text:
    STATE OF MONTANA, By and Through the DEPARTMENT OF REVENUE, ex rel., TAMMY J. SORENSON, an adult and Jason Richard Sorenson, a Child, Petitioners and Respondents, v. RICHARD M. ROSKE, Respondent and Appellant.
    No. 87-63.
    Submitted on Briefs Sept. 3, 1987.
    Decided Nov. 10, 1987.
    745 P.2d 365.

      J. Mayo Ashley, Helena, for respondent and appellant.
    Nina Vaznelis, Helena, Kelly O’Sullivan, Child Support Enforcement Program, Helena, for petitioners and respondents.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This dispute concerns the assessment of costs and support in an action to establish paternity. Appellant Roske challenges the District Court’s award of $486.50 per month in child support, and the District Court’s award of guardian ad litem fees. Roske also challenges the lower court’s visitation provisions. We affirm.

The order of the District Court of the First Judicial District dated November 17, 1986, settled the rights and obligations of Roske, the father, and Sorenson, the mother, in regard to the parties’ child. Prior to the order Roske (1) had not visited with or had contact with the child, (2) paid no expenses incident to the pregnancy of Sorenson and her period of confinement, and (3) paid no support for the child.

The parties established a relationship in 1983 when Roske’s job brought him to Helena to work on a temporary basis. Roske resides with his wife and their two children near Missoula, but the work in the Helena area brought him in contact with Sorenson regularly from 1983 to 1984. Sometime in the fall of 1984 Sorenson became pregnant. She informed Roske, and in March of 1985 they broke off the relationship.

Until February of 1985 Sorenson worked as a nurses aid. Health problems resulted from the pregnancy however, and in February of 1985 she heeded the advice of her doctor and quit her job. To support herself she applied for and received income from the Aid to Families with Dependent Children program. The State brought this action to establish Roske’s liability for support of the child.

In response to the State’s petition, Roske denied paternity. The parties submitted to blood testing and the results showed that there was a 99.14 percent probability that Roske fathered the child. Following the testing the District Court held a pretrial conference and recommended that Roske acknowledge paternity. Roske refused, and a trial followed. The District Court’s order is based on trial testimony and documentary evidence submitted by the parties.

Roske presents the following issues for review:

(1) Did the lower court rely on the proper guidelines in arriving at a figure for support, and is that figure excessive?

(2) Did the lower court abuse its discretion by assessing guardian ad litem fees against appellant under thee court’s inherent equity powers, and as a sanction under Rule 11, M.R.Civ.P.?

(3) Did the lower court abuse its discretion by attaching conditions to appellant’s visitation?

ISSUE 1: Roske claims that the lower court’s support award of $486.50 per month is excessive. Roske also claims that under the Carlson formula, his support obligation totals only $346.74.

The legislature has decided the proper guidelines for determining the amount of support in a paternity action. See Section 40-6-116(5), MCA. The statute requires the District Court to consider:

(a) the needs of the child;

(b) the standard of living and circumstances of the parents;

(c) the relative financial means of the parents;

(d) the earning ability of the parents;

(e) the need and capacity of the child for education, including higher education;

(f) the age of the child;

(g) the financial resources and the earning ability of the child;

(h) the responsibility of the parents for the support of others; and

(i) the value of services contributed by the custodial parent.

The District Court’s findings adequately address the statutory criteria set out above. For example, in regard to subsection (a), the lower court found that the child lacked many things that other children take for granted, and that the mother set the monthly needs of the child at $725, and that the father set the monthly needs of the child at $436.50. In regard to Subsections (b), (c), (d), and (h), the lower court found that the mother has been an indigent, that she is currently enrolled in Carroll College’s nursing program, that she plans to support herself and her educational pursuits with grants, student loans, and work study income, and that currently her earning ability is somewhere in the range of $4.00 per hour. In regard to the father on Subsections (b), (c), (d), and (h), the lower court found that the father is employed as a master plumber and supervisor, that his income exceeds the monthly needs of his family in Missoula by $1038, and that he has many assets including; real property in the Missoula area, an $18,000 travel trailer, an $89,000 pension fund, and polo horses.

We will not overturn a support award absent a clear abuse of discretion resulting in substantial injustice. In re the Marriage of Jacobson (Mont. 1987), [228 Mont. 458,] 743 P.2d 1025, 1027, 44 St.Rep. 1678, 1680. Substantial evidence from the record supports the lower court’s findings. Thus, the District Court acted within the discretion afforded by Section 40-6-116(5), MCA, and we will not disturb its award of support.

In regard to Roske’s contentions on the application of the Carlson formula, at trial Roske admitted that his own estimate of $436.50 for the child’s monthly needs failed to provide an adequate amount for recreation and other expenses. Nevertheless, he contends on appeal that the lower court erred because under the Carlson formula his obligation should total only $346.74.

The Carlson formula serves as a guideline for arriving at a fair allocation of support between husband and wife in an action brought under Section 40-4-204, MCA. The considerations for arriving at a support award in a paternity action as set out in Section 40-6-116, MCA, vary slightly from the factors contained in Section 40-4-204, MCA. However, both statutes emphasize earning capacity as a yardstick for arriving at an equitable allocation of the child’s expenses. Thus, a district court could apply the formula and remain within the bounds of discretion provided by Section 40-6-116(5), MCA.

In this case, we hold that the District Court did not abuse its discretion by failing to follow the formula. The equation from Carlson “is a guideline, and not mandatory.” (Emphasis in original.) Jacobson, 743 P.2d 1025, 1027, 44 St.Rep. 1678, 1681. And, as with support awarded pursuant to Section 40-4-204, MCA, the lower court may “fashion support orders to fit the exigencies of the case.” Jacobson, 743 P.2d at 1027, 44 St.Rep. at 1681. At any rate, as Roske concedes in his brief, if the child’s needs totaled $725 per month as contended by Sorenson, the Carlson formula would render a support obligation for Roske which exceeds the current obligation of $486.50. Given this calculation, and Roske’s admission that his needs figure was low, the District Court acted within its discretion by refusing to employ Roske’s needs figure to calculate a lower support award under the Carlson formula.

ISSUE 2: Roske contends that the lower court erred by assessing guardian ad litem fees against him because the child did not need an attorney. Roske also contends that Rule 11, M.R.Civ.P., cannot be used to impose the fees as a sanction. Sorenson responds that the fee assessment is justified under Rule 11, and under the lower court’s inherent equity powers. See In re the Marriage of Hereford (Mont. 1986), [223 Mont. 31,] 723 P.2d 960, 43 St.Rep. 1508. We will not disturb the District Court’s conclusion in regard to the fees if it is correct on either .theory. Norwest Bank Billings v. Murnion (Mont. 1984), [210 Mont. 417,] 684 P.2d 1067, 1071, 41 St.Rep. 1132, 1136.

In this case, the fees are justified under Rule 11, M.R.Civ.P., because the record supports the lower court’s finding that Roske’s claims and defenses were made in bad faith. After the blood test showed a 99.14 percent probability that Roske fathered the child, the parties filed a pretrial order. In the order Roske denied paternity. At trial Roske admitted that he believed he fathered the child, but stated that he continued to resist legal acknowledgment of paternity to gain leverage on the support issue. At trial Roske also admitted that he undervalued property in his financial declaration, and that he underestimated the child’s needs in his needs statement.

Rule 11 of the Montana Rules of Civil Procedure may be employed to assess costs against a party who needlessly delays the court’s decision by bad faith pleading. Attorney fees are mentioned in Rule 11 as one of the costs which may be assessed. According to the Federal commentators, the rule is designed to force pleaders to make a reasonable inquiry into the truth of a statement made in a paper filed with the court. Fed.R.Civ.P. 11 advisory committee note. The standard used to judge the inquiry is reasonableness under the circumstances. Fed.R.Civ.P. 11 advisory committee note. In this action, Roske’s bad faith paternity defense and low property valuations were contained in papers filed with the court. His own testimony shows that he did not have a reasonable belief that the allegations were true. Therefore, the District Court acted within its discretion by finding that Roske violated Rule 11, M.R.Civ.P. Since this finding sufficiently supports the award, we will not consider whether the rationale for fees from Hereford is applicable to this case.

