author: JUSTICE HARRISON

text:
    C. HAYDON LIMITED and DR. K. M. CLEWS, Plaintiffs and Respondents, v. MONTANA MINING PROPERTIES, INC., a Montana corporation; et al., Defendants, Third-Party Plaintiffs and Appellants, v. FRANK CROWLEY, Third-Party Defendant, and W. D. MURRAY, JR., Third-Party Defendant and Respondent.
    No. 93-197.
    Submitted on Briefs August 26, 1993.
    Decided December 7, 1993.
    50 St.Rep. 1577.
    262 Mont. 321.
    864 P.2d 1253.

      For Appellants: Joan E. Cook, Miller & Cook, Great Falls.
    For Respondents: Greg J. Skakles, Johnson, Skakles & Kebe, Anaconda; W. D. Murray, Jr., Butte; and David M. McLean, Knight, Dahood, McLean, Everett & Dayton, Anaconda.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Second Judicial District, Silver Bow County. Appellant Montana Mining Properties, Inc. (MMPI) appeals from a motion granted in favor of W. D. Murray, Jr. (Murray) to dismiss for failure to comply with Rule 9(b), M.R.Civ.P, and from an order granting Murray summary judgment pursuant to Rule 56(c), M.R.Civ.P. We affirm.

The issues are:

1. Did the District Court err by granting Murray’s motion to dismiss for failure to state a claim, pursuant to Rule 12(b)(6), M.R.Civ.P.?

2. Did MMPI have a reasonable opportunity to amend its pleading?

Murray was a director and an attorney for MMPI, a corporation of twelve Montana entities holding real property in Butte, Montana. He resigned in the fall of 1990. In February 1991, a corporate merger took place in British Columbia, Canada.

Shortly thereafter, MMPI President Malcolm Clews (Clews) began biffing MMPI directly for services and expenses owed him. The bills resulted from a consulting agreement between Clews and then general manager of MMPI, Frank Crowley (Crowley). An April 4, 1991, letter from Crowley to Clews acknowledged the debt and the agreement.

Crowley was also owed monies by MMPI, as acknowledged by a letter from Clews to Crowley dated April 2,1991. The letters of April 2nd and 4th were not found in MMPI’s corporate records; but rather, in the personal records of Clews and Crowley. In the fall of 1991, following the corporate merger and a change in management, Clews and Crowley terminated their association with MMPI.

Two additional letters, “telefaxed” from Clews to Murray on October 3 and 4,1991, are present in the record. According to MMPI, these letters — combined with the debt acknowledgement letters of April 2nd and 4th — are evidence of conspiracy, fraud and breach of fiduciary duties by Clews, Crowley and Murray.

On April 7,1992, Clews brought an action against MMPI to recover damages for breach of contract, breach of the implied covenant of good faith and fair dealing, fraudulent misrepresentations, and willful and negligent infliction of emotional distress. On MMPI’s motion, the court dismissed all counts except breach of contract.

MMPI filed a third-party complaint on October 26, 1992, against Crowley and Murray. The complaint alleged conspiracy to commit fraud, common law fraud, and breach of a fiduciary duty based on fraud.

On November 25,1992, Murray filed a motion to dismiss for failure to comply with Rule 9(b), M.R.Civ.P. Specifically, Murray argued that MMPI did not plead the nine elements of fraud with sufficient particularity. At the February 24,1993, hearing on the motion to dismiss, MMPI asked the District Court to consider matters outside of the pleadings — the letters of April 2 and 4, 1991 — which were attached to MMPI’s answers to Murray’s interrogatories. MMPI also asked for additional discovery and twenty days to amend its complaint.

On March 17,1993, the District Court granted Murray’s motion to dismiss with prejudice and granted Murray summary judgment. The court found that MMPI failed to plead with particularity its theory of fraud against Murray. The basis for the court’s decision was that MMPI’s allegations were contradictoiy and lacked specificity, and that the allegations were based on “information and belief’ unsupported by fact. MMPI appeals.

I

Did the District Court err by granting Murray’s motion to dismiss for failure to state a claim, pursuant to Rule 12(b)(6), M.R.Civ.P.?

We will not dismiss a complaint for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Proto v. Missoula County (1988), 230 Mont. 351, 352-53, 749 P.2d 1094, 1095-96. In considering Murray’s motion to dismiss, we construe the complaint in the light most favorable to MMPI, and all allegations of fact are taken as true. See Willson v. Taylor (1981), 194 Mont. 123, 126, 634 P.2d 1180, 1182.

The District Court granted Murray’s motion to dismiss for failure to state a claim because it found that MMPI failed to allege fraud against Murray with sufficient particularity. See Rules 12(b)(6) and 9(b), M.R.CivP. In order to comply with Rule 903), a complainant must allege, with particularity, facts to support the following nine elements of fraud:

1) a representation;
2) the falsity of the representation;
3) its materiality;
4) the speaker’s knowledge of its falsity or ignorance of its truth;
5) the speaker’s intent that it should be relied on;
6) the hearer’s ignorance of the falsity of the representation;
7) the hearer’s reliance on the representation;
8) the hearer’s right to rely on the representation; and
9) consequent and proximate injury caused by reliance on the representation.

Pipinich v. Battershell (1988), 232 Mont. 507, 511, 759 P.2d 148, 151 (citation omitted).

The District Court found, and we agree, that MMPI failed to meet the requirements of Rule 9(b), M.R.Civ.P, in three respects. First, allegations in paragraphs III and XI of MMPI’s third-party complaint contradicted allegations in paragraphs VIII andX. Specifically, paragraphs III and XI stated that MMPI “knew no facts with regard to the existence of the alleged consulting agreement” until the Clews suit was filed, while paragraphs VIII and X alleged that Murray made false representations to MMPI that Clews was due monies pursuant to an agreement. Moreover, although MMPI alleged that a representation was made, it failed to allege the time and place of the representation, or to whom it was made.

Second, allegations in paragraphs IV, V, VII and VUI were made “upon information and belief’ of MMPI’s counsel, Joan Cook, who signed the complaint for MMPI. Allegations of fraud cannot ordinarily be based “on information and belief’ except as to matters peculiarly within the opposing party’s knowledge. Schlick v. Penn-Dixie Cement Corp. (2d Cir. 1974), 507 F.2d 374, 379, cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975). To satisfy Rule 9(b) in the latter instance, the allegations must be accompanied by a statement of facts upon which the belief is founded. Segal v. Gordon (2d Cir. 1972), 467 F.2d 602, 608.

In this case, MMPI based its allegations on information and belief. MMPI failed to demonstrate that the falsity of Murray’s representation to MMPI — that Clews was due monies pursuant to an agreement — was peculiarly within Murray’s knowledge. Furthermore, the record is void of any facts upon which the alleged beliefs were founded. As the District Court noted:

The employment of such extravagant terms as “fraud,” “conspiracy,” and other words of like malign import, unaccompanied by a statement of fact upon which the charges of wrongdoing rest, is a useless waste of words.

Brandt, et al. v. McIntosh, et al. (1913), 47 Mont. 70, 72, 130 P. 413, 414 (citation omitted).

Third, MMPI offered no factual support for its allegations and, thus, did not meet the requirements of Rule 9(b), M.R.Civ.P. Although MMPI alleged a representation and its falsity, it did not present facts in support of those allegations. MMPI failed to address the third through ninth elements of fraud, as set out above. Put simply, MMPI failed to allege fraud with sufficient particularity.

MMPI argues that Rule 9(b), M.R.Civ.P., must be read in conjunction with Rule 8(a), M.R.Civ.R, which requires that the pleadings contain only a “short and plain statement of the claim.” See Fraunhoffer v. Price (1979), 182 Mont. 7, 14-15, 594 P.2d 324, 328-29. While MMPI’s contention is generally true, the statement cannot be so “short” or so “plain” as to defeat the purposes of Rule 9(b). As the District Court correctly determined, Rules 9(b) and 8(a), M.R.Civ.R, should be harmonized. See 2A James Wm. Moore, Moore’s Federal Practice, § 9.03(2). One of the purposes of Rule 9(b) is to protect reputations from unwarranted charges of fraud, “especially professionals whose reputations in their fields of expertise are most sensitive to slander ....” Semegen v. Weidner (9th Cir. 1985), 780 F.2d 727, 731.

Viewing the record in the light most favorable to MMPI, we find no evidence in the record to support MMPI’s allegation of fraud against Murray. See Willson, 634 P.2d at 1182. MMPI’s allegations against Murray were contradictory, were not sufficiently particular, and were unsupported by fact. The District Court correctly: a) con-eluded that MMPI’s complaint did not sufficiently plead the nine elements of fraud; and b) denied MMPI’s motion to dismiss.

Because the District Court properly granted Murray’s motion to dismiss for failure to state a claim, we need not address whether MMPI had a reasonable opportunity to present sufficient facts to preclude summary judgment.

II

Did MMPI have a reasonable opportunity to amend its pleading?

MMPI contends that the District Court denied its request to amend its complaint against Murray at the February 24, 1993, hearing. At that hearing, MMPI argued that it had discovered additional facts which would cure its complaint, if deficient. MMPI argues that the District Court abused its discretion by depriving MMPI the opportunity to amend its complaint.

However, a fair reading of the transcript indicates that the court invited MMPI to amend its complaint. Joan Cook, MMPI’s attorney, stated:

Your Honor, I do have facts that I have gained since the time that I filed this complaint, that I can show, factual, about this complaint. If you feel that it is deficient, I feel that I can, with the opportunity to amend, add facts that would satisfy it.

