author: JUSTICE TRIEWEILER JUSTICE LEAPHART,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOSE ANTONIO HUERTA, Defendant and Appellant.
    No. 96-608.
    Submitted on Briefs July 31, 1997.
    Rehearing Denied December 4, 1997.
    Decided October 30, 1997.
    54 St.Rep. 1133.
    947 P.2d 483.
    285 Mont. 245.

      For Appellant: Kevin E. Vainio, Attorney at Law, Butte.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General; Helena; Robert M. McCarthy, Silver Bow County Attorney, Butte.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The defendant, Jose Antonio Huerta, was charged in the District Court for the Second Judicial District in Silver Bow County with one count of assault, a felony, in violation of § 45-5-20 1(1)(a) and (3), MCA. The State’s information alleged that on August 19, 1995, Huerta inflicted bodily injury on a juvenile less than fourteen years of age. Following trial by jury, Huerta was convicted of the crime charged. Huerta appeals his conviction. We affirm the judgment of the District Court.

The issues on appeal are:

1. Did the District Court violate § 46-15-323(8), MCA, when it required that Huerta disclose summaries of witness testimony prior to trial?

2. Did the District Court violate Huerta’s right to due process when it placed no reciprocal burden on the State to prepare and disclose summaries of witness testimony prior to trial?

3. Did the District Court err when it excluded testimony from defense witnesses on the basis of relevancy and on the basis that the testimony would constitute inadmissible character evidence?

4. Did the District Court err when it admitted testimony from the victim’s treating physician which repeated out-of-court statements made to him by the victim?

5. Did the District Court violate § 46-13-104, MCA, and deprive Huerta of due process when it waited to decide the State’s motion in limine until after the defendant had called his first witness?

6. Did the District Court deny Huerta’s Sixth Amendment right to present a defense and his due process right to a fair trial when it disallowed testimony proffered by Huerta and commented regarding the merits of his defense?

FACTUAL BACKGROUND

The defendant, Jose Antonio Huerta, was involved in a relationship with Brenda, the mother of Thymer, age eight at the time of trial, and Bobby Jo, age seven.

On the morning of August 19, 1995, Brenda asked Huerta to take Thymer’s bicycle to the pawn shop. Later that afternoon, Huerta called Brenda from his house and explained that he and Thymer had decided that Thymer did not have to sell the bicycle. Huerta also told Brenda that Thymer threw up on the floor of his house, and that he had Thymer clean it up.

When Brenda later arrived at a residence which Huerta was helping to repair, she testified that Thymer was sitting in the front seat of Huerta’s car with his head down.

Brenda eventually took Thymer home where, according to her testimony, she first discovered his injuries. Brenda testified that, once in the house, Thymer said he was going to be sick and ran to the bathroom. Moments later, she found him lying on the bathroom floor. Brenda saw a large bump on his head and asked what had happened. Thymer said “I can’t remember.” According to Brenda, when she asked again, Thymer said “you promise that we never have to see Tony [Huerta] again?” When Brenda gave her promise, she testified that Thymer said “Tony [Huerta] did this to me.” Brenda took Thymer to the police and then to St. James Hospital.

Dr. Dennis Salisbury, Thymer’s treating physician, testified at trial that he spoke directly with Thymer outside of Brenda’s presence to obtain information regarding Thymer’s injuries for purposes of treatment. Dr. Salisbury testified that Thymer told him that “Tony [Huerta] pick[ed] me up by the hair” “lots” of times. When Dr. Salisbury asked Thymer how he came to have bruises on his body, Thymer answered that he thought it was from being picked up by the shirt. Thymer also allegedly told Dr. Salisbury that Huerta choked him and slapped him across the face.

According to testimony of the officer at the police station, Thymer told the officer that Huerta grabbed him by the hair, lifted him up off the ground, and dropped him. Thymer also told the officer that Huerta “body slammed” him onto the couch at Huerta’s house.

At trial, Thymer testified that while they were driving to the pawn shop on the morning of August 19,1995, Huerta pulled Thymer’s hair and said “bad words” to him. He also testified that at Huerta’s house Huerta spit in Thymer’s face, made him stand at attention, then kicked him over while he was trying to clean up his own vomit. Thymer said that he passed out during the assault and when he came to, Huerta was slapping his face. Thymer testified that he did not know how he got the bruises or the knot on his head. Thymer testified that once they left Huerta’s house, Huerta threatened to kill his family if he told his mother about what happened.

Thymer spent three days in the hospital under observation. Dr. Salisbury found tenderness in Thymer’s scalp area where his hair was missing. He also found fresh abrasions under Thymer’s left jaw, above his left eyebrow, on his chest, and above his knee. He found bruising under Thymer’s left ear, under his right jaw, below his right shoulder blade, and on the front of his right leg. Thymer was also diagnosed with strep throat.

The defense theory of the case was that Brenda, not Huerta, inflicted the injuries to her son following an incident of vandalism the night before Huerta’s alleged assault on Thymer. Huerta testified that Brenda disciplined her children with a paddle, which he had seen her use on Thymer. Huerta explained that Brenda was always having trouble with Thymer and typically punished him severely. According to Huerta, on the morning of the alleged assault, Brenda exhibited anger towards Thymer and used a hostile tone of voice when speaking to him. He further explained that Thymer wanted to get out of the house and away from his mother. Huerta testified that he and Thymer drove to his house where Huerta, a former marine, made Thymer stand at attention while he checked his phone messages. He also explained that Thymer threw up twice that day, once while lying on Huerta’s couch and once in the bathroom of a rental unit in which they were working. Huerta testified that he heard a loud “thud” when Thymer was throwing up and assumed Thymer had slipped and hit his chin on the toilet bowl. He also testified that while at his house, Thymer slipped on his way to the bathroom and fell onto his back and hit his head on the newly polished wood floor. Huerta denied pulling Thymer’s hair, slapping him, “body slamming” him, or kicking him, and told the arresting officer that Thymer liked to make up stories. At trial, all of the witnesses who saw Thymer that day testified that Thymer did not appear to be injured.

PROCEDURAL HISTORY

Eleven days prior to the date on which trial was originally scheduled, Huerta filed a list of twenty-six witnesses whom he intended to call at trial to establish that Brenda, Thymer’s mother, had a habit of severely punishing Thymer. The State responded by filing a motion in limine to exclude the witnesses on the basis that their testimony would be inadmissible character evidence pursuant to Rule 608, M.R.Evid.

The District Court, concerned with the delay the number of witnesses would cause at trial, ordered Huerta to prepare summaries of the witnesses’ testimony in the form of affidavits. Huerta objected, but complied with the court’s order by providing affidavits from ten witnesses. In summary, these witnesses would have testified that: the children were not very well-behaved around Brenda; it did not appear that the children were afraid of Huerta; Brenda spanked Thymer, pulled his hair, and yelled at him often; Brenda always complained about her children’s behavior; Brenda beat Thymer with a paddle on occasion; witnesses had observed bruises on Thymer’s legs; Thymer told others that he did not like his mother; and that Brenda’s attitude toward her children was indifferent.

In addition, one of the affidavits established that Brenda asked a babysitter to discipline Thymer, and he complied. The next day, after finding bruises on Thymer, Brenda went to the police and had charges filed against the sitter, which resulted in a deferred prosecution.

The District Court ruled that these witnesses would be allowed to offer an opinion as to Brenda’s reputation for truthfulness or untruthfulness pursuant to Rule 608, M.R.Evid. However, the court held that evidence of Brenda’s past disciplinary actions was irrelevant to any of the issues in the case. To the extent that the evidence might have been relevant, the court concluded that it was improper character evidence pursuant to Rule 608, M.R.Evid.

STANDARD OF REVIEW

The standard of review of a district court’s conclusions of law is whether the court’s interpretation of law is correct. See Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686. See also Kreger v. Francis (1995), 271 Mont. 444, 447, 898 P.2d 672, 674; Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603. We have held that a judgment of conviction will not be reversed unless the error prejudiced or tended to prejudice the substantial rights of the defendant. See State v. Vanella (1910), 40 Mont. 326, 345, 106 P. 364, 371; State v. Rhys (1909), 40 Mont. 131, 134, 105 P. 494, 495. We have further held that in criminal cases no judgment will be reversed for technical errors or defects which do not affect the substantial rights of the defendant, and when the record is sufficient to establish the guilt of the defendant, a new trial will not be granted, even though there was error, unless it clearly appears that the error complained of actually impaired the defendant’s right to a fair trial. See State v. Ray (1930), 88 Mont. 436, 446, 294 P. 368, 371; State v. Dixson (1927), 80 Mont. 181, 212-13, 260 P. 138, 150. Section 46-20-701, MCA, states that “[a] cause may not be reversed by reason of any error committed by the trial court against the convicted person unless the record shows that the error was prejudicial.”

We have held that it is up to this Court to decide whether an error affects the substantial rights of the defendant, and that the defendant must demonstrate prejudice from the record. See State v. Bubnash (1963), 142 Mont. 377, 393-94, 382 P.2d 830, 838; State v. Straight (1959), 136 Mont. 255, 264-65, 347 P.2d 482, 488. Prejudice in a criminal case will not be presumed, but rather must appear from the denial or invasion of a substantial right from which the law imputes prejudice. See generally State v. Stuit (1996), 277 Mont. 231-33, 921 P.2d 866, 869-70; State v. Arlington (1994), 265 Mont. 127, 150, 875 P.2d 307, 321.