Roske also claims that the child had no need of representation, and therefore he should not have to pay the fees. Section 40-6-110, MCA, requires representation of children under the age of majority in a paternity action. Thus, the lower court’s decision to provide an attorney fulfills the statutory mandate, and Roske’s argument lacks merit.

ISSUE 3: This Court has held that the district court in a paternity action should be guided by the child’s best interest when decreeing visitation rights. Schuman v. Bestrom (Mont. 1985), [214 Mont. 410,] 693 P.2d 536, 539, 42 St.Rep. 52, 58. In this case, the District Court found that Roske was a complete stranger to the child, but that visitation with Roske was in the child’s best interest if the visitation was subject to reasonable limitations on time, place, and persons present as may be set by Sorenson until a parental relationship is established between the child and the father. Roske claims that this finding gives Sorenson too much control over visitation. Roske also claims that the finding restricts visitation and thus violates Section 40-4-217, MCA, because no showing that the restriction is necessary to protect the child’s physical, mental, moral or emotional health has been made.

First, in regard to whether or not Section 40-4-217, MCA, requires a showing of endangerment, this Court has distinguished between reduction of visitation and supervision of visitation. See In re the Marriage of Hickey (Mont. 1984), [213 Mont. 38,] 689 P.2d 1222, 1225, 41 St.Rep. 1931, 1935; Jacobson, 44 St. Rep. at 1681. In this case, as in Hickey and Jacobson, we will not interpret Section 40-4-217, MCA, so narrowly that the District Court is unable to fashion visitation provisions reflecting the child’s best interest. Thus, the District Court’s decision to require that Roske establish a relationship with the child before beginning more liberal visitation does not violate Section 40-4-217, MCA.

Roske contends that the District Court, rather than Sorenson, should decide the reasonable times, places, and persons present for visitation. The order in this case requires Sorenson to reasonably arrange visitation. In the absence of a showing that Sorenson is likely to unreasonably limit visitation, we find no clear error, and the lower court must be affirmed. See In re the Marriage of Revious (1987), [226 Mont. 304,] 735 P.2d 301, 305, 44 St.Rep. 674, 676.

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


source: Caselaw Access Project

author: MR. JUSTICE McDONOUGH

license: Public Domain

text:
    JOHN A. DAVIS (Fatal), Vivian Marie Davis, Claimant and Appellant, v. GEORGE W. JONES, Employer, and Mountain West Farm Bureau Mutual Insurance Company, Defendant and Respondent.
    No. 87-142.
    Submitted on Briefs Aug. 20, 1987.
    Decided Nov. 10, 1987.
    745 P.2d 362.

      Joseph C. Engel, III, Great Falls, for claimant and appellant.
    Norman H. Grosfield, Helena, for defendant and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This action appears before us for the third time. The first two appeals concerned insurer’s liability under the Montana Workers’ Compensation Act for the injury that resulted in the death of claimant’s husband. See Davis v. Jones (1983), 203 Mont. 464, 661 P.2d 859; Davis v. Jones (Mont. 1985), [216 Mont. 300,] 701 P.2d 351, 42 St. Rep. 840. This appeal concerns insurer’s liability for claimant’s attorney fees.

Claimant contends that the fee due from insurer equals 50 percent of benefits awarded. Insurer contends that the fee due equals 40 percent. The parties also contest the propriety of awarding fees in a lump sum, and thee responsibility for costs charged by claimant’s economist.

Claimant and her attorney signed an agreement providing for a fee contingent upon success of her claim. The amount of the fee was to equal 25 percent of benefits if the claim succeeded prior to hearing before the Workers’ Compensation Court; 33 percent of benefits if the claim succeeded after hearing before the Workers’ Compensation Court; and 40 percent of benefits if the claim succeeded only after appeal to the Montana Supreme Court.

The fee percentages provided for by the agreement mirrored the maximum fees that were allowed under A.R.M. Section 24.29.3801 (1986), a regulation promulgated by the Division of Workers’ Compensation. Also pursuant to A.R.M. Section 24.19.3801 (1986), claimant obtained Division approval of the agreement.

After the first appeal, claimant and her attorney agreed to increase the percentage of fees payable upon the ultimate success of the claim. In place of the 40 percent peak already established as the proper percentage because of the first appeal, they substituted 50 percent.

Claimant submitted the altered agreement for Division approval. However, before the Division had a chance to deny or approve the altered agreement, claimant withdrew her request and argued instead for a “good cause” variance from the original fee agreement’s 40 percent maximum. For good cause shown, the regulations themselves provided for a fee higher than 40 percent. See A.R.M. Section 24.29.3801(4) (1986). Claimant also argued that the Division did not have jurisdiction to determine fees once a claim had advanced to adjudication before the Workers’ Compensation Court.

The Division assumed jurisdiction and denied the variance. On appeal, the Workers’ Compensation Court held that the Division lacked jurisdiction, and considered the issue de novo. The Workers’ Compensation Court then refused to vary from the 40 percent figure found in the original agreement citing this Court’s opinion in Wight v. Hughes Livestock (1983), 204 Mont. 98, 664 P.2d 303. The lower court also refused to lump sum the fees for more than two years, and refused to assess against insurer costs charged by claimant’s economist. From this ruling claimant appeals. We affirm the lower court’s decision.

Appellant presents four issues for review:

(1) Did the Workers’ Compensation Court exceed its jurisdiction by passing judgment on an issue not raised by the pleadings?

(2) Does the “good cause” provision found in A.R.M. Section 24.29.3801(4) (1986), control over Wightl

(3) Should claimant’s attorney receive all the fees in a lump sum?

(4) Should claimant receive the cost of discounting her attorney fees to present value? We will consider each issue separately.

ISSUE 1: Claimant contends that the Workers’ Compensation Court erred by failing to base its decision on claimant’s allegation that:

“after the erroneous assumption of jurisdiction by the Division, the Division ignored the evidence adduced in compliance with the requisites of 24.29.3801 A.R.M. that there was good cause in the two cases litigated herein to vary from the maximum fee schedule, as is provided for in subparagraph (4) of that regulation.”

Claimant’s argument on issue 1 lacks merit. She requested that the lower court apply A.R.M. Section 24.29.3801(4) (1986), and the court held that “the Division rules governing attorney fees on cases before this Court and the Supreme Court are a nullity.” This response squarely addresses the issue presented by claimant’s petition. The fact that the lower court refused to apply the law as presented by claimant does not mean that the lower court exceeded its jurisdiction. As stated by the Supreme Court of Colorado,

“The Court is not restricted to theories of counsel, but has the duty of attempting a just determination of the issues tendered pursuant to established rules of law.”

Newton Oil Co. v. Bockhold (1947), 115 Colo. 510, 176 P.2d 904, 906.

ISSUE 2: Claimant’s next contention also concerns the correct authority for determining the amount of attorney fees. The Workers’ Compensation Court applied Wight to find that the original agreement controlled the percentage for calculating fees. Wight directed the Workers’ Compensation Court to give no effect to a contingency agreement amended after a successful appeal. Wight, 664 P.2d at 312. The amended agreement in Wight provided for a higher percentage of benefits than the original agreement. Wight, 664 P.2d at 312. Claimant contends that Wight does not apply where the claimant requests a good cause variance under A.R.M. Section 24.29.3801(4) (1986).

This is an issue of administrative law that we have recently settled. See Bowen v. Super Valu Stores (Mont. 1987), [229 Mont. 84,] 745 P.2d 334, 44 St.Rep. 1799, 1805-06. Bowen held that the “rules adopted by the Department, in this case the Division, have no application to proceedings before the Workers’ Compensation Court.” Bowen, 745 P.2d 334. Thus, the Workers’ Compensation Court correctly concluded that the Division rule did not apply, and properly proceeded to analyze the issue under Wight.

Claimant also complains that the Workers’ Compensation Court should have granted some fees on an hourly basis. According to claimant, the lower court could have exercised its discretion and granted the 40 percent contingency fee for the attorney’s work on the second appeal, and figured fees for the first appeal on an hourly basis.