The District Court responded: “Okay.” However, MMPI never requested leave to amend its complaint after the February 24th hearing. MMPI had a reasonable opportunity to amend, but simply failed to do so. MMPI’s assertion that the District Court abused its discretion by depriving MMPI of an opportunity to amend its complaint is without merit.

The record also reveals that MMPI had ample opportunity to amend its pleading before the February 24th hearing. On October 26, 1992, MMPI filed its third-party complaint against Murray. Murray filed a motion to dismiss on November 25,1992. Because a motion to dismiss is not a responsive pleading, MMPI could have amended its complaint without leave of court within twenty days of Murray’s motion to dismiss. See Rule 15(a), M.R.Civ.P. Clearly, MMPI had a reasonable opportunity to amend its pleading, but failed to do so.

Affirmed.

JUSTICES GRAY, TRIEWEILER, NELSON and WEBER concur.


source: Caselaw Access Project

author: JUSTICE NELSON JUSTICE TRIEWEILER JUSTICE HUNT

license: Public Domain

text:
    DAVID WINCHELL, Petitioner and Respondent, v. MONTANA DEPARTMENT OF STATE LANDS and BOARD OF LAND COMMISSIONERS, Respondents and Appellants.
    No. 93-311.
    Submitted on Briefs October 21, 1993.
    Rehearing Denied Jan. 20, 1994.
    Decided December 7, 1993.
    50 St.Rep. 1580.
    262 Mont. 328.
    865 P.2d 249.

      For Respondents and Appellants: Lon J. Maxwell, Special Assistant Attorney General, Department of State Lands, Helena.
    For Petitioner and Respondent: Lorraine A. Schneider, Simon-ton, Howe & Schneider, Glendive.
   JUSTICE NELSON

delivered the Opinion of the Court.

Respondents/Appellants appeal from an order of the Seventh Judicial District Court, Dawson County, denying their Motion to Alter or Amend Judgment. We affirm in part and reverse in part.

We state the dispositive issues on appeal as follows:

1. Is the petitioner entitled to an evidentiary hearing after the respondents refused to consider his bid for a state land lease?

2. Can an unincorporated association lease state land?

The history of the litigation between these parties is set forth in Winchell v. Dep’t of State Lands (1988), 235 Mont. 10, 764 P.2d 1267 (Winchell I), and Winchell v. Dep’t of State Lands (1990), 241 Mont. 94, 785 P.2d 212 (’Winchell ID- The land which is the subject of these actions is school trust property which the Department of State Lands and the Board of Land Commissioners (collectively referred to as DSL) lease to private parties.

In 1988, DSL canceled a state land lease it had with the petitioner David Winchell (Winchell) and his brother, Thomas Winchell. The grounds for cancellation were that the Winchells had grossly mismanaged the real property which was the subject of the lease. The cancellation of this lease was upheld by this Court in Winchell II.

After Winchell II was decided, DSL advertised for bids on the tract of land which had previously been leased to the Winchells. Two advertisements failed to produce responses, so DSL reclassified the land from grazing land to wildlife habitat. In June, 1991, the land was again advertised for bids. Two bids were received: one from Winchell for $1,524.50, and one from the Dawson County Pheasants Forever (DCPF) for $511.35.

DSL refused to consider the bid from Winchell, citing 26.3.142(6), ARM, which states that a person who has had a lease canceled for any reason other than the nonpayment of rent is not allowed to bid upon a lease. DCPF was then notified that its bid was accepted and that, before the new lease could be issued, DCPF would have to pay the Winchells for any leasehold improvements, as required by §§ 77-6-301 et seq., MCA. Direct negotiations for payment of the improvements between the Winchells and DCPF failed, so the parties resorted to arbitration. In the middle of that process, Winchell filed a Petition for Writ of Prohibition and For Stay of Arbitration Proceedings against DSL.

The District Court granted Winchell’s petition and issued a writ restraining DSL from issuing the new lease to DCPF. The District Court also stayed the arbitration proceedings. DSL moved to quash the writ, which was denied.

A show cause hearing was held on the petition on August 10,1992. After that hearing, the District Court issued Findings of Fact, Conclusions of Law, and an Order in which the court ordered DSL to reject the bid of DCPF because it was not a legal entity and could not hold a leasehold interest in real property. The District Court also ordered DSL to give Winchell an evidentiary hearing with respect to the new lease.

In response to this order, DSL filed a Motion to Alter or Amend Judgment. This motion was denied, and the District Court ordered DSL to comply with the initial order. From the denial of that motion, DSL appeals.

Our standard of review relating to conclusions of law is whether the trial judge’s interpretation of the law is correct. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

I — EVIDENTIARY HEARING/REFUSAL TO CONSIDER BID

DSL contends that the District Court erred in granting Winchell an evidentiary hearing on the propriety of refusing to consider his bid for the state land lease. We agree.

The only provision for a hearing after a bid is rejected is in the case of the renewal of leases. See § 77-6-205, MCA. In that case, the prior lease holder, who has a preferential right to re-lease the land, may exercise the preferential right and request a hearing if he or she believes the high bid is excessive. Section 77-6-205(2), MCA. However, the prior lease belonging to Winchell was canceled. Thus, this is not a case involving a lease renewal and the exercise of a preferential right. Therefore, the hearing provisions of § 77-6-205(2), MCA, do not apply. Clearly, Winchell was not entitled to an evidentiary hearing based upon this renewal statute.

In the case of a new lease, such as the one at issue, competitive bidding generally governs which bid is accepted. Section 77-6-202, MCA, provides, in pertinent part:

When the department receives an application to lease an unleased tract, it shall advertise for bids on the tract. The tract shall be leased to the highest bidder unless the board determines that the bid is not in the state’s best interest for the reasons set forth in 77-6-205(2). If the high bid is rejected, the board shall set forth the reasons for the rejection in writing....

This statute clearly requires that, if the high bid is not accepted, the board must set forth its reasons for rejecting that high bid in writing. Again, there is no statutory provision allowing an evidentiary hearing to be had after a high bid is rejected.

According to § 77-6-202, MCA, DSL can only reject a high bid if doing so is in the State’s best interest pursuant to § 77-6-205(2), MCA. As we pointed out above, § 77-6-205, MCA, and the procedure set forth therein pertain to the renewal of leases as opposed to leases of unleased tracts. Nonetheless, in § 77-6-202, MCA, which does pertain to leases of unleased tracts, the legislature has specifically chosen to incorporate the “best interest” and “duty” standards of § 77-6-205(2), MCA, as the basis for rejecting the high bid on an unleased tract. Section 77-6-205(2), MCA, provides, in pertinent part:

[A] bid is not in the best interest of the state [if] it is above community standards for a lease of the land, would cause damage to the tract, or would impair its long-term productivity ... It is the duty of the board to secure the best lessees possible, so that the state may receive the maximum return possible with the least injury occurring to the land.

If DSL rejects a high bid based on the standards enunciated above, it must, under § 77-6-202, MCA, set forth the reasons for its rejection in writing.

In this case, DSL did not make written findings that Winchell’s high bid was not in the best interest of the State because it either (1) was too high for community standards; (2) would cause damage to the land; or (3) would impair long-term productivity. Rather, DSL out-of-hand refused to consider Winchell’s bid at all, based upon 26.3.142(6), ARM, which states:

Any person who has had his lease or license cancelled and not reinstated by the board or department for any reason except nonpayment of rentals shall not be allowed to bid upon the lease or license or upon any lease or license for land managed by the department. If no other bids are received, the former lessee or licensee maybe allowed to bid, but the board may reject any or all bids from a lessee or licensee who has had his lease cancelled in the past.

DSL contends that this regulation absolutely prohibits Winchell from bidding on any state land leases, and that it legitimately refused to consider his bid. With that conclusion, we disagree.

Section 77-6-108, MCA, contains certain proscriptions against those who may lease state lands. This section provides only that:

No person may lease state lands, except one who is the head of a family, unless he has attained the age of 18 years. Any such person and any association, company, or corporation authorized to hold lands under lease may lease state lands and may hold more than one lease to state lands.

Importantly, there is no proscription contained in the statute that one whose lease has been previously canceled may not thereafter bid on or lease state lands.

Likewise, there is no such proscription in § 77-6-202, MCA, which, as discussed above, allows DSL to reject a high bid only on the basis of a written finding of violation of the standards set forth in § 77-6-205(2), MCA. Again, those standards do not contain any proscription disallowing the bid or ability to lease of one whose lease has been previously canceled.

Finally, none of the various sections in Title 77, Chapter 6, MCA, pertaining to the cancellation of leases by DSL contain any provision that, once a lease has been canceled, the offending lessee may not, thereafter, bid upon or lease state lands.

Simply put, there is no statutory authority in Title 77, Chapter 6, MCA, which disallows a lessee whose lease has been canceled from bidding on a new lease or leasing state lands. The administrative regulation which purports, in essence, to give DSL the ability to refuse to even consider a bid, 26.3.142(6), ARM, is in derogation of the cited statutes and is, therefore, unlawful to that extent. See: Bick v. State (1986), 224 Mont. 455, 457, 730 P.2d 418, 420 [“[A] statute cannot be changed by administrative regulation.”]

