author: JUSTICE WEBER

text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. BRUCE PAUL CAMERON, Defendant and Appellant.
    No. 92-074.
    Submitted on Briefs July 23, 1992.
    Decided Oct. 6, 1992.
    49 St.Rep. 861.
    255 Mont. 14.
    839 P.2d 1281.

      For Defendant and Appellant: James A. Manley, Atty. at Law, Poison.
    For Plaintiff and Respondent: Scott Spencer, County Attorney, Libby.
   JUSTICE WEBER

delivered the Opinion of the Court.

A jury trial was held in the District Court for the Nineteenth Judicial District, Lincoln County. Defendant, Bruce Paul Cameron, was found guilty of criminal sale of dangerous drugs in violation of § 45-9-101, MCA. Defendant appeals. We reverse.

The issues for our consideration are:

1. Did the District Court properly allow the State to introduce evidence of a prior bad act as rebuttal evidence?

2. Did the District Court properly allow the State to introduce evidence of another drug sale which took place the day prior to the offense charged in the information as part of the corpus delicti ?

From September of 1990 to May of 1991, the Lincoln County Sheriff’s Department conducted an extensive undercover drug operation in the Libby area. Rodney Reynolds (Reynolds) was arrested for illegal drug activities and subsequently agreed to participate in the undercover operation in exchange for a suspended sentence.

On May 3,1991, Reynolds telephoned an acquaintance, Pat Grotjohn (Grotjohn). Grotjohn told him that he knew where he could obtain some cocaine and Reynolds drove to Grotjohn’s residence. Reynolds was wearing a transmitter which was monitored by the Sheriff’s deputies. Reynolds testified that he told Grotjohn that he wanted to buy an “eight ball”, which is the street term for three and one-half grams of cocaine. Grotjohn told him it would cost $240.

The two men drove away in Reynold’s car. Grotjohn dropped off Reynolds at a drive-in restaurant and drove off alone in Reynold’s car to obtain the cocaine. The Sheriff’s deputies lost sight of the Grotjohn vehicle. When Grotjohn returned to pick up Reynolds, he completed the sale of the cocaine to Reynolds for the agreed price.

The next day, on May 4, 1991, Reynolds went to Grotjohn’s residence to buy cocaine, again wearing a transmitter. This time a deputy followed Grotjohn. The deputy testified he saw Grotjohn turn off the main road and drive up near defendant’s house. However, he further testified that because his vision was blocked by trees and shrubs, he could not see more. The deputy drove slowly past the turnoff, and as he did, he saw Grotjohn get out of the car. Because he did not want to be spotted, the deputy drove by, then stopped, but could not see where Grotjohn went. Grotjohn remained in the area for about one hour between noon and one p.m.

Grotjohn was ultimately arrested for the two sales to Reynolds. However, he agreed to testify against defendant in return for one felony charge of sale of dangerous drugs being dropped.

At trial, Grotjohn testified that defendant sold him cocaine inside defendant’s residence both on May 3rd and May 4th. Grotjohn testified that defendant’s vehicle was at the residence on both occasions. There was no audio or visual surveillance of the alleged transactions between Grotjohn and defendant. Grotjohn was the only witness who testified that defendant sold him the drugs which he eventually resold to Reynolds.

Defendant was charged with one count of criminal sale of dangerous drugs based on the May 4th transaction. However, over objection, the State was allowed to present the Grotjohn testimony on the alleged transaction of May 3rd.

At trial defendant testified that he and a friend went “four-wheeling” on May 4th. He testified that they were gone from about 9:30 a.m. to 5:00 p.m. Defendant’s friend testified and corroborated defendant’s story. Defendant’s neighbors testified that they saw him leave his residence that morning and did not see him return until late afternoon.

At the beginning of the trial, the defense moved in limine to exclude evidence of a gun threat that allegedly occurred months before the alleged drug transaction which is the subject of this appeal. The District Court granted the motion in limine and ruled that the gun threat testimony could be introduced only if Grotjohn’s credibility was attacked.

In rebuttal, the State was allowed to recall Grotjohn. The State argued that Grotjohn’s credibility had been attacked, and therefore, to bolster Grotjohn’s credibility, Grotjohn was allowed to testify that defendant had threatened Grotjohn with a rifle two or three months before the alleged drug transaction took place. The defense objected prior to the testimony and moved for a mistrial after the testimony was allowed. The motion for mistrial was denied. The jury returned a verdict of guilty. Defendant appeals.

I

Did the District Court properly allow the State to introduce evidence of a prior bad act as rebuttal evidence?

Defendant maintains that the District Court committed reversible error by allowing testimony regarding the alleged gun threat into evidence. Defendant contends the testimony violated both Rule 404, M.R.Evid., and the Just rule. We agree.

The State emphasized that the defense presented two witnesses who testified that when Grotjohn came to the Cameron residence on May 4, he was acting in a furtive and suspicious manner and contradicted Grotjohn’s testimony that he got out of his vehicle at the Cameron residence. The primary argument by the State was that the evidence of the threat with the rifle was corroborative of Grotjohn’s credibility because it explained his manner of testifying and demonstrated why he had been unsure on some points because he was fearful.

The State contended that Grotjohn would testify to his fear of the defendant as a result of the threat with a rifle and that such testimony would explain his nervous behavior. However, Grotjohn’s testimony did not support the State’s contentions.

Grotjohn testified that he was visiting the defendant at the defendant’s home when the gun threat took place. He testified that he was “uneasy with the [defendant],” but stayed at defendant’s home the rest of the evening. On cross-examination Grotjohn testified that he did not feel threatened by the defendant after that, and that the defendant and Grotjohn remained friends. Last, he testified that the threat had no effect on his conduct even a week later. Grotjohn’s testimony effectively eliminated the State’s contention that the evidence of the gun threat demonstrated Grotjohn’s fear of the defendant. Grotjohn’s testimony is not admissible to demonstrate that fear on his part caused him to testify in a particular manner.

The State argues by reference to various Montana cases involving the credibility of the accused. Such cases are not authority for consideration of the credibility of witness Grotjohn. If it was the credibility of Grotjohn that was in question, then the State cannot offer evidence of the defendant’s bad character to bolster Grotjohn’s credibility. Rule 404, M.R.Evid.

With regard to character of a witness Rule 404, M.R.Evid., refers to Rule 608. That rule provides that the credibility of a witness may be supported by evidence in the form of an opinion or reputation but is subject to the limitations that the evidence may refer only to character for truthfulness or untruthfulness and that evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence. The record does not demonstrate such an attack by opinion or reputation evidence. We conclude that the evidence of the prior bad act was not admissible under the Montana Rules of Evidence.

The gun threat by the defendant against Grotjohn constitutes evidence of other crimes, wrongs or acts, and it is necessary to analyze the same under the Modified Just Rule as provided in State v. Matt (1991), 249 Mont. 136, 814 P.2d 52. State v. Matt modified the Just Rule. The Modified Just Rule provides that in order to introduce evidence of other crimes, wrongs or acts as referred to and described in Rules 404(b) and 403, M.R.Evid:

(1) The other crimes, wrongs or acts must be similar.
(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 the 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 the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

State v. Matt, 814 P.2d at 56. Furthermore, the Modified Just Rule specifically includes the following procedural protections:

(1) Evidence of other crimes, wrongs or acts may not be received unless there has been written notice to the defendant that such evidence is to be introduced. The notice to the defendant shall specify the evidence of other crimes, wrongs or acts to be admitted, and the specific Rule 404(b) purpose or purposes for which it is to be admitted. (Emphasis added).
(2) At the time of the introduction of such evidence, the trial court shall explain to the jury the purpose of such evidence and shall admonish it to weigh the evidence only for such purposes.
(3) In its final charge, the court shall instruct the jury in unequivocal terms that such evidence was received only for the limited purposes earlier stated and that the defendant is not being tried and may not be convicted for any offense except that charged, warning them that to convict for other offenses may result in unjust double punishment.

Id. at 56.

We conclude that the threat evidence was not admissible for several reasons under the Modified Just Rule. The State failed to give written notice specifying the evidence to be admitted and the specific Rule 404(b) purposes for which it was to be admitted, and as a result failed to meet the initial procedural protection. In addition, the gun threat evidence failed to meet the first element of the Modified Just Rule because there is no similarity between the alleged gun threat and the charged crime of criminal sale of dangerous drugs. We conclude that the evidence of the prior bad act was not admissible under the Modified Just Rule.

We hold that the District Court committed reversible error in allowing the State to introduce evidence of a prior bad act as rebuttal evidence.

II

Did the District Court properly allow the State to introduce evidence of another drug sale which took place the day prior to the offense charged in the information as part of the corpus delicti ?

On the morning of trial, defense counsel presented the District Court with a motion in limine to exclude evidence of the alleged May 3rd drug transaction on the grounds that it was unfairly prejudicial. The District Court allowed evidence of the May 3rd transaction to be introduced as part of the corpus delicti of the crime charged.

The State maintains the evidence was admissible as part of the corpus delicti. It maintains that under State v. Frates (1972), 160 Mont. 431, 503 P.2d 47, evidence of the May 3rd sale was admissible because the sales are so related that proof of one tends to establish the other.

In Frates, defendant was convicted of the sale of 900 LSD tablets to an undercover police officer on March 17, 1971. The State was allowed to prove that on March 9, 1971, defendant came to the Midway Bar and handed an informant a sack containing 100 capsules of LSD for which he was paid $150; and on March 14,1971, the same defendant returned to the Midway Bar and handed the informant another sack containing 100 LSD capsules. The evidence of these two transactions was the principal assignment of error. In holding that the evidence was admissible, this Court stated:

The evidence of the two prior sales of LSD to the informer in the instant case is part of the corpus delicti of the crime with which the defendant is charged. It is a part of the totality of events and occurrences leading to and culnainating in the sale of the 900 LSD tablets to the undercover police officer of which defendant was convicted. It tends to explain the circumstances leading to the commission of the crime charged, establishes defendant’s intent to commit the crime charged, and negatives the defense of entrapment. As such, it is clearly relevant, probative and competent evidence tending to prove the crime charged ....

