author: CHIEF JUSTICE TURNAGE

text:
    BENJAMIN H. GERBER, Plaintiff and Appellant, v. COMMISSIONER OF INSURANCE OF THE STATE OF MONTANA, Richard E. Bach and Dave Drynan, Defendants and Respondents.
    No. 89-474.
    Submitted on Briefs Dec. 14, 1989.
    Decided Feb. 15, 1990.
    786 P.2d 1199.

      George T. Radovich, Radovich Law Firm, Billings, for plaintiff and appellant.
    Brad H. Anderson, Moulton, Bellingham, Longo & Mather, Billings, for defendants and respondents.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Plaintiff Benjamin H. Gerber appeals the order of the District Court of the Thirteenth Judicial District, Yellowstone County, dismissing his tort action against the Montana Commissioner of Insurance and her employees Richard E. Bach and Dave Drynan. We affirm.

The appellant raises the single issue of whether the District Court erred in holding that quasi-judicial immunity barred the appellant’s tort action against respondents.

On October 14, 1983, appellant Gerber borrowed $10,000 from Rimrock Bank of Billings, Montana, and applied for the attendant credit-life-disability insurance from Acceleration Life Insurance Company. That same day, the bank’s loan officer informed Gerber that the insurer would not accept coverage. Gerber filed two complaints with the Commissioner of Insurance arguing that the binder given to him by the loan officer created a contract requiring the insurer to compensate him for an unspecified, accidental injury. Following both complaints, insurance commission employees issued Gerber written opinions which correctly stated that under § 33-21-203(1), MCA, insurance policies do not become effective until the insurer accepts the risk of coverage.

Gerber then filed a tort action against the Insurance Commissioner, and against commission employees Richard Bach and Dave Drynan claiming damages for bad faith, legal malpractice, negligent misrepresentation, and intentional or negligent infliction of emotional distress. The complaint alleged that the Commissioner failed to hold a hearing as required by § 33-1-701(2), MCA, and that Bach and Drynan verbally misrepresented to Gerber that he was entitled to recover under the insurance binders. The District Court granted the defendants’ motion to dismiss under Rule 12(b)(6), M.R.Civ.P., for failure to state a claim upon which relief can be granted. Gerber now appeals that dismissal.

The decisional standards in this case are not at issue. The District Court may dismiss a claim on the pleadings when no set of facts would support the claim. Wheeler v. Moe (1973), 163 Mont. 154, 161, 515 P.2d 679, 683. Our standard in reviewing motions to dismiss is de novo. Koppen v. Board of Medical Examiners (Mont. 1988), [233 Mont. 214,] 759 P.2d 173, 175, 45 St.Rep. 1433, 1436. We agree with the District Court that the only issue in this case is a question of law and that the law bars the appellant’s claim.

With exceptions not relevant to this case, § 2-9-305(5), MCA, grants absolute immunity to state employees acting within the scope of their employment. The appellant offers no allegation or argument that respondents Bach and Drynan acted outside of the scope of their employment. Therefore, the District Court properly dismissed the claim against them.

We also affirm the District Court’s dismissal of the claims against the Insurance Commissioner. Gerber’s District Court complaint alleges that the Insurance Commissioner failed to investigate his grievance against the insurer, misinformed him of his rights, and refused to enforce his alleged insurance contracts. In Koppen v. Board of Medical Examiners this Court held that the common law doctrine of quasi-judicial- immunity protects executive agencies when carrying out discretionary functions. Koppen, 759 P.2d at 176, 45 St.Rep. at 1438. The investigation of consumer complaints such as Gerber’s and the resulting action, if any, fall within the Commissioner’s expressly provided, discretionary powers.

“The commissioner may conduct such examinations and investigations ... as [she] may deem proper . . . .”

Section 33-1-311(3), MCA. (Emphasis added.)

“The commissioner may hold hearings for any purpose within the scope of this code deemed by [her] to be necessary.”

Section 33-1-701(1), MCA. (Emphasis added.)

“The commissioner may, after having conducted a hearing pursuant to 33-1-701, impose a fine . . .”

Section 33-1-317, MCA. (Emphasis added.)

“Whenever it appears to the commissioner that a person has engaged in or is about to engage in an act or practice constituting a violation of [this act, she] may . . .issue an order directing the person to cease and desist. . . [or] bring an action in a court of competent jurisdiction to enjoin such acts or practices ...”

Section 33-1-318, MCA. (Emphasis added.) As a discretionary function, the Insurance Commissioner’s conduct of an investigation based on a consumer’s complaint against an insurer is protected by quasi-judicial immunity.

Gerber argues that, nonetheless, the Commissioner is not immune from suit based on her failure to hold a hearing because the hearing is not discretionary. He asserts that on filing of his complaint against the insurer, the Commissioner was statutorily required to convene a hearing on the issue and failed to do so. The section cited by Gerber states in pertinent part:

“The commissioner shall hold a hearing . . . upon written demand therefor by a person aggrieved by any act, threatened act, or failure of the commissioner to act or by any report, rule, or order of the commissioner . . . [S]uch hearing shall be held within 30 days after receipt by the commissioner of demand therefor.”

Section 33-1-701(2), MCA. (Emphasis added.)

The appellant misconstrues this section. Section 33-1-701(2), MCA, by its plain language, applies only to grievances arising from the actions of the Insurance Commissioner. It does not require the Commissioner to hold a hearing on consumer complaints against an insurer.

Even if Gerber had demanded a hearing on the actions of the Commissioner, the effort would have been futile. Gerber’s grievance is with the Commissioner’s investigation and action on his complaint. As noted above, those functions are protected by quasi-judicial immunity.

Gerber’s argument is analogous to claiming that a prosecutor must prosecute every criminal complaint received. Like the prosecutor, the Commissioner has the discretion to investigate and determine whether further action is warranted. The Commissioner is not required to hold a purely ritualistic hearing on every groundless complaint.

Affirmed.

JUSTICES HARRISON, HUNT, WEBER and McDONOUGH concur.


source: Caselaw Access Project

author: JUSTICE BARZ

license: Public Domain

text:
    MARK C. BALDWIN, Claimant and Appellant, v. ORIENT EXPRESS RESTAURANT, Employer, and State Compensation Insurance Fund, Defendant and Respondent.
    No. 89-457.
    Submitted on Briefs March 1, 1990.
    Decided April 26, 1990.
    791 P.2d 49.

      James C. Bartlett, Hash, O’Brien & Bartlett, Kalispell, for claimant and appellant.
    Oliver H. Goe, Helena, for defendant and respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

Mark Baldwin appeals from the judgment of the Workers’ Compensation Court denying him retroactive reinstatement of temporary total disability benefits; denying him an increase in award for unreasonable delay or refusal to pay; and denying his request for attorney’s fees and costs. We affirm.

Claimant was thirty-four years old at the time of the hearing. In 1984, while employed as a cook at the Orient Express Restaurant in Flathead County, claimant lifted a bucket of crabs weighing approximately forty pounds. As he twisted to kick the door open, claimant felt his back wrench. Claimant felt pain immediately in his back and by the following morning also experienced numbness in his legs. The Workers’ Compensation Court found the claimant suffered from right-sided sciatica and low back pain stemming from a disc protrusion prominent to the right side, at the L5-S1 level. Based on evidence given by claimant’s treating physician, neurologist Dr. Gary Cooney, and claimant’s chiropractor, Dr. John Francis, the Workers’ Compensation Court concluded claimant had reached maximum medical healing.

The State Fund gave claimant fourteen days notice of termination of his temporary total disability benefits by letter dated October 19, 1988. After investigation, the State Fund terminated claimant’s benefits based on his $100 per month earnings as treasurer/bookkeeper for Kokanee Construction; his employment for a one month period from June 15, 1985, to July 15, 1985, at Touch America, Inc; and newspaper accounts of claimant’s self-employment venture growing marijuana. Claimant filed an appeal of his conviction for criminal possession of dangerous drugs on February .28, 1989. We have since affirmed claimant’s conviction. State v. Baldwin (Mont. 1990), [242 Mont. 176,] 789 P.2d 1215, 47 St.Rep. 614.

Claimant’s petition was heard before the Workers’ Compensation Court on February 22 and 23, 1989. The court entered its findings of fact, conclusions of law and judgment on June 30, 1989. In its findings, based “[u]pon observation of the claimant at the time of trial and a review of the entire record, the [c]ourt [found] claimant’s credibility [was] questionable.” The court further determined claimant was not entitled to reinstatement of temporary total disability benefits, attorney’s fees, costs or penalty. Furthermore, the court held the State Fund was not entitled to reimbursement of benefits previously paid.