We recognize the importance and great value of school trust lands to the State. See Dep’t of State Lands v. Pettibone (1985), 216 Mont. 361, 702 P.2d 948. Unquestionably, in discharging their fiduciary duty to manage state trust lands according to the highest standards, the Board of Land Commissioners and DSL, under the direction of that Board, exercise considerable discretionary powers. See §§ 77-1-202 and 77-1-301, MCA; State ex rel. Gravely v. Stewart (1913), 48 Mont. 347, 137 P. 854; State ex rel. Thompson v. Babcock (1966), 147 Mont. 46, 409 P.2d 808; Jeppeson v. Dep’t of State Lands (1983), 205 Mont. 282, 667 P.2d 428.

Nonetheless, the broad discretionary powers of DSL are not without limit and are defined by the parameters of statutory requirements enacted by the legislature. See Winchell I, 764 P.2d at 1270. We hold that, because DSL refused to consider Winchell’s bid pursuant to an overbroad and unlawful administrative regulation, DSL acted in excess of its jurisdiction and abused its discretion. We reiterate that, according to statutory authority, a high bid can only be rejected if DSL makes written findings that the high bid was too high for community standards, would cause damage to the land, or would impair long-term productivity.

We note that DSL may, in exercising its discretion, consider the fact that Winchell’s lease was previously canceled, and the circumstances of that cancellation, as evidence supporting any of the three statutory bases for rejecting his high bid. However, the fact of the previous cancellation cannot, in and of itself, automatically prohibit the applicant from either bidding or leasing. DSL must consider Winchell’s bid in the context of the statutory requirements of §§ 77-6-202 and 77-6-205(2), MCA.

II — LEASING TO UNINCORPORATED ASSOCIATION

DSL also contends that it properly granted the lease to DCPF, which is an unincorporated association. We disagree.

As discussed above, § 77-6-108, MCA, addresses who may lease state lands:

No person may lease state lands, except one who is the head of a family, unless he has attained the age of 18 years. Any such person and any association, company, or corporation authorized to hold lands under lease may lease state lands.... (emphasis added)

Section 26.3.129(19), ARM, defines “person” for purposes of state leases as “any individual, firm, association, corporation, governmental agency, or other legal entity.” At issue in this case is whether DCPF is an association authorized to “hold lands under lease.” DCPF is an unincorporated association and its bid was signed by its president, Mark Zuber.

Winchell contends that unincorporated associations and similar entities not on record with the Secretary of State are prohibited from acquiring state land leases. DSL argues that § 77-6-108, MCA, allows organizations not on file with the Secretary of State, including “loosely-knit groups such as associations, companies, partnerships, and similar organizations” to obtain leases. The District Court found that DCPF was not a legal entity and that, under common law principles, it could not hold a leasehold interest in real property.

This is an issue of first impression in Montana. We have not found nor have we been cited to any Montana authority on the issue of whether or not an unincorporated association can hold lands under lease.

We have previously stated that a lease is a conveyance of an interest in land. See Knight v. OMI Corp. (1977), 174 Mont. 72, 568 P.2d 552. At common law, an unincorporated association is not considered a legal entity capable of acquiring or holding title to real property in the association’s name. North Little Rock Hunting Club v. Toon (Ark. 1976), 536 S.W.2d 709, 713-14; Bank of Oak Grove v. Wilmot State Bank (Ark. 1983), 648 S.W.2d 802, 803; O.K.C. Corp. v. Allen (Tx. 1978), 574 S.W.2d 809, 812. The reasoning behind this common-law rule is sound: there must be some legal, identifiable party holding the interest who is responsible for liability arising out of that ownership interest.

In Toon, the North Little Rock Hunting Club, an unincorporated association, leased real property in its own name. The lessor sold the property to the Toons, who filed an action attempting to void the lease agreement with the hunting club. Toon, 536 S.W.2d at 711. The lower court held that, at common law, an unincorporated association could not hold title to real property, and the Arkansas Supreme Court affirmed the holding. Toon, 536 S.W.2d at 713-14.

In O.K. C., trustees of the White Rock Chapel Church filed an action to establish title to a tract of land. O.K.C., 574 S.W.2d at 811. The Court of Civil Appeals of Texas stated that an unincorporated association cannot acquire title to real property in its own name. The court went on to state, however, that trustees of an unincorporated association can hold real property interests. O.K.C., 574 S.W.2d at 812.

Both of these cases illustrate the important policy reasons supporting the common law rule. In O.K.C., individual, identifiable trustees were able to hold real property interests. However, in both O.K. C. and Toon, the associations themselves could not hold real property interests. We agree with the reasoning behind these cases, and adopt the same in this case.

DSL argues that it can hold the person signing the lease liable for a breach of the lease agreement or for damages caused to the land. However, if that person has moved, died or cannot be located, DSL is left with a lease where the actual, nominal lessee is an organization with no legal status, whose membership is probably unknown, and which may be operating without the benefit of any formal organization or regularly elected or appointed representatives with clearly delineated authority to bind the membership of the organization. If the lessee is the individual, then DSL has clearly defined legal remedies for enforcement and breach of the lease against that individual. If, on the other hand, the actual, nominal lessee is nothing more than a “loosely-knit group” purportedly represented by an individual who may or may not have authority to bind the individual members of that group, then DSL’s ability to enforce its lease is, at best, questionable. Entering into leases whose enforceability is questionable flies directly in the face of DSL’s fiduciary duty to “secure the best lessees possible, so that the state may receive the maximum return possible with the least injury occurring to the land.” Section 77-6-205(2), MCA.

Montana has statutorily recognized two types of associations as legal entities. These associations include cooperative associations and agricultural associations, as provided for in Title 35, Chapters 15 and 16, MCA. Both of these entities have the statutory authorization to hold real property interests. Section 35-15-103, MCA; Section 35-16-202, MCA. There is no provision in the Montana statutes that allows unincorporated associations, without a legal identity, to hold real property interests. Therefore, we hold that DCPF, an unincorporated association and, thus, a non-legal entity, cannot lease state lands in its own name. DSL’s own regulation supports this conclusion: 26.3.129(19), ARM, allows DSL to lease to “persons”, which is defined to include various types of organizations “and other legal entities.” This definition necessarily implies all the organizations listed in the definition, including individuals, firms, associations, corporations, and governmental agencies, must have a legal existence in one form or another. The District Court correctly interpreted the law on this issue.

Finally, DSL contends that, even if DCPF cannot hold a state land lease, Pheasants Forever, Inc., can hold such a lease. DCPF is a local chapter of and is sponsored by Pheasants Forever, Inc., which is registered and authorized to do business in Montana as a corporation. We note, however, that Pheasants Forever, Inc. was not the bidder on the state lease; DCPF was. Therefore, whether Pheasants Forever, Inc. can hold the lease is irrelevant.

Affirmed in part and reversed in part.

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

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority’s holding under both Issue I and Issue II.

I agree that Winchell was not entitled to an evidentiary hearing and that the District Court erred by requiring one.

However, I strongly disagree with the majority’s conclusion that 26.3.142(6), ARM, is in derogation of State statutes, and therefore, unlawful.

Section 77-6-205(2), MCA, provides that “[i]t is the duty of the board to secure the best lessees possible, so that the state may receive the maximum return possible with the least injury occurring to the land.” The same statute also provides that a “bid is not in the best interest of the state ... [if it] would cause damage to the tract....” It is not inconsistent with that statute for the Department of State Lands to conclude that prior conduct which was sufficiently detrimental to the land to cause cancellation of the lessor’s lease should disqualify the same lessor from bidding on the same lease in the future. Therefore, I conclude that 26.3.142(6), ARM, is a reasonable regulation adopted in furtherance of the criteria set forth in § 77-6-205(2), MCA.

I concur with that part of Justice Hunt’s dissenting opinion in which he dissents from the majority’s decision under Issue II. However, I also dissent for the reason that the majority’s decision is contrary to the plain language of § 77-6-108, MCA, which clearly provides that “any association... authorized to hold lands under lease may lease state lands ....” There is no statutory rule which would prohibit this association from holding lands. Neither is there any prior case law in Montana which would prohibit it from doing so. All of the public policy reasons set forth by the majority for prohibiting unincorporated associations from holding title to real property would apply equally to incorporated associations. The only difference between the two types of entity is a piece of paper filed with the Secretary of State. Therefore, I conclude that the distinction between incorporated and unincorporated associations makes no practical difference.

For these reasons, I join in Justice Hunt’s dissent from Issue II, and also dissent from the majority’s decision under Issue 1.1 would reverse the judgment of the District Court and uphold the lease between the Department of State Lands and Dawson County Pheasants Forever.

JUSTICE HUNT

dissenting.

I concur with Justice Trieweiler’s dissent on Issue 1.1 also dissent on Issue II. When Mark W. Zuber signed the lease with the State of Montana for “Dawson County Pheasants Forever” as president, he became individually liable on the lease to the State of Montana if he represented an entity that for any reason could not hold an interest in real estate. He could not escape that liability any more than he could escape the liability if he had not signed as president of the organization but signed as an individual. I see nothing in the statutes or the common law that would change that result. He furnished the necessary documents with his bid that included his address and telephone number, and there is nothing in the record to show that it would be any more difficult to trace him to answer for any breach of the lease to the State. I would reverse on this ground alone.

