author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. SHAWN KEVIN SMAAGE, Defendant and Appellant.
    No. 95-455.
    Submitted on Briefs March 14, 1996.
    Decided April 15, 1996.
    53 St.Rep. 294.
    915 P.2d 192.
    276 Mont. 94.

      For Appellant: J. Mayo Ashley, Helena.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Patricia J. Jordan, Assistant Attorney General, Helena; Mike McGrath, County Attorney; Vicki Frazier, Deputy County Attorney, Helena.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Shawn Smaage was convicted of felony criminal endangerment in a bench trial in the First Judicial District Court, Lewis and Clark County. He appeals. We affirm.

The issue is whether Smaage was incorrectly charged under the criminal endangerment statute rather than under DUI statutes.

In the early morning hours of December 11,1994, a citizen reported to the Helena, Montana, city police that he had just observed a man who appeared very intoxicated get into an older white Buick and start “swerving down the road.” The citizen provided a vehicle description and license plate number.

Shortly thereafter, a deputy county sheriff located the white Buick on a city street. The Buick continued to travel over several city blocks, making a right-hand turn from the left lane of traffic and weaving into the oncoming lane of traffic several times. Other vehicles on the streets managed to avoid the Buick.

When the Buick’s driver, who was later identified as Shawn Smaage, was pulled over and got out of the car, he refused to perform several field sobriety tests. Asked if he had been drinking, Smaage admitted that he had “had his share.”

At the county jail, Smaage tested as having a .250 blood alcohol content — well over the legal limit of. 10. See § 61-8-401, MCA. He was charged with second offense DUI.

Further review of Smaage’s criminal record revealed that, while he had been charged with DUI only once in the preceding five years, he had five previous DUI convictions between 1981 and 1988. Additionally, in April 1988, Smaage pled guilty to negligent homicide as a result of the death of a passenger in a vehicle he wrecked. Under the law in effect in 1994, all of Smaage’s DUI convictions which were over five years old had been deleted from his driving record and could not be used to increase the DUI penalty on the current charge. Section 61-8-714(5), MCA (1993).

After Smaage’s record of drinking and driving was reviewed, the charge against him was changed to criminal endangerment. Smaage moved to dismiss the charge of criminal endangerment on the ground that the criminal endangerment statute, § 45-5-207, MCA, was inapplicable to the facts of this case. He also argued that the statute was unconstitutionally vague as applied to him. The District Court denied the motion to dismiss.

Smaage was convicted in a bench trial. He was sentenced to ten years in prison and was designated a dangerous offender.

Was Smaage incorrectly charged under the criminal endangerment statute rather than under the DUI statutes?

Section 45-5-207, MCA, provides:

Criminal endangerment — penalty. (1 )Aperson who knowingly engages in conduct that creates a substantial risk of death or serious bodily injury to another commits the offense of criminal endangerment. This conduct includes but is not limited to knowingly placing in a tree, log, or any other wood any steel, iron, ceramic, or other substance for the purpose of damaging a saw or other wood harvesting, processing, or manufacturing equipment. (2) A person convicted of the offense of criminal endangerment shall be fined an amount not to exceed $50,000 or imprisoned in the state prison for a term not to exceed 10 years, or both. [Emphasis added.]

Smaage argues that he should have been charged under the more specific DUI statutes, §§ 61-8-401 and -722, MCA, rather than the more general criminal endangerment statute.

Smaage cites State v. Langan (1968), 151 Mont. 558, 445 P.2d 565, in support of his proposition that a more specific statute controls over a more general statute. Langan addressed situations in which the more specific statute conflicts with and cannot be harmonized with the general statute. In Langan, a specific statute prohibiting the issuance of a warrant to search a private residence for contraband directly conflicted with general statutes allowing issuance of a warrant. This Court held that the specific statute controlled.

Here, in contrast, we are not faced with a conflict between a specific statute and a general statute, but with alternative charging statutes. When there is no clear and manifest legislative intent to the contrary and different proof is required under two alternative statutes, it is not necessary that the most specific statutory violation be charged. See State v. Booke (1978), 178 Mont. 225, 230, 583 P.2d 405, 408.

The legislative history of § 45-5-207, MCA, which was enacted as Ch. 196, L. 1987, contains the following description of discussion in the Senate Judiciary Committee:

Senator Yellowtail asked if a person drinks a case of beer and gets into a car, is that person guilty of criminal endangerment or is it negligence [sic] endangerment. Senator Halligan said an [sic] prosecuting attorney would charge him with the highest possible charge that they can, which is criminal endangerment.

Minutes, Senate Judiciary Committee, March 6, 1987, at 5-6. The above discussion does not demonstrate clear and manifest legislative intent to prohibit use of the criminal endangerment statute in prosecutions for drinking and driving. In fact, we conclude that the above exchange demonstrates legislative intent that the statute may be so used.

We recently restated the general rule of prosecutorial discretion in the charging of crimes:

It is not only incumbent upon the county attorney to determine when or when not to prosecute a case, but when the facts of a case support a possible charge of more than one crime, the crime to be charged is a matter of prosecutorial discretion.

State ex rel. Fletcher v. Dist. Court (1993), 260 Mont. 410, 415, 859 P.2d 992, 995. The question, then, is not which statute most specifically covers the crime, but whether the facts support the charge of criminal endangerment.

The elements of criminal endangerment are the mental state of “knowingly” and the act of engaging in conduct that creates a substantial risk of death or serious bodily injury to another. A person commits the offense of criminal endangerment when he is aware that there is a high probability that his conduct may cause a substantial risk of death or serious bodily injury to another. State v. Crisp (1991), 249 Mont. 199, 203, 814 P.2d 981, 983.

The District Court, as the trier of fact, found that the facts supported the charge of criminal endangerment. At the close of trial, the court restated the facts leading up to Smaage’s arrest. It then quoted from the judge’s comments at Smaage’s 1988 sentencing for negligent homicide:

[T]he Court notes this defendant has five prior convictions for driving under the influence of alcohol, and has disregarded the risks and dangers he presents to society by driving while drinking. ... The Court is aware the defendant was raised as an alcoholic. He was raised to kill by car. The defendant is a danger to society and this sentence is imposed to protect the public from the defendant, alcohol and automobiles.

