author: CHIEF JUSTICE TURNAGE JUSTICE WEBER

text:
    THE STATE OF MONTANA, Plaintiff and Appellant, v. NEIL K. ANDERSEN and THOMAS RIPPINGALE, Defendants and Respondents.
    No. 93-115.
    Submitted on Briefs June 23, 1993.
    Decided September 16, 1993.
    50 St.Rep. 1095.
    260 Mont. 354.
    860 P.2d 115.

      For Plaintiff and Appellant: Joseph P. Mazurek, Attorney General; Elizabeth L. Griffing, Assistant Attorney General, Helena; Mike McGrath, County Attorney, Helena.
    For Respondents: Nicholas C. Jacques, Helena (Rippingale); Gregory A. Jackson, Jackson & Rice, Helena (Andersen).
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The State appeals from a pretrial order granting a defense motion in limine. The order bars the State from presenting at trial evidence of past uncharged criminal conduct of defendant Thomas Rippingale. We affirm the order entered by the District Court for the First Judicial District, Lewis and Clark County.

The issue is whether the District Court abused its discretion in granting the motion in limine.

The defendants, Neil Andersen and Thomas Rippingale, have been charged by information with conspiracy and solicitation. The conspiracy charge alleges that Rippingale agreed with Andersen and Bryan Hardy to commit arson by burning down a mansion owned by Andersen. The solicitation charge alleges that Rippingale solicited Hardy to steal a pickup truck owned by Andersen. Trial on these charges has not yet occurred.

The State filed a notice of intent to introduce at trial evidence of a previous conspiracy to commit arson at a duplex owned by Rippingale, pursuant to the notice requirements of State v. Just (1979), 184 Mont. 262, 602 P.2d 957, as modified in State v. Matt (1991), 249 Mont. 136, 814 P.2d 52. The State also sought to introduce evidence of the theft of a pickup truck in 1980. The proposed evidence connecting Rippingale to both uncharged criminal acts would consist primarily of Hardy’s testimony.

Rippingale moved in limine to bar the State from introducing the evidence of the duplex fire and the theft of the pickup truck. The motion was submitted to the District Court on briefs and was granted in a written memorandum and order. The court later denied the State’s motion for reconsideration. The State then filed its notice of appeal, appealing only the portion of the District Court’s order suppressing evidence of the prior conspiracy to commit arson at Rippingale’s duplex.

Did the District Court abuse its discretion in granting the motion in limine?

The standard for appellate review of evidentiary rulings is whether the district court abused its discretion. State v. Sadowski (1991), 247 Mont. 63, 69, 805 P.2d 537, 540. We will not overturn a district court’s findings of fact regarding suppression hearing evidence unless those findings are clearly erroneous. State v. Bower (1992), 254 Mont. 1, 7, 833 P.2d 1106, 1110.

The District Court’s ruling was made under the modified Just rule, after the court weighed the following requirements concerning admissibility of evidence of prior acts:

(1) The other crimes, wrongs or acts must be similar to the crime charged;
(2) The other crimes, wrongs or acts must not be remote in time;
(3) The evidence of other crimes, wrongs or acts is not admissible to prove character of a person in order to show that he acted in conformity with such character, but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident;
(4) Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, considerations of imdue delay, waste of time, or needless presentation of cumulative evidence.

Matt, 814 P.2d at 56.

The Just notice filed by the State identified “the fires which occurred at the Rippingale duplex on or about February 3, 1987.” As the defense points out, the duplex fire with which Hardy has confessed involvement occurred in late January of 1987. The duplex was destroyed by a different fire, which occurred on February 3, 1987. Hardy has professed no connection with the February 3 fire, and from its review of the record, the District Court found that the January fire did not cause significant damage to the duplex. The court, however, treated the two duplex fires as a unit for purposes of considering the motion in limine.

The State asserts that the District Court abused its discretion by: 1) underestimating the relevance and significance of other crimes evidence in conspiracy cases; 2) applying too strict a similarity standard and comparing the characteristics of the fires rather than the characteristics of the conspiracies; and 3) finding that the prejudicial effect of the prior acts substantially outweighed the probative value of the evidence. We will address these arguments in the order in which the State has presented them.

Rule 404(b), M.R.Evid., provides that

[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

This rule of evidence is restated in the third requirement under the modified Just rule. Matt, 814 P.2d at 56. The State asserts that evidence of a previous agreement between Hardy and Rippingale to start a fire is admissible under this rule because of its relevance to the description, purpose, and nature of the charged conspiracy. In its Just notice, the State described the purpose of introducing the evidence as “to show intent, motive, plan, and to show the long-standing involvement of these two men in criminal activity as accomplices.”

In its order granting the defense’s motion in limine, the District Court stated “the fact that Hardy and Rippingale may have a history of criminal involvement is not a permissible purpose under Rule 404(b).” However, this was not the primary reason for the court’s ruling.

The primary reason given by the District Court for its ruling is that the fires at Rippingale’s duplex are not sufficiently similar to the mansion fire. This determination reflects the first factor under the modified Just rule.

The State asserts that all the differences listed by the District Court between the charged crime and the offered evidence relate to the nature of the fires. That is not true. The court’s order refers to the absence of evidence that the motives for starting the fires at the duplex and at the mansion were the same, because there is no evidence that Rippingale benefitted financially from the mansion fire. The court also noted that the two buildings were not owned by the same person and that Hardy did not receive any payment for the fire at the Rippingale duplex but may have received something from the mansion fire.

In farther support of its argument that the District Court applied too strict a standard on similarity, the State compares this case with other Montana cases in which the admissibility of evidence of other acts or crimes was at issue. The persuasive value of this line of argument is limited for two reasons. First, rulings on admission of evidence of prior acts must be made on a case-by-case basis. Sadowski, 805 P.2d at 543. The Montana cases cited by the State deal with a wide variety of crimes, assorted purposes for introduction of the proposed evidence, and diverse other crimes, wrongs, or acts. These variables impede comparison of the cases.

Second, we emphasize our standard of review, which is to affirm the district courts’ discretion absent clear error. The effect of this standard of review is demonstrated not only in the Montana cases cited by the State, but also in the federal cases cited, which are more factually similar to this case. Overwhelmingly, the appellate decisions affirm the discretionary rulings of the trial courts.

The District Court stated that “[e]ven if the similarity prong of the test can be considered satisfied, the evidence should still not be admitted because its probative value is substantially outweighed by the danger of unfair prejudice to [Rippingale].” Unlike the proposed evidence in many cases, the proposed evidence in this case is uncorroborated testimony of an alleged accomplice. Moreover, it appears from the record that the credibility of Hardy, the alleged accomplice, will be hotly contested at trial on several bases. This raises significant questions about the probative value of the proposed evidence. On the other hand, there is obvious prejudicial potential in allowing the proposed evidence as an indication of a long-standing involvement of Hardy and Rippingale as accomplices in criminal activity.

We conclude that the District Court did not abuse its discretion in granting the defense motion in limine prohibiting the use at trial of the proposed evidence. We therefore affirm the decision of the District Court.

JUSTICES HARRISON, HUNT and TRIEWEILER concur.

JUSTICE WEBER

dissents as follows:

As presented in the majority opinion, I will discuss the assertions by the State that the District Court abused its discretion by: (1) underestimating the relevance and significance of other crimes evidence in conspiracy cases; (2) applying too strict a similarity standard and comparing the characteristics of fires rather than the characteristics of the conspiracies; and (3) finding that the prejudicial effect of the prior acts substantially outweighed the probative value of the evidence.

Relevance and significance of other crimes evidence in conspiracy cases. The majority opinion does not discuss this at length. I conclude it is the primary issue. The majority opinion does point out that the District Court stated: “The fact that Hardy and Rippingale may have a history of criminal involvement is not a permissible purpose under Rule 404(b).” I conclude the District Court was in error in stating that a history of criminal involvement was not a permissible purpose. Defendant Thomas Rippingale is charged by information with conspiracy. The State cited Imwinkelried, Uncharged Misconduct Evidence § 4.22, which describes the unique proof which a conspiracy prosecution requires, and points to the relevance of the past relationships of criminal involvement in a conspiracy case. Imwinkelreid states:

Suppose that the defendant is charged with a conspiracy. Under substantive criminal law, the prosecutor must show that the defendant performed the act of entering into an illegal agreement with the alleged coconspirator or coconspirators. The prosecutor has evidence that the defendant and the alleged coconspirator have had prior illegal dealings. May the prosecutor offer that evidence to prove the act of entering into the charged illegal agreement without violating the character prohibition?
Numerous cases allow the prosecutor to do precisely that. In principle, this is a legitimate use of uncharged misconduct evidence. The prosecutor is not merely offering evidence of the defendant’s prior misconduct with third parties and arguing that since the defendant once entered into an illegal transaction, he or she probably entered into the charged illegal agreement. Rather, the prosecutor is offering evidence of the defendant’s special relationship with the same coconspirator involved in the charged conspiracy and contending that the earlier, special relationship increases the likelihood that they entered into the later, charged conspiracy. This theory of logical relevance is tenable. It is unlikely that a criminal would approach a complete stranger with a proposal for an unlawful conspiracy. It is much more plausible that the defendant will approach someone the defendant trusts and someone whom the defendant knows is willing to engage in illegal activity. This is a permissible noncharacter theory of logical relevance. (Footnotes omitted.) (Emphasis supplied.)

Imwinkelried, Uncharged Misconduct Evidence § 4.22. I agree with Imwinkelried’s conclusion that the relationships between coconspirators are both permissible and relevant where a conspiracy has been charged. Here the relationship between Hardy and Rippingale is of central importance to a prosecution. In United States v. Jones (11th Cir. 1991), 933 F.2d 1541, 1546, the circuit court concluded that evidence of another crime among coconspirators was relevant not only to motive and intent, but also “to explain the relationship” among them. That theory is directly applicable in the present case. In a similar manner, in United States v. McKoy (9th Cir. 1985), 771 F.2d 1207, 1214, the Ninth Circuit concluded that evidence of other crimes was admissible to “explain the nature of the relationship” between coconspirators and acknowledged that “evidence of prior criminal acts may be relevant in conspiracy cases to show the background and development of the conspiracy.” In its Modified Just Notice in the present case, the State listed the involvement of these two men in criminal activities as accomplices as one of its purposes. I believe that was clearly relevant.