But I would like to add, in addition, that Mr. Zuber was not served in the proceedings, according to the record, despite the fact that his address and telephone number were immediately available. Apparently no attempt was made to find out from him, or any other official of the organization he represented, the necessary proof of the right to hold property. Counsel for the unsuccessful bidder wrote a letter to the Montana Secretary of State asking for information about the status of the Dawson County organization and was advised that there was no record of that entity on file, and of course, there is not. But the record does disclose that upon the Department of State Lands’ appeal for reconsideration of the findings of fact, conclusions of law, and judgment of the District Court, a document was produced, duly filed with the Secretary of State, of a Minnesota corporation of Pheasants Forever, Inc., and accompanying that document was an affidavit by the secretary/ treasurer of the Dawson County Pheasants Forever stating that such an organization did exist and was a duly authorized chapter of the registered “Pheasants Forever, Inc.” The District Corut denied the motion to reconsider.

The local chapter was not incorporated, and therefore, its title would not appear in the Secretary of State’s office. With a shortage of personnel and 10,000 leases through the State of Montana, the Department of State Lands is not in the position to determine the legal status of each of its lessees to determine if they can hold an interest in property. Until the majority opinion, it did not have to.

I would reverse on the grounds that the individual who signed the lease was a proper individual to hold a leasehold interest. At the very least, I would remand for a hearing to consider all of the evidence presently in the file in order to determine if the Dawson County Pheasants Forever organization is capable of holding a lease.


author: JUSTICE GRAY

text:
    VIRGINIA RICKETT, Defendant and Appellant, v. CITY OF BILLINGS, Plaintiff and Respondent.
    No. 93-341.
    Submitted on Briefs November 5, 1993.
    Decided December 7, 1993.
    50 St.Rep. 1586.
    262 Mont. 339.
    864 P.2d 793.
    For Defendant and Appellant: Christopher P. Thimsen, Billings.
    For Plaintiff and Respondent: Mary Jane McCalla, Assistant City Attorney, Billings.
   JUSTICE GRAY

delivered the Opinion of the Court.

On January 14, 1993, the Billings City Court convicted Virginia Rickett (Rickett) of the offense of prostitution, imposing a six month term of incarceration in the city jail and a $500 fine. She filed a notice of appeal and the record was transmitted to the Thirteenth Judicial District Court, Yellowstone County.

Rickett, who was unrepresented by counsel, did not appear for an omnibus hearing scheduled by the District Court. Based on her failure to appear, the court determined that Rickett had not properly perfected her appeal and had waived her appeal; it deemed the appeal to be without merit. The District Court remanded the case to City Court for imposition and/or execution of that court’s sentence.

On appeal, Rickett challenges the District Court’s remand of her appeal. We conclude that the District Court exceeded its authority and, therefore, reverse its order remanding her appeal to City Court.

Rickett asserts that the District Court was required to hold a trial de novo upon the filing of her appeal pursuant to § 46-17-311, MCA. On that basis, she contends that court was precluded from ordering the execution of a previously-imposed sentence. She also argues that the District Court exceeded its authority by exercising appellate jurisdiction, relying on City of Hardin v. Myers (1981), 194 Mont. 248, 633 P.2d 677.

The City of Billings (the City) concedes that Rickett perfected her appeal under § 46-17-311, MCA. It contends, however, that the District Court had the jurisdiction to remand the case under its authority to control litigants and dismiss cases sua sponte, citing §§ 3-1-111, 3-1-113, 25-33-304, and 46-13-401, MCA. We disagree.

Upon the perfection of Rickett’s appeal, the District Court must try the case anew pursuant to § 46-17-311(1), MCA. We have determined that § 46-17-311(1), MCA, provides a trial de novo as the exclusive remedy for review of justice or city court proceedings. State v. Kesler (1987), 228 Mont. 242, 245, 741 P.2d 791, 793; Forsythe v. Wenholz (1976), 170 Mont. 496, 499, 554 P.2d 1333, 1335.

Black’s Law Dictionary (4th ed. 1968) 1677, defines trial de novo as “[a] new trial or retrial had in an appellate court in which the whole case is gone into as if no trial whatever had been had in the court below.” Therefore, a district court must conduct the proceedings before it as if the case had originated in that court, following all statutes and rules governing district court proceedings.

Section 46-16-122(2), MCA, governs a district court’s response to the failure of a defendant who is unrepresented by counsel to appear during the course of a misdemeanor trial. That statute authorizes the court to do one or more of the following: 1) order a continuance; 2) order bail forfeited; 3) issue an arrest warrant; or 4) proceed with the trial after finding that the defendant had knowledge of the trial date and is voluntarily absent. The District Court’s options, in response to Rickett’s failure to appear at the omnibus hearing, were limited to those set forth in § 46-16-122(2), MCA. It had no authority to remand her appeal to City Court under that statute.

Furthermore, the statutes cited by the City do not provide a basis for the action taken by the District Court. Section 3-1-111, MCA, sets forth a number of powers vested in the district comb respecting the conduct of its business, none of which include the remand of an appeal from city court. While § 3-1-113, MCA, authorizes a district court to use the means necessary for the exercise of jurisdiction conferred by the constitution or statute, it does not grant a district court blanket authority to respond to a defendant’s failure to appear when the range of responses is specifically circumscribed by statute. A district court is allowed to dismiss the appeal of a civil case under § 25-33-304, MCA. However, the statute does not authorize the remand of a criminal case such as the one before us. Finally, remand is not authorized by § 46-13-401, MCA, which allows a district court to dismiss a complaint, information, or indictment. We conclude that the District Court was without authority to remand Rickett’s appeal to City Court.

Our conclusion that the District Court overstepped its authority is in accord with City of Hardin v. Myers (1981), 194 Mont. 248, 633 P.2d 677. There, we stated that § 46-17-311, MCA, vested a district court with jurisdiction for a trial de novo but not appellate review. City of Hardin, 633 P.2d at 677. On that basis, we determined that the district court exceeded its authority by remanding a case to city court to allow for the correction of a faulty complaint and a new trial. City of Hardin, 633 P.2d at 678.

We hold that the District Court was without authority to remand Rickett’s case for imposition and/or execution of the sentence imposed in City Court. Therefore, we vacate the order remanding Rickett’s case and remand to the District Court for further proceedings.

Reversed.

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


author:
JUSTICE HARRISON
      JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BARI LYNNE LOSSON, Defendant and Appellant.
    No. 92-414.
    Submitted on Briefs August 26, 1993.
    Decided December 9, 1993.
    50 St.Rep. 1588.
    262 Mont. 342.
    865 P.2d 255.

      For Defendant and Appellant: Arthur J. Thompson, Thompson & Sessions, Michael G. Eiselein, Billings.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Patricia J. Jordan, Assistant Attorney General, Helena, Dennis Paxinos, Yellowstone County Attorney, Billings.
   JUSTICE HARRISON

delivered the Opinion of the Court.

A jury in the Thirteenth Judicial District Court, Yellowstone County, convicted Bari Lynne Losson (Bari) of mitigated deliberate homicide for the shooting death of her husband, Rick Losson (Rick). The court sentenced her to twenty years with ten years suspended, plus a consecutive six-year term for the use of a weapon. She appeals. We affirm.

The issues are:

1. Did the District Court err by admitting hearsay statements of Rick?

2. Did the District Court abuse its discretion in sentencing Bari?

3. Did the District Court err in granting the State’s amended information which charged Bari, for the second time, with deliberate homicide?

Rick and Bari had a history of domestic problems. In fact, Rick beat Bari on numerous occasions and he was convicted three times for battering her.

Following a domestic disturbance, Bari purchased a .38 Special pistol. On March 13,1990, after a day of heated argument with Rick, she used the pistol to kill him.

On that day at about 8:00 p.m., the couple was arguing. Rick charged out of the couple’s trailer, yelling at Bari. Bari shot at him. She chased him down the street, continuing to fire at him with the revolver. In total, she fired six shots, hitting him once in the thigh. The sixth shot penetrated his chest, killing him instantly.

The State charged Bari with deliberate homicide. She raised the affirmative defense of self-defense. Following plea negotiations, the State amended the information to charge mitigated deliberate homicide. The State agreed to recommend a sentence of thirty years, twenty-five suspended, and informed Bari it would seek an additional ten years for her use of a weapon. Bari accepted the plea agreement.

On July 10,1991, Bari pled guilty to mitigated deliberate homicide. Sentencing was scheduled for August 29, 1991. However, the State acquired evidence which suggested Bari killed Rick to gain $106,000 in life insurance.

After an investigation, the county attorney informed defense counsel that he intended to support his argument for the ten-year use of a weapon sentence by introducing evidence to prove Bari killed Rick in an attempt to recover $106,000 in life insurance. Instead of complying with the plea agreement, Bari withdrew her plea of guilty on the charge of mitigated deliberate homicide.

In September 1991, the State recharged Bari with deliberate homicide. The State recharged her, contending that Bari killed Rick to gain $106,000 in life insurance.

The trial began on February 25,1992. On the second day of trial, the court granted Bari’s motion to exclude all evidence pertaining to the life insurance.

On March 7,1993, the jury found Bari guilty of mitigated deliberate homicide. The District Court sentenced her on March 8,1992, to twenty years, ten suspended, plus a consecutive six-year term for the use of a weapon. She appealed on June 2, 1992.

I

Did the District Court err by admitting hearsay statements of Rick? The State offered three people who testified to statements Rick had made before he died. The court admitted the testimony, but gave a limiting instruction immediately following each contested statement.

