWIG, GARY G. GUNDERSON, KAREN L. GUNDERSON, CRAIG AMBROSE, CONNIE JO AMBROSE, JON E. ENDERSEN, LORIE R. ENDERSEN, MARIE HEITMAN, and BERYL ESHOM, Plaintiffs and Appellants, v. ROBERT SPOKLIE, Defendant and Respondent.
    No. 96-336.
    Submitted on Briefs December 5, 1996.
    Decided December 19, 1996.
    53 St.Rep. 1420.
    280 Mont. 315.
    930 P.2d 56.

      See C.J.S. Easements 8 109.
    For Appellant: Stephen C. Berg; Warden, Christiansen, Johnson & Berg; Kalispell.
    For Respondent: Douglas Wold; Wold Law Firm; Poison.
   JUSTICE TRIEWEILER

delivered the Opinion of .the Court.

The appellants, Robert W. Ludwig, et. al., filed an action against the respondent, Robert Spoklie, in the District Court for the Eleventh Judicial District in Flathead County, to enjoin Spoklie from developing and using a reserved easement for access which burdens their property. The District Court determined that Ludwigs do not have standing to bring an action to enjoin Spoklie from developing and using his easement, and dismissed the action. Ludwigs appeal the judgment of the District Court. We affirm the District Court.

The dispositive issue on appeal is whether the District Court erred when it determined that Ludwigs do not have standing to bring an action to enjoin Spoklie from developing and using his easement.

FACTUAL BACKGROUND

Ludwigs own property which is subject to two valid easements of record. The first is a two-hundred-foot-wide transmission line easement which was granted to the Bonneville Power Administration in 1947. The second is a sixty-foot-wide easement for road and utility purposes. It is located within the boundaries of the BPA’s easement, and was expressly reserved by Brian and Caroline Yarbrough in 1977. The BPA’s transmission line easement is senior in both time and entitlement to the Yarbroughs’ reserved easement.

Spoklie sought to purchase the Yarbroughs’ property. A valid conveyance of the real property would also convey “all easements attached” to the property. Section 70-20-308, MCA. In anticipation of that acquisition, he began using and developing the road located within the boundaries of the reserved sixty-foot road and utility easement.

In response, Ludwigs petitioned the District Court for injunctive relief. In November 1992, they obtained a temporary restraining order and, on December 18, 1992, the District Court entered a preliminary injunction which enjoined Spoklie from

constructing, improving, repairing or otherwise doing any work upon or traveling upon or allowing any traveling upon his purported existing road upon the westerly most aspect of the property of the Plaintiffs herein.

Subsequently, Spoklie acquired the Yarbroughs’ property and the sixty-foot road and utility easement attached to it. He also obtained, from the BPA, a Land Use Agreement in which the BPA recognizes his right to use the land over which it holds senior easement rights. The Agreement also establishes conditions with which Spoklie must comply when he uses and develops his junior easement. Relevant to this appeal is the following provision:

PLEASE NOTE: BPA is not the owner of this property and if you are not the owner, you must obtain the owners’ permission to use this property. There may also be other uses of the property which might be located within the same area as your project. This agreement is subject to those other rights.

Following a series of motions, a pretrial conference was held on February 2, 1996. Both parties stipulated that the only remaining issues regarding Ludwigs’ petition for a permanent injunction were issues of law, and that the District Court could decide those issues without a trial.

On February 13,1996, the District Court ordered that Ludwigs “do not have standing to restrict [Spoklie’s] use of his easement on the basis of the Land Use Agreement dated November 23,1993.” Accordingly, it dismissed Ludwigs’ action.

Ludwigs subsequently filed a motion for new trial, reconsideration, or relief from order. On April 18, 1996, the District Court denied Ludwigs’ motion; and on May 14, 1996, the District Court dissolved the preliminary injunction which it had previously entered on December 18, 1992.

DISCUSSION

The dispositive issue on appeal is whether the District Court erred when it determined that Ludwigs do not have standing to bring an action to enjoin Spoklie from developing and using his easement.

When we review a district court’s conclusions of law, the standard of review is whether those conclusions are correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459,469,898 P.2d 680, 686.

The District Court determined that Ludwigs are not intended third-party beneficiaries of the Agreement between Spoklie and the BPA and that, therefore, they do not have standing to bring an action to enforce its provisions. On that basis, the District Court dismissed Ludwigs’ petition for injunctive relief.