ISSUE 1

Did the District Court violate § 46-15-323(8), MCA, when it required that Huerta disclose summaries of witness testimony prior to trial?

The District Court, concerned with having to address objections to numerous defense witnesses, required Huerta to produce summaries of each witness’s testimony in affidavit form. The District Court’s intention was to use the affidavits to screen the witnesses’ testimony in order to avoid wasting time. On appeal, however, Huerta contends that by doing this, the District Court violated § 46-15-323(8), MCA. We agree.

Section 46-15-323(8), MCA, states in relevant part:

Upon motion of the prosecutor showing that the prosecutor has substantial need in the preparation of the case for additional material or information not otherwise provided for, that the prosecutor is unable, without undue hardship, to obtain the substantial equivalent by other means, and that disclosure of the material or information will not violate the defendant’s constitutional rights, the court, in its discretion, may order any person to make the material or information available to the prosecutor. The court may, upon request of any person affected by the order, vacate or modify the order if compliance would be unreasonable or oppressive. The defense counsel may not be required to prepare or disclose summaries of witnesses’ testimony.

(Emphasis added.)

The language of § 46-15-323(8), MCA, clearly states that a court may not require that a defendant prepare or disclose summaries of witnesses’ testimony, the very thing the District Court in this case demanded of Huerta. We conclude that the District Court erred when it required Huerta to produce summaries of his witnesses’ testimony. However, because Huerta claims no more prejudice than having to devote time and effort to the preparation of the summaries, we conclude that Huerta has not demonstrated prejudice and that the District Court’s error did not affect his substantial rights. We therefore conclude that this procedural error is not a basis for reversal of the District Court’s judgment.

ISSUE 2

Did the District Court violate Huerta’s right to due process when it placed no reciprocal burden on the State to prepare and disclose summaries of witness testimony prior to trial?

Huerta contends that by not requiring the State to prepare summaries of witness testimony, the District Court failed to place a reciprocal burden of discovery on the State and, therefore, violated his right to due process.

Article II, Section 17, of the Montana Constitution, provides that “[n]o person shall be deprived of life, liberty or property without due process of law.” The Fifth Amendment to the United States Constitution guarantees that “no person ... shall... be deprived of life, liberty or property, without due process of law.” Likewise, the Fourteenth Amendment to the United States Constitution provides “nor shall any State deprive any person of life, liberty or property, without due process of law.” The due process provision of the Fifth Amendment is applicable to state action through the Fourteenth Amendment. See Malloy v. Hogan (1964), 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653.

In Wardius v. Oregon (1973), 412 U.S. 470, 93 S. Ct. 2208, 37 L. Ed. 2d. 82, the United States Supreme Court held that reciprocal discovery is required by the due process fundamental fairness guarantee. The Court stated “[t]hat in the absence of a strong showing of state interests to the contrary, discovery must be a two way street.” Wardius, 412 U.S. at 475, 93 S. Ct. at 2212, 37 L. Ed. 2d at 88. The Court added that “the State’s inherent information-gathering advantages suggest that if there is to be any Imbalance in discovery rights, it should work in the defendant’s favor.” Wardius, 412 U.S. at 475 n. 9, 93 S. Ct. at 2212 n. 9, 37 L. Ed. 2d at 88 n. 9. This Court recognized the reciprocal discovery requirement in otar decision in State ex rel. Carkulis v. District Court (1987), 229 Mont. 265, 278-79, 746 P.2d 604, 613.

We conclude that the District Court did err when it imposed the burden of discovery on only the defendant, and not equally upon the State; however, once again, Huerta has failed to demonstrate how the error adversely affected the outcome of his trial. Having failed to do so, he has not established reversible error pursuant to § 46-20-701, MCA. Therefore, while we conclude that the District Court erred when it did not provide reciprocal discovery obligations, we conclude that its error is not grounds for reversal of the District Court’s judgment.

ISSUE 3

Did the District Court err when it excluded testimony from defense witnesses on the basis of relevancy and on the basis that the testimony would constitute inadmissible character evidence?

The standard of review for evidentiary rulings is whether the district court abused its discretion. See State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263. The determination of whether evidence is relevant and admissible is left to the sound discretion of the trial judge and will not be overturned absent a showing of abuse of discretion. See Gollehon, 262 Mont. at 301, 864 P.2d at 1263. See also State v. Stringer (1995), 271 Mont. 367, 374, 897 P.2d 1063, 1067; State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380; State v. Crist (1992), 253 Mont. 442, 445, 833 P.2d 1052, 1054. This standard presumes that there may be more than one correct answer to an evidentiary issue. Otherwise, there would be no basis for discretion. In this case, the choice faced by the District Court was whether to allow testimony of past abuse of Thymer by his mother, Brenda. Such a decision necessarily entailed first, a determination of whether the testimony is admissible, and second, whether the evidence, even though relevant, should be excluded on grounds of prejudice, confusion, or waste of time.

The testimony Huerta contends was admissible related to Brenda’s past discipline of Thymer and Thymer’s apparent feelings toward Brenda. Huerta offered to prove that, in the past, Brenda requested that another care-giver corporally punish Thymer, that she has picked Thymer up by the arm and yelled at him, that she has acted indifferently toward Thymer, that she has pulled Thymer’s hair when she was angry, that she has hit Thymer on the side of the head, and that she has thrown him into her car by his hair. Huerta’s proffered witnesses would have testified that Thymer always seemed afraid of Brenda and never wanted to go anywhere with her. They noticed bruises on the backs of Thymer’s legs and commented that Brenda regularly spanks her children, occasionally with a paddle, yells at them, and constantly complains about their behavior. One witness noted that it appeared that physical actions and yelling were the only forms of discipline used by Brenda.

Huerta offered this testimony to prove that it was Brenda’s habit to severely punish Thymer and, therefore, infer that the injuries suffered by Thymer were inflicted by Brenda rather than him. The State objected to the introduction of this testimony on the grounds that it was inadmissible character evidence. The District Court agreed with the State and ruled that Huerta could not introduce any testimony regarding incidents of Brenda’s past abuse of Thymer.

A case directly on point is State v. Sigler (1984), 210 Mont. 248, 688 P.2d 749. In Sigler, the defendant, who was on trial for causing the death of a nineteen-month-old child, objected to the introduction of testimony regarding the past history of the child’s care by his mother and himself. The witnesses testified that they had seen Sigler kick the child, slap him so hard that his head touched his shoulder and his nose bled, spank the child hard while holding him in the air by his arm, and “whop” the child on the head when he would not eat. See Sigler, 210 Mont. at 251-52, 688 P.2d at 751. The witnesses noticed bruises and cigarette bums on the child just weeks before the child’s death and that the child seemed tense when Sigler approached him. See Sigler, 210 Mont. at 251-52, 688 P.2d at 751. Based on that evidence, we concluded that Sigler’s “response to any perceived need for disciplining the child was always intemperate, and slipped into gear on the slightest provocation. His treatment of a nineteen-month-old infant was brutal, heedless, and unfeeling.” Sigler, 210 Mont. at 253, 688 P.2d at 752.

In our decision in Sigler to affirm the District Court’s admission of the witnesses’ testimony we explained that “the only available link between the specific nature of the child’s injury and the caretaker may be the evidence of prior abusive conduct by the caretaker.” Sigler, 210 Mont. at 254, 688 P.2d at 752. We held that evidence of the defendant’s past conduct was evidence of his habits.

The District Court in this case excluded the testimony of Brenda’s past actions of abuse by characterizing the testimony as inadmissible character evidence in violation of Rule 404, M.R.Evid. We disagree with that characterization.

According to our decision in Sigler, a trait of character is to be distinguished from habit. “A habit is a person’s regular response to a repeated specific situation.” Rule 406, M.R.Evid. In Sigler, we explained that “|h]abit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine.” Sigler, 210 Mont. at 255, 688 P.2d at 752. Huerta’s intention was to establish, through the testimony of numerous witnesses, that it was Brenda’s habit to regularly respond to Thymer’s misbehavior with abusive discipline. We therefore conclude, pursuant to our decision in Sigler, that the District Court erred by characterizing the proffered evidence as inadmissible character evidence. We conclude that the evidence was evidence of habit and absent other considerations, was admissible pursuant to Rule 406, M.R.Evid.

However, Rule 403, M.R.Evid., provides that although evidence may be relevant, a court may exclude it if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. While the District Court’s explanation of why Huerta’s habit evidence was excluded does not track the exact language of Rule 403, M.R.Evid., it appears that Rule 403 served as the basis for the District Court’s decision.