Evidence of a past relationship between Rippingale and Hardy constituted a foundation upon which a subsequent conspiracy could be built. The District Court concluded that it was relevant that Rippingale received $40,000 in insurance proceeds from the duplex fire while Anderson received over $400,000 from the mansion fire. I do not believe that the receipt of the monies by different parties destroys the conspiracy aspect. In its notice, the State also proposed that the evidence of prior conspiracy was relevant to the issues of motive, intent and plan and I believe those are properly a basis for admission as well.

I therefore conclude that under part (3) of the Modified Just Rule, the evidence of the other crime was admissible to prove motive, intent, plan, and also as an explanation of the conspiracy relationship between the parties. While the latter aspect is not specifically set forth in the Modified Just Rule, this Court has determined that the evidence must be logically relevant to one of the listed purposes “or some other fact in issue and not merely introduced as proof of a character defect.” State v. Sadowski (1991), 247 Mont. 63, 72, 805 P.2d 537, 542.

Standard of similarity. Other crimes must be similar. The majority points out that the primary reason given by the District Court for its ruling was that the fire at Rippingale’s duplex was not similar to the fire at the mansion. I conclude the District Court abused its discretion, by applying too strict a similarity standard. The similarity between the uncharged conduct and the charged conduct is clearly material. Both acts involved an agreement between Rippingale and Hardy to commit arson. In both instances Rippingale approached Hardy with the request to set the fire and Rippingale was shown to be the instigator. Hardy was the man who actually set the fires. Finally, Rippingale and Hardy coordinated when the fires were to happen. In the duplex fire, Rippingale told Hardy when to set the fire, and in the mansion fire, Hardy and Rippingale talked the night before the fire.

The District Court emphasized that it was significant that Rippingale was paid the insurance proceeds on the duplex fire and Anderson was paid the insurance proceeds on the mansion fire. I suggest this has little relevance. The similarity lies in the allegation that insurance proceeds were paid to the owner as a result of arson. I conclude similarities between the two incidents Eire clearly sufficient to meet the similarity test as enunciated in other Montana cases.

As an example that such a strict rule of similarity has not been applied in Montana, State v. McKnight (1991), 250 Mont. 457, 820 P.2d 1279, held that a sexual assault was sufficiently similar to sexual intercourse without consent to allow evidence of the assault under the Modified Just Rule. In a similar manner, prior violent uncharged sex crimes were sufficiently similar to deliberate homicide to allow such evidence. See State v. Gambrel (1990), 246 Mont. 84, 803 P.2d 1071.

I would therefore conclude that the prior conspiracy established sufficient similarity under the Rule.

Prejudicial effect outweighs probative value. The majority concludes that the District Court was correct in stating that even if the similarity prong can be considered as being satisfied, the evidence should not be admitted because its probative value was substantially outweighed by the danger of unfair prejudice to Rippingale. Here the District Court emphasized that the proposed evidence was uncorroborated testimony of an alleged accomplice and that the credibility would be hotly contested at trial. This Court has concluded that prejudice alone is not a sufficient reason to refuse admission of evidence under the Modified Just Rule. See McKnight, 820 P.2d at 1284. “Unfair prejudice” has been previously defined by this Court in State v. Paulson (1991), 250 Mont. 32, 43, 817 P.2d 1137, 1144 (quoting 10 James Wm. Moore, Moore’s Federal Practice § 403.10[1]), as follows:

[B]y restricting the rule to evidence which will cause “unfair prejudice” the draftsmen meant to caution courts that mere prejudicial effect is not a sufficient reason to refuse admission. Probative evidence will frequently be prejudicial to a party, but that does not mean that it will cause the fact finder to ground a decision on an emotional basis. Thus, evidence which tends to horrify, evoke sympathy or increase a desire to punish due to a prior act of a party and whose probative value is slight may be properly excluded. (Footnotes omitted.) (Emphasis supplied.)

The District Court failed to properly apply this standard in making a finding of unfair prejudice. The evidence here does not horrify, evoke sympathy or increase a desire to punish, and the probative value is certainly not slight. All we find here is that the evidence would have some prejudicial effect but that in itself is not a sufficient reason to refuse admission under State v. Paulson.

I would therefore conclude that the District Court abused its discretion in concluding that the evidence should be excluded because its probative value is substantially outweighed by the danger of prejudice.

I would reverse the decision of the District Court.


source: Caselaw Access Project

author: JUSTICE NELSON JUSTICE WEBER

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RICK LATER, Defendant and Appellant.
    No. 92-456.
    Submitted on Briefs April 1, 1993.
    Decided September 17, 1993.
    50 St.Rep. 1099.
    260 Mont. 363.
    860 P.2d 135.

      For Appellant: Leonard J. Haxby and Christine D, Somers, Butte.
    For Respondent: Joseph P. Mazurek, Attorney General, Kathy Seeley, Assistant, and Joseph Thaggard, Special Deputy County Attorney, Helena; Thomas Scott, Beaverhead County Attorney, Dillon.
   JUSTICE NELSON

delivered the Opinion of the Court.

After trial in the Fifth Judicial District Court, Madison County, Montana, a jury found the defendant, Rick Later, guilty of misdemeanor official misconduct and acquitted him of six other charges. The District Court imposed a fine of $350 and pursuant to § 45-7-401(4), MCA, concluded that defendant Rick Later had permanently forfeited his office of sheriff of Beaverhead County and the office was declared vacant. We reverse.

The dispositive issue on appeal is whether the trial court can essentially “amend” the information with a jury instruction at the close of appellant’s case-in-chief.

The standard of review for discretionary trial court rulings is whether the trial court abused its discretion. Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603-604.

On January 3, 1992, defendant was charged with seven criminal charges, including felony theft and the charge with which he was convicted, that being misdemeanor official misconduct. Defendant had worked in law enforcement in Beaverhead County from 1972 on and was sheriff from 1980 until his conviction on May 29, 1991. The State’s motion to change the place of trial was granted and the case was tried in Madison County rather than Beaverhead County.

Count VII of the Information alleged that the defendant had committed official misconduct in violation of § 7-4-2511, MCA, and § 7-32-2144, MCA, when he failed to remit to Beaverhead County his reimbursement warrants for mileage received from the Montana Board of Crime Control.

The two statutes referred to in Count VII provide in pertinent part:

(2) No salaried county officer may receive for his own use any fees, penalties, or emoluments of any kind, except the salary as provided by law, for any official service rendered by him. Unless otherwise provided, all fees, penalties, and emoluments of every kind collected by a salaried county officer are for the sole use of the county and must be accounted for and paid to the county treasurer as provided by subsection (1) and credited to the general fund of the county.

Section 7-4-2511(2), MCA.

(1) A sheriff delivering prisoners at the state prison or a juvenile correctional facility or mentally ill persons at the Montana state hospital or other mental health facility receives actual expenses necessarily incurred in their transportation.

Section 7-32-2144(1), MCA.

When jury instructions were being settled in this case, counsel for the State conceded that §§ 7-4-2511 and 7-32-2144, MCA, had been cited in error and indeed, did not apply to the appellant’s conduct under Count VII. The State asserted that the mistake in the statutory citations aside, the information provided appropriate notice to the appellant. The State then offered an instruction citing a portion of § 7-32-2143, MCA, which the State had decided was the statute applicable to the appellant’s conduct.

The District Court found that although §§ 7-4-2511 and 7-32-2144, MCA, were mistakenly cited as the underlying offenses which formed the basis of the appellant’s official misconduct, the statute outlining official misconduct was properly cited and the technical requirements of the charge were satisfied. It noted that although the information was “less than perfect,” it did give the defendant notice of what he was charged with and how and why he was charged. The trial court then accepted the State’s proposed instruction which quoted the excerpt below from § 7-32-2143, MCA.

Jury Instruction No. 16, submitted by the State, reads as follows:

Montana law requires that all mileage paid to sheriffs whose vehicles are provided and maintained by the county shall be paid over to the county treasurer and deposited in the county general fund. (Emphasis supplied.)

The emphasized portion of the above jury instruction uses the precise language of § 7-32-2143(2), MCA. However, § 7-32-2143, MCA, is a lengthy statute that takes up a full page in the code.

To provide the jury with this instruction when the information alleges violations of two entirely different statutes modifies the information and calls into question the validity of the original information. One function of an information is to “notify a defendant of [the offense charged], thereby giving [the defendant] an opportunity to defend.” State v. Tropf (1975), 166 Mont. 79, 88, 530 P.2d 1158, 1163. To, in essence, “amend” the information at the close of the defendant’s case-in-chief certainly does not give the defendant an opportunity to defend if the amendment is substantive.

In the instant case, the “amendment” at issue is one of substance. The prosecution requested a jury instruction which was an excerpted portion of a completely different statute than those cited in the information. It was those statutes against which the defendant was given notice by the information that he would have to defend. This jury instruction substantially altered the underlying offense which formed the basis for Count VII. It did not allow the defendant an opportunity to defend because the “amendment” occurred after the defense had rested. A defendant charged with official misconduct for violating a mandatory duty ought at least know with some certainty what duty he has allegedly violated in time to prepare an appropriate defense to this allegation. Therefore, the jury instruction represented a substantive “amendment” to the original information and because the change was effected so late in the trial, when there was no opportunity for the defendant to change his defense strategy if he had chosen, it was prejudicial to the defendant.

“[The function of notifying a defendant of the offense charged, thereby giving the defendant an opportunity to defend] cannot be dispenced [sic] with when the information is amended as to substance. The defendant must be notified of the change and afforded a reasonable time after the amendment to prepare a defense. Further, when an amended information is filed substantively changing the charges against a defendant, the defendant should be arraigned under the new charges.” State v. Cardwell (1980), 187 Mont. 370, 376, 609 P.2d 1230, 1233. (Citations omitted.)

Our decision does not dilute the principle enunciated in State v. Longneck (1981), 196 Mont. 151, 640 P.2d 436, and in a line of similar cases, that an erroneous statutory reference will not invalidate the charge. The Longneck line of cases concern informations which fully inform the defendant charged “of what was intended to be charged and against what he was required to defend.” Longneck, 640 P.2d at 439. Those informations, however, contained minor errors which did not prejudice a substantial right of the defendant.