Claimant raises two issues on appeal.

1. Did the lower court err by denying claimant’s petition for retroactive temporary total disability benefits?

2. Was claimant entitled to attorney’s fees, costs and an increase in award for unreasonable delay or refusal to pay?

The State Fund urges this Court on appeal to reverse the Workers’ Compensation Court’s refusal to order claimant to reimburse it for benefits paid prior to termination.

We will not reverse the ruling of the Workers’ Compensation Court absent a determination that its judgment lacks substantial credible supporting evidence. O’Brien v. [Central Feeds] Guaranty Fund Services (Mont. 1990), [241 Mont. 267,] 786 P.2d 1169, 1172, 47 St.Rep. 251, 254. We need not consider whether substantial credible evidence supports contrary findings. O’Brien, at 1172.

Temporary total disability on the date of claimant’s injury was defined as:

“[A] condition resulting from an injury as defined in this chapter that results in total loss of wages and exists until the injured worker is as far restored as the permanent character of the injuries will permit.”

Section 39-71-116(19), MCA (1983).

Claimant bears the burden of satisfying a two prong test: (1) injury resulting in a total loss of wages; (2) less than maximum medical healing. Claimant failed to meet that burden in the instant case. Both Dr. Cooney and Dr. Francis testified claimant had reached maximum medical healing prior to termination of his benefits on November 3, 1988. Claimant himself testified his condition had been stable for quite some time. Claimant offered no evidence indicating the healing process was incomplete. His arguments otherwise are not persuasive.

Although claimant had training, expertise and experience in a variety of areas, he applied for only one job in the approximately four years between commencement of benefits and termination. Claimant had owned and operated several businesses, had training and experience in hotel/motel management and operation and had performed bookkeeping and clerical duties in previous employment. Vocational rehabilitation counselor Randy Kenyon characterized claimant’s motivation to return to work as “reasonable.” He emphasized claimant’s commitment to self-employment despite numerous failures in such ventures prior to claimant’s injury. Furthermore, claimant was convicted of illegal possession of dangerous drugs for his operation of a sophisticated marijuana greenhouse requiring significant care and upkeep. The lower court had sufficient credible evidence upon which to base its finding that claimant’s loss of wages did not result from his injury. The Workers’ Compensation Court correctly concluded claimant was not entitled to retroactive or continuing temporary total disability benefits.

Claimant on appeal asserts his right to continuing temporary total disability benefits pending a period of retraining. Because claimant raises this issue for the first time on appeal, we decline to address the propriety of an award of temporary total disability benefits pending a period of retraining. Ahmann v. American Federal Savings & Loan Ass’n (1988), 235 Mont. 184, 195, 766 P.2d 853, 860.

Section 39-71-611, MCA (1983), provides that:

“In the event an insurer denies liability for a claim for compensation or terminates compensation benefits and the claim is later adjudged compensable by the workers’ compensation judge or on appeal, the insurer shall pay reasonable costs and attorneys’ fees as established by the workers’ compensation judge.”

Furthermore, § 39-71-2907, MCA (1983), states:

“When payment of compensation has been unreasonably delayed or refused by an insurer, either prior or subsequent to the issuance of an order by the workers’ compensation judge granting a claimant compensation benefits, the full amount of the compensation benefits due a claimant, between the time compensation benefits were delayed or refused and the date of the order granting a claimant compensation benefits, may be increased by the workers’ compensation judge by 20%. The question of unreasonable delay or refusal shall be determined by the workers’ compensation judge, and such a finding constitutes good cause to rescind, alter, or amend any order, decision, or award previously made in the cause for the purpose of making the increase provided herein.”

In this case the Workers’ Compensation Court properly held that claimant was not entitled to temporary total disability benefits. Therefore, the State Fund did not unreasonably delay or refuse payment of compensation. The Workers’ Compensation Court did not err by denying claimant recovery of attorney’s fees, costs and penalty.

The State Fund contends the Workers’ Compensation Court erroneously refused to compel claimant to reimburse it for benefits previously paid. The State Fund did not file a cross-appeal on this issue, however. Although Rule 14, M.R.App.P. permits this Court to consider all possible errors arising in the lower court, the respondent must file a cross-appeal when seeking review of issues not raised by appellant. Mydlarz v. Palmer/Duncan Construction Co. (1984), 209 Mont. 325, 334, 682 P.2d 695, 700. This construction of Rule 14, M.R.App.P. is applicable to appeals from judgments of the Workers’ Compensation Court pursuant to § 39-71-2904, MCA (1983). That section provides:

“[A]n appeal from a final decision of the workers’ compensation judge shall be filed directly with the supreme court of Montana in the manner provided by law for appeals from the district court in civil cases.”

We therefore find the issue of reimbursement by the claimant is not properly before this Court and do not rule on the same.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, Mc-DONOUGH and HUNT concur.


author: JUSTICE HUNT

text:
    In re the MARRIAGE OF JEFFREY J. SMITH, Petitioner and Respondent, and KATHLEEN FOLEY, Respondent and Appellant.
    No. 89-536.
    Submitted on Briefs March 1, 1990.
    Decided April 26, 1990.
    Rehearing Denied May 30, 1990.
    791 P.2d 51.
    Michael Sol, Sol & Wolfe, Missoula, for respondent-appellant.
    Thomas W. Trigg, Missoula, for petitioner-respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

The mother, Kathleen Foley, appeals the memorandum and order of the District Court, Fourth Judicial District, County of Missoula, which denied her additional visitation rights. We affirm.

The sole issue on appeal is whether the District Court abused its discretion in refusing to modify its prior rulings to allow the mother to have visitation with the children when the father was not at his home and only the father’s present wife was there.

This matter has been before this Court in In re Marriage of Smith, 232 Mont. 527, 757 P.2d 784, (1988), where the mother, as the appellant, asked this Court to find that the District Court abused its discretion by awarding superior visitation rights to the father. The order of the District Court awarded the parents joint custody of both children with the father serving as primary residential parent. Mother was granted custody of the children two or three weekends per month, Thanksgiving, Easter, summers, and part of Christmas vacations. The mother was to have liberal visitation when the children were in the father’s custody and the father was unavailable. The mother was granted this visitation time rather than placing the children in the care of “non-family members.” The mother asked the District Court for a clarification of the term “non-family members” and the court stated that the father’s then girlfriend, Shaun Gant, was a family member.

We affirmed the ruling of the District Court and held that there was no error in the court’s judgment. Specifically, we held that the District Court’s conclusion Number 19 did not confer superior visitation rights to Shaun Gant. Smith, 757 P.2d at 786.

Subsequent to our opinion, the father married Shaun Gant. Now, when the children are staying at his residence and he is at work, his wife is present. It is during this period of time when the father is at work and the children are being cared for by his wife that the mother seeks to have additional visitation of the children.

The mother recently petitioned the District Court for further clarification of visitation. A hearing was held and the court made an order which reads as follows:

“In order to make it perfectly clear what was intended by the original Order, Respondent’s [mother] visitation shall be that visitation set out in Conclusions of Law 17 (first, third and fifth weekends of each month), Conclusions of Law 18 [summer visitation], Conclusions of Law 21 (holidays), and those periods of time when all four of the following conditions exist at the same time:

“1. Father is not home,

“2. Father’s wife is not home,

“3. Mother is available, and

“4. It is reasonable under the circumstances.”

The effect of this order was to deny the mother a modification of the existing visitation rights. It is from this order that the mother appeals.

We have examined the record and find that the District Court did not abuse its discretion in refusing to modify visitation. “The court may modify an order granting or denying visitation rights whenever modification would serve the best interest of the child.” Section 40-4-217, MCA. The District Court has examined the children and heard the testimony of the parties. There is no evidence to support the contention that any modification would be in the best interest of the children. Further, the District Court’s current order, which did not amend the original conclusion number 19, does not confer superior visitation rights to the father’s wife. The children are in the custody of their father during the subject time periods. The mother retains liberal visitation rights during this time. The mother was never granted “visitation” other than those periods of time described above. The father has allowed the mother visitation rights as provided in the order and has not denied her any privileges or visitation rights with the children that were not reasonable under all of the circumstances.

The judgment of the District Court is affirmed.

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


author: JUSTICE McDONOUGH

text:
    In re the MATTER OF H.F.
    No. 89-554.
    Submitted on Briefs March 22, 1990.
    Decided May 1, 1990.
    791 P.2d 53.
    Amy Guth, Libby, for appellant.
    Marc Racicot, Atty. Gen., James Yellowtail, Asst. Atty. Gen., Scott Spencer, Lincoln County Atty., for respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

The original opinion in this cause was dated April 10, 1990, and filed with the Clerk of the Supreme Court on that date. We have modified that original opinion. Our original opinion in this cause dated April 10, 1990 is hereby withdrawn.