Frates, 503 P.2d at 50. In order that there may be no misunderstanding in future cases, we specifically overrule the foregoing holding in Frates. Our explanation for the overruling will appear in the subsequent discussion of cases which took place after Frates was decided in 1972.

In State v. Trombley (1980), 190 Mont. 218, 620 P.2d 367, this Court referred to State v. Jackson (1979), 180 Mont. 195, 589 P.2d 1009, and pointed out that under that case the defendant objected to the introduction of evidence, labeling it inadmissible other crimes evidence. Referring to State v. Jackson this Court then stated:

In our opinion affirming the District Court’s admission of this evidence, we recognized the distinction between “other crimes” evidence and evidence of the defendant’s simultaneous misconduct inseparably related to the alleged criminal act.
We recognize the general rule that when a defendant is put on trial for one offense, he should be convicted, if at all, by evidence which shows that he is guilty of that offense alone. Evidence which in any manner shows, or tends to show, he has committed another crime wholly independent, even though it is a crime of the same sort, is irrelevant and inadmissible, ...
In this case the prosecution did not introduce evidence of other “unrelated” or “wholly independent” crimes. The prosecution only sought to prove that defendant was exercising unauthorized control over various items ... Defendant’s possession of... (this other property) was inextricably related to the property referred to in the charging information. We are not, therefore, involved with the introduction of evidence of wholly independent or unrelated crimes. The evidence was properly admitted.
The prosecution here is not required to meet the Just requirements for the introduction of “other crimes” evidence because evidence of defendant’s possession and use of the cards is not “wholly independent” or “unrelated” other crimes evidence. (Citations omitted.)

Trombley, 620 P.2d at 368. As is apparent, the standard being applied by this Court had markedly changed from Frates.

In State v. Romero (1986), 224 Mont. 431, 730 P.2d 1157, the defendant asserted that testimony about his activities on the day before he was arrested and about .his sales of marijuana to the undercover agent did not meet the requirements of State v. Just. In response to that contention, in holding that the evidence was properly admissible, this Court stated:

Evidence of acts which are inextricably or inseparably linked with the crime charged is admissible without regard to the rules governing “other crimes” evidence. State v. Riley (1982), 199 Mont. 413, 649 P.2d 1273, 1279, 39 St.Rep. 1491, 1499 .... We conclude that these prior acts, which occurred a few hours before his arrest, are inextricably linked to the charged crime of possession of marijuana with intent to sell. Therefore, the Just and Jenson requirements do not apply to the testimony about Mr. Romero’s activities in Columbus.

Romero, 730 P.2d at 1162. The clear holding was that evidence of acts which are inextricably or inseparably linked with the crime charged are admissible without regard to the other crimes evidence rules under the Just Rule.

In State v. Ungaretti (1989), 239 Mont. 314, 779 P.2d 923, this Court referred to the above quoted holding from Romero. In concluding that the other crimes evidence was introduced merely as a part of the corpus delicti, the Court stated:

We conclude there is no question but that the activities of the appellant which resulted in her arrest in Nevada were inseparable and formed much of the basis of the crime charged here ....
In [State v.] Gillham [1983), 206 Mont. 169, 670 P.2d 544,] and [State v.]Riley, [(1982), 199 Mont. 413, 649 P.2d 1273,]... this Court held that the State is entitled to Present the entire corpus delicti of the charged offense including matters closely related to the offense and explanatory of it." The events which took place in Nevada supported and explained the State’s position at trial: that appellant had constructive possession of the marijuana while she was in Montana .... We conclude that the “other crimes” evidence was introduced merely as a part of the corpus delicti and thus did not constitute reversible error.

Ungaretti, 779 P.2d at 926.

State v. Christensen (1990), 244 Mont. 312, 797 P.2d 893, is a case somewhat more comparable to our present case. In that case the defendant was charged in two separate counties with marijuana growing operations and the possession and sale of marijuana. The State argued that the evidence from Flathead County was not other crimes evidence and was admissible as an inextricable and inseparable part of the corpus delicti of the Glacier County operation. The State attempted to contend that the defendant was conducting a single growing operation in two different locations. In response to that contention the Court stated:

We disagree with the State’s argument. While the Flathead and Glacier Counties operations were nearly identical operations carried out by the same individuals, the similarity of crimes is not the test of whether they fall within the same corpus delicti. The issue is whether the evidence of the Flathead County drug operation is inextricably or inseparably linked to the Glacier County operation. We hold that it is not. The State has not shown that a jury could not fully comprehend the crimes charged in Glacier County without reference to the Flathead County evidence. (Emphasis added.)

Christensen, 797 P.2d at 898. The facts in our present case are similar to this aspect of Christensen. Here the only connection between the sales of May 3 and May 4, is that the parties were the same and that cocaine was sold in both instances. However, the State has failed to demonstrate that the evidence of the May 3 sale was in any manner inextricably or inseparably linked to the May 4 sale. Under that circumstance, the evidence is not admissible. As pointed out in Christensen, the similarity of crimes is not the test of whether they fall within the same corpus delicti. We further point out that as stated in Ungaretti, the evidence may be admissible if it is closely related to the offense and “explanatory of it.” There is nothing presented in the facts of the present case to demonstrate that the May 3 sale is explanatory of the May 4 sale.

We hold the District Court committed reversible error in allowing the introduction of another drug sale which took place the day prior to the offense charged.

We reverse the judgment of the District Court and remand for further proceedings consistent with this opinion.

JUSTICES HARRISON, TRIEWEILER, McDONOUGH, and HUNT concur.


source: Caselaw Access Project

license: Public Domain

text:
    JESSICA LYNN MORALLI, Plaintiff and Respondent, v. LAKE COUNTY, MONTANA, Defendant and Appellant.
    No. 92-173.
    Submitted on Briefs July 9, 1992.
    Decided October 8, 1992.
    49 St.Rep. 872.
    255 Mont. 23.
    839 P.2d 1287.

      For Defendant and Appellant: Daniel W. Hileman and James E. Vidal, Murray & Kaufman, Kalispell.
    For Plaintiff and Respondent: Douglas J. Wold, Wold Law Firm, Poison.
   JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiff, Jessica Moralli, brought a negligence action against Lake County, Montana in the Twentieth Judicial District Court, Lake County, Montana. Lake County contended that Ms. Moralli negligently caused her own injuries. A jury found that Lake County was 70% negligent and that Ms. Moralli was 30% negligent. Defendant appeals from the judgment and order denying its motion for judgment notwithstanding the verdict. We affirm.

The issues presented for review are as follows:

1. Whether the District Court erred in denying Lake County’s motion for directed verdict.

2. Whether the District Court erred in admitting evidence of medical expenses without proper foundation.

3. Whether the District Court erred in refusing to instruct on premises liability.

4. Whether plaintiff’s counsel’s improper closing arguments require a reversal of the jury’s verdict.

5. Whether there is sufficient credible evidence to support the jury’s verdict.

Jessica Moralli pled guilty to criminal charges arising from a hit-and-run accident in Poison, Montana in July of 1988 and was sentenced to serve sixteen days in the Lake County jail. She served eight consecutive days following her arrest and was allowed to finish the remaining eight days of the sentence on weekends. She served two of these days on September 6 and 7, 1988. All ten days were served without incident in a women’s cell with a bathroom which included a full-length shower curtain. Each time, Ms. Moralli was given a two-piece suit and a pair of slippers to wear while she was in jail.

The remaining six-day sentence was subsequently amended, only requiring Ms. Moralli to serve the four days from September 13 to September 16, 1988. When Ms. Moralli returned to the Lake County jail on September 13,1988 to serve the four days, jail personnel placed her in a different cell. Ms. Moralli requested footwear; none was given to her. She then requested that she be allowed to wear her own socks or her own tennis shoes. Jail personnel denied this request also.

Ms. Moralli and another witness testified that the cell Ms. Moralli was placed in had a shower with a shower curtain ending eighteen inches above the floor. Ms. Moralli testified about the accident and her actions just prior to the accident as follows: She and another inmate both took showers, after which Ms. Moralli returned to the bathroom to use the toilet and to comb her hair. By this time, up to one-half inch of water had accumulated on the floor of the bathroom. As Ms. Moralli rose from the toilet and pulled up her pants, the wet pant legs stuck to her heels and her feet slipped out from under her. At the same time she arose from the toilet she twisted her body away from the open doorway for privacy reasons. As she slipped, she fell backwards, hitting her head, shoulders and back against the wall.

The testimony indicates that Ms. Moralli’s cellmates came to her assistance when she fell. They notified the jailer on duty, Mr. Fair-child, who did not respond. Hours later, a second jailer, Mr. Emerson, after being informed of the fall, removed Ms. Moralli from her cell and transferred her to a holding cell while he made telephone calls to the Poison city judge to arrange for her release from confinement and to Moralli’s boyfriend to arrange for a ride from the jail. Emerson advised Moralli’s boyfriend to take her to the hospital because she was injured. Moralli saw a physician the next morning.

Ms. Moralli filed a claim against Lake County for injuries suffered from the fall in its jail. At the time she fell, she was barefoot. The floor surface was smooth concrete. Ms. Moralli claimed that her bare feet, the soapy water from the shower leaking onto the bathroom floor, and the smooth concrete surface all combined to create a dangerous condition resulting in her injuries and that Lake County was negligent in operating the facility. Since the time of the injury in the Lake County jail, Moralli claims she has suffered from the injury and incurred over $5,000 in medical expenses. At trial, Moralli presented testimony from her chiropractor that she would continue to incur medical expenses during her lifetime relating to the 1988 injury. The jury returned a verdict for Ms. Moralli with damages totalling $35,400.00. Judgment was entered for $24,780.00 plus interest and costs because the jury determined that Moralli was 30% negligent.

