author: JUSTICE WEBER JUSTICE GRAY JUSTICE HUNT

text:
    KENNETH REIL, Petitioner, Appellant and Cross-Respondent, v. STATE COMPENSATION MUTUAL INSURANCE FUND, Defendant, Respondent and Cross-Appellant.
    No. 92-027.
    Submitted on briefs June 4, 1992.
    Decided Aug. 18, 1992.
    49 St.Rep. 734.
    837 P.2d 1334.
    254 Mont. 274.

      For Appellant: Lloyd E. Hartford, Billings.
    For Respondent: Charles G. Adams, Legal Counsel, State Compensation Insurance Fund, Helena.
   JUSTICE WEBER

delivered the Opinion of the Court.

Kenneth Reil, claimant, appeals from a judgment by the Workers’ Compensation Court ordering him to reimburse the insurer for all benefits and attorney fees. The State Compensation Mutual Insurance Fund (State Fund) filed a cross-appeal from the Workers’ Compensation Court order denying its motion to join an additional party defendant. We affirm.

The parties raise the following issues for our review:

1. Is the State Fund entitled to restitution of all compensation and medical benefits paid pursuant to a judgment of the Workers’ Compensation Court which was subsequently reversed on appeal?

2. Is the claimant entitled to an award of attorney fees and costs?

3. Did the Workers’ Compensation Court improperly deny joinder of claimant’s attorney as a third party defendant?

On March 20, 1987, the Workers’ Compensation Court (WCC) ruled that Mr. Reil was entitled to benefits under Montana’s Workers’ Compensation Act for injuries suffered while employed at Billings Processors, Inc. The State Fund appealed the judgment of the WCC to this Court on April 23, 1987. On July 21, 1987, pending a final decision on appeal, we issued an interim order denying the stay of execution of judgment and ordered the State Fund to pay all benefits accrued by the claimant pursuant to the WCC’s judgment. The State Fund paid Mr. Reil approximately $13,750 in benefits, of which $3,000 was retained by Mr. Reil’s counsel for costs and attorney fees.

On December 3, 1987, this Court reversed the judgment of the WCC finding that Mr. Reil failed to provide his employer with timely notice of his injury. Reil v. Billings Processors, Inc. (1987), 229 Mont. 305, 746 P.2d 617. Subsequently, the State Fund sought reimbursement for the amount paid to the claimant and his attorney in compliance with this Court’s order of July 21, 1987. In a declaratory action, the WCC denied joinder of Mr. Reil’s counsel as a third party defendant and ruled that restitution was proper. The WCC ordered Mr. Reil to reimburse the State Fund for all compensation benefits and medical expenses received.

I

Is the State Fund entitled to restitution of all compensation benefits and medical expenses paid pursuant to a judgment of the Workers’ Compensation Court which was subsequently reversed on appeal?

Mr. Reil contends the WCC improperly ordered restitution. He claims that restitution is a common law remedy which is not applicable under Montana’s Workers Compensation Act. Mr. Reil further contends that the Act, as of his date of injury, precluded the application of common law remedies to cases involving workers’ compensation claims. Finally, Mr. Reil argues that the State Fund cannot recoup these benefits under the Act when the Act, which is the exclusive remedy for injured workers as well as the insurer, does not provide for restitution as a remedy.

The State Fund claims that § 39-71-411, MCA (1985), did not provide that the Act would be an exclusive remedy for insurers. Further, it contends that even if the Act was exclusive, Mr. Reil’s injury was not covered under the Act. Thus, the exclusivity provisions of § 39-71-411, MCA (1985), do not apply.

The WCC concluded that Mr. Reil could not take refuge under the Act where he had no entitlement under the Act as a result of his failure to give timely notice of his injury to his employer. In ordering restitution the WCC stated:

The [Workers’ Compensation Court’s] original judgment for the claimant was reversed on appeal. The effect of the reversal was a determination that claimant had no entitlement to benefits under the Act and never had such an entitlement. [Mr. Reil’s] claim was void at the outset. The fact that the sums were paid pursuant to a trial court ruling does not vest the claimant with an entitlement that never existed.

This Court has held that it will uphold the result reached by the Workers’ Compensation Court if that result was correct, regardless of the reasons given for the conclusion. Rath v. St. Labre Indian School (1991), 249 Mont. 433, 439, 816 P.2d 1061, 1064. As above set forth, the WCC concluded that the claimant had no entitlement to benefits and never had such an entitlement and that his claim was void at the outset. That reasoning is not totally correct. The employee here worked for an employer where there was coverage under the Act. As a result, bis claim was not void at the outset. Had he filed his claim on time, it could have become a valid claim. It became a non-compensable claim because the claimant failed to provide timely notice as required under the Act. While we do not agree with all of the foregoing statements of the WCC, we do agree with the conclusion that the exclusivity provisions of the Act do not preclude restitution.

Claimant argues that § 39-71-411, MCA (1985), provides the exclusivity which prohibits restitution. In pertinent part § 39-71-411, MCA (1985), provides:

For all employments covered under the Workers’ Compensation Act ... the provisions of this chapter are exclusive. Except as provided in part 5 of this chapter for uninsured employers and except as otherwise provided in the Workers’ Compensation Act, an employer is not subject to any liability whatever for the death of or personal injury to an employee covered by the Workers’ Compensation Act or for any claims for contribution or indemnity asserted by a third person from whom damages are sought on account of such injuries or death....

It is true that the foregoing section mentions that the provisions of this Chapter are exclusive. However, the section is addressed to the elimination by the Act of employer liability for death or personal injury to an employee covered by the Act or for claims for contribution or indemnity asserted by a third person because of such injuries or death. We conclude this section has no specific application in the present controversy.

With regard to notice of injury, § 39-71-603, MCA (1985), provides in pertinent part:

No claim to recover benefits under the Workers’ Compensation Act ... maybe considered compensable unless, within 60 days after the occurrence of the accident which is claimed to have caused the injury, notice of the time and place where the accident occurred and the nature of the injury is given to the employer or the employer’s insurer....
As above-mentioned, this Court reversed the judgment of the WCC because the claimant failed to provide his employer with timely notice of injury. As a result, we may properly state that under the above section, the claim could not “be considered compensable” because of the failure to give notice.

With regard to the liability of insurers, § 39-71-407, MCA (1985), provides:

Every insurer is liable for the payment of compensation, in the manner and to the extent hereinafter provided, to an employee of an employer it insures who receives an injury arising out of and in the course of his employment....

The facts of this case establish that the insurer was not liable for payment of compensation as a result of the failure to give the required notice. These are the only sections which we find applicable to the facts of this case. There is no section in the Act which makes specific reference to restitution.

In Hansen v. Hansen (1958), 134 Mont. 290, 295, 329 P.2d 791, 793, this Court quoted Restatement, Restitution, Chapter 3, section 74 at page 302, which states:

“A person who has conferred a benefit upon another in compliance with a judgment... is entitled to restitution if the judgment is reversed or set aside, unless restitution would be inequitable or the parties contract that payment is to be final; if the judgment is modified, there is a right to restitution of the excess.”

The Court applied these provisions in awarding restitution.

Applying the foregoing to the present case, we conclude that judgment was entered against State Fund; that pursuant to the judgment State Fund conferred a benefit by paying claimant; that the judgment was reversed by this Court; and that no facts have been presented by the claimant to indicate that restitution would be inequitable. We therefore conclude that restitution is proper. In Waggoner v. Glacier Colony of Hutterites (1957), 131 Mont. 525, 312 P.2d 117, this Court concluded that a party has the right to recover assets lost by enforcement of a judgment subsequently reversed on appeal. There we stated that: “The right to recover what one has lost by enforcement of a judgment subsequently reversed is well established.”

We conclude that the order of the WCC is consistent with existing Montana law including Waggoner and Hansen and that restitution is equitable. The State Fund is entitled to restitution where the judgment of the WCC conferring the benefit was reversed.

Claimant cites case law from other jurisdictions which have precluded the State from recouping benefits erroneously paid to injured workers. We do not find such case law to be controlling.

As stated above, this Court required the State Fund to pay all benefits accrued by the claimant prior to the entering of its opinion on the appeal. If restitution were now denied to the State Fund, it would effectively eliminate such orders to pay benefits pending appeal.

We hold that the WCC properly ordered the claimant to pay restitution to the State Fund for compensation and medical benefits paid pursuant to a judgment of the WCC which was subsequently reversed on appeal.

II

Is the claimant entitled to an award of attorney fees and costs? Here we are affirming the judgment of the lower court. Thus, Mr. Reil is not entitled to either attorney fees or costs under §§ 39-71-611 and 39-71-612, MCA.