On appeal, Ludwigs contend that the District Court erred when it determined that they do not have standing to bring an action to enjoin Spoklie from using and developing his easement. They maintain that, as intended third-party beneficiaries of the Agreement between Spoklie and the BPA, they have standing to bring an action to enforce its terms. Specifically, they seek to enforce the following provision:

PLEASE NOTE: BPA is not the owner of this property and if you are not the owner, you must obtain the owners’ permission to use this property. There may also be other uses of the property which might be located within the same area as your project. This agreement is subject to those other rights.

Ludwigs assert that, because Spoklie did not obtain their permission to use their property, he failed to comply with the express terms of the Agreement. Therefore, they claim that, pursuant to the Agreement, they are entitled to bring an action to enjoin Spoklie from developing and using his easement.

In Harman v. MIA Service Contracts (1993), 260 Mont. 67,858 P.2d 19, we adopted the following definition of an intended beneficiary:

(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either
(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

Harman, 260 Mont, at 72, 858 P.2d at 22-23 (citing Restatement (Second) of Contracts § 302 (1981)).

Therefore, in order to establish the existence of a contract for the benefit of a third party, it must be shown that it was the intention of the contracting parties to benefit the third party. See, e.g., R.H. Grover, Inc. v. Flynn Ins. Co. (1989), 238 Mont. 278,284, 777 P.2d 338, 342.

The relevant provision of the Agreement states that, “[the] BPA is not the owner of this property and if you are not the owner, you must obtain the owners’ permission to use this property.” We conclude that this provision merely acknowledges the limits on the BPA’s authority to consent to the use and development of land that is owned by Ludwigs, and that it is not intended to benefit Ludwigs by taking away rights derived from some other source.

The BPA and Spoklie both have easements to use the same property for different purposes. Although the BPA’s easement was first in time and is, therefore, the senior easement, it is a nonexclusive easement and additional easements, such as Spoklie’s, can lawfully be created on the same land. 25 Am. Jur. 2d Easements and Licenses § 89 (1966). Therefore, Spoklie, as the holder of a valid reserved and recorded easement, is entitled to use and develop his easement without being required to obtain Ludwigs’ permission.

As the holder of the senior easement, the BPA has the right to object to and preclude any use of a junior easement which unreasonably interferes with its senior easement. See Gabriel v. Wood (1993), 261 Mont. 170, 176, 862 P.2d 42, 45. In fact, the BPA could bring an action to enforce the terms of the Agreement if Spoklie, through the use and development of his junior easement, unreasonably interfered with the BPA’s senior easement. However, while the Agreement may bear upon the question of what constitutes unreasonable interference with the BPA’s senior easement, it does not give Ludwigs standing to enforce the specific terms and conditions contained within it.

Ludwigs are the owners of the servient tenement, and their interests are subordinate to the interests of both Spoklie and the BPA. Their only cause of action against Spoklie regarding the use of his easement would have to be based on the terms of the easement grant. It is undisputed, however, that Spoklie holds a valid reserved and recorded easement for road and utility purposes; therefore, he has an actual interest in the land. Kuhlman v. Rivera (1985), 216 Mont. 353, 358, 701 P.2d 982, 985.

When Spoklie acquired the dominant tenement, he also acquired the reserved easement that is attached to it. Therefore, at the time the Agreement with the BPA was entered into, Spoklie did, in fact, have the “owners’ permission to use the property.” He is not required to obtain Ludwigs’ permission to do what he is already legally entitled to do — in this case, use and develop his valid reserved and recorded easement.

In sum, the Agreement cautioned Spoklie to make sure that, before he took any action, he had the legal right to use the underlying property. It put him on notice that he would need to obtain the owners’ permission if he did not already own either the property or the legal right to use it. Spoklie, pursuant to his valid easement, owns the legal right to use the underlying property, and the relevant provision in the Agreement does not, therefore, provide Ludwigs with standing to bring an action to terminate or restrict his easement rights.

We conclude that Ludwigs are not intended third-party beneficiaries of the Land Use Agreement between Spoklie and the BPA. Accordingly, we hold that the District Court did not err when it held that Ludwigs do not have standing to bring an action to enjoin Spoklie from developing and using his easement.

The judgment of the District Court is affirmed.

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