author: JUSTICE HARRISON JUSTICE TRIEWEILER

text:
    MARK DeBRUYCKER and TAMMY DeBRUYCKER GILL, Plaintiffs and Appellants, v. GUARANTY NATIONAL INSURANCE COMPANY, a Colorado corporation, and CROP HAIL MANAGEMENT, a Montana corporation, Defendants, Respondents and Cross-Appellants.
    No. 93-130.
    Submitted on Briefs March 24, 1994.
    Decided September 12, 1994.
    51 St.Rep. 835.
    266 Mont. 294.
    880 P.2d 819.

      For Appellants: Dennis Patrick Conner, Attorney at Law, Great Falls (argued); Michael J. Best; Best Law Offices, Great Falls.
    For Respondents and Cross-Appellants: Kevin Meek (argued); Alexander, Baucus & Linnell, Great Falls.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal and cross-appeal from the Ninth Judicial District Court involving a hail insurance dispute over a barley crop. The jury awarded brother and sister Mark DeBruycker and Tammy DeBruycker Gill (DeBruyckers) hail insurance contract damages of $70,676.41 and punitive damages of $500,000 against Guaranty National Insurance (Guaranty) and $40,000 punitive damages against Crop Hail Management (Crop Hail) for violating the Montana Unfair Trade Practices Act (UTPA). The District Court, pursuant to § 27-l-221(7)(c), MCA, subsequently reduced the punitive damage award against Guaranty from $500,000 to $50,000 and set aside the punitive damage award against Crop Hail.

We reorganize and restate the issues as follows:

1. Did the District Court err by denying Guaranty and Crop Hail’s motions for summary judgment and a directed verdict on the issue of punitive damages?

2. Did the District Court violate the applicable standard of review when the court reduced the jury’s punitive damages award against Guaranty and Crop Hail by basing that decision on its own factual findings which were contrary to the jury’s special verdict form?

3. Did the District Court err by finding that Crop Hail was not an “insurer” subject to punitive damages under the UTPA?

The DeBruyckers own 1,470 acres of land near Bynum, Montana. In 1988, Guaranty sold the DeBruyckers an insurance policy insuring 1,389.9 acres of barley against hail loss. The remaining 90 acres were insured by Glenn Falls Insurance Company (Glenn Falls).

Guaranty charged the DeBruyckers a total premium of $33,627. The crop hail insurance policy provided coverage for crop damage caused by hail which reduced “crop yield.” The policy defined “crop yield” as:

The production per acre that the insured crop would reasonably be expected to produce at harvest. The production per acre is usually expressed in terms of bushels, pounds, tonnage, etc.

Barley yield is measured by weight. Under the policy, a payable loss existed if the barley suffered a reduction in yield (weight) exceeding 5 percent as a result of hail.

Two hail storms hit the DeBruyckers’ insured acres during the summer of 1988. After the first hail storm, Crop Hail sent an adjuster to examine the loss. The adjuster looked at a 90-acre field and decided to defer its loss adjustment until the crops matured. The adjuster assured Mark that the boot-tied barley would be calculated in the loss. Among other things, hail can cause boot-tied damage if hail hits the barley while the barley is still growing. The hail causes the head to deform, resulting in missing and underdeveloped kernels. Normally, boot-tied kernels will weigh less than normal kernels.

After the second hail storm, two Crop Hail adjusters were sent by their managing general agent, Guaranty, to the DeBruycker farm to adjust the loss. The adjusters met Mark and his father Lloyd DeBruycker at the 90-acre field. One of the adjusters started a loss count and the DeBruyckers were satisfied with the process he was instituting. However, the second adjuster then took over the adjustment, contending that boot-tied heads actually resulted in larger barley kernels. Lloyd disagreed and showed both adjusters the smaller and missing kernels on the boot-tied heads. The adjustment was then terminated.

The second adjuster wrote in his report that: “ [depending on the count I feel [the DeBruyckers] may have a loss, but... [I] would like to have dropped [Lloyd] in his tracks. He’s a real O-hole.” The following week, Guaranty through Crop Hail claimed that the parties were “so far apart” on the adjustment that they were enacting the arbitration provision of the contract.

To represent their interests, Guaranty appointed a representative, and the DeBruyckers appointed friend and fellow farmer, David Van Horn (Van Horn). The two representatives then appointed an umpire. At the arbitration adjustment, Guaranty’s representative apparently mentioned to Van Horn that boot-tied hail damage was not covered as a loss by the “book.” Van Horn later testified in court that he had never formally adjusted a hail loss and believed Guaranty’s representative, not realizing until just before trial that no “book” ever existed.

Guaranty and Van Horn agreed that the DeBruyckers suffered an 8.6 percent loss on 316 acres. The payable loss amounted to $3,418. After the arbitration, Guaranty’s representative forwarded to Crop Hail a bill for his services, including a line item entitled “Peace of Mind ???.??” which requested an unspecified amount.

Subsequently, the DeBruyckers discovered that the loss was actually on 90 acres — not 316 acres — and the 90 acres were actually insured by Glenn Falls instead of Guaranty. When the adjuster from Glenn Falls adjusted the 90-acre field, he found a 28.7 percent reduction in yield, but unlike Guaranty and Crop Hail, he credited the DeBruyckers for hail damaged boot-ties.

A few days later, Mark wrote to Crop Hail and requested the arbitration counts and results. Crop Hail only sent an arbitration proof of loss form because the counts were not documented.

One month later Mark and Lloyd met with Crop Hail’s branch manager. They presented photographs and other evidence that the adjustments to the fields were unfair and requested that the matter be reopened. Crop Hail denied their request and denied their claim on November 29, 1988. In December 1988, Crop Hail sent the De-Bruyckers a check for $3,418 with a restrictive endorsement which stated:

PROPER ENDORSEMENT HEREOF CONSTITUTES FULL SATISFACTION, COMPROMISE AND INDEMNITY FOR ALL CLAIMS AND DEMANDS FOR LOSS AND DAMAGE UP TO AND INCLUDING THE TIME OF ADJUSTMENT ON 8/26/88 TO CROPS INSURED UNDER POLICY NO. 25-884-12511-88.

The cover letter with the check stated that the check was a showing of good faith. The DeBruyckers refused to sign the check.

The DeBruyckers subsequently hired legal counsel who twice wrote to Crop Hail about the inconsistencies between Crop Hail’s 8.6 percent adjustment, and the Glenn Falls adjustment of 28.7 percent, and Crop Hail’s failure to find a payable loss on the other fields. Crop Hail refused to reopen the case.

The DeBruyckers ultimately brought suit against Crop Hail and Guaranty on the contract claim and also under a separate UTPA claim for punitive damages. The District Court denied Crop Hail and Guaranty’s motions for summary judgment on the unfair practices and punitive damages issues. The case went to trial on January 14, 1991, and the court denied Crop Had and Guaranty’s motions for a directed verdict on the issues of unfair practices and punitive damages.

The jury found for the DeBruyckers on all counts on the special verdict form and assessed contract damages of $70,676.41, as well as punitive damages of $500,000 against Guaranty and $40,000 against Crop Hail. Later, the District Court, pursuant to § 27-l-221(7)(c), MCA, reduced the punitive damage award against Guaranty to $50,000 and set aside the punitive damage award against Crop Hail.

Crop Hail and Guaranty cross-appeal the court’s denial of their motions for summary judgment and a directed verdict. The De-Bruyckers appeal the court’s reduction and setting aside of the jury’s punitive damage awards.

I

Did the District Court err by denying Guaranty and Crop Hail’s motions for summary judgment and a directed verdict on the issue of punitive damages?

Guaranty and Crop Hail argue that since the District Court found, after trial, as a matter of law, that a “reasonable basis for contesting the [DeBruyckers’] claim” existed, the District Court previously erred by not granting Guaranty and Crop Hail summary judgment or — in the alternative — a directed verdict on the issue of punitive damages. Guaranty and Crop Hail correctly allege that if they had a “reasonable basis” to contest the claim, then the De-Bruyckers had no independent cause of action for punitive damages under § 33-18-242, MCA.

“The ‘reasonable basis’ for denying a claim is a defense to liability under § 33-18-242, MCA.” Dean v. Austin Mutual (1994), 263 Mont. 386, 388-89, 869 P.2d 256, 258. We recently concluded that

reasonableness is generally a question of fact; therefore, it is for the trier of fact to weigh the evidence and judge the credibility of the witnesses in determining whether the insurer had a “reasonable basis” for denying a claim. This is not a determination that can be made “as a matter of law” ....

Dean, 869 P.2d at 258.

In this case, the District Court properly denied Guaranty and Crop Hail’s motions for summary judgment and directed verdict. The court properly allowed the jury to decide whether Guaranty and Crop Hail had a “reasonable basis” to deny the DeBruyckers’ claim.

II

Did the District Court violate the applicable standard of review when the court reduced the jury’s punitive damages award against Guaranty and Crop Hail by basing that decision on its own factual findings which were contrary to the jury’s special verdict form?

The jury, by special verdict, found that Guaranty and Crop Hail violated UTPA provisions found at § 33-18-201, MCA, and that Guaranty and Crop Hail had no reasonable basis in law or fact for contesting the DeBruyckers’ claim. Section 27-1-221, MCA, provides that reasonable punitive damages may be awarded when the defendant has been found guilty, by clear and convincing evidence, of actual fraud or actual malice. Here, the jury further found that there was clear and convincing evidence that both Guaranty and Crop Hail were guilty of actual malice and that punitive damages should be assessed against both of them. The jury awarded the DeBruyckers $500,000 in punitive damages against Guaranty and $40,000 in punitive damages against Crop Hail.