The instant case is entirely different. Here, the defendant was not fully apprised of the charges against him, was misled as to what unlawful statutory conduct was charged by erroneous citations to two statutes, was not apprised of the appropriate statute until after he presented his defense, and was then required to go to the jury on an instruction that substantially amended the original charge.

We conclude that the trial court abused its discretion in accepting the proposed jury instruction and presenting an instruction to the jury which essentially amended the original information.

REVERSED AND REMANDED.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, HUNT, GRAY and TRIEWEILER concur.

JUSTICE WEBER

dissents as follows:

I dissent from the majority opinion and its conclusion that the dispositive issue was whether the trial court could amend the information with a jury instruction at the close of the defendant’s case. I conclude that the primary issue presented to the Court was whether Sheriff Later was given sufficient notice of the nature of the crime with which he was charged under the information and supporting affidavits.

Count VII of the Information alleged that the defendant had committed the misdemeanor crime of official misconduct in violation of § 7-4-2511, MCA, and § 7-32-2144, MCA, when he failed to remit to the Beaverhead County treasurer his reimbursement warrants for mileage received from the Montana Board of Crime Control. Section 7-4-2511(2), MCA, states that any money received by a salaried county officer must be paid over to the county treasurer for crediting to the county’s general fund. Defendant contended that the information did not sufficiently inform him of the charges against him and, therefore, that the District Court erred by approving a jury instruction with another statute as its source.

As the majority emphasizes, § 7-32-2143, MCA, was not described in the information, nor was the information amended to refer to that code section.

The test to be used in determining the sufficiency of an information is whether a person of common understanding would know what charge is intended. State v. Longneck (1981), 196 Mont. 151, 154, 640 P.2d 436, 438, aff’d after remand, 201 Mont. 367, 654 P.2d 977 (1982). The affidavit in support of the motion for leave to file the information must be considered along with the information itself. State v. Hamilton (1992), 252 Mont. 496, 499, 830 P.2d 1264, 1266. The general rule is that it is not a fatal defect that the information erroneously names the offense when the facts, acts and circumstances are set forth with sufficient certainty to constitute an offense. Longneck, 640 P.2d at 438 (citing State v. Schnell (1939), 107 Mont. 579, 88 P.2d 19, 22). This Court has used these principles in a number of cases ranging from official misconduct to deliberate homicide. For example, in Longneck, this Court stated:

Ideally, the information should have named, in addition to the deliberate homicide charge, a separate count of aggravated assault to cover the nonfatal, first assault; or, it should have charged the defendant with only the nonfatal, first assault. Despite this inaccuracy in naming the offense, the facts detailed in the information and in the motion for leave to file the information served to inform the defendant of what was intended to be charged and against what he was required to defend. He could not have been surprised or misled at trial.

Longneck, 640 P.2d at 439.

In this case, the information charging the defendant provided:

During the period of approximately February 22,1990 to June 21, 1991 in Beaverhead County, Montana, the defendant committed the offense of Official Misconduct when, in his official capacity as a public servant, he purposely or negligently failed to perform a mandatory duty as required by law, namely sections 7-4-2511 and 7-32-2144, MCA, when he failed to remit to the Beaverhead County Treasury mileage fees paid by the Montana Board of Crime Control as reimbursement to Beaverhead County for the use of a Beaver-head County motor vehicle while the defendant was engaged in business with the Montana Board of Crime Control.

In addition, the portion of the affidavit in support of the motion for leave to file the information which pertains to Count VII provided:

The defendant’s failure to remit to Beaverhead County the mileage fees paid to him by the Board of Crime Control for his use of a county vehicle constitutes as [sic] act of Official Misconduct in violation of section 45-7-401(l)(a), MCA. Under that subsection of the statute, a public official commits the crime of Official Misconduct when he purposely or negligently fails to perform any mandatory duty as required by law or by a court of competent jurisdiction. In the instant case, the defendant failed to comply with the mandatory requirements of sections 7-4-2511, MCA, and 7-32-2144, MCA, when he did not, as mandated by 7-4-2511 and 7-32-2144, MCA, remit to Beaverhead County the mileage fees paid to him by the Board of Crime Control for his use of a county vehicle while conducting business with the Montana Board of Crime Control. Based on these facts, the affiant believes that probable cause exists to charge the defendant in Count VII with Official Misconduct. (Emphasis supplied.)

When jury instructions were being settled in this case, counsel for the State conceded that §§ 7-4-2511 and 7-32-2144, MCA, had been cited in error. The District Court found that the statute outlining the crime of official misconduct, however, was properly cited and that the technical requirements of the charge were satisfied, noting that although the information was “less than perfect,” it gave the defendant notice of what he was charged with and how and why he was charged.

While the information failed to accurately cite the statutory reference, Count VII of the information and the affidavit described the exact offense and facts supporting the charge of official misconduct. I conclude that the affidavit and information were clearly sufficient to inform Sheriff Later of the charge against which he was required to defend. Section 45-7-401(l)(a), MCA, sets forth the crime charged and provides that purposely or negligently failing to perform a mandatory duty as required by law is official misconduct. Section 7-32-2143(2), MCA, describes the mandatory duty of sheriffs to pay over to the county treasurer for deposit in the county general fund all mileage fees paid to them when the county provides and maintains vehicles for a sheriff’s official use. I conclude that Sheriff Later was given sufficient notice of the charges against him and what he would be required to defend against.

Sheriff Later contends that Jury Instruction No. 16 was not supported by direct evidence or some logical inference from the evidence and came at a point in the trial when he had rested his case and could not have presented any evidence relative to § 7-32-2143, MCA. This Court has stated that the primary purpose of an information is to reasonably apprise the accused of the charges against him so that he has the opportunity to prepare and present his defense. State v. Matson (1987), 227 Mont. 36, 736 P.2d 971. This requirement is satisfied if the charges sufficiently express the language of the statute which defines the offense. State v. Hankins (1984), 209 Mont. 365, 680 P.2d 958. “It is not the function of the information to anticipate or suggest instructions to the jury .... It is a notice device, not a discovery device.” State ex rel McKenzie v. District Court (1974), 165 Mont. 54, 63, 525 P.2d 1211, 1216. “The defendant has available extensive discovery procedure to determine the details of the prosecution’s case.” McKenzie, 525 P.2d at 1217. As is apparent, I disagree with the majority conclusion that there was a substantive amendment.

This Court has previously concluded that an erroneous statutory reference will not invalidate the charge. In State v. Handy (1986), 221 Mont. 365, 719 P.2d 766, the complaint charged the defendant with driving under the influence of alcohol, but cited a statute under which the defendant could not have been convicted, as did the information in this case. This Court stated:

Under the rule of Longneck and Schnell, an erroneous statutory reference will not invalidate the charge.... The disputed complaint charged appellant using the statutory language and we hold that the complaint adequately described, and gave notice to appellant of, the offense he was subsequently convicted of.

Handy, 719 P.2d at 768. Like the defendant in Handy, Sheriff Later was adequately apprised of the charge against him here. Sheriff Later was given notice of the acts he had done which constituted the crime of official misconduct and the information correctly referred to the offense of official misconduct although it did not set forth correctly the statute which created the duty involved. In fact, the information alternatively charged Later with a felony for allegedly using the money he received for reimbursed mileage from the Montana Board of Crime Control for his own personal use. Later was well aware of the charges against him and was able to defend against them.

The public policy underlying the technical requirements of a charging statute is to afford a defendant due process of law — to fairly apprise a defendant of what crime is being charged in order to fully defend against it. Sheriff Later received the required due process here. He was acquitted of the charges alleging theft in relation to this conduct. He could not have been surprised by the evidence admitted against him at the trial. The statute listing the mandatory duty was incorrectly cited by the State, but the facts and circumstances described in the information unmistakably point to an alleged violation of § 45-7-401(1)(a), MCA, which was correctly cited by the State and which describes the crime of official misconduct. The name of a crime is controlled by the specific acts charged. State v. Collins (1987), 226 Mont. 188, 191, 734 P.2d 686, 689 (citing State v. Schnell (1939), 107 Mont. 579, 88 P.2d 19). Like Collins, the information here contained harmless error and was, therefore, sufficient to apprise Later of the crime charged.

I conclude that the jury instruction was not a substantive amendment which in fact prejudiced the defendant. I would affirm the District Court.


author: JUSTICE NELSON

text:
    DON KUDLOFF, Plaintiff and Appellant, v. CITY OF BILLINGS, a political subdivision of the State of Montana; and BILLIE KRENZLER, MARION DOZIER, BETTY MILLER, DAN FARMER, JOHN MICHUNOVICH, CHARLES TOOLEY, OWEN NEITER, RALPH STONE, RICHARD E. CLARK, and NORM KOLPIN, all members of the City Council for the City of Billings, Montana; and JAMES VAN ARSDALE, Mayor of the City of Billings, Montana, Defendants and Respondents.
    No. 93-046.
    Submitted on Briefs August 26, 1993.
    Decided September 21, 1993.
    50 St.Rep. 1108.
    260 Mont. 371.
    860 P.2d 140.

      For Plaintiff and Appellant: Robert L. Stephens, R. L. Stephens, PC., Billings.
    For Defendants and Respondents: Leo S. Ward, Browning, Kaleczyc, Berry & Hoven, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from two Memoranda and Orders of the Thirteenth Judicial District Court granting summary judgment to the defendants. We affirm.

We restate the issues on appeal as follows:

1. Did the plaintiff have standing to maintain a “wrongful annexation” action after he sold the real property at issue?

2. Has there been a violation of plaintiff’s constitutional rights which would support a 42 U.S.C. § 1983 action?

The plaintiff, Don Kudloff (Kudloff), filed a complaint on March 2, 1990, alleging that the City and its city council members and mayor annexed his real property in violation of state statute. Kudloff also alleged that, in the process of annexing his property, the defendants violated his constitutional rights, giving rise to a claim under 42 U.S.C. § 1983 (§ 1983 claim). In his prayer for relief, Kudloff requested that the annexation be set aside and sought his attorney’s fees and costs and $50,000 for emotional and physical pain and suffering.

The defendants denied the allegations of Kudloff’s complaint and asserted a number of affirmative defenses, including immunity. After preliminary discovery, the City filed a motion for summary judgment based on its asserted immunity defense. In addition, the City argued that the mayor and city council members were entitled to absolute legislative immunity or, alternatively, qualified good faith immunity. Kudloff also filed a motion for summary judgment, alleging that immunity was not available for a § 1983 claim and that he was entitled to judgment as a matter of law under the facts of the case.