After quoting the above comments of the 1988 sentencing court, the District Court stated:

[T]hat admonition issued by Judge Bennett some seven years ago is a clear statement to this person that driving drunk is going to hurt somebody. He continued to do it. In fact, he’s killed somebody. ... There were vehicles on the roadway this night. We’re all very lucky no one else was killed. ...
... We have an 8th time DUI person. He has killed somebody. He’s been warned repeatedly, specifically by Judge Bennett, that his conduct is creating a serious danger to others and he’s continued to engage in that conduct.

On that basis, the District Court found Smaage guilty as charged.

The above comments by the District Court outline the evidence in the record supporting a finding that Smaage acted “knowingly.” The presence of other people on the streets down which Smaage weaved the Buick — a potential lethal missile in the hands of a driver with a .250 blood alcohol content — supports a finding that Smaage engaged in conduct creating a substantial risk of death or serious bodily injury to another. We conclude that the facts support a charge of criminal endangerment.

Smaage also argues on appeal that his conviction of criminal endangerment is unconstitutional under principles of due process and equal protection. He claims that his right to have the law administered fairly and evenhandedly has been violated and that § 45-5-207, MCA, is unconstitutionally vague on its face. In Crisp, this Court upheld the facial constitutionality of § 45-5-207, MCA. These arguments were not raised in District Court and we therefore decline to address them further on appeal. See § 46-20-701(2), MCA.

Finally, Smaage argues that § 45-5-207, MCA, is unconstitutionally vague as applied to him. He complains that he was not given fair notice that driving after drinking was a felony crime.

A statute not involving First Amendment freedoms which is challenged as void for vagueness as applied must be examined in light of the conduct with which the defendant is charged, in order to determine if one could reasonably understand that the defendant’s conduct is proscribed. United States v. Mazurie (1975), 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706, 713. In its review, this Court must view the facts in the light most favorable to the State. Crisp, 814 P.2d at 984.

With his history of convictions of DUI and negligent homicide, Smaage should reasonably have understood that his drunk driving created a substantial risk of serious bodily injury to others and was therefore proscribed. Under the record in this case, we conclude that § 45-5-207, MCA, is not unconstitutionally vague as here applied.

Affirmed.

JUSTICES HUNT, GRAY, LEAPHART and NELSON concur.


source: Caselaw Access Project

author: JUSTICE LEAPHART

license: Public Domain

text:
    COUNTRY ESTATES HOMEOWNERS ASSOCIATION, INC., a Montana corporation, Plaintiff and Respondent, v. GEORGE W. McMILLAN, ELOISE F. McMILLAN and VANCE A. McMILLAN, Defendants and Appellants.
    No. 95-443.
    Submitted on Briefs March 28, 1996.
    Rehearing Denied May 23, 1996.
    Decided April 16, 1996.
    53 St.Rep. 297.
    915 P.2d 806.
    276 Mont. 100.

      For Appellant: Richard R. Buley; Tipp & Buley, Missoula.
    For Respondent: E. Eugene Atherton, Attorney at Law, Kalispell.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

George McMillan, Eloise McMillan, and Vance McMillan (McMillans) appeal from the Final Judgment and Order for Injunctive Relief of the Eleventh Judicial District Court, Flathead County, granting Country Estates Homeowners Association’s (Country Estates) request for a mandatory injunction and awarding costs and attorney’s fees. We reverse.

The following issues are raised on appeal:

1. Does the statute of limitations bar Country Estates’ action for breach of the restrictive covenants?

2. Does Country Estates have standing to bring this action?

3. Did the District Court err in granting Country Estates a mandatory injunction?

This is the second appeal arising out of Country Estates’ efforts to enforce restrictive covenants against the McMillans. In the first appeal, this Court remanded for a hearing after proper notice to the McMillans of the type of relief being sought in the proceedings. Country Estates v. McMillan (1994), 269 Mont. 131, 134, 887 P.2d 249, 251. On remand, Country Estates filed an amended complaint seeking a mandatory injunction, which, following a hearing, the District Court granted.

The McMillans own Lot 2 of Country Estates Unit No. 1, which is subject to restrictive covenants. The two pertinent covenants provide in relevant part that “[a]ll construction shall be complete within one year from the date construction begins” and that “[a]ll lots shall be landscaped to the paved street.” The McMillans began constructing a house in the early 1980s. George McMillan testified that construction began in 1981, and in arguing its position, Country Estates adopted 1981 as the year construction began. The District Court found that construction began “[in] approximately 1982 or 1983.” At the time of the District Court’s decision, neither the home nor the landscaping had been completed. The District Court determined that the McMillans had violated both restrictive covenants and issued a mandatory injunction requiringthe McMillans to either complete the house and landscape the lot within 90 days or remove the violating structure within 90 days. The McMillans appeal from this determination.

1. Does the statute of limitations bar Country Estates’ action for breach of the restrictive covenants?

In reviewing the district court’s conclusions of law, we determine whether the court’s conclusions are correct. Maloney v. Heer (1993), 257 Mont. 500, 504, 850 P.2d 957, 959 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603). Section 27-2-202, MCA, provides that an action upon any obligation founded upon an instrument in writing must be commenced within eight years. This Court has held that the eight-year statute of limitations set forth in § 27-2-202, MCA, applies to cases involving covenants. Scherpenseel v. Bitney (1993), 263 Mont. 68, 74, 865 P.2d 1145, 1149 (citing Majers v. Shining Mountains (1986), 219 Mont. 366, 372, 711 P.2d 1375, 1378-79). From the record it is clear that construction had commenced by 1983 at the latest. Thus, the statute of limitations began to run upon expiration of the one-year period following the commencement of construction.

The District Court concluded, relying on Graveley Ranch v. Scherping (1989), 240 Mont. 20, 782 P.2d 371, that “the pled affirmative defense of Statute of Limitations is inapplicable since each day of non-compliance, up to the present, constitutes a new violation of the Declaration of Covenants, Conditions, and Restrictions and starts the Statute of Limitations running anew.” However, Graveley Ranch involved the application of the statute of limitations to a continuing nuisance. In contrast, the present case requires us to apply the eight-year statute of limitations, set forth in § 27-2-202, MCA, to covenants. Majers, 711 P.2d at 1378-79.