I.

Did the District Court err in denying Lake County’s motion for a directed verdict?

Lake County contends that there was no credible evidence to warrant submitting the case to a jury. Amotion for a directed verdict should only be granted when there is a complete absence of any evidence to warrant submission to the jury and all factual inferences must be viewed in the light most favorable to the nonmoving party. Jacques v. Montana Nat’l Guard (1982), 199 Mont. 493, 504, 649 P.2d 1319, 1325. A directed verdict for the defendant is not proper if reasonable persons could differ as to the conclusions drawn from the evidence when considered in a light most favorable to the plaintiff. Weber v. Blue Cross of Montana (1982), 196 Mont. 454, 464, 643 P.2d 198, 203.

Issue I and Issue V are so interrelated that it is best to discuss them together. Issue V questions the sufficiency of the evidence to support the jury’s verdict. When there exists in the record substantial evidence to support the jury’s verdict, we will sustain a district court denial of a motion for a directed verdict. Krueger v. General Motors Corp. (1989), 240 Mont. 266, 277-78, 783 P.2d 1340, 1347-48. In short, a verdict is binding upon this Court if it is based upon substantial evidence, although the evidence may appear inherently weak. Our review of a jury verdict is very narrow in scope. Substantial evidence need only be evidence which from any point of view could have been accepted by the jury as credible. Kitchen Krafters, Inc. v. Eastside Bank of Montana (1990), 242 Mont. 155, 164, 789 P.2d 567, 572.

In order to sustain a claim of negligence, Moralli must present substantial evidence to prove that (1) the County owed a duty to Moralli, (2) the County breached that duty, (3) the breach was the actual and proximate cause of Moralli’s injury, and (4) that damages resulted.

1. What duty did Lake County owe to Moralli?

Lake County had a duty to exercise reasonable and ordinary care for the life and health of the prisoner, to keep her safe and protect her from unnecessary harm. Lake County also had a duty to render medical aid when necessary, treat the prisoner humanely and refrain from oppressing her. Pretty On Top v. City of Hardin (1979), 182 Mont. 311, 315, 597 P.2d 58, 60-61. Clearly, Lake County had a duty to provide Moralli with a reasonably safe accommodation during the period of her incarceration.

2. Did Lake County breach this duty?

Ms. Moralli presented evidence that the county knew or should have known that the condition of the bathroom floor was far from ideal. Another inmate had fallen there within the previous month. Pretty On Top requires only reasonable and ordinary care for the life and health of the prisoner. Pretty On Top, 597 P.2d at 60. However, evidence presented by Ms. Moralli indicates that the condition of the floor in the bathroom was slippery and that jail personnel knew the floor was slippery. Ms. Moralli also presented evidence that she asked for footwear and when that request was denied, she asked if she could keep her own footwear and that request also was denied. The evidence presented by Ms. Moralli also indicates that the county provided no medical assistance although the jailer was aware that Ms. Moralli had fallen in the cell’s bathroom and that he later released her, advising her boyfriend to take her to the hospital. At that time, Moralli still had two days of her sentence to serve. We conclude that there is substantial evidence from which the jury could properly have found that Lake County breached its duty.

3. Did the County’s conduct cause Moralli’s injury?

A jailer is not liable for injury resulting from an inmate’s intentional conduct. Pretty On Top, 597 P.2d at 61. This issue often arises in cases which result from a suicide, as in Pretty On Top. Lake County contends that Ms. Moralli acted intentionally by entering the bathroom, that she was aware of the floor condition at that time and should have been careful- — -that her own negligence caused her injury. Lake County also contends that the proximate cause of her injury was when she hooked her pant leg on her heel. Again, viewing the evidence in a light most favorable to Ms. Moralli, the jury could have found that it was foreseeable that the floor would become wet and slippery from inmates’ showers, that footwear or some other protection was a necessary precaution against slips and falls, and that the inmates might need to use the bathroom facility when the floor was wet with standing water. Ms. Moralli’s intentional conduct was insufficient to break the chain of causation.

We conclude that the county has failed to demonstrate a complete absence of evidence to warrant submission of the case to the jury. We hold that the District Court properly denied the County’s motion for a directed verdict.

We farther conclude that the record contains substantial evidence to support the jury’s verdict. We therefore hold there was sufficient credible evidence to support the jury’s verdict.

II.

Did the District Court err by admitting evidence of medical expenses without proper foundation?

Lake County contends that Ms. Moralli provided no foundation that the expenses reflected on Exhibit 3, a summary of medical expenses resulting from the accident, were related to the slip and fall in the Lake County jail. In Cain v. Stevenson (1985), 218 Mont. 101, 706 P.2d 128, the appellant made a similar argument. We held that a claimant is competent to testify as to his past and present condition, but that his testimony, standing alone, is not sufficient to establish cause for those aspects of an injury not apparently related to the accident in question. Cain, 706 P.2d at 131. We noted that:

not all injuries require medical expert testimony to prove permanency or causation. (It has been held that medical testimony is not necessary to prove permanent injuries or their cause where) the nature of the injury is such that laymen can plainly see, or infer from the injury, its cause and that it will be permanent, such as the loss of a limb. Respondent’s back injury was not such an injury.

Cain, 706 P.2d at 131.

In Cain, we held that inadequate proof of permanent injury required a reversal, but only on the issue of damages. Cain, 706 P.2d at 131-32. Moralli’s testimony relating to past and present condition was competent under Cain, but she could not testify to future damages. That required qualified medical testimony from an expert witness. Dr. William F. Risch, Moralli’s treating chiropractic physician for the six-month period prior to trial, testified to his history, observations and treatment and gave his opinion that more likely than not her injury was permanent.

A plaintiff is not required to establish the causal connection between the accident and her injuries with certainty; she merely must do so with reasonable certainty or by a preponderance of the evidence. Allers v. Willis (1982), 197 Mont. 499, 505, 643 P.2d 592, 595-96. Moralli testified that she had been free of symptoms from a prior injury for five years before this injury. Together, Moralli’s testimony relating to her past and current condition and Dr. Risch’s testimony relating to her current and future condition were sufficient foundation for medical expenses.

We hold that the District Court did not err in admitting evidence of medical expenses.

III.

Did the District Court err in refusing to instruct the jury on premises liability?

Lake County proposed and the District Court refused the following jury instruction:

The defendant has the duty to exercise ordinary care to keep his premises reasonably safe for all persons who foreseeably might come upon them, and to warn such persons of any hidden danger upon such premises.

Neither of the parties contended that there was a hidden danger lurking on the premises. Rather, the County primarily contended that the condition was known or obvious and that Ms. Moralli was contributorily negligent by making use of the bathroom in such manner. While the above instruction is a correct statement of the law in Montana, it is inappropriate in a case such as this one where there is no hidden danger on the premises.

Lake County also proposed and was refused two other instructions. Proposed instruction 16 provided:

The defendant is not liable to plaintiff for physical harm caused by any activity or condition of the jail facility whose danger is known or obvious to the plaintiff, unless defendant should have anticipated the harm despite such knowledge or obviousness.

This instruction, from Kronen v. Richter (1984), 211 Mont. 208, 211, 683 P.2d 1315, 1317, relates to nonliability of a business owner to a business invitee for conditions which are known or obvious to the plaintiff and is inappropriate for the facts of this case.

Proposed instruction 17 states that a landowner is entitled to assume that the plaintiff will see and observe that which would be obvious through the reasonably expected use of an ordinary person’s senses. Ms. Moralli freely admitted that she saw the water on the floor. She had no choice but to enter the bathroom. This instruction is also inapplicable to the facts of this case.

Section 25-7-301(5), MCA, provides:

... In charging the jury, the comb shall give to it all matters of law which the court thinks necessary for the jury’s information in rendering a verdict.

In giving jury instructions, the trial court is required to give the relevant law favoring both sides. Demaree v. Safeway Stores, Inc. (1973), 162 Mont. 47, 508 P.2d 570. The District Court gave a general negligence instruction and an instruction on the duty of care for jail operators as established by Pretty On Top, 597 P.2d at 60-61. When taken as a whole, if the instructions state the law applicable to the case, a party cannot claim reversible error. Goodnough v. State (1982), 199 Mont. 9, 647 P.2d 364. By giving the general negligence instruction and the instruction describing the duty of care owed by the ordinary and prudent jailkeeper, the District Court gave the jury a pertinent summary of the applicable Montana law. We cannot say that Lake County was prejudiced by the District Comb’s giving these instructions and refusing to give Lake County’s proposed instructions numbered 15, 16 and 17.

We hold that the District Court did not commit reversible error by refusing to give Lake County’s proposed instructions relating to the duty that Lake County owed to Ms. Moralli.

IV.

Do plaintiff’s counsel’s closing arguments constitute reversible error?

Lake County objected twice to comments made by Ms. Moralli’s counsel during his closing argument. Lake County contends that these comments prejudiced the jury and prevented the County from obtaining a fair trial.

The first such comment referred to Mr. Emerson’s absence as a witness for Lake County. Emerson, the jailer on duty when Ms. Moralli was released, was still employed by the County at the time of the trial. Counsel for Ms. Moralli stated that the County did not have Emerson testify because “he would have hurt their case very badly.” Lake County objected to this remark. The District Court sustained the objection and gave a curative instruction to the jury, advising them that they were not allowed to consider any statements made by plaintiff’s attorney as to what Emerson’s testimony may or may not have been. Plaintiff’s counsel contends that the comments regarding Mr. Emerson were fair statements as to the inference that could be drawn by the County’s failure to call a crucial witness, and were not improper comment.