In the process of determining whether to exclude the testimony of Huerta’s witnesses, the District Judge repeatedly expressed concern that the witness testimony had no relation in time to Thymer’s assault. He further stated that he thought the evidence was cumulative, repetitious, and that it frustrated the orderly administration of the trial. According to the District Court, Huerta could have established his defense that Brenda was actually the perpetrator of the assault on Thymer without using the testimony of numerous witnesses. The District Court explained that absent more direct evidence of Brenda’s connection to the beating in question, the prejudice which these witnesses would have presented in the form of “character assassination” of Brenda far outweighed the probative value of their testimony. We conclude that Huerta was able to sufficiently present his defense without the excluded testimony and that without a greater nexus between Brenda and her son’s injuries on the date in question, the District Court did not abuse its discretion when it excluded evidence of Brenda’s habit of disciplining her son.

ISSUE 4

Did the District Court err when it admitted testimony from the victim’s treating physician which repeated out-of-court statements made to him by the victim?

At trial, the District Court permitted Dennis Salisbury, M.D., Thymer’s treating physician, to present testimony concerning Thymer’s responses to questions he asked Thymer at St. James Hospital. The questions and replies included such matters as the origins of Thymer’s injuries and who caused them. Specifically, Dr. Salisbury testified that he asked Thymer how he lost his hair, how many times he was picked up by the hair, how he received the bruises on his body, how many times he was choked, whether he was hit that day, who hit him, what was Huerta’s last name, and whether he was slapped in the face or body. In some of his responses, Thymer named Huerta as the perpetrator. Dr. Salisbury testified that he obtained this and other information from Thymer for purposes of medical diagnosis and treatment. He specifically stated it was helpful to know whether the injuries were inflicted by an adult. Huerta objected to this testimony on the basis that it was hearsay. He contends that the questions went beyond those necessary for purposes of medical diagnosis and treatment.

Rule 803(4), M.R.Evid., provides that medical doctors, during their testimony, may repeat out-of-court statements elicited during the history-taking process, so long as a foundation has been laid to establish that the information was necessary for diagnosis and treatment. Rule 803(4) provides the following exception to the exclusion of hearsay evidence:

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

In State v. Arlington (1994), 265 Mont. 127, 142, 875 P.2d 307, 316, we held that statements made for the purpose of diagnosis must first be made with an intention that is consistent with seeking medical treatment and, second, they must be statements that would be relied upon by a doctor when making decisions regarding diagnosis or treatment. Whether or not this two-part test has been met is an evidentiary issue which again involves the district court’s discretion. See Gollehon, 262 Mont. at 301, 864 P.2d at 1263.

At trial, Dr. Salisbury specifically testified that his questions of Thymer, as well as Thymer’s responses, were necessary for the purpose of medical diagnosis and treatment. Dr. Salisbury also testified that he relied on these statements in treating Thymer. Therefore, we conclude that the two-part test set forth in Arlington was satisfied and the District Court did not abuse its discretion when it admitted Dr. Salisbury’s testimony.

ISSUE 5

Did the District Court violate § 46-13-104, MCA, and deprive Huerta of due process when it waited to decide the State’s motion in limine until after the defendant had called his first witness?

On May 8, 1996, the State filed its motion in limine to obtain a pretrial ruling that Huerta could not introduce character evidence related to Brenda and Thymer. Huerta responded to the State’s motion on May 17, 1996, and maintained that the evidence he intended to introduce at trial was not inadmissible character evidence, but was instead habit evidence, admissible to show that Brenda’s habit was to physically discipline Thymer. Huerta contended that he should have the opportunity to fully explore his theory of the case that someone other than he assaulted Thymer, and that Thymer’s recent misbehavior, including the incident of vandalism, provided the impetus and motive for his mother to severely punish him.

On May 23, 1996, at the State’s request, over Huerta’s objection, and without ruling on the State’s motion in limine, the District Court ordered Huerta to prepare and disclose affidavits outlining the expected testimony of his witnesses. At the hearing on the matter, the District Court expressed concern that it would be difficult for the State to interview a long list of witnesses without delaying the trial date. Huerta complied with the District Court’s order on May 31, 1996, and prepared summaries of his witnesses’testimony. However, it was not until the second day of trial, June 25,1996, that the District Court ruled on the State’s motion in limine, and then not until after Huerta had called his first witness. The result, according to Huerta, was that his ability to present an effective opening statement was impaired.

On appeal, Huerta contends that by failing to determine the State’s motion in limine before trial the District Court violated § 46-13-104, MCA. Huerta maintains that the District Court failed to comply with § 46-13-104, MCA, when it neither formally nor informally stated on the record its intention to defer its ruling until trial with a statement of good cause. Section 46-13-104, MCA, states that

(I) A motion made before trial must be determined before trial unless the court, for good cause, orders it deferred for determination at the trial of the general issue or until after the verdict, but a determination may not be deferred if a party’s right to appeal is adversely affected.

(Emphasis added.) Huerta asserts that the plain language of the statute which requires that a motion be decided before trial “unless the court, for good cause, orders it deferred for determination at the trial of the general issue or until after the verdict” should be interpreted to require the court to state, on the record, the good cause which is the basis for the court’s deferral of the matter until the time of trial. Section 46-13-104, MCA (emphasis added). Huerta contends that the confusion which resulted from the court’s failure to state on the record its intention to delay the matter caused him to suffer extreme prejudice.

However, § 46-13-104, MCA, merely requires that good cause exist for a deferral of a matter until the time of trial. It does not require that good cause be actually stated on the record. A district court must be able to take any pretrial matter under advisement where good cause exists, and not have to be concerned about making a separate order either formally or informally to explain its action.

With regard to whether there was, in fact, good cause to delay deciding the State’s motion in limine until trial, we agree with the State that the District Court had to hear the testimony of the State’s witnesses, particularly the cross-examination of Brenda, and decide the relevance of any character or habit evidence in light of her testimony. We agree with the State that this basis was sufficient in and of itself to establish good cause. Therefore, we affirm the decision of the District Court to delay its decision regarding the State’s motion in limine until the day of trial.

ISSUE 6

Did the District Court deny Huerta’s Sixth Amendment right to present a defense and his due process right to a fair trial when it disallowed testimony proffered by Huerta and commented regarding the merits of his defense?

Huerta maintains that the District Court’s ruling which disallowed his evidence of Brenda’s habit of severely punishing Thymer, precluded him from asserting his sole defense. The District Court’s ruling, Huerta contends, is a violation of his Fifth and Sixth Amendment rights. However, absent plain error, allegations that constitutional rights have been violated cannot be raised for the first time on appeal. Section 46-20-701(2), MCA, provides:

Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. A claim alleging an error affecting jurisdictional or constitutional rights may not be noticed on appeal if the alleged error was not objected to as provided in 46-20-104, unless the convicted person establishes that the error was prejudicial as to the convicted person’s guilt or punishment and that:
(a) the right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its application;
(b) the prosecutor, the judge, or a law enforcement agency suppressed evidence from the convicted person or the convicted person’s attorney that prevented the claim from being raised and disposed of; or
(c) material and controlling facts upon which the claim is predicated were not known to the convicted person or the convicted person’s attorney and could not have been ascertained by the exercise of reasonable diligence.

(Emphasis added.) In this case, none of the three exceptions exist. Therefore, in order for this Court to review an alleged error by the District Court, Huerta must have objected to it at the time of trial. In State v. Probert (1986), 221 Mont. 476, 719 P.2d 783, we held that where the defendant alleged for the first time on appeal that a statute was unconstitutional, and where none of the exceptions of § 46-20-702, MCA, (renumbered § 46-20-701(2), MCA) were found to apply, this Court could refuse to consider the allegation on appeal. In State v. Smith (1986), 220 Mont. 364, 715 P.2d 1301, we held that where the appellant failed to object at the time the court made the alleged error, the objection was not timely. See also State v. Hofman (1996), 275 Mont. 455, 913 P.2d 1256; City of Forsyth v. Allison (1995), 274 Mont. 246, 908 P.2d 205; State v. Walter (1994), 266 Mont. 429, 880 P.2d 1346; State v. Close (1981), 191 Mont. 229, 623 P.2d 940.

In addition to requiring a timely objection, we have held that the objection must be specific in order to preserve the issue for appeal. In State v. Loh (1996), 275 Mont. 460, 479, 914 P.2d 592, 603-04, we held that a trial objection that is very general in nature and which does not specify what authority, rule, statute, or constitutional provision might be violated by the court’s decision, is insufficient to preserve that issue on appeal. In State v. Weeks (1995), 270 Mont. 63, 85, 891 P.2d 477, 490-91, we further held that an objector has an obligation to make the basis and grounds for his or her objection clear to the court so that the district court is given an opportunity to correct itself and that broad, general objections do not suffice.

Huerta’s claim on appeal that the District Court’s ruling disallowing “habit” evidence precluded him from asserting a defense, thereby violating his Fifth and Sixth Amendment rights, is a constitutional argument which he did not make to the District Court. Huerta’s objection, which he contends is the equivalent of a constitutional argument, was merely that the District Court’s ruling effected a “miscarriage of justice.” The objection is far too broad to provide the District Court with an opportunity to correct itself by looking to specific constitutional provisions. Only on appeal does Huerta specify those provisions.

We conclude that because Huerta’s objection was not timely or specific, he did not provide the District Court with an adequate opportunity to correct itself and, therefore, did not preserve the issue for appeal.