Country Estates brought suit to obtain a mandatory injunction requiring the McMillans to comply with the restrictive covenants. The instant action is based on the breach of the restrictive covenants not on a nuisance theory. Thus, our opinion in Graveley is inapplicable to the issues raised in the instant case. Accordingly, the District Court erred in relying on Graveley as authority for its conclusion that each day of non-compliance with the restrictive covenants starts that statute of limitations running anew. While this may be true with respect to a continuing nuisance, it is incorrect with respect to restrictive covenants. Majers, 711 P.2d at 1378-79.

Country Estates also asserts that our opinion in Scherpenseel controls and argues that the statute of limitations does not begin to run until the date on which an actual demand for performance is made. Scherpenseel, 865 P.2d at 1150. However, Scherpenseel is not on point with the instant case. In Scherpenseel, we recognized that in many instances a developer’s obligation to comply with affirmative covenants is open ended because:

developers of real property often enter into affirmative, written covenants and agreements as a part of the subdivision process in order to obtain the approval of the governing body to file a subdivision plat. In many cases, roads and other improvements required by the local government, by applicable laws or rules and/or by the developer’s covenants and agreements are not made immediately, but, rather, are constructed over a period of time as parcels or units of the subdivision are sold.

Scherpenseel, 865 P.2d at 1149. In addition, we noted that:

[the rule] best effectuates the purposes and public policy of the [Montana Subdivision and Platting] Act, while, coincidentally, providing a definite and easily determinable time frame within which actions must be commenced to enforce affirmative, written covenants running with the land.
....
[P]ublic policy, as expressed in the Act, demands that real estate developers be strictly held to their covenants and agreements, and that they not be allowed to gain the advantage of their failure to perform by the fortuitous passage of time.

Scherpenseel, 865 P.2d at 1149-50. In Scherpenseel, we were confronted with an affirmative covenant which did not specify a deadline for compliance. Under those facts, we held that the statute of limitations under § 27-2-202, MCA, did not begin to rim until such time as there had been a demand for performance. In contrast, the restrictive covenants at issue here provide a definite and readily determinable time frame. The house must be completed “within one year from the date construction begins.” Thus, the statute of limitations set forth in § 27-2-202, MCA, began to run upon expiration of that one-year period, that is, sometime in 1984. Accordingly, the eight-year statute of limitations ran in 1992. Country Estates did not bring this action until 1993.

Thus, we determine that the District Court erred in concluding that the statute of limitations did not operate to bar Country Estates’ cause of action. Based on our resolution of issue one, it is unnecessary for the Court to address issues two and three.

Reversed.

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


author: JUSTICE NELSON JUSTICE ERDMANN CHIEF JUSTICE TURNAGE

text:
    THOMAS BROTHERS, Plaintiff and Appellant, v. CARGILL, INC., Employer, and STATE OF MONTANA, DEPARTMENT OF LABOR AND INDUSTRY, Defendant and Respondent.
    No. 95-226.
    Submitted on Briefs October 19, 1995.
    Decided April 16, 1996.
    53 St.Rep. 299.
    915 P.2d 226.
    276 Mont. 105.

      For Appellant: John E. Seidlitz, Jr., Attorney at Law, Great Falls.
    For Respondent: Claren J. Neal, Legal Counsel, Montana Department of Labor and Industry, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

Thomas Brothers (Brothers) petitioned the District Court for the Twelfth Judicial District, Liberty County, to review the decision of the Board of Labor Appeals denying Brothers’ claim for unemployment insurance benefits. The District Court affirmed the Board’s decision and Brothers appeals. We reverse and remand.

The sole issue presented for review is:

Did the District Court err in affirming the Board’s decision denying Brothers’ claim for unemployment insurance benefits?

Background Facts

Cargill, Inc. (Cargill) manufactures livestock feeds. Brothers worked for Cargill as a Millman III for ten years. The Millman III position involves substantial physical activity including lifting bags of feed weighing 50 pounds or more. Brothers began experiencing back problems in 1989. He had back surgery in February or March of 1991. Following this surgery, he did light duty work during the month of April.

In January 1992, Brothers could not get the company forklift started due to the cold weather. Brothers climbed a shelf to grab a 50-pound bag of grain. As Brothers grabbed the bag, it knocked him to the ground causing injury to his back. Brothers reported the injury to a co-worker, however, he failed to file a workers’ compensation report. Brothers did seek medical attention and treatment for his back injury.

Because Cargill considered Brothers to be a valued employee, Brothers was allowed to perform light duty work in a modified job position for the next several months. On April 30,1993, Brothers left work to have back surgery.

On November 3,1993, Brothers’ doctor released Brothers to return to his former position with the prior restrictions for light duty work for another six months while his back healed. When Brothers contacted Cargill, he was informed that no light duty or sedentary work was available. The Millman III position was available but Brothers could not perform all of the required duties of this position because of his back condition.

Brothers applied for unemployment benefits on November 7,1993. A deputy examiner of the Department of Labor and Industry denied benefits on the grounds that Brothers left work for medical reasons and could not return to his previous job without restrictions. Brothers appealed and after a telephone hearing wherein both parties testified, an appeals referee found that because Brothers was not released to his regular work his claim should be denied. Brothers appealed to the Board of Labor Appeals. However, after hearing testimony and considering the case, the Board adopted the findings of the appeals referee.

Brothers then filed a Petition for Judicial Review with the District Court. On April 17,1995, the District Court issued an Order affirming the decision of the Board. Brothers now appeals the District Court’s Order.

Discussion

Did the District Court err in affirming the Board’s decision denying Brothers’ claim for unemployment insurance benefits?

A district court’s review of a decision of the Board is not governed by the Montana Administrative Procedure Act. Schneeman v. State Dept. of Labor & Ind. (1993), 257 Mont. 254, 257, 848 P.2d 504, 506 (citing City of Billings v. State Bd. of Labor Appeals (1983), 204 Mont. 38, 663 P.2d 1167). Instead, a district court’s review is limited by § 39-51-2410(5), MCA, which provides:

In any judicial proceeding under 39-51-2406 through 39-51-2410, the findings of the board as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive and the jurisdiction of said court shall be confined to questions of law.