This is an appeal from an order of the Youth Court of the Nineteenth Judicial District, Lincoln County, finding the appellant H.F., a delinquent youth and committing her to the custody of the Department of Family Services until she attains the age of nineteen. The Youth Court further ordered that H.F. be placed in a secure facility such as that afforded by Mountain View School for Girls. We affirm in part and reverse in part.

The issues on appeal are:

1. Did the Youth Court properly commit H.F. to the Department of Family Services?

2. Did the Youth Court err in ordering that H.F. be placed in a Youth Correctional Facility?

On July 7, 1989, H.F.’s mother filed a complaint charging H.F. with ungovernable behavior. In the complaint, H.F.’s mother alleged that H.F. abused drugs and alcohol, had run away on several occasions and had used a family vehicle without permission. On July 11, 1989, H.F. entered into a consent agreement, in which she agreed to abide by 13 separate rules of probation until November 11, 1989.

Following the execution of this agreement, H.F. violated several of its conditions. As a result, she was charged with being a delinquent youth, and was committed to Mountain View School, a Youth Correctional Facility, for a 45 day evaluation. Following this 45 day evaluation, the Youth Court scheduled a dispositional hearing in order to determine what course of action should be taken to help H.F. overcome her problems.

After H.F. completed the evaluation she returned to her parents’ home. Unfortunately, during the interval between her evaluation and the scheduled dispositional hearing, H.F. got into trouble by abusing alcohol and disobeying her parents. This course of conduct led her parents to report that H.F. was “totally out of control.”

On October 25, 1989, the dispositional hearing was held and H.F. was adjudicated a delinquent youth. As a result she was committed to the custody of the Department of Family Services until age 19. The order of commitment specified that H.F. “shall be placed in a secure facility such as that afforded by Mountain View School for Girls.” The net effect of that order was to commit the youth to the Mountain View School For Girls, the only female youth correctional facility. This appeal followed.

Section 41-5-103(13)(b), MCA, defines a delinquent youth as a youth

“who, having been placed on probation as a delinquent youth or a youth in need of supervision, violates any condition of [her] probation.”

On July 11, 1989, H.F. was placed on probation after entering into a consent adjustment without petition. Further, it is undisputed that H.F. violated the terms of her probation by failing to report to her probation officer, being disobedient to her parents and returning home past curfew. Therefore, in light of § 41-5-103(13)(b), MCA, H.F was properly adjudicated a delinquent youth.

Section 41-5-523(1), MCA, allows the Youth Court to commit a delinquent youth to the custody of the Department of Family Services if it finds that the youth is in need of placement in other than the youth’s own home. After commitment, the Department must determine the appropriate placement for the youth. The Department’s authority as to placement in the matter is not an issue on appeal.

In order for the court to commit a youth to a youth correctional facility the court must determine that the youth is a serious juvenile offender and that such placement is necessary for the protection of the public. Section 41-5-523(1) (b) (ii), MCA. A serious juvenile offender is defined as:

“a youth who has committed an offense against the person, an offense against property, or an offense involving dangerous drugs which would be considered a felony offense if committed by an adult.” Section 41-5-103(24).

The Youth Court in this case did not find that H.F. was a serious juvenile offender and the initial violation or violations of her conditions of probation were not acts to bring her within the definition of a serious juvenile offender. The court therefore was without authority to commit H.F. to a youth correctional facility.

We hold that the Youth Court properly found H.F. was a delinquent youth and that she was properly committed to the custody of the Department of Family Services. However, we reverse that portion of the Youth Court’s order, which mandated that H.F. be placed in a secure facility such as Mountain View School for Girls.

Affirmed in part; reversed in part.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ALAN BERRY HENDERSON, Defendant and Appellant.
    No. 89-465.
    Submitted on Briefs April 5, 1990.
    Decided May 1, 1990.
    791 P.2d 442.
    Billy B. Miller, Great Falls, for defendant and appellant.
    Marc Racicot, Atty. Gen., Patricia Powell, Asst. Atty. Gen., Helena, Patrick Paul, Cascade County Atty., Tammy Plubell, Deputy, Great Falls, for plaintiff and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

On May 2, 1989, a jury empaneled in the District Court of the Eighth Judicial District, Cascade County, found the defendant and appellant, Alan B. Henderson, guilty of the charge of sexual assault, a felony, in violation of § 45-5-502, MCA. The District Court sentenced the defendant to the Montana State Prison for a period of twenty years. The defendant was designated a “non-dangerous” offender. Ten years of the sentence were suspended provided that the defendant follow certain conditions prescribed by the Court. The defendant was given credit for time served. The defendant appeals his conviction. We affirm.

The sole issue presented on appeal is whether the defendant was denied his constitutional right to effective assistance of counsel.

In the early evening of May 1, 1988, Susan Santiago took her two children, Anthony and Aaron, to the home of Annette Daniels, the defendant’s sister. At the time Anthony was six years old and Aaron was nineteen months old. Annette’s two children, Pierre Poitra, age 13, and Daniel Henderson, age 14, were to babysit the Santiago children that evening. Annette and her boyfriend, Will, were not home that evening.

It is unclear from the testimony of the witnesses what exactly happened that evening. However, the following day, one of the babysitters, Pierre, approached Susan and asked her if Anthony had told her anything. After discussing the matter with Pierre, Susan called the Great Falls Police Department and then asked her son, Anthony, what had happened at the Daniels’ home the prior evening.

Anthony told Susan that while he was at the Daniels’ home, the uncle of Pierre and Daniel, the defendant, had visited. While there, the defendant allegedly had taken Anthony down into the basement of the home where he forced Anthony to perform oral sex.

At trial, Anthony took the stand and testified as to the defendant’s alleged activities. Anthony testified that the defendant stopped at the Daniels’ home that evening. While the defendant, Anthony, Pierre and Aaron were watching television, the defendant asked Anthony to accompany him to a bedroom. In that bedroom, the defendant and Anthony looked at “dirty or nasty” magazines. After a while, the defendant asked Anthony to accompany him into the basement. In the basement Anthony testified that the defendant pulled down Anthony’s pants and did the same to his own. The defendant then forced Anthony to perform oral sex. Anthony testified that after the alleged incident the defendant told Anthony to say that they had just gone for a walk around the block. The defendant and Anthony then left through a back door and reentered the home through the front door.

Pierre testified that most of the evening was spent watching television in the living room. He also testified that the defendant had stopped by the home that evening but was never alone with Anthony.

Daniel testified that most of the evening was spent watching television in the living room. He also testified that the defendant stopped by that evening but was only alone with Anthony for approximately five minutes. During these five minutes the defendant and Anthony left together 'through the front door.

The defendant took the stand on his behalf and testified that he was not at the home of Annette Daniels that evening and, therefore, could not have sexually molested Anthony. He testified that the entire evening he was drinking at the home of another sister, Silvia Gardipee. His whereabouts that evening was supported by Silvia’s testimony anddhe testimony of Annette Daniels, who was allegedly at Silvia’s home that evening as well.

On May 1, 1988, after listening to all of the testimony, the jury convicted the defendant of sexual assault.

The only issue on appeal is whether the defendant’s constitutional right to effective assistance of counsel was violated. The defendant argues that his counsel did not protect his constitutional right by failing to pursue Pierre’s testimony that defendant was never alone with Anthony the evening of May 1, 1988. However, the defendant has not shown that, in light of all the facts of this case, the failure by counsel to pursue this testimony was prejudicial to his defense, thereby violating his constitutional right.

A defendant is guaranteed the right to effective assistance of counsel by the constitutions of both thé United States and Montana. U.S. Cont. Amend. VI; Mont. Const. Art. II, § 24 (1972). The case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) established the federal standard against which the protection of this right is evaluated. We adopted this federal standard in the case of State v. Hurlbert, 232 Mont.115, 756 P.2d 1110 (1988). The standard adopted in Hurlbert is whether “counsel’s performance was deficient and . . . that the deficient performance prejudiced the defense.” Hurlbert, 232 Mont. at 119, 756 P.2d at 1112-1113, citing Strickland. In State v. Coates, [242 Mont. 331,] 786 P.2d 1182, 47 St.Rep. 328 (Mont. 1990), this Court discussed how to implement this standard:

“First ... to assess deficient performance, this Court employs the “ ‘reasonably affective assistance” test of whether a defendant’s counsel acted within the range of competence demanded of attorneys in criminal cases.’ (Citations omitted.) Second, counsel’s deficient performance must have so prejudiced the defendant as to deprive the defendant of a fair trial. (Citations omitted.) The standard for evaluating prejudice is whether a reasonable probability exists that but for counsel’s deficient performance, the trial’s outcome would have been different.”