Ill

Did the Workers’ Compensation Court improperly deny joinder of claimant’s attorney as a third party defendant?

As required by this Court’s order of July 21, 1987, the State Fund paid benefits of approximately $13,000 to Mr. Reil and his attorney. After reversal on appeal, the WCC specifically directed both the claimant and his counsel to reimburse the State Fund, stating as follows in its judgment dated November 13,1991:

2. Claimant and his counsel are directed to reimburse SCMIF for all benefits and attorney’s fees received pursuant to this Court’s ruling which was reversed on appeal by the Montana Supreme Court.

The WCC ruling is consistent with Champion Int’l. Corp. v. McChesney (1987), 239 Mont. 287, 779 P.2d 527, in which this Court held that the State Fund was entitled to a repayment of attorney fees based upon benefits received by a claimant.

Prior to the entry of the above judgment on November 13, 1991, State Fund presented a motion to name claimant’s attorney of record as a defendant. The basis for the motion was the contention that Mr. Hartford, as attorney for the claimant, was personally liable to State Fund for attorney fees and costs received. In denying the motion to join claimant’s attorney as an additional defendant, the WCC stated in its order of September 13, 1991:

Neither party has cited any authority which would convince the Court that naming Hartford a party defendant is either required or appropriate. Any interest Hartford has personally is totally incidental and derivative of the benefits received by the claimant. If the underlying issue in the pending petition relative to the reimbursement of benefits paid favors the insurer, any derived benefits would be subject to the same disposition.
The Court can see no conflict of interest between Reil and Hartford’s interest in the present matter.

On appeal no authority has been cited which requires the addition of the attorney as a party to this cause. In view of the above quoted judgment provision which requires “claimant and his counsel” to reimburse State Fund for “all benefits and attorney’s fees received,” there appears no necessity for the discretionary joinder of the attorney as a party under ARM 24.5.308.

We affirm the denial of joinder of claimant’s attorney by the Workers’ Compensation Court.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON and TRIEWEILER concur.

JUSTICE GRAY

dissenting:

I respectfully dissent from the opinion of the majority. We were bound, by the absence of a stay provision in the Workers’ Compensation Act, to deny the State Fund’s request for a stay pending appeal in this case in 1987. In my view, we also are bound by the Act’s lack of a reimbursement or restitution provision covering the situation before us to reverse the Workers’ Compensation Court’s decision requiring restitution. The Workers’ Compensation Act is a legislatively-created substitute for common law rights and remedies regarding work place injuries. It does not contain a right to restitution in the event of a judgment reversed on appeal and it is wrong for this Court to create such a right. Our role is to ascertain and declare what is contained in statutes; we are not to insert what has been omitted. Section 1-2-101, MCA. This is particularly so when we address an area of the law which is, in its entirety, a statutory creation. I do not disagree that there are arguments to be máde for allowing restitution in these circumstances. And I recognize that there are equities to be weighed in fashioning an appropriate resolution to the dilemma faced by both claimants and insurers in situations such as these. But these are matters within the domain of the legislature, not this Court.

In addressing the restitution issue, it is important to note what has occurred regarding stays of Workers’ Compensation Court judgments pending appeal since this Court’s proper denial of a stay in this very case in 1987 based on an absence of statutory authority. In direct response to that decision, House Bill 154 was introduced in the 1989 Legislature; it provided for stays of workers’ compensation decisions under essentially the same terms as are available in appeals from district court decisions. House Bill 154 was enacted as Chapter 74, Laws of 1989, and is codified as § 39-71-2910, MCA. Itis my view that this is the proper means and method with which to address the issue of restitution and that the legislature is the proper forum to resolve the question.

Section 39-71-610, MCA (1985), also is instructive with regard to the restitution/reimbursement issue. That section specifically authorizes reimbursement by a claimant where an insurer has terminated benefits, that termination is disputed, the division has ordered continuation of benefits and, subsequent to a hearing, it is held that the insurer was not liable for the ordered payments. In that situation, the legislature specifically provided for reimbursement. It did not do so in the substantially similar situation before us where payment of certain benefits was disputed, payment was required via the Workers’ Compensation Court’s order, and this Court subsequently held that the insurer was not liable for the payments. It is my view that, in judicially creating an additional remedy where the legislature has not done so, this Court has overstepped its role. This is particularly true since § 39-71-104, MCA (1985), requiring liberal construction of the Act, was consistently interpreted by this Court to mandate liberal construction in favor of claimants. Hunter v. Gibson Products of Billings (1986), 224 Mont. 481, 484, 730 P.2d 1139, 1141; Sorum v. Reider (1983), 205 Mont. 98, 108, 666 P.2d 1221, 1226.

I have found no reported case in any jurisdiction in which, in a workers’ compensation setting, a court has judicially created a right to receive, and a corresponding obligation to pay, restitution for benefits properly paid but reversed on appeal. While many coruts have denied recoupment, restitution or reimbursement for overpayments at various stages of workers’ compensation proceedings,Hhe following cases address the precise issue before us.

In Ransier v. State Industrial Insurance System, the worker received a lump sum award for a knee injury which was reduced on appeal. SIIS, Nevada’s equivalent to our State Fund, initiated a recoupment action for the overage and the worker asserted the absence of statutory authority. In holding against recoupment of funds properly paid pending appeal and later found unwarranted, the Supreme Court of Nevada stated:

“Chapter 616 of the Nevada Revised Statutes sets forth a comprehensive system for the compensation of industrial injuries. Because the system is uniquely legislative in nature, and alters the common law rights and liabilities of both employees and employers, we have previously refused to disturb the delicate balance created by the legislature by implying provisions not expressly included in the legislative scheme.”

Ransier v. State Industrial Insurance System (Nev. 1988), 766 P.2d 274, 276; citing Weaver v. SIIS (Nev. 1988), 756 P.2d 1195.

The Kansas case of Tompkins v. George Rinner Construction Co. (Kan. 1966), 409 P.2d 1001, is also on point. The carrier appealed an award of compensation and obtained a reversal. It then sought to “recover back” the payments made pending appeal. Interestingly, the carrier asserted the same arguments on lack of entitlement — unjust enrichment, “justice,” and general restitution principles related to payments made pursuant to judgment when the judgment is later reversed — as are asserted by the State Fund here. Holding that restitution was not available, the Supreme Court of Kansas stated:

The workmen’s compensation act establishes a procedure of its own covering every phase of the right to compensation and of the procedure for obtaining and enforcing it, which procedure is complete and exclusive in itself [citing cases].
It is logical to assume the legislature anticipated that some cases would be reversed by this court on the ground — as here — that an accidental injury did not arise “out of’ the employment and therefore compensation is to be denied — but it failed to enact any “recovery back” provision.
When the compensation case itself was here on the merits our decision, above, was that the fatal accidental injury did not arise “out of’ the employment — therefore compensation was to be denied. From a purely “legalistic” standpoint it can, of course, logically be argued that under that decision claimant was entitled to no compensation in the first place — and therefore it is somewhat “shocking” to say that she should now be permitted to retain the payments made to her. We believe, however, the matter does not end there, and that in view of the provisions of the compensation act general rules relating to “restitution” have no application and that “recovery back” is not to be permitted. Nowhere in the act is there any provision authorizing a “recovery back”. If the anomalous situation presented here is to be corrected it is within the power of the legislature to do so.

Tompkins, 409 P.2d at 1003-1004.

Finally, in a case nearly identical to ours, where a compensation award was reversed because the claimant had failed to satisfy the statutory notice requirement, the Supreme Judicial Court of Maine refused to create a right to restitution not contained in its statutory workers’ compensation program. That court stated:

To attempt to resolve this question by engrafting upon the statutory scheme judicially created doctrines of restitution would involve us in the establishment of broad social policy in a field of law created by the legislature in response to legislative dissatisfaction with judicial solutions to the problems of compensation for workers injured in industrial accidents .... [W]e are asked to establish policy in this uniquely statutory field when the legislature has deliberately elected to remain silent. In the absence of an express legislative command or a clear indication of legislative intention, we leave the parties where the legislature left them.

American Mutual Ins. Co. v. Murray (Me. 1980), 420 A.2d 251, 252.

I do not suggest that these cases are controlling on this Court. It is my view, however, that they represent the correct approach to the issue before us and the result which this Court should reach. I would reverse the decision of the Workers’ Compensation Court.

JUSTICE HUNT

dissenting.