Under § 39-51-2410(5), MCA, a district court may not balance conflicting evidence in support of and in opposition to the Board’s findings, determine which is the more substantial evidence, or consider where the preponderance of the evidence lies; to do so would substitute the district court’s view of the evidence for that of the Board, nullifying the conclusive nature of the Board’s findings. Stine v. Western Federal Sav. Bank (1994), 266 Mont. 83, 86, 879 P.2d 53, 55 (citing Reynolds v. Pacific Telecom, Inc. (1993), 259 Mont. 309, 314, 856 P.2d 1365, 1368).

This Court’s review of a district court’s determination in unemployment compensation cases is governed by the same standard. Section 39-51-2410(6), MCA, provides:

An appeal may be taken from the decision of the district court to the supreme court of Montana in the same manner, but not inconsistent with the provisions of this chapter, as is provided in civil cases.

Here, the issue involves an interpretation of the law, rather than a dispute over the facts. In the case before us, the appeals referee and the Board denied Brothers’ claim for unemployment benefits on the grounds that Brothers was not released to his regular or comparable work and, consequently, he had not complied with the provisions of § 39-51-2302(2), MCA. Under this statute, an employee is not disqualified from unemployment benefits if he meets four conditions: he left his employment because of personal illness or injury upon the advice of a licensed and practicing physician; he recovers from the illness or injury and his recovery is certified by a licensed and practicing physician; he returns to his employer and offers his services; and his regular or comparable suitable work is not available.

After review, the District Court affirmed the denial of Brothers’ claim and determined that

Cargill’s initial decision to temporarily modify claimant’s job for a limited time did not, as a matter of law, have the effect of converting the regular millman job into a light duty millman job. As a consequence, when claimant was released from his back surgery with a light duty restriction, he was not released to his regular work.

Brothers contends that because his job was modified by his employer to light duty work and because he performed the light duty work for the nine months prior to his surgery, the light duty work became his “regular work.” Additionally, he argues that his physician did release him to perform his “regular work,” the same light duty work he was doing prior to his surgery.

Thus the determinative question here is what is meant by the phrases “regular work” and “comparable suitable work.” These phrases, however, are not statutorily defined. The interpretation and application of a statute to a particular set of circumstances are matters of law. In Matter of Denial of App. for Iss. of Beer/Wine Lic. (1994), 267 Mont. 298, 301, 883 P.2d 833, 835. An administrative agency’s conclusions of law are reviewed by district courts and this Court to determine whether those conclusions are correct. Denial of App., 883 P.2d at 835 (citing GBN, Inc. v. Montana Dept. of Revenue (1991), 249 Mont. 261, 264, 815 P.2d 595, 597; Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603).

We stated in Gulbrandson v. Carey (1995), 272 Mont. 494, 500, 901 P.2d 573, 577, that:

Our function in construing and applying statutes is to effectuate the legislature’s intent. United States v. Brooks (1995), [270 Mont. 136, 138-40], 890 P.2d 759, 761. To determine legislative intent, we first look to the plain meaning of the words used in the statute. Stansbury v. Lin (1993), 257 Mont. 245, 249, 848 P.2d 509, 511. If the legislature’s intent can be determined by the plain language of the words used, we may not go further and apply other means of interpretation. Prairie County Co-op State Grazing District v. Kalfell Ranch, Inc. (1994), 269 Mont. 117, 124-125, 887 P.2d 241, 246. It is only when the intent cannot be determined from the language of the statute that we will examine legislative history. Matter of Kalfell Ranch, Inc., 887 P.2d at 246.

In the case before us and absent statutory definitions for the phrases “regular work” or “comparable suitable work,” we conclude that the plain meaning of the words used by the legislature controls. “Regular” means normal, typical or natural. Webster’s Ninth New Collegiate Dictionary 992 (1986). “Suitable” means matching, fit or able. Webster’s Ninth New Collegiate Dictionary 1180 (1986). “Comparable” means equivalent or similar. Webster’s Ninth New Collegiate Dictionary 267 (1986). Thus an employee’s regular work is that which he does normally, typically or naturally. Comparable suitable work is equivalent or similar work with matching duties.

For the nine months prior to his surgery, Brothers was not performing the work of a Millman III. He was working in a position created for him by his employer. Regardless of what the job description says, the employer chooses what the employee actually does. Work is specific to the employee, not to the job description. If the employer chooses duties different than those set forth in the job description, whether for the convenience of the employer or the employee, and the employee performs those duties, that work with those duties is what the employee does “normally, typically and naturally.” That modified position, thus, constitutes the employee’s regular work, absent some agreement, direction or evidence that the modified duties are merely temporary under the facts and circumstances of the case at issue. Obviously, the longer the employee performs his duties as modified by his employer, the more likely it will follow that the modified position has become the employee’s regular work. The same conclusion will obtain if the time during which the employee is to perform his modified duties is left open-ended by the employer.

Here the factual record does not support a legal conclusion that Cargill’s modifications of Brothers’ job duties were temporary. In point of fact, Brothers performed his duties as modified by Cargill for nine months, and it appears that Brothers could have continued performing those same modified duties indefinitely. Thus, it follows, that Brothers’ modified duties were his regular work. To conclude otherwise would allow an employer to defeat an employee’s claim for unemployment benefits by the simple expedient of directing the employee to perform duties different from those in his job description and then claiming that the employee was not engaged in his “regular work.” There is nothing in § 39-51-2302, MCA, that leads inescapably to the conclusion that the legislature intended “regular work” and “comparable suitable work” to be synonymous with “job description.”

Accordingly, we hold that the Board and the District Court erred in concluding that the work Brothers performed prior to his back surgery was not his regular work. Thus, Brothers’ claim for unemployment benefits should not have been denied since he meets the requirements of § 39-51-2302(2), MCA. Brothers left his employment because of his back injury and upon the advice of his doctor; he recovered from the back injury and his recovery was certified by his doctor; he returned to Cargill and offered his services; and his regular work or comparable suitable work was not available.