Coates, 786 P.2d at 1185, 47 St.Rep. 817 at 332.

Generally, trial tactics are not sufficient to show deficient performance. Hurlbert, 232 Mont. at 120, 756 P.2d at 1113. In this case, it is evident from the record that defense counsel made a tactical decision to pursue the alibi defense and to limit discussion of Pierre’s testimony to her closing.

Defense counsel called Annette Daniels, Silvia Gardipee, and the defendant to support the alibi defense that the defendant was not at the Daniels’ home the evening of May 1, 1988. Each witness was questioned in depth. Later in the trial, the conflicting testimony of the two babysitters, Pierre and Daniel, was argued by defense counsel in her closing. Defense counsel chose, as a tactical matter, to bring these conflicts to the awareness of the jury in her closing argument rather than through cross-examination. In her closing, defense counsel argued that the jury must consider Pierre’s testimony that the defendant and Anthony were never alone together. Defense counsel argued:

“The state would have you believe parts of their witnesses’ testimony and not others, such as, you know, the state’s witness, Pierre Poitra. He was not absolutely sure of the date. He was sure that Alan [defendant] was not in the bedroom with Anthony. And you will recall that Anthony said he was in the bedroom with this person looking at dirty magazines before he took him in the basement . . . . While Pierre is related to Daniel Henderson, Pierre has nothing to gain or lose from the outcome of this case. He indicated to you that he didn’t believe his brother Daniel was there at the time. Daniel also indicated to you he was not real sure of the date. He was positive that his uncle did not go in the bedroom with Anthony Santiago. And he also indicated that his uncle had been there briefly. (Emphasis added.)”

Further, defendant has not shown that defense counsel’s failure to question Pierre prejudiced his defense. In Coates, as in this case, the defendant argued that defense counsel failed to properly question witnesses. This court rejected Coates’ argument by stating:

“Although appellant argues that Mr. Goldman should have asked certain questions, appellant again fails to establish exactly how those questions would have materially assisted his defense.”

Coates, 786 P.2d at 1186, 47 St.Rep. 817 at 334.

In this case, defendant has also failed to show how the questions he feels should have been asked by defense counsel would have materially assisted his case. Defense counsel actively pursued the alibi defense. Defense counsel referred to the testimony of the two babysitters in her closing and emphasized that, although both babysitters stated that the defendant was at the Daniels’ home the evening of May 1, 1988, they also stated that the defendant was never alone with Anthony. The only testimony that directly incriminated the defendant was the testimony of the victim, Anthony. The jury chose to give this testimony great weight in reaching their decision. See generally State v. Roberts, - Mont.-, 633 P.2d. 1214, (1981), where the jury resolved the issue of conflicting evidence by giving the State’s witnesses greater credibility.

There is no support for the defendant’s contention that the further questioning of Pierre by defense counsel would have altered the jury’s emphasis on Anthony’s testimony given. Further, defense counsel did argue the discrepancies in Pierre’s testimony to the jury. The facts of this case indicate that additional questioning of Pierre by defense counsel would not have materially altered the trial’s outcome.

Affirmed.

JUSTICES HARRISON, SHEEHY, McDONOUGH and WEBER concur.


author: JUSTICE WEBER

text:
    In re the MARRIAGE OF DIANA RAE COWEN HEWITT, Petitioner and Respondent, and RONALD DEAN HEWITT, Respondent and Appellant.
    No. 89-537.
    Submitted on Briefs March 22, 1990.
    Decided May 1, 1990.
    791 P.2d 444.
    Dennis Paxinos, Billings, for respondent and appellant.

      Jon A. Oldenburg, Deputy County Atty., Bradley B. Parrish, Lewistown, for petitioner and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from an order by the District Court, Tenth Judicial District, Yellowstone County, Montana which determined a child support obligation of Mr. Ronald Hewitt. Mr. Hewitt appeals. We affirm.

The sole issue presented for our review is whether the District Court erred in ordering continued child support for a married child who has reached the age of majority.

Robert and Diane Hewitt were married in 1966. Three children were born during the marriage: Malisa, born April 6, 1969 and Jason and Justin, born March 4, 1973. The parties separated in 1981 and Mrs. Hewitt filed a petition for dissolution on February 19, 1982. When the petition was filed Mr. Hewitt was not living in Montana and could not be personally served. Service by publication was made in the Lewistown, Montana newspaper. Mr. Hewitt did not participate in the formulation of the divorce decree or the property and support agreement. He made no appearance in the proceedings and on May 5, 1982 a default decree of dissolution was entered in Lewis-town, Montana. One provision of the decree stated:

“3. That the United States Navy or its paymaster is hereby ordered to deduct from Respondent’s military retirement retainer the amount of $175.00 per month per child, for a total of $525.00 per month, for and as child maintenance and support to be paid directly to Petitioner. That said maintenance and support is to be continued until each child reaches the age of 18 or until each child reaches the age of 22 if they remain enrolled on a full time basis as students in post-high school education.”

After the divorce was granted, partial child support payments were secured by garnishment of Mr. Hewitt’s Navy retirement pay. However, this did not satisfy Mr. Hewitt’s total monthly obligation, and arrearage began to accrue. In November, 1985, Ms. Hewitt obtained a judgment of over $10,000 on the accrued arrearage. In December, 1988, Ms. Hewitt petitioned for a supplemental support order. The court held a hearing on this petition on February 23, 1989, After the hearing the parties stipulated that Mr. Hewitt’s total arrearage amounted to $20,623; that Mr. Hewitt’s Navy retirement deduction should be paid at the maximum allowed by law until the arrearage was paid in full; and that the court should determine whether the support obligation for Malisa should cease upon her marriage in March of 1989. The parties submitted briefs on the child support issue.

On July 28, 1989, the District Court ordered that the child support obligation to Malisa should not terminate upon her marriage, but should continue until she is no longer enrolled as a full-time student in post high school education. It is from this order that Mr. Hewitt appeals.

Mr. Hewitt contends that he cannot be obligated to provide for a child who has reached the age of majority unless he has voluntarily agreed to do so. In support of this contention Mr. Hewitt cites § 40-4-208(5), MCA, which provides:

“Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child are terminated by emancipation of the child but not by the death of a parent obligated to support the child. When a parent obligated to pay support dies, the amount of support may be modified, revoked, or commuted to a lump-sum payment, to the extent just and appropriate in the circumstances.”

Mr. Hewitt also relies on Hurley v. Hurley (1986), 222 Mont. 287, 298-99, 721 P.2d 1279, 1286-87, which stated that “a parent’s obligation for child support ends at the age of majority, unless there has been some voluntary agreement that support by one or both parents will continue beyond majority.” (Emphasis in original.) In Hurley, the District Court awarded the wife 65% of the marital estate based partly on the expense she would incur in educating the parties’ son, who was in high school. Hurley is distinguishable since it did not involve an express child support provision, as we have in the present case. Additionally, Hurley did not discuss the statute relevant to the present issue, § 40-4-208(5), MCA.

Mr. Hewitt contends that his agreement to pay support must be voluntary and not the result of a default decree. However, his contention is not supported by the statutory language. Section 40-4-208(5), MCA, provides that provisions for support of a child are terminated by emancipation “[ujnless otherwise agreed in writing or expressly provided in the decree.” In the present case the decree, entered upon his default, pursuant to the petition, expressly states that support is to be continued until the age of 22 if the child is a full-time student in post high school education.

As we have previously held, the provision of the decree controls:

“Under the statute, if provisions regarding the duration of child support are not contained in either the dissolution decree or the separation agreement, jurisdiction over child support automatically terminates when the child becomes emancipated. If, however, the separation agreement or the dissolution decree provides that child support payments shall terminate at a specific age or time, such a provision is controlling and the district court retains jurisdiction over questions of support until the terms of the agreement or decree are fulfilled. Chrestenson v. Chrestenson (1979), 180 Mont. 96, 99-100, 589 P.2 148, 150.”

In re Marriage of McFate (Mont. 1989), [239 Mont. 492,] 781 P.2d 759, 760, 46 St.Rep. 1858, 1860; See also Torma v. Torma (1982), 198 Mont. 161, 164, 645 P.2d 395, 397; Tefft v. Tefft (Mont. 1981), [- Mont. -,] 628 P.2d 1094, 1097, 38 St.Rep. 837, 841. In the present case, an express provision of the decree obligates Mr. Hewitt to provide support past emancipation. Lack of participation by Mr. Hewitt does not render the decree ineffective. See In re Marriage of Bowman (1987), 226 Mont. 99, 109-10, 734 P.2d 197, 204.