Finally, Huerta maintains that he was prejudiced when the court commented, in the presence of the jury, that “Brenda ... is not on trial here.” Huerta claims that this comment removed from the jury the consideration of his sole defense. We agree with Huerta that the court’s statement was inappropriate; however, we do not agree that it deprived Huerta of a fair trial.

We have held that “[a] trial judge must take care to insure that he does not abandon his role as impartial judge in favor of that of an advocate.” State v. Stafford (1984), 208 Mont. 324, 331, 678 P.2d 644, 648. In State v. Brooks (1920), 57 Mont. 480, 490, 188 P.2d 942, 945, we held that if a judge exhibits to the jury his opinions with respect to the parties or the case, and it therefore becomes apparent that a fair trial has not been had, this Court should grant relief to the party prejudiced by the judge’s remarks. Because the circumstances of this case demonstrate that, despite the judge’s remark, Huerta was given a fair trial, we conclude, as we did in State v. Cassill, et al. (1924), 71 Mont. 274, 282, 229 P. 716, 719-20, that the judge’s comment was merely a technical error and that Huerta’s substantial rights were not prejudiced.

For these reasons, we affirm the judgment of the District Court.

JUSTICES NELSON, HUNT, REGNIER and GRAY concur.

JUSTICE LEAPHART,

specially concurring.

I specially concur as to Issue Number 4 — Did the District Court err when it admitted testimony from the victim’s treating physician who repeated out-of-court statements made to him by the victim?

Rule 803(4), M.R.Evid., provides an exception to the rule excluding hearsay. The exception includes statements made by a patient to his/her physician as to symptoms, pain or the “general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” In the instant case, Dr. Salisbury, Thymer’s treating physician, testified that, in responding to the doctor’s inquiries as to the nature and cause of his injuries, Thymer said that Huerta was the one who had picked him up by the hair, had choked and hit him and slapped him in the face. I agree that the hearsay statements were admissible to the extent that Thymer described his injuries and how they were inflicted upon him. This information is pertinent to the diagnosis and treatment. I disagree that Thymer’s statements identifying Huerta as the perpetrator were pertinent to the diagnosis or treatment. Huerta’s defense to the charge was that Thymer’s mother Brenda, not Huerta, was responsible for the injuries. The question before the jury was who had inflicted these injuries on Thymer, Huerta or Brenda? Since the doctor’s hearsay testimony that Thymer identified Huerta as the perpetrator went to the heart of Huerta’s defense and since the identity of the perpetrator was not essential to medical diagnosis or treatment, that aspect of the testimony should have been excluded.

However, although the doctor’s hearsay testimony identifying Huerta was beyond the scope of Rule 803(4), M.R.Evid., and was thus error, I would hold that it was harmless error given that Thymer testified at trial and specifically identified Huerta as the assailant who pulled his hair, spit on him, body slammed him onto the couch, kicked him, threw him against the kitchen wall and said “not to tell [his] mom” or “[Huerta] would kill [his] family.” Since Thymer’s hearsay statements to Dr. Salisbury were consistent with Thymer’s trial testimony and since the trial testimony was subject to cross-examination, any error in admitting the hearsay was harmless.


source: Caselaw Access Project

author: JUSTICE LEAPHART CHIEF JUSTICE TURNAGE,

license: Public Domain

text:
    FOX FARM ESTATES LANDOWNERS ASSOCIATION, a Montana non-profit corporation, Plaintiff and Appellant, v. TROY L. KREISCH and DENISE A. KREISCH, Defendants and Respondents.
    No. 97-057.
    Submitted on Briefs July 23, 1997.
    Decided October 30, 1997.
    54 St.Rep. 1142.
    947 P.2d 79.
    285 Mont. 264.

      For Appellant: Timothy J. Wylder, Special Counsel, Patrick R. Watt; Jardine, Stephenson, Blewett & Weaver, Great Falls.
    For Respondents: Gregory J. Hatley; Davis, Hatley, Haffeman & Tighe, Great Falls.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Fox Farm Estates Landowners Association (Fox Farm), appeals from the decision of the Eighth Judicial District Court, Cascade County, denying Fox Farm’s action to enjoin preliminarily and permanently Troy and Denise Kreisch’s (Kreisches’) installation of a manufactured home contrary to a restrictive covenant prohibiting temporary structures. We reverse and remand.

Fox Farm raises two issues on appeal. We conclude that the first issue is dispositive and, therefore, do not reach the second issue.

Issue Presented

Did the District Court err in holding that Kreisches’ factory built “manufactured home” was not a mobile home prohibited by the applicable restrictive covenants?

Standard of Review

Fox Farm appeals only the District Court’s conclusions of law. The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Knudson v. McDunn (1995), 271 Mont. 61, 64, 894 P.2d 295, 297 (citing J.M., Jr. v. Montana High School Ass'n (1994), 265 Mont. 230, 235, 875 P.2d 1026, 1030).

Background

In 1996, the Kreisches purchased a lot in Ptarmigan Acres (the lot), a subdivision of Cascade County managed by Fox Farm. Ptarmigan Acres, including the Kreisches’ lot, is subject to restrictive covenants which prohibit temporary structures including mobile homes. The Kreisches, fully aware of the restrictive covenants, purchased a manufactured home from a Great Falls mobile home dealer, The Home Place. They intended to install their new home on the lot.

The home consists of two mobile units, each with permanent steel chassis, and a special framing that allows for the installation of springs, axles, wheels, a tongue mechanism and other accessories associated with mobile homes which allow the units to be towed from one location to another. The Kreisches arranged to have the retailer haul the units to the lot and place them on a concrete foundation. The units would then be bolted and welded together pursuant to the manufacturer’s suggestions. Electrical services would be installed with the meter on a utility pole, instead of on the home itself, because of the mobile quality of the home. Finally, upon completion of their purchase, the Department of Justice, Motor Vehicle Division would issue a Certificate of Ownership to the Kreisches.

Fox Farm, contending that the manufactured home violates the restrictive covenants, filed for a Temporary Restraining Order (TRO) to enjoin the Kreisches from moving the home onto the lot. The District Court entered a TRO and held a hearing to show cause why a preliminary injunction should not be granted pending a full trial on the merits. Following the hearing, the District Court denied Fox Farm’s prayer for preliminary injunction and dissolved the TRO concluding that the manufactured home was not a “mobile home” and, thus, did not violate the restrictive covenants. The District Court also held that Fox Farm failed to show that irreparable injury would result from its denial of the preliminary injunction.

Discussion

In two recent decisions, Newman v. Wittmer (1996), 277 Mont. 1, 917 P.2d 926, and Toavs v. Sayre (1997), [281 Mont. 243], 934 P.2d 165, this Court interpreted restrictive covenants similar to those presented in this case. The Kreisches contend, however, that the facts of this case are distinguishable from Newman and Toavs, but suggest that, if not distinguishable, this Court should reexamine those decisions. We recognize that with the increase in popularity of prefabricated and manufactured housing, the amount of litigation regarding such structures has also increased and that there is a split of authority among courts. See, e.g., Starr v. Thompson (N.C. App. 1989), 385 S.E.2d 535 (holding that whether a dwelling is a mobile home under a covenant depends on its characteristics and a factory built dwelling, designed and constructed to travel on wheels from place to place is a “mobile home”); Albert v. Orwige (Tenn. App. 1987), 731 S.W.2d 63 (holding that a structure was a “mobile home” notwithstanding that it might be a “double-wide” mobile home and notwithstanding the fact that it may be constructed of different materials than many mobile homes); Atkins v. Fine (Tex. App. 1974), 508 S.W.2d 131 (focusing on a ready built home’s “conventional construction,” the court held that a mobile home violated a restrictive covenant providing that “no buildings ... are to be moved onto said property ... except new ready built homes); Parry v. Hewitt (Wash. Ct. App. 1992), 847 P.2d 483 (finding that the mobile home is of the same quality and size as stick built homes and is therefore not prohibited by restrictive covenants prohibiting structures of a temporary character). However, we reaffirm our decisions in Newman and Toavs and determine that those decisions control the resolution of this appeal.

An applicant seeking a preliminary injunction for a violation of a restrictive covenant must “establish a prima facie case, or show that it is at least doubtful whether or not he will suffer irreparable injury before his rights can be fully litigated.” Porter v. K & S Partnership (1981), 192 Mont. 175, 181, 627 P.2d 836, 839. Additionally, in determining whether an applicant has established a prima facie case, “the court should decide merely whether a sufficient case has been made out to warrant the preservation of the property or rights in status quo until trial, without expressing a final opinion as to such rights. An applicant need not make out such a case as would entitle him to final judgment on the merits.” Porter, 627 P.2d at 840.

This Court interprets restrictive covenants by looking first to the language of the covenant to ascertain its meaning. If the language is clear and explicit, the language will govern. The language of restrictive covenants should be understood in its ordinary and popular sense. Toavs, 934 P.2d at 166-67. Restrictive covenants should be strictly construed and ambiguities resolved to allow free use of the property. Newman, 917 P.2d at 929. However, such free use must be balanced against the rights of other purchasers. Newman, 917 P.2d at 929. Generally, restrictive covenants are considered valid if they maintain or enhance the character of the subdivision. Newman, 917 P.2d at 929.