I dissent. This is the second time this case has been before this Court. Mr. Justice Sheehy dissented in the first case, and I joined in that dissent because the evidence was such that the Workers’ Compensation Court in that case should have been upheld for the reasons as set forth by Mr. Justice Sheehy that on “disputed evidence, and the usual standards of review applied to such findings, the duty of this Court is to sustain the decision of the Workers’ Compensation Court, and not set it aside on the dubious authority of a 1917 California case.” Reil v. Billings Processors, Inc. (1987), 229 Mont. 305, 316, 746 P.2d 617, 624. In that case, the majority acted as finders of fact and law.

In this case, they do not agree with the reasoning of the Workers’ Compensation Court, but they uphold the conclusion that the worker has to repay the carrier for benefits he received under the order of the Workers’ Compensation Court. It is a tortuous road that this Court has traveled that seems to have reached the end result that the worker in this case, who claims he gave notice to an employer who says he did not, must repay benefits to which the majority of this Court agrees he would have been entitled to if he had sat down and wrote the notice, rather than allowing it to be disputed.

The majority opinion relies on this Court’s decision in Hansen v. Hansen (1958), 134 Mont. 290, 329 P.2d 791. In Hansen, this Court stated that restitution is proper in these situations “unless restitution would be inequitable ....” Hansen, 329 P.2d at 793. The Workers’ Compensation Court initially found claimant had suffered a compensable injury. This Court reversed, not on the basis that claimant had not suffered an injury, but on the basis of an unnecessarily strict interpretation of the notice provision in § 39-71-603, MCA. In light of the circumstances of this case, requiring the injured worker, at this late date, to make restitution to the insurer for all compensation and medical benefits paid cannot be equity. This is simply a case of an insurance company receiving a windfall for benefits it should have paid to a genuinely injured worker who has been denied his benefits through a technicality. This is not equity.

       See, e.g., Matter of Johner (Wyo. 1982), 643 P.2d 932; Williams v. State Accident Ins. Fund (1977), 31 Or. App. 1301, 572 P.2d 658.


source: Caselaw Access Project

author: JUSTICE HUNT JUSTICE WEBER

license: Public Domain

text:
    LORI MOFFATT, Plaintiff and Appellant, v. UNIVERSITY OF MONTANA, STATE OF MONTANA, Defendant and Respondent.
    No. 91-361.
    Submitted on briefs Mar. 26, 1992.
    Decided Aug. 27, 1992.
    49 St.Rep. 779.
    837 P.2d 401.
    254 Mont. 285.

      For Plaintiff and Appellant: Kenneth H. Grenfell, McChesney, Grenfell & Ogg, Missoula.
    For Defendant and Respondent: Norman C. Peterson, Assistant Attorney General, Agency Legal Services Bureau, Helena.
   JUSTICE HUNT

delivered the opinion of the Court.

Appellant Lori Moffatt brought a negligence action in the Fourth Judicial District Court, Missoula County against the University of Montana for injuries she received when she slipped and fell down a staircase. The University filed a motion for summary judgment. The District Court granted the University’s motion for summary judgment pursuant to Rule 56(c), M.R.Civ.P. Moffatt appeals the decision of the District Court.

We reverse and remand.

The only issue for this Court to consider is whether the District Court erred when it found there were no genuine issues of material fact and granted summary judgment in favor of respondent, the University of Montana.

The uncontested facts are as follows. Appellant was a chemistry student who attended the University of Montana located in Missoula. On March 16, 1987, appellant, who was carrying books with her left arm, slipped, and fell down a staircase in the Pharmacy-Psychology Building, fracturing her left wrist.

On July 24, 1989, appellant filed a complaint in District Court against the University for failure to properly maintain its premises. In the complaint, she alleges that at the time of the accident, the stairway was slick and highly polished and not treated with an anti-slip material or any non-skid protective material and thus constituted a hidden and lurking danger and that the University knew or should have known of the danger and failed to warn persons of the danger. In its answer the University denied the allegations.

On July 1, 1990, the University filed a motion for summary judgment and attached three affidavits by University personnel in support of its motion. For the purposes of the motion, the University did not dispute appellant’s assertions that she descended the steps in a safe and prudent manner, and that she was wearing tennis shoes with adequate soles to insure proper traction and footing. In addition, the University admits that no “anti-slip grip strip” material was placed on the stairs prior to the accident and that no warning signs were in place to caution persons of the allegedly dangerous condition. Appellant responded with a reply brief.

On May 10, 1991, the District Court issued its opinion and order, concluding that there were no genuine issues of material fact and ruling that the University was entitled to judgment as a matter of law. It is from this order that appellant appeals.

In a motion for summary judgment, the moving party has the burden of showing a complete absence of any genuine material issue of fact which would entitle him to judgment as a matter of law. Cereck v. Albertson’s Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 511. The party opposing a motion for summary judgment is entitled to all reasonable inferences that may be drawn from the offered proof. Cereck, 637 P.2d at 511. For a genuine issue of material fact to exist in a negligence case, the defendant must owe a duty to the plaintiff. Rennick v. Hoover (1980), 186 Mont. 167, 170, 606 P.2d 1079, 1081. If appellant’s allegations, if proven, support a finding of a breach of duty, then the granting of summary judgment is improper. Rennick, 606 P.2d at 1081.

In her complaint and brief in opposition to the motion for summary judgment, appellant alleged that at the time of the accident the stairway was slick, highly polished, and not treated with any anti-slip or non-skid protective material.

The University filed three affidavits in support of its motion for summary judgment. In his affidavit, Ken Willett, Manager of the Safety and Security Section of the Physical Plant Department, stated that because he had not received any previous complaints relating to the condition of the stairs, he had no reason to anticipate the possibility of harm to anyone.

In another affidavit, Tom Wheatley, Supervisor of the Building Trades Section of the Physical Plant, explained that he had no knowledge of any previous accidents involving the stairs in the Pharmacy-Psychology Building.

In the third affidavit, Clarence Hester, Bureau Chief of the Department of Administration’s Design and Construction Bureau, stated that the composition of the stairs met with building code standards for acceptable stair materials.

The statements by the University’s employees do not meet the burden of proof imposed upon the University in a motion for summary judgment. In addition, the affidavit of Clarence Hester does not prove that there is not a complete lack of a genuine issue of a material factual dispute. The fact-finder should be given the opportunity to determine whether the University was negligent in failing to maintain the stairs, and whether it was negligent in failing to warn of a hazardous condition.

The order granting summary judgment is reversed and the matter is remanded for further proceedings.

We reverse and remand.

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

JUSTICE WEBER

dissenting:

The majority opinion refers to the filing of a complaint alleging that the stairway was slick and highly polished and not treated with anti-slip material, and thus, constituted a hidden and lurking danger and that the University knew or should have known of the danger and failed to warn. The majority opinion again refers to the complaint and brief in opposition to the motion for summary judgment where the plaintiff alleged that the stairway was slick, highly polished, and not treated with anti-slip or non-skid protective material.

I would first emphasize that the complaint is not a sworn complaint. It is merely a complaint signed by the attorney for plaintiff, without any statement under oath as to its truthfulness.

The majority opinion briefly refers to the three affidavits filed by the University and then concludes as follows:

The statements by the University’s employees do not meet the burden of proof imposed upon the University in a motion for summary judgment. In addition, the affidavit of Clarence Hester does not prove that there is not a complete lack of a genuine issue of a material factual dispute. The fact-finder should be given the opportunity to determine whether the University was negligent in failing to maintain the stairs, and whether it was negligent in failing to warn of a hazardous condition.

I suggest that the majority opinion has disregarded both our rules with regard to summary judgment as well as the controlling decisions of this Court.

The District Court entered a thirteen page opinion and order setting forth in detail its reasons for entry of summary judgment for the defendant. I believe the summary by the District Court is enlightening:

In summary, the principle holding of the Court is that the Defendant’s Motion for Summary Judgment is granted. The undisputed facts show that no defect existed; that no prior injuries or complaints existed; and that the stairs were constructed within guideline specifications. The undisputed facts do not show that the Defendants breached a duty of ordinary care to Moffatt and do not show the existence of a step which constituted a hidden danger in the step itself or the area surrounding the step or any other unsafe condition. Moffatt’s negligence claim rests entirely on the assumption that the subject stairs constitute a hidden or lurking, or otherwise dangerous condition. Moffatt has failed to provide this Court with any objective evidence, whatsoever, which tends to prove or disprove the existence of any genuine issue of material fact regarding the alleged dangerous conditions. On the other hand, this Court finds that UM has satisfied its burden under Rule 56(c), M.R.Civ.P., that no genuine issue of material fact exists, and that UM is entitled to summary judgment as a matter of law.

I believe the record before the District Court supports the foregoing analysis and conclusion. I emphasize that the references to the pleading in an unsworn complaint and to the brief are inappropriate because the statements in such unsworn instruments are not admissible for summary judgment purposes. Rule 56(e), M.R.Civ.P., sets forth key aspects of the affidavits to be used with regard to summary judgment:

Form of affidavits — further testimony — defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. ... When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. (Emphasis supplied.)