First, a counselor at Beta Alternatives testified that Rick had said Bari “threatened to kill him in the past.” The court supplied the jury with the following instruction:

Ladies and gentlemen, the testimony that you have just heard, to-wit, that Mr. Losson said to [a counselor] ... that Mrs. Losson had threatened to kill him in the past, is not offered to prove the truth of the matter asserted. In other words, that she intended to do that act, but rather it is offered and its purpose is limited to show Mr. Losson’s state of mind. That is the hearsay exception which it can be admitted under. Accordingly, you are not to consider the testimony for any purpose but as it regards Mr. Losson’s state of mind.

Next, Rick’s boss at Hardee’s testified that Rick had said “Bari would kill him if he ever moved out.” The court gave a similar instruction to the jury.

Finally, Rick visited an officer in the Naval Reserves to inquire about the possibility of returning to active duty status during the Dessert Storm conflict. The officer testified that Rick had said he wanted to go active because “[h]e was afraid of his wife and thought she was going to kill him.” Again, the District Court gave a similar instruction to the jury.

The State argues that Rick’s statements were relevant because Bari asserted the claim of self-defense. We agree.

We have previously concluded that a victim’s state of mind is especially relevant in a homicide case where the defendant asserts the claim of self-defense. State v. Magruder (1988), 234 Mont. 492, 496, 765 P.2d 716, 719 (citation omitted). The relevant issue is whether the victim feared the defendant. If a victim has previously announced that he was fearful of a defendant, the jury could infer from that statement that it is unlikely the victim attacked the defendant. Magruder, 765 P.2d at 719 (citation omitted). If the jury infers that it is unlikely the victim attacked the defendant, it follows that the defendant could not have acted in self-defense. Effectively, testimony about the victim’s state of mind rebuts the defendant’s claim of self-defense.

Here, Rick’s statements to the three witnesses are relevant to the issue of whether Rick feared Bari. Bari, by claiming self-defense, opened the door for the prosecution to rebut that defense with the state of mind statements, which established Rick’s fear of Bari. We hold that the three statements were relevant.

Next, Bari argues that these statements are inadmissable hearsay. We disagree.

Hearsay is a statement made out of court, which is offered in court to prove the truth of the matter asserted. Rule 801(c), M.R.Evid. Rule 801(c), M.R.Evid. reads:

[h]earsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Although the distinction between hearsay and non-hearsay state of mind statements is somewhat confusing, a leading case from the District of Columbia Court of Appeals lends clarification. U.S. v. Brown (D.C. Cir. 1973), 490 F.2d 758. That court delineated the distinction between hearsay and non-hearsay as it related to state of mind evidence. The distinction turns on whether the statement is evidence which directly proves the declarant’s state of mind or whether the statement is evidence which circumstantially proves the declarant’s state of mind. Brown, 490 F.2d at 762-63.

If the evidence circumstantially proves the declarant’s state of mind, then the evidence is not offered to prove the truth of the matter asserted and the evidence is not hearsay. Brown, 490 F.2d at 762-63. The Brown court explained that:

the statement ‘X is no good” circumstantially indicates the declarant’s state of mind toward X and, where that mental state is a material issue in the case, such statement would be admissible with a limiting instruction. Technically [the statement] is not even hearsay since it is not being admitted for the truth of the matter alleged. We do not care whether X is in fact “no good” but only whether the declarant disliked him.

490 F.2d at 762-63.

Similarly, here, we conclude that the first two statements are not hearsay. The State did not introduce the statement that Bari “threatened to kill him in the past” to prove the fact that she threatened to kill Rick. Nor did the State offer the statement that “Bari would kill him if he ever moved out” to prove the fact that she contemplated killing Rick if he moved out of the house.

Rather, these statements circumstantially indicated Rick’s state of mind toward Bari; that he feared her. The jury was instructed not to consider whether Bari, in fact, threatened to kill or would kill Rick. Instead, the jury was instructed to consider Rick’s state of mind; whether he was afraid of Bari. We hold that the first two statements were not hearsay.

Alternatively, when the evidence directly proves the declarant’s state of mind, the evidence is introduced to prove the truth of the matter asserted and is hearsay. Brown, 490 F.2d at 762-63. The Brown court rationalized that:

the statement “I hate X” is direct evidence of the declarant’s state of mind and, since it is being introduced for the truth of the matter alleged, must be within some exception to the hearsay rule in order to be admissible.

490 F.2d at 763.

Here, the third statement that Rick “was afraid of his wife and thought she was going to kill him” is direct evidence of Rick’s fear. The State introduced the statement to prove the truth of the matter asserted in the statement or to prove that Rick was afraid of his wife. Since the statement was offered to prove that Rick feared Bari, the statement is hearsay. However, Rule 803(3) M.R.Evid., allows an exception:

[a] statement of the declarant’s then-existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed.

The State contends, and we agree, that the third statement meets the hearsay exception of Rule 803(3), M.R.Evid. The statement was offered to explain Rick’s state of mind when he sought to reenlist to active duty in the Navy. We hold that the third statement meets the hearsay exception of Rule 803(3), M.R.Evid.

Although the District Court admitted the three statements under Rule 803(3), M.R.Evid., generally, “we will affirm the decision of the trial court [if it correctly admits the statements] regardless of its basis in admitting the statements.” State v. McCord (1992), 251 Mont. 317, 325, 825 P.2d 194, 200. Here, the District Court correctly admitted the statements and gave limiting instructions after admitting each statement. Since the court correctly admitted the statements, we affirm its decision.

Bari contends that the District Court should not have admitted the three statements because the statements were not trustworthy, reliable or credible. She suggests that Rick made the statements to fabricate an in-advance corroboration of the defense he planned to use the next time he was arrested for beating her. Bari argues that the court should have made a determination on the reliability, trustworthiness and credibility of the statements prior to admitting them.

Conversely, the State argues, and we agree, that the trial judge is not required to scrutinize the credibility and weight of state of mind statements prior to admitting them. Rather, “the jury is the sole judge of [the] credibility and weight” of testimony. Rule 104(e) M.R.Evid.; Commission Comments, Montana Code Annotated, Rule 104(e) M.R.Evid., Title 26, Vol. 5, p. 189 (1993). The jury decides the facts and who to believe.

We conclude that Bari had ample opportunity to argue to the jury that, given the circumstances, Rick’s statements were not credible. We refuse to second-guess the jury’s decision.

Moreover, we have previously concluded that state of mind statements are rehable. McCord, 825 P.2d at 200. In the present case, Rick told the Naval officer that he wished to reenlist to active duty because “he was afraid of his wife and thought she was going to kill him.” This statement was a spontaneous response which explained his state of mind when he sought to reenlist to active duty with the Navy.

Further, when Rick’s boss inquired as to why he would not leave Bari, Rick replied that she “would kill [me] if [I] ever moved out.” This was a spontaneous response to a contemporaneous inquiry as to his state of mind.

Finally, on one occasion Rick moved out of the couple’s trailer home and lived at a local motel. While at the motel, he phoned his counselor. He told the counselor that Bari “threatened to kill him in the past.” This statement was a spontaneous response in a phone conversation in which Rick revealed his state of mind to a counselor. We conclude that a jury could find these statements reliable.

Next, Bari contends that the prejudicial effect of the statements outweigh their probative value. We disagree.

We will not disturb the district court’s evidentiary rulings absent an abuse of discretion. Magruder, 765 P.2d at 718. Here, we conclude that the District Court properly weighed the competing concerns and correctly determined that the probative value of the statements outweighed their prejudicial effect. We hold the court did not abuse its discretion and it properly weighed the evidence in accordance with Rule 403, M.R.Evid.

Finally, Bari, for the first time, objects to the prosecutor’s closing argument. She argues that the prosecutor improperly invited the jury to use Rick’s statements to establish her state of mind. In closing, with no objection from Bari, the prosecutor said:

She may blame all that past year of history and take it out on him the last one, you son-of-a-bitch, you [have] been beating on me for a year, do you think you are going to leave? Do you think you are going to go to the Navy? You think you are? Oh no, buddy, not after what I have been through. You are dying here tonight.

It is well established that a defendant’s failure to contemporaneously object to an error precludes our review of the alleged error. State v. Rodgers (1993), 257 Mont. 413, 849 P.2d 1028, 1031-32, 50 St.Rep. 335, 337. The parties must first allow the trial court the opportunity to correct the error. Rodgers, 849 P.2d at 1032.

We do not, by any means, condone the State’s excerpted argument in this case. The State inappropriately used the evidence to suggest Bari’s state of mind.

However, § 46-20-104(2), MCA, states that “[flailure to make a timely objection during trial constitutes a waiver of the objection except as provided in 46-20-701(2).” Section 46-20-701(2), MCA, provides that:

[n]o claim alleging an error affecting jurisdictional or constitutional rights may be noticed on appeal, if the alleged error was not objected to as provided in 46-20-104, unless the defendant establishes that the error was prejudicial as to his 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 defendant or his 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 defendant or his attorney and could not have been ascertained by the exercise of reasonable diligence.

Here, Bari did not object to the closing argument and, thus, she waived her objection. Further, we cannot allow Bari to raise the objection for the first time on appeal because her objection does not meet an exception under § 46-20-701(2), MCA. We hold that Bari’s failure to object at trial precludes our review of the alleged error.

II

Did the District Court abuse its discretion when it sentenced Bari?

Bari argues that the District Court should have sentenced her to probation because she did not have a prior criminal record, and she posed no great risk to society at the time of sentencing. This argument lacks merit.