Improper argument requires reversal only when prejudice has resulted which prevented a fair trial. Gunnels v. Hoyt (1981), 194 Mont. 265, 276, 633 P.2d 1187, 1194. In Gunnels, the defense counsel made improper comments upon and reference to excluded evidence, which indicated to the jury that the plaintiff was concealing evidence. We concluded that the district court properly instructed the jury “not to draw any inferences from rulings on evidence, not to consider rejected evidence, and not to conjecture or draw any inferences as to what an answer might have been, or as to the reason behind any objection.” Gunnels, 633 P.2d at 1194. We could not say that any prejudice resulted to the plaintiff in Gunnels. The argument in this case was even less prejudicial. Plaintiff’s counsel did not comment on excluded evidence. He did, however, comment on what testimony might have been. This was improper, but sufficiently cured by the District Court’s instruction regarding the comment. Plaintiff’s counsel’s reference to private logs kept by county employees was similarly handled by the District Court.

Lake County argues that the best solution is for the Court to hold that prejudice will be presumed where counsel offers improper argument or comments during trial and would have us place the burden on the offending party to establish a lack of prejudice. We decline to do so.

The other comments that Lake County objected to involve Ms. Moralli’s counsel’s remarks about county employees taking him to the wrong jail cell and the jail supervisor not giving certain documents to him, followed by his remark that he did not feel there was an intentional deception. This objection, overruled by the District Court, involves what the County calls “an attempt to infer to the jury that there was some sort of deception on the County’s part.” However, Ms. Moralli’s counsel’s comments related to properly admitted evidence. The jury can make inferences from properly admitted evidence.

We conclude that these arguments, although not ideal, do not constitute reversible error.

V.

Is there sufficient credible evidence to support the jury’s verdict?

We addressed this issue along with Issue I and concluded that there was sufficient credible evidence from which the jury could find in favor of Ms. Moralli.

Affirmed.

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


author: JUSTICE HUNT

text:
    AUDREY FLIKKEMA, WINONA VANDER MOLEN, and WILLEMINA VAN EGMOND, Plaintiffs and Respondents, v. CLARENCE J. KIMM, Defendant and Appellant.
    No. 91-372.
    Submitted on Briefs July 2, 1992.
    Decided October 14, 1992.
    49 St.Rep. 880.
    255 Mont. 34.
    839 P.2d 1293.

      For Defendant and Appellant: Douglas Ritter, Nash, Guenther, Zimmer & Serenar, Bozeman.
    For Plaintiffs and Respondent: J. David Penwell, Bozeman.
   JUSTICE HUNT

delivered the opinion of the Court.

Plaintiffs brought suit in the District Court of the Eighteenth Judicial District, Gallatin County, alleging, among other things, undue influence and actual fraud. The court, sitting without a jury, found for plaintiffs and entered judgment in the amount of $104,190.96. We affirm.

The following issues are presented for review by this Court:

1. Was respondents’ action barred by the applicable statute of limitations?

2. Was the District Court’s finding that there was undue influence clearly erroneous?

3. Did the District Court err in the award of punitive damages?

4. Did the District Court err in disallowing personal representative fees and attorney fees paid by the estate of the decedent?

This matter involves a dispute over the distribution of the estate of Alice Kimm. Alice Kimm, a widow, died on February 8,1987, at the age of 85. The respondents in this case, Audrey Flikkema, Winona Vander Molen, and Willemina Van Egmond are all daughters of the decedent. The appellant, Clarence J. Kimm, is the son of the decedent. Decedent had another daughter who is not a party to this action.

The decedent’s will, dated June 23, 1976, provided that her residuary estate should be divided equally between the parties to this action. Further, the will designated respondent Willemina Van Egmond as personal representative. In September 1980, the decedent suffered the first in a series of debilitating strokes. From the time of her first stroke until her death, the decedent was considerably disabled. The District Court found that decedent had fluctuating periods when she could be considered generally mentally competent, but her physical abilities were always limited. During this time period it is uncontroverted that decedent and appellant shared a close and confidential relationship. Shortly after her first stroke, the decedent added a codicil to her will. The codicil changed the personal representative from Willemina to appellant. During this same time period, the District Court found that assets owned solely by the decedent were systematically transferred to the decedent and appellant as joint tenants. At trial, appellant alleged that at the time of these transfers he had no knowledge of the effect of joint tenancy, i.e., that upon the death of one joint tenant, property so owned would pass by operation of law to the surviving joint tenant.

Appellant initiated a probate proceeding following the decedent’s death. Decedent’s will was filed on March 24,1987, and appellant was appointed and issued letters as personal representative on May 22, 1987. In July 1987, one of the respondents requested from appellant an itemized list of the residual monies left in the decedent’s estate. Appellant then sent a note setting forth the various assets which remained and indicating that all three of the respondents would share equally with him in the distribution of these assets. Appellant alleges that at some point after he had sent this note to respondents he learned that as the surviving joint tenant he was not obligated to distribute any of the property. On September 19,1988, appellant filed the inventory and appraisement listing all the assets held jointly by himself and the decedent. Appellant then filed the final accounting, which respondents objected to.

On April 2,1990, respondents filed suit alleging that the appellant had used undue influence and fraud to obtain the bulk of their mother’s estate. Following a nonjury trial, the District Court found in favor of respondents. The court found that appellant had exercised undue influence in obtaining control over the decedent’s assets. As a result of this unjust enrichment, the assets were subject to a constructive trust for the benefit of all four parties equally. Additionally, the court found appellant acted with actual malice and that the acts in question constituted actual fraud. Following a separate hearing on the matter, the court awarded punitive damages. The-final judgment was for $104,190.96, which was to be divided between the three respondents. From the entry of this judgment appellant brought this appeal.

I

Was respondents’ action barred by the applicable statute of limitations?

The District Court in this case decided both factual and legal questions. Prior to addressing appellant’s first issue concerning the statute of limitations it is necessary to set out the appropriate standard of review in this case. On appeal, this Court will not disturb the district court’s findings of fact in a nonjury trial unless they are clearly erroneous. In the Matter of the Mental Health of E.P. (1990), 241 Mont. 316, 787 P.2d 322; Rule 52(a), M.R.Civ.P. Our standard of review of questions of law is simply whether the district corut’s interpretation of the law is correct. Schaub v. Vita Rich Dairy (1989), 236 Mont. 389, 770 P.2d 522. The basis for this standard of review is that no discretion is involved when a tribunal arrives at a conclusion of law. The tribunal either correctly or incorrectly applies the law. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601. This Court will also give due regard to the opportunity of the district court to judge the credibility of the witnesses. In the Matter of the Mental Health of R.J.W. (1987), 226 Mont. 419, 736 P.2d 110.

Appellant alleges the action brought by respondents should have been barred for failing to commence the action within the applicable statute of limitations, which both parties agree was two years, with the cause of action not to be deemed to have accrued until discovery by respondents of the facts constituting the claim. Section 27-2-203, MCA. Additionally, § 27-2-102, MCA, provides in part that:

When action commenced. (1) For the purposes of statutes relating to the time within which an action must be commenced:
(a) a claim or cause of action accrues when all elements of the claim or cause exist or have occurred, the right to maintain an action on the claim or cause is complete, and a court or other agency is authorized to accept jurisdiction of the action;
(b) an action is commenced when the complaint is filed.
(2) Unless otherwise provided by statute, the period of limitation begins when the claim or cause of action accrues. Lack of knowledge of the claim or cause of action, or of its accrual, by the party to whom it has accrued does not postpone the beginning of the period of limitation.
(3) The period of limitation does not begin on any claim or cause of action for an injury to person or property until the facts constituting the claim have been discovered or, in the exercise of due diligence, should have been discovered by the injured party if:
(a) the facts constituting the claim are by their nature concealed or self-concealing; or
(b) before, during, or after the act causing the injury, the defendant has taken action which prevents the injured party from discovering the injury or its cause. [Emphasis added.] Respondents filed their action on April 2, 1990. Appellant alleges

that respondents either discovered the facts constituting their claim, or in the exercise of due diligence should have discovered the facts constituting their claim, well before April 1988. Therefore, appellant argues that respondents’ filing in April 1990 is untimely pursuant to the two-year statute of limitations.

At trial, appellant elicited testimony from a friend of the respondents in an attempt to show that respondents, through the exercise of due diligence, should have discovered the facts constituting their claim. This witness testified that even prior to the death of their mother, respondents were concerned about the possibility that appellant was exercising undue influence over their mother’s assets. Also introduced at trial was a letter from an attorney advising respondents to “take such steps that might be necessary to protect your interests in your mother’s property.” This letter was dated May 15, 1987, several months after their mother’s death. While this letter clearly did not put respondents on notice of any of the particular facts which constitute their present claim, it might be considered sufficient to require further inquiry on their part.

Respondents testified that prior to receiving the letter from the attorney on May 15,1987, appellant had refused to communicate any information to them regarding their mother’s estate. In July 1987, approximately two months after receiving the letter, one of the respondents requested from appellant an itemized list describing the residual monies left in her mother’s estate. Appellant sent a note setting forth the various assets which remained and specifically indicated that these assets would be shared equally between appellant and the three respondents. At trial, all three respondents indicated that they relied upon this representation. When appellant was asked if there was any reason why respondents should not have relied on this representation, he replied, “probably not.”