Mr. Hewitt also contends that Malisa’s emancipation by marriage should terminate his support. This contention, however, is also subject to the above analysis. Whether her emancipation is by reaching the age of majority or by marriage, the present decree extends the child support obligation past emancipation if the educational requirements are met.

As an alternative argument, Mr. Hewitt contends the District Court exceeded its jurisdiction in that its order of July 18, 1989 actually modified the original decree. The supplemental order states that child support “shall continue until [Malisa] is no longer enrolled as a full-time student in post high school education.” The original decree provided that support would terminate at age 22 regardless of the child’s enrollment as a student. Ms. Hewitt concedes that the court’s modification was inadvertent and exceeded its jurisdiction. Cf. In re Marriage of McFate, 781 P.2d at 760.

Accordingly, we affirm the order by the District Court which ordered Mr. Hewitt to pay child support to Malisa while enrolled as a full-time student in post high school education. We modify the supplemental order to state that this obligation shall continue until Malisa reaches the age of 22 if she remains enrolled on a full time basis as a student in post high school education, as provided in the original decree.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, Mc-DONOUGH and BARZ concur.


author: JUSTICE WEBER JUSTICE HUNT,

text:
    LEONARD AND BONNIE BOLES, Plaintiffs and Appellant, v. RICHARD S. SIMONTON and McDonough, Cox and Simonton, P.C., a Montana Corporation, Defendants and Respondents.
    No. 89-514.
    Submitted on Briefs Feb. 9, 1990.
    Decided April 2,5 1990.
    791 P.2d 755.

      Lloyd E. Hartford, Billings, for plaintiffs and appellants.
    Ira Eakin, Herbert I. Pierce, III, and Mary E. Duncan, Billings, for defendants and respondents.
   JUSTICE WEBER

delivered the Opinion of the Court.

This appeal arises from an order by the District Court, Thirteenth Judicial District, Yellowstone County, Montana, granting summary judgment in favor of defendants. Plaintiff appeals. We affirm.

The issues presented for our review are:

1. Whether the District Court erred in granting summary judgment in favor of defendants by concluding that the cause of action was time-barred.

2. Whether the District Court erred in granting summary judgment in favor of defendants by concluding that defendants owed no duty to the client in respect to certain alleged errors.

The Lers owned a service station and garage in a small town in eastern Montana. In 1978 they began negotiations to sell this business to Mr. and Ms. Boles. The parties agreed to a sale price of $65,000, to be paid over a term of ten years pursuant to a contract for deed. The parties agreed that an attorney should draft the contract. Attorney Richard Simonton was retained for this purpose. He testified by deposition that he represented both parties. Each party paid half of the fees.

On September 22, 1978, the parties met in the offices of Richard Simonton and signed the contract for deed. The contract signed by the parties contained a default clause, which provided:

“And in case of the failure of said Parties of the Second Part to make either of the payments, or interest thereon or any part thereof or perform any of the covenants on their part hereby made and entered into, then at the election of the First Parties, the whole of said payments and interest provided for herein, shall become immediately due and payable and this Contract shall at the option of said First Parties be forfeited and determined by giving to said Second Parties ninety (90) days notice in writing of the intention of the First Parties to cancel and determine this Contract, setting forth in said notice the amount due on said Contract and the time and place when and where payment can be made by said Second Parties.

“IT IS MUTUALLY UNDERSTOOD AND AGREED by and between the Parties to this Contact that ninety (90) days is a reasonable and sufficient notice to be given to said Second Parties in case of failure to perform any of the covenants on their part hereby made and entered into, and shall be sufficient to cancel all obligations hereunto on the part of the said First Parties and fully re-invest them with all right, title and interest hereby agreed to be conveyed, and the Parties of the Second Part shall forfeit all payments made by them on this Contract and any right, title and interest in all buildings, fences or other improvements whatsoever, and such payments and improvements shall be retained by the said Parties of the First Part, in full satisfaction and as a reasonable rental for the property above described and in liquidation of all damages by them sustained and they shall have the right to re-enter and take possession of the premises aforesaid. IT IS FURTHER AGREED that the Parties of the First Part in addition to all remedies set forth herein, shall have all other remedies available to them at law and in equity.”

The Boles began having difficulty making the monthly payment, which was in the amount of $624. The Boles missed payments due on the first day of December 1982, January 1983, and February 1983. On February 10, 1983, Ms. Ler sent the Boles a “Notice of Intent to Cancel and Determine Contract.” This notice stated that the Boles had failed to make the payments due on January 1, 1983 and February 1, 1983. It declared that the entire balance of approximately $37,600 was accelerated and due within 90 days.

On April 25, 1983, the Boles filed a court action seeking to enjoin Ms. Ler from accelerating the balance due under the contract. The District Court granted summary judgment in favor of Ms. Ler. That order was appealed to this Court and affirmed. Boles v. Ler (1986), 222 Mont. 28, 719 P.2d 793. Ms. Ler eventually repossessed the property.

In January 1986, the Boles filed suit against Mr. Richard Simon-ton, alleging negligence in drafting the contract for deed. They alleged the contract should have contained a “saving clause” providing a grace period allowing the Boles ninety days to make up any late monthly payments, prior to acceleration of the balance due under the default clause. By deposition Mr. and Ms. Boles state that the Lers agreed that Boles should have ninety days to make up late payments. However, Ms. Ler states by deposition that she did not remember any such agreement.

The complaint also alleged damage from Boles’ inability to obtain a loan to pay the accelerated balance due because of an error in the legal description of the property in the contract for deed. In August 1986 the Boles amended the complaint to include an allegation that Mr. Simonton failed to ensure that a preliminary title report was obtained. The Boles amended their complaint a second time, in September 1987, to include the law firm of McDonough, Cox and Simonton.

The defendants made various motions to the District Court, including a motion to dismiss because the statute of limitations had run. These motions were supported with memorandum, depositions and affidavits. The District Court, in considering matters outside the pleadings, treated the motions as a motion for summary judgment pursuant to Rule 12(b), M.R.Civ.P. The District Court concluded that as to the alleged negligence in the drafting of the contract for deed and the alleged omission of the saving clause, the dispositive issue was when the cause of action for attorney malpractice began to run. The court determined the cause of action accrued when the contract was signed. The contract was signed in September 1978, and the present action was not filed until January of 1986, over seven years later. The court granted summary judgment in favor of defendants, concluding that the suit was time-barred. As to the issues involving the error in the legal description of the property, and the preparation of a preliminary title report, the court concluded that Mr. Simonton was only hired to draft the contact for deed; thus he owed the Boles no duty in respect to these alleged errors. The Boles urge that the District Court erred in granting summary judgment.

I

Whether the District Court erred in granting summary judgment in favor of defendants by concluding that the cause of action was time-barred.

Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Lorash v. Epstein (Mont. 1989), [236 Mont. 21,] 767 P.2d 1335, 1337, 46 St.Rep. 151, 153. Summary judgment is an appropriate means of disposing of claims barred by the statute of limitations. Mobley v. Hall (1983), 202 Mont. 227, 657 P.2d 604; Brabender v. Kit Manuf. Co. (1977), 174 Mont. 63, 568 P.2d 547.

As the District Court noted, and we agree, the alleged negligence in drafting the contract is based on a theory of attorney malpractice. The dispositive issue in the present case is when the statute of limitations commenced to run.

In analyzing this issue, we note that traditionally the general rule has been that a cause of action for attorney malpractice accrues when the negligent act or breach occurs, not when it is discovered (the occurrence rule). 54 C.J.S. Limitations of Actions § 172 (1987). Other theories include: 1) the statute of limitations begins to run when the client has sustained injury or damage (the damage rule); 2) the statute begins to run when the negligent act is discovered or should have been discovered (the discovery rule). Annotation, “When Statute of Limitations Begins to Run upon Action Against Attorney for Malpractice” 32 ALR 4th 260 § 2 (1984).”

Montana has statutorily adopted the discovery rule, stated in § 27-2-206, MCA, which provides:

“Actions for legal malpractice. An action against an attorney licensed to practice law in Montana or a paralegal assistant or a legal intern employed by an attorney based upon the person’s alleged professional negligent act or for error or omission in the person’s practice must be commenced within 3 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the act, errór, or omission, whichever occurs last, but in no case may the action be commenced after 10 years from the date of the act, error, or omission.”