Where the district court has considered the factors of § 46-18-101(3), MCA, and where the sentence is within the legal limits imposed by the applicable statutes, this Court will not find an abuse of discretion. State v. Almanza (1987), 229 Mont. 383, 386, 746 P.2d 1089, 1091. Mitigated deliberate homicide carries a maximum sentence of forty years imprisonment and a $50,000 fine (§ 45-5-103(4), MCA) and the maximum sentence for using a weapon is ten years (§ 46-18-221(1), MCA).

We conclude that the court followed the statutory criteria and sentenced Bari within the limits of the mitigated deliberate homicide statute, twenty years with ten suspended, and the enhancement statute for using a weapon, six years. The court gave ample justification for the sentence imposed. We hold that the District Court did not abuse its discretion in sentencing Bari.

III

Did the District Court err when it allowed the State to reinstate the charge of deliberate homicide against Bari?

Bari, argues that the State breached the plea agreement, causing her to withdraw her plea. However, the facts in the record negate her argument.

The parties agreed that the State would recommend a thirty-year sentence with twenty-five suspended if Bari pled guilty to mitigated deliberate homicide. They also agreed to argue the sentence for Bari’s use of a weapon at the sentencing hearing. Bari knew that the State intended to argue for the maximum ten-year sentence.

After Bari pled guilty, the State informed her that it expected to introduce recently discovered evidence to prove Bari’s motive in killing Rick was to gain $106,000 in life insurance. The State informed Bari that it would only use the evidence to support its argument for the maximum ten-year sentence for use of a weapon. Bari withdrew her plea.

The State did not breach the plea agreement. Rather, Bari chose to withdraw her plea. The State did not withdraw its offer to recommend thirty years with twenty-five suspended. Instead, as agreed, the State only intended to use the evidence to support its argument for the maximum ten-year use of a weapon sentence. Moreover, the State was under a duty to present the court with the concealed facts about Bari’s insurance motive. See State v. Brown (1981), 193 Mont. 15, 18, 629 P.2d 777, 778-79. We hold that the State did not violate the plea agreement.

Next, Bari contends that double jeopardy should have barred the State from reinstating the charge of deliberate homicide against her. She argues that double jeopardy attached when the court accepted her initial guilty plea to mitigated deliberate homicide, which she later withdrew. Thus, she maintains that the court should have been precluded from allowing the reinstatement of the deliberate homicide charge. This argument lacks merit.

This issue is moot. See Taylor v. Kincheloe (9th Cir. 1990), 920 F.2d 599, 602. Bari was only convicted of mitigated deliberate homicide and, the jury, by implication, acquitted her of deliberate homicide. Even if Bari could challenge the deliberate homicide charge on double jeopardy grounds, we would not be compelled to overturn her conviction of mitigated deliberate homicide. See Taylor, 920 F.2d at 602.

Moreover, Bari withdrew her plea, knowing that she was subjecting herself to the possibility that the State would reinstate the deliberate homicide charge. As the United States Supreme Court stated, “the Double Jeopardy Clause ... does not relieve a defendant from the consequences of [her] ... voluntary choice.” U.S. v. Scott (1978), 437 U.S. 82, 99, 98 S.Ct. 2187, 2198, 57 L.Ed.2d 65, 79. Specifically, here, Bari cannot “reject [the] plea bargain and then erect the shield of double jeopardy,” Fransaw v. Lynaugh (5th Cir. 1987), 810 F.2d 518, 526, cert. denied, 483 U.S. 1008,107 S.Ct. 3237, 97 L.Ed.2d 742, to protect herself from the charge of deliberate homicide. See U.S. v. Gerard (9th Cir. 1974), 491 F.2d 1300, 1306. We hold that the District Court did not violate double jeopardy when it allowed the State to recharge Bari with deliberate homicide.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, and WEBER concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority’s conclusion that out-of-court statements made by Rick Losson to the effect that his wife had “threatened to kill him,” or that he was afraid “she would kill him,” were not inadmissible hearsay statements.

It is clear from a review of the evidence in this case that the statements were offered for one purpose only. That purpose was to prove that defendant had planned to kill Rick Losson prior to the date on which his death occurred. To contend, as does the majority, that the jury could infer from the statements that it was unlikely that Rick would attack defendant, flies in the face of the fact that he had a criminal record for abusing and beating her, and a history of having done so for the entire one and a half years of their relationship.

Rule 801(c), M.R.Evid., reads:

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

By that definition, every one of Rick’s out-of-comb statements were inadmissible hearsay. They were all made by the victim, who was not there to testify, nor be cross-examined. They were all offered to prove that defendant had either threatened to kill Rick, or that he honestly believed she intended to kill him. They were offered to disprove her denial that his death was premeditated.

All the arguments about the decedent’s state of mind are merely window dressing to excuse the admission of statements by someone who was not under oath and not subject to confrontation by defendant so that the veracity of the statements could be tested. Under the facts in this case, the decedent’s state of mind was not an issue, and the out-of-court statements should not have been admitted.

To admit them under the pretext that they established the decedent’s state of mind, and then instruct the jury not to consider whether what he said was true, is a use of smoke and mirrors to avoid the Rules of Evidence. The effect of this decision is that the state of mind exception effectively swallows the hearsay rule. The District Court’s instruction did not cure the prejudice to defendant.

Therefore, I would reverse the judgment of the District Court and remand this case for retrial after excluding the inadmissible hearsay evidence.


text:
    WILLIAM G. SHULL, d/b/a GAMO, Plaintiff and Appellant, v. FIRST INTERSTATE BANK OF GREAT FALLS, a corporation; ZYCOM, INC.; CAPITAL DEVELOPMENT COMPANY; NORTH CENTRAL GAMING CO., a Montana corporation; and THOMAS C. HABETS, Defendants and Respondents.
    No. 93-549.
    Dated December 9, 1993.
    50 St.Rep. 1594.
    262 Mont. 355.
    864 P.2d 1268.

      For Plaintiff and Appellant: Joe Bottomly and Anne Biby, Bottomly Law Offices, Kalispell.
    For Defendants and Respondents: Robert J. Emmons, Emmons & Sullivan, Great Falls (for Zycom and Capital Development Co.); L.D. Nybo, Conklin, Nybo & LeVeque, Great Falls (for 1st Interstate Bank of Great Falls); and Gary Deschenes, Great Falls.
   OPINION AND ORDER

Defendants/Respondents Zycom, Inc. and Capital Development Company (collectively Zycom) have filed a motion to dismiss the September 21, 1993, notice of appeal filed by Plaintiff/Appellant William G. Shull d/b/a GAMO (Shull) and for attorney’s fees in bringing this motion. Shull opposes the motion to dismiss his first notice of appeal. The procedural facts before us, together with the interplay between the Montana Rules of Civil Procedure and the Montana Rules of Appellate Procedure, mandate our conclusion that the motion to dismiss should be granted.

In June, 1993, a jury returned verdicts in the underlying lawsuit between these parties. Shull prevailed against First Interstate Bank of Great Falls; the jury returned verdicts in favor of defendants Zycom, Inc., North Central Gaming Company and Thomas C. Habets. No issue was presented to the jury relating to Capital Development Company.

On August 4,1993, the District Court awarded Zycom, Inc. attorney’s fees and costs in defending the action. A judgment was issued and notice of entry of that judgment was given on August 25,1993.

On September 16, 1993, the District Court entered a judgment as to all parties, including Zycom, Inc., in the underlying action. Zycom, Inc.’s counsel gave notice of entry of judgment to Shull and First Interstate Bank on the same date. Shull served notice of entry of the September 16 judgment to all parties on September 20, 1993. The next day, September 21, Shull filed a notice of appeal from the “final judgment entered in this action on the 25th day of August, 1993.”

Defendants First Interstate Bank and Thomas C. Habets filed motions to amend the September 16 judgment on September 30, 1993. The Clerk of Court for the Eighteenth Judicial District transmitted the record on appeal to this Court on October 27, based on Shull’s September 21 notice of appeal from the August 25, 1993, judgment. The District Court heard defendants’ post-trial motions on November 9, and issued its orders on those motions on November 10, 1993. Shull filed a second notice of appeal, from the final judgment and post-trial orders, on November 17, 1993.

Zycom argues that, under these procedural circumstances, the first notice of appeal was premature and of no force and effect, and that the District Court was free to resolve the post-trial motions. We agree.

It is clear that the August 25 judgment for Zycom, Inc. and Capital Development Company was not a final and appealable judgment in this action. In an action involving multiple claims and multiple parties such as the underlying case here, a final judgment as to one or more but fewer than all of the claims or parties may be entered only upon an express determination by the court that there is no just reason for delay and upon an express direction for the entry of judgment. Rule 54(b), M.R.CivP. No such determination and direction were made here with regard to the August 25 judgment. Thus, no final judgment was issued on August 25 and no appeal was available pursuant to Rule 1(b)(1), M.R.App.P. Nor is the court’s August 25 judgment relating to Zycom, Inc. and Capital Development Company appealable under any of the Rule 1(b)(2) or (3), M.R.App.P., circumstances authorizing appeal from interlocutory orders or judgments. Therefore, we hold that the August 25, 1993, judgment was not appealable and Shull’s notice of appeal from that judgment — filed September 21,1993 — was premature and without legal effect.

Shull argues that the notice of appeal was intended to be a notice of appeal from the September 16,1993, final judgment. While this may be so, the notice of appeal specifically states that the appeal is from the August 25 judgment. Given the importance of specifying orders/judgments being appealed from, we will not rewrite parties’ notices of appeal for them.