On September 19, 1988, appellant filed the inventory and appraisal listing all of the assets of the decedent and indicating that most of the assets were held in joint tenancy with him. Respondents allege that it was not until September 1988, when appellant filed the inventory and appraisal, that they become aware of the facts constituting their claim, and that by fifing in April 1990 they were well within the two-year statute of limitations. Appellant argues reliance must be reasonable and that respondents’ reliance on his representation that they would all share equally in their mother’s estate was not reasonable. Turley v. Turley (1982), 199 Mont. 265, 649 P.2d 434. Further, appellant contends that at the time he made the representation he did not understand that as a joint tenant he alone was entitled to all of the assets jointly held. The District Court specifically found appellant’s testimony in this regard to not be credible.

Respondents point out that as personal representative of the estate appellant had a fiduciary duty to them which included the duty of full disclosure. Skierka v. Skierka Bros., Inc. (1981), 192 Mont. 505, 629 P.2d 214. Not only did appellant not comply with this duty of full disclosure, but he took affirmative steps to conceal from respondents the information necessary to bring their suit. The District Court found that appellant “continuously misrepresented the overall situation to [respondents], leading them to believe each would share equally with [appellant] in settling their mother’s ‘estate’.”

There was conflicting evidence presented at trial as to when respondents either discovered or should have discovered the facts constituting their claim. The District Court Judge, after hearing all of this evidence and weighing the credibility of the witnesses, determined that the action had been timely filed. We hold that the District Court’s finding that respondents’ action was brought within the applicable statute of limitations was not clearly erroneous.

II

Was the District Court’s finding that there was undue influence clearly erroneous?

Appellant argues that respondents did not meet their burden of proof concerning the alleged undue influence and that the District Court’s finding of undue influence is clearly erroneous. This Court, in Christensen v. Britton (1989), 240 Mont. 393, 784 P.2d 908, set out the criteria which must be satisfied in order to find undue influence. The five criteria are:

(1) Confidential relationship of the person attempting to influence the testator;
(2) The physical condition of the testator as it affects his ability to withstand influence;
(3) The mental condition of the testator as it affects his ability to withstand the influence;
(4) The unnaturalness of the disposition as it relates to showing an imbalanced mind or a mind easily susceptible to undue influence, and
(5) The demands and importunities as they may affect the particular donor taking into consideration the time, the place, and all the surrounding circumstances.

Christensen, 784 P.2d at 911. Each one of these criteria must be satisfied in order to prove an assertion of undue influence. We must, therefore, apply the evidence in this case to each of the criteria.

There appears to be agreement between the parties that appellant had a confidential relationship with the decedent. The second and third criteria relate to the decedent’s physical and mental condition and whether her condition affected her ability to withstand influence. The District Court, after hearing testimony concerning both the decedent’s physical and mental condition, determined that decedent’s mental condition fluctuated during the time period in question, while her physical condition was continuously limited. The decedent was a widow, elderly, and by all accounts in very poor physical health. Clearly, decedent’s mental and physical condition made her susceptible to influence.

The fourth criteria is the unnaturalness of the disposition as it relates to showing either an unbalanced mind or a mind easily susceptible to undue influence. Decedent’s will provided that appellant and respondents would share equally in her estate. The distribution provided for in the decedent’s will was never changed and is an indication of her intent that the parties to this action would share equally in her estate.

Respondents argue that in this situation the transfer of most of the decedent’s assets to appellant was unnatural. The fact that a parent might leave the majority of his or her assets to only one child, while excluding others, is not in and of itself unnatural. In fact, decedent’s will did specifically exclude one of her daughters who is not a party to this action. However, considering the transfers in question in light of the fifth criteria clarifies why the transfers were unnatural. The fifth criteria requires an examination of the time, the place, and all the circumstances surrounding the transfers. In this case, there is a clear intent that the parties to this action were to share equally in the estate. However, several years before the decedent’s death most of her assets were transferred into joint tenancy with appellant. These transfers occurred at a time when appellant was clearly in a position to exercise influence over the decedent. Additionally, all of this occurred at a time, when due to her advanced age and illness, decedent was susceptible to such influence. The District Court’s finding that appellant was unjustly enriched by exercising undue influence is not clearly erroneous. The District Court was correct in concluding that all of the assets coming under the control of appellant as a result of this undue influence were properly the subject of a constructive trust for the benefit of himself and respondents equally.

Ill

Did the District Court err in the award of punitive damages? Section 27-1-221, MCA, provides that “reasonable punitive damages may be awarded when the defendant has been found guilty of actual fraud or actual malice.” The District Court in this case found that appellant was guilty of both actual fraud and actual malice, and in a separate hearing on the matter awarded punitive damages in the amount of $30,000. Appellant argues that there was no basis for a finding of actual fraud, and therefore, the award of punitive damages was inappropriate. This matter need not be addressed by this Court, as the finding of actual malice, which is uncontested on appeal, is sufficient basis for the award of punitive damages.

Section 27-1-220, MCA, provides that punitive damages may be awarded for the sake of example and for the purpose of punishing a defendant. Section 27-1-221, MCA, sets forth the criteria to be followed by the district court in determining a punitive damage award and requires that the court clearly state the reasons for making the award. The District Court clearly followed the requisite criteria in determining the amount of the punitive damage award. In light of the statutory criteria and the circumstances of this case, we hold the District Court did not err in awarding $30,000 in punitive damages.

IV

Did the District Court err in disallowing personal representative fees and attorney fees paid by the estate of the decedent?

The District Court determined that appellant should be charged with repayment of personal representative fees and attorney fees previously paid by the estate. Apparently this decision was not based on a dispute over the calculation of the fees, but rather based on the court’s conclusion that appellant had breached his trust. The review of fees paid or taken by a personal representative is left to the sound discretion of the District Court. The District Court’s determination concerning fees will not be overturned absent a showing of an abuse of discretion. Estate of Stone (1989), 236 Mont. 1, 768 P.2d 334. The reasonableness of any challenged fee is determined in part by whether the services rendered were beneficial to the estate. Stone, 768 P.2d at 336. In this case the services rendered were not beneficial to the estate. The District Court’s determination concerning the fees was not an abuse of discretion.

Affirmed.

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


author: JUSTICE GRAY

text:
    In The Matter of the ADJUDICATION of the EXISTING RIGHTS to the Use of All the Water, both Surface and Underground, Within the MUSSELSHELL RIVER DRAINAGE AREA Above ROUNDUP, Including all Tributaries of the MUSSELSHELL RIVER above ROUNDUP in WHEATLAND, GOLDEN VALLEY, MEAGHER, FERGUS, MUSSELSHELL, SWEET GRASS, PARK, YELLOWSTONE, and STILLWATER COUNTIES, MONTANA.
    No. 90-468.
    Submitted on Briefs September 10, 1992.
    Decided October 8, 1992.
    49 St.Rep. 866.
    255 Mont. 43.
    840 P.2d 577.

      For Appellants: Laurence R. Martin and Sol Lovas, Felt, Martin, Frazier & Lovas, Billings.
    For Respondent: John R. Christensen, Christensen & Hubble, Stanford.
    For Amicus Curiae: Faye Bergan, Dept, of Natural Resources & Conservation, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Rueben C. and Lavone M. Pitsch appeal from an adjudication of water right claims in Big Coulee Creek, a tributary of the Musselshell River, by the Montana Water Court, the Honorable Bernard W. Thomas presiding. We affirm.

We address the following issues on appeal:

1. Did the Water Court err in determining that the 1893 and 1921 water rights claimed by appellants were abandoned?

a. Should this Court expressly overrule 79 Ranch?
b. Did the Water Court err in its application of 79 Ranch?

2. Did the Water Court err in determining that the claimed 1973 water right was not perfected?

3. Are appellants entitled to a 1976 priority date for water applied to a beneficial use?

This is the third occasion on which the water right claims of Rueben and Lavone Pitsch have been appealed to this Court. For the most part, the claims before us originally went to trial in 1979 and appealed. We vacated and remanded in 79 Ranch, Inc. v. Pitsch (1981), 193 Mont. 229, 631 P.2d 690, and findings of feet, conclusions of law and judgment on remand were entered in 1982. The case was appealed again and resulted in our decision in 79 Ranch, Inc. v. Pitsch (1983), 204 Mont. 426, 666 P.2d 215, in which we affirmed in part and remanded for modification. A modified decree and judgment was entered on August 22,1983.

Before the earlier proceedings finally had been resolved in August, 1983, Pitschs filed five Statements of Claim pursuant to Montana’s 1973 Water Use Act. The Water Court consolidated the claims of existing water rights in Big Coulee Creek, a tributary of the Musselshell River, asserted by Pitschs and other parties into Case No. 40A-48C. Claims by Eugene and Lois Schaff, Warren Sillivan and Coulee Hill Ranch, Inc., Chris and Betty Schaff and appellants Pitschs, as well as objections to those claims, were tried beginning February 8,1990.

After hearing, the Water Court ruled on the water right claims before it. With specific regard to appellants, the court determined that their one-third interest in the 1893 Montana Cattle Company water right (Claim No. 45635) had been perfected for 131 acres, but abandoned by their predecessors in interest. In addition, the court ruled that a 1921 Notice of Appropriation (Claim No. 45634) had been perfected for 23.5 acres, but abandoned, and that another 1921 Notice of Appropriation (Claim No. 45632) was not perfected or, if perfected, was abandoned. The court further determined that a 1953 irrigation right based on a reservoir right (Claim No. 182127) was not perfected. Finally, the court determined that appellants’ claim based on their predecessors’ 1973 Notice of Appropriation (Claim No. 45633) was not perfected by reason of lack of reasonable diligence in putting the water to beneficial use.

This appeal followed entry of judgment and certification pursuant to Rule 54(b), M.R.Civ.P. We note at the outset that only the Pitschs appeal from the judgment of the Water Court and that they do not appeal the Water Court’s determination that the asserted 1953 irrigation right was not perfected.