Section 39-71-611, MCA, requires the Workers’ Compensation Court to establish reasonable attorney fees when the insurer must pay the fees. Where a contingency agreement exists, the Workers’ Compensation Court “ ‘is under a duty to determine what would be a reasonable attorney fee on a contingency basis.’ ” (Emphasis in original). Wight, 664 P.2d at 311 (quoting Clark v. Sage (1981) 102 Idaho 261, 629 P.2d 657, 660). In determining what is reasonable, “the Workers’ Compensation judge should accept the approved contract as having a strong presumption in its favor.” Wight, 664 P.2d at 312. In this claim, the Workers’ Compensation Court did not abuse its discretion by finding that the original agreement controlled the fee.

ISSUE 3: Claimant contends that the law at the time of the injury to her husband favored lump sum awards of attorney fees. To support this contention, claimant cites Garlitz v. Rocky Mountain Helicopters, WCC No. 1811, decided May 24, 1984. Respondent contends that Swan v. Sletten Const. (Mont. 1986), [223 Mont. 477,] 726 P.2d 1170, 43 St.Rep. 1926, controls Garlitz, and in its decision denying claimant’s lump sum request, the Workers’ Compensation Court agreed and applied Swan.

Both parties assume that Garlitz and Swan are irreconcilable. In Garlitz, the Workers’ Compensation Court exercised its discretion and granted attorney fees in a lump sum. In Swan, the Workers’ Compensation Court exercised its discretion and refused to lump sum all the fees. Under Section 39-71-611, MCA, “the standard of reasonableness includes both ‘the amount and kind of fee — lump sum or periodic.’ ” Swan, 726 P.2d at 1172 (quoting Conway v. Blackfeet Indian Developers, Inc. (Mont. 1985), [217 Mont. 54,] 702 P.2d 970, 973, 42 St.Rep. 1020, 1022.) This was the law at the time of the injury in both cases, and whether or not the Workers’ Compensation Court acted unreasonably in granting a lump sum award in Garlitz cannot be reviewed in this decision. However, as stated in Swan, if the lower court denies a lump sum fee request on the basis that claimant seeks a percentage of benefits claimant may never receive, we will not overturn the decision as unreasonable. Swan, 726 P.2d at 1173. Claimant here seeks fees derived from benefits she will not receive if she remarries or dies. Thus, the refusal to grant fees in a lump sum beyond two years was reasonable, and we affirm on this issue.

ISSUE 4: Section 39-71-611, MCA, provides for the assessment of reasonable costs against the insurer as well as attorney fees. In this case, claimant hired an economist to discount her attorney fees to present value. However, the lower court’s decision to deny the lump sum request negated the need for the present value calculations, and the discounted fee was neither presented nor considered. Thus, in assessing insurer’s liability, the lower court concluded that the discounting costs were unrelated to the issues. We find that determination reasonable.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER, SHEEHY, GULBRANDSON and HUNT concur.


author: MR. JUSTICE WEBER

text:
    JACK PAULSON and Bud Grant, Plaintiffs and Appellants, v. ROBERT J. LEE and Dorothy Marie Lee, husband and wife, Louis Crohn and Irene Crohn, husband and wife, Elmer Sprunger and Marie Sprunger, husband and wife, and Robert Keller, Defendants and Respondents.
    No. 87-156.
    Submitted on Briefs Aug. 13, 1987.
    Decided Nov. 10, 1987.
    745 P.2d 359.

      Richard DeJana, Kalispell, for plaintiffs and appellants.
    Keller & German, Roberts S. Keller, Kalispell, for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

In this action for slander of title, the District Court for the Eleventh Judicial District, Flathead County, granted the defendants a directed verdict. Plaintiffs Paulson and Grant appealed, and the defendants cross-appealed. Our determination of the cross-appeal renders consideration of the other issues unnecessary. We vacate the judgment of the District Court which granted a directed verdict and direct the District Court to enter summary judgment for the defendants.

The issues are:

1. Did the District Court err when it ruled that the judge’s order in Lee was the law of this case?

2. Does an action to stop the construction, sale, or lease of a four-unit dwelling affect the title or right of possession of real property within the meaning of Section 70-19-102, MCA?

3. Did the District Court err when it denied the defense of privilege in filing notice of the pendency of the action (lis pendens)?

With the exception of Mr. Keller, all parties to the present case also were parties to the case of Lee v. Flathead County (Mont. 1985), [217 Mont. 370,] 704 P.2d 1060, 42 St.Rep. 1258. In Lee Mr. Paulson and Mr. Grant were involved in the construction of a four-unit structure in a neighborhood where the Lees, the Crohns, and the Sprungers all lived. Mr. and Mrs. Sprunger lived adjacent to the construction. The neighbors became concerned about the construction project and hired Mr. Keller as their lawyer. Mr. Keller prepared a complaint which alleged that the building was being constructed in violation of subdivision regulations. In count one the complaint requested mandamus to compel county officials to “enforce the prohibition against sale, lease or transfer of any unit of said building.” In addition the complaint sought to enjoin construction and to enjoin county officials from granting subdivision approval. We are concerned here only with count one. At the time of filing the complaint in Lee, Mr. Keller filed a notice of lis pendens. The District Court then granted summary judgment to the defendants in Lee as to count one. As a part of that judgment the court concluded that the notice of lis pendens was improperly filed and •ordered it removed. Subsequent to that summary judgment and prior to our decision on appeal, the legislature amended Section 76-3-204, MCA. In the appeal of Lee, this Court held that the amendment controlled and that Paulson and Grant no longer were required to comply with subdivision regulations. We therefore affirmed the summary judgment of the District Court as to count one and affirmed the removal of the lis pendens.

Mr. Paulson and Mr. Grant, defendants in the first action, then brought this action for slander of title. They sought damages caused by the filing of the notice of lis pendens. The defendants moved for summary judgment on the grounds that the publication of lis pendens was privileged. The District Court, in an order dated March 6, T987, denied summary judgment.

During the trial, after the plaintiffs had called various witnesses, the defendants moved for a directed verdict. The District Court granted a directed verdict for the defendants because of the failure of the plaintiffs to establish direct evidence of malice, an essential element in a slander of title action. Plaintiffs Paulson and Grant appeal. Defendants cross-appeal, contending that the District Court’s refusal to grant summary judgment was error.

I

Did the District Court err when it ruled that the judge’s order in Lee was the law of this case?

In a memorandum supporting the March 6, 1987, order denying defendants’ motion for summary judgment, the District Court noted that the trial court in the previous case of Lee found that the lis pendens was not privileged because it had been improperly filed. The District Court in the present case then concluded that such prior determination by the District Court in Lee became the “law of the case” so that the issue could not be relitigated.

In this Court’s opinion in Lee, 704 P.2d at 1063, we stated:

“The appellants also argue that the trial court erred in granting the respondents’ motion to remove the notice of lis pendens. The trial court found that the lis pendens was improperly filed. In view of our decision on the first issue, we affirm the removal of lis pendens.”

Our decision was based upon a statute enacted after the District Court decision. Because of that statute, the notice of lis pendens properly was removed. However, we did not rule on whether the notice was properly filed originally. Our decision on appeal was an affirmation of the result with regard to the lis pendens but not an affirmation of the reasoning of the District Court. As a result, the conclusion of the District Court that the notice was improperly filed no longer remained the law of the case. Our decision on appeal became the law of the case. We conclude that the District Court erred when it held that the trial judge’s order in Lee was the law of the present case with regard to the improper filing of the notice of lis pendens.

II

Does an action to stop the construction, sale, or lease of a four-unit dwelling affect the title or right of possession of real property within the meaning of Section 70-19-102, MCA?

Section 70-19-102, MCA, reads:

“(1) In an action affecting the title or right of possession of real property . . . the plaintiff . . . and the defendant . . . may file in the office of the clerk and recorder of the county in which the property is situated a notice of the pendency of the action containing the names of the parties and the object of the action or defense and a description of the property in that county affected thereby.
“(2) From the time of filing of such notice only shall a purchaser or encumbrancer of the property affected thereby be deemed to have constructive notice of the pendency of the action and only of its pendency against parties designated by their real names.”

Plaintiffs urge this Court to rule that the party filing a notice of lis pendens must claim a right to the title or possession of the subject property.