The District Court concluded that the cause of action accrued when the contract was signed because Boles read the contract at that time; thus they knew or through the use of reasonable diligence should have discovered the omission at that time. Because this occurred more than three years prior to suit being filed, the suit was time-barred.

We interpreted the above mentioned statute in Burgett v. Flaherty (1983), 204 Mont. 169, 173, 663 P.2d 332, 334, stating:

“As a matter of law, what is critical in determining when a legal malpractice action accrues is knowledge of the facts essential to the cause of action, not knowledge of the legal theories upon which an action may be brought.”

In Burgett the attorney had stipulated to the entry of a dissolution decree within twenty days of service of process and contrary to client’s wishes. Noting that the client had knowledge of these facts, triggering the statute of limitations, we affirmed summary judgment as to that alleged negligent act.

In four recent cases, this Court again affirmed summary judgment in favor of the attorney on the basis that the statute had run. In Schneider v. Leaphart (1987), 228 Mont. 483, 743 P.2d 613, the client became aware of the attorney’s alleged negligence in including a maintenance provision in a property settlement when an accountant told him the provision was unnecessary; it was the discovery of this fact that triggered the statute, not the later discovery that he was damaged. In Peschel v. Jones (1988), 232 Mont. 516, 760 P.2d 51, 45 St.Rep. 1244, the client alleged negligence in the attorney’s handling of negotiations regarding financial difficulties. However, the client’s knowledge of facts giving rise to this claim had triggered the statute and the suit was time-barred. In McMillan v. Landoe, Brown, et al., P.C. (1988), 233 Mont. 483, 760 P.2d 758, 45 St.Rep. 1662, the District Court concluded that the cause of action against an attorney accrued when the client who purchased property at a sheriff’s sale was informed of a suit against him by a debtor challenging the validity of the sale.

Similarly, in Schweitzer v. Estate of Halko (1988), 231 Mont. 283, 751 P.2d 1064, 45 St.Rep. 611, we affirmed summary judgment in favor of the attorney where the client knew of and participated in the attorney’s alleged negligent drafting of a new will containing an option agreement on real estate. Summary judgment in that case was granted both on the basis that the suit was time-barred and because the client was in pari delicto with the attorney.

In the present case, the Boles state they did not have actual knowledge of facts essential to the cause of action, that is, they did not know that the contract did not in fact contain the saving clause. Thus the issue is whether they should have discovered the omission at the time they signed the contract, or stated differently, whether they should be held to have had constructive knowledge of the omission at the time of signing.

By deposition all parties acknowledge that they read the contract before signing it. Mr. Boles states that he did not understand the contract. However, none of the parties recall asking questions or requesting clarification of any part of the contract. In Mr. Simonton’s deposition he states that he does not remember explaining the contract in detail.

We conclude that the Boles should have discovered that the contract for deed did not contain the saving clause at the time they signed the contract. The default clause, as here drafted, is not complex or beyond the understanding of a lay person. The absence of a saving clause could have been discovered by the Boles through the use of reasonable diligence. The record discloses that the Boles read the contract before signing and did not ask for any explanations. Although they now claim they did not understand the contract, and that they believed it contained the desired clause when they signed it, we conclude that in the present case, the Boles must be charged with knowledge of what they signed. The plain language of the contract was clear and not technical, and the omission of the saving clause could have been discovered by the Boles by the use of reasonable diligence.

The Nebraska Supreme Court faced a similar issue in Interholzinger v. Estate of Dent (1983), 214 Neb. 264, 333 N.W.2d 895. Although the attorney, in selling the client’s business, was to exclude a certain piece of private land, he neglected to do so. The clients, a father and son, both signed a listing agreement which included the private land among the assets of the business. The son, although capable of reading the agreement, did not do so. The Nebraska court applied the relevant statute of limitations which provided that an action for attorney malpractice commenced when the negligent act occurred; however, commencement was deferred if the cause of action was not discovered and could not reasonably have been discovered within the limitations period. In applying this rule the court concluded that the son, who had not read the agreement, was “charged with knowledge of its contents[.]” Interholzinger, 333 N.W.2d at 899. See also Nichols v. Ach (1989), 233 Neb. 634, 447 N.W.2d 220.

The Boles contend that the statute of limitations did not begin to run until they realized they had been damaged by the alleged professional negligence. They contend it was not until they received the notice from Ms. Ler in February 1983 of her intent to cancel and determine the contract, that they realized the contract did not contain the saving clause. However, the rule that the statute is not triggered until the client is damaged has been expressly rejected in Montana, as in conflict with the statute. Schneider, 743 P.2d at 616. Moreover, our previous discussion forecloses any argument that the notice from Ms. Ler should be the point of discovery.

We affirm the District Court’s granting of summary judgment in favor of defendants on the basis that the suit was time-barred.

II

Whether the District Court erred in granting summary judgment by concluding that defendants owed no duty to the client in respect to certain alleged errors.

The District Court granted summary judgment in favor of defendants in respect to the alleged error in the legal description and the alleged negligence in failing to ensure that a preliminary title report was prepared. The court determined that the Boles had failed to establish that Mr. Simonton was retained for any purpose other than the drafting of the contract for deed. Thus he owed no duty to the Boles in regard to other matters.

The Boles contend that Mr. Simonton continued his legal representation of them subsequent to drafting the contract for deed, noting that Mr. Simonton sent a letter Mr. Ler advising him to place the Abstract of Title in the escrow account. They contend Mr. Simonton had a duty to ensure this was done.

“In any professional negligence action, the plaintiff must prove that the professional owed him a duty[.]” Carlson v. Morton (1987), 229 Mont. 234, 238, 745 P.2d 1133, 1136. Absent a finding that Mr. Simonton was retained for services other than preparing the contract, the attorney had no duty to monitor the activities of his client. Lorash, 767 P.2d at 1338. We agree with the District Court that Boles have failed to present facts demonstrating that Mr. Simonton continued to represent the Boles subsequent to drafting the contract. Further, Montana has not recognized the “continuous representation” theory. Schneider, 743 P.2d at 616. We conclude that the District Court was correct in determining there were no genuine issues of material fact in respect to the extent of Mr. Simonton’s legal representation and that he owed no duty to the Boles in respect to these alleged errors.

We affirm the District Court’s granting of summary judgment in favor of defendants.

Affirmed,

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, BARZ and SHEEHY and HON. ROY RODEGHIERO, District Judge, sitting for JUSTICE McDONOUGH concur.

JUSTICE HUNT,

dissenting:

T dissent. A lawyer is more than a scrivener. He is a professional and a counselor upon whose advice a client, whether skilled in the law or not, should be able to depend. If the client must know as much as the lawyer in order to oversee the lawyer’s work and discover his errors, then the lawyer is nothing more than a scrivener.

When a client, patient, taxpayer or builder comes to rely upon a professional for services or advice he most often cannot discover that a negligent act has occurred until damages arise. I do not believe that the plaintiffs here were required to know that the legal jargon cited by the majority did not constitute a savings clause. In both paragraphs cited by the majority, the words “ninety (90) days” were used. When they read those paragraphs, the plaintiffs, who were lay persons, could reasonably have believed that they had a period of grace in which they could remit any late payments.

Plaintiffs could not reasonably have discovered the omission in the contract until the damages occurred, that is, when they lost their property. They should have an opportunity to present their case to the jury.


author: JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MICHAEL D. ALBRECHT, Defendant and Appellant.
    No. 89-106.
    Submitted on Briefs March 8, 1990.
    Decided April 26, 1990.
    791 P.2d 760.

      James G. Hunt, Hunt & Dix Law Offices, Helena, for defendant and appellant.
    Marc Racicot, Atty. Gen., Jennifer Anders, Asst. Atty. Gen., Helena, Keith D. Haker, County Atty., Miles City, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Defendant Michael Albrecht appeals his 1985 robbery conviction from Custer County following revocation of his suspended sentence in 1988 for parole violations. The defendant, who was returned to prison after the suspended sentence was revoked, filed a petition for post-conviction relief. Because a notice of appeal had been timely filed but never docketed in 1985, the Attorney General’s answer to defendant’s petition noted that defendant did not receive proper representation on appeal. Counsel for defendant was then appointed and a transcript of the 1985 lower court proceedings prepared. Upon review of the 1985 proceedings we affirm the trial court’s judgment.

Defendant presents two issues for review:

1. Did the trial court commit reversible error when it refused to instruct the jury that theft is a lesser-included offense of robbery?