Moreover, even if this Court were inclined to read the notice of appeal at issue as being from the September 16,1993, final judgment in the action, the notice of appeal still would be premature and of no effect. As stated, the final judgment was entered September 16,1993, and notice of entry of judgment was duly served by Shull on September 20. Shull filed the notice of appeal on September 21, 1993. Two defendants filed motions to alter or amend within 10 days thereafter.

Rules 52(b) and 59(g), M.R.Civ.R, authorize a party to file a motion to alter or amend a judgment within 10 days of notice of entry of judgment. It is clear that defendants’ post-trial motions were timely under these Rules. Shull argues, however, that his September 21 notice of appeal divested the District Court of jurisdiction to accept or determine those motions. We disagree.

Rule 5(a)(4), M.R.App.R, provides that if a timely motion to alter or amend a judgment is made pursuant to Rule 52(b) or 59, M.R.Civ.R, a “notice of appeal filed before the disposition of... the motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion. ...” We have not heretofore addressed the interplay between this portion of Rule 5(a)(4), M.R.App.P., the time period for filing a notice of appeal contained in Rule 5(a)(1), M.R.App.P., and the time for filing motions to amend or alter a judgment pursuant to the Montana Rules of Civil Procedure. We do so here by agreeing with the District Court’s interpretation that district courts retain jurisdiction to consider and resolve timely motions to alter or amend filed pursuant to Rule 52(b) or 59(g), M.R.Civ.R Stated differently, a notice of appeal filed prior to the expiration of the time allowed for motions to alter or amend but followed by such motions timely filed shall, as stated in Rule 5(a)(4), M.R.App.P., have no effect.

To hold otherwise would enable the party desiring to appeal to totally negate the opposing party’s ability to file timely motions to alter or amend a judgment under the Rules of Civil Procedure and have such motions addressed by the trial court. Such a ruling would base a party’s ability to move the court which heard the dispute in the first instance to alter or amend its judgment on winning a “race to the courthouse” subsequent to notice of entry of judgment. The various rules were not intended to do so. Further, such a result would prevent parties from examining judgments and their bases in a objective and unhurried manner over a period of several days before determining whether motions to alter or amend are appropriate; we will not encourage the automatic fifing of such motions by cutting off a party’s ability to timely file the motions as provided in two separate rules of civil procedure.

We note that Shull’s right to appeal from the September 16,1993, final judgment is not impacted by this Opinion and Order. This is so because Shull timely filed a second notice of appeal from the final judgment and post-trial orders entered by the District Court, precisely in order to preserve and protect his rights on appeal. The second notice of appeal was timely filed under Rules 5(a)(4) and 5(a)(1), M.R.App.P.

THEREFORE,

IT IS ORDERED that Zycom’s motion to dismiss Shull’s first notice of appeal is GRANTED; and

IT IS FURTHER ORDERED that Zycom’s request for attorney’s fees in bringing its motion to the Court is DENIED.

The Clerk is directed to mail a true copy of this Opinion and Order to counsel of record for the parties, to the Clerk of the Eighth Judicial District Court, and to the Honorable Thomas M. McKittrick.

Dated this 9th day of December, 1993.

J.A. TURNAGE, Chief Justice

JOHN CONWAY HARRISON, Justice

KARLA M. GRAY, Justice

WILLIAM E. HUNT, SR., Justice

FRED J. WEBER, Justice

JUSTICE NELSON did not participate.


author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. VINCENT M. KALUZA, Defendant and Respondent.
    No. 93-189.
    Submitted on Briefs November 23, 1993.
    Decided December 14, 1993.
    50 St.Rep. 1596.
    262 Mont. 360.
    865 P.2d 263.

      For Plaintiff and Appellant: A. Michael Salvagni, Gallatin County Attorney, Marty Lambert, Chief Deputy County Attorney, Bozeman.
    For Defendant and Respondent: Larry Jent, Williams, Jent & Dockins, Bozeman; Herman A. Watson, III, Bozeman.
   JUSTICE NELSON

delivered the Opinion of the Court.

The State of Montana (State) appeals an order of the Eighteenth Judicial District Court, Gallatin County, suppressing evidence obtained pursuant to a search warrant. We affirm.

The issue on appeal is as follows: Did the District Court err in suppressing the evidence at issue based upon its finding that no probable cause existed for the issuance of a search warrant?

Based on various information, the Gallatin County Sheriff’s Office (Sheriff’s Office) applied for a search warrant of two residences leased by the defendant, Vincent Kaluza (Kaluza). The search warrant was issued by the Justice of the Peace and then executed by the Sheriff’s Office. Thereafter, Kaluza was charged with criminal possession of marijuana -with intent to sell, a felony. Kaluza filed a motion to suppress, alleging the application for a search warrant lacked probable cause: The District Court found that the application for the search warrant lacked probable cause as to the 1208 West Alderson residence (Alderson residence) and ordered that evidence suppressed; however, the District Court refused to suppress the evidence seized at the 300 North Western Drive residence (Western residence). From the order suppressing the evidence, the State appeals. We note that Kaluza cannot appeal the District Court’s refusal to suppress the evidence seized at the Western residence at this juncture of his case. For that reason, we specifically decline to rule and take no position on whether probable cause existed to issue the search warrant for that residence, in order to preserve this issue for Kaluza on appeal, if he chooses to appeal.

We will not overturn a district court’s findings of fact regarding suppression hearing evidence unless those findings are clearly erroneous. State v. Bower (1992), 254 Mont. 1, 7, 833 P.2d 1106, 1110; State v. Cope (1991), 250 Mont. 387, 396, 819 P.2d 1280, 1286. Upon reviewing the record in this case, we are unable to say the District Court’s findings of fact regarding the Alderson residence are clearly erroneous.

The majority of the information contained in the application for a search warrant was directed to the alleged activities at the Western residence. Information pertaining to the Alderson residence contained in the application is as follows:

1. An alleged drug dealer, Kaluza, resided at the Alderson residence.
2. Kaluza’s vehicles were parked at the Alderson residence.
3. A citizen informant living near the Alderson residence informed a detective that he was “suspicious” about the person living at the Alderson residence because he “comes and goes at all times and does not appear to have a job” and because he “received packages from UPS.”
4. Numerous cars came to the Alderson residence.
5. A vehicle registered to a suspected drug dealer was parked at the Alderson residence.

The rest of the application deals with allegations about Kaluza and specifically his activities at the Western residence. The State apparently argues that, if there is probable cause to search the Western residence, probable cause exists to search any other residence occupied by Kaluza. Clearly, however, there must be adequate probable cause for the search of each residence. See, for example, United States v. Whitney (9th Cir. 1980), 633 F.2d 902, 907. This probable cause must be determined solely from the information contained within the four comers of the search warrant application. State v. Rinehart (1993), [262 Mont. 204], 864 P.2d 1219. It does not follow that, simply from the existence of probable cause to believe a suspect guilty, there is also probable cause to search his residence. United States v. Valenzuela (9th Cir. 1979), 596 F.2d 824, 828. Upon reviewing the four corners of the search warrant application, it is clear that the application does not provide a substantial basis for concluding that there was a probability that criminal activity was occurring at the Alderson residence. We hold that the District Court did not err in determining that the application for the search warrant did not set forth sufficient facts to establish probable cause at the Alderson residence.

Affirmed and remanded for trial.

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


text:
    DANIEL G. SINCLAIR, Plaintiff and Appellant, and Cross-Respondent, v. BIG BUD MANUFACTURING COMPANY, BIG BUD INDUSTRIES, INC., THE MEISSNER BROTHERS PARTNERSHIP, MEISSNER TRACTORS, INC., JOE MEISSNER, PAUL MEISSNER, BIG BUD TRACTORS, INC., and RON HARMON, individually, Defendants, Respondents and Cross-Appellants.
    No. 93-275.
    Submitted on Briefs October 5, 1993.
    Decided December 14, 1993.
    50 St.Rep. 1598.
    262 Mont. 363.
    865 P.2d 264.

      For Appellant: Elizabeth A. Best; Best Law Offices, Great Falls.
    For Respondents: L. D. Nybo and Evan Danno; Conklin, Nybo, LeVeque & Murphy, Great Falls; George N. McCabe; Jardine, Stephenson, Blewett & Weaver, Great Falls.
   JUSTICE GRAY

delivered the Opinion of the Court.

This case involves the application of Rule 41(e), M.R.Civ.P., which provides that an action shall not be farther prosecuted unless summons is issued within one year of its commencement. We reverse the District Court’s refusal to grant a motion to dismiss filed by Big Bud Industries, Inc., Meissner Brothers Partnership, Meissner Tractors, Inc., Joe Meissner, Paul Meissner, Big Bud Tractors, Inc., and Ron Harmon (collectively referred to as the non-BBMC defendants), holding that they were entitled to dismissal under Rule 41(e), M.R.Civ.P.

Daniel Sinclair (Sinclair) formed the first of many employment relationships with the various defendants in 1979. In that year, Ron Harmon, the owner of Big Bud Tractors, Inc. (BBTI), hired Sinclair as marketing manager and vice president. The corporation manufactured tractors in Havre, Montana.

In 1985, Joe and Paul Meissner, operating as Meissner Brothers Partnership, purchased the assets of BBTI. Meissner Brothers Partnership was subsequently incorporated as Meissner Tractors, Inc. (MTI). MTI hired Sinclair as vice president of operations in 1985. In 1986, MTI transferred its manufacturing operations to Big Bud Manufacturing, Inc. (later renamed Big Bud Industries, Inc.), but retained its sales and service activities. Sinclair subsequently became vice president of operations and marketing for Big Bud Manufacturing, Inc.