The relevant portions of the restrictive covenants at issue in this case state:

I. Statements of Purpose and Application. The purpose of the following covenants and provisions is to insure the use of the real properly herein described for attractive and comfortable suburban residential community for dwellings and local business of conventional construction, and to assure its occupants a quality environment....
IV. Use Restrictions.
6. Temporary Structures, Trailers Forbidden. No structure of a temporary character, mobile home, trailer, basement, tent, shack, garage, barn or any other out building shall be used on any Block at any time as a residence, either temporarily or permanently. All structures must be of new materials ....

The restrictive covenants pertaining to Kreisches’ lot are nearly identical to those at issue in Newman and have the same purpose: Prohibiting temporary structures such as mobile homes.

The Kreisches contend that Ptarmigan Acres’restrictive covenants are ambiguous and should be resolved to allow free use of the property. However, in Newman, 917 P.2d at 930, we determined that the restrictive covenants, nearly identical to Ptarmigan Acres’restrictive covenants, were not ambiguous but, rather, could be understood in their ordinary and popular sense. In order to define covenant terms that were used, but not defined in the restrictive covenants, we looked to statutory definitions for guidance, namely §§ 15-1-101(k) [now (1)] and 15-24-201(3), MCA, regarding taxation of mobile homes, and § 61-1-501, MCA, regarding the classification of mobile homes as motor vehicles. See Newman, 917 P.2d at 930-32. Those same definitions can be applied when interpreting the terms in Ptarmigan Acres’ restrictive covenants.

The District Court, however, relied on an additional statute that had not been mentioned in our previous decisions: § 76-2-202, MCA. This section of the code is found in the county zoning portion of Montana Code Annotated and states:

(6) As used in this section, “manufactured housing” means a single-family dwelling, built offsite in a factory on or after January 1,1990, that is placed on a permanent foundation, is at least 1,000 square feet in size, has a pitched roof and siding and roofing materials that are customarily, as defined by local regulations, used on site-built homes, and is in compliance with the applicable prevailing standards of the United States department of housing and urban development at the time of its production. A manufactured home does not include a mobile home, as defined in 61-4-309, or a housetrailer, as defined in 61-1-501.

Section 76-2-202(6), MCA (1995). The District Court, relying on this code section and considering factual differences (Kreisches’home will be placed on a permanent foundation and thus classified for tax purposes as an improvement to real property), concluded that the Kreisches’ manufactured home was not a mobile home in the ordinary and popular sense. We hold that the District Court misinterpreted the law in making that conclusion.

As we stated in Newman, “we are not applying one part of the code to a different part of the code. Rather, ... we look to all the statutory definitions of mobile home for guidance in interpreting the popular and ordinary meaning of mobile homes in the restrictive covenant.” Newman, 917 P.2d at 931 (citations omitted). Thus, § 76-2-202, MCA, which pertains to zoning, is not determinative of the ordinary and popular meaning of manufactured home but, rather, is simply just one more code section that guides our interpretation of the restrictive covenants. Moreover, the District Court failed to consider subsection (7) of § 76-2-202, MCA, which states that “Nothing contained in this section may be construed to limit conditions imposed in ... existing covenants ....” The District Court misinterpreted the law by relying solely on the zoning definition of manufactured home to determine whether Kreisches’ manufactured home was a temporary structure that violated the restrictive covenants.

In Newman, in addition to looking to statutory definitions for guidance, we noted certain characteristics that led the district court to conclude that the Wittmers’ manufactured home was a mobile home, including:

[T]he Wittmers completed a “Mobile/Manufactured Home Movement Declaration” before moving their home; the home is described as a “Manufactured Home by Fleetwood;” the home was issued a Montana Motor Vehicle Certificate of Title number and a vehicle identification number; the home is listed as a “trailer” on the Certificate of Title; the home was brought to the lot in two separate units and then joined together; the home has its own steel frame undercarriage and uses axles and wheels for the purpose of transport; the home has metal joists; the home is taxed as personal property; the home is not set on a permanent foundation; and the home is designed to be moved from one place to another by “independent power connected thereto.”

Newman, 917 P.2d at 930. Likewise, the Kreisches’home was built at the Friendship Homes’ factory in Minnesota where it was divided into two units each of which was equipped with appropriate accessories, such as axles and wheels, for hauling it across public highways. The characteristics of the Kreisches’ home are nearly identical to those reviewed in Newman.

The Kreisches, however, argue that their manufactured home can be factually distinguished from the homes in Newman and Toavs because 1) it is being placed on a permanent foundation, and 2) it will be taxed as real property. We disagree. The type of foundation and tax classification were only two of many characteristics this Court considered in determining that the manufactured home in Newman was a mobile home prohibited by the restrictive covenants. Newman, 917 P.2d at 930. In fact, it is the placing of the Kreisches’ home on a permanent foundation, rather than cement blocks, that leads to its taxation as real rather than personal property. Therefore, the two factual distinctions are interrelated.

We follow the reasoning in Timmerman v. Gabriel (1970), 155 Mont. 294, 470 P.2d 528, where this Court held that “the fact that the trailer was placed on a foundation and connected to utilities [did not] transform it to a permanent residence within the meaning of the covenant. We held that the restrictive covenant prohibited a type of structure and that the nature of the construction of the home rather than its subsequent mobility was determinative.” Newman, 917 P.2d at 931 (citing Timmerman, 470 P.2d at 530). We conclude, as we did in Timmerman and reaffirmed inNewman, that the Kreisches’ manufactured home cannot be transformed from temporary to permanent simply because it is placed on a foundation. See Newman, 917 P.2d at 931 (citing Timmerman, 470 P.2d at 530). Furthermore, a tax classification as real property does not change the physical characteristics of the home; i.e., that it was constructed off site and designed to be transported.

Finally, Article I of Ptarmigan Acres’ restrictive covenants states the purpose of the covenants is to assure its occupants a quality environment by limiting the suburban residential community to dwellings of conventional construction, thus, focusing on the method of construction. The District Court found the term “conventional construction” to be an ambiguous term and resolved the ambiguity in favor of the free use of the property.

The restrictive covenants do not define “conventional construction.” Relying on the Federal Housing Administration expert who testified at the hearing, Fox Farm argues that “conventional construction” means on-site construction using the “stick by stick” method of construction. The Kreisches contend that their home was built using “conventional construction” methods including a shingled roof, wood siding, and wall framing using 2x6 dimensional lumber. In addition, the Kreisches claim that once their home is placed on the foundation, it will be no more mobile than stick built homes. However, the Kreisches concede that their particular home was manufactured at an assembly plant in Minnesota and was transported by truck in two pieces to the mobile home dealer. They also admit that the home contains a steel frame and an I-beam for additional support and to allow installation of springs, axles, wheels and a tongue mechanism for towing. In other words, although the Kreisches’home may contain some conventional materials, it was constructed off site and designed to be transported on the highway to the residential site. We interpret the term “conventional construction” in its ordinary and popular sense and hold that such construction does not include structures that are manufactured and assembled at one site and designed to be transported to another site. Therefore, we hold that the District Court erred in holding that Kreisches’ factory built “manufactured home” was not a mobile home prohibited by the applicable restrictive covenants.

We reverse and remand with instructions to the District Court to issue injunctive relief consistent with this opinion.

JUSTICES NELSON, REGNIER and TRIEWEILER concur.

CHIEF JUSTICE TURNAGE,

dissenting.

By construing ambiguous restrictive covenants broadly, the majority unnecessarily limits the Kreisches’ right to place affordable housing upon their property. This derogates public policy and flies in the face of the rule of construction noted in Newman that ambiguities in a covenant should be strictly construed so as to allow free use of property. I must respectfully dissent.

Unlike in. Newman and Toavs, both of which opinions I signed, the manufactured home in the present case would be permanently attached to a foundation, with the result that it would be taxed as real property. In Newman, the home at issue was attached to a concrete pad and fitted with skirting; in Toavs, the home was placed on cement blocks. Both were taxed as personal property. The contemplated permanent attachment to a foundation removes the Kreisches’ manufactured home from the characterization as a “temporary structure” — the type of housing prohibited under the covenants. I therefore disagree with the majority that Newman and Toavs control.

The District Court concluded that the Kreisches’ manufactured home satisfied the stated purpose of the Fox Farms restrictive covenants to “insure the use of the real property ... for attractive and comfortable suburban residential community for dwellings ... of conventional construction[.]” The court found that the Kreisches’ home “basically, is built using conventional materials, methods, tools and equipment.” The home has 2,100 square feet of living space. The court pointed out that the Kreisches’home has a shingled roof, wood siding, and is constructed with a fully insulated wall frame using 2x6 dimension lumber. The court reasoned that the only material difference between the Kreisches’ home and allowable stick built homes was that the Kreisches’home was built elsewhere and moved onto its foundation rather than being built on top of the foundation. I agree.

At Article IV, USE RESTRICTIONS, Section 1, Residential Use, the Fox Farm covenants allow structures which are erected, “placed,” or permitted upon the subject real property. No mention was made of similar language in the covenants at issue in Newman, Toavs, or Timmerman. Clearly, if one may place a structure on its foundation, it cannot be said that it was not contemplated that structures might be moved either in whole or in part to their homesite for the completion of final construction. If nothing else, the use of the word “placed” creates an ambiguity which must be resolved in favor of the Kreisches.