Therefore, we reverse the decision of the District Court and we remand for further proceedings consistent with this opinion.

JUSTICES HUNT, TRIEWEILER and LEAPHART concur.

JUSTICE ERDMANN

dissenting.

I respectfully dissent. Under the facts of this case, I cannot agree that the temporary light-duty position created by Cargill was somehow converted into Brothers’ regular employment. The ironic result of this decision is that a company that created a temporary job to accommodate a valued employee is now responsible for unemployment benefits which it would not have been responsible for if the company had not created the temporary job.

Brothers’position as a Millman III involved heavy physical activity and on a usual day he would stack fifteen tons of feed. Beginning in 1989, Brothers started to experience back problems and in 1991 he had back surgery. Following his return to work, he was given a temporary light-duty position for about a month, after which he returned to his regular job. In January 1992 Brothers injured his back again, and at the end of August 1992 his doctor restricted him to light duty. Since Brothers was a valued employee, Cargill again created a temporary job for him which deleted the heavy lifting normally required of a Millman III position. Brothers’ co-workers assumed the lifting duties that Brothers had previously performed. By having co-workers assume Brothers’ lifting duties, job production suffered and Cargill was concerned with safety issues involving the co-workers. During the period of time that Brothers was on light duty, Cargill offered him a permanent office position which only entailed light duty, but Brothers preferred to remain in the mill and refused the position.

Brothers worked under the light-duty restrictions until April 30, 1993, when he left to have a second surgery on his back. On November 4, 1993, Brothers’ doctor released him for work, but with light-duty restrictions. Brothers contacted Cargill and was informed that his Millman III position was available, but that there was no position available if he was restricted to light work.

The Department of Labor referee found that Brothers had not been released to his regular or comparable work, and therefore, was not eligible for benefits under § 39-51-2302(2), MCA. This determination was appealed to the Board of Labor Appeals, and following a hearing on March 4, 1994, the Board upheld and adopted the referee’s decision. Brothers appealed to the District Court and the administrative determinations were upheld.

Section 39-51-2302(2), MCA, provides that an employee may not be disqualified from benefits if: the employee leaves work because of a personal injury upon his doctor’s advice and not because of misconduct; the employee recovers from the illness or injury and his recovery is certified by his doctor; the employee returns to his employer and offers to go back to work; and the employee’s regular or comparable suitable work is not available. Here, Brothers complied with the first and third conditions but has failed to meet the second and fourth conditions.

There is no dispute that Brothers’ doctor did not release him to his Millman III position in November 1993. Further, there is no dispute that Brothers’ Millman III position was available at that time and that he could not perform the physical duties of the position. The majority, however, avoids this analysis by determining that the temporary light-duty job that Cargill created for Brothers between September 1992 and April 1993 had become his “regular or comparable suitable work.” The majority holds that Brothers had been released to his permanent light-duty position and that the position was no longer available.

The majority does not try to argue that the light-duty position was comparable to Brothers’ regular position, as it clearly was not. On a normal day in his regular job, Brothers would stack fifteen tons of feed. In his light-duty job he did no lifting at all and, according to his supervisor, was able to do just a fraction of his normal duties. Instead, the majority determined that since Cargill allowed Brothers to work at the light-duty job for nine (actually eight) months, that position was converted into his regular work, absent some evidence that the modified duties were merely temporary.

In fact, there was evidence that the modified position was temporary and there was no evidence that it was ever intended to be a permanent position for Brothers. Before his May 1993 surgery, Car-gill told Brothers that he would need to take a “full range mobility test” after his surgery in order to return to work. The transcript of Brothers’ supervisor’s testimony at the referee hearing clearly indicates that the light-duty position was not considered Brothers’ regular employment.

QUESTION: ... Prior to Tom having his surgery in May of 1993, was the light duty position that he was working in a regular position?
WICKUM: No it wasn’t.
QUESTION: What position did he take then prior to the surgery? What was he working as?
WICKUM: We modified the job so he could stay on, collect wages, lift, or do anything but lifting. We had other operators out there do all of the lifting, but we modified his job. We were hoping that things would get better, but they just progressively got worse. But it was a modified position and it put a lot of stress and work load on the other employees.

While Cargill had modified Brothers’ position to allow him to continue to work even though he could not perform the duties of his regular job, the evidence is clear that the modified position was never converted to a new permanent light-duty position. The referee discussed the reasons why Cargill did not continue with the modified position:

The employer has chosen not to provide light duty employment to the claimant as he had in the past due to the hardship that it caused on the mill and the other workers, feeling that it was a safety concern as the claimant’s co-workers would need to do his heavy lifting for him, leaving the employer vulnerable to other injuries and a decrease in production that they had experienced during the claimant’s former period of light duty work.

The referee’s decision was adopted by the Board of Labor Appeals. Under the standard of § 39-51-2410(5), MCA, the factual findings of the Board of Labor Appeals, “if supported by evidence and in the absence of fraud, shall be conclusive.” This Court discussed this standard in Stine v. Western Federal Savings Bank (1994), 266 Mont. 83, 86, 879 P.2d 53, 55 as follows:

Under § 39-51-2410(5), MCA, a district court is not permitted to balance conflicting evidence in support of and in opposition to the Board’s findings, determine which is the more substantial evidence, or consider where the preponderance of the evidence lies; to do so would substitute the district court’s view of the evidence for that of the Board, effectively nullifying the conclusive character of the Board’s findings. Reynolds [v. Pacific Telecom, Inc. (1993), 259 Mont. 309, 314], 856 P.2d [1365] at 1368.

The District Court correctly applied this standard and affirmed the Board’s decision. This Court is held to the same standard as is the district court when reviewing a decision of the Board of Labor Appeals. Zimmer-Jackson v. Dept. of Labor (1988), 231 Mont. 357, 360, 752 P.2d 1095, 1098. The majority’s opinion ignores the administrative factual finding and improperly reaches its own factual finding. The majority speculates that since Brothers performed his modified duties for nine months (actually eight months) “it appears that Brothers could have continued performing those same modified duties indefinitely.” This factual finding by the majority is in direct conflict with Brothers’ supervisor’s unchallenged testimony that Brothers was informed prior to his surgery that he would need to take a full range mobility test after his surgery. It is also in conflict with Cargill’s concerns, as found by the referee, that the modified position was causing production and safety problems.