After some further discovery, briefing, and oral argument, the District Court entered its Memorandum and Order on December 13, 1991, granting summary judgment to the city council members and the mayor, on all counts, on the basis of immunity. The District Court also granted summary judgment to the City on Kudloff’s § 1983 claim, but denied summary judgment to the City on the issue of the legitimacy of its annexation of Kudloff’s property, treating Kudloff’s complaint as a petition for court review under § 7-2-4741, MCA. Kudloff’s motion for summary judgment was denied.

Thereafter, some additional discovery was conducted. On June 2, 1992, the City filed a second motion for summary judgment. The basis for this motion was that Kudloff had sold the real property and no longer had standing to maintain the lawsuit. On November 17,1992, the District Court granted the City’s motion for summary judgment, finding that Kudloff had no standing to attack the validity of the annexation procedures because he had sold the real property which was the subject of the pending action. From these summary judgments, Kudloff appeals.

Our standard in reviewing a grant of summary judgment is the same as that initially utilized by the district court. McCracken v. City of Chinook (1990), 242 Mont. 21, 24, 788 P.2d 892, 894. Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), M.R.Civ.P.

I - DISMISSAL OF “WRONGFUL ANNEXATION” CLAIM

In Kudloff’s complaint, he alleged that he owned the real property which the City annexed, and he requested that the annexation be set aside as void. A party vested with legal title is the real party in interest in a dispute involving real property. Blakely v. Kelstrup (1985), 218 Mont. 304, 306, 708 P.2d 253, 255. Clearly, at the time Kudloff filed his complaint, he was the real party in interest entitled to bring the action under Rule 17(a), M.R.Civ.P, which states that “[ejvery action shall be prosecuted in the name of the real party in interest.”

After the commencement of this action, Kudloff sold the subject real property. On June 24,1992, in his response to the City’s second motion for summary judgment, Kudloff stated that he “[did] not seek a judgment or injunction on annexing the property and clearly, based upon the relinquishment of the property, that is outside his scope of available remedies.” Rather, Kudloff claimed that he sold the real property in order to mitigate his damages, and expressed his intent to seek damages for losses he alleged resulted from the “forced sale” of the real property.

However, Kudloff at no time amended his complaint to reflect his new intentions. In this case, an amended complaint was required when the theory of Kudloff’s case and his alleged damages changed. The purpose of a complaint, and subsequent amendments, is to provide adequate notice to the defendants of the nature of the actions they must defend against and the remedy which is sought. Here, more than two years after the original complaint was filed, Kudloff changed entirely the nature of the action without providing the required notice to the defendants. Therefore, the District Court properly dismissed the “wrongful annexation” action.

II - ALLEGED CONSTITUTIONAL VIOLATIONS

Kudloff also appeals the District Court’s dismissal of his § 1983 claim. In order to support a claim under 42 U.S.C. § 1983, a constitutional right must have been violated by a person acting under color of state law. A threshold requirement is that a requisite violation has occurred. In this case, Kudloff alleges that, in the process of annexing his property, the defendants violated a number of his constitutional rights. We will address each in turn.

A. “TAKING” WITHOUT COMPENSATION

Kudloff alleges that the annexation of his real property represented an unconstitutional taking because the extension of services under § 7-2-4732, MCA, was impractical and unfeasible, and because no cost-benefit analysis was performed. However, a regulatory taking of property by a municipality is allowed even if the value of that property and its usefulness is diminished. Penn Central Transp. Co. v. New York City (1978), 438 U.S. 104, 131, 98 S.Ct. 2646, 2662-63, 57 L.Ed.2d 631, 652-53. It is only when the owner of the real property has been called upon to sacrifice all economically beneficial use of that property in the name of the common good that a constitutionally-protected taking has occurred. Lucas v. South Carolina Coastal Council (1992), _ U.S. _, _, 112 S.Ct. 2886, 2895, 120 L.Ed.2d 798, 815.

In Penn Central, New York City enacted a Landmarks Preservation Law (Landmarks Law) to protect historic landmarks and neighborhoods from destruction or alteration. Pursuant to this Landmarks Law, the Landmark Preservation Commission (Commission) designated the Grand Central Terminal (Terminal), which was owned by Penn Central Transportation Company (Penn Central), a landmark. Thereafter, Penn Central entered into a lease with UGP Properties (UGP), allowing UGP to construct a multistory office building over the Terminal. Pursuant to the Landmarks Law, the parties submitted their building plan to the Commission, which rejected the plan for the building as destructive of the Terminal’s historic and aesthetic features. Penn Central, 438 U.S. at 109-17, 98 S.Ct. at 2651-56, 57 L.Ed.2d at 639-45. Penn Central and UGP filed suit, claiming that the application of the Landmarks Law had “taken” their property without just compensation. The trial court granted injunctive relief to the plaintiffs. That judgment was reversed by the New York Supreme Court, Appellate Division, which held that there was no taking because there was no proof that the regulation deprived the plaintiffs of all reasonable beneficial use of the property. Penn Central, 438 U.S. at 119, 98 S.Ct. at 2656-57, 57 L.Ed.2d at 645. The New York Court of Appeals affirmed, summarily rejecting the claim that the Landmarks Law had taken property without just compensation. Penn Central, 438 U.S. at 120-21, 98 S.Ct at 2657-58, 57 L.Ed.2d at 645-46. On certiorari, the United States Supreme Court stated that land-use regulations which adversely affect recognized real property interests, such as zoning regulations, are commonly upheld. Penn Central, 438 U.S. at 125, 98 S.Ct. at 2659-60, 57 L.Ed.2d at 648-49. The Supreme Court further stated that any interference with the property at issue was not of such a magnitude that compensation was required to sustain it. Penn Central, 438 U.S. at 137, 98 S.Ct. at 2665-66, 57 L.Ed.2d at 656-57. The Supreme Court, in affirming the appellate courts, held that the restrictions imposed were substantially related to the promotion of the general welfare while permitting reasonable beneficial use of the Terminal to the plaintiffs. Penn Central, 438 U.S. at 138, 98 S.Ct. at 2666, 57 L.Ed.2d at 657.

In Lucas, the petitioner purchased two residential lots on a South Carolina barrier island, intending to build single-family homes, in 1986. In 1988, the South Carolina legislature enacted the Beachfront Management Act (Act), which barred Lucas from building any permanent structures on his land. Lucas, _ U.S. at _, 112 S.Ct. at 2889, 120 L.Ed.2d at 807-08. He filed suit in the South Carolina Court of Common Pleas, contending that the Act effected a taking of his property without just compensation. The court agreed, finding that the Act rendered Lucas’ property valueless. The Supreme Court of South Carolina reversed, holding that, because the Act was designed to prevent serious public harm, no compensation was owed to Lucas. Lucas, _ U.S. at _, 112 S.Ct. at 2890, 120 L.Ed.2d at 808-09. On certiorari, the United States Supreme Court stated that “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Lucas, _ U.S. at _, 112 S.Ct. at 2893, 120 L.Ed.2d at 812. Here, Lucas was required to sacrifice all economically beneficial uses in the name of the common good by leaving the property in its natural state. Lucas, _ U.S. at _, 112 S.Ct. at 2895, 120 L.Ed.2d at 814-15. The state is required to compensate a property owner only if it seeks to sustain a regulation that deprives the property owner of all economically beneficial uses of his property. That rule, however, does not apply if the use or interest the state is attempting to regulate was not part of the owner’s original estate or title. Under the latter circumstances, the state is not required to compensate the property owner. Lucas, _ U.S. at _, 112 S.Ct. at 2899, 120 L.Ed.2d at 819-20. According to that case;

[a]ny limitation so severe cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State’s law of property and nuisance already place upon land ownership.... It seems unlikely that common-law principles would have prevented the erection of any habitable or productive improvements on petitioner’s land; they rarely support prohibition of the essential use of land... The question, however, is one of state law to be dealt with on remand.

Lucas, _ U.S. at _, 112 S.Ct. at 2900-01, 120 L.Ed.2d at 821-22. On that basis, the Supreme Court reversed and remanded the case.

The case at hand is similar to Penn Central in that the annexation of the property may have diminished the value and usefulness of the property. However, any effect the annexation had on the value of the property does not rise to the level of Lucas which would require compensation. As stated in Lucas, “the property owner necessarily expects the uses of his property to be restricted, from time to time, by various measures newly enacted by the State in legitimate exercise of its police powers. ...’’Lucas, _ U.S. at _, 112 S.Ct. at 2899, 120 L.Ed.2d. at 820.

In 1974, Kudloff had been granted a special exception allowing ski-related uses of the real property. The record in this case indicates that this special exception remained effective after the City annexed Kudloff’s property. In addition, there is no evidence in the record that Kudloff ever requested a zoning change or special variance for ski-related uses after the annexation took place. Kudloff is hard-pressed to argue that a “taking” occurred when he never attempted to ascertain whether he could use the property for ski-related purposes. For the above reasons, Kudloff’s allegation that an unconstitutional taking has occurred is without merit.

B. FAILURE TO GRANT EXEMPTION

The annexation by the City was conducted under §§ 7-2-4501, et seq., MCA, which allow a city to annex wholly surrounded land. Kudloff claims that his constitutional rights were violated when the defendants annexed his real property without granting him a statutory exemption under this part. Kudloff bases this assertion on § 7-2-4503, MCA, which states:

Land shall not be annexed under this part whenever the land is used: ... (2) for the purpose of maintaining or operating ... a place for public or private outdoor entertainment or any purpose incident thereto.

Fatal to Kudloff’s argument is the fact that Kudloff was not “maintaining or operating” a ski area or any place of public or private outdoor entertainment. Over a period of years, Kudloff had taken some steps to develop a ski area; however, he was far from completing his project, and was certainly not maintaining or operating such an area. Therefore, this statutory exemption is not available to Kudloff, and his claim of a constitutional violation based upon this statute is also without merit.

C. INCREASED TAX BURDEN

Lastly, Kudloff claims that the increased tax burden imposed by the annexation of his real property violated his constitutional rights. Montana law is clear that the levying of future taxes after an annexation does not constitute a taking of property. Harrison v. City of Missoula (1965), 146 Mont. 420, 425, 407 P.2d 703, 706. Kudloff’s claim of a constitutional violation on this basis is without merit.