Section 27-l-221(7)(c), MCA, requires a district court to review a jury’s award of punitive damages, giving consideration to each of the following matters set forth at § 27-l-221(7)(b), MCA:

(i) the nature and reprehensibility of the defendant’s wrongdoing;
(ii) the extent of the defendant’s wrongdoing;
(iii) the intent of the defendant in committing the wrong;
(iv) the profitability of the defendant’s wrongdoing, if applicable;
(v) the amount of actual damages awarded by the jury;
(vi) the defendant’s net worth;
(vii) previous awards of punitive or exemplary damages against the defendant based upon the same wrongful act;
(viii) potential or prior criminal sanctions against the defendant based upon the same wrongful act; and
(ix) any other circumstances that may operate to increase or reduce, without wholly defeating, punitive damages.

The court must “clearly state [its] reasons for increasing, decreasing, or not increasing or decreasing the punitive damages award ... in findings of fact and conclusions of law, demonstrating consideration of each of the factors listed in subsection (7)(b).” Section 27-l-221(7)(c), MCA.

In its review of the jury’s punitive damages award pursuant to § 27-l-221(7)(c), MCA, the District Court concluded that Guaranty and Crop Hail had not violated the provisions of § 33-18-201, MCA, on which the jury received instructions. The court further concluded that Guaranty and Crop Hail had a reasonable basis to deny the DeBruyckers’ claim. These conclusions directly contradicted the findings of the jury described above. Based upon its findings and conclusions, the District Court reduced the jury’s award of punitive damages against Guaranty to $50,000 and struck the award of punitive damages against Crop Hail.

Section 27-1-221(6), MCA, provides that “[l]iability for punitive damages must be determined by the trier of fact, whether judge or jury.” Here, the District Court, under what the court perceived to be authorized under § 27-l-221(7)(c), MCA, overturned several findings of the trier of fact. We conclude that this exceeded the scope of review allowed to the court under the statute.

The DeBruyckers invoked their right to demand a jury trial pursuant to Rule 38(b), M.R.Civ.R To interpret § 27-l-221(7)(b), MCA, as allowing the court to reverse issues of underlying liability previously submitted to and decided by the jury would interfere with the jury as trier of fact deciding such issues.

Although the list enumerated at § 27-l-221(7)(b), MCA, may, as in this case, appear to include some of the same or similar issues as those put to a jury in the case, we conclude that the court’s review pursuant to subsection (7)(c) must be conducted without contradicting findings of fact made by the jury. In other words, we conclude that the District Court was bound by the jury’s determination of facts on all issues which had been presented to the jury. Section 27-1-22 l(7)(c), MCA, only empowers the court to evaluate the amount of the award of punitive damages in light of the factors enumerated under subsection (7)(b), and to make findings of fact and conclusions of law as to its reasons for increasing, decreasing, or letting stand the amount of the punitive damages award. It does not open the door for reversal of jury findings on underlying issues of liability.

We hold that the District Court committed reversible error when it overturned the above-described jury findings on liability. We therefore remand so that the District Court may conduct a proper review of the amount of punitive damages pursuant to § 27-l-221(7)(c), MCA.

Ill

Did the District Court err by finding that Crop Hail was not an “insurer” subject to punitive damages under the UTPA?

The District Court struck the punitive damages award against Crop Hail because it found that Crop Hail was not an “insurer” subject to punitive damages under the UTPA. This Court in O’Fallon v. Farmers Ins. Exchange (1993), 260 Mont. 233, 244-45, 859 P.2d 1008, 1015, held that:

individuals, as well as insurers, are prohibited from engaging in the unfair trade practices set forth in § 33-18-201, MCA and ... when an individual breaches the obligations imposed by that statute, the claimant who is damaged by that breach has a common law cause of action against that individual.

We further stated:

It is clear from the language of § 33-18-201, MCA, that not just insurers, but also claims adjusters, are prohibited from engaging in acts that are prohibited [by this statute].

O’Fallon, 859 P.2d at 1014.

Crop Hail recognizes that a common law claim may be brought against claims adjusters and their companies. However, Crop Hail correctly contends that the common law cause of action against an individual requires a different standard of proof. See Klaudt v. Flink (1983), 202 Mont. 247, 253-54, 658 P.2d 1065, 1068. Since the De-Bruyckers did not submit proof on the common law standard, Crop Hail argues that no cause of action existed against Crop Hail.

In spite of Crop Hail’s argument, we note that Crop Hail never claimed that it was not an insurer. Crop Hail did not raise the issue in its pretrial pleadings, nor did it raise the issue in the pretrial order. Crop Hail also failed to object to the jury instructions and the special verdict form based on the argument that it was not an “insurer” under the UTPA. Moreover, Crop Hail did not argue that the common law standard of Klaudt applied in this case.

We have ‘long adhered to the rule that an instruction given without an objection becomes the ‘law of the case.’” Nicholson v. United Pacific Ins. Co. (1985), 219 Mont. 32, 38, 710 P.2d 1342, 1346. Since Crop Hail acquiesced to the jury instructions, the instructions became the law of the case. Crop Hail’s consent to the instructions precludes it from arguing that it was not an “insurer” to avoid an assessment of punitive damages. On that basis, we determine that the District Court erred by concluding that Crop Hail was not an insurer.

We affirm on Issue I, reverse on Issue III, and reverse and remand on Issue II. On remand, we direct the District Court to conduct a review pursuant to § 27-l-221(7)(c), MCA, consistent with this opinion, to determine the amount of punitive damages. If the judge who decided this case does not hear the remand, then the succeeding judge must, after reviewing the record, decide the amounts of the punitive damage awards.

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

JUSTICE TRIEWEILER

specially concurring.

I concur with the result of the majority opinion. However, I conclude that the analysis of issues set forth in that opinion is deficient in several respects.

The issues raised by the parties on appeal were:

1. Was there sufficient evidence in support of the plaintiffs’ claims to withstand the defendants’ motions for summary judgment and a directed verdict, and to affirm the jury’s findings in favor of the plaintiffs?

2. If the answer to the preceding question is in the affirmative, could the jury’s findings be set aside under the guise of statutory review provided for in § 27-1-220, MCA?

The issues raised by the parties require an analysis of our standard of review from denial of motions for summary relief, and our standard of review of a jury’s findings. However, there is no such analysis in the majority opinion. Resolution of the first issue also requires some discussion of what evidence was presented to support the jury’s findings and to justify denial of defendants’ motions. Neither does the majority’s opinion include any discussion of that nature. Although the opinion necessarily infers that the jury’s findings were supported by substantial evidence, nowhere does it say so.

In response to Issue I, the majority infers that whether there is a “reasonable basis” for denying a claim is generally a question of fact, and therefore, that issue was properly submitted to the jury. However, there is no explanation why that general rule applies to the facts in this case.

In its consideration of Issue II, the majority concludes that the District Court erred by entering findings inconsistent with the jury’s findings. However, that is not always true. The majority opinion fails to distinguish when it is appropriate for a district court to enter judgment notwithstanding the verdict.

I conclude, after review of the record, that there was substantial evidence to support the jury’s findings that defendants violated the Unfair Trade Practices Act found at § 33-18-201 through -242, MCA, and were guilty of actual malice in violation of § 27-1-221, MCA. Therefore, I concur with the majority’s conclusion that the District Court correctly denied defendants’ motions for summary judgment and a directed verdict, and that the District Court erred by entering findings of fact inconsistent with those of the jury.

I also concur with the majority’s conclusion that Crop Hail Management waived any objection to suit under § 33-18-242, MCA, by raising that issue for the first time on appeal.

JUSTICE HUNT joins in the foregoing special concurrence.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    IN RE THE MARRIAGE OF MICHAEL K. COREY, Petitioner and Respondent, and VALERIE A. COREY, Respondent and Appellant.
    No. 94-081.
    Submitted on Briefs August 4, 1994.
    Decided September 12, 1994.
    51 St.Rep. 859.
    266 Mont. 304.
    880 P.2d 824.

      For Appellant: Linda L. Harris; Harris Law Firm, Billings.
    For Respondent: James D. Rector, Attorney at Law, Glasgow.
   JUSTICE HARRISON

delivered the Opinion of the Court.

The petitioner Michael K. Corey petitioned the District Court of the Seventeenth Judicial District, Valley County, for dissolution of his marriage to his wife, Valerie A. Corey, on April 20, 1993. On December 20, 1993, following a triál on all issues, the District Court entered its findings of fact, conclusions of law, and decree from which Valerie Corey now appeals. We remand for modification of the decree and, as modified, affirm.

The issues are:

1. Did the District Court err in distributing the property of the marital estate?

2. Did the District Court err in its calculation of the amount of maintenance awarded to Valerie Corey?

3. Did the District Court err by failing to make provisions for visitation between Valerie Corey and the minor children of the parties during Michael Corey’s periods of summer visitation?

4. Did the District Court err when it ordered Michael Corey’s child support payments reduced by one-half during those months that he has the minor children in his care for at least twenty-five consecutive days?

5. Did the District Court err when it did not order Michael Corey to continue providing health insurance for the minor children?

Michael Corey (Michael) and Valerie Corey (Valerie) were married on December 3, 1977. They had two children during their marriage: Brandon Corey, bom September 19, 1978, and Shannon Corey, born November 19, 1981.

Michael petitioned for dissolution on April 20,1993. In his petition, Michael requested dissolution of the couple’s marriage, joint custody of the children with suitable visitation, that Michael be required to pay child support, and division of the marital property. In her responsive pleadings, Valerie joined in Michael’s request for dissolution, joint custody with suitable visitation, Michael’s payment of child support, and division of the marital property. In addition, Valerie sought maintenance and attorney’s fees.

In its findings of fact, conclusions of law, and decree dissolving the couple’s marriage, the District Court found that both parties were fit and proper persons to be granted custody of the minor children and granted joint custody of the children to both parties. As a plan of implementation, the District Court ordered that Valerie have primary residential custody of the children and that Michael have visitation rights for three months in the summer, weekends, alternating holidays, and all other times reasonable under the circumstances.