As the District Court correctly ruled, the plaintiffs have not established a prima facie case that the Kreisches’ home would violate the covenants. I would affirm the decision of the District Court denying the request for a preliminary injunction.

JUSTICE GRAY and JUSTICE HUNT concur in the dissent of CHIEF JUSTICE TURNAGE.


author: JUSTICE LEAPHART

text:
    RAYMOND P. TIPP, THOMAS W. FRIZZELL and RICHARD R. BULEY, Plaintiffs and Appellants, v. DOUGLAS G. SKJELSET, Defendant and Respondent.
    No. 97-344.
    Submitted on Briefs October 10, 1997.
    Rehearing Denied December 4, 1997.
    Decided October 30, 1997.
    54 St.Rep. 1147.
    947 P.2d 480.
    285 Mont. 274.

      For Appellants: Richard R. Buley; Tipp & Buley, Missoula.
    For Respondent: John H. Gilliam; Skjelset & Gilliam, Missoula.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

The law firm of Tipp, Frizzell and Buley (TFB) appeals from the Findings of Fact, Conclusions of Law, Order and Judgment of the Fourth Judicial District Court, Missoula County, the Honorable John W. Larson presiding. We affirm the judgment of the District Court.

The following background is based upon the District Court’s findings of fact:

As of May 1979, Raymond Tipp (Tipp), personally, owned an undivided 44% interest in a contract to purchase the real estate located at 2200 Brooks Street, Missoula, Montana, known as the Guardian Building. In June of 1979, Doug Skjelset (Skjelset) became involved in the ownership when he, without any contribution from Tipp, provided a down payment of $19,000 so that he and Tipp could acquire the remaining 56% interest in the contract to purchase the real estate.

Following acquisition of 100% of the contract interest, Tipp and Skjelset formed a partnership which treated Tipp and Skjelset as equal partners for purposes of income and expenses related to the Guardian Building property. The remaining debt on the contract held by Tipp individually and the contract held by Tipp and Skjelset jointly was paid off on this 50/50 basis. Income, expenses, insurance and leases on the real estate were also divided equally.

This litigation began in 1989 when TFB filed a complaint alleging that Doug Skjelset, a former partner in the law firm, had breached an agreement between the parties as to the distribution of partnership assets upon dissolution. As the result of a mandatory settlement conference, a settlement agreement was reached. The District Court thereupon closed the file pending final execution of the settlement. When the parties subsequently disagreed as to the meaning of the agreement, TFB brought a motion to compel the enforcement of the settlement agreement and for appointment of a receiver.

The settlement agreement provided that Skjelset owed the sum of $30,000 to TFB. This amount was to be credited against the TFB purchase of Skjelset’s interest in the Guardian Building property. Before the agreement was performed, the building was damaged by fire in March of 1996. Subsequent to the fire, the parties agreed that as of March 18, 1996, the day before the fire, the value of the real estate was $325,000.

In the District Court, TFB contended, as it does on appeal, that since the 1979 deed to Tipp and Skjelset for the purchase of the 56% was in cotenancy, Skjelset has only a one-half interest in the 56%, or 28%; and that Tipp has a 72% interest (44% plus 28%). Skjelset contended that the real estate was owned by a partnership and that Skjelset’s interest should be based upon the parties’ relative capital accounts in the partnership. The court rejected both contentions and found that, although the parties’ interests had not, in fact, been transferred to a partnership, based upon the cotenancy deed and the practices and understanding of Tipp and Skjelset, Skjelset had a 50% interest in the real estate. The 56% contract interest purchased by Skjelset and Tipp in 1979 and Tipp’s 44% contract interest acquired prior to 1979 both had outstanding indebtedness which was paid off as of March 18, 1996 by Tipp and Skjelset on a 50/50 basis. As of March 18,1996, $8,399 was owed for real estate taxes, penalties and interest on the property in question. Skjelset’s share of these taxes, penalties and interest is $4,199.97.

Tipp raises the following issues on appeal:

1. Whether the District Court erred, as a matter of law, in determining that Skjelset owned a 50% interest in the real estate when the deeds indicate that, as a cotenant of a 56% interest, he only owned 28%.

2. Whether the District Court’s findings that Skjelset owned a 50% interest in the Guardian Building property are supported by substantial evidence.

Standard of Review

The standard of review of a district court’s findings of fact is whether they are clearly erroneous under the three-part test established in Interstate Production Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 322, 820 P.2d 1285, 1287. The test provides that:

(1) The Court will determine whether the findings are supported by substantial evidence;

(2) If the findings are supported by substantial evidence, the Court will determine if the trial court has misapprehended the evidence;

(3) If the findings are supported by substantial evidence and that evidence has not been misapprehended, this Court may still find that a finding is “clearly erroneous” when, although there is evidence to support it, a review of the record leaves the Court with the definite and firm conviction that a mistake has been committed.

The standard of review of a district court’s conclusion of law is whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

Discussion

1. Whether the District Court erred, as a matter of law, in determining that Skjelset owned a 50% interest in the real estate when the deeds indicate that, as a cotenant of a 56% interest, he only owned 28%.

Relying on the 1979 deed, TFB contends that Tipp and Skjelset purchased the 56% as cotenants and that there is a presumption that cotenants own equal percentages of the property, i.e., 28% each. Skjelset argues that the District Court properly allowed this presumption to be rebutted by parol evidence. Our recent decision in Matter of Estate of Dern Family Trust (1996), 279 Mont. 138, 928 P.2d 123, supports Skjelset’s position. In Dern Family Trust, 928 P.2d at 131, we held:

It is presumed that shares of cotenants are equal, whether they be tenants in common or joint tenants. [Citations omitted.] This presumption is not conclusive but is subject to rebuttal and may be rebutted by parol evidence.

We determined that the cotenancy status of the account did not dictate the manner of apportionment of the account.

Other states have applied the “equal share presumption rule” to tenancies in common. In D.M., the plaintiffs rebutted the general presumption of equal shares between tenants in common by demonstrating unequal contribution to equity in real property. There the court found that this evidence created a presumption that they intended to share property in proportion to their respective contributions and was enough to rebut the general presumption of equal shares. D.M. v. D.A. (Alaska 1994), 885 P.2d 94, 97-98. The court held that if the parties intend to hold a tenancy in common in a particular proportion or if an intent to determine proportion by a particular method can be discovered, this intent controls over the equal share presumption rule of cotenancy. D.M., 885 P.2d at 97.

Dern Family Trust, 928 P.2d at 131-32. In concluding, we held that the general rule of equal shares in cotenancy may be rebutted by evidence such as unequal contribution. Dern Family Trust, 928 P.2d at 132.

Consistent with our decision in Dern Family Trust, we hold that the District Court did not err as a matter of law in determining that the presumption of equal ownership in a cotenancy can be rebutted by parol evidence. We turn then to the question of whether, in the context of this case, that presumption was rebutted by the evidence presented.

2. Whether the District Court’s findings that Skjelset owned a 50% interest in the Guardian Building property are supported by substantial evidence.

The District Court, relying on the “way they managed the real estate, shared income, and paid off indebtedness,” determined that Tipp and Skjelset each had a 50% interest in the Guardian Building property. There is substantial evidence in the record to support this conclusion. It is undisputed that Tipp owned a 44% interest in the contract to purchase the property and that, as of 1979, there was still a considerable balance owing on his contract. In 1979, Skjelset provided all of the down payment required so that he and Tipp could acquire the remaining 56% on a contract which also carried an outstanding balance. Randle White, accountant for Tipp and Skjelset, testified that the “paid in” portion of Tipp’s 44% interest would approximately equal Skjelset’s cash contribution to acquisition of the 56%. The evidence also shows that Tipp and Skjelset established a joint bank account to receive rents and pay bills for the Guardian Building. Tipp did not receive 44% of the income from this account as his separate property. Rather, the entire income from rents went to retire the debt on the whole building; i.e., on the 56% acquired by Tipp and Skjelset as well as the 44% previously held by Tipp.

Substantial evidence supports the District Court’s conclusion that Tipp and Skjelset held the Guardian Building property on a 50/50 basis, that Skjelset’s 50% ownership interest in the real estate is $158,300.03 ($162,000 - $4,199.97), and that the net price to be paid by TFB to Skjelset, after deductions for settlement and payment of outstanding taxes, is $128,300.03 ($158,300.03 - $30,000). The District Court did not misapprehend the evidence, and we are not left with a firm conviction that a mistake has been committed. Accordingly, we hold that the findings of fact are not clearly erroneous. See DeSaye, 820 P.2d at 1287.

Finally, Skjelset argues that under Rule 32, M.RApp.P., he should be awarded his costs and attorney fees for defending a merit-less appeal. He contends that this appeal is a delay tactic consistent with the District Court’s finding that Tipp previously attempted to transfer a 72% interest in the real estate out of his name in order to defeat the court’s jurisdiction, which compelled the court to void those deeds and to monitor the refinancing of the property. Without condoning the attempted transfers by Tipp, we determine that the appeal is not frivolous and thus an award of fees and costs is not appropriate.