Because there has been no violation of any of Kudloff’s constitutional rights by any of the defendants, the District Court properly dismissed the § 1983 claims. We do not need to address the District Court’s holding that the doctrine of immunity barred these claims. This Court will uphold the result reached by the district court if its decision was correct, regardless of the reasons given by the district court for its conclusion. Shimsky v. Valley Credit Union (1984), 208 Mont. 186, 190, 676 P.2d 1308, 1310.

Affirmed.

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


author: CHIEF JUSTICE TURNAGE

text:
    MICKEY D. FONK, Petitioner and Appellant, v. MAVANEE J. ULSHER, Respondent and Respondent, and J.C.F. and S.J.F., Minor Children, and MONTANA DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, CHILD SUPPORT ENFORCEMENT DIVISION, Real Party in Interest.
    No. 93-140.
    Submitted on Briefs August 12, 1993.
    Decided September 28, 1993.
    50 St.Rep. 1112.
    260 Mont. 379.
    860 P.2d 145.

      For Petitioner and Appellant: Michael V. Sinclair, Coil & Sinclair, Bozeman.
    For Respondent and Respondent: Robert T. Cummins, Helena, and Peggy Probasco, CSED, Butte.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Petitioner Mickey Fonk brought this action to recover monies involuntarily paid for child support, to determine paternity and to question service of process on the basis that he had not been personally served in the underlying dissolution proceeding. The District Court for the First Judicial District, Lewis and Clark County, dismissed Forik’s service of process claim and entered final judgment. Fonk appeals that portion of the judgment which denies his motion to quash service of process. We reverse the District Court.

The sole issue on appeal is whether service of process is valid when a process server leaves a summons and petition with a family member at the residence of the person sought to be served.

Mickey Fonk (Mickey) and Mavanee Ulsher (Mavanee) were married December 1,1982, at Helena, Montana. Two children, J.C.F. and S.J.F., were born during the marriage. The couple separated, and Mavanee petitioned for dissolution of marriage on July 18, 1986, in the District Court for the First Judicial District, Lewis and Clark County.

On August 3, 1986, a Gallatin County deputy sheriff left the summons and complaint in the dissolution proceeding with Betty Fonk, Mickey’s mother, at her home in which Mickey then resided. Mickey was not home at the time. In his return on service, the deputy erroneously stated that he had personally served Mickey. Betty Fonk later stated that she did not know whether Mickey had received the service papers.

On April 2, 1987, the District Court entered a default decree dissolving the marriage of Mavanee Ulsher and Mickey Fonk, distributing their marital assets between them, and ordering Mickey to pay child support of $75 per month for each of the two minor children. Mavanee was present at the proceeding; Mickey was not.

Mavanee, who received government Aid to Families with Dependent Children (AFDC), assigned her AFDC rights to the Department of Social and Rehabilitation Services, Child Support Enforcement Division (CSED). CSED thereafter sought enforcement of its assigned child support rights by intercepting Mickey’s tax refunds and garnishing his income. Mickey stated that he first became aware of the dissolution and his child support obligations indirectly during 1990 when he sought legal advice regarding his 1989 income tax returns.

On June 14,1991, Mickey filed this action alleging that he was not the natural father of the two minor children and requesting that the court order the State of Montana, Department of Social and Rehabilitation Services and Mavanee to reimburse him for all involuntarily-paid child support. Mickey also claimed that he had not been properly served in the underlying dissolution proceeding and that Mavanee committed fraud upon the court by representing that he had fathered the two children.

On July 18, 1991, Mavanee filed her response to the paternity action and included a cross-petition for increased child support. She moved for dismissal of Mickey’s petition, arguing that the paternity issue was res judicata and that his petition was a collateral attack on the default judgment entered in the dissolution action.

After an April 3, 1992, hearing on the service of process issue, the court held:

[I]t became apparent that the Sheriff of Gallatin County had not, in fact, ever served Mickey Fonk with [the] papers. However, it does appear to this Court that Mickey was personally served with [the] papers. The law does not require that the service be made by the Sheriff’s office.
Testifying in this matter was Mickey’s mother, Betty. She indicated that when the Sheriff came to her house on August 3, 1986, her son was not home. The Sheriff left the papers with her. Her son came home later in the day and she indicates that she gave the papers to Mickey. She indicates that this occurred by her directing Mickey’s attention to the papers that were lying on a table. She notes that the next day the papers were gone so that “he must’ve picked them up.” The testimony of Mrs. Fonk was under oath. This Court considers her testimony to be the proof of service in this matter. Without the testimony of Mickey’s mother, the Court would have to hold that he was not served with process.

Prior to the final adjudication of the case, Mickey prematurely appealed the District Court’s ruling and this Court dismissed the appeal without prejudice on November 20,1992, 255 Mont. 538, 843 P.2d 798. The District Court entered final judgment as to Mickey’s service of process claims pursuant to Rule 54(b), M.R.Civ.R, on February 16,1993; Mickey now appeals that service of process ruling.

Was there valid service of process when the Gallatin County deputy left the dissolution proceeding petition and summons with a family member at Mickey’s residence?

Mickey contends that service of process was invalid because he was not personally served as required by Rule 4D(2)(a), M.R.Civ.P. Mavanee contends that the service was valid because the District Court found that Betty Fonk’s testimony pertaining to Mickey’s receipt of the documents was credible evidence establishing personal service.

Our standard of review concerning a district court’s conclusions of law is to determine whether the court’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. Normally, the burden of proof necessary to overcome statements and recitals in a sheriff’s return must be clear, unequivocal, and convincing. Sewell v. Beatrice Foods Co. (1965), 145 Mont. 337, 341-42, 400 P.2d 892, 894. Here, the record reflects that the deputy’s return on summons was erroneous because it stated that the deputy personally served Mickey J. Fonk. There being no dispute about this fact, we examine whether service was valid.

The nature of service is twofold: it serves notice to a party that litigation is pending, and it vests a court with jurisdiction. Improper service undermines a court’s jurisdiction, and a default judgment subsequently entered is thereby void. See Sink v. Squire (1989), 236 Mont. 269, 273, 769 P.2d 706, 708; Shields v. Pirkle Refrigerated Freight Lines, Inc., et al. (1979), 181 Mont. 37, 45, 591 P.2d 1120, 1125.

Alternate means exist which obligate a person to become involved as a party in a civil lawsuit. One is valid service of process under Rule 4D, M.R.Civ.P., and the other is a voluntary appearance by a named party. See Spencer v. Ukra (1991), 246 Mont. 430, 804 P.2d 380 (voluntary appearance waives all irregularities in service of process). Because Mickey did not voluntarily appear at the dissolution proceeding, we focus on service of process.

The directions of the service of process rule are mandatory and must be strictly followed even where a defendant has actual notice of the summons and complaint; knowledge of the action is not a substitute for valid service. See In re Marriage of Blaskovich (1991), 249 Mont. 248, 815 P.2d 581; Holt v. Sather (1928), 81 Mont. 442, 264 P. 108. Service of process shall be made

upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to the individual personally .... [Emphasis supplied.]

Rule 4D(2)(a), M.R.Civ.P.

Here, the Gallatin County deputy sheriff erred by delivering the service of process to Betty Fonk and signing a return on summons document which erroneously stated that Mickey J. Fonk was personally served. When Mickey questioned the validity of the service of process, the court ruled that Betty Fonk made valid service upon Mickey after finding that the law does not require that sendee be made by the sheriff’s office. We disagree with the court’s ruling.

The Montana Rules of Civil Procedure permit “other” service of process or service by publication (otherwise known as constructive service) only in limited contexts, none which apply to the present situation. See Rule 4D(4), M.R.Civ.P. (other service), and Rule 4D(5)(a)(iii), M.R.Civ.P. (dissolution action service by publication when the person sought to be served cannot be appropriately served under foregoing subsections of Rule 4D, M.R.Civ.P). Likewise, any in personam or in rem jurisdiction discussion is inapplicable in the present situation where threshold service of process requirements have not been met.

Service may be made by “any other person over the age of 18 not a party to the action.” Rule 4D(1)(a), M.R.Civ.P. That provision is read in conjunction with the requirements of Rule 4C(1), M.R.Civ.P., which states

[u]pon filing of the complaint, the clerk shall forthwith issue a summons, and shall deliver the summons either to the sheriff of the county in which the action is filed, or to the person who is to serve it....

Betty Fonk was neither authorized by law to make service of process nor was she an appointed agent to receive service of process for Mickey. See Rule 4D(4), M.R.Civ.P., supra. She signed neither a return on summons nor an affidavit asserting that Mickey could not be found. See Rule 4D(5)(c), M.R.Civ.P. She therefore did not effectuate valid service of process regardless of whether Mickey picked up the summons and complaint at her request. We conclude that Betty Fonk’s trial testimony is not a valid substitute for the service of process procedures required by Rule 4D, M.R.Civ.P. To hold otherwise would violate Mickey Fonk’s due process of law rights under the United States and Montana Constitutions. See U.S. Const, amend. 14, and Art. II, § 17, Mont.Const.

Because Mickey was not validly served with process in the underlying dissolution proceeding, we hold that the District Court’s April 2, 1987, decree is void. Additionally, the court’s June 3, 1992 order ruling that the appellant was in fact served with the summons and complaint on August 3,1986, is reversed and we remand the case for further proceedings consistent with this opinion.

JUSTICES HARRISON, HUNT, NELSON and GRAY concur.


author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOHN LEE McGUIRE Defendant and Appellant.
    No. 92-534.
    Submitted on Briefs August 12, 1993.
    Decided October 4, 1993.
    50 St.Rep. 1122.
    260 Mont. 386.
    860 P.2d 148.
    For Defendant and Appellant: Jeannette Ellen Berry, Berry & Bordy, Bozeman.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Micheál S. Wellenstein, Ass’t Attorney General, Helena; Thomas J. Esch, Flathead County Attorney, Ed Corrigan, Deputy Flathead County Attorney, Kalispell.
   JUSTICE GRAY

delivered the Opinion of the Court.

John McGuire appeals the sentence imposed by the Eleventh Judicial District Court, Flathead County, following conviction for the offense of burglary. We modify the sentence and remand for entry of sentence consistent with this opinion.

The issue on appeal is whether the District Court erred by imposing a sentence consecutive to one not yet imposed by another district court.