In addition, the District Court found that Michael was financially able to provide support for the children and ordered him to pay child support in the amount of $275 per month for each child until emancipation. The District Court ordered these payments reduced by one-half during any month in which Michael had actual custody of the children for at least twenty-five consecutive days.

Also, the District Court found that the parties had accumulated real and personal property in the marital estate valued at $49,688. The court awarded Valerie various personal property worth $10,800, and awarded Michael real and personal property worth $38,888. The court also awarded Valerie maintenance payments of $400 per month for twelve months beginning January 1, 1994; $300 per month for twenty-four months beginning January 1,1995; and $200 per month for twenty-four months beginning January 1,1997. Finally, the court ordered Michael to pay one-half of Valerie’s attorney’s fees, amounting to $2,500.

I

Did the District Court err in distributing the property of the marital estate?

The standard this Court applies in reviewing a distribution of marital property is that, absent a clear abuse of discretion, the district court will not be overturned where the court based its distribution of marital assets on substantial credible evidence. In re Marriage of Otto (1990), 245 Mont. 271, 277, 800 P.2d 706, 710. Valerie contends that the District Court erred in dividing the marital property in an amount which equaled an approximate distribution of 78% of the marital estate to Michael and 22% of the marital estate to Valerie.

In support of her contention that the property division should be reversed, Valerie cites In re Marriage of Berthiaume (1977), 173 Mont. 421, 567 P.2d 1388. In Marriage of Berthiaume, this Court held that it was a clear abuse of discretion for the trial court to find that the marital property should be divided as equally as possible, and then grant one party well over 90 percent of the property without making any offset provision for the other party. Marriage of Berthiaume, 567 P.2d at 1390. Valerie contends that Marriage of Berthiaume is controlling, and thus the District Court committed reversible error. We disagree.

The present case is distinguishable from Marriage of Berthiaume. Here, after stating that the property should be equally divided, the District Court explained why it had not made an equal division of the property. The disparity in the division came from the award to Michael of a mobile home and real property on which the mobile home rested. The court explained that it would award the mobile home and land to Michael as the mobile home was damaged to a point where it was nearly uninhabitable and Michael was in a better position to repair it. Unlike Marriage of Berthiaume, the court stated that it was making up the difference in the values of the properties by increasing the amount of maintenance awarded to Valerie. In addition, it should be noted that this Court has held that an equitable division need not be an equal division. In re Marriage of Fitzmorris (1987), 229 Mont. 96, 99, 745 P.2d 353, 354.

The District Court did not abuse its discretion in apportioning, the marital property. It based its decision on substantial credible evidence and accounted for the unequal property distribution by increasing the amount of maintenance awarded to Valerie. We therefore affirm the District Court’s division of the marital property.

II

Did the District Court err in its calculation of the amount of maintenance awarded to Valerie?

The District Court awarded Valerie maintenance in the amount of $400 per month for the first twelve months following the dissolution, $300 per month for the following twenty-four months, and $200 per month for an additional twenty-four months. The parties do not dispute that Valerie is entitled to maintenance. Valerie contends that the District Court did not sufficiently consider her expenses and that this constitutes reversible error.

The standard of review for a maintenance award is whether the district court’s findings are clearly erroneous. In re Marriage of Eschenbacher and Crepeau (1992), 253 Mont. 139, 142, 831 P.2d 1353, 1355. The amount and period of maintenance are determined by reference to Montana statute. See § 40-4-203(2), MCA. The factors to be considered include:

(a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(c) the standard of living established during the marriage;
(d) the duration of the marriage;
(e) the age and the physical and emotional condition of the spouse seeking maintenance; and
(f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

Section 40-4-203(2), MCA.

The findings of fact indicate that the District Court considered all the statutory factors listed above. In particular, the District Court considered the unequal property division, the additional training Valerie will need to reenter the work force, her living expenses and current job opportunities, and Michael’s financial ability to pay maintenance. The court need not be fact specific as to its analysis of every factor. This Court has upheld maintenance awards where the trial court did not make specific findings regarding each statutory element, but its findings demonstrated that it considered the proper factors and the award was based on substantial credible evidence. In re Marriage of Cole (1988), 234 Mont. 352, 359, 763 P.2d 39, 43.

We conclude that the District Court considered the proper factors and its maintenance award was based on substantial credible evidence. The District Court’s findings regarding maintenance award were not clearly erroneous. Therefore, we affirm the court’s calculation and award of maintenance.

Ill

Did the District Court err by failing to make provisions for visitation between Valerie and the minor children of the parties during Michael’s periods of summer visitation?

According to Montana statute, “A parent not granted custody of the child [ren] is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child[ren]’s physical, mental, moral, or emotional health.” Section 40-4-217(1), MCA.

In the present case, the District Court granted Michael visitation rights for three summer months, weekends, alternating holidays, and all other reasonable times. The court did not grant Valerie visitation rights during the three summer months in which Michael has the children. Valerie contends that Michael’s visitation rights for three summer months amount to Michael having custody of the children for three months in the summer, and that she should have visitation rights during this time.

Michael asserts that the District Court’s order should not be modified. In support of his contention, Michael cites Meyer v. Meyer (1983), 204 Mont. 177, 663 P.2d 328. In Meyer, this Court held that a specific visitation schedule was not necessary when the district court had split custody of the three children (one to the wife, two to the husband) and provided that each party should have reasonable visitation. Meyer, 663 P.2d at 330-31. However, Meyer is not controlling in this case.

Here, the District Court did not provide for Valerie to have reasonable visitation when Michael has the children during the summer months. The only mention of equal access to Valerie is contained in the court’s finding establishing joint custody of the minor children. The court then made a separate finding on visitation which granted Michael visitation rights. Its finding on visitation did not include any rights of visitation for Valerie.

Michael’s visitation rights for three summer months amount to custody of the minor children for three months. Valerie, who is the noncustodial parent during these months, is entitled to reasonable visitation since there is no evidence that such visitation would in any way endanger the children. See § 40-4-217(1), MCA. Thus we remand to the District Court and instruct the court to amend its decree to provide that Valerie have reasonable visitation during the three summer months in which Michael has physical custody of the minor children.

IV

Did the District Court err when it ordered Michael’s child support payments reduced by one-half during those months that he has the minor children in his care for at least twenty-five consecutive days?

The District Court ordered Michael to pay child support in the amount of $550 per month for those months Valerie has custody of the children. The court also ordered him to pay child support in the amount of $275 per month for those months he has the children in his care for at least twenty-five consecutive days. Valerie contends that the District Court erred because the reduction is an unaccounted variation from the Uniform Child Support Guidelines. Michael asserts that the court correctly reduced the child support because the $550 per month guideline figure initially was based on a payment plan involving child support payments for only those nine months of the year in which Valerie has custody of the children.

In reviewing an award of child support, a presumption exists in favor of the district court’s determination; and we will reverse a district court’s determination only for an abuse of discretion. In re Marriage of Clingingsmith (1992), 254 Mont. 399, 406, 838 P.2d 417, 421-22.

Montana statute sets out several factors for a court to consider in determining the amount of child support, including the following:

(a) the financial resources of the child;
(b) the financial resources of the custodial parent;
(c) the standard of living the child would have enjoyed had the marriage not been dissolved;
(d) the physical and emotional condition of the child and the child’s educational and medical needs;
(e) the financial resources and needs of the noncustodial parent;
(f) the age of the child;
(g) the cost of day care for the child;
(h) any custody arrangement that is ordered or decided upon; and
(i) the needs of any person, other than the child, whom either parent is legally obligated to support.

Section 40-4-204(2), MCA. In addition, a court must apply the uniform child support guidelines when ordering child support. See § 40-4-204(3)(a).

Here, the District Court established the award of child support based on the guidelines and the statutory factors listed above. The cotut considered the undisputed guideline amount offered by Michael, and, among other factors, considered the custodial arrangement of Michael having the children during three summer months. Having considered these factors, the court reduced Michael’s child support payments by one-half during those months that Michael has custody of the children for at least 25 consecutive days.

We hold that the District Court did not abuse its discretion and properly applied the guidelines and the statutory child support factors in making the child support award. Therefore, we affirm the District Court’s award of child support.

V

Did the District Court err when it did not order Michael to continue providing health insurance for the minor child?

The record establishes that at the ¡time of trial, the minor children had health insurance coverage through Michael’s employer. The District Court’s findings of fact, conclusions of law, and decree do not mention provisions for health insurance.

Section 40-4-204(4)(a), MCA, applies to child support orders and health insurance. It provides in relevant part:

(4) Each district court judgment, decree, or order establishing a final child support obligation under this title and each modification of a final order for child support must include a provision addressing health insurance coverage in the following cases:
(a) If either party has available, through an employer or other organization health insurance coverage for the child or children for which the premium is partially or entirely paid by the employer or organization, the judgment, decree, or order may contain a provision requiring that coverage for the child or children be continued or obtained. [Emphasis added.]

Section 40-4-204(4)(a), MCA.

The record and Michael’s Respondent’s brief make it clear that the parties intended Michael to continue to carry the minor children on his employee health insurance policy. It was judicial oversight for the District Court to fail to include a provision regarding the children’s health insurance in its decree, The decree should be modified to include a provision that Michael ¡will continue to provide health insurance coverage for the minor children until they reach the age of majority. Thus, we remand for the District Court to modify its decree accordingly.

The judgment of the District Court is remanded for modifications consistent with this opinion, and, as [modified, is affirmed.

JUSTICES TRIEWEILER, HUNT, GRAY and WEBER concur.


author: JUSTICE HUNT JUSTICE GRAY,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. THOMAS NEIL SULLIVAN, Defendant and Appellant.
    No. 92-552.
    Submitted on Briefs April 21, 1994.
    Decided September 12, 1994.
    51 St.Rep. 827.
    266 Mont. 313.
    880 P.2d 829.