The language of the statute, however, does not suggest such a strict application, but, rather, demands only that the action affect title or right of possession of real property. We believe this nonrestrictive view reflects the purpose of the notice. As evident by Subsection (2) of Section 70-19-102, MCA, one vital purpose of the notice is to notify subsequent purchasers and encumbrancers of pending litigation. This provision protects the claimant should the claimant receive a favorable judgment. This was a principal concern for the defendants when they filed the 1984 action. A second purpose of the notice is to alert third parties interested in the subject property, thereby protecting them from litigation attendant to the property. See Fox v. Clarys (Mont. 1987), [227 Mont. 194,] 738 P.2d 104, 106, 44 St.Rep. 1004, 1007. We hold that the defendants were not required to show an actual claim to title or possession of the subject property.

Even though the plaintiffs in Lee asserted no claim to the property, they asked generally for an injunction against the construction, sale, or lease of the property. Had the District Court ordered such an injunction, certainly the title and right of possession would have been affected.

The plaintiffs in Lee sought to enforce the subdivision regulations which would have placed certain building restrictions on the structure being constructed. Thus, the regulations would place a limitation on the owners’ right to build on their property. The Colorado Supreme Court construed a substantially similar notice statute in Hammersley v. District Court (1980), 199 Colo. 442, 610 P.2d 94. The plaintiff in that case brought an action against an adjacent landowner and sought to enforce protective covenants which limited construction within the subdivision. He also filed notice of lis pendens. After discussing the policy supporting lis pendens historically, the court went on to determine whether the notice was authorized in that particular situation as “affecting the title to real property.”

“The instant case involves the extent of limitations on the rights of an owner of a lot in a subdivision to construct a residence on that property. Those rights are incidents of the owner’s title. Although the present litigation does not seek to change ownership in any way, it does involve a determination of certain rights incident to ownership and in that sense affects title to real property. It will promote the finality of litigation and economy of judicial resources, will harm no legitimate interest of the owner, and will be fully consistent with the language of C.R.C.P.105(f) to hold that the instant case is one affecting title to real property within the meaning of that rule. We adopt that construction.”

Hammersley, 610 P.2d at 96-97. We adopt that construction as well and conclude that the relief which the defendants sought would have affected title or right of possession of the subject property. Therefore, under the facts of this case, we hold that the notice of lis pendens was authorized by Section 70-19-102, MCA.

Ill

Did the District Court err when it denied the defense of privilege in filing notice of the pendency of the action (lis pendens)?

The District Court in its order and rationale stated,

“[I]t is the rule of this case that where the underlying action does not affect title or possession, as opposed to use, of real property a lis pendens is not permitted by statute and is not privileged. Were this not the rule, a groundless lis pendens could be filed with impunity in a simple money judgment action or in any action where title to or right to possession of [the property] is not actually affected.”

As we have already stated, however, the underlying action did affect title to or possession of the subject property, thus the notice was permitted. Because the notice was authorized, it was privileged and not subject to a slander of title action. See Hauptman v. Edwards,Inc. (1976), 170 Mont. 310, 317, 553 P.2d 975, 979; Albertson v. Raboff (1956), 46 Cal.2d 375, 295 P.2d 405, 409. We hold that the District Court improperly denied the defense of privilege in filing the notice of lis pendens.

We vacate the judgment of the District Court which granted a directed verdict, and we reverse the District Court’s denial of the defendants’ motion for summary judgment. We direct entry of summary judgment for the defendants.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY, HUNT, GULBRANDSON and McDONOUGH concur.


author: MR. JUSTICE McDONOUGH HON. RUSSELL K. FILLNER, District Judge,

text:
    TERRY L. STIDHAM and Norma Stidham, husband and wife, Plaintiffs and Respondents, v. CITY OF WHITEFISH, Montana, Defendant, Appellant and Respondent. CITY OF WHITEFISH, Montana, Defendant, Third-Party Plaintiff, Appellant and Respondent, v. MORRISONMAIERLE, INC., Third Party Defendant and Appellant.
    No. 87-14.
    Submitted June 30, 1987.
    Decided Nov. 13, 1987.
    Rehearings Denied Jan. 5, 1987.
    746 P.2d 591.

      Keller, Reynolds, Drake, Sternhagen & Johnson, Thomas Q. Johnson argued, Helena, for Morrison-Maierle.
    Moses Law Firm, Stephen C. Moses argued, Billings, for Stidham.
    Leo W. Tracy argued, Whitefish, for City of Whitefish, Mont.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

Morrison-Maierle, Inc., and the City of Whitefish appeal a judgment in favor of plaintiffs, filed and entered in the District Court of the Eleventh Judicial District, County of Flathead. We set aside the judgment and remand.

This case originated as an action in trespass by plaintiffs and respondents (Stidhams) against the City of Whitefish. The City filed a third-party complaint against Morrison-Maierle, Inc. The City built a water pumphouse with inlet pipes on Lot 4 located on the edge of Whitefish Lake. The property was leased from Burlington-Northern, Inc. Morrison contracted with the City to provide the engineering services for the pumphouse project. Stidhams claimed that part of the pumphouse was actually built on a part of Lot 5 which is owned by them. The City denied that the pumphouse was built on Lot 5 and if it was, Morrison, as the engineer, was responsible for the error. Morrison also denied that the pumphouse was located on Lot 5 and denied that they had the responsibility to properly locate the pumphouse.

The District Court on its own motion bifurcated the case ordering that the first trial concern only the boundary line issue. The parties stipulated that the balance of the issues, including the question of the City’s and Morrison’s defense of estoppel and laches, would be tried at the second trial. At the first trial the court found that Stidhams were relying on the correct boundary, and pursuant to a motion for summary judgment found that Morrison, and not the City, was responsible for any damages caused by the location of the pumphouse. Morrison made appropriate motions relative to such findings and conclusions which were denied. Morrison then asked for certification of such findings and conclusions as final which the court refused to do.

The case was set for the second trial and was determined to be an inverse condemnation case on motion of the City and Morrison. The court pursuant to Stidham’s motion ruled that the defenses of laches and estoppel were incompatible with the theory of inverse condemnation and struck the defenses. A jury trial was held and a verdict of $61,000 had in favor of plaintiff. After the usual motions, which were denied, appeal was taken by Morrison and the City from the judgment.

The issues for review are:

1. Whether the City reserved its right to appeal the boundary line and ownership issue and the estoppel and laches issue?

2. Whether Morrison can properly appeal the boundary line and ownership issue, the estoppel and laches issue, and the certification issue?

3. Whether the District Court’s findings of fact and conclusions of law relative to the location of the boundary line were clearly erroneous and not supported by substantial credible evidence?

4. Whether the District Court erred in striking the defenses of laches and estoppel?

5. Did the District Court err in granting judgment to the City and against Morrison regarding their relationship and responsibility?

6. Did the District Court err in not certifying its findings of fact and conclusions of law as final and thereby allowing this matter to go up on appeal following the first phase of the trial and in advance of the second?

As to issues 1 and 2, the City, although they did not present any witnesses of their own at the first trial, through the pleadings, pre-trial order, proposed findings of fact and conclusions took the same position as the proposed contentions, findings and conclusions of Morrison. The City appealed in its notice the issues involved. Throughout the trial, the City actively contested Stidham’s boundary contention and asserted its contention of laches and estoppel. Thus, the City may appeal these issues.

Neither is Morrison precluded from appealing its boundary line and ownership issue, the laches and estoppel issue, and certification. Stidhams proposed that Morrison was not a real party in interest to the boundary line and ownership dispute or the laches and estoppel issue, but was only involved as a third party defendant with the issues of its contract with the City. Throughout the record, Morrison actively opposed Stidhams’ contentions and supported its own contentions relative to these matters. Stidhams made no objection in the lower court to Morrison as a party, and they are barred from raising it on appeal. In view of the District Court ruling that Morrison was responsible for any and all damages recovered by Stidhams against the City, Morrison was a real party in interest.

The District Court’s decision as to issue No. 3 is affirmed in part and reversed in part. Lot 4 is a government subdivision with a meander line bordering on Whitefish Lake. Instead of the usual 40 acres it contains only 39.95 acres. The remaining .05 of an acre of Lot 4 is in the lake if the boundary lines were to be extended into the lake to make a full 40 acre governmental subdivision. The original government survey cut off a small portion of the northeast corner and surveyed a meander line along the shore of the lake. See following plat.