On March 27, 1990, John McGuire (McGuire) pled guilty to a burglary charge in Flathead County. The District Court granted his request to postpone sentencing until he completed a drug and alcohol treatment program at the State Hospital in Galen. McGuire escaped from that facility in May of 1990.

McGuire was subsequently arrested in November of 1990 for offenses committed in Gallatin County. He pled guilty to one count of felony theft and one count of burglary in August of 1992. Prior to sentencing in Gallatin County, however, McGuire was returned to Flathead County for sentencing on the earlier burglary conviction.

On September 14, 1992, the Eleventh Judicial District Court, Flathead County, sentenced McGuire to a twenty-year sentence at the Montana State Prison, with eight years suspended. The court ordered that the sentence be served consecutively to the sentence McGuire subsequently would receive in Gallatin County. On November 4,1992, McGuire was sentenced for the felony theft and burglary convictions in Gallatin County. McGuire appeals from the sentence imposed by the District Court in Flathead County.

Did the District Court err by imposing a sentence consecutive to one not yet imposed by another district court?

McGuire argues that under § 46-18-401(1)(a), MCA, only a district court which imposes a sentence subsequent to one already imposed has the authority to determine whether the sentences will be concurrent or consecutive to each other. On that basis, he contends that the Eleventh Judicial District Corut exceeded its sentencing authority by ordering its sentence to run consecutive to one not yet imposed by the district court in Gallatin County. We agree.

Section 46-18-401(l)(a), MCA, authorizes a court imposing sentence on a person already serving a term of commitment to determine whether the new sentence will be concurrent with, or consecutive to, the sentence previously imposed. The statute makes consecutive sentences under these circumstances automatic “[ujnless the judge otherwise orders.” Section 46-18-401(l)(a), MCA.

It is clear that this statute is not applicable here and provides no support for the District Court’s order for consecutive sentences. McGuire was not serving another sentence at the time the District Court sentenced him on the Flathead County burglary charge. Thus, we conclude that the Eleventh Judicial District Court, Flathead County, was without authority to order McGuire to serve his term of incarceration consecutive to another sentence not yet imposed.

Furthermore, sound sentencing principles preclude a court from imposing a sentence consecutive to one not yet imposed. By definition, a consecutive sentence does not begin until the sentence to which it is consecutive has been satisfied. On that basis, a sentence ordered to run consecutively to one which has not been imposed creates problems of implementation. Furthermore, when a court orders a sentence to run consecutively to one not yet imposed, the court does so without knowing the length of the future sentence; therefore, it lacks an adequate basis for the exercise of its discretion. Finally, the imposition of consecutive sentences under these circumstances interferes with the sentencing discretion of the court which will impose the future sentence. See State v. King (Ariz. App. 1990), 802 P.2d 1041.

On appeal from a criminal conviction, we may reverse, affirm or modify the judgment or order from which the appeal is taken. Section 46-20-703, MCA. Because we have determined that the District Court in Flathead County exceeded its sentencing authority, we modify the judgment and sentence by striking the provision ordering McGuire’s sentence to be consecutive to one not yet imposed in Gallatin County, affirm the remainder of the sentence, and remand this cause to the District Court for entry of sentence consistent with this opinion.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOHN LEE McGUIRE, Defendant and Appellant.
    No. 93-070.
    Submitted on Briefs August 12, 1993.
    Decided October 4, 1993.
    50 St.Rep. 1132.
    260 Mont. 389.
    860 P.2d 150.
    For Defendant and Appellant: Jeannette Ellen Berry, Berry & Bordy, Bozeman.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Micheál S. Wellenstein, Ass’t Attorney General, Helena: A. Michael Salvagni, Gallatin County Attorney, Marty Lambert, Chief Deputy Gallatin County Attorney, Bozeman.
   JUSTICE GRAY

delivered the Opinion of the Court.

John McGuire appeals the sentence imposed by the Eighteenth Judicial District Court, Gallatin County, following conviction for one count each of felony theft and burglary. We affirm.

The procedural facts relevant to this appeal are set forth in State v. McGuire, No. 92-534 ([50 St.Rep. 1122], 860 P.2d 148), (McGuire I). Subsequent to sentencing in Flathead County, McGuire was sentenced on the Gallatin County theft and burglary convictions to concurrent terms of ten and twenty years imprisonment, respectively, with five years suspended. The District Court’s sentence contained no reference to the Flathead County sentence and did not expressly provide that it would run concurrently with that previously imposed sentence.

The issue on appeal is whether the District Court erred in sentencing McGuire on the Gallatin County charges.

McGuire correctly notes that the court in Flathead County expressly made its sentence consecutive to the one to be imposed in Gallatin County. He also correctly argues that, pursuant to § 46-18-401(1)(a), MCA, his Gallatin County sentence is consecutive to the Flathead County sentence because it was not expressly ordered to run concurrently. On that basis, McGuire contends that the sentences are ambiguous because they run consecutively to each other and neither has a definite commencement date.

While McGuire argues that the Gallatin County sentence was invalid and illegal, any ambiguity resulting from the combined effects of the Flathead and Gallatin County sentences was removed by our decision in McGuire I. There, we determined that the court in Flathead County exceeded its sentencing authority under § 46-18-401, MCA, by ordering its sentence to be served consecutively to one not yet imposed. We modified that sentence and judgment, striking the portion providing for consecutive sentences.

McGuire concedes that § 46-18-401(1)(a), MCA, authorizes the District Court in Gallatin County to make its sentence consecutive to the one imposed by the court in Flathead County. Under that statute, the court imposing the second sentence has the discretion to make the sentences concurrent; failure to expressly do so results in consecutive sentences. McGuire I, 860 P.2d at 149.

It is clear that the District Court in Gallatin County had the statutory authority, but no affirmative duty, to merge its sentence with the one imposed in Flathead County; it declined to do so. McGuire asserts no actual error by the District Court in Gallatin County in exercising its discretion under, or in otherwise applying, § 46-18-401(l)(a), MCA.

We hold that the District Court did not err in sentencing McGuire on the Gallatin County charges. The effect of McGuire I and this case is that the Gallatin County sentence will run consecutive to the sentence imposed in Flathead County, as modified by this Court in McGuire I.

Affirmed.

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


author: CHIEF JUSTICE TURNAGE JUSTICE TRIEWEILER

text:
    KEVIN PETRI, d/b/a ALL PURPOSE SERVICES, Plaintiff and Appellant, v. MONTANA STATE UNIVERSITY, Defendant and Respondent.
    No. 93-190.
    Submitted on Briefs August 27, 1993.
    Decided October 4, 1993.
    50 St.Rep. 1133.
    260 Mont. 392.
    860 P.2d 154.

      For Plaintiff and Appellant: J. David Penwell, Bozeman.
    For Defendant and Respondent: Leslie C. Taylor, Bozeman.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Kevin Petri, d/b/a All Purpose Services, brought this action against Montana State University (MSU) seeking damages for its failure to accept his bids on two construction projects. Following trial to the court, the District Court for the Eighteenth Judicial District, Gallatin County, entered judgment for MSU. We affirm.

While Petri does not concisely state the issues he wishes to raise on appeal, they can be characterized as follows:

1. Did the District Court err in concluding that MSU did not act arbitrarily and capriciously by rejecting Petri’s bid on the Johnstone project?

2. Did the court err in failing to find that MSU violated a duty to award state contracts to the lowest responsible bidder?

In June of 1991, MSU publicly requested bids for two construction projects. One project consisted of repainting the Paisley Court buildings (Paisley project) and the other involved painting the JohnstoneMullen-Culbertson buildings (Johnstone project). Opening of bids for the Paisley project was scheduled for 1:00 p.m. on June 20,1991, and opening of bids for the Johnstone project was scheduled for one-half hour later, at 1:30 p.m.

Both bid openings were conducted by Cecilia Vaniman, an architect for MSU. Petri submitted a timely bid for the Paisley project, which Vaniman opened with the other bids at 1:00. When it was 1:30 p.m. by the clock in the bid opening room, Vaniman announced the closing of bids for the Johnstone project. The sole bid, submitted by Hobaugh Construction Company, was opened.

Minutes later, Petri appeared in the room and attempted to submit a bid for the Johnstone project. Vaniman refused to accept the bid. She confirmed that the bid room clock was accurate by phoning the state government agency in Helena, Montana, which supervised state construction projects. Petri then left the office.

Within a few hours, Petri returned to Vaniman’s office and asked her to reconsider whether to accept his bid on the Johnstone project. When she again refused, he asked her to return his bid on the Paisley project to him. Vaniman complied with that request.

The District Court ruled that Petri waived all rights on the Paisley project by withdrawing his bid on that project. It further ruled that MSU did not violate any Montana statute or bidding requirement concerning the award of the contract for the Johnstone project. It ordered that judgment be entered in favor of MSU.

I

Did the District Court err in concluding that MSU did not act arbitrarily and capriciously by rejecting Petri’s bid on the Johnstone project?

The District Court concluded:

[Petri’s] bid for the Johnstone project was not timely according to the time-keeping pieces at the Montana State University office in question. Although there was some evidence to suggest that the MSU clock was slightly fast, there is no evidence to support the contention that the MSU employees acted arbitrarily or capriciously.

Petri testified that the clock in the bid opening room was three minutes fast as compared with his watch. He called as a witness a retired U.S. West telephone employee, Kent Dreier. Dreier testified that later on the afternoon of June 20, 1991, at Petri’s request, he verified that the clock in the bid opening room was three minutes and eight seconds fast according to a confidential U.S. West phone number for obtaining the correct time.

As MSU points out, it cannot be held responsible for coordinating its clock with a time source not available to it. Moreover, the U.S. West time source has not been established as more accurate than the watches of the people present in the bidding room, the clock in that room, or the clock in the Helena, Montana, office. We conclude that Petri’s evidence on this point was inconclusive.

Petri also contends that it would be impossible for all the events which transpired between the opening of the bids and the phone call to Helena to have occurred between 1:30 and 1:34 p.m., when the call was completed. However, he does not specify a particular finding relating to this argument, and none of the court’s findings address this point directly. The testimony of several persons present in the bid opening room was that the events described occurred between 1:30 and 1:34 p.m., and only Petri’s speculative opinion contradicts their testimony.