      For Appellant: Turner C. Graybill and George Robert Crotty, Jr., Graybill, Ostrem & Crotty, Great Falls.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Micheál S. Wellenstein, Assistant Attorney General, Helena; Patrick L. Paul, Cascade County Attorney, Great Falls.
   JUSTICE HUNT

delivered the Opinion of the Court.

Defendant Thomas Neil Sullivan, appeals from a verdict of the Eighth Judicial District, Cascade County, finding him guilty of three counts of felony theft, one count of felony accountability for tampering with public records, and a judgment requiring him to pay a fine to a charity from vacation and sick pay.

We affirm in part, reverse in part, and remand to the District Court for further proceedings.

We state the issues as follows:

1. Did the District Court err in failing to hold an omnibus hearing at least 30 days prior to trial pursuant to § 46-13-110, MCA, thereby prejudicing defendant?

2. Did prejudicial media publicity, and the District Court’s refusal to grant challenges for cause, preclude a fair trial for defendant?

3. Did the District Court err by limiting the testimony of Sue Duarte, excluding the testimony of Richard Duarte, and failing to grant defendant’s motion for a mistrial?

4. Did the District Court err in refusing to dismiss or reverse Counts I, III, IV, and V of the information on the grounds of insufficiency of evidence?

5. Did the District Court err in fining defendant his vacation pay and sick leave pay and ordering distribution of these funds to United Way of Cascade County?

Tom Sullivan was employed by the City of Great Falls from 1963 until August 29, 1991. He became director of the City’s Recreation Department in 1965 and directed the City’s consolidated “Park and Recreation Department” (the Department) from 1975 until August 29, 1991.

On August 29, 1991, Sullivan met with Great Falls Police Chief Robert Jones, Lieutenant Dave Warrington, and Detective Tim Shanks at the police station at their request. At the meeting, Chief Jones confronted Sullivan about allegations that large sums of money were missing from the department. Chief Jones asked Sullivan whether he had been taking golf course driving range money, winter golf lesson money, and golf course membership money for personal use. Sullivan told him that the money was used for Department projects, not his personal use. Sullivan asked to speak with City Manager John Lawton, who came to the police station after Chief Jones called him.

During this meeting, Mr. Lawton stated that he viewed the matter very seriously and that he was contemplating terminating Sullivan, suspending him with pay pending an investigation, or suspending him without pay pending an investigation. The next day, August 30, 1991, Sullivan resigned. Following his resignation and throughout the trial the Sullivan case received widespread local news coverage.

On November 15,1991, the State charged Sullivan by information with five counts of felony theft, in violation of § 45-6-301(l)(b), MCA; tampering with public records or information by accountability, a felony, in violation of § 45-2-302(1) and § 45-7-208, MCA; and official misconduct, a misdemeanor, in violation of § 45-7-401, MCA.

On March 31,1992, Sullivan filed a motion requesting the court to set a date for a preliminary pretrial conference. On April 6, 1992, Sullivan filed a motion to dismiss Counts I, II, III, IV, and VII of the information. Sullivan also filed a motion for individualized, sequestered voir dire, and various motions in limine. Three days prior to trial, on April 17,1992, the court held an omnibus hearing. The court granted Sullivan’s motion to depose Richard Duarte, and his motion for individualized, sequestered voir dire. The court dismissed one felony theft charge concerning swimming pool locker money and ordered Sullivan to stand trial on the following renumbered counts:

I: felony theft of city driving range money;

II: felony theft of golf club storage fees belonging to Connie Crammer;

III: felony theft of golf lesson money belonging to Bill Dunn or Connie Crammer;

IV: felony theft of golf course membership money;

V: felony accountability for tampering with public records by causing his secretary “to knowingly make false entries or false alterations of golf membership records”; and

VI: a misdemeanor count for “official misconduct” in “ordering his employees to provide funds for the 1991 Icebreaker Run from other budgets outside of the established budget for the Run.”

On April 29,1992, the jury found Sullivan guilty of three counts of theft and one count of tampering with public records by accountability. The jury found Sullivan not guilty of one count of theft and the charge of official misconduct. On May 11, 1992, Sullivan filed a motion to correct the verdict and a motion for a new trial. The court denied both motions. The court sentenced Sullivan to serve four 10-year concurrent sentences in the Montana State Prison with all but 30 days of the time suspended. As a condition of his suspended sentences, the court ordered Sullivan to pay $5644.68 in costs and restitution payable in the amount of $300 per month to the City of Great Falls for ten years starting from June 26,1992. The court also sentenced Sullivan to be fined $7089.30 of his vacation pay and $8699.63 of his sick leave to be paid to the Great Falls United Way. In addition, Sullivan was sentenced to 2000 hours of community service with the Great Falls Salvation Army.

ISSUE 1

Did the District Court err in failing to hold an omnibus hearing at least 30 days prior to trial pursuant to § 46-13-110, MCA, thereby prejudicing defendant?

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.

Defendant argues that the District Court’s violation of § 46-13-110, MCA, constitutes reversible error. Defendant asserts that holding the omnibus hearing 30 days prior to trial would have ensured timely consideration of pretrial motions and issues and would have avoided confusion and error.

Section 46-13-110, MCA, provides in part:

(1) Within a reasonable time following the entry of a not guilty plea but not less than 30 days before trial, the court shall hold an omnibus hearing.
(2) The purpose of this hearing is to expedite the procedures leading up to the trial of the defendant.

On January 16, 1992, Judge Sherlock, defendant, and the State held a telephonic scheduling conference in which the parties agreed to a trial date, a date to file pretrial motions, and an omnibus hearing scheduled for April 17, 1992. The record shows that prior to the omnibus hearing the court received, read, and understood the issues presented by the parties. The court heard arguments from both sides and addressed the issues raised in each motion at the omnibus hearing.

Defendant argues that three issues in particular were compromised by holding the omnibus hearing three days prior to trial.

First, defendant contends that discovery of documents previously requested from the City was not yet complete. The record shows that the court held a telephonic discovery conference on April 7, 1992, at which time the court ordered the State to provide discovery material to defendant. The court ordered the City to provide defendant access to its files. The State complied with the order with the exception of two items. The State produced these items after the court addressed the issue at the omnibus hearing.

Second, defendant notes that the court granted his motion for individualized, sequestered voir dire, but subsequently modified the ruling to the great prejudice of defendant. The motion for a sequestered voir dire was granted at the omnibus hearing. There is nothing in the record to show how defendant was prejudiced by granting this motion. Likewise, there is nothing in the record to show that the subsequent modification of this ruling was the result of holding the omnibus hearing three days before trial, rather than thirty days.

Third, defendant contends that the deposition of Richard Duarte, authorized at the omnibus hearing, was not completed until April 20, 1992, and that the deposition of Michael Clark (Richard Duarte’s stepson) was denied. Defendant filed the motion to compel the deposition of Richard Duarte and Michael Clark on April 15, 1992. The court ruled on that motion two days later at the omnibus hearing. We do not see the prejudice created by the court’s timely ruling on that motion.

“The purpose of the [omnibus] hearing is to expedite the procedures leading up to the trial of the defendant.” Section 46-13-110, MCA. It is clear from the record that all pretrial motions were raised, argued, considered, and disposed of by the court at the omnibus hearing. There is nothing in the record to demonstrate that defendant was prejudiced by the court’s disposition of those pretrial matters.

We hold that the District Court did not err in failing to hold an omnibus hearing at least 30 days prior to trial.

ISSUE 2

Did prejudicial media publicity and the District Court’s refusal to grant challenges for cause preclude a fair trial for defendant?

Defendant maintains that his efforts to avoid prejudice from the publicity surrounding the case were deterred by the District Court’s failure to take the necessary precautions to assure a fair trial and unbiased jury. Defendant asserts that continuous and massive publicity conditioned jurors to assume defendant’s guilt.

In support of this assertion, the appendix to defendant’s opening brief contains 36 news articles published before and during the trial.

In cases where defendants have moved for a change of venue due to prejudicial, media publicity we have held that the publicity must be inflammatory and create a reasonable apprehension that a fair trial is not possible. State v. Pease (1987), 227 Mont. 424, 433, 740 P.2d 659, 664; State v. Nichols (1987), 225 Mont. 438, 444, 734 P.2d 170, 174; State v. Holmes (1983), 207 Mont. 176, 181, 674 P.2d 1071, 1073; State v. Paisley (1983), 204 Mont. 191, 194, 663 P.2d 322, 324.

Inflammatory publicity is characterized by

“editorializing on the part of the media or any calculated attempt to prejudice public opinion against [defendant] or to destroy the fairness of the pool from which [defendant’s] prospective jurors would be drawn.”

State v. Nichols (1987), 225 Mont. 438, 444, 734 P.2d 170, 174 (quoting State v. Armstrong (1980), 189 Mont. 407, 423, 616 P.2d 341, 350). A review of the exhibits in the appendix to defendant’s brief reveals extensive news coverage that is factual rather than inflammatory.

Defendant argues that the court’s refusal to grant four defense challenges for cause precluded a fair trial for defendant. The statute governing challenges for cause is § 46-16-115, MCA, which provides in part:

(2) A challenge for cause may be taken for all or any of the following reasons or for any other reason that the court determines:
(j) having a state of mind in reference to the case or to either of the parties that would prevent the juror from acting with entire impartiality and without prejudice to the substantial rights of either party.

The decision of a district court judge as to the impartiality of a jury should not be set aside unless there is clear abuse of discretion. State v. Borchert (1971), 156 Mont. 315, 320, 479 P.2d 454, 457; Watson v. City of Bozeman (1945), 117 Mont. 5, 11, 156 P.2d 178, 180. As to the level of juror prejudice which would mandate disqualification, this Court said:

It is only where they form fixed opinions of the guilt or innocence of the defendant which they would not be able to lay aside and render a verdict solely on the evidence presented in court that they become disqualified as jurors.