The effect of this decision is to place employers, when faced with a similar situation, in a “Catch 22” position. If the employer makes an accommodation for an injured employee and modifies the job requirements for a period of time, the employee can now argue that the modified position has been converted into regular employment. While this decision may well have ramifications beyond the context of unemployment compensation, it inserts into the unemployment system the elements of health insurance and/or workers’ compensation coverage. Brothers had not physically recovered from his back injury to the degree he could return to the position of Millman III. Despite the fact that Brothers was physically unable to work at his regular job, the majority has found him eligible for unemployment benefits.

I would affirm the District Court.

JUSTICE GRAY joins in the foregoing dissenting opinion.

CHIEF JUSTICE TURNAGE

dissenting:

I join the dissenting opinion of Justice Erdmann.

The result of the maj ority opinion will effect a disservice to working men and women in Montana who have the misfortune of suffering an on-the-job injury, preventing them, for a limited time, from performing regular employment but allowing performance of lighter employment for a reasonable period.

An employer who has concern for his employees and is willing to create a light-duty job for them, out of concern for the employees’ welfare, is now faced with perhaps unintended but nevertheless serious legal consequences because of an effort to voluntarily benefit an employee.


author: CHIEF JUSTICE TURNAGE JUSTICE LEAPHART,

text:
    JEFFREY SANDERS, Plaintiff and Appellant, v. YELLOWSTONE COUNTY (a Political Subdivision of the State of Montana) and GAUGERS SALES CORP. (a Montana corporation), Defendants and Respondents. GAUGERS SALES CORP. (a Montana corporation), Cross-Plaintiff, v. JEFFREY SANDERS, Cross-Defendant. GAUGERS SALES CORP. (a Montana corporation), Cross-Plaintiff, v. YELLOWSTONE COUNTY (a political Subdivision of the State of Montana), Cross-Defendant.
    No. 95-408.
    Submitted on Briefs March 7, 1996.
    Decided April 16, 1996.
    53 St.Rep. 305.
    915 P.2d 196.
    276 Mont. 116.

      For Appellant: Peter T. Stanley, Billings.
    For Respondent: Dennis Paxinos, County Attorney; Brent Brooks, Deputy County Attorney, Billings; Carol Hardy, Pedersen & Hardy, Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Jeffrey Sanders (Sanders) appeals from the decision of the Thirteenth Judicial District Court, Yellowstone County, granting Gaugers Sales Corp.’s (Gaugers) and Yellowstone County’s motions for summary judgment in this quiet title action. We reverse.

We find the following issues dispositive on appeal:

1. Did Sanders have standing to institute this quiet title action?

2. Did the Yellowstone County Treasurer have jurisdiction to issue a tax deed on August 3,1992, to Yellowstone County for Lot 7C, Block 8 in Emerald Hills Subdivision?

The subject property was sold by Emerald Hills Development Company (EHDC) on a 1977 contract for deed. The buyers thereafter in 1979 assigned their interest in the contract to Thomas E. Hannah and others. The contract has never been terminated. In 1980, EHDC quitclaimed its interest in the property, subject to the Thomas E. Hannah buyer’s interest in the 1977 contract, to Kenneth and Mary McKenzie. Following a series of additional conveyances, the EHDC interest was conveyed in April of 1993 to appellant Jeffrey Sanders.

In 1989 Yellowstone County received a Tax Sale Certificate to the subject property. On August 3, 1992, the Yellowstone County Treasurer issued a tax deed for the property to Yellowstone County.

On December 9, 1992, Yellowstone County sold the property on contract to Gaugers.

In April of 1993, as stated above, appellant Jeffrey Sanders by conveyance received title to the property subject to the interest of Thomas E. Hannah under the 1979 assignment of the contract for deed. On November 30, 1993, Sanders instituted this quiet title action, arguing that the Yellowstone County Treasurer was without jurisdiction to issue the tax deed to Yellowstone County because the notice requirements of §§ 15-18-111 and -212, MCA, had not been met. Gaugers subsequently acquired and recorded a quitclaim deed from Thomas E. Hannah.

Yellowstone County properly notified Sanders’ predecessor in interest of the pending issuance of a tax deed. Yellowstone County did not notify Thomas E. Hannah of its intent to issue a tax deed. The published notice likewise did not list Thomas E. Hannah as an interested party. It is undisputed that, at the time notice was given, Thomas E. Hannah was an interested party as defined in § 15-18-111, MCA, and was entitled to notice under § 15-18-212, MCA.

The case was submitted to the District Court on cross-motions for summary judgment. The court granted Yellowstone County’s and Gaugers’motions for summary judgment and denied Sanders’motion for summary judgment. The court’s decision was based on Sanders’ lack of standing to challenge the issuance of the tax deed.

Issue 1

Did Sanders have standing to institute this quiet title action?

Section 70-28-101, MCA, provides that a quiet title action may be brought

by any person or persons, whether in actual possession or not, claiming title to real estate against any person or persons, both known and unknown, who claim or may claim any right, title, estate, or interest therein or lien or encumbrance thereon adverse to plaintiff’s ownership or any cloud upon plaintiff’s title thereto, whether such claim or possible claim be present or contingent, including any claim or possible claim of dower, inchoate or accrued, for the purpose of determining such claim or possible claim and quieting the title to said real estate.

Sanders meets the criteria set forth in this section, as he is a person claiming title to real estate against another person (Gaugers) who claims an interest adverse to his own. Sanders alleges, in essence, that Gaugers’ adverse claim of title was acquired via tax deed proceedings which were defective and which, as a result, divested the Yellowstone County Treasurer of jurisdiction to issue the tax deed.

In addition to being a party entitled to bring a quiet title action, however, Sanders must establish standing to challenge the tax deed proceeding. This Court has determined that the following criteria must be satisfied to establish standing:

(1) The complaining party must clearly allege past, present or threatened injury to a property or civil right; and (2) the alleged injury must be distinguishable from the injury to the public generally, but the injury need not be exclusive to the complaining party.