The provisions of Rule 56, with regard to summary judgment, have been considered in many cases. In particular, we have concluded that resting upon allegations of a pleading is not sufficient. As stated in Mayer Bros. v. Daniel Richard Jewelers, Inc. (1986), 223 Mont. 397, 400, 726 P.2d 815, 817:

We have recently held that a party opposing a motion for summary judgment may not rest upon the mere allegations of the pleadings, but has an affirmative duty to respond by affidavits or sworn testimony with specific facts that show there is a genuine issue of fact for trial. B.M. By Berger v. State (Mont. 1985), [215 Mont. 175], 698 P.2d 399, 401, 42 St.Rep. 272, 274-75; Rule 56(e), M.R.Civ.P Without such specific factual evidence, we are unable to determine that any real factual controversy exists ...

In analyzing the very extensive affidavits submitted by the defendant, the District Court referred first of all to the testimony of Mr. Willett, the Safety and Security Manager. It points out that he testified that after an exhaustive and complete examination of the files, he did not find any reports or complaints of problems or falls on any staircase in this particular building prior to the report of the plaintiff. The record shows that he and his staff made regular inspections and that he had no personal knowledge, nor had he received any knowledge from the staff of any dangerous condition created by the alleged slippery metal nose of any stairs, or otherwise.

The District Court also referred to the affidavit of Mr. Wheatley who is the supervisor of the building trades section of the Physical Plant at the University. He is responsible for doing the actual work. He was not aware of any prior accident caused by a slippery metal nose piece, and was not aware of any previous complaints that the stairs were in a dangerous condition.

The court also referred to the affidavit of Clarence Hester, which the majority opinion apparently concludes was somehow incomplete. I don’t understand that. In substance, Mr. Hester testified that he is the Bureau Chief of the Design and Construction Bureau of the Department of Administration and that he has been the Bureau Chief for twenty-three years; and that he has an architectural engineering degree and is a registered architect. His sworn affidavit established that the responsibility of his bureau was to review all construction plans to ensure to that all designs meet with appropriate building code standards and that the final plan for the pharmacy-psychology building at the University was reviewed by the Bureau. With regard to the composition and construction, he then stated:

5. That the composition of the stairs in the building as planned and as completed is of concrete and metal. Specifically, the stairs are brushed concrete with metal nose plates.
6. That the composition of the stairs is within the Building Code Standards for acceptable stair materials.
7. That it is a customary and acceptable practice in the building construction trade to build stairs of the above composition and in the above manner.
8. That there are no building code provisions which either require or recommend that “no-slip grip strips” or any similar material or device be placed on the metal nose plates of stairs composed of the above materials.

After consideration of the affidavits submitted by the defendant University, the District Court pointed out that there is a total lack of objective evidence submitted by the plaintiff or otherwise presented which raises any material issue of fact. As stated by the District Court:

This Court has reviewed the entire record. The evidence consists of three affidavits, all proposed by UM. These affidavits establish that UM was not aware of any alleged dangerous steps because there had never been any previous complaints, that inspections by its own staff did not reveal any hazards, and that the steps were built within industry accepted standards. No evidence in the form of depositions, affidavits or pictures were presented by Moffatt which might have established the existence of a condition that was not visibly safe .... Moffatt’s mere recitation of her opinions and allegations is not sufficient to existence of a genuine issue of material fact ....

I believe the record fully supports the conclusions and summary judgment entered by the District Court. Where the plaintiff has failed to present anything in the nature of a sworn pleading, affidavit or deposition, which tends to establish that the University was negligent in failing to maintain the stairs or that it was negligent in failing to warn of a hazardous condition, I am unable to understand how the majority remands for a determination of those issues.

Under Rule 56, M.R.Civ.P., and our Montana cases, I believe this Court is required to affirm the summary judgment entered by the District Court.


author: JUSTICE HARRISON

text:
    RHONDA DRUGGE, Individually, and as Personal Representative of the ESTATE OF TED E. DRUGGE, Plaintiff and Appellant, v. THE STATE OF MONTANA, and THE CITY OF HAVRE, Defendants and Respondents.
    No. 92-057.
    Submitted on briefs July 23, 1992.
    Decided Sept. 1, 1992.
    49 St.Rep. 798.
    837 P.2d 405.
    254 Mont. 292.

      For Plaintiff and Appellant: James M. Regnier, Missoula.
    For the State: Ann Brodsky, Special Assistant Attorney General, Risk Management & Tort Defense Division, Dept, of Administration, Helena; L James Heckathom, Murphy, Robinson, Heckathom & Phillips, Kalispell.
    For the City of Havre: Allen Page Lanning, Conklin, Nybo, LeVeque & Murphy, Great Falls.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the First Judicial District Court, Lewis and Clark County. Appellant Rhonda Drugge (Drugge) filed a complaint against the State of Montana (the State) in her individual capacity and as personal representative of the estate of her deceased husband, Ted E. Drugge, who died June 24, 1986, in a boating accident on the Milk River near Havre, Montana.

Ted Drugge and his brother Don drowned when their craft went over a weir west of the city of Havre, Montana. After discovery, the State filed a motion for summary judgment, and on April 3,1991, the District Court granted its motion in part, holding that the State owed no duty to warn the decedent, Ted Drugge, of the hazard which caused his death. The court’s order provided that there remained an issue of fact regarding the navigability of the Milk River, and if it was determined that the Milk River was navigable, then the State would own the stream bed and consequently the weir itself. In that instance, the State would have the duties associated with the ownership of the real property. However, this issue was ultimately decided in the State’s favor and a final judgment was entered on December 16,1991.

Drugge appeals only that part of the District Court’s order of April 3, 1991, which held that the State owed no duty to her decedent as a matter of law. Drugge is not appealing the court’s order concerning the issue of navigability.

We review the following dispositive issue: Whether the District Court properly held, as a matter of law, that the State of Montana owed no duty based on tort law principles to warn Ted Drugge of the dangers posed by the Havre City weir when floating the Milk River.

We note prior to our discussion of this case against the State of Montana that the City of Havre, Montana, upon whose property the weir is located, settled the suit with Drugge prior to this action against the State.

A summary of the facts indicates that on June 24, 1986, Ted and Donald Drugge and Glenda Erickson began a boat trip down the Milk River commencing just below the Fresno Dam. After approximately eight hours of floating, the party approached the Havre City weir, located nearly eighteen river miles downstream from the Fresno Dam. The Havre City weir is a diversion dam owned and operated by the City of Havre and located entirely on City property. The floating party went over the weir; Glenda Erickson survived while Ted and Donald Drugge drowned.

The Havre City weir was not navigable, as the party found out, and would have required a portage to get around. According to the record, at the time of the accident there had been no prior drownings caused by the Havre City weir, nor had the State or the City of Havre posted warning signs along the river denoting the dangers of going over the weir.

During the course of the trial, Drugge set forth selective portions of the depositions of certain employees of the Montana Department of Fish, Wildlife and Parks (FW&P) containing opinion testimony as to the State’s duty to warn in this case.

Drugge argued that the State of Montana owed a duty to floaters. In the course of the trial, as previously noted, some of the State’s employees, through depositions, indicated that the weir in question was very dangerous and many of those persons recognized that it would have been a good idea for someone to erect warning signs concerning the weir. Additionally, Drugge noted that the State of Montana had adopted a uniform state waterways marking system. Further, Drugge cites § 23-2-501, MCA, which declared that it is the policy of the State of Montana to promote safety for the persons operating vessels in Montana waters.

In response to this argument the State noted that Drugge did not cite to the Court any case imposing a duty on a government entity for failure to warn of the existence of a dangerous condition such as the Havre weir. Further, the District Court found that § 23-2-501, MCA, did not give rise to any duty on the part of the State of Montana. In addition, the court found no case law for the proposition that under § 23-2-501, MCA, a duty arose on the part of the State to post warning signs as suggested by Drugge.

Under § 2-9-101(1), MCA, state liability attaches under the Tort Claims Act only where a private person similarly would be hable. Here the property where the weir is located was owned by the City of Havre, not the State of Montana.

Drugge seeks to impose tort liability on the State based upon the State’s ownership of the waters within the state. We find no authority for the proposition under Article IX, Section 3(3) of the Montana Constitution, vesting the State with ownership of the waters within state boundaries, that creates a duty on the part of the State based on liability or other tort law to warn of hazards on rivers.

While the FW&P is authorized to regulate the waters to ensure boating safety, here the question is whether, under its statutory power to regulate the State waters for boating, a legal duty in tort arose to warn or to close rivers to boating where a hazard might exist.