Great Falls Tribune v. District Court (1980), 186 Mont. 433, 439-40, 608 P.2d 116, 120 (citing Irvin v. Dowd (1961), 366 U.S. 717, 722, 81 S. Ct. 1639, 1642, 6 L. Ed. 2d 751, 756); State v. Lewis (1976), 169 Mont. 290, 296-97, 546 P.2d 518, 522.

Defendant offers the voir dire examination of juror Price to illustrate how the court’s refusal to grant a challenge for cause precluded a fair trial. Price stated that he had heard about the Sullivan case before trial, and that he believed Sullivan to be guilty. In answer to the State’s questions, however, Price stated that he could set aside any prior opinions and base his decision on the evidence presented at trial. As a result, the court denied defendant’s challenge for cause. In State v. Bashor (1980), 188 Mont. 397, 408-09, 614 P.2d 470, 477, this Court held that the district court did not abuse its discretion in refusing the challenge for cause of a juror whose answers to defense counsel which, if standing alone, would indicate she could not give a fair opinion in the case. When further questioned by the court, the juror made it clear that she could put aside her emotions and judge the defendant fairly and solely on the evidence presented at trial.

In the present case, the District Court instructed prospective jurors that they must base their verdict on the evidence and put aside anything they had read in the papers or had seen on television regarding the case. The court instructed the jurors not to discuss the case with anyone, not to read about the case, not to listen to radio broadcasts about the case, and not to watch television coverage about the case. During voir dire, both the State and defendant informed the jurors that defendant was presumed innocent, and that the State carried the burden of proving defendant’s guilt beyond a reasonable doubt. Both the State and defendant questioned potential jurors about their prejudices. The impaneled jurors stated that they would be able to base their verdict solely on the evidence presented in court.

The publicity generated before and during the present case, although extensive, did not rise to the level of inflammatory so as to destroy the objectivity of the jury pool. Defendant has failed to demonstrate the prejudicial effect of that publicity. The record shows that the District Court carefully instructed both potential and impaneled jurors to lay aside their impressions and opinions and base their verdict on the evidence produced in court. Each juror selected to sit assured the District Court that his or her verdict would be based solely on the evidence produced in court. The record reveals no abuse of discretion by the District Court in determining whether prospective jurors were fit to serve.

We hold that neither media publicity nor the District Court’s refusal to grant challenges for cause precluded a fair trial for defendant.

ISSUE 3

Did the District Court err by limiting the testimony of Sue Duarte, excluding the testimony of Richard Duarte, and failing to grant defendant’s motion for a mistrial?

On April 15, 1992, defendant’s counsel interviewed former Department employee, Richard Duarte, by telephone. Mr. Duarte stated that in 1985 or 1986 his stepson, Michael Clark, told him that he found $32,000 in Wadsworth Park. Mr. Duarte then told defendant’s counsel that Michael was bragging and never found any money. On April 15, 1992, defendant’s counsel also interviewed Sue Duarte, wife of Richard and defendant’s former administrative assistant. Mrs. Duarte stated that she knew nothing about Michael finding $32,000.

During a second interview with defendant’s counsel, Mr. Duarte admitted that Michael found $3250 in a bag in Wadsworth Park. Mr. Duarte suspected it was drug money. He stated that Mrs. Duarte wanted him to turn the money in. Instead he hid the money in his garage, and in 1986 he began to gamble the money away.

Defendant filed a motion to compel the deposition of Mr. Duarte and Michael. The State filed a motion in limine to exclude any testimony concerning the money found by Michael in 1985. During the April 17 omnibus hearing, the court heard arguments on this and other motions. The court questioned whether finding money in 1985 was relevant to alleged crimes committed in 1989, 1990, and 1991. Defendant theorized that the money in question was not $3250 found in 1985 by Michael, rather, it was $32,000 stolen from the Department by the Duartes during the years 1989, 1990, 1991.

The court allowed defendant to depose Mr. Duarte for the purpose of determining when Michael found the money. Defendant was not able to locate Michael for deposition. The court reserved ruling on a motion to depose Mrs. Duarte for the purpose of attacking her credibility. During his deposition, Mr. Duarte testified that in 1985 Michael found $3250 in a bag in Wadsworth Park. Mr. Duarte admitted that neither he nor his wife told the truth about the money during their first interview with defendant’s counsel on April 15, 1992.

At trial, the court heard argument in chambers on the issue of cross-examining Mrs. Duarte for the purpose of attacking her credibility with prior inconsistent statements about Michael finding money. While in chambers, the State asked permission to question Lt. Warrington about information relevant to Michael finding the money. Lt. Warrington testified he learned through a tipster that in 1986 Michael Clark and another boy named LaVoie found a large sum of money. The tipster informed Lt. Warrington that the money belonged to a known drug dealer who was a neighbor of the LaVoies. Mrs. LaVoie spoke with an attorney about the money. Lt. Warrington contacted that attorney on the morning of April 23, 1992. The attorney recalled speaking with Mrs. LaVoie about the money six or seven years previously.

The court decided that it would allow defendant to attack Mrs. Duarte’s credibility but limited cross-examination to her prior inconsistent statements concerning her knowledge of whether her son found any money. Defendant then moved for a mistrial in light of the testimony of Lt. Warrington. The court denied this motion. Mrs. Duarte testified that although she first denied any knowledge of the money, she knew that Michael and a friend found a large sum of money in 1985.

Defendant moved to introduce Mr. Duarte’s deposition. The court denied the motion, reasoning that since Mr. Duarte had testified the money was found in 1985 any other testimony from him would be collateral.

Defendant argues that limiting the cross-examination of Mrs. Duarte violated his right to confront an adverse witness and precluded him from proving his alibi.

The defendant’s right to confront and cross-examine an adverse witness is grounded in the Sixth Amendment to the United States Constitution, and Article II, Section 24, of the Montana Constitution. However, limiting the scope of cross-examination does not necessarily violate a defendant’s right to confront an adverse witness. Sloan v. State (1989) 236 Mont. 100, 104-05, 768 P.2d 1365, 1368. A trial court has broad discretion to limit the scope of cross-examination to those issues it determines are relevant to the trial. United States v. Kennedy (9th Cir. 1983), 714 F.2d 968, 973, cert. denied (1984), 465 U.S. 1034, 104 S. Ct. 1305, 79 L. Ed. 2d 704.

The District Court properly exercised its discretion by limiting the cross-examination of Mrs. Duarte to the relevant issue of her credibility.

Defendant further argues that the District Court committed error by suppressing the deposition testimony of Mr. Duarte. Mr. Duarte testified that in 1985 Michael Clark found $3250 which Mr. Duarte believed to be drug money. The District Court excluded Mr. Duarte’s testimony out of a concern that introducing collateral matters from 1985 into a trial about crimes that were committed from 1989 through 1991 would confuse the jury and result in unnecessary delay.

Our standard of review relating to discretionary trial court rulings is whether the trial court abused its discretion in allowing (or disallowing) the evidence. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603-04.

Admission of evidence is governed by the Montana Rules of Evidence. Rule 402, M.R.Evid., states in part: “Evidence which is not relevant is not admissible.” Rule 401 defines relevant as “[e]vidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

The District Court correctly determined that once Mr. Duarte testified that Michael found the money in 1985, his testimony became irrelevant, and therefore, the testimony was properly excluded.

Defendant contends that his motion for mistrial should have been granted following Lt. Warrington’s in-chamber testimony about Michael Clark and the found money.

“The standard of review for reversing a lower court’s denial of a motion for mistrial requires clear and convincing evidence that the trial court’s ruling was erroneous.” State v. Gollehon (1993), 262 Mont. 293, 302, 864 P.2d 1257, 1263; State v. Gambrel (1990), 246 Mont. 84, 91, 803 P.2d 1071, 1075; State v. Salois (1988), 235 Mont. 276, 282, 766 P.2d 1036, 1310. Lt. Warrington’s testimony focused on the circumstances surrounding Michael Clark finding money in 1985 or 1986 and Lt. Warrington’s suspicion that the money might have been drug money.

We hold that there was no clear and convincing evidence in the record to show that the court’s denial of defendant’s motion for a mistrial was erroneous.

ISSUE 4

Did the District Court err in refusing to dismiss or reverse Counts I, III, IV, and V of the information on the grounds of insufficiency of evidence? \

When the issue on appeal is whether there was sufficient evidence to support a jury verdict, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. McLain (1991), 249 Mont. 242, 246, 815 P.2d 147, 150.

Defendant was convicted of Count I, theft of golf course driving range money, pursuant to § 45-6-301(l)(b), MCA, which provides:

(1) Aperson commits the offense of theft when the person purposely or knowingly obtains or exerts unauthorized control over property of the owner and:
(b) purposely or knowingly uses, conceals, or abandons the property in a manner that deprives the owner of the property ....

Defendant argues that his conviction was based solely on circumstantial evidence that failed to establish his guilt beyond a reasonable doubt. “A conviction may be based on circumstantial evidence alone.” State v. Bromgard (1993), 261 Mont 291, 295, 862 P.2d 1140, 1142; State v. Atlas (1986), 224 Mont. 92, 95, 728 P.2d 421, 423. “When circumstantial evidence is susceptible to two interpretations, one which supports guilt and the other which supports innocence, the trier of fact determines which is the most reasonable.” State v. Tome (1987), 228 Mont. 398, 401, 742 P.2d 479, 481.

Golf pro Bill Dunn testified that defendant instructed him to withhold from the daily deposit one-third of the money collected from the sale of driving range balls. Mr. Dunn was directed to turn that money over to defendant. Defendant informed Mr. Dunn that the money would be used for the Ice Breaker Run, the pet and doll parade, and T-shirts. There is no record of this money being deposited into City or Department accounts for these purposes, nor is there any evidence to show that defendant used any of the driving range money he collected for these purposes.