The parties dispute the location of the line dividing Lots 4 and 5. None of the original government monuments material to this case were found by the surveyors. Nor were there any government monuments found which could be used as reference points.

The west line of Lot 5 (also the east line of Lot 4), as proposed by Stidhams, would run through the middle of the pumphouse. Morrison and the City proposed a line which located the pumphouse and inlet pipe entirely within Lot 4, which is controlled by the City. Expert opinion and other competent and relevant evidence was offered by both sides as to their respective positions. The District Court in its findings of fact found the Stidham line to be the correct line. The court’s determination is not clearly erroneous and is supported by substantial credible evidence. We will not disturb its findings.

Morrison and the City contend the Stidham land, according to the description in the deeds from Stidham’s predecessors, extends to Morrison’s and the City’s proposed west line of Lot 5. This is true according to Morrison and the City because by computing the courses and the distances of the southern boundary (railway’s northeast right-of-way boundary) along the track center line reference points of the railway, as provided for in the deed, it can only lead to the conclusion that their line is correct. The description to which they refer commences as follows:

“All that part of Lots Five (5) and Six (6) of Section Twenty-six (26) Township Thirty-one (31) North, Range Twenty-two (22) West of the Montana principal meridian, lying North of the following described boundary:
“Beginning at a point in the West line of said Lot Five (5) One Hundred (100) feet distant Northeasterly, measured at right angles, from the center line of said main track of said railway, as now located and constructed; thence Southeasterly parallel with said center line ...”

However, the land described by this wording is the land bounded on the west by the west line of Lot 5 for it begins “at a point in the west line” of Lot 5. The west line of Stidhams’ land described in the deeds is the true west line of Lot 5 wherever it may be on the ground. The court is aware that by basing the south boundary of the tract on a course and distance description using the Stidhams’ west line as the true line leaves a gap in the south line between Stidhams’ west line of Lot 5 and the east line of Lot 6 (the end of the description). However, the description states the beginning point of the south boundary is on the west line of Lot 5, wherever it may be located, and the south boundary ends on the east line of Lot 6. The location of the south boundary is not at issue. The reference to these boundary lines takes precedence over the course and distances which might be described in between as contended by the City and Morrison. See Section 70-20-201, MCA.

However, the District Court erred in establishing the disputed boundary between the shoreline as shown in the original survey and the shoreline as it is today. The finding assumes that the west line of Lot 5 continues on the same course north from the meander corner as produced to its intersection with the north lot line of Lot 4 as it is produced eastward. This is incorrect. It is only the true line to its intersection with the low water line of the lake at the time of the original survey, which is referenced by the meander corner on said west line. Some of Stidhams’ plats introduced in evidence show only a minute corner of such lines produced and put the north line of Lot 4 and the west line of Lot 5 (east line of Lot 4) barely in the lake and such minute portion is only a small fraction of the .05 of an acre as shown to be in the lake in the original government plat. Some of the Stidhams’ plats actually show such produced corner to be on land and they argue in their briefs that such corner is on land.

Since the District Court adopted the Stidham proposed line as the west line of Lot 5, it must also he concluded that what would be the northeast corner of Lot 4 if boundary lines are produced is on land or barely in the lake, and thus the lake has receded. The location of corners and lines established by the government survey is conclusive and the true corners are where the United States surveyors in fact established them. Stephens v. Hurly (1977), 172 Mont. 269, 563 P.2d 546.

If the triangular area of .05 of an acre in the water cut off of the 40 acre tract in the original government survey of Lot 4, would have equal sides of 66 feet, the length of the meander line of Lot 4 would be 93 feet more or less, and the length could vary slightly depending on separate lengths of the other two sides of the triangle. The original government field notes should have the correct length of the meander line. In other words, we have a meander line of Lot 4 of roughly 93 feet of shoreline. Under the Stidhams’ line there is very little shoreline if any, adjacent to Lot 4. Therefore the lake has receded. By what means it has receded the record does not disclose.

On the receding or reliction of a lake the law does not extend the original boundary lines on the same courses and directions they were on land, which has been done here. A riparian owner has the right of access to the water and his access cannot be destroyed by the changing of the level of the water by gradual recession. He has the right to preserve his contact with the water by appropriating the accretions of the land exposed by reliction which form along the shore. Land formed by accretion or reliction becomes part of the shore and the riparian owner acquires title to the water. See 78 Am. Jur. 2nd Waters Section 418 (1975); J. Grimes, Clark on Surveying and Boundaries Section 573 (4th ed. 1976); 2 R. Patton & C. Patton, Patton on Titles Section 300 (2d ed. 1938). He has a share in the land left exposed by the receding of the lake.

The general principle which governs how the relicted exposed shoreline is divided between the lot owners on the lake is any division of the relicted land shall be equitable and shall be proportional so far as to give each shore owner a share of the land to be divided relative to his portion of the original shoreline. See 2 R. Patton & C. Patton, Patton on Titles Section 302 (2d ed. 1938); 3 H. Farnham, The Law of Waters and Water Rights Section 841 (1904); 78 Am. Jur. 2d Waters Section 422-25 (1975). For an example of how this principle could apply to this case, see following plat:

To draw this boundary line the starting points are at the meander corners as per the original government survey. In this case the corners are located, one, on the north line of Lot 4 and two, on the east line of Lot 4, which is the same as the west line of Lot 5. If a lake is round and not jagged these lines are usually extended from the meander points to an imaginary point in the center of the lake or a cove of the lake. If the lake is long and narrow and somewhat jagged, the lines could be extended from the meander corners to an imaginary base line running the long way of the lake along the center of the lake and at right angles to the base line.

In this case, the boundary drawn by the District Court ignores the reliction rule. Instead of drawing the lines so that Lot 4 would retain a proportionate share of lake front, the lines are continued on their original path. The result is loss of shoreline for Lot 4 and a violation of the rule. To correct this error, the lines should be drawn in a northeasterly direction instead of a northerly direction starting from the point where the lines intersect the original shoreline. The plat above shows the possible boundary lines in the relicted portion. J. Grimes, Clark on Surveying and Boundaries Section 573-75 (4th ed. 1976); 2 R. Patton & C. Patton, Patton on Titles Section 302 (2d ed. 1938); 3 H. Farnham, The Law of Waters and Water Rights Sections 841-43 (1904). See also Karterud v. Karterud (1923) 47 S.D. 58, 195 N.W. 972; Scheifert v. Briegel (1903), 90 Minn. 125, 96 N.W. 44; Kapp v. Hansen (1961), 79 S.D. 279, 111 N.W.2d 333.

Therefore, the west boundary of Lot 5 (east boundary of Lot 4) north of the meander corner has not been properly established. That leaves open the possibility that the pumphouse lies entirely within Lot 4, and a portion of what now is thought to be part of Lot 5 is actually controlled by the City as part of Lot 4.

We therefore vacate the judgment in this action and remand to the District Court for a proper survey of the boundary line between Lots 4 and 5 north and east of the common meander corner in the relicted portion of the lake pertaining to these lots. Even if a portion of the pumphouse would still be within Lot 5, a different shape and size of land would be taken by the inverse condemnation. A survey to establish the location of the west lot line of Lot 5 north of the common meander corner with Lot 4 should be done in accordance with the principles of law as above set forth.

To assist the court in future actions taken by it pertaining to this case we will discuss issues 4 and 5 raised by the appeal. Issue 6 by virtue of this opinion is moot.

Did the District Court err in striking Morrison’s and the City’s defenses of laches and estoppel? No. The City and Morrison by motion which was granted by the court, converted this action to one of inverse condemnation. Their defenses of estoppel and laches were then inappropriate and had no application.

Issue number 5 is whether or not the Court erred in granting summary judgment in favor of the City and against Morrison regarding their relationship. The City moved for summary judgment contending that co-defendant Morrison was solely liable for any wrong committed in locating the pumphouse and inlet pipes. The motion was filed, briefed, argued and submitted. The Court did not rule on it before the first trial. However, after the first trial the court ruled in its findings of fact and conclusions of law that Morrison was solely liable. The parties had previously stipulated that their relationship would not be an issue at the first trial, and did not present evidence directed toward this issue. There is a contested question of fact of who between the City and Morrison had the responsibility for and who did actually locate the site for the pumphouse. The order is in error and such order granting the motion for summary judgment is vacated.