After examining this issue, the court found that notwithstanding the existence of § 23-2-501, MCA, expressing the “... policy of the state to promote safety ... connected with the use ... of vessels ...” the State owed no duty to ensure safety on State water courses. Section 23-2-501, MCA, the statute relied upon by the appellant, has little to do with requiring the State to warn of river hazards. This statute is directed toward boating safety and specific boating requirements under Title 23, Chapter 2, Part 5, MCA, which covers licensing, display of decals, equipment, discharge ofwaste from vessels, boating while under the influence of alcohol or drugs, overloading boats, and water skiing.

This is not to say that as to recreationalists who are injured by an obstruction placed across a waterway by a landowner, the landowner may not be liable under a Montana stream access law for willful or wanton misconduct. See § 23-2-321, MCA. The remedy, as Drugge properly found, is to bring suit against the landowner. She did that when she sued the City of Havre and settled with the City prior to filing her complaint against the State of Montana.

The court granted summary judgment to the effect that the State of Montana had no duty under the facts of this case to warn the Drugge brothers about the Havre weir.

We affirm the granting of summary judgment and the court’s finding of no duty to warn of the existence of the weir.

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


author: JUSTICE GRAY

text:
    NAUTILUS INSURANCE COMPANY, Plaintiff and Appellant, v. FIRST NATIONAL INSURANCE, INC., d/b/a THE FNI GROUP, Defendant and Respondent.
    No. 92-085.
    Submitted on briefs July 30, 1992.
    Decided Sep. 3, 1992.
    49 St.Rep. 802.
    837 P.2d 409.
    254 Mont. 296.

      For Plaintiff and Appellant: Barry G. O’Connell and Cindy E. Younkin, Moore, O’Connell, Refling & Manos, Bozeman.
    For Defendant and Respondent: Robert M. Carlson, Corette, Pohlman, Allen, Black & Carlson, Butte.
   JUSTICE GRAY

delivered the Opinion of the Court.

Nautilus Insurance Company appeals from the granting of a directed verdict, and the judgment entered thereon, in favor of First National Insurance, Inc., by the Fifth Judicial District Court, Jefferson County. We affirm.

The dispositive issue on appeal is whether the District Court erred in directing a verdict for the defendant on the basis that no duty was owed to the plaintiff.

Patty Crane (Patty), now known as Patty Flynn, contacted Rick March (Rick) at First National Insurance, Inc. (FNI) in January, 1987, seeking fire and liability coverage for business property owned by herself and Walter Crane in Helena, Montana. Rick requested coverage through Sentinel General Agency (Sentinel) for both property and liability insurance and received a quote which he believed included the requested liability coverage. Sentinel sent Rick binders identifying coverage through Nautilus Insurance Company (Nautilus) and Aegon Insurance Company in the aggregate amount of $100,000 ($50,000 coverage by each insurer) for insuring the premises only; the effective date of the policies was February 27, 1987.

The Cranes advised Rick that they also needed liability coverage and he continued to seek coverage from other companies while the Nautilus policy was in effect. As a result of their own efforts, the Cranes obtained the coverage they desired from Travelers Insurance Company effective April 2,1987. On that date, Patty told Rick about the new coverage and verbally requested FNI to cancel the Nautilus and Aegon polices. Thereafter, via telephone and several letters, Rick advised the Cranes that in order to cancel the policies they must either return the policies or sign a cancellation request/policy release form. The Cranes did neither; nor did Rick inform Nautilus during this time that the Cranes desired to cancel or that they had obtained alternative coverage.

FNI paid the Nautilus premium on the Cranes’ behalf on May 13 under its contract with Sentinel requiring payment of all premiums within 45 days of receiving an invoice; under the contract, the payment was due on or before May 15. Under the Nautilus policy, the “unearned premium” which could be recouped upon cancellation was prorated by quarters of the coverage year. In other words, once the coverage was effective on February 27, the maximum unearned premium which could be recovered on cancellation was 75%; the premium for the first three months’ coverage — from February 27 to May 27 — could not be recouped even if the policy were canceled prior to May 27. The Cranes’ building and its contents were totally destroyed by fire on May 23,1987.

The Nautilus policy was in effect on the date of the fire and the Cranes made a claim for their loss under the policy. Nautilus ultimately paid the $50,000 policy limit.

Nautilus filed suit against FNI in the First Judicial District Court, Lewis and Clark County. The complaint alleged that FNI’s negligent failure to procure cancellation of the Cranes’Nautilus policy resulted in damage to Nautilus in the amount of $50,000 plus interest. Upon motion by FNI, venue was changed to the Fifth Judicial District Court, Jefferson County. Ajury trial was held on January 15 and 16, 1992. After Nautilus completed its case-in-chief, FNI moved for a directed verdict on the basis that it owed no duty to Nautilus to procure cancellation. The motion was granted, judgment was entered and Nautilus appeals.

Did the District Court err in directing a verdict for the defendant on the basis that no duty was owed to the plaintiff?

A directed verdict may be granted only when it appears as a matter of law that the nonmoving party could not recover upon any view of the evidence, including the legitimate inferences to be drawn from it. Hash v. State (1991), 247 Mont. 497, 500, 807 P.2d 1363, 1365; Wilkerson v. Sch. Dist. No. 15, Glacier Cty. (1985), 216 Mont. 203, 211, 700 P.2d 617, 622. On appeal, this Court must view a motion for a directed verdict in a light most favorable to the nonmoving party. Stout v. Montana Power Co. (1988), 234 Mont. 303, 305, 762 P.2d 875, 876.

Here, the District Court directed a verdict for FNI. While it did not state the basis for its decision in so many words, it is clear that the court determined that Nautilus could not prevail on its negligence claims against FNI because, under the undisputed facts of this case, FNI had no legal duty to Nautilus to procure cancellation of the policy. We agree.

Negligence forms the basis for Nautilus’ complaint against FNI. There is no dispute that, absent a legal duty running from FNI to Nautilus, Nautilus cannot prevail. Actionable negligence arises only from the breach of a legal duty. Thornock v. State (1987), 229 Mont. 67, 72, 745 P.2d 324, 327; Krone v. McCann (1982), 196 Mont. 260, 265, 638 P.2d 397, 400. Whether a legal duty is owed from one party to another is a question of law for the court. Roy v. Neibauer (1981), 191 Mont. 224, 226, 623 P.2d 555, 556. Thus, the question before us, as it was before the District Court, is whether a legal duty to procure cancellation of the policy was owed to Nautilus by FNI.

The parties agree, and the record supports the fact, that no contract or agency agreement existed between Nautilus and FNI. Margaret Crook, senior property examiner for Nautilus, testified that Sentinel was Nautilus’ agent under a written agency contract and that FNI and Rick March were agents of the Cranes. She testified that FNI and Rick could neither bind Nautilus nor cancel the policy without the Cranes’ cooperation.

Nautilus argues, however, that an implied agency relationship exists between an independent insurance broker and a carrier with whom coverage placement is made as to certain particulars. On the basis of this implied agency relationship, Nautilus asserts that FNI had a duty, under the facts of this case, to procure cancellation of the policy. Nautilus cites no cases or other authority directly on point in support of the existence of such a duty.

An insurance broker is usually regarded as the agent of the insured. 3 Couch on Insurance 2d (Rev. ed.), § 25:93 (1984). Nautilus witness Crook testified that FNI and Rick were the Cranes’ agents, not the agents of Nautilus.

Nautilus argues that, while an insurance broker acts for the insured in making the application and procuring the policy, he acts for the insurer in delivering the policy and in collecting and remitting premiums. Couch, § 25:94. While negligence in performing these specific acts on behalf of the insurer may result in liability absent a contractual agency relationship, Nautilus does not allege negligent performance by FNI of these acts. Instead, Nautilus seeks expansion of these acts by a broker on behalf of the insurer to include a duty to procure cancellation of the policy. However, the determination of which party a broker is acting for as to a particular matter depends on which party requested him to do the particular thing. Couch, § 25:94. Here, the Cranes requested the cancellation. “A broker is the agent of the insured where he is employed by the insured... to cancel and receive the unearned premium on a policy which had been obtained by him ....” Couch, § 25:95.

In the face of these accepted principles and the testimony of its own witness, Nautilus relies on our decision in Thayer v. Hicks (1990), 243 Mont. 138, 144-47, 793 P.2d 784, 788-90. Thayer addressed the extent to which an accountant owes a duty of care to third parties with whom he is not in privity. There the accountant had misrepresented financial information in a corporate audit to the subsequent detriment of the purchaser of the corporation. Under those facts, we adopted and applied § 552 of the Restatement of Torts, which provides in pertinent part:

(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.