Petri argues that Vaniman should have exercised her discretionary authority by accepting his bid on the Johnstone project rather than by allowing him to withdraw his bid on the Paisley project. He states that the people in the bid opening room knew he intended to submit a bid on the Johnstone project, because he said so when he submitted his bid on the Paisley project. He quotes this Court:

[Ijrregularities which do not give one bidder a substantial advantage over other bidders, are types of irregularities that can be waived by public officers in awarding contracts.

Martel Const. v. Montana State Bd. of Examiners (1983), 205 Mont. 332, 343, 668 P.2d 222, 228. And, “state officials have discretionary power to waive immaterial irregularities in any bid offered.” Sebena Paving v. Gallatin Airport Auth. (1990), 245 Mont. 389, 393, 801 P.2d 614, 616.

In Martel, the irregularity was failure of the successful bidder to make written acknowledgment of receipt of addenda to the solicitation for bids. The irregularities in Sebena involved inclusion of a minority-owned enterprise as a subcontractor.

Neither party has cited Montana case law concerning late bids as an irregularity in bidding for government contracts. MSU points out that, under federal government procurement regulations, hand-carried late bids are almost always rejected. J. McBride & T. Touhey, et al., Government Contracts, Volume IB, § 10.110[5], p. 10-340 (1993). Although Montana state government contracts are not subject to the federal regulations, the record here clearly reflects that rejection of late bids is the industry-wide practice. Vaniman and two of her supervisors testified that they had never accepted a late bid, in hundreds of bid openings. The purpose of this practice is to prevent a late bidder from observing the terms of the other bids and changing his bid at the last moment.

We conclude that the District Court did not err in treating lateness as a material irregularity in a government bid and in concluding that MSU did not act arbitrarily and capriciously in rejecting Petri’s bid on the Johnstone project because it was late.

II

Did the court err in failing to find that MSU violated a duty to award state contracts to the lowest responsible bidder?

Petri cites § 18-1-102, MCA, which provides that public contracts shall be awarded “to the lowest responsible bidder.” He argues that the decision not to accept his bid violated MSU’s statutory duty to accept the lowest bid on the Johnstone project.

Because Petri was not allowed to submit his bid on the Johnstone project, there is no proof that his would have been the lowest bid meeting the requirements for the project. We therefore hold the court did not err in failing to find that MSU violated a duty to award state contracts to the lowest responsible bidder.

Affirmed.

JUSTICES GRAY, HUNT and WEBER concur.

JUSTICE TRIEWEILER

specially concurring.

I concur with the majority’s conclusion that MSU could properly reject Petri’s bid because it was late. Because I conclude that Petri’s bid was legally rejected, it necessarily follows that he was not the lowest bidder. However, I disagree with the majority’s conclusion that there is no proof that Petri’s bid would have been the lowest, had it been timely received.

For these reasons, I concur with the result of the majority opinion without agreeing with all that is said therein.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RICHARD J. FERTTERER, SR., and DAVID JOHN FERTTERER, Defendants and Appellants.
    No. 93-199.
    Submitted on Briefs September 2, 1993.
    Decided October 4, 1993.
    50 St.Rep. 1135.
    260 Mont. 397.
    860 P.2d 151.

      For Defendants and Appellants: John M. Morrison, Morrison Law Offices, Helena.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Paul D. Johnson, Assistant, Helena; Patrick L. Paul, Cascade County Attorney, Great Falls.
   JUSTICE NELSON

delivered the Opinion of the Court.

Defendants appeal from an Order of the Eighth Judicial District Court, Cascade County, denying defendants’ motion to amend their sentences so as to cause such sentences to run concurrently with their sentences in the United States District Court (federal court). We affirm.

We state the issues on appeal as follows:

1. Did the District Court err in denying defendants’ motion for summary ruling on the basis of Uniform District Court Rule 2(b)?

2. Did the District Court err in refusing to amend the defendants’ sentences so as to cause such sentences to run concurrently with their sentences in federal court?

Richard J. Fertterer, Sr. was charged with two felony counts of criminal mischief and seven misdemeanor fish and game violations in connection with a wide-spread poaching operation. His son, David John Fertterer, was charged with two felony counts of criminal mischief and four misdemeanor fish and game violations. On May 14, 1991, a jury found both defendants guilty of all counts. On June 19, 1991, District Judge Joel G. Roth sentenced the defendants each to twenty years in the Montana State Prison, with fifteen years suspended, on the felony counts and to concurrent jail terms on the misdemeanor counts. In addition, fines, restitution, and costs were levied against the defendants. The defendants appealed from their convictions to this Court, and we upheld the convictions on September 28, 1992. State v. Fertterer (1992), 255 Mont. 73, 841 P.2d 467 (Fertterer I). Petition for rehearing was denied on November 12, 1992, and remittitur issued on November 16,1992.

The factual background leading up to the defendants’ convictions is set forth in Fertterer I, and will not be repeated here except as necessary to dispose of the issues before us.

On October 27, 1992, the defendants moved the District Court to amend their sentences so as to cause such sentences to run concurrently with sentences the defendants received in federal court for convictions under the Lacey Act. Those federal convictions were for offenses arising out of the same transactions as the state convictions. The federal sentences were set forth in judgments filed on September 16, 1991. Following a hearing on March 4, 1993, the District Court denied defendants’ motion to amend, and they subsequently filed a notice of appeal on March 18,1993. Pending this appeal, the District Court stayed execution of sentence.

Our standard of review in reviewing discretionary district court rulings, such as those relating to post-trial motions, is whether the district court abused its discretion. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 604.

I — UNIFORM DISTRICT COURT RULE 2(B)

On October 27,1992, defendants filed a motion to amend their sentences. Remittitur issued by this Court on November 16, 1992, returning jurisdiction of the case to the District Court. On February 18,1992, the defendants filed a motion for summary ruling because the State of Montana (State) did not file a responsive brief to their motion to amend sentences. The State also did not respond to the motion for summary ruling. On March 4, 1993, the day of the hearing on the defendants’ motions, the State filed Objections to Defendants’ Motions. The defendants contend that the District Court erred in denying them summary ruling on the motion to amend their sentences, arguing that Uniform District Court Rule 2(b) (Rule 2(b)) requires such a result. We disagree.

Rule 2(b) provides, in pertinent part:

Failure to file briefs. Failure to file briefs may subject the motion to summary ruling... Failure to file an answer brief by the adverse party within ten days shall be deemed an admission that the motion is well taken....

While the State’s failure to file an answer brief within the time allowed under Rule 2(b) is to be viewed as an admission by the State that the motion is well-taken, the rule does not require the District Court to grant the unanswered motion. Maberry v. Gueths (1989), 238 Mont. 304, 309, 777 P.2d 1285, 1289. Rule 2(b) states that a failure to file a responsive brief by the non-moving party “may” subject a motion to summary ruling. However, Rule 2(b) does not remove the discretion of the District Court to grant or deny the unanswered motion. Maberry, 777 P.2d at 1289. We hold that the District Court did not abuse its discretion in denying the defendants’ motion for summary ruling on their motion to amend sentences.

II — AMENDMENT OF SENTENCES TO RUN CONCURRENTLY

The defendants contend that the District Court erred by refusing to amend its sentences so as to cause such sentences to run concurrently with their subsequent sentences in federal court. Again, we disagree.

The defendants pled guilty to violations of the Lacey Act, which arose out of the same transactions for which the defendants were convicted in state court. In sentencing the defendants for the Lacey Act violations, United States District Judge Jack D. Shanstrom stated that Richard Fertterer’s sentence was “to be served concurrent to the sentence imposed by the State of Montana in connection with the same transaction.” Judge Shanstrom stated that David Fertterer’s sentence “shall be served concurrent to state penalties dealing with the same criminal transaction.” Based on this language in the federal court sentences, defendants argue that the District Court should amend its sentences so as to cause such sentences to run concurrently with the federal sentences. The District Court correctly refused.

While defendants advance several different arguments supporting this position, we find one well-settled principle of Montana law dispositive. Once a valid sentence has been pronounced, the court imposing that sentence has no jurisdiction to modify it, except as provided by statute. In re Petition of Arledge (1988), 232 Mont. 450, 451, 756 P.2d 1169, 1170; State v. George (1986), 224 Mont. 495, 496, 730 P.2d 412, 413; Dahlman v. District Court (1985), 215 Mont. 470, 472, 698 P.2d 423, 425. The only statutory authority allowing a court to modify a sentence is provided at § 46-18-117, MCA, which provides:

Correction of sentence. The court may correct an illegal sentence or disposition at any time and may correct a sentence imposed in an illegal manner within 120 days after the sentence is imposed or after remand from an appellate court.

Thus, the District Court could not amend the defendants’ sentences unless those sentences were illegal or were imposed in an illegal manner.

Here, the District Court sentenced each defendant to ten years in prison on each of the two felony criminal mischief convictions, for a total of twenty years. However, the District Court then suspended fifteen years on each defendant’s sentence. In addition, the District Court fined each defendant for the two felonies, and assessed costs and restitution.

Section 45-6-101(3), MCA, sets forth the maximum punishment for felony criminal mischief as being a $50,000 fine, imprisonment for ten years, or both. Thus, in this case, the defendants could have been sentenced to twenty years in prison, with no time suspended, and could have been fined $100,000 each.

On the misdemeanor counts, the District Court sentenced the defendants to six months in the county jail on each count, and required those sentences to run concurrently with the felony prison sentences. In addition, the defendants were fined $500 for each violation. With respect to the misdemeanor violations, the maximum penalty allowable under law is six months in the county jail and a $500 fine. Section 87-1-102, MCA.

Clearly, the District Court’s sentences were well within the statutory máximums and were not illegal. Similarly, there is nothing in the record that would lead to the conclusion that the defendants’ sentences were imposed in an illegal manner. Therefore, because the sentences imposed by the District Court were clearly legal, the District Court was without jurisdiction to thereafter amend the sentences. We hold that the District Court properly denied the defendants’ motion to amend their sentences.

Affirmed.

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


author: JUSTICE TRIEWEILER

text:
    IN RE THE MARRIAGE OF ROSEMARY ELLEN BERNETHY, Petitioner and Respondent, and TIMOTHY LEE BERNETHY, Respondent and Appellant.
    No. 93-003.
    Submitted on Briefs April 1, 1993.
    Decided October 5, 1993.
    50 St.Rep. 1144.
    260 Mont. 402.
    860 P.2d 157.
    For Respondent and Appellant: Robert L. Jovick, Livingston.
    For Petitioner and Respondent: Kevin T. Sweeney, Sweeney & Healow, Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Timothy Bemethy appeals from an order of the District Court of the Thirteenth Judicial District in Yellowstone County which denied his second motion to change venue. We affirm.