The verdict and judgment are vacated and the case is remanded for further proceedings in accordance with this opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, SHEEHY, GULBRANDSON and HUNT concur.

HON. RUSSELL K. FILLNER, District Judge,

sitting for MR. JUSTICE HARRISON, dissenting:

I dissent. “The world will little note nor long remember” what I write here. Nevertheless, I will set forth briefly my reasons for not being able to concur with the majority opinion, as follows:

The majority holds that the trial Judge committed plain error (clearly erroneous) because he failed to find that Whitefish Lake receded! The majority “is asking for clairvoyance not even possessed by a trial judge.” (Justice John Harrison’s opinion in Naegeli v. Daniels, 145 Mont. 323, 400 P.2d 896, at 898.) Was there any evidence produced at the trial showing that Whitefish Lake receded? No. Neither was the issue raised in the trial court, nor even in this court. The majority opinion holds that the trial judge’s finding that the Stidham line is the correct boundary line between Lots 4 and 5 is supported by substantial and credible evidence; and therefore, the findings will not be disturbed. The majority then states that “it must also be concluded that what would be the northeast corner of Lot 4 if boundary lines are produced, is on land or barely in the lake, and thus the lake has receded.” The majority then attempts to support this conclusion by indulging in assumptions that the .05 of an acre in the original government survey:

“would have equal sides of 66 feet, the length of the meander line of Lot 4 would be 93 feet more or less, and the length could vary slightly depending on separate lengths of the other two sides of the triangle. The original government field notes should have the correct length of the meander line.” (Emphasis supplied.)

The point is that this is not part of the record, although it should have been. While at first blush, the majority’s conclusion that Whitefish Lake has receded may appear to be logical, if we assume that the Stidham survey is absolutely correct, but that is not the only logical conclusion. It is just as logical to assume that the shore of the lake in this area was pushed upward. How or by what means I am no more able to say than the majority can state by what means the lake has receded. Furthermore, even if the lake has receded, it is obvious that Morrison-Maierle must have been aware of the need for another survey to supplement the Stidham survey prior to trial. If the trial judge is in plain error for not recognizing the need for such additional survey, what excuse does Morrison-Maierle have? It certainly possesses the requisite engineering and surveying knowledge, resources and ability to have determined the proper boundary line under the equitable principles governing relicted exposed shorelines. Having failed to do so, it is hardly entitled to another bite at the apple. Morrison-Maierle elected to rely on the defense that Stidham didn’t own the property and that the GN survey was the correct one.

The problem here is that neither party located the corners or lines, and particularly this boundary line, by reference to government surveys or monuments. At oral argument, the Defendant, MorrisonMaierle, stated that it now knew where the true line was and would like to have an opportunity to prove it. If it has, in fact, gone back to some government monument and proceeded with its survey from that point, it may very well be that the line is otherwise than established by the Stidham survey. However, it had that opportunity at the trial level. The point being that none of the parties are contending that Whitefish Lake has receded or that the principles of reliction should apply in this case. Perhaps I can best bring into focus what I’m trying to say by this scenario:

Under the majority opinion as I read it, this case will be remanded to the District Court for the parties (which one is unclear) to make a survey based on the principles of reliction so that Lot 4 will have its same share of the shoreline as before the lake receded. So assume that is dutifully accomplished. This may or may not result in changing the boundary as regards the pumphouse. Now then, be it remembered that this boundary line is the boundary between lands owned by the Burlington Northern Railroad and the Plaintiffs (Stidham). The Burlington Northern Railroad is not a party to this suit. So then, the Burlington Northern Railroad, being unsatisfied with the Stidham survey, brings suit to establish the boundary line between Lots 4 and 5. It conducts a survey based on government monuments and, lo and behold, such survey establishes the line east of the Stidham line and, presto, Whitefish Lake has not receded after all. So what happens then? But even if the Burlington Northern should not bring suit, what will be the effect of this case on other boundary lines — past, present and future — on the shores of Whitefish Lake, if the level of Whitefish Lake has not receded as the court states it must have done? Finally, it is fortunate that Montana is not a coastal state when one contemplates the world-wide ramifications of such a decision on the shorelines of the Atlantic or Pacific Oceans.

I hope that it is obvious from what I have herein said that we simply do not know whether the Stidham line is absolutely the correct line. All that we can say is as the majority has stated, that the Court’s determination is clearly not erroneous and is supported by substantial credible evidence. Justice Morrison, speaking for an unanimous court, in Rose v. Rose, 201 Mont. 86, 651 P.2d 1018, said:

“The proper function of the trial court is to assess the evidence, ascertain the witnesses’ credibility and render its findings based upon substantial credible evidence. If that is accomplished, this Court cannot overturn its decision. Crabtree v. Crabtree, (1982), 200 Mont. 178, 651 P.2d 29, 30 St.Rep. 1668.”

The trial Court’s determination, being supported by substantial credible evidence, should be affirmed.

I agree with the majority’s conclusion that the District Court did not err in striking Morrison’s and the City’s defenses of laches and estoppel. As to Issue No. 5, I would affirm the granting of the City’s motion for summary judgment. The motion was filed, briefed, argued and submitted as the majority found. While it is true that the trial court did not rule on it before the first trial, it did make its ruling thereafter. The majority just makes the conclusionary statement that “there is a contested question of fact of who between the City and Morrison had the responsibility for and who did actually locate the site .for the pumphouse.” The only “contested” facts presented by the Defendant, Morrison-Maierle, in that regard are that an Alderman of the City of Whitefish took one of MorrisonMaierle’s employees to the site, suggesting that it might be an appropriate place for the pumphouse and that its contract with the City does not require it to do any survey work without additional compensation therefor. Those facts really aren’t contested, but it is undisputed that the City leased Lot 4 from Burlington Northern for the purpose of locating the pumphouse thereon. Morrison-Maierle contracted to put the pumphouse on Lot 4. It relied upon an old survey done by the Great Northern Railway, predecessor in interest to the Burlington Northern Railroad. It’s reliance on that line was obviously misplaced. That did not change its responsibility to have placed the pumphouse as agreed in its contract with the City on Lot 4. This it failed to do. Accordingly, I would affirm the District Court’s verdict and judgment in this case.

In conclusion, I am convinced that the majority’s opinion is motivated by a search for truth, but what is truth? I rather believe that a lawsuit is a search for justice under the law. In that regard, see the remarks made by David Elderkin, a Cedar Rapids attorney for 50 years, published in the Montana Lawyer, October 1987, page 16, where he states that the claim that a lawsuit is a search for truth is nonsense. “While we must proceed by truthful means, a lawsuit is a search for justice and a timely, inexpensive system of dispute resolution is a real part of justice.”

Here this case is being remanded to the parties to engage in further time-consuming and expensive surveying that none of the parties believe is necessary or warranted, which, instead of discovering the truth, will only serve to obfuscate it.

        FOOTNOTES

      . Abraham Lincoln, Gettysburg Address

      . In light of a majority opinion in this case, the Legislature might want to take a look at enacting legislation that would require any surveying that involves shorelines on lakes and bodies of water in Montana be made with reference to government monuments, or that such survey, if based on a prior survey, that such prior survey be shown to have been based on government monuments. Any plat or survey not meeting such requirements could not be filed of record, nor used in evidence.

      . Although it should be. See Rule 19(a) and 21, M.R.Civ.P.


author: MR. JUSTICE SHEEHY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. PAUL SEYBERT and Denise “Dusty” Rogers Seybert, Defendants, v. AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA, Appellant.
    No. 87-342.
    Submitted on Briefs Oct. 16, 1987.
    Decided Nov. 19, 1987.
    745 P.2d 687.

      Brad L. Belke, Butte, for appellant.
    Mike Greely, Atty. Gen., Betsy Brandborg, Asst. Atty. Gen., Helena, Loren Tucker,. Co. Atty., Virginia City, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Appellant American Bankers Insurance Company of Florida (American) appeals the judgment of the District Court of the Fifth Judicial District, Madison County, partially forfeiting the Seyberts’ bond for failure to appear. We reverse.