In 1986 and 1987, MTI initiated negotiations with the Chippewa-Cree Tribe of the Rocky Boys Reservation and the Assiniboine-Gros Ventre Tribes of the Fort Belknap Reservation to form a joint partnership. The negotiations resulted in the incorporation of Big Bud Manufacturing Company (BBMC) in 1988. MTI owned one-third of the newly-formed corporation and elected John and Paul Meissner and Ron Harmon to serve on its board.

In June of 1989, Sinclair accepted employment with BBMC as vice president and general manager. He reported to John Jollie (Jollie), BBMC’s president and chief executive officer. The two men disagreed about the management of the corporation and, on March 15, 1990, Jollie fired Sinclair.

On May 31,1990, Sinclair filed a wrongful discharge action against BBMC. Discovery was marred by BBMC’s dilatory tactics and the District Court levied sanctions accordingly. BBMC subsequently became insolvent and, in April of 1991, its shareholders voted to liquidate the corporation.

Sinclair filed an amended complaint in January of 1992. He joined the non-BBMC defendants, asserting that they were liable for his wrongful discharge under theories of “piercing the corporate veil.” He also asserted claims of actual fraud, tortious interference with contract, misrepresentation, and race and age discrimination.

In February of1992, the non-BBMC defendants moved for dismissal, asserting that Sinclair had failed to have summonses issued within one year of the commencement of the action as required by Rule 41(e), M.R.Civ.P. On that basis, the non-BBMC defendants argued that they were entitled to dismissal under Rule 12(b) for lack of jurisdiction, insufficiency of process and insufficiency of service of process. The District Court denied the motion. The non-BBMC defendants then answered Sinclair’s complaint.

In March of 1993, the District Court granted summary judgment in favor of the non-BBMC defendants. It determined that Sinclair had failed to present sufficient evidence on any of his claims to withstand summary adjudication.

Sinclair appeals from the grant of summary judgment dismissing his claims, asserting that genuine issues of material fact exist. The non-BBMC defendants cross-appeal, challenging the court’s refusal to dismiss the claims under Rule 41(e), M.R.Civ.R Because the cross-appeal issue relating to Rule 41(e), M.R.Civ.R, is dispositive, we focus on the application of that rule.

The District Court declined to dismiss the non-BBMC defendants, concluding that the last sentence of Rule 41(e), M.R.Civ.P., gave it the discretion to allow an action to proceed against defendants who appeared within three years. Our standard in reviewing a district court’s conclusion of law is to determine whether the interpretation of law is correct. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474-5, 803 P.2d 601, 603.

Rule 41(e), M.R.Civ.P., provides as follows:

Failure to serve summons. No action heretofore or hereafter commenced shall be further prosecuted as to any defendant who has not appeared in the action or been served in the action as herein provided within 3 years after the action has been commenced, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have been issued within 1 year, or unless summons issued within one year shall have been served and filed with the clerk of the court within 3 years after the commencement of said action, or unless appearance has been made by the defendant or defendants therein within said 3 years. When more than one defendant has been named in an action, the action may within the discretion of the trial court be further prosecuted against any defendant who has appeared within 3 years, or upon whom summons which has been issued within 1 year has been served and filed with the clerk within 3 years as herein required. [Emphasis added.]

The purpose of Rule 41(e), M.R.Civ.R, is to ensure that actions are timely prosecuted. Livingston v. Treasure County (1989), 239 Mont. 511, 513, 781 P.2d 1129, 1130.

Rule 41(e), M.R.Civ.P., does not afford the District Court discretion to allow the further prosecution of Sinclair’s action against the non-BBMC defendants. Phrased in mandatory language, the rule requires dismissal of an action where summons is not issued within one year of the commencement of the action. Indeed, we have previously stated that the failure to issue summons within that time frame entitles a defendant to dismissal. Sooy v. Petrolane Steel Gas, Inc. (1985), 218 Mont. 418, 424, 708 P.2d 1014, 1018.

In the case before us, Sinclair filed his original complaint against BBMC on May 31, 1990. The summonses naming the nonBBMC defendants as parties were not issued until January 22,1992, after the amended complaint was filed. Thus, they were not issued within one year of the commencement of the action as required by Rule 41(e), M.R.Civ.P., entitling the non-BBMC defendants to dismissal of the claims against them.

Notwithstanding the failure to issue the summonses timely, the District Court determined that it could allow the action to proceed because the non-BBMC defendants had made an appearance. It is true that an action may be further prosecuted under Rule 41(e), M.R.Civ.P., if a defendant appears within three years of the commencement of the action even though summons has not been timely issued. However, the only appearance made by the non-BBMC defendants prior to the court’s ruling was the Rule 12(b), M.R.Civ.P., motion to dismiss asserting the Rule41(e), M.R.Civ.P, bar to further proceedings. Rule 41(e), M.R.Civ.P., specifically allows a party to move for dismissal of the action and requires the district court to do so if summons was not properly issued. Thus, the non-BBMC defendants’ motion to dismiss does not serve as a basis for further prosecution of the action.

Sinclair advances a number of disjointed arguments purporting to demonstrate compliance with Rule 41(e), M.R.Civ.P. He apparently argues that literal compliance with the rule is not required. He relies on Livingston v. Treasure County (1989), 239 Mont. 511, 781 P.2d 1129, in which we excused the failure to file within three years the return of service that otherwise complied with Rule 41(e), M.R.Civ.P., and Sink v. Squire (1989), 236 Mont. 269, 769 P.2d 706, in which we stated that a failure to comply with all mandatory constructive service requirements would not be fatal to a district court’s jurisdiction if no prejudice resulted. Neither Livingston nor Sink, however, relax the requirement that summons be issued within one year of the commencement of the action pursuant to Ride 41(e), M.R.Civ.R

Sinclair also asserts that the non-BBMC defendants were served within two years of the commencement of the lawsuit. On that basis, he argues that they had ample time to appear within the three-year limit set forth in Rule 41(e), M.R.Civ.P. This argument, however, is merely an effort to circumvent the rule’s requirement that summons be issued within one year of the commencement of the action. As discussed above, failure to issue the summons timely is, in itself, fatal to further prosecution of the action.

Sinclair also argues that BBMC and the non-BBMC defendants are “one and the same” and, therefore, that the non-BBMC defendants were “actually” served or at least put on notice of the pending action with the filing of the original complaint. There is no merit to this argument. Here, the fatal flaw was the failure to timely issue summons naming the non-BBMC defendants as required by Rule 41(e), M.R.Civ.P.

Furthermore, we find no merit to Sinclair’s “one and the same” argument even if applied to the issuance of the summons. Rule 4(C), M.R.Civ.P., expressly requires summons to set forth the names of the parties. Thus, the summons naming only BBMC as a defendant does not provide a basis for the court to allow the prosecution of the action against the non-BBMC defendants, each of which is a separate legal entity or individual.

Finally, Sinclair argues that equity precludes dismissal of his claims against the non-BBMC defendants, relying on Courchane v. Kuntz (1990), 246 Mont. 216, 806 P.2d 12. This argument is again premised on Sinclair’s assertion that the non-BBMC defendants and BBMC shared the same identity. On that basis, he contends that the non-BBMC defendants are responsible for the dilatory discovery tactics that allegedly prevented Sinclair from discovering the claims against them.

Rather than supporting Sinclairs “equity” argument, Courchane supports dismissing the non-BBMC defendants. In Courchane, we determined that plaintiffs were aware of the factual basis for joining defendants when the original complaint was filed and had the burden of pursuing their claims at that time. Thus, we found no legal reason “to invoke the equity of a court” and affirmed the dismissal of the action against the defendants who had been added in violation of Rule 41(e), M.R.Civ.P. Courchane, 806 P.2d at 14.

The record reflects that Sinclair knew of the factual basis for any claims against the non-BBMC defendants when he filed the original complaint. Those claims were based, in large part, on allegations that the Meissners formed BBMC to obtain federal funding not otherwise available and to avoid the payment of debt. Additionally, various agreements executed by BBMC and the Meissners and Ron Harmon were integral to his claims.

Sinclair served as a member of the steering committee that formed BBMC. He also routinely participated in meetings held by its interim and permanent boards of directors. The minutes of the meetings held by these entities indicate that Sinclair participated in discussions concerning BBMC’s acquisition of federal funds as a minority small-business enterprise and assumption of the Meissners loan. Sinclair also was present when the interim board of directors voted to accept the various agreements between BBMC, the Meissners and Ron Harmon. Because Sinclair knew of the factual basis for his claims against the non-BBMC defendants when he filed the original complaint, he had the burden of pursuing his claims at that time. Thus, as in Courchane, equity provides no grounds for precluding the operation of Rule 41(e), M.R.Civ.P.

We conclude that the non-BBMC defendants were entitled to dismissal because summonses were not issued within one year of the commencement of the action, as required by Rule 41(e), M.R.Civ.P. Thus, we hold that the District Court erred in declining to grant their motion to dismiss. We vacate the District Court’s grant of summary judgment and remand for entry of an order and judgment dismissing the claims against the non-BBMC defendants in accordance with this opinion.

Reversed.

JUSTICES HARRISON, HUNT, NELSON, and WEBER concur.