Stewart v. Bd. of Cty. Com’rs of Big Horn Cty. (1977), 175 Mont. 197, 201, 573 P.2d 184, 186.

In this quiet title action, Sanders has alleged a present injury to a property right. Sanders maintains that Gaugers’ asserted interest, allegedly acquired via defective proceedings which rendered Gaugers’ tax deed void, is a cloud on his title. This allegation is clearly personal to himself, as opposed to an injury to the public in general. See Stewart, 573 P.2d at 186. Thus, Sanders meets the standing criteria.

Contrary to the allegations raised in the dissent, no Montana statute or case law requires Sanders to have an interest in the subject property at the time of the issuance of the tax deed in order to institute a quiet title action. The cases cited by the dissent are clearly distinguishable in that Utah’s statutory scheme provides a clearly defined statute of limitations. The dissent’s concern over the lack of finality in tax deed cases is well taken; however, it is not the role of this Court to create such finality absent specific statutory authority.

Although Sanders did not have an interest in the property when the treasurer issued the tax deed, he later received a quit claim deed to the property. It is this purported interest Sanders now seeks to protect.

We note that the application of the Stewart standing criteria in this case produces a different result on the standing issue than we reached in Bowen v. McDonald (1995) [276 Mont. _], 915 P.2d 201. The difference arises from the different natures of the two actions~in Bowen, the sole basis for standing was the claimed statutory right to redeem; here, the basis for standing is the quiet title statute, § 70-28-101, MCA. We hold that the District Court erred in concluding that Sanders lacked standing to institute this quiet title action.

Issue 2

Did the Yellowstone County Treasurer have jurisdiction to issue a tax deed on August 3, 1992, to Yellowstone County for Lot 7C, Block 8 in Emerald Hills Subdivision?

We review a district court’s grant of summary judgment using the same standard utilized by the district court. Summary judgment is proper only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903.

Sanders argues that the Yellowstone County Treasurer did not have jurisdiction to issue the tax deed. The parties in their Statement of Agreed Facts (SAF) agreed that Thomas E. Hannah was an interested party, entitled to notice prior to the issuance of the tax deed. The parties in their SAF agreed that Yellowstone County failed to notify Thomas E. Hannah. Sanders argues that because Yellowstone County failed to notify Thomas E. Hannah of the impending issuance of the tax deed, the treasurer was without jurisdiction to issue a tax deed.

The notice requirements prior to the issuance of a tax deed, § 15-18-212, MCA, state:

(1) Not more than 60 days prior to and not more than 60 days following the expiration of the redemption period provided in 15-18-111, a notice must be given as follows:
(a) for each property for which there has been issued to the county a tax sale certificate or for which the county is otherwise listed as the purchaser or assignee, the county clerk shall notify all persons considered interested parties in the property and the current occupant of the property, if any, that a tax deed may be issued to the county unless the property tax lien is redeemed prior to the expiration date of the redemption period ....
...
(4) The notice required under subsections (1) and (2) must be made by certified mail, return receipt requested, to each interested party and the current occupant, if any, of the property. The address to which the notice must be sent is, for each interested party, the address disclosed by the records in the office of the county clerk and, for the occupant, the street address or other known address of the subject property.

Subsection (5) sets forth the specific publication requirements when the address of the interested party is not known. Section 15-18-212(5), MCA.

Section 15-18-111(3), MCA, defines “interested part/’ for use in this part, as any

mortgagee, vendor of a contract for deed or the vendor’s successor in interest, lienholder, or other person who has a properly recorded interest in the property.

Thomas E. Hannah was an assignee of the 1977 contract for deed to the property and was an interested party under this section. Yellowstone County and Gaugers agreed that Thomas E. Hannah was an interested party in the SAF. Statement of Agreed Fact No. 18 reads:

Yellowstone County failed to send notice of its intent to issue a tax deed to Thomas E. Hannah. The published notice did not set forth the name of Thomas E. Hannah. At the time the notice of issuance was given and at the time the tax deed was issued Thomas E. Hannah was an interested person, entitled to notice of sale. A title report issued to the county indicated that Thomas E. Hannah was one of the record holders of the vendees interest in the property. Clearly, the law required Yellowstone County to notify Thomas E.

Hannah of the impending issuance of the tax deed. The required notice was not given in this case.

We have recently held that failure to strictly comply with the statutory notice requirements for the issuance of a tax deed results in the treasurer being without jurisdiction to issue a tax deed. Moran v. Robbin (1993), 261 Mont. 478, 483, 863 P.2d 395, 400. In Moran, the property owners challenged the sufficiency of notice given pursuant to § 15-18-212, MCA. Due to the failure to give proper notice as required by § 15-18-212, MCA, we concluded that the treasurer was without jurisdiction to issue a tax deed. Moran, 863 P.2d at 400. In reversing the district court, we stated:

Every essential and material step required by the tax deed statutes must be strictly followed. [Citation omitted.] ...
A critical element in the process of applying for a tax deed requires the giving of notice by the tax deed applicant to the owner of the real property. The giving of notice is jurisdictional; if the legal requirements with respect to notice are not complied with, a county treasurer may not legally issue a tax deed. [Citation omitted.] ... A tax deed issued without the required proof of notice is void. [Citation omitted.]
....
... [T]he giving of notice is jurisdictional, and unless the statutory requirements with respect to such notice are met, a tax deed may not issue.

Moran, 863 P.2d at 398-99 (emphasis added). We went on to hold that because the treasurer acted without jurisdiction, the deed was “void ab initio.” Moran, 863 P.2d at 400.

In the present case, Yellowstone County and Gaugers admitted in the Statement of Agreed Facts that notice was not given to Thomas E. Hannah, an interested party, as required by § 15-18-212, MCA. Because the requirements of § 15-18-212, MCA, were not met, the treasurer did not have jurisdiction to issue the deed and the deed is therefore void ab initio.

We conclude that the District Court erred in determining that Sanders did not have standing to challenge the issuance of the tax deed. Sanders properly instituted this quiet title action. We hold that because the notice requirements of § 15-18-212, MCA, were not satisfied, the Yellowstone County Treasurer did not have jurisdiction to issue a tax deed for the Thomas E. Hannah interest in the subject property and the tax deed issued was void ab initio.