The sole issue on appeal is whether the District Court erred when it denied Timothy’s motion to change venue from Yellowstone County to Park County.

For 15 years, Rosemary and Timothy Bernethy lived with their two children in Gardiner, which is located in Park County. In August 1991, Rosemary separated from her husband and moved to Bozeman to attend Montana State University. She subsequently moved to Billings, which is located in Yellowstone County. Since January 1,1992, Rosemary has resided continuously in Billings at the same address.

On August 4, 1992, Rosemary filed a petition in the Yellowstone County District Court for dissolution of her marriage and other relief, including the custody and support of her minor children. Rosemary also filed a supporting affidavit in which she asserted that she lived in Billings.

On August 31, 1992, Timothy, who had lived in Park County for the previous 15 years, moved for change of venue to Park County. He asserted that Yellowstone County was not a proper county for the dissolution proceedings because Rosemary had not complied with the residency requirement set forth in § 25-2-118(3), MCA, because she had not lived in Yellowstone County for 90 days preceding the filing of her dissolution petition.

On September 10, 1992, Rosemary filed a second affidavit stating that since January 1, 1992, she had lived in Billings continuously. She asserted that she was a registered student at Eastern Montana College, in Billings, and that she had attended classes there from January 1992 through May 1992. Rosemary also filed supporting documents, including her driver’s license, a bank statement, and a student loan application which corroborated her testimony that she was a Billings resident.

The District Court relied on Rosemary’s affidavits, and on September 22, 1992, the court denied Timothy’s motion for change of venue. The court held that pursuant to § 25-2-118(3), MCA, the proper place for trial of this action is Yellowstone County.

While the dissolution proceedings were pending, Timothy learned that Rosemary had commuted between Billings and Bozeman for a six-week period from late May to early July 1992 in order to attend a math class at MSU. Rosemary testified that she stayed in Pray, which is located in Park County, on school nights during the six weeks and that she returned to her home in Billings on the weekends.

Upon discovery of this new information that Rosemary spent a portion of a six-week period away from Billings, Timothy requested the court to reconsider his motion for change of venue. The District Court denied Timothy’s second motion for venue change.

The applicable statute in this case is § 25-2-118, MCA, which states:

Residence of defendant. Unless otherwise specified in this part:

(1) except as provided in subsection (3), the proper place of trial for all civil actions is the county in which the defendants or any of them may reside at the commencement of the action;
(3) the proper place of trial of an action brought pursuant to Title 40, chapter 4, is the county in which the petitioner has resided during the 90 days preceding the commencement of the action.

On appeal, Timothy asserts that venue should not lie in Yellowstone County because Rosemary was away from Billings for a portion of a six-week period prior to filing her dissolution petition on August 4, 1992. He contends that because she was away, she did not comply with the 90-day residency requirement set forth in § 25-2-118(3), MCA.

Section 1-1-215, MCA, sets forth rules for determining residency in Montana. Section 1-1-215, MCA, provides:

Every person has, in law, a residence. In determining the place of residence the following rules are to be observed:
(1) It is the place where one remains when not called elsewhere for labor or other special or temporary purpose and to which he returns in seasons of repose.
(2) There can only be one residence.
(3) A residence cannot be lost until another is gained.
(6) The residence can be changed only by the union of act and intent.

Based on our review of the record, we conclude that Rosemary is a Billings resident and that she resided continuously in Billings at the same address for seven months before filing her dissolution petition on August 4, 1992. The fact that Rosemary commuted from Billings to Bozeman and Pray during the school week, and was temporarily away from her home residence of Billings while she completed one six-week math class at MSU, does not mean that Billings was not her residence during this time.

Section 1-1-215(1), MCA, recognizes that an individual, like Rosemary, may have to leave her residence for a temporary purpose, such as commuting a distance to attend school; and this temporary leave does not change the individual’s residence. Lima School District No. 12 v. Simonsen (1984), 210 Mont. 100, 109, 683 P.2d 471, 475-76.

We conclude that the District Court did not err when it denied Timothy’s motion to change venue. Because Rosemary was a resident of Yellowstone County for the 90 days preceding the filing of her dissolution petition, venue was proper in Yellowstone County. Section 25-2-118(3), MCA.

We affirm the decision of the District Court.

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


text:
    IN RE THE MARRIAGE OF ROBERT ALTON SMITH, Petitioner and Respondent, and LORI MOFFATT SMITH, Respondent and Appellant.
    No. 93-208.
    Dated October 5, 1993.
    50 St.Rep. 1151.
    260 Mont. 406.
    860 P.2d 159.
    For Appellant: Lori Moffatt Smith, pro se.
    For Petitioner and Respondent: K. Dale Schwanke, Jardine, Stephenson, Blewett & Weaver, P.C., Great Falls.
   OPINION AND ORDER

Appellant, Lori Moffatt Smith (Lori), filed a Notice of Appeal on March 24, 1993. Respondent, Robert A. Smith (Robert), filed his Motion to Dismiss Appeal on July 15,1993. The bases for this motion are that the appeal was taken from interlocutory rulings and that Lori’s motion for a change of venue was not timely filed.

Also on July 15, 1993, Lori filed, pro se, her Motion for Extension and Supporting Memorandum, requesting a sixty day extension in which to file her initial brief on appeal. We previously extended the original deadline for filing that brief by forty-five days on May 27, 1993. By order dated July 16, 1993, we granted Lori’s motion and gave her until September 20, 1993, in which to file her brief.

On July 27,1993, Lori filed a Motion for Extension and Memorandum requesting an additional ten days to file a response to Robert’s Motion to Dismiss Appeal. On July 27,1993, we granted that motion and ordered Lori to file a response to Robert’s motion by August 10, 1993.

On August 10,1993, Lori filed her response to Robert’s motion and stated that the issues raised in his motion were the ones to be addressed in her initial brief, which we previously ordered to be filed by September 20,1993. Lori did not respond to the merits of Robert’s Motion to Dismiss Appeal. Along with her August 10,1993, response, Lori filed a Motion to Defer Response, Motion for Joinder of William Boggs, Esq., and Supporting Memorandum. On August 17, 1993, we granted Lori’s Motion to Defer Response and ordered Lori to file her initial brief by September 20, 1993, and further ordered Lori to respond to the merits and issues raised in Robert’s Motion to Dismiss Appeal. We denied Lori’s Motion to Join William Boggs.

Lori has now filed her initial brief on appeal and, as we stated in our August 17, 1993, order, we are prepared to rule on Robert’s Motion to Dismiss Appeal.

This dissolution proceeding was commenced in the Eighth Judicial District Court, Cascade County, Montana, in 1985. Over the years, the District Court has presided over a number of proceedings related to child custody. On June 5,1991, Robert filed a Motion for Contempt and Motion to Modify Custody in the District Court, asserting that Lori was frustrating Robert in his attempts to exercise visitation and seeking a change of the child’s primary residential custodian. Various motions and other documents were filed by the parties. In the fall of 1991, after the case had been set for trial, Lori sought an order from the District Court restraining Robert from exercising visitation, on the grounds that Robert allegedly sexually abused the child. (This was later acknowledged by the child to be untrue.) The District Court refused to stay visitation; Lori then sought assistance from Missoula County, and the Fourth Judicial District Court ordered the issuance of temporary investigative authority to the Department of Family Services.

Initiation of the Missoula County proceedings caused the Eighth Judicial District Court to defer its proceedings. On September 28, 1992, the Fourth Judicial District Court entered its Order for Implementation of DFS Treatment Plan. That order specifically stated that the implementation of the treatment plan did not prevent either party from pursuing the action pending in Cascade County.

After that order, Robert moved the Eighth Judicial District Court to reset his Motion for Custody for trial, which was subsequently set for March 25, 1993. On March 18, 1993, Lori filed a number of motions, including one to change venue to Missoula County. On March 22, 1993, the District Court denied her motions. From the denial of those motions, Lori appealed.

The Notice of Appeal filed by Lori states that she is appealing from the District Court’s order which (1) denied the motion to stay proceedings; (2) denied the change of venue; and (3) denied the motion for a protective order as to discovery.

Generally, interlocutory orders are not appealable. See Bostwick v. Dep’t of Highways (1980), 188 Mont. 313, 315, 613 P.2d 997, 998. The denial of a motion to stay and a motion for a protective order are interlocutory in nature, and are not appealable orders within the scope of Rule 1, Mont.R.App.P. For that reason, Lori may not appeal these issues until the District Court enters a final judgment.

As to Lori’s claim that the District Court erred in granting her request for a change of venue, we note that Rule 1(b), M.R.App.P. allows an appeal from an order denying a change of venue. State ex rel. Kesterson v. District Court (1980), 189 Mont. 20, 22-23, 614 P.2d 1050, 1051. However, the request for a change of venue must be timely made. Rule 12(b), Mont.R.Civ.P., requires that a motion for a change of venue be made within twenty days after the response to the pleading is filed. Here, the dissolution proceeding was commenced in 1985, and Robert’s motion for custody was filed on June 5,1991. The motion to change venue was not filed until March 18, 1993. Clearly, Lori’s motion to change venue was not timely made. In addition, Lori has made numerous appearances in the Eighth Judicial District Court, and has not challenged venue in that District Court at any of these appearances, prior to filing her motion for a change of venue.

For the foregoing reasons,

IT IS HEREBY ORDERED that the Petitioner/Respondent’s Motion to Dismiss Appeal should be and is hereby GRANTED, and Respondent/Appellant’s appeal should be and is hereby DISMISSED WITHOUT PREJUDICE.

IT IS HEREBY FURTHER ORDERED that the Clerk of this Court serve Robert’s counsel of record and Lori, pro se, by mail with a copy of this Order.

Dated this 5th day of October, 1993.

J. A. TURNAGE, Chief Justice

JOHN CONWAY HARRISON, Justice

WILLIAM E. HUNT, SR., Justice

KARLA M. GRAY, Justice

TERRY N. TRIEWEILER, Justice

JAMES C. NELSON, Justice

FRED J. WEBER, Justice