Affirmed.

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


author: JUSTICE NELSON JUSTICE REGNIER

text:
    MONTCO, a Montana general partnership, Plaintiff and Respondent, v. MARK A. SIMONICH, as Director of the MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY, sub nom., ARTHUR R. CLINCH, Commissioner of the DEPARTMENT OF STATE LANDS; THE MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY, sub nom., THE DEPARTMENT OF STATE LANDS; and THE STATE OF MONTANA, Defendants, v. NORTHERN PLAINS RESOURCE COUNCIL, NATIVE ACTION and THE NORTHERN CHEYENNE TRIBE, Intervenors and Appellants.
    No. 96-656.
    Heard August 26, 1997.
    Submitted August 26, 1997.
    Rehearing Denied December 11, 1997.
    Decided October 31, 1997.
    54 St.Rep. 1150.
    947 P.2d 1047.
    285 Mont. 280.

      For Appellant: Steven H. Chestnut (argued), Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, Washington (Northern Cheyenne Tribe); Joe Rodriguez, Lame Deer (Local Counsel for Native Action and Northern Cheyenne Tribe); Sara Johnson, Mullendore, Tawney & Watt, Missoula (Northern Plains Resource Council).
    For Respondent: Martha Sheehy (argued), Anderson & Liechty, Billings; Thomas E. Ebzery, Billings.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from a summary judgment by the Thirteenth Judicial District Court, Yellowstone County, which allowed Monteo to renew a mining permit and denied summary judgment to the intervenors, Northern Plains Resource Council, Native Action, and the Northern Cheyenne Tribe. The intervenors appeal. We reverse.

The decisive issue is whether Montco’s mining permit terminated because of Montco’s failure to begin mining operations, with the result that the permit could not be renewed.

Background

In 1984, the Montana Department of State Lands (DSL) issued a five-year surface mining permit to Monteo under the Montana Strip and Underground Mine Reclamation Act, §§ 82-4-201 to -254, MCA. The permit authorized Monteo to develop a surface coal mine south of Ashland, Montana, and just east of the Tongue River, the eastern boundary of the Northern Cheyenne Indian Reservation.

Monteo performed no site preparation, construction, or mining during the first three years of the permit period as required under both the statute and the permit, but it applied for and was granted a two-year extension of the deadline as allowed under § 82-4-221(1), MCA. During the first four years, the five-year permit was under challenge in administrative and judicial proceedings brought by the Northern Plains Resource Council, a nonprofit citizens’ organization of landowners near the proposed Monteo mine. By December 1988, those challenges were decided and rejected. Throughout that time, the permit and Montco’s right to conduct mining operations under it remained in full force and effect.

As the five-year permit period neared its end, Monteo still had not initiated any physical operations on the mine. The chief of DSL’s Coal and Uranium Bureau asked DSL’s chief legal counsel for an opinion on the interaction between the requirement that mining operations be initiated during the permit term and the renewability of the permit. Referring to the “due diligence requirements” of § 82-4-221(1), MCA, which direct that mining operations be commenced during the permit term, DSL Bureau Chief Lovelace asked whether a renewal application from Monteo would be processed. The legal opinion concluded that the Monteo permit should be renewed “upon a showing of the necessity for an extension of time to commence mining as required in ARM 26.4.406 [the regulation controlling discretionary extensions of the mining deadline] and upon following the procedures for renewal spelled out in ARM 26.4.410 [the regulation controlling permit renewals].”

Accordingly, DSL’s legal position was that to obtain a renewal, Monteo would also have to show that it qualified for an extension of the mining deadline. In December 1988, DSL’s Commissioner advised Monteo that if it applied for a renewal he would grant the application, because the permit had been the subject of administrative and judicial litigation for four of its five years and Monteo therefore had “good reason under a test of prudent business practices for not initiating mining.”

Before the end of the five-year permit term, Monteo applied for renewal. Failing through oversight to follow its own legal position that the renewal application must be processed parallel with an application for extension of the mining deadline, DSL simply granted a five-year renewal, tacitly moving the mining deadline to the end of the third year of the renewal term, eight years after the original permit was issued.

As the end of year eight approached, Monteo still had not begun any preparation, construction, or mining. It applied for another two-year extension of the mining deadline. DSL granted two short extensions and then the full requested extension through year ten, in 1994. Throughout the second five-year period, there were no formal administrative or judicial proceedings challenging the state mining permit or mining deadline extensions.

As 1994 drew to a close, Monteo still had not begun any physical operations. It applied for another five-year renewal. This time, DSL implemented its position that Monteo must also formally apply for an extension of the mining deadline. Under protest, Monteo applied for a three-year extension of the mining deadline to the end of year thirteen in 1997.

Intervenors Northern Cheyenne Tribe, Northern Plains Resource Council, and Native Action (a nonprofit organization on the Northern Cheyenne Reservation) each formally opposed the applications for renewal and extension. DSL held an informal conference on the applications and objections, and the Intervenors, Monteo, and others submitted oral and written comments. In December 1994, the Commissioner issued findings of fact and an order denying an extension of the mining deadline and discontinuing processing of the renewal application on the basis that denial of the extension rendered the renewal moot.

Monteo petitioned DSL to complete processing of its renewal application and to reconsider its denial of the mining deadline extension. It also filed the complaint in this action, which was stayed pending the administrative proceedings. In March 1995, DSL held a second informal conference, at which the intervenors presented oral testimony and written materials. After the conference, all parties submitted further written materials. In April 1995, the Commissioner issued a final decision superseding his decision of December 1994 and renewing the permit, but holding that renewal did not carry with it an automatic extension of the mining deadline. Reaffirming his prior decision, the Commissioner denied the mining deadline extension and held that the permit was therefore terminated.

Monteo then initiated a contested case proceeding within DSL concerning the Commissioner’s April 1995 decision. The Intervenors jointly filed a cross request for such a proceeding. All parties negotiated and approved a stipulation and order terminating the contested case proceeding by adopting the April 1995 decision of the Commissioner as DSL’s “final decision” on Montco’s applications for extension and renewal. This paved the way for adjudication of Montco’s and the Intervenors’ claims through this litigation.

Continuing this action in District Court, the Intervenors were granted leave to intervene and filed their joint answer in intervention. An agreed scheduling order was entered on the basis of the administrative record as submitted to the court, and the Intervenors, Monteo, and DSL each moved for summary judgment.

Each summary judgment motion was based entirely on the administrative record and on the pleadings filed; no affidavits or additional evidentiary materials were submitted in opposition to summary judgment and there was no contention that genuine issues of material fact existed. The Intervenors contended that, as a matter of law, Montco’s mining permit was not renewable for a third five-year term because it terminated for failure to commence mining operations by the extended mining deadline. They also argued that, should the court hold that the permit was renewable, renewal did not automatically carry with it an extension of the mining deadline and in connection with renewal, Monteo was obligated to apply for an extension of the mining deadline, the grant or denial of which was discretionary.

DSL’s summary judgment motion was premised on the permit being renewable for a third five-year term. Monteo asked the court to direct DSL to renew the permit, to declare that the renewal automatically carried with it the third year extension of the mining deadline, and to vacate and reverse DSL’s administrative decision which held to the contrary and terminated the permit.

After oral argument, the District Court granted Montco’s motion for summary judgment and denied the summary judgment motions of the Intervenors and DSL. The court vacated and reversed DSL’s administrative decisions and directed the Department of Environmental Quality to renew the mining permit. The court did not require an application for extension of the mining deadline in connection with the renewal. The Intervenors each separately appealed; DSL did not appeal. This Court ordered the appeals consolidated, and the Intervenors filed a consolidated brief.

Discussion

Did Montco’s mining permit terminate because of Montco’s failure to begin mining operations, with the result that the permit could not be renewed?

We review a district court’s grant of a motion for summary judgment de novo, applying the same criteria under Rule 56(c), M.R.Civ.R, as did the district court. Missoula Rural Fire Dist. v. City of Missoula (1997), [283 Mont. 113], 938 P.2d 1328, 1329. Under Rule 56(c), M.R.Civ.R, summary judgment shall be rendered if the documents on file with the court establish that there is no issue of material fact and that the moving party is entitled to judgment as a matter of law. Here, the material facts of the case are not in dispute. We review the court’s conclusions of law simply to determine whether the court’s interpretation of the law is correct. Matter of Estate of Dern Family Trust (1996), 279 Mont. 138, 144, 928 P.2d 123, 127.