Restatement (Second) of Torts § 552 (1977). Nautilus asks us to apply § 552 to FNI in this case. We decline to do so.

Purporting to apply Thayer to the case before us, Nautilus focuses on subsection (2) of § 552 of the Restatement (Second) of Torts. However, Thayer involved misrepresented information. It is clear that subsection (1) of Restatement (Second) of Torts § 552 (1977), premises liability on the supply oí false information. The case before us contains neither allegations nor proof of false information or misrepresentation. Thus, § 552 is totally inapposite here.

Here, FNI placed the coverage and obtained the premium set by Nautilus. The Cranes requested FNI to cancel the policy and FNI took steps, pursuant to that request, to accomplish the cancellation. Notwithstanding, cancellation did not occur prior to destruction of the insured property and Nautilus ultimately paid the policy limits for the risk for which it had accepted a premium. Under these circumstances, FNI had no legal duty to take additional steps on Nautilus’ behalf. We hold that the District Court did not err in directing a verdict for the defendant.

Affirmed.

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


author: JUSTICE McDONOUGH JUSTICE TRIEWEILER

text:
    MARVIN H. GOOKIN and SHARON GOOKIN, Plaintiffs and Respondents, v. CATHERINE M. HUNTLEY as personal representative of the estate of GENE HUNTLEY deceased, Defendant and Appellant. and J. LAWRENCE STODDARD, Plaintiff and Appellant, v. MARVIN H. GOOKIN and SHARON GOOKIN, Defendants and Respondents.
    No. 91-439 and 91-531.
    Submitted on briefs May 21, 1992.
    Decided Sept. 8, 1992.
    49 St.Rep. 807.
    837 P.2d 412.
    254 Mont. 302.

      For Appellant: Gene Huntley, Attorney Pro Se (91-531), Baker; John Martin Morrison, Morrison Law Firm (91-439), Helena.
    For Respondent: Larry Cole (91-439 and 91-531), Billings; and Robert L. Stephens (91-439 and 91-531), Billings.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is a consolidation of appeals from the Sixteenth Judicial District Court, Fallon County. Appellant appeals from judgment in favor of respondents Marvin H. and Sharon Gookin (Gookins). The District Court is affirmed.

The issue for review is:

Did the District Court err by ordering the one-third interest in property owned by Gene Huntley (Huntley) be sold towards satisfaction of a judgment in favor of Gookins?

The original case in this matter, Stoddard v. Gookin, was filed in 1972 relative to a contract for deed. This case comes to us for a third time. In the first action we remanded for further fact finding. Stoddard v. Gookin (1981), 191 Mont. 495, 625 P.2d 529. In the second, we affirmed a grant of specific performance and reversed and remanded the matter for the court to award appropriate damages. Stoddard v. Gookin (1983), 203 Mont. 435, 661 P.2d 865.

In 1970, Gookins entered into a five year lease with an option to purchase the property subject to this action with the ‘McGhees’. Thereafter, Gookins entered an agreement with J. Lawrence Stoddard (Stoddard) whereby Gookins would exercise the option to purchase the property on behalf of Stoddard. The agreement required Stoddard to make the down payment and named Stoddard and Gookins as co-tenants. Under the agreement, Stoddard was to pay Gookins $30,000 and Gookins would deed the full interest over to Stoddard who would then be responsible to McGhee for payments. The agreement was executed but Stoddard paid Gookins only two thousand of the thirty thousand dollars. Subsequently, Gookins did not transfer the deed to Stoddard.

Stoddard, then represented by Gene Huntley, filed an action in 1972 for specific performance and filed a lis pendens pertaining to the property. On February 2,1982, the trial court ordered specific performance of the agreement. The Gookins were ordered to convey the deed to Stoddard and Stoddard was to pay the Gookins $28,000. Gookins, pursuant to said order and judgment, signed and delivered to Stoddard a warranty deed on April 19, 1982. Stoddard deposited the $28,000 he owed Gookins with the clerk of court. On appeal, this Court affirmed on specific performance but remanded for a determination of other damages due Gookins. Stoddard v. Gookin (1983), 203 Mont. 435, 661 P.2d 865.

Following the February 2, 1982 appealed judgment, Stoddard deeded a one-third interest in the subject property to Huntley, apparently for payment of attorney fees. After a second trial, the District Court entered final judgment on June 1, 1986 awarding Gookins a net total of more than $104,000. To satisfy the judgment, Gookins levied upon Stoddard’s two-thirds interest in the land and sold it for $88,000.

The second action is between the Gookins and Huntley and is to determine whether or not Huntley’s one-third interest in the property is subject to the 1986 judgment. The District Court ruled in favor of Gookins. The one-third interest Huntley obtained from Stoddard was determined to be subject to and could be sold upon execution in satisfaction of the remainder of the 1986 judgment.

Huntley’s position is that the Gookins are estopped from claiming a hen on his interest in the property because they conveyed a warranty deed to Stoddard after the claimed purchase money lien arose at the time of entry of the 1982 judgment. However, a lis pendens was filed on behalf of Mr. Stoddard prior to the time of any judgment lien and prior to Huntley’s receipt of one-third interest in the property. The lis pendens served as notice to all subsequent purchasers or grantees, including Huntley, that the property was subject to the pending litigation. Fox v. Clarys (1987), 227 Mont. 194, 738 P.2d 104. Huntley took title and possession of the one-third interest in the property with actual notice of and subject to the final disposition of the action between Stoddard and Gookins.

Gookins conveyed their interest in the subject property to Stoddard pursuant to and in compliance with an order of the court. A person acting in compliance with a court order cannot later be estopped as a result of such involuntary action. Furthermore, estoppel is an equitable remedy. It would not be equitable to assert estoppel and prevent the Gookins from obtaining what they are entitled to for the property they conveyed.

Huntley further argues that under § 25-9-301, MCA, Gookins’ interest and right to claim a hen on Huntley’s property has expired. Section 25-9-301, MCA, provides:

Docketing of judgment — lien. (1) Immediately after the entry of the judgment in the judgment book, the clerk must make the proper entries of the judgment under appropriate heads in the docket kept by him.
(2) From the time the judgment is docketed, it becomes a hen upon all real property of the judgment debtor not exempt from execution in the county, owned by him at the time or which he may afterward acquire until the hen ceases. The hen continues for 6 years unless the judgment be previously satisfied.

Huntley contends the hen was created by the February 2, 1982 judgment and that because no execution was issued in the 6 years following that date, the Gookins are now precluded from satisfying the judgment from the property. Huntley relies on Marlowe v. Missoula Gas Co. (1923), 68 Mont. 372, 219 P.2d 1111, for its holding that the bar of § 25-9-301, MCA, should apply. However, in Marlowe, the bar apphed and the real estate was freed from judgment hens because of the appellant’s laches. In the instant case, Gookins have diligently defended and pursued their rights and interest in the real property and proceeds therefrom.

The judgment of February 2, 1982 in favor of the Gookins was appealed. We remanded because the court erred in determining what the Gookins were entitled to for the subject property. There was not a final determination of the matter in regards to damages owed the Gookins. In fact, the instant case demonstrates that the Gookins are still trying to collect their due.

The issue regarding damages due the Gookins was re-litigated and final judgment entered June 2,1986. The matters we resolve here are generated by and within the six years next preceding the June 2,1986 judgment.

We conclude, § 25-9-301, MCA, is not a bar to the Gookins’ action. We further conclude, for the reasons stated above, that under the doctrine of lis pendens, Huntley took title and possession to the property subject to the final disposition of the noticed litigation involving the subject property. Huntley’s interest in the property is subject to the 1986 judgment of the District Court in favor of the Gookins. The District Court order of sale of the property to satisfy the judgment is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON and GRAY concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the opinion of the majority. The majority uses one judgment date for the purpose of creating a lien on the Stoddard property and a second modified judgment date for the purpose of extending the statute of limitations for execution on the judgment. While that may accomplish the intended result, it seems internally inconsistent to me.

The judgment pursuant to which the Gookins’ lien on the real estate arose was entered on February 2, 1982. However, that judgment was only for the amount of $28,000.

One-third of Stoddard’s interest in the real estate was conveyed to Huntley on April 6,1982. If it was subject to a lien, it was subject only to the hen created by the February 2, 1982, judgment.

On June 2,1986, a second judgment was entered in favor of Gookin for the additional amount of $104,000. However, at that time Stoddard no longer owned one-third of the land to which the original judgment attached. That interest had been conveyed to Huntley.