1. Did the Water Court err in determining that the 1893 and 1921 water rights claimed by appellants were abandoned?

Appellants argue two separate issues in support of their contention that the 1893 and 1921 water rights were not abandoned. First, they argue that this Court should expressly overrule 79 Ranch, Inc. v. Pitsch (1983), 204 Mont. 426, 666 P.2d 215 (hereafter 79 Ranch). Second, they argue that, in any event, the Water Court erred in its application of 79 Ranch to the facts of their water right claims. We will address these issues separately.

a. Should this Court expressly overrule 79 Ranchi

Appellants assert that our decision in 79 Ranch in 1983 and our subsequent decision in E.E. Eggebrecht, Inc. v. Waters (1985), 217 Mont. 291, 704 P.2d 422, have resulted in an irreconcilable conflict in the law of abandonment in Montana. We disagree.

79 Ranch addresses the question of abandonment of claimed water rights. Eggebrecht addresses the extent and abandonment of an easement by grant and decides only the narrow issue of who has standing to raise the issue of abandonment of such a grant originally made by the United States. The two interests are separate and distinct and the distinctions between the two form the basis for the difference in legal approach to questions regarding them, including the question of abandonment.

Montana law has long recognized that water rights and easement rights such as ditch rights are distinct interests which can be conveyed separately and abandoned separately. See McDonnell v. Huffine (1912), 44 Mont. 411, 120 P. 792. The controlling principle upon which water “rights” in Montana are perfected and continue to possess legal validity is that of beneficial use; water rights cease when the water is no longer applied to a beneficial use. Power v. Switzer (1898), 21 Mont. 523, 55 P. 32; 79 Ranch, 204 Mont. at 431-32. Water rights are thus inherently different from other rights or interests not fundamentally premised or conditioned on use of the particular right or interest; necessarily, then, abandonment of a water right is a question distinct from abandonment of a right created in a different manner.

In this regard, Montana’s law on abandonment of water rights has a long and evolutionary history. See, e.g., Smith v. Hope Mining Co. (1896), 18 Mont. 432, 45 P. 632; Moore v. Sherman (1916), 52 Mont. 542, 159 P. 966; Thomas v. Ball (1923), 66 Mont. 161, 213 P. 597; Shammel v. Vogl (1964), 144 Mont. 354, 396 P.2d 103; Holmstrom Land Co. v. Meagher Cty. Newlan Creek (1979), 185 Mont. 409, 605 P.2d 1060; 79 Ranch (1983); § 85-2-404, MCA. Appellants correctly assert that our decision in 79 Ranch was a change in the law of abandonment of water rights. Given Smith and Holmstrom, however, both of which held a long period of non-use of water rights to be “strong evidence” of intent to abandon, it was not the “stunning reversal” appellants assert it to be.

Eggebrecht did not relate to water rights or abandonment of water rights. There, a reservoir right of way by grant was acquired from the United States under federal law authorizing such grants on public land of ground occupied by certain ditches, canals or reservoirs. Relying on City of Billings v. O.E. Lee Co. (1975), 168 Mont. 264, 542 P.2d 97, we stated in Eggebrecht that “mere non-use of an easement by grant, no matter how long continued, does not constitute abandonment.” Eggebrecht, 217 Mont. at 295. (Emphasis supplied.) The statement clearly encompassed easements by grant only; as noted above, the creation and continued existence of such an interest is not analogous to the creation and continued existence of a water right in Montana. If anything, the easement by grant in Eggebrecht might be analogous to a ditch right by grant, rather than to a water right.

79 Ranch and Eggebrecht are not in conflict. Nor, given the differences between water rights and easements by grant, is there any reason that Montana law on abandonment of those interests should be identical.

Appellants also contend that our 79 Ranch decision, insofar as it relates to a rebuttable presumption of abandonment, violates the Montana Constitution. Their constitutional argument is based in large part on sweeping statements as to the extent and effect of our holding which are simply incorrect and of other matters which do not appear of record.

We do not address these statements in any detail. Building on our holdings in Smith and Holmstrom that a “long period of nonuse is strong evidence of an intent to abandon the water rights,” we went on in 79 Ranch to conclude that “[i]n effect, such a long period of continuous nonuse raises the rebuttable presumption of an intention to abandon, and shifts the burden of proof onto the nonuser to explain the reasons for nonuse.” 79 Ranch, 204 Mont. at 432-33. We said no more than this.

Appellants quote Article IX, Section 3(1) of the 1972 Montana Constitution, which recognizes and confirms “existing rights to the use of any waters for any useful or beneficial purpose ...” They construe that provision as prohibiting the state, whether through the legislature or this Court, from any post-1972 actions which could negatively impact in any way on pre-1972 water rights. We previously have rejected similar constitutional arguments regarding legislative changes in Montana water law since the 1972 Constitution. We reject them here as they relate to state action via decisions of this Court.

As discussed above, valid and existing water rights in Montana have long been premised on beneficial use. These are the “existing rights” that the 1972 Constitution recognizes and confirms, and we have held that “constitutional recognition of water rights is effective and will be sustained.” McDonald v. State (1986), 220 Mont. 519, 722 P.2d 598. We specifically recognized that the State’s ability to affect existing and recognized water rights survived the adoption of Article IX, Section 3(1), of the 1972 Montana Constitution. Dept. of State Lands v. Pettibone (1985), 216 Mont. 361, 702 P.2d 948. Indeed, earlier this year, in considering an abandonment issue under the 1973 Water Use Act, we determined that the constitutional recognition of existing water rights “does not establish that pre-1973 water rights are immune from sovereign powers.” Matter of Adjudication of Yellowstone River Water Rights (Mont. 1992), [253 Mont. 167,] 832 P.2d 1210, 1214, 49 St.Rep. 413, 415. While those rights are “protected against unreasonable state action[,] ... they have not been granted indefeasible status.” Id. We concluded that “consistent with Article IX, Section 3(1), of the Montana Constitution, the State Legislature may enact constitutionally sound regulations including the requirement for properly owners to take affirmative actions to maintain their water rights.” Id.

We adopt the foregoing rationale as it applies to our “rebuttable presumption of abandonment” holding in 79 Ranch. Requiring a water right claimant to explain the reasons for a long period of continuous non-use of water is a constitutionally permissible affirmative action, particularly when the action required is but an incremental change from the earlier rule that longperiod of non-use is “strong,” “potent,” or “clear” evidence of an intent to abandon. Indeed, 79 Ranch is akin to a caveat to claimants that they should not rest their case without addressing the potent evidence of intent to abandon which arises from a long period of non-use. We hold, therefore, that our decision in 79 Ranch does not violate Montana’s constitutional provision recognizing and confirming existing water rights.

b. Did the Water Court err in its application of 79 Ranch?

The Water Court found that the 1893 Montana Cattle Company water right was applied to irrigation via 393 acres of land between 1893 and 1912; thus, the water right was perfected. Thereafter, no irrigation of any kind based on this water right occurred for at least forty years. The Water Court found, under 79 Ranch, that appellants failed to show reasonable cause for non-use of the water for the forty year period and, thus, that the right had been abandoned.

Similarly, the Water Court found that the claimed water right based on a March 22, 1921, Notice of Appropriation filed by Claude Hill, appellants’ predecessor in interest, was put to beneficial use. The court further found, however, that the water was not used for a period of some forty years and that appellants failed to show reasonable cause for non-use over that period. Finally, as to appellants’ claimed water right based on a Notice of Appropriation filed in September, 1921, by Claude Hill and others, the court found that appellants failed to prove that the water was ever put to beneficial use on the sections specified in the Notice of Appropriation. In the alternative, the court found that, if the water ever had been put to beneficial use, the right was abandoned through non-use for more than forty years and appellants’ failure to establish reasonable cause for the non-use.

Appellants assert that they presented sufficient evidence to explain the reasons for non-use under 79 Ranch. According to appellants, the Water Court erred in concluding that we had held “that broad claims such as [ditches blowing shut, lack of money, the depression, the war, the need for cooperation to restore the ditches and the lack of water], unsupported by specific evidence, are not sufficient to rebut the presumption.”

Appellants are technically correct. We did not have before us in 79 Ranch the variety or number of ‘broad claims” subsequently presented to the Water Court at the trial of this case; thus, it might be said that the Water Court characterized our statement in 79 Ranch too broadly. Nevertheless, the Water Court correctly applied the thrust of 79 Ranch to the facts before it.

In 79 Ranch, the only evidence before us in rebuttal of the presumption of abandonment was Pitsch’s argument that his predecessors in interest did not have sufficient funds to irrigate. We concluded that “[s]uch a broad claim, unsupported by more specific evidence, is not sufficient to rebut the presumption of abandonment.” 79 Ranch, 204 Mont. at 433. We relied on In re CF & I Steel Corporation v. Purgatoire River Water Conservation District (Colo. 1973), 515 P.2d 456, for the principle that some fact or condition excusing longperiods of non-use must be established to rebut the presumption, not mere expressions of desire or hope. Id. With specific regard to Pitsch’s “lack of sufficient funds” argument, we also found the Colorado Court’s reasoning persuasive:

“Considering the large demands for all of the appropriatable water in this state..., it might be said that nearly every abandoned water right could have its non-use justified by the economics that might prevail sometime in the future for use of this water .... This gleam-in-the-eye philosophy is not consistent with the protection and preservation of existing water rights.”