The controlling statute is § 82-4-221(1), MCA (1993):

(1) An operator may not engage in strip or underground mining without having first obtained from the department a permit designating the area of land affected by the operation. The designation must include all lands reasonably anticipated to be mined or otherwise affected during the applicable 5-year period. The permit must authorize the operator to engage in strip or underground mining upon the area of land described in the application and designated in the permit for a period of 5 years from the date of its issuance. The permit is renewable upon each 5-year anniversary after issuance upon application to the department at least 120 but not more than 150 days prior to the renewal date so long as the operator is in compliance with the requirements of this part, the rules adopted to implement this part, and the reclamation plan provided for in 82-4-231 and agrees to comply with all applicable laws and rules in effect at the time of renewal. The renewal is further subject to the denial provisions of 82-4-227, 82-4-234, and 82-4-251. On application for renewal, the burden is on the opponents of renewal to demonstrate that the permit should not be renewed. A permit shall terminate if the permittee has not commenced strip- or underground-mining operations pursuant to the permit within 3 years of the issuance of the permit. However, the department may grant reasonable extensions of time upon a showing that the extensions are necessary by reason of litigation precluding the commencement or threatening substantial economic loss to the permittee or by reason of conditions beyond the control and without the fault or negligence of the permittee. With respect to coal to be mined for use in a synthetic fuel facility or specific major electric generating facility, the permittee is considered to have commenced strip- or underground-mining operations at the time the construction of the synthetic or generating facility is initiated.

In 1995, this subsection was amended to provide, in the third-from-last sentence, that a permit “must” terminate instead of “shall” terminate if mining operations were not timely commenced. Both “shall” and “must” are mandatory, rather than permissive. ISC Distributors, Inc. v. Trevor (1995), 273 Mont. 185, 201, 903 P.2d 170, 179. (Johnson, J., concurring). The 1995 amendment also extended the time for permit renewal from “at least 120 but not more than 150 days prior to the renewal date” to “at least 240 but not more than 300 days prior to the renewal date.” For ease of reference, we will refer to the 1993 version of the statute, which used “shall”.

In construing a statute, a court must reject a construction that would leave any part of the statutory language without effect— the court must give effect to all relevant provisions of the statute. Darby Spar, Ltd. v. Dept. of Revenue (1985), 217 Mont. 376, 379, 705 P.2d 111, 113. At the same time, a court must not insert omitted terms into a statute. Lodge Grass High School v. Hamilton (1994), 264 Mont. 290, 293, 871 P.2d 890, 892. In effectuating legislative intent, a court must first look to the plain meaning of the statute. Lodge Grass, 871 P.2d at 892. Finally, construction of a statute should not lead to absurd results if reasonable construction will avoid such results. Darby Spar, 705 P.2d at 113.

Monteo claims that a plain reading of § 82-4-221(1), MCA, indicates that the requirements for a permit renewal do not include as a prerequisite the procurement of an extension of time to commence mining. To the contrary, a plain reading of the statute demands the opposite result.

Under § 82-4-221(1), MCA, a mining permit is issued for five years, and it terminates at the end of five years unless properly renewed. Once the permit is issued, mining must be commenced within three years. If mining is not commenced within three years, then the time to commence mining can be reasonably extended for up to two years if the permittee can demonstrate that mining was not commenced because of litigation precluding commencement or threatening economic loss to the permittee, or reasons beyond the permittee’s control and without fault or negligence. Under the clear and unambiguous provisions of the statute, if mining is not commenced within the extended two-year period, then the permit terminates.

While § 82-4-221(1), MCA, refers in several of its provisions to the “permittee,” in providing for renewal, the statute instead states that renewal may be sought by “the operator.” “Operator” is defined under § 82-4-203(21), MCA, as one “engaged in” mining. A permittee who has never commenced mining is not an “operator” engaged in mining.

If mining is commenced within the initial three-year period or within an extended two-year period, then the permit can be renewed for an additional five years, so long as the operator is in compliance with the requirements of part 4 of Title 82, the rules, and the reclamation plan, and agrees to comply with all applicable laws and rules in effect at the time of renewal. Once the permit expires within the initial three-year period or the extended two-year period, then, as a matter of law and under the statute’s terms, the permit cannot be renewed, because the operator would not be in compliance with the requirements of “this part,” i.e., the requirement that there be mining under the permit within the time provided. The mining condition is embodied in the renewal sentence of § 82-4-221(1), MCA, and meeting the condition of mining is a precondition to renewal. The sentence on renewability does not, as the District Court incorrectly held, trump all other statutory duties and conditions.

Similarly, ARM 26.4.410 (now transferred to ARM 17.24.416), which establishes regulatory factors for renewal, cannot provide for renewal in derogation of the statute. The statute conditions the permit’s life on the initiation of mining operations by the mining deadline, which deadline may be extended in three years, to the end of the permit’s five years. Failure to meet the deadline is a violation of both a condition and a term of the permit.

The District Court’s decision eviscerates the mining deadline in § 82-4-221(1), MCA, in cases in which the deadline is extended to the end of the permit term. Under the District Court’s reasoning, when the deadline is moved to the last day of the permit term, it becomes a dead letter, and extension does not reset the deadline — it eliminates it. The court’s decision makes the “shall terminate” provision in the statute surplusage in any case in which the permit, through mining deadline extensions, remains extant after the five-year term without mining. Under the District Court’s rationale, and notwithstanding the permittee/operator distinction discussed above, if a permittee chooses not to request renewal, the permit will terminate because the permittee has elected to relinquish it. Alternatively, under the court’s rationale, if the permittee requests renewal, there will be a renewal accompanied by an automatic three-year extension of the mining deadline. This renders meaningless the “shall terminate” language which follows the renewal provision in the statute. The court’s decision is also at odds with the formulation of the Montana Strip and Underground Mine Reclamation Act, which seeks an orderly development of coal resources while protecting a wide range of other interests and values. See § 82-4-202, MCA.

To summarize the plain language of § 82-4-221(1), MCA, on timely application and so long as the operator is in compliance with the preconditions set out in this subsection, an expired permit in good standing can be renewed, while a permit which is legally terminated because of failure to meet the terms of the permit cannot be renewed. Failure to meet the terms of the permit includes failure to commence mining within the original or extended deadline. Under those circumstances, the permitting process must start over.

We therefore reverse the District Court’s decision and order that summary judgment be entered in favor of the Intervenors.

JUSTICES TRIEWEILER, LEAPHART and HUNT concur.

JUSTICE REGNIER

specially concurring.

I agree with the majority’s conclusion that the District Court’s decision essentially eliminates the requirement that an entity begin mining, making the “shall terminate” provision in § 82-4-221(1), MCA, surplusage. Under the District Court’s rationale, if an operator requests renewal, it will receive that renewal, along with an automatic three-year extension of its mining deadline, thus effectively eliminating the mandate that a permit terminate unless the operator obtains an extension. In my view, the statutory mandate is not, however, as the majority concludes, that a permit terminate at the conclusion of the five-year permit term if mining has not begun, but rather that the permit will terminate if mining has not begem and an extension of the mining deadline has not been secured.

In examining the provisions of § 82-4-221(1), MCA, the majority concludes that if a permittee does not commence mining within three years from the date its permit was issued, “the time to commence mining can be reasonably extended for up to two years if the permit-tee” meets certain statutory criteria. Thus, the majority reasons, “[u]nder the clear and unambiguous provisions of the statute, if mining is not commenced within the extended two-year period, then the permit terminates.” Although the majority acknowledges that the mining deadline may be extended “for up to two years,” the statute itself places no such restriction upon the duration of permissible extensions. Rather, with respect to mining deadline extensions, § 82-4-221(1), MCA, provides specifically that:

[T]he department may grant reasonable extensions of time upon a showing that the extensions are necessary by reason of litigation precluding the commencement or threatening substantial economic loss to the permittee or by reason of conditions beyond the control and without the fault or negligence of the permittee.

This provision in § 82-4-221(1), MCA, specifically authorizes the department to grant more than one extension of time so long as the applicant meets certain criteria. Nowhere does the statute limit extensions to the original five-year permit term.

The majority observes that the “mining condition is embodied in the renewal sentence of § 82-4-221(1), MCA, and meeting the condition of mining is a precondition to renewal.” Although the statute provides that the permit “shall terminate” if mining has not commenced within three years of issuance of the permit, the subsequent sentence explicitly permits the department to extend that deadline. Assuming an entity obtains just such an extension, it is in compliance with the requirements of § 82-4-221(1), MCA. Nowhere does the statute state that mining is a precondition to renewal.

Accordingly, I believe the correct interpretation of § 82-4-221(1), MCA, is not to imply the requirement that mining begin within the initial five-year permit period, but to require, as does the statute, that an operator obtain an extension in the event it has not begun to mine within that period. Therefore, an operator who seeks a renewal must also apply for and obtain a second extension of the mining deadline. I would thus reverse the District Court to the extent that it held a renewal carries with it an automatic extension of the mining deadline.

Based on the foregoing, I concur with the majority’s decision to reverse the District Court, but I would do so on the alternative basis that the court erred in concluding that a renewal obtained pursuant to § 82-4-221(1), MCA, carries with it an automatic extension of the mining deadline. Monteo was indeed entitled to renew its permit, but it failed to successfully obtain another extension of the mining deadline as required. When Monteo failed to successfully obtain an extension of its mining deadline, its renewed permit became meaningless.

Because the District Court held Monteo was not required to obtain an extension of its mining deadline, it thus did not review the DSL’s decision denying Montco’s application for an extension. Accordingly, I would remand this case to the District Court for a determination as to whether the DSL erred in denying Montco’s application for an extension of its mining deadline.

CHIEF JUSTICE TURNAGE and JUSTICE GRAY join in the foregoing concurring opinion.