2. Was the defendant denied effective assistance of counsel at trial?

On January 9, 1985, when Cheryl Zabrocki, a teller at First Security Bank in Miles City, Montana, was approached by a man who asked her to take out all of the money in her drawer and lay it on the counter, she asked if he were kidding. The man assured Ms. Zabrocki he was not kidding, and showed her a paper bag containing a device that appeared to be a bomb, saying “You’ve got 30 seconds to lay it out on the counter.” As Ms. Zabrocki emptied the inside portion of her cash drawer, the man said that he knew what he was doing and that she should not forget to include the hundred- and fifty-dollar bills. Ms. Zabrocki gave the man all of the money in the front half of her drawer, totaling $4,926. She did not, however, give the man the money in the back of the drawer which he could not see. The robber then left the bank.

The bank personnel immediately notified local law enforcement authorities of the robbery and gave a description of the bank robber. Because a meter maid had earlier noticed a man matching the robber’s description acting suspiciously, the man was quickly apprehended. When authorities surrounded his vehicle, the suspect, later identified as Michael Albrecht, jumped out of his car and stated “I did it, I did it, I have got the money.” Law enforcement officials recovered $4,926 in cash on defendant’s person and a brown paper sack containing what appeared to be an electronic device in the defendant’s car. The device proved to be a non-functional conglomeration of emergency road flares, a flashlight battery, a switch and some wires. Defendant was arrested without incident.

At his January 18, 1985 arraignment, defendant requested appointed counsel. Upon determining that the defendant was indigent, District Court Judge A.B. Martin appointed J.S. Wheatcroft to represent the defendant.

Attorney Wheatcroft informed Judge Martin in a March 11 letter that defendant felt he might not be receiving adequate representation. A hearing concerning the adequacy of trial counsel’s representation was held on March 18. After inquiry and discussion, the judge refused to appoint new counsel for the defendant because the trial had already been scheduled and the jury notified. Defendant was given the option of continuing with Mr. Wheatcroft’s representation or representing himself.

At trial, held on March 20, appointed counsel Wheatcroft conducted the defense and the jury returned a verdict of guilty. Defendant was subsequently sentenced to seven years in prison with four years suspended. Originally, defendant received an additional two-year sentence for use of a dangerous weapon, but that portion of the sentence was later vacated. A notice of appeal was timely filed but never docketed, and no further action taken on the appeal.

In May of 1987 defendant was released from the Montana State Prison to begin serving the suspended portion of his sentence. Defendant was returned to prison following an August 22, 1988 hearing on the petition to revoke the suspended sentence. Defendant filed a petition for post-conviction relief. The State’s response to that petition noted that defendant did not receive proper representation on appeal in 1985. This Court then ordered the matter remanded for preparation of a trial transcript and appointment of appellate counsel. The result of our previous order is this appeal.

I.

Defendant first argues that the trial court erred in refusing to instruct the jury that theft is a lesser-included offense of robbery. The trial court refused the instruction based on our holding in State v. Madera (1983), 206 Mont. 140, 670 P.2d 552. We affirm the trial court’s decision.

Defendant was charged with robbery, a felony, under § 45-5-401(1)(b), MCA, which reads:

“(1) A person commits the offense of robbery if in the course of committing a theft he:

“(b) threatens to inflict bodily injury upon any person or purposely or knowingly puts any person in fear of immediate bodily injury).]

The definition of “included offense” is found at § 46-11-501(2), MCA, which reads, in part:

“(2) An offense is an ‘included offense’ when:

“(a) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged).] . . .”

While this definition is found in the part of Title 46 concerning the effect of multiple charges and former prosecutions, this Court has previously held that the definition is also applicable in determining whether an instruction on a supposed lesser-included offense is required. State v. Hamilton (1980), 185 Mont. 522, 534, 605 P.2d 1121, 1128, cert. denied, 447 U.S. 924, 100 S.Ct. 3017, 65 L.Ed.2d 1117 (1980).

The gist of defendant’s argument is that the State must prove a theft in order to prove robbery, and theft, therefore, is a lesser-included offense of robbery. In Madera, we addressed this argument adopting the “Blockburger test” to determine if theft is a lesser-included offense of robbery. We noted:

“The ‘Blockburger test’ (Blockburger v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309) states:

“ ‘The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not . . . .’

“However, in Iannelli v. United States (1975), 420 U.S. 770, 785, fn. 17, 95 S.Ct. 1284, 1294, fn. 17, 43 L.Ed.2d 616, 627, fn. 17, the Supreme Court explained the Blockburger test saying:

“ ‘If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes . . . .’

“Our statute, section 46-11-502(1), MCA, prevents prosecution for more than one offense, when one offense is included in the other.

“In State v. Ritchson (1981), - Mont.-, 630 P.2d 234, 38 St.Rep. 1015, we considered the Blockburger rule, and determined the applicable test is whether each charge requires proof of a fact which the other does not, to determine if there is indeed a lesser-included offense.

“We look to the statutes and not to the facts of the individual case to make that determination. Ritchson, 630 P.2d at 237, 38 St.Rep. at 1018.”

Madera, at 151, 670 P.2d at 557-58. The Madera Court concluded that because felony theft required the additional element of proof that property taken exceeds a certain dollar amount, theft is not a lesser-included offense of robbery.

The decision in Madera was confirmed on appeal to the federal court system. LaMere v. Risley (9th Cir. 1987), 827 F.2d 622. The LaMere court, in affirming the Montana Supreme Court and United States District Court, distinguished the two crimes:

“Robbery requires proof that a defendant threatened or put another in fear of bodily harm; felony theft requires no such showing. Felony theft, on the other hand, requires the prosecution to prove that the personalty’s value exceeds $150 [raised to $300 in 1983]. Mont.Code.Ann. § 45-6-301(1)(a)(5), (1983). A conviction for robbery does not.”

LaMere at 626.

But in the case at bar, defendant argues he requested the jury be instructed that theft is a lesser-included offense because evidence was contradictory as to whether Ms. Zabrocki was put in fear during the incident. On direct examination, Ms. Zabrocki testified she gave defendant the money because she believed that if she did not give defendant the money she was in danger of bodily harm because of the device in the sack. On cross-examination, Ms. Zabrocki’s statement to police officers immediately following the incident was brought out. In that statement Ms. Zabrocki described defendant as “really nice” when he first approached her and said that she handed the money over to defendant because that was what she was trained to do. Defendant contends that if the jury found that defendant does not put anyone in fear of bodily harm he could be convicted only of theft and not robbery, and an instruction that theft was a lesser-included offense of robbery was therefore proper.

We have, however, ruled that theft is not a lesser-included offense of robbery, Madera, at 151, 670 P.2d at 558, albeit for different reasoning. Nevertheless, we decline to hold differently. Not only does theft require an additional element of proof regarding value, our statutes specify that commission of theft is not required for commission of a robbery. Section 45-5-401, MCA, requires only that the actor “be in the course of committing the theft.” Under the statute, in order for a robbery charge to adhere, a person does not actually have to complete the theft but only be in the course of committing the theft.

The Criminal Law Commission Comments to § 45-5-401, MCA, further illustrate that theft is not a lesser-included offense of robbery:

“Common-law robbery was theft of property from the person or in the presence of the victim by force or by putting him in fear either or immediate bodily injury or of certain other grievous harms. The above draft does not explicitly include the traditional basis for classifying robbery as taking property from the person or in the presence of a person, but approaches the crime as one of immediate danger to the person and relies on the condition of violence or threatened violence to distinguish the crime from ordinary theft. The gist of the offense is taking by force or threat of force.

“The above provision would apply where property was not taken from the person or from his presence. For example, an offender might threaten to shoot the victim in order to compel him to telephone directions for the disposition of property located elsewhere. Further, it is immaterial whether property is or is not obtained. This seems compatible with the theory of treating robbery as an offense against the person rather than against property. Hence, a completed robbery may occur even though the crime is interrupted before the accused obtained the goods, or if the victim had no property to hand over . . .”

Criminal Law Commission Comments, Mont. Crim. Code, 1973 Annotated (1980 Revised Edition), p. 184.

It is clear from Montana statutes, commission comments and case law that theft is not, and was never intended to be, a lesser-included offense of robbery. We hold that the District Court was correct in refusing defendant’s request to instruct that theft is a lesser-included offense of robbery.

II.

Defendant next argues that he was denied effective assistance of counsel at trial. The basis for his argument is that attorney Wheat-croft failed to investigate a lack of mental state defense. Defendant contends that trial counsel was well aware of certain indications that defendant was unable to form either of the mental states, purposely or knowingly, necessary to a robbery conviction. The alleged indications of inability to form the requisite mental state are that:

“1) several years before this incident defendant had been involved in a motorcycle crash which left him in a coma for several weeks, causing at least some brain damage;

“2) at the time of this incident, defendant was under severe distress because he had been unemployed for two months and could not support his family; and

“3) at the time of the incident, defendant was in a weakened state as a result of having slept in his vehicle, without heat, for several nights in January and not having eaten for at least two days due to a lack of money.”