The only basis for any lien against Huntley’s interest in the real estate would have to arise from the 1982 judgment. However, § 25-9-301, MCA, is very clear to the effect that that judgment expired six years after it arose. It provides in relevant part that:

(2) From the time the judgment is docketed, it becomes a lien upon all real property of the judgment debtor not exempt from execution in the county, owned by him at the time or which he may afterward acquire until the lien ceases. The lien continues for 6 years unless the judgment be previously satisfied.

The majority distinguishes Marlowe v. Missoula Gas Co. (Mont. 1923), [68 Mont. 372,] 219 P. 1111, which previously interpreted the statute. However, the statute requires no interpretation. The only lien which gives the Gookins any right to execute on the Huntley property was created by a February 2, 1982, judgment and was not enforced within six years. After six years it expired. No execution was issued in this case until November 3,1989, more than six years after the lien was created. Therefore, there was no basis for issuing the writ of execution.

The majority chooses to rely on the 1982 judgment for the purpose of creating a lien which is enforceable against Huntley, and yet relies on the 1986 judgment for the purposes of commencing the statute of limitations within which the lien had to be enforced. Picking and choosing starting dates in this fashion is not defensible on the basis of any authority mentioned in the majority opinion, or that I am otherwise familiar with.

For these reasons, I dissent from the opinion of the majority.


author: CHIEF JUSTICE TURNAGE

text:
    JOEL R. GILPIN, Petitioner and Appellant, v. BOARD OF NURSING, DEPARTMENT OF COMMERCE, STATE OF MONTANA, Respondent and Respondent.
    No. 92-212.
    Submitted on briefs Aug. 13, 1992.
    Decided Sep. 22, 1992.
    49 St.Rep. 831.
    837 P.2d 1342.
    254 Mont. 308.

      For Petitioner and Appellant: Richard Larson, Chronister, Driscoll & Moreen, Helena.
    For Respondent and Respondent: Steven J. Shapiro, Special Assistant Attorney General, Department of Commerce, Helena.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

This is an appeal of an administrative action of the Montana Board of Nursing, which permanently revoked the license of Joel R. Gilpin to practice in Montana as a registered professional nurse. The District Court for the First Judicial District, Lewis and Clark County, affirmed, but it deleted a provision that the revocation is permanent. Gilpin appeals to this Court. We affirm.

The issues are:

1. Does the Board have jurisdiction to revoke a Montana nursing license which expired before revocation?

2. Did the Board revoke Gilpin’s Montana nursing license without affording him a proper hearing?

3. Did the Board properly consider criteria for licensure of criminal offenders in revoking Gilpin’s nursing license?

Gilpin was licensed as a registered nurse in Montana from 1980 through 1990. The Board did not send him a license renewal application for 1991, and his license lapsed at the end of 1990.

In 1987, Gilpin was convicted of two counts of sexual assault upon eleven- and twelve-year-old girls. He was sentenced to four years’ imprisonment on each count, to be served consecutively. In June 1988, as a result of his criminal conviction, the Board initiated a license disciplinary proceeding against him. At Gilpin’s request, the disciplinary proceeding was delayed while he appealed his criminal conviction to this Court and pursued a habeas corpus action in federal court.

This Court’s opinion affirming Gilpin’s criminal conviction sets forth the facts underlying the conviction. State v. Gilpin (1988), 232 Mont. 56, 756 P.2d 445. That opinion is a public record and as such was available to the Board.

In November 1990, the proceeding before the Board was reactivated. The parties submitted the matter on an agreed statement of facts. A hearing examiner heard the case and submitted findings, conclusions, and a recommended order to the Board. After hearing Gilpin’s objections orally and receiving them in writing, the Board adopted the hearing examiner’s findings, conclusions, and recommendations.

Gilpin appealed to the District Court. The court heard the parties’ arguments and then issued its written memorandum and order affirming the decision to revoke Gilpin’s license. However, the court deleted the provision that the revocation is permanent.

I

Does the Board have jurisdiction to revoke a Montana nursing license which expired before revocation?

Gilpin argues that the Board lost jurisdiction over him after his nursing license lapsed in 1990. He claims that the Board is statutorily empowered to take action only on an application for a nursing license or on an issued license, not on an expired license.

Section 37-8-431(3), MCA, provides that a lapsed nursing license may be reinstated by the Board upon satisfactory explanation for the failure to renew the license and upon payment of current fees. Section 37-1-141, MCA, provides that a lapsed occupational or professional license which is not renewed within three years of the most recent renewal date automatically terminates and a new original license must be obtained.

Because the above statutes give the Board the power to reinstate a nursing license for three years after it lapses, we conclude that the Board retains jurisdiction over a lapsed nursing license for three years following a failure to renew. This action took place within three years after Gilpin’s license lapsed. We hold that the Board had jurisdiction to revoke Gilpin’s license.

II

Did the Board revoke Gilpin’s Montana musing license without affording him a proper hearing?

Despite his consent to submit to the hearing examiner an agreed set of facts, Gilpin contends that he was entitled to a hearing before the Board on the merits of his case. He points out that, in the brief submitted to the Board in support of revoking his license, various harmful consequences were alleged as possible results of halting disciplinary proceedings. Gilpin maintains that a hearing should have been held to afford him an opportunity to rebut those “allegations of fact.”

The material facts of this case were stipulated — that Gilpin stands convicted of sexually molesting two pre-teen girls. The results which were forecast if disciplinary proceedings were halted did not create material issues of fact. Gilpin was afforded a hearing before the Board at which he presented his arguments in opposition to the hearing examiner’s findings and conclusions. We hold that Gilpin’s criminal conviction and the facts to which he stipulated were a sufficient basis for summary judgment and that Gilpin was not entitled to any hearings in addition to those which he was given.

Ill

Did the Board properly consider criteria for licensure of criminal offenders in revoking Gilpin’s nursing license?

Gilpin states that there is no indication, in either the record in this case or in this Court’s decision in his appeal from his criminal conviction, of any connection between the conduct on which his criminal conviction was based and his nursing practice. He points out that the conduct occurred while he was off duty and away from his workplace. He quotes the following statutes dealing with the licensure of criminal offenders:

37-1-201. Purpose. It is the public policy of the legislature of the state of Montana to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the assumption of the responsibilities of citizenship. The legislature finds that the public is best protected when such offenders are given the opportunity to secure employment or to engage in a meaningful occupation, while licensure must be conferred with prudence to protect the interests of the public.
37-1-202. Intent and policy. It is the intent of the legislature and the declared policy of the state that occupational licensure be granted or revoked as a police power of the state in its protection of the public health, safety, and welfare.
37-1-203. Conviction not a sole basis for denial. Criminal convictions shall not operate as an automatic bar to being licensed to enter any occupation in the state of Montana. No licensing authority shall refuse to license a person solely on the basis of a previous criminal conviction; provided, however, where a license applicant has been convicted of a criminal offense and such criminal offense relates to the public health, welfare, and safety as it applies to the occupation for which the license is sought, the licensing agency may, after investigation, find that the applicant so convicted has not been sufficiently rehabilitated as to warrant the public trust and deny the issuance of a license.
37-1-204. Statement of reasons for denial. When a licensing agency prohibits an applicant from being licensed wholly or partially on the basis of a criminal conviction, the agency shall state explicitly in writing the reasons for the decision.
37-1-205. Licensure on completion of supervision. Completion of probation or parole supervision without any subsequent criminal conviction shall be evidence of rehabilitation; provided, however, that the facts surrounding the situation that led to the probation or parole supervision may be considered as they relate to the occupation for which a license is sought and provided that nothing herein shall be construed to prohibit licensure of a person while he is under state supervision if the licensing agency finds insufficient evidence to preclude such licensure.

Under the statutes set forth above, the policy of this State is to protect the public health, safety, and welfare. Gilpin cites this Court’s holding in Mills v. Commissioner of Insurance (1987), 226 Mont. 387, 736 P.2d 102, that a finding that Mills had been convicted of a felony involving moral turpitude (felony theft) was an insufficient basis upon which to hold that the conviction was related to the pubhc health, welfare, or safety through the licensed occupation of insurance sales. Mills, 736 P.2d at 105.

In the present case, the hearing examiner concluded that “[a] crime of sexual assault, especially on two young girls, is, in my mind, ipso facto, sufficient grounds for revocation of his license.” The Board adopted the hearing examiner’s further conclusions that, by reason of his criminal conviction of sexually assaulting two young girls, Gilpin was guilty of unprofessional conduct as a nurse within the meaning of § 37-8-441(5), MCA, and was unfit to practice nursing by reason of negligence, habits, or other causes, within the meaning of § 37-8-441(2), MCA.