The issue before the Court is whether the forfeiture constituted a clear abuse of discretion.

The Seyberts were arrested in connection with two burglaries of McAlear’s Pharmacy and Store in Twin Bridges. The District Court eventually set bail in the amount of $7,000 for Paul Seybert and $2,500 for Denise Seybert. Bail was subsequently posted by American, through its agent, Charles Condo. Condo had posted bail on behalf of the Seyberts on prior occasions without mishap.

An omnibus hearing was set by the court for March 24, 1987. The Seyberts were ordered to personally appear at that time. They failed to do so, however. On March 31,1987, the court ordered total forfeiture of the Seybert’s bond.

Following the Seyberts’ failure to appear, Condo immediately began efforts to locate them. He eventually discovered that the Seybert’s had been in federal custody in Salt Lake City, Utah, at the time of the omnibus hearing. Counsel for American explained that: “While released on bail, they went traveling, apparently went down to Mexico and got married. And on the way back, in Salt Lake, decided to increase the funds available to them and robbed a bank in Salt Lake City somewhere.”

On April 10, 1987, American moved to set aside the forfeiture order on the grounds that the Seyberts’ arrest and detention by federal authorities was a satisfactory excuse for the Seyberts’ failure to appear and that American was without remedy to secure the Seyberts’ appearance in Montana. Following a hearing on the matter, the District Court ordered the forfeiture of 75% of the bail “as adequate [compensation] . . . for all costs incurred in the prosecution of the action against the Defendants.” The transcript does not reveal, nor does the order specify, the costs incurred by the state, however.

The primary purpose of bail in a criminal case is to honor the presumption of innocence and to allow a defendant to prepare his case, while insuring the defendant’s presence in the pending proceeding. The forfeiture of bail is a device designed to insure the defendant’s presence. United States v. Skipper (5th Cir. 1981), 633 F.2d 1177. If a defendant fails to appear, the entire amount of bail shall be forfeited. Section 46-9-503, MCA, provides, in pertinent part:

“Conditions not performed forfeiture.
(1) If the accused does not comply with the conditions of the bail bond, the court having jurisdiction shall enter an order declaring the bail to be forfeited.
“(3) If at any time within 30 days after the forfeiture the defendant or his bail appear and satisfactorily excuse his negligence or failure to comply with the conditions of the bail, the court, in its discretion, may direct the forfeiture of the bail to be discharged upon such terms as may be just.”

Consistent with the purpose of insuring a defendant’s presence, Subsection (3) of Section 46-9-503, MCA, mitigates the harshness of strict forfeiture in situations of excusable negligence or failure to comply with the terms of bail. However, the defendant or surety has the burden of demonstrating a “satisfactory excuse” before any discharge may be ordered. State v. Musgrove (1983), 202 Mont. 516, 519, 659 P.2d 285, 287 (Musgrove II).

In the instant case, American contends that the Seyberts’ arrest and detention by federal authorities is a “satisfactory excuse” which suspends the surety’s responsibility except for actual costs incurred in returning the Seyberts’ to Montana. We disagree. The Seyberts’ incarceration in Utah, which prevented their appearance, is a direct result of their own criminal acts. They cannot avail themselves of their own wrong to escape the accounting with the State. See State v. Nelson (1968), 20 Utah 2d 229, 436 P.2d 792; State v. Superior Court (1965), 2 Ariz. App. 262, 407 P.2d 943. Nor can the surety avail itself of an excuse not available to the defendants. We hold that incarceration by a foreign sovereign is not per se a satisfactory excuse.

However, the statute does not require a complete, as opposed to partial, excuse. Musgrove II, 202 Mont. at 520, 659 P.2d at 287. The Seyberts’ incarceration is a factor for the District Court to consider in determining discharge on such terms as may be just.

American also contends that the State has a duty to seek the Seyberts’ return to Montana. We disagree. “The state is not the surety’s surety.” Umatilla County v. Resolute Insurance Co. (1972), 8 Or.App. 318, 493 P.2d 731, 733. Consequently, the State does not have a duty to remedy the surety’s breach of contract, The State need only refrain from obstructing or interfering with the surety’s efforts. Here, the State’s refusal to seek extradition did not interfere with the surety’s obligation. State v. Honey (1957), 165 Nev. 494, 86 N.W.2d 187. The Seyberts’ compliance with the conditions of bail is solely the responsibility of American. We hold the State’s failure to seek extradition does not excuse the surety’s liability.

Finally, it is alleged that the District Court improperly failed to make specific findings as to actual costs incurred. American wrongly assumes that an order of forfeiture can only be supported by evidence of actual damage. The statute does not limit the court’s discretion to actual damages.

“The statute directs the court to order discharge ‘upon such terms as may be just.’ In making this determination the court should consider not only evidence relating to damage but also the other factors and circumstances peculiar to each case. As one court stated:

“ ‘[n]o clear rule can be set down which will guide the trial court in every case since the facts and circumstances of each individual case must be considered in their totality. No one factor will be determinative in all cases.’ Owens v. People (1977), 194 Colo. 389, 572 P.2d 837, 838.”

Musgrove II, 202 Mont. at 522, 659 P.2d at 288.

However, “it is not the purpose of bail to punish a defendant or surety, nor to increase the revenue of the state.” State v. Musgrove (1980), 187 Mont. 549, 553, 610 P.2d 710, 712 (Musgrove I). Under the facts and circumstances of this case, we find the excessive forfeiture constituted an abuse of discretion. We therefore reverse and remand.

On remand, the District Court is not strictly limited to a dollar-for-dollar assessment of the State’s loss. When examining the facts and circumstances of this case, the court should consider, among other factors:

1. The willfulness of the defendants’ violation of bail conditions;

2. The surety’s participation in locating or apprehending the defendants;

3. The cost, inconvenience, and prejudice suffered by the State as a result of the violation;

4. Any intangible costs;

5. The public interest in ensuring a defendant’s appearance; and,

6. Any mitigating factors.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, GULBRANDSON and HUNT concur.


text:
    RAYLYNN LAUDERDALE, Claimant and Respondent, v. MONTANA DEPARTMENT OF AGRICULTURE, Employer, and State Compensation Insurance Fund, Defendant and Appellant.
    No. 87-158.
    Submitted on Briefs Sept. 10, 1987.
    Decided Nov. 19, 1987.
    745 P.2d 690.

      Hughes, Kellner, Sullivan & Alke, Thomas E. Martello, Helena, for defendant and appellant.
    Utick & Grosfield, Norman Grosfield, Helena, for claimant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The State Compensation Insurance Fund (State Fund) appeals the decision of the Workers’ Compensation Court awarding Ms. Lauder-dale 500 weeks of permanent partial disability benefits in a lump sum. We affirm.

The issues are:

1. Did the Workers’ Compensation Court err in determining that Ms. Lauderdale’s headaches were related to her automobile accident?

2. Did the court err in determining that Ms. Lauderdale suffered a loss of earning capacity entitling her to 500 weeks of permanent partial disability benefits?

3. Did the court err in awarding Ms. Lauderdale a lump sum payment of benefits for her proposed business venture?

From August 1983 to July 1986, Raylynn Lauderdale was employed as an administrative assistant for the Montana Department of Agriculture. Her duties originally involved public relations, but she was later given administrative duties as well. In January 1985 Ms. Lauderdale’s car struck a deer while she was driving home to Helena from a work-related meeting in Bozeman. She was able to continue driving home, and saw her doctor the next morning. He took X-rays of her neck, but the X-rays did not disclose any evidence of injury.

Ms. Lauderdale testified that approximately two or three months after the accident, she started to suffer from extreme headaches which were aggravated by leaning over her desk at work. She again sought medical help, first from an acupuncturist and her physician, and later from a physical therapist and a neurologist. She took two months off work in an attempt to correct her headache problem, but ultimately resigned her position in July 1986.