We reverse the decision of the District Court granting Yellowstone County’s and Gaugers’ motions for summary judgment.

JUSTICES GRAY, ERDMANN, NELSON and HUNT concur.

JUSTICE LEAPHART,

dissenting.

I dissent. I would affirm the District Court’s holding that Sanders did not have the requisite standing to question the lack of notice to Hannah. The Court voids the tax deed to Gaugers for the reason that the County Treasurer failed to give notice to an interested party, Hannah, as required by § 15-18-212, MCA. The party raising this lack of notice is Sanders. Since Sanders did not acquire an interest in the property until after the tax deed was issued and was not the party who was deprived of the requisite notice, the question arises: “does Sanders have standing to assert Hannah’s right to receive notice?” Sanders does not argue that he has suffered any deprivation of due process because of the lack of notice. Rather, he seeks to advance his claim to the property by asserting a third party’s constitutional right to notice. “[T]he general rule is that ‘a litigant may only assert his own constitutional rights or immunities.’ ” McGowan v. Maryland (1961), 366 U.S. 420, 429, 81 S.Ct. 1101, 1107, 6 L.Ed.2d 393, 401 (quoting United States v. Raines (1960), 362 U.S. 17, 22, 80 S.Ct. 519, 523, 4 L.Ed.2d 524); see also Olson v. Department of Revenue (1986), 223 Mont. 464, 470, 726 P.2d 1162, 1166; Montana Human Rights v. City of Billings (1982), 199 Mont. 434, 443, 649 P.2d 1283, 1288; State v. Kirkland (1979), 184 Mont. 229, 235, 602 P.2d 586, 590.

The Tenth Circuit Court of Appeals addressed a similar issue in Kemmerer Coal Co. v. Brigham Young Univ. (10th Cir. 1983), 723 F.2d 54. Kemmerer was a quiet title action filed by Brigham Young University (B.Y.U.) to quiet title to certain property to which it had obtained title through tax deeds. Under Utah’s statute of limitations, a challenge to a tax deed must be filed within four years of the date of the tax deed. B.Y.U. contended that, in light of this four-year limitation, Kemmerer was barred from challenging the validity of the tax deed some 20 years after the tax sale. Kemmerer contended that the tax deed was void for lack of due process since Kemmerer’s predecessor in interest (San Rafael) received no notice of the tax sale even though there was no question but that San Rafael was the true owner at the time of the sale. The Tenth Circuit held that Kemmerer did not have standing to assert San Rafael’s deprivation of due process.

Kemmerer itself has suffered no due process injury. If a constitutional violation occurred, it was the taking of San Rafael’s property without due process. Kemmerer thus seeks to advance its claim by asserting a third-party's constitutional rights. “[T]he general rule is that ‘a litigant may only assert his own constitutional rights or immunities.’ ” [Citations omitted.] This rule has been applied to bar a grantee’s assertion that its grantor’s due process rights were violated. See Hewitt v. Glaser Land & Livestock Co., 97 Nev. 207, 626 P.2d 268 (1981); accord United States v. Haddon, 550 F.2d 677, 681 (1st Cir. 1977).

Kemmerer, 723 F.2d at 57. The court concluded that:

While it may have been “repugnant to fundamental fairness,” Frederiksen [v. LaFleur (Utah 1981)], 632 P.2d [827,] at 831 n.14, to deprive San Rafael of its property without proper notice, we do not believe it fundamentally unfair to apply the statute of limitations to Kemmerer who bought the coal lands in the face of record notice of a rival claim to “underground rights.”

Kemmerer, 723 F.2d at 57-58.

The Supreme Court of Utah, in Shelledy v. Lore (Utah 1992), 836 P.2d 786, cert. denied, 506 U.S. 1022, 113 S.Ct. 660, 121 L.Ed.2d 586, followed the Tenth Circuit’s reasoning in Kemmerer. In the Utah case, Shelledy had purchased the property in question from the Small Business Administration (SBA). He then filed a quiet title action against parties who claimed title under a tax deed issued by the county at a tax sale. Shelledy argued that the SBA, as a federal agency, was entitled to full sovereign immunity and that this immunity barred the county’s attempt to enforce the tax lien. The court observed that, although the SBA may have been able to avoid the tax sale on the basis of its immunity, it did not do so and it no longer has an interest in the property. Shelledy, 836 P.2d at 789. The court then rejected Shelledy’s attempt to assert the SBA’s immunity from taxation, concluding that:

When Shelledy purchased the property from the SBA in 1988, he was on record notice of defendants’ rival claim to the property by virtue of the 1984 tax deed. Therefore, we hold that Shelledy lacks standing to assert the SBA’s constitutional rights and defense.

Shelledy, 836 P.2d at 790.

In the present case, Sanders’ claim of standing is even less color-able than Kemmerer’s or Shelledy’s. Subsequent to the 1992 tax deed, Sanders purchased the property in 1993. Thus, like Kemmerer and Shelledy, Sanders purchased the property with notice of a rival claim by virtue of the earlier tax deed. However, unlike Kemmerer and Shelledy, who purported to assert the due process rights of their predecessors in interest, Sanders attempts to assert the due process rights of a complete stranger to his chain of title. Hannah is not Sanders’ predecessor in interest nor are they in privity with one another. Rather, Hannah stood in the shoes of the purchaser under a contract for deed while Sanders traced his claim to the seller’s interest.

The Court, in allowing Sanders to successfully challenge the tax deed through asserting the rights of third parties, has undermined any finality that would normally attach to a tax deed by virtue of the statute of limitations. As the Kemmerer facts illustrate, if parties such as Sanders or Kemmerer can successfully argue that a tax deed is void ab initio due to lack of notice to a third party, then the statute of limitations for such challenges becomes meaningless.

Under the holding of this case, there is no reason why someone, whose only connection with the property is idle curiosity, cannot search the public records in hope of unearthing a failure to give proper statutory notice to an interested party and threaten to have the tax deed declared void ab initio.

JUSTICE TRIEWEILER joins in the foregoing dissent of Justice W. William Leaphart.