The District Court noted that even though the sexual assaults did not occur while Gilpin was acting as a nurse, the conviction for those offenses causes great concern for public health, welfare, and safety. The court reasoned that the practice of nursing, by its very nature, involves the care of patients and brings the nurse into close physical contact with patients, including possible contact with intimate body areas of patients who are young, old, male, and female. The court stated:

Because of the nature of the profession of nursing, it is reasonable to conclude that the conviction of sexual assault on a young girl makes one unfit to practice nursing within the meaning of § 37-8-441(2), MCA.

Section 37-1-203, MCA, provides that when a person has been convicted of a criminal offense which relates to the public health, welfare, and safety, that person shall be granted a professional or occupational license only if he or she has been sufficiently rehabilitated to warrant the public trust. There is nothing in the record to show that Gilpin has been rehabilitated. In fact, he was still serving his sentence of imprisonment at the time of the hearing before the hearing examiner. In that respect, this case may be further distinguished from Mills. All but thirty days of Mills’ prison sentence was suspended and she was not incarcerated at the time her case was heard before the licensing agency.

We hold that, in revoking Gilpin’s license, the Board properly considered the criteria for licensing criminal defendants.

We affirm the order of the District Court revoking Gilpin’s license to practice in Montana as a registered professional nurse.

JUSTICES HARRISON, GRAY, McDONOUGH and TRIEWEILER concur.


author: JUSTICE McDONOUGH

text:
    JOSEPH MALONEY, Petitioner and Appellant, v. TINA GORDON, City Judge, City Court of Columbia Falls, Respondent and Respondent.
    No. 92-218.
    Submitted on briefs Sep. 10, 1992.
    Decided Sep. 22, 1992.
    49 St.Rep. 834.
    837 P.2d 1341.
    254 Mont. 314.

      For Petitioner and Appellant: James C. Bartlett, Hash, O’Brien & Bartlett, Kalispell.
    For Respondent and Respondent: Marc Racicot, Attorney General, Micheál S. Wellenstein, Assistant Attorney General, Helena; and Katherine R. Curtis, City Attorney, Columbia Falls.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Appellant, Joseph Maloney, appeals from an order and judgment of the District Court of the Eleventh Judicial District, Flathead County, dismissing his petition for writ of review, writ of mandamus, writ of supervisory control and other appropriate relief. We affirm.

Joseph Maloney (Maloney) was charged in the City Court of Columbia Falls with the misdemeanors of speeding and driving an automobile while under the influence of alcohol. He was charged under a document entitled Notice to Appear and Complaint signed by police officer R. Dettwiler. Maloney pled not guilty and a trial was held.

At trial there was testimony that the complaint was not properly sworn to by officer Dettwiler. Maloney made a motion to dismiss on such grounds. The city judge took the motion under advisement and proceeded with the trial. Maloney was convicted on both charges. The city judge later denied Maloney’s motion to dismiss, ruling that the failure of the officer to swear to the complaint did not prejudice Maloney’s substantial rights. Maloney has appealed his conviction de novo and his trial is pending in the District Court.

At the same time, Maloney appealed his conviction, he filed with the District Court a petition for writ of review, writ of mandamus, •writ of supervisory control, or other appropriate writ, asking the District Court to direct the city court to dismiss the charges. The city filed an answer and a hearing was held. The District Court denied and dismissed the petition for the various writs.

The District Court was correct in dismissing Maloney’s petitions. There is no constitutional or statutory provision granting a district court the authority to issue a writ of supervisory control to a city court. See State, Etc. v. City Court of Choteau (1982), 198 Mont. 223, 225, 645 P.2d 428, 429. Maloney having failed to properly raise the issue of supervisory control by this Court, we will not address it.

The District Court’s authority to issue a writ of mandamus in reviewing the action of the city court is controlled by § 27-26-102, MCA, which states:

When and by whom issued. (1) It may be issued by the supreme court or the district court or any judge of the district court to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and from which he is unlawfully precluded by such inferior tribunal, corporation, board, or person.

(2) The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law. Maloney has a plain, speedy, and adequate remedy at law, which is the right of a trial de novo in District Court. See § 46-17-311, MCA. He is therefore not entitled to a writ of mandamus. Also for the foregoing reason, Maloney is not entitled to a writ of review. Section 27-25-102(2), MCA, provides:

When and by whom granted. A writ of review may be granted by:
(2) the supreme court or the district court or any judge thereof, when an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction of such tribunal, board, or officer and there is no appeal or, in the judgment of the court, any plain, speedy, and adequate remedy.

Affirmed.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RUSSELL ALLEN WILSON, Defendant and Appellant.
    No. 91-588.
    Submitted on briefs July 2, 1992.
    Decided Sept. 28, 1992.
    49 St.Rep. 844.
    837 P.2d 1346.
    254 Mont. 317.
    For Defendant and Appellant: Michael Donahoe, Donahoe & Yeshe, Helena.
    For Plaintiff and Respondent: Marc Racicot, Attorney General, Barbara C. Harris, Assistant Attorney General, Mike McGrath, County Attorney, Carolyn Clemens, Deputy County Attorney, Helena.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from an order of the First Judicial District Court, Lewis and Clark County, denying the defendant’s motion to suppress evidence obtained during a search of his home. We reverse.

The sole issue is whether the District Court erred in denying defendant’s motion to suppress.

The facts which supported the search warrant application follow. Detective McCormack received an anonymous Crimestoppers call alleging that the defendant was conducting a marijuana growing operation. The caller provided the defendant’s name, address, place of employment, the color and make of his vehicle and a description of the exterior of his house. He stated that the defendant had automatic weapons in the residence and that there was considerable traffic to and from the house daily. Finally he contended that he had personally observed the marijuana growing operation within the last few days and had seen bags of marijuana in the house. He provided no further information about the marijuana growing operation.

As a result of this information the detective assigned, obtained an investigative subpoena for the electric power bills for the defendant’s residence. The search warrant application stated that the “[p]ower bills for the residence reflect power usage consistent with that of a grow operation.” Nothing more was stated relative to the power bills.

The search warrant application was granted and a search of the residence revealed marijuana plants, scales, grow lamps, hash pipes, bagged marijuana and money. The defendant was arrested and charged under § 45-9-103, MCA.

The defendant filed a motion to suppress evidence obtained in the search and the motion was denied on June 25, 1991. After final judgment this appeal followed.

The core question is whether the application for a search warrant was sufficient to issue a search warrant. “To address the issue of probable cause for issuance of a warrant, this Court has adopted the ‘totality of the circumstances’ test set forth in Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 ...” State v. Crowder (1991), 248 Mont. 169, 173, 810 P.2d 299, 302. “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity" and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. O’Neill (1984), 208 Mont. 386, 394, 679 P.2d 760, 764. “[T]he duty of the reviewing court is to ensure the magistrate had a ‘substantial basis’ for ... concluding] that probable cause existed.” Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. See also Crowder, 810 P.2d at 302. “The magistrate’s determination of probable cause should be paid great deference by reviewing coruts.” State v. Sundberg (1988), 235 Mont. 115, 123, 765 P.2d 736, 741. “Our function is not to review de novo the magistrate’s determination that probable cause existed justifying the issuance of a search warrant.” State v. Baldwin (1990), 242 Mont. 176, 183, 789 P.2d 1215, 1220.

Defendant argues that the caller provided little detail which would establish his credibility and affirm his personal knowledge of the marijuana growing operation. He also contends that the detective did not indicate his experience in drug investigations, particularly in analyzing power consumption records.

The Crimestoppers caller did say he had personally observed the marijuana growing and bags of marijuana around the defendant’s house. However, he did not describe the interior of the house, the location of the marijuana growing operation nor did he describe the marijuana growing operation itself. He gave no further basis for his knowledge other than his bare assertion that he had personally seen the operation. See State v. Schaffer (Idaho App. 1984), 693 P.2d 458, 464. See also State v. Valley (Mont. 1992), 830 P.2d 1255, 49 St.Rep. 30, 31. “[T]here was no inclusion of such detail that the information became self-verifying ....” Valley, 830 P.2d at 1258, 49 St.Rep. at 32. See also Schaffer, 693 P.2d at 464.

The only information about power usage in the search warrant application was the conclusory statement that defendant’s power bills reflected a power use “consistent with that of a grow operation.” No data from the records was included in the application nor any information concerning the detective’s experience analyzing power usage records.

Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. In order to ensure that such an abdication of the magistrate’s duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued.

Gates, 462 U.S. at 239.

In the present case, the application for the search warrant contained conclusory statements with respect to the informant’s personal knowledge and the analysis of the power usage records. Detail was not provided to support the conclusions drawn within the application. Conclusory statements will not provide substantial basis to conclude that probable cause existed to issue a search warrant. The motion to suppress should have been granted.

REVERSED.

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