Ms. Lauderdale filed a petition asking the Workers’ Compensation Court for 500 weeks of permanent partial disability benefits to be paid in a lump sum. She proposes to start her own business of professionally planning special events. At the hearing on her petition, the State Fund introduced the deposition testimony of a neurologist who has examined Ms. Lauderdale and who testified that it was improbable that Ms. Lauderdale’s headaches were related to her accident. Ms. Lauderdale’s physician testified by deposition that the headaches did result from the accident. The State Fund also presented testimony that Ms. Lauderdale had failed to apply for a job for which she was qualified and physically able, and which would pay as well as the job she left. It then presented expert testimony that Ms. Lauderdale’s proposed business is too risky a venture. Ms. Lauderdale presented an expert who supported her business proposal.

The Workers’ Compensation Court found for Ms. Lauderdale and gave her a 500 week lump sum award. The State Fund appeals.

I

Did the Workers’ Compensation Court err in determining that Ms. Lauderdale’s headaches were related to her automobile accident?

This Court’s general standard of review of decisions of the Workers’ Compensation Court is whether substantial evidence supports the lower court’s findings and conclusions. Perry v. Tomahawk Transp. (Mont. 1987), [226 Mont. 318,] 735 P.2d 308, 310, 44 St.Rep. 686, 688. Where medical testimony is entered solely through depositions, this Court may determine the weight to be given the evidence. Lamb v. Missoula Imports, Inc. (Mont. 1984), [211 Mont. 360,] 684 P.2d 498, 499-500, 41 St.Rep. 1414, 1416. The expert testimony on the etiology of Ms. Lauderdale’s headaches consisted of depositions of two physicians whose opinions conflict. The State Fund argues that the deposition opinion of the neurologist should have been given greater weight than the deposition opinion of Ms. Lauderdale’s treating physician.

Dr. Dwight Hiesterman was Ms. Lauderdale’s treating physician. He testified by deposition that he first saw her for her headaches three months after her automobile accident. He prescribed medication, an exercise program, and physical therapy over the course of his treatment. He also referred her to the neurologist whose opinion is discussed below. Dr. Hiesterman testified by deposition that he concluded Ms. Lauderdale’s headaches were caused by chronic cervical strain which is the result of her work-related automobile accident. His notes indicate that “it is felt by the orthopedist and the osteopath that probably her symptoms began in relationship to the trauma from an automobile accident some time ago. I certainly concur with that.”

Dr. Stephen Johnson, the Missoula neurologist to whom Dr. Hiesterman referred Ms. Lauderdale, testified by deposition that he had examined Ms. Lauderdale once, for approximately thirty minutes. His conclusion was that “I have trouble relating something that began several months after the accident to the accident itself.” He also stated, though, that:

“I would have a little easier time relating . . . radiculopathy [disease of the spinal nerve roots] to the accident instead of headaches, because things can happen immediately to a disk and then it gets out of place after some delay, so that is possible. But again, I don’t have a good way, since I don’t have — didn’t have an examination to review and I wasn’t able to examine her immediately, to know what was going on with that reflex before the accident or right after-wards or even — I didn’t have any follow-up after I saw her, even though I did write to Dr. Hiesterman and said I think this is going to be a difficult management problem. I would be happy to try and help out some more if you would like. We’re talking about one point in time that I saw her and it’s hard for me to make, you know, big judgments on that. I would like to see somebody several times to get a better view of things for that matter.”

Dr. Johnson diagnosed Ms. Lauderdale’s problems as migraine headaches.

In its findings and conclusions, the Workers’ Compensation Court quoted portions of the depositions of both physicians. It concluded that:

“Although Dr. Johnson may, by education and specialization, be slightly more qualified to render an opinion as to claimant’s condition, given the fact that Dr. Hiesterman is claimant’s treating physician and relied not only on his own professional opinion but consulted with several other professionals, the Court finds greater weight in Dr. Hiesterman’s finding. Claimant’s present condition is the result of her industrial accident and her present condition prevented her from working at her job with the Department of Agriculture or any such similar desk-bound position.”

It is clear from the lower court’s findings and conclusions that the court carefully reviewed the deposition testimony of both doctors. Dr. Johnson’s conclusion is less than unequivocal, and he recognized that his opinion was based on limited information. In contrast, Dr. Hiesterman’s opinion is based on his long-term treatment of Ms. Lauderdale. In this context, Dr. Hiesterman’s opinion is not outweighed by Dr. Johnson’s, even in light of Dr. Johnson’s greater qualifications in this area of specialization. This is true even if we discount the opinions of other professionals mentioned in Dr. Hiesterman’s notes, as the State Fund requests. We hold that the lower court properly gave greater weight to the opinion of Ms. Lauderdale’s treating physician, and that the court did not err in determining that Ms. Lauderdale’s headaches were related to her automobile accident.

II

Did the court err in determining that Ms. Lauderdale suffered a loss of earning capacity entitling her to 500 weeks of permanent partial disability benefits?

The lower court found that Ms. Lauderdale had unsuccessfully applied for several positions which would alleviate her physical problems because they involved less desk work. It found that retail sale positions for which Ms. Lauderdale is qualified pay between $3.35 and $3.50 per hour, in contract to the $8.89 per hour which she was earning at her state job. The court found that the rehabilitation counselor who testified for the State Fund was not able to locate appropriate employment for which Ms. Lauderdale was qualified. It concluded that Ms. Lauderdale’s actual loss in earning capacity was $216 per week.

After reviewing the transcript, we conclude that the above findings of the Workers’ Compensation Court have substantial support in the evidence. Ms. Lauderdale testified that she was able to perform desk work for only four hours per day and that she had investigated retail sales opportunities in Helena, with the above-described results. Dr. Hiesterman testified by deposition that desk work would aggravate Ms. Lauderdale’s headache problem. The State Fund’s rehabilitation counselor found only one full-time position which he concluded would be appropriate for Ms. Lauderdale. That position required education and experience equivalent to a bachelor’s degree in journalism, advertising, public administration, broadcasting, public relations, or a closely related area, plus three years of related experience. Ms. Lauderdale does not have a bachelor’s degree, and has been in the workforce for less than ten years. The lower court concluded that the State Fund had failed to overcome Ms. Lauderdale’s showing that she cannot return to the position she held at the time of injury, or to a comparable position. We hold that this conclusion was not error.

Ill

Did the court err in awarding Ms. Lauderdale a lump sum payment of benefits for her proposed business venture?

The statute which governs whether Ms. Lauderdale is entitled to a lump sum conversion is Section 39-71-741, MCA (1983):

“The biweekly payments provided for in this chapter may be converted, in whole or in part, into a lump-sum payment .... A controversy between a claimant and an insurer regarding the conversion of biweekly payments into a lump sum is considered a dispute for which the workers’ compensation judge has jurisdiction to make a determination.”

Conversion of biweekly payments to a lump sum is proper when the best interests of the claimant require it, but lump sum settlements should be the exception rather than the rule. Willoughby v. Arthur G. McGee & Co. (1980), 187 Mont. 253, 256, 609 P.2d 700, 701-02. This Court’s standard of review of lump sum awards is whether the lower court’s decision is supported by substantial evidence. Garmann v. E.R. Fegert Co. (Mont. 1987), [226 Mont. 432,] 736 P.2d 123, 124, 44 St.Rep. 781, 783.

Ms. Lauderdale presented an extensive economic analysis of her proposed event-planning business. Her expert witness testified about the projected market and earnings of the business over its first three years of operation. Ms. Lauderdale testified about the steps she had already taken to get the business off the ground. The Workers’ Compensation Court found her to be “an enthusiastic and determined woman with an obvious drive to succeed and an equally obvious belief that she can succeed in this business.” Her attorney points out that her 500 weeks of permanent partial disability benefits would expire when she was only 40 years of age.

Despite the conclusion by the State Fund’s expert witness that the proposed business venture is highly speculative, substantial evidence supports the lower court’s decision that a lump sum award for the proposed business is in Ms. Lauderdale’s best interest. We conclude that the court did not err in awarding Ms. Lauderdale a lump sum payment of benefits for her proposed business venture.

Affirmed.

MR. JUSTICES HARRISON, GULBRANDSON, HUNT and MCDONOUGH concur.


text:
    JEAN M. WHITFIELD; John F. Whitfield; Anne M. Whitfield; Jean M. Whitfield, as Guardian for Steven C. Whitfield, and Carol E