Defendant argues that given these indications of his mental condition, trial counsel had an obligation to pursue an investigation into whether defendant had one of the requisite mental states at the time of the incident. The trial record shows that Wheatcroft was aware defendant had been unemployed for some time and had slept in his car and had eaten very little for two days prior to the incident. The record is inconclusive, however, regarding Wheatcroft’s knowledge of defendant’s involvement in a traffic accident. Wheat-croft’s only reference to the accident occurred after the trial at the sentencing hearing when he elicited testimony from the defendant that defendant had suffered “severe brain damage” as the result of an accident. There was no medical evidence to confirm this testimony.

This Court follows the two-prong test adopted by the United States Supreme Court to determine whether ineffective assistance of counsel has occurred:

“First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.”

State v. Stewart (1988), 235 Mont. 239, 241-42, 767 P.2d 296, 297 (quoting Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693).

Defendant contends attorney Wheatcroft’s performance was deficient because he did not consider the lack of mental state defense which prejudiced the defendant. It is clear that Wheatcroft did consider the lack of mental state defense, but rejected it as meritless. At the March 18, 1985 hearing on substitution of counsel, Wheatcroft told the District Court:

“Conferring with the client, or with the defendant, it didn’t appear that he’d be a real good candidate for an insanity defense, and it was — I interposed a defense of economic compulsion largely to keep alive — to keep the case alive while I was undergoing plea bargaining efforts.”

Such consideration on the defense attorney’s part is sufficient. In making a preliminary determination of competency for the purpose of asserting a mental deficiency defense, the attorney need only rely on his or her experience with the legal profession. This Court refused to impose more of a duty on defense attorneys evaluating a client’s mental condition:

“Defendant argues that trial counsel erred by failing to require that defendant undergo physical and mental examinations in preparing the defense and prior to sentencing. This argument imposes an unacceptable burden on defense attorneys by requiring them to exercise diagnostic skills beyond their training. In this case the record suggests nothing that would evidence that defendant was suffering from mental disease or defect. Trial counsel’s performance was not deficient under these circumstances.”

State v. Long (1986), 223 Mont. 502, 511, 726 P.2d 1364, 1370.

In the case at bar, as in Long, nothing in the record suggests defendant was suffering from mental disease or defect sufficient to preclude his formation of the requisite mental state of purposely or knowingly. In fact the record indicates just the opposite. At the substitution of counsel hearing, defendant appeared confident and articulate, stating that he wished to have new counsel appointed because he found Wheatcroft, “very incompetent and immature and very erratic emotionally and him and I definitely do not see eye to eye on this thing and he hasn’t put anything into it yet.”

The trial court denied defendant’s request for another attorney. Before trial, Wheatcroft advised defendant to enter a plea of guilty. Defendant, however, insisted the case go to trial on the theory that the bomb was so patently phony that the teller could not reasonably have been in fear. At trial defendant informed the court that he would actually participate in his own defense, instructed Wheatcroft to waive the opening statement, and indicated he would be advising Wheatcroft throughout the proceedings.

Defendant’s behavior as reflected in the record indicates his ability to form the mental intent of purposely or knowingly. Defendant obviously understood the charge against him. Defendant was able to formulate his own theory of defense and demanded his case be presented under that theory. Such assertiveness belies defendant’s contention that he was incapable of acting with the purpose or knowledge necessary to a robbery conviction.

Furthermore, the record demonstrates that defendant acted purposely or knowingly at the time of the robbery. At trial defendant testified with detailed accuracy regarding places he had stopped and inquired for work, the route he traveled, places he stayed, and how much money he had at each point in his travels. Defendant testified regarding his arrival back in Miles City and events on the day of the incident:

“Q. Okay. What did you do when you got here in Miles City?

“A. Well, in the Miles City area, I got — it wasn’t in the morning. It would be the afternoon of January 7th, but I arrived in Miles City and it was in the late afternoon, and I walked down Main Street and stopped into a few of the stores and asked them if they were looking for any type of help, and I walked through the bars and I questioned all the farmers I could find, and I asked the bartenders if they had heard of anybody that was looking for help.

“Q. Okay, and how long did this go on?

“A. This happened while it was late in the afternoon of the 7th, and that night I slept in my car, about a block north of the SA store here, and then the following morning I was very cold, and I got up and it took me quite awhile walking to get warmed up, and then I had not eaten since it was Sunday, the 6th I guess it would be, and that was the last time I had eaten and I was still getting fairly cold, but I was walking around to warm up and once again I proceeded to go into some places and through the same bars and asked, and nobody had heard yet of anything of a job opening anywhere yet.

“Q. Okay. Do you recall the events of January 9th of this year?

“A. Well, the morning of January 9th. It was — I’m not sure just what the time was, but at eight o’clock I woke up and it was awful cold that morning, and it took quite awhile walking around and also trying to warm up and different things, and I was also getting very hungry, and I decided that somehow I would have to come up with some money here or something for food and lodging, and I had a family at home yet too, that I didn’t want them evicted or kicked out.

“Q. So what did you do?

“A. Well, from the time I woke up, I walked around to warm up, and it took me awhile, and then I admit, it wasn’t a very logical thing to do, but I decided that I had to come up with some money some way, but I wasn’t sure how I was going to do it yet, and — well, I devised the flares the way you seen them arranged, and I didn’t know what I was going to do when I devised these flares, and I walked around with them for an hour and a half. .

“Q. What did you do then?

“A. Well, after walking around?

“Q. What did you do then?

“A. After walking around and all of that, it was about ten minutes before I went into the bank and that’s when I decided that I was going to go into the bank.

“Q. What happened in the bank?

“A. Well, I just walked in the door and it was 11:13 and I walked up to the first lady and asked her for all of the money.

Defendant’s testimony demonstrates his ability to recall the incident and the details surrounding it. Such recollection tends to show the defendant was aware of his conduct and thus negates his contention he lacked the mental state of purposely or knowingly. State v. Raty (1984), 214 Mont. 114, 117, 692 P.2d 17, 19.

Moreover, the defendant’s mental state may be inferred from circumstantial evidence, including a defendant’s actions and evidence found surrounding the alleged offense. State v. Trask (1988), 234 Mont. 380, 385, 764 P.2d 1264, 1267; State v. Hardy (1980), 185 Mont. 130, 136-37, 604 P.2d 792, 796; State v. Jackson (1979), 180 Mont. 195, 205, 589 P.2d 1009, 1015. Given defendant’s testimony concerning his constructing the bomb and transporting it into the bank, the jury could properly infer defendant entered the bank with the mental intent of purposely or knowingly instilling fear in the bank teller.

Defendant next implies that his inadequate representation resulted from the District Court’s refusal to provide substitute counsel. It is within the sound discretion of the trial court to rule on substitution of counsel, and absent abuse of that discretion the decision will not be overturned. State v. Martz (1988), 233 Mont. 136, 139, 760 P.2d 65, 67; State v. Long (1983), 206 Mont. 40, 45, 669 P.2d 1068, 1071 (citing Good v. United States (9th Cir. 1967), 378 F.2d 934, 935).

The trial court’s duty, when considering a motion for substitution of counsel, is to make adequate inquiry into the complaint of the defendant and to discover whether the conflict was so great as to result in a total lack of communication. Martz, at 139-40, 760 P.2d at 67 (citing Brown v. Craven (9th Cir. 1970), 424 F.2d 1166 and United States v. Mills (9th Cir. 1979), 597 F.2d 693). The District Court met its burden, inquiring of defendant what his reasons for wanting a new attorney were. Defendant replied that he and Wheat-croft did not see eye to eye and that he felt Wheatcroft had not “put anything into it yet.” The trial judge then asked Wheatcroft what he had done about the case. Wheatcroft indicated he had read statements of people involved, including the defendant’s, held discussions with officers involved, considered potential defenses, conferred with defendant and attempted plea bargains.

Obviously, the conflict between defendant and Wheatcroft had not resulted in total communication breakdown. While the attorney and client may not have experienced a “meaningful relationship,” they did not have a total lack of communication. Martz, at 140, 760 P.2d at 67 (citing Morris v. Slappy (1983), 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610).

No showing of ineffective representation based upon a total lack of communication was made. Therefore, the District Court’s decision will not be disturbed.

We affirm.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, Mc-DONOUGH and WEBER concur.