Based on the facts and circumstances, the jury, as trier of fact, found that the most reasonable explanation for the missing golf club membership money and the missing driving range money was theft by defendant.

Defendant was found guilty of Count III, felony theft of golf lesson money belonging to Bill Dunn and Connie Crammer, pursuant to § 45-6-301, MCA.

Dunn and Crammer taught winter golf lessons. Teaching winter golf lessons was not part of their employment contracts with the City. Students paid either instructor directly. Defendant contends that he solicited financial contributions from Dunn and Crammer to support the Ice Breaker Run and the pet and doll parade. According to defendant, Dunn and Crammer voluntarily contributed $3000 to $4000 per year to defendant. Drum and Crammer testified that defendant instructed them to turn over one-third of their golf lesson money to him. There is no record of any portion of this money being deposited into City or Department accounts. Viewed in the light most favorable to the prosecution, the evidence supports the jury’s verdict as to Count III.

Defendant was found guilty of Count IV, theft of City golf course membership money, pursuant to § 45-6-301, MCA. Defendant again argues that his conviction was based solely on circumstantial evidence that failed to establish his guilt beyond a reasonable doubt. As with Count I, we find that the jury, as trier of fact, determined that the most reasonable interpretation of the circumstantial evidence presented at trial was defendant’s guilt as to Count IV.

Defendant was found guilty of CountV, tampering with public records, pursuant to § 45-7-208, MCA, which provides in part:

(1) A person commits the offense of tampering with public records or information if he:
(a) knowingly makes a false entry in or false alteration of any record, document, legislative bill or enactment, or thing belonging to or received, issued, or kept by the government for information or record or required by law to be kept by others for information of government....

Golfers paid for City golf course memberships with cash, check, or both. Dunn, or someone on his staff, would tabulate the receipts from memberships sold and the amount of membership money collected to be sure the two balanced out. Dunn testified that they always balanced out. Defendant, rather than a park security guard, picked up membership money with the daily dfeposit and report and delivered them to the Department for Mrs. Floerchinger to deposit. She testified that the amount of money she received from defendant was usually less than the number of memberships sold. Mrs. Duarte prepared an annual golf report which detailed the number of City golf course memberships sold and the money deposited into the Department account from those sales. Mrs. Duarte informed defendant of discrepancies between the number of memberships sold and the amount of money deposited. From 1983 to 1989, defendant instructed Mrs. Duarte to change the number of memberships sold to match the amount of money deposited.

The record supports a finding by the jury that defendant tampered with public records by directing his assistant to knowingly make false entries or alterations to the annual golf membership report.

We hold that the District Court did not err when it refused to dismiss or reverse Counts I, III, IV, and V of the information for insufficiency of evidence.

ISSUE 5

Did the District Court err in fining defendant his vacation pay and sick leave pay and ordering those funds be paid to the United Way of Cascade County?

Included in defendant’s sentence the District Court ordered the following:

The defendant’s vacation pay in the amount of $7,089.30 and sick leave in the amount of $8,699.63 (total: $15,788.93) are to constitute a fine hereby levied against him. These funds shall be paid to the Great Falls United Way.

Prior to the entry of judgment, but after the court made known it intended to levy the fine, defendant’s attorney notified the court that it held a prior lien on defendant’s sick leave and vacation pay. It is not clear from the record that the defendant is able to pay the fine levied by the court.

We remand for further proceedings on that part of the order that levies a fine against defendant in accordance with § 46-18-231, MCA, which states:

(1) Whenever, upon verdict or a plea of guilty, a person has been found guilty of an offense for which a felony penalty of imprisonment could be imposed, the court may impose a fine, only in accordance with subsection (3), and in lieu of or in addition to a sentence of imprisonment. ...
(3) The court may not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine. In determining the amount and method of payment, the court shall take into account the nature of the crime committed, the financial resources of the defendant, and the nature of the burden that payment of the fine will impose.
(4) Any fine levied under this section in a felony case shall be in an amount fixed by the court not to exceed $50,000.

The court further ordered tliat the fine be paid to the Great Falls United Way. We reverse and remand this part of the judgment for further proceedings in accordance with § 46-18-603, MCA, which provides:

All fines and forfeitures collected in any court except city courts must be applied to the payment of the costs of the case in which the fine is imposed or the forfeiture incurred. After such costs are paid, the residue, if not paid to a justice’s court or otherwise provided by law, must be paid to the county treasurer of the county in which the court is held and by him credited as provided by law. Affirmed in part, reversed in part, and remanded for clarification.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON and WEBER concur.

JUSTICE GRAY,

dissenting.

While I agree with most of the Court’s opinion, I dissent on the issue of the District Court’s denial of Sullivan’s challenge for cause of juror Price. I would reverse on that issue.

I agree with the Court that our standard of review of a district court’s denial of a challenge for cause is whether the court clearly abused its discretion. I disagree, however, with the Court’s statement of the level of juror prejudice which mandates disqualification. The Court relies on Great Falls Tribune v. District Court (1980), 186 Mont. 433, 608 P.2d 116 and State v. Lewis (1976), 169 Mont. 290, 546 P.2d 518. It ignores our recent decision on challenges for cause — State v. Williams (1993), 262 Mont. 530, 866 P.2d 1099 — and in so doing, reaches an erroneous conclusion.

Section 46-16-115(2)(j), MCA, authorizes a challenge for cause of a juror “having a state of mind in reference to the case or to either of the parties that would prevent the juror from acting with entire impartiality and without prejudice to the substantial rights of either party.” Here, Sullivan challenged juror Price on that basis after voir dire examination.

The transcript of Mr. Price’s voir dire reflects that Mr. Price first stated he had his mind made up; then, that he really did not know how it would be possible for him to set aside the opinion he had already reached; then, that there was a possibility that he either could or could not put aside everything he had heard; and, finally, that it would be difficult for him to sit on the case with a completely blank mind. At very best, this record establishes Mr. Price’s repeated expressions of concern about his ability to be impartial.

The prosecution followed up by trying to rehabilitate Mr. Price. To a question as to whether — if picked for the jury — he would make his decision based solely on the evidence, Mr. Price responded that “[i]f I sat through this court, I am going to make my decision on what’s in here.” Then, the following two exchanges:

MR. HUDSPETH: You can put what went on beforehand aside?
MR. PRICE: I think I could.
MR. HUDSPETH: Make your best efforts to do that which means you will follow your oath as a juror?
MR. PRICE: Yes.

The best the prosecutor could do with Mr. Price was one firm answer as to making a decision on the evidence, followed by two equivocal answers of the “I think” and “best efforts” mode. Mr. Price ultimately sat on the jury and found Sullivan guilty of four of the charged offenses.

We set forth new standards concerning denials of challenges for cause in Williams just a year ago. Applying those standards here mandates a conclusion that there is a reasonable possibility that the denial of Sullivan’s challenge for cause of juror Price contributed to his conviction.

In Williams, the challenged juror candidly and repeatedly expressed her concern about her ability to be impartial in the case. In the face of those admissions of bias, we determined that the district court’s rehabilitation was, at best, unpersuasive, and that the court abused its discretion in denying the challenge for cause. 866 P.2d at 1102-03. To this point, Williams and Sullivan’s situation are essentially identical, except that here it was the prosecutor’s attempted rehabilitation that was substantially less than persuasive.

We went on in Williams to reject a black-and-white rule that an abuse of discretion regarding a challenge for cause is conclusively prejudicial. Instead, we determined that: (1) where an abuse of discretion occurs in denying a challenge for cause; and (2) the party making the challenge is required to use a peremptory challenge to remove the juror; and (3) the party uses all of his or her peremptory challenges; then (4) a presumption of prejudice arises. Williams, 866 P.2d at 1103. We stated we would balance the presumption against the totality of the circumstances to determine whether the error contributed to the defendant’s conviction. Id. There, the question boiled down to whether, in the face of basically uncontradicted evidence against the defendant, his use of one peremptory challenge to remove the juror who should have been removed for cause — leaving him five instead of six — reasonably could have contributed to his conviction. We concluded that it could not. Williams, 866 P.2d at 1104.

The case before us now mandates a different result. Here, the juror challenged for cause actually sat on the jury. The evidence was not uncontradicted or overwhelming on the offenses charged; indeed, the jury acquitted on two counts. Sullivan used his peremptory challenges on other jurors he was even more concerned about than juror Price, including several he had unsuccessfully challenged for cause. Under these circumstances, I conclude that there is a reasonable possibility that the District Court’s denial of Sullivan’s challenge for cause contributed to his convictions.

We emphasized in Williams that the facts of that case were unique, and that the result in that case should not lead prosecutors or district courts to any false sense of security in future cases. We cautioned trial courts that “when voir dire examination discloses a serious question about a juror’s ability to be fair and impartial, that question should be resolved in favor of excusing that juror.” 866 P.2d at 1104-05. The Court’s failure to apply, or even cite to, Williams in this case essentially nullifies that unanimous decision which less than a year ago changed our approach to questions involving denials of challenges for cause. It also results in a failure to provide Sullivan with a fair trial — which, at its most fundamental level, must surely mean a trial by an impartial jury. I dissent.


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ROBERT TERRANCE WILD, Defendant and Appellant.
    No. 93-413.
    Submitted on Briefs June 30, 1994.
    Decided September 15, 1994.
    51 St.Rep. 872.
    266 Mont. 331.
    880 P.2d 840.

      For Appellant: William F. Hooks, Appellate Defender Officer, Helena; John C. Schulte, Missoula.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; John P. Connor, Jr., Special Prosector; Kathy Seeley, Assistant Attorney General, Helena; and Chris Miller, Powell County Attorney, Deer Lodge.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Robert Wild was convicted of burglary, two counts of kidnapping, and five counts of deliberate homicide in a jury trial in the District Court for the Third Judicial District, Powell County. He appeals. We affirm.

The issues are:

1. Did the District Court err in denying Wild’s motion to suppress the statement he made to Agent McKay?

2. Did the court err in informing the potential jurors at voir dire that the death penalty would not be imposed in this case?

3. Did the court err in denying the motion to dismiss the felony murder homicide charges on grounds that the State failed to prove the necessary causal connection between the burglary and the subsequent deaths?

4. Did the court err in denying Wild’s motion to dismiss on grounds that the State failed to preserve evidence?

5. Did the court err in admitting into evidence autopsy photographs of the five deceased inmates?

On September 22, 1991, nine inmates in the maximum security unit at the Montana State Prison cut their way through wire fences in the exercise yard and stormed the guards’ control cages in the building. Robert Wild was one of those inmates. Eventually, the inmates gained access to and control of the entire maximum security unit, including cellblock D, where inmates in protective custody (PC) were housed for their own safety from other inmates.

By the time corrections officers regained control of the building four hours later, five PC inmates had been beaten, stabbed, and asphyxiated to death. Two more PC inmates survived by barricading themselves inside a laundry room. Five unarmed correctional officers took refuge during the riot inside a three-foot by five-foot shower room. They were not physically injured.

The information filed against Wild charged him with aiding, abetting, or attempting to aid other inmates in kidnapping the correetional officers by restraining them with threats of physical force in the cellblock C shower room. The second count of kidnapping alleged that Wild aided, abetted, or attempted to aid other inmates in kidnapping the two PC inmates by restraining them in the laundry room with threats of physical force. The burglary charge alleged that Wild knowingly entered or remained unlawfully in an occupied structure, cellblock D of the maximum security unit, with the purpose to commit an offense therein, namely riot. The five counts of deliberate homicide alleged that during the burglary, Wild or other persons legally accountable for the burglary caused the death of each of the five PC inmates who were killed.

Wild was found guilty of all of the above crimes after a five-day jury trial. He now appeals on five grounds.

Issue 1

Did the District Court err in denying Wild’s motion to suppress the statement he made to Agent McKay?

An analysis of the voluntariness of a confession is a factual question which must take into account the totality of the circumstances. State v. Mayes (1992), 251 Mont. 358, 376, 825 P.2d 1196, 1208. Our standard of review is whether the District Court’s findings are clearly erroneous. State v. Bower (1992), 254 Mont. 1, 7, 833 P.2d 1106, 1110.

Immediately after correctional officers regained control of the maximum security unit at the prison, state investigator Ward McKay began conducting individual interviews with the surviving prisoners who had been housed in that unit and the correctional officers on duty just before the riot. McKay spoke with Wild on September 24, 1991.

In his statement to McKay, Wild admitted being in on the planning of the September 22 incident for quite some time beforehand. He said, “I know I’m going to be charged with something.” McKay’s notes indicate that Wild said he watched the phones and the front gate during the riot and that he did some damage to offices, but that he did not go onto cellblock D. (No less than six inmates contradicted this statement at trial, testifying that they observed Wild on cellblock D during the riot.) In his statement to McKay, Wild said that he “didn’t give a fuck what was going on in D block,” and that the “fucking child molesters deserved to die.” He also admitted to threatening the guards in the shower that he would “bum them out” if they did not give him the keys to the exercise yard.

Wild moved to suppress evidence concerning his statement to McKay on grounds that the statement was involuntary because of the coercive nature of the situation. He submitted an affidavit in which he professed that, at the time he was interviewed, he had not slept or eaten in forty-eight hours. In his affidavit, he stated that he was given no choice but to talk to the investigator and that he had no clothes but was just covered with a blanket. He related that he was frightened because he was being separated from the other inmates and he was afraid of being beaten by the guards. He also stated that, when he refused to speak to the investigator, he was threatened with the death penalty.

Wild did not testify in person at the hearing on the motion to suppress, relying solely on his affidavit. The State presented the testimony of Agent McKay and prison investigator Thomas Balaz, who was present when Wild was interviewed.

Agent McKay testified that, at the beginning of the interview, he immediately advised Wild in detail of his rights and told him that he was not under arrest and that he could ask to go back to his cell immediately. McKay testified that Wild said, “I know I can have an attorney present and I may want one, but I’ll tell you when I do.” McKay asked Wild what he could remember about September 22, 1991. Wild made a rambling narrative statement, with McKay asking few questions, but just listening and taking notes. Wild seemed excited and seemed to want to tell McKay certain things. Eventually, Wild said, “I know I’m going to be charged with something, so I better have a lawyer.” McKay testified that he then terminated the interview.

Agent McKay further testified that at the time he interviewed Wild, McKay had been eating the same food served to the inmates since the riot. He testified that they had been fed cold food such as rolls, fruit, juice, milk, sandwiches, and chips. He stated that Wild was wrapped in a blanket at the interview and that he could not see what, if anything, Wild was wearing under the blanket.

Thomas Balaz verified much of what Agent McKay said. He testified that Wild seemed excited but not frightened during the interview. He also testified that Agent McKay’s demeanor was calm and quiet during the interview.

The court denied the motion to suppress, stating:

It appears from the evidence presented that the statement — the defendant’s statement was voluntarily given. The defendant was thoroughly advised of his rights and chose to speak to authorities, and when he determined to terminate the interview, the interrogation was stopped.
It appears that the defendant has not offered any contrary evidence. The Court tends to discount the affidavit of the defendant when he is available to testify and has chosen not to do so, and did not subject himself to cross-examination on the issue.

We agree with the District Court. The affidavit of Wild, absent the opportunity for cross-examination, is not entitled to as much weight as the live testimony of McKay and Balaz.

[T]he affidavit has to be accepted for what it actually is — a self-serving document drawn by [the defendant’s] attorney. The general rule is that affidavits “are commonly regarded as weak evidence, to be received with caution,” and that “they are not conclusive of the facts stated therein even though not contradicted by counter affidavits.” 32A C. J.S. Evidence § 1032 at 706.

Audit Services v. Kraus Constr., Inc. (1980), 189 Mont. 94, 103, 615 P.2d 183, 188.

Wild also points to an entry in the handwritten notes made by McKay during the interview: “Reg. [sic] Attny. — eventually.” He asserts that this proves that his statement was involuntary. However, Agent McKay explained this notation in his testimony to the court. He stated he initially believed Wild was beginning to request an attorney at the outset of the interview, and began to write that down. It then became clear to him that Wild was not requesting an attorney at that time. McKay testified that when Wild eventually did assert his right to an attorney, the interview was terminated.

The totality of the circumstances as demonstrated in the evidence before the District Court reveals that Wild was informed of his rights and voluntarily waived them and that he was capable of understanding the meaning and consequences of his statements. The evidence further establishes that Wild made a narrative statement to McKay which was not extracted by detailed questioning.

We hold that the District Court did not err in denying Wild’s motion to suppress the statement he made to Agent McKay.

Issue 2

Did the court err in informing the potential jurors at voir dire that the death penalty would not be imposed in this case?

Each of the five deliberate homicide charges against Wild carried a potential punishment of death. However, before voir dire began, the presiding judge informed the jury panel:

I would also advise you that this is not a capital case and the State is not seeking to have a death penalty imposed.

Wild argues that this violated the rule against informing a jury of the possible range of sentences available, citing State v. Herrera (1982), 197 Mont. 462, 643 P.2d 588.

In State v. Dawson (Ariz. App. 1989), 783 P.2d 1221, the Arizona Court of Appeals acknowledged that it is generally improper to inform a jury about the potential punishment a defendant faces upon conviction. Dawson, 783 P.2d at 1222. However, and noting that other courts have drawn the same conclusion, the Arizona court found no error, “fundamental or otherwise,” in informing the jury that a defendant does not face the risk of a death sentence if convicted. The court recognized that a jury panel might include members disposed against capital punishment. It approved of the trial court’s efforts to relieve the risk that jurors so disposed might be distracted in considering issues of guilt by the concern that, in the event of a guilty verdict, the death penalty might result. The appellate court agreed with the trial court’s assessment that by advising the jury up front that the State is not requesting the death penalty as punishment, a broader-based jury may be retained.

We agree with and adopt the reasoning of the Arizona court. Here, the District Court did not advise the jury panel what the potential range of sentences was; it simply told the panel this was not a death penalty case. Further, Wild has not established that he was prejudiced by the judge’s statement. We hold that the District Court did not err by informing potential jurors the death penalty would not be imposed in this case.

Issue 3

Did the court err in denying the motion to dismiss the felony murder homicide charges on grounds that the State failed to prove the necessary causal connection between the burglary and the subsequent deaths?

Wild maintains in his opening brief that the State failed to adequately prove a causal connection between the plan to enter cellblock D for the purpose of rioting and the deaths of the five inmates who were killed. He does not refer to, nor did the Court locate, any motion addressed to this subject at trial.

Wild’s trial counsel made a general motion to dismiss at the close of the State’s case for failure of the prosecution to prove its case beyond a reasonable doubt. However, that motion was not sufficient to apprise the District Court of the theory now raised or to allow the District Court an opportunity to rule upon this issue. Absent contemporaneous objection, this issue has not been properly preserved for appeal and we will not consider it further. See State v. Losson (1993), 262 Mont. 342, 351, 865 P.2d 255, 260.

Issue 4

Did the court err in denying Wild’s motion to dismiss on grounds that the State failed to preserve evidence?

This issue addresses the failure of the State to preserve the clothing shed by the inmates when they were ordered to strip for a security search at the end of the riot. The issue was decided in State v. Gollehon (1993), 262 Mont. 293, 304-05, 864 P.2d 1257, 1264-65; and was further addressed in State v. Close (Mont. 1994), (Cause No. 93-370, Decided September 15, 1994). Wild concedes the issue is raised here only to preserve it for further proceedings.

We reaffirm our conclusions in Gollehon and Close. We hold that the District Court did not err in denying the motion to dismiss.

Issue 5

Did the court err in admitting into evidence autopsy photographs of the five deceased inmates?

This Court ruled that the photographs at issue were admissible in Gollehon, 864 P.2d at 1263. This case is different, Wild maintains, because the medical examiner stated in response to cross-examination that he could present bis testimony without the autopsy photos.

However, the medical examiner also testified in this case that the photos were necessarily instructive and essential in enabling the jury to understand the nature of the injuries and that the photos simplified his task of explaining to the jury the injuries the victims had suffered. The photos were carefully selected as the best representations of the injuries sustained by the victims.

The autopsy photographs served, additionally, to corroborate testimony by inmates whose credibility was hotly contested at trial. Various inmates testified as witnesses for the State about different kinds of assaults which occurred upon the victims. We hold that the District Court did not abuse its discretion in balancing the probative value of the autopsy photographs against their prejudicial value, and in admitting them into evidence.

Affirmed.

JUSTICES HARRISON, HUNT, NELSON and WEBER concur.


text:
    ELDON E. KUHNS, a/k/a E. E. KUHNS, Plaintiff, Appellant, and Cross-Respondent, v. JAMES H. KOESSLER, Defendant, Respondent, and Cross-Appellant.
    No. 93-480.
    Submitted on Briefs April 7, 1994.
    Rehearing Denied Oct. 13, 1994.
    Decided August 30, 1994.
    51 St.Rep. 800.
    266 Mont. 339.
    880 P.2d 1293.

      For Appellant: J. Reuss; Wright, Tolliver & Guthals, Billings.
    For Respondent: Sam E. Haddon, Dean A. Stensland; Boone, Karlberg & Haddon, Missoula.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Eldon E. Kuhns (Kuhns) appeals the Thirteenth Judicial District Court, Yellowstone County, order which granted summary judgment dismissing Kuhns’ claims on three promissory notes executed to Kuhns by James H. Koessler (Koessler). Koessler cross-appeals the District Court’s grant of summary judgment on his RICO-based counterclaim.

We reverse the District Court’s dismissal of Kuhns’ promissory note claims, and remand to the District Court for a determination of the validity of the notes. We also reverse the District Court’s dismissal of Koessler’s RICO-based counterclaim and remand to the District Court.

In May, 1983, Koessler was hired by Rocky Mountain Capital, a business partnership. Kuhns owned eighty-five percent of Rocky Mountain Capital, and the remaining fifteen percent was owned by Robert M. Brown. As compensation, Koessler was to receive fifteen percent of future profits in addition to a salary.

The partnership was incorporated as Rocky Mountain Capital, Ltd. (RMC) in June 1983. All of the partnership assets were transferred to RMC and stock was issued in exchange. Kuhns transferred his eighty-five percent interest in the partnership to RMC and received 7,000 shares or seventy percent of the stock. Brown transferred his fifteen percent ownership in the partnership to the corporation and received 1,500 shares or fifteen percent of the stock. Koessler received 1,500 shares or fifteen percent of the stock, but did not transfer assets or otherwise pay the corporation for the stock. Kuhns contends that the 1,500 shares transferred to Koessler were the shares to which he was entitled and which were issued direct to Koessler.

The RMC minutes of a special meeting of the board of directors and stockholders of June 14, 1983, constitute the organizational minutes of RMC. The following paragraphs are contained in those minutes:

A list of proposed assets was presented to the meeting. ... The respective asset owners, E.E. Kuhns and Robert M. Brown, each offered the noted property in exchange for common stock of the company.
It was then observed by Mr. Kuhns that James H. Koessler had no asset to contribute to the company, but that because of his expertise in the field of finance, he was valuable to the company and should be a shareholder. After discussion, it was agreed Mr. Koessler would execute a promissory note to Mr. Kuhns [original text “the company crossed out here and initialed and dated 6/14/83], in the form attached hereto .... and in exchange therefore receive the same number of shares as Mr. Brown.
After discussion relative to the merits of the above, upon motion duly made and seconded, the following resolution was unanimously adopted:
“WHEREAS, Eldon E. Kuhns and Robert M. Brown are the owners of assets consisting of those items represented by Exhibit A.... and that James H. Koessler would execute a promissory note [original text “to the company” crossed out here and initialed and dated 6/14/83] in the form of Exhibit B ....
BE IT RESOLVED, that the Board of Directors and Officers of this corporation be, and they are hereby authorized and empowered to accept the above offer and to consúmate [sic] the transfer of the assets described on Exhibit A. ... the Board of Directors and Officers are authorized to issue shares of the capital stock of this corporation as follows:
Eldon E. Kuhns 6,997 shares
Robert M. Brown 1,500 shares
James H. Koessler 1,500 shares.”

Koessler subsequently executed the promissory note payable to Kuhns which is referenced in the minutes. Thereafter, he executed two additional promissory notes payable to Kuhns.

Koessler was employed at RMC from June 14, 1983, through July 31, 1986. However, he transferred his entire 1,500 shares of stock, fifteen percent of the corporation, back to Kuhns on July 22,1986. As of July 29,1986, after that transfer, Koessler was no longer an officer or director of the company.

On September 23,1986, Kuhns filed a petition for bankruptcy. On July 10,1989, Kuhns filed his complaint against Koessler, requesting payment on the three promissory notes executed by Koessler. Koessler counterclaimed for violation of the civil RICO statute, basing his claim on certain predicate acts allegedly committed by Kuhns during the course of Kuhns’ bankruptcy proceedings. Koessler also counterclaimed for fraud, breach of contract, breach of fiduciary duty and punitive damages. The District Court reserved its ruling on these claims, and pursuant to Rule 54(b), M.R.Civ.R, the District Court certified these issues:

1. Did the District Court err in granting summary judgment against Kuhns, thereby dismissing Kuhns’ claims for collection on the three promissory notes executed by Koessler?

2. Did the District Court err in granting summary judgment against Koessler, and by dismissing Koessler’s RICO-based counterclaim for lack of standing?

I

Did the District Court err in granting summary judgment against Kuhns, thereby dismissing Kuhns’ claims for collection on the three promissory notes executed by Koessler?

In reviewing a grant of summary judgment, our standard of review is identical to that of the trial court. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. If, after an examination of the record, we determine that there are no genuine issues of material fact, we then determine whether the moving party is entitled to judgment as a matter of law. Minnie, 849 P.2d at 214. Here, however, we conclude that genuine issues of material fact exist as to whether there was valid consideration for the three promissory notes.

As previously stated, promissory note no. 1 was executed by Koessler to Kuhns in exchange for 1,500 shares of RMC stock. Koessler contends that note no. 1 is void as a violation of § 35-1-606(2), MCA (1989), which in substance provides that neither promissory notes nor future services shall constitute payment or part payment for shares of a corporation. The record on summary judgment does not contain sufficient information to determine whether or not the issuance of note no. 1 may have violated that statute. As a result, we are not able to affirm the conclusion of the District Court that the note was void under that code section. In addition, as we review the summary judgment record, we conclude the record is not sufficiently complete to allow a determination as to whether or not there otherwise was a valid consideration for note no. 1.

In a similar manner, with regard to promissory notes nos. 2 and 3, the record demonstrates there are factual issues as to whether or not there was an adequate consideration for the issuance of those notes.

We conclude that the record does not contain sufficient facts to allow the determination of the invalidity of the notes nos. 1, 2 and 3 on the record. We therefore reverse the District Court’s dismissal of Kuhns’ claims for collection on the three promissory notes and remand for further consideration consistent with this opinion.

II

Did the District Court err in granting summary judgment against Koessler, and in dismissing Koessler’s RICO-based counterclaim for lack of standing?

The United States Supreme Court in Tafflin et al. v. Levitt et al. (1990), 493 U.S. 455, 467, 110 S.Ct. 792, 799, 107 L.Ed.2d 887, 895, concluded that state courts have concurrent jurisdiction with federal courts over civil actions brought under the Racketeer Influenced and Corrupt Organizations Act (RICO), Pub. L. 91-452, Title IX, 84 Stat. 941, as amended, 18 U. S. C. §§ 1961-1968.

Koessler bases his RICO claim on certain “predicate acts” which are comprised of “instances of conduct” concerning Kuhns’ bankruptcy proceedings. Kuhns claims that since Koessler is not a stockholder of RMC, he is precluded from establishing the requisite “injury to person or property” to constitute standing to sue. The District Court, in its May 11,1993 order, dismissed Koessler’s RICO claim on the basis of lack of standing due to Koessler’s non-stockholder status. Koessler himself admitted that he was not a stockholder as of July 22,1986, and that he relinquished any officer or director duties as of July 29, 1986.

In reviewing conclusions of law, we will examine whether the trial court correctly interpreted the law. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603. The District Court, in dismissing Koessler’s RICO claim for lack of standing, failed to cite any authority for its conclusion that standing is limited to stockholders of a corporation. The prerequisites for standing as applied to RICO-based claims are: whether the plaintiff was injured in his business or property, whether that injury was directly or indirectly caused by predicate acts sufficiently related to constitute a pattern, and whether those acts were acts which RICO was designed to deter. Sedima, S.P.R.L. v. Imrex Co., Inc. (1985), 473 U.S. 479, 496-97, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346, 359.

Therefore, we hold that the District Court was incorrect in granting summary judgment and dismissing Koessler’s RICO-based counterclaim. Since stockholder status is not a prerequisite for standing to bring a RICO claim, Koessler cannot be denied standing based on his non-stockholder status. The factual issue of whether Koessler’s business or property was injured by Kuhns must be remanded to the District Court for resolution.

We remand to the District Court on both issues: whether Kuhns is entitled to recover on his claims for the three promissory notes executed by Koessler, and for a redetermination of whether Koessler has standing to bring his RICO-based claims.

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