79 Ranch, 204 Mont. at 433-34; citing CF & I, 515 P.2d at 458.

With 79 Ranch clearly before us, we have scrutinized the entirety of the record in the case. Appellants presented general evidence of a variety of negative factors in an effort to span a period of non-use from at least the 1920s to 1976: dry conditions in the 1920s; the “dust bowl years” of the 1930s; the depression; World War II; blown-in ditches; lack of water; lack of money; and the need for cooperation to restore a lengthy series of ditches to operating condition. As presented, the evidence generally encompassed the Big Coulee area and was not specific to the acreage to which the claimed water rights related. In addition, the evidence was nearly all conclusory in nature; that is, the evidence was that certain spans of years were “pretty dry,” “most people” did not have sufficient funds to reopen ditches, and so on. Specific evidence explaining or excusing the long period of non-use of the particular water rights on the specific property was lacking. In addition, evidence was presented by other parties that sufficient water was available for irrigation from Big Coulee in some years, that portions of the blown-in ditches were easily opened and thereafter utilized, and that at least one properly was irrigated from Big Coulee Creek every year there was water from 1941 to 1990.

We agree with appellants’ argument that a person cannot put water to beneficial use when there is no water available. The record here reflects, however, that some quantity of water was available for irrigation from Big Coulee Creek for many, if not most, of the years at issue here. The overall impression from the record is that much farming in the Big Coulee area was diy land farming and that the farmers there were little interested in irrigation. In any event, appellants presented no specific evidence establishing any fact or condition sufficient to excuse the long period of non-use, as required by 79 Ranch.

Appellants’ reliance on Hallenbeck v. Granby Ditch and Reservoir Company (Colo. 1966), 420 P.2d 419, is misplaced. In Hallenbeck, the issue was whether the Granby Ditch and Reservoir Company had made a sufficient showing to rebut the presumption of abandonment of storage rights in a number of reservoirs. The Colorado Court stated that “a reasonable justification for non-use may very well exist where it can be shown that economic, financial or legal difficulties or natural calamities prevented the storing of all the water that was originally decreed.” Hallenbeck, 420 P.2d at 426 (citations omitted). The evidence showed that Granby was unable to keep the reservoirs in peak operating condition during the depression, but that it did keep parts of the reservoir system operating with specifically-proved expenditures of money. Evidence also indicated that material and engineering shortages during the war hampered operations, but that all of the reservoirs save one were used until 1945. Repairs on a dam on one of the reservoirs were prohibitively expensive as a result of U.S. Forestry requirements. However, increasingly larger amounts were spent on the remaining system from 1945 until 1961. On these facts, the Colorado Supreme Court affirmed the trial court’s finding of insufficient facts to show intent to abandon.

Hollenbeck is distinguishable from the case before us. There, Granby continued to use portions of its storage rights throughout the period. In addition, it presented specific evidence as to its continuing efforts to maximize operation of its reservoir system and its storage rights as well as specific evidence of the economic financial or legal difficulties or natural calamities which hampered its efforts.

Appellants presented no evidence of any effort whatsoever by their predecessors in interest to apply the claimed water rights to beneficial use. Nor did they present any specific evidence of obstructions to their ability to do so. When this case was last before us, we stated that Pitsch’s argument that his predecessors did not have sufficient funds to irrigate was too broad a claim, unsupported by more specific evidence, to rebut the presumption of abandonment. Appellants did not add any specific evidence in that regard. Overall, they presented merely a series of conclusoiy statements concerning a variety of negative factors spanning nearly fifty years. Based on the record before us and upon which the Water Court made its findings, we cannot say the Water Court erred in its findings or in its application of 79 Ranch.

2. Did the Water Court err in determining that the claimed 1973 water right was not perfected?

Appellants filed a Statement of Claim for an irrigation right, claiming 325.80 acres of irrigation use in sections 35 and 36, T5N, R19E, with a 1973 priority date. Appellants’ claim was based on a Notice of Appropriation for irrigation lose filed May 30,1973, by their predecessors in interest Bert and Victoria Schaff. The water was claimed by the Schaffs for use on the NWV4 of section 35 and the NWV4 of section 36, T5N, R19E and was never put to beneficial use by them.

Appellants purchased sections 35 and 36, T5N, R19E, including all water rights, from the Schaffs in August 1975. They first put water to beneficial use in July 1976, principally on land in the NE1/4 and SV2 of section 35, T5N, R19E. The Water Court found, on these facts, that appellants failed to prove reasonable diligence on the part of their predecessors in interest in applying the 1973 water right to a beneficial use. Appellants argue that the court’s finding of lack of reasonable diligence is error. As a result, according to appellants, the pre-1973 Water Use Act appropriation was perfected and their priority date relates back to the date of filing.

“ What constitutes due diligence is a question of fact to be determined by the court in each case.’ ”Mont. Dept. of Nat. R. & C. v. Intake Water Co. (1976), 171 Mont. 416, 434, 558 P.2d 1110, 1120 (citation omitted). Thus, our standard of review is whether the court’s finding of feet is clearly erroneous. Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285,1287.

In Intake Water Co., we cited Clark, Waters & Water Rights, Vol. 6, § 514.1, pp. 308, 309, as follows:

‘Diligence does not require unusual or extraordinary effort, but it does require a steady application of effort — that effort that is usual, ordinary and reasonable under the circumstances. * * * So long as the applicant prosecutes the construction of works in good faith with a steady effort, he should be held to have prosecuted with diligence.”

171 Mont. at 434. In that case, we determined that the applicant had met the diligence requirement. Appellants herein assert that that case is apposite here and mandates a reversal of the Water Court’s finding. Appellants fail to take into account the significant factual differences between the two cases.

In Intake Water Co., the Notice of Appropriation was filed on June 8, 1973 and the water had not been put to beneficial use — indeed, construction of the diversion works had not begun — by the time the DNRC’s declaratory judgment action was tried. The record reflected that the contemplated multi-million dollar project was of great complexity and magnitude which would require several years to complete even after the project was physically under way. The company was progressing toward removal of both actual and legal constraints arising out of the Yellowstone River Compact and several Montana statutes. In addition, actual construction of the diversion project could not begin until National Environmental Policy Act requirements were met and federal government approval was obtained. Under these facts, we held that the statutory language did not require “commencement of actual on-site excavation or construction of the diversion works, but that it encompasses the steady on-going effort in good faith by Intake to prosecute the construction of the project. ...” Intake Water Co., 171 Mont. at 436.

In the case before us, appellants’ predecessors in interest filed the Notice of Appropriation in May, 1973. Bert Schaff ordered an irrigation system that year, laid out pipe in the fields and bulldozed a site for his pump. Necessary parts for the irrigation system were not delivered. By the time he sold the property to appellants in August, 1975, Schaff had undertaken no additional efforts to obtain the parts to complete the irrigation system. Appellants subsequently put the claimed water to beneficial use in July, 1976, more than three years after the notice had been filed.

The record reflects no complexity, legal barriers or justifiable actual barriers regarding the contemplated irrigation project for which the 1973 Notice of Appropriation was filed, such as were present in Intake Water Co. Appellants’ predecessors did not proceed with any steady on-going effort toward completion of their irrigation project after initial steps were taken. Substantial, credible evidence supports the Water Court’s finding that appellants failed to prove reasonable diligence on the part of their predecessors in interest in applying the claimed 1973 water right to beneficial use. In addition, the court did not misapprehend the law; nor are we left with the conviction that a mistake has been committed. We hold that the Water Court’s finding of lack of reasonable diligence is not clearly erroneous. Absent perfection of the 1973 Notice of Appropriation, appellants cannot now claim an existing pre-1973 water right. Holmstrom, 185 Mont. 430.

3. Are appellants entitled to a 1976 priority date for water applied to a beneficial use?

Appellants’ final contention is that they are entitled to a 1976 priority date for the water they utilized under the 1973 Notice of Appropriation. We addressed this precise issue in 79 Ranch and address it again here only because of its importance in the on-going water rights adjudication and permit processes.

The Water Court determined that appellants acquired a different type of sprinkler system to put the water to beneficial use; further, they changed both the place of diversion and the place of use stated in the 1973 Notice of Appropriation. The court noted that these significant changes were “all indicative of a new appropriation” in 1976. Appellants’ argument for a 1976 priority date apparently is based on this determination. They misapprehend the effect of the determination vis-a-vis the 1973 Water Use Act.

In essence, and notwithstanding the failure of their claim under the 1973 Notice of Appropriation, appellants’argument is that their claim still must be adjudicated under pre-1973 law. lb accept this argument would be to ignore both the thrust and the specific requirements of the 1973 Water Use Act regarding new appropriations of water and to revert to pre-1973 law.

All new appropriations of water must be established through a water use permit system. Section 85-2-302, MCA. “A right to appropriate water may not be acquired by any other method.... The method prescribed by this chapter is exclusive.” Section 85-2-301(3), MCA. These statutes are perfectly clear and clearly negate appellants’ argument. In addition, this precise issue was addressed and decided in 79 Ranch. We refused to affirm the 1976 priority date established by the court for a new “use” right, noting the 1973 Act’s “emphatic” statement that it contained the exclusive procedures for post-1973 acquisition of water rights and the absence of record support for compliance with those procedures. 79 Ranch, 204 Mont. at 436.

AFFIRMED.

JUSTICES HARRISON, HUNT, TRIEWEILER and McDonough concur.


author: CHIEF JUSTICE TURNAGE

text:
    IN RE THE MATTER OF A.E., C.E., S.R. and J.R., Youths in Need of Care.
    No. 92-097.
    Submitted on Briefs July 30, 1992.
    Decided October 8, 1992.
    49 St.Rep. 877.
    255 Mont. 56.
    840 P.2d 572.

      For Appellant: E. June Lord, Great Falls.
    For Respondent: Ross P. Richardson, Henningsen, Vucurovich & Richardson, Butte.
    For Guardian Ad Litem: Mary Kay Starin, Butte.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

L.D. (appellant), the mother of A.E., C.E., S.R. and J.R. (children), appeals from two orders of the District Court for the Second Judicial District, Silver Bow County. The first order found the children to be youths in need of care and abandoned by their mother and fathers. Based upon these findings, the court terminated appellant’s parental rights as to each of the children and gave permanent legal custody, including authority to consent to adoption, to the Montana Department of Family Services (DFS).

The second order denied appellant’s motion to rescind the order terminating her parental rights and specifically reaffirmed the termination order. We affirm the decisions of the District Court.

We state the issues raised by appellant as follows:

1. Did the District Court err in terminating appellant’s parental rights based upon abandonment?

2. Did the District Court correctly rule the requirements of the code had been met and that appellant was afforded due process prior to terminating her parental rights?

3. Did the District Court properly hold appellant’s motion to rescind the order terminating her parental rights was untimely?

On November 5, 1990, DFS in Butte became involved with appellant and her children in an attempt to ascertain whether the children were abused or neglected or otherwise in need of care. After a preliminary investigation, the children were placed in foster care, and DFS petitioned the District Court for an order of temporary investigative authority and protective services. At a show cause hearing on November 16,1990, the District Court issued the temporary order which was effective until February 14,1991... On December 20,1990, appellant consented to a treatment plan in which she was to meet certain criteria aimed at eliminating her chemical dependency and establishing a nurturing home environment for herself and her children. Appellant did not comply with the terms of the treatment plan. As a result, DFS petitioned the District Court for temporary legal custody of the children on February 11,1991. On the same date, appellant waived her right to a hearing on the temporary legal custody issue and consented to DFS having temporary legal custody of her children.

Additionally, appellant entered into a second treatment plan by court-ordered consent decree on February 11,1991. However, by the end of February 1991, appellant once again was not in compliance with the terms of the treatment plan. The DFS social worker continued in her attempts to work with appellant but with no success. By April 15,1991, appellant had ceased all contact with DFS and her children. Efforts were made to contact appellant but her whereabouts were ■unknown. DFS petitioned for termination of appellant’s parental rights on August 9,1991.

A hearing on the petition was held on August 26, 1991. Appellant was not present at the hearing. On August 27,1991, the District Court terminated the parental rights of appellant and granted permanent legal custody and authority to consent to adoption to DFS. Appellant’s motion to rescind the termination order was denied on February 4, 1992. This appeal followed.

It should be noted the District Court also terminated the parental rights of the father of A.E. and C.E. and the father of S.R. and J.R. The fathers do not appeal the District Court ruling and are therefore not considered.

I.

Did the District Court err in terminating appellant’s parental rights based upon abandonment?

A “parent’s right to care and custody of a child is a fundamental liberty interest, which must be protected by fundamentally fair procedures.” Matter of R.B. (1985), 217 Mont. 99, 103, 703 P.2d 846, 848. The State must show by clear and convincing evidence the parent(s) abandoned the children prior to parental rights being terminated. Matter of M.W. (1988), 234 Mont. 530, 533-34, 764 P.2d 1279, 1281.

On appeal, we will affirm the District Court’s decision to terminate parental rights where substantial, credible evidence exists to support that decision. Matter of T.M.M. (1988), 234 Mont. 283, 287, 762 P.2d 866, 869. The judge hearing oral testimony has the advantage in determining the outcome of the controversy. We will not disturb the District Court findings on appeal unless there is a mistake of law, or a finding of fact not supported by substantial, credible evidence. Matter of Henderson (1975), 168 Mont. 329, 333, 542 P.2d 1204, 1206; Matter of S.P. (1990), 241 Mont. 190, 194, 786 P.2d 642, 644.

Appellant contends the District Court erred in finding she had abandoned her children. She bases her argument upon the premise that her actions did not meet the requirements of § 41-3-102, MCA. We disagree. The District Court applied the appropriate section of the code applicable to termination of parental rights and made a finding that appellant had in fact abandoned her children. This finding is supported by the record.

Under § 41-3-609, MCA, parental rights can be terminated when any one of three circumstances exists. Matter of M.J.D. (1987), 225 Mont. 200, 206, 731 P.2d 937, 941. One of the circumstances in which parental rights can be terminated is abandonment. The applicable subsection provides:

(1) The court may order a termination of the parent-child legal relationship upon a finding that any of the following circumstances exist: ...
(b) the child has been abandoned by his parents as set forth in 41-3-102(3)(d);...
Section 41-3-609(l)(b), MCA.

Section 41-3-102(3)(d), MCA, defines abandonment as occurring when the parent:

abandons the child by leaving him under circumstances that make reasonable the belief that the parent or other person does not intend to resume care of the child in the future or by willfully surrendering physical custody for a period of 6 months and during that period does not manifest to the child and the person having physical custody of the child a firm intention to resume physical custody or to make permanent legal arrangements for the care of the child;... [emphasis added],

We have previously held “[t]he period for establishing abandonment pursuant to § 41-3-102(3)(d), MCA, is six months.” M.J.D., 731 P.2d at 940. Matter of M.W. (1988), 234 Mont. 530, 534, 764 P.2d 1279, 1282. Both of these cases involved facts which warranted application of the second clause in § 41-3-102(3)(d), MCA, regarding willful surrender of physical custody of the child. The first part of § 41-3-102(3)(d), MCA, applies where a parent abandons a child under circumstances that make reasonable the belief the parent does not intend to resume care of the child. No time frame is specified for this particular clause. We now clarify our previous rulings and hold the six-month requirement is applicable only to the subsection of § 41-3-102(3)(d) regarding willful surrender of physical custody of the child.

In the case at bar, substantial, credible evidence supports the District Court’s decision to terminate appellant’s parental rights. The record indicates appellant’s last contact with any of her four children was March 19,1991. It was at this time that DFS once again removed appellant’s daughters from her home because of appellant’s continued failure to follow the treatment plan. Despite a letter from DFS to appellant requesting she contact DFS to continue with efforts aimed at reuniting her with her children, appellant did not contact DFS until April 15, 1991. Upon contacting DFS, appellant informed her social worker she had just returned to the Butte area and was planning to move to Dillon.

Appellant requested DFS send her children to Dillon to set up foster care there. The DFS social worker informed appellant that the treatment plan had to be complied with in Butte, and that all visitation with her children had to occur in Butte. It was at this time that appellant ceased all contact with her children and DFS. Substantial efforts by DFS to ascertain the whereabouts of appellant from the middle of April 1991, until the termination hearing in August 1991, were fruitless.

We hold there was no mistake of law or finding by the District Court not supported by substantial credible evidence. We affirm the District Court’s holding that appellant abandoned her children by leaving them under circumstances that made reasonable the belief she did not intend to resume care of them.

II.

Did the District Court correctly rule the requirements of the code had been met and that appellant was afforded due process prior to terminating her parental rights?

Appellant next contends she was deprived of her fundamental right to fair procedure because the District Court did not afford her proper procedural safeguards. Specifically, appellant argues because she was not personally served with notice of the termination proceedings, her due process rights were violated. In the alternative, appellant argues she should have been served by publication. However, appellant’s reliance upon § 41-3-401(4) and (5), MCA, in support of these propositions is misplaced. Section 41-3-401, MCA, dictates the procedures to be followed when the State moves for a determination that children are abused, neglected, or dependent. These procedural aspects do not apply to termination proceedings.

The proper procedure to be followed when petitioning for termination of a parent-child legal relationship is found in Title 41, Chapter 3, Part 6, MCA:

This part provides procedures and criteria by which the parent-child legal relationship may be terminated by a court if the relationship is not in the best interest of the child. The termination of the parent-child legal relationship provided for in this part is to be used in those situations where there is a determination that a child is abused, neglected, or dependent, as defined in 41-3-102. Section 41-3-602, MCA.

In November 1990, the District Court found that the children were abused, neglected, or dependent pursuant to § 41-3-102, MCA. The record is clear that all procedural requirements were met in making this determination. It was only after appellant’s failure to comply with two treatment plans and her failure to keep DFS comprised of her whereabouts for over ninety days that the termination proceedings were initiated. Upon the DFS petition for termination of the parent-child relationship, Title 41, Chapter 3, Part 6, MCA, controlled.

Section 41-3-608, MCA, outlines the notice requirements applicable to parent-child relationship termination proceedings:

Before a termination of the parent-child legal relationship based on abandonment may be ordered, the court shall determine whether the rules of civil procedure relating to service of process on the parents have been followed. If the parents were not served personally, the petitioner must file an affidavit stating what efforts have been made to locate the parent or parents of the child. The affidavit must be filed at least 10 days prior to the hearing.

The record indicates DFS made substantial efforts to locate and serve appellant. Notwithstanding this fact, it is apparent appellant did not want to be found. It was after this unproductive search for appellant that DFS filed its affidavit outlining the efforts undertaken to locate appellant. The District Court found the notification efforts “were appropriate and that nothing further could have been done in order to obtain service of process on” appellant.

Additionally, appellant knew what was required of her to retain custody of her children. She was under actual notice from the onset of DFS involvement that her parental rights could be terminated should she fail to follow the court-ordered treatment plans. Due process requires notice and the opportunity to be heard. Byrd v. Columbia Falls Lions Club (1979), 183 Mont. 330, 332, 599 P.2d 366, 367. We hold the District Court properly held these elements to have been satisfied.

III.

Did the District Court properly hold the appellant’s motion to rescind the order terminating her parental rights was untimely?

Finally, appellant contends she was not notified of the termination of her parental rights and it was improper for the District Court to deny her motion for rescission of the termination order. This argument is without merit. At the hearing on the motion to rescind the termination order, appellant testified she learned of the termination of her parental rights the same day the District Court orally entered the termination order, August 26, 1991. However, nearly six months passed before appellant filed her motion to rescind.

The record supports the District Court’s findings that the motion to rescind was untimely. The District Court did not abuse its discretion in denying appellant’s motion.

We find no error with the District Court’s rulings. Accordingly, judgment is affirmed.

JUSTICES HARRISON, HUNT, McDONOUGH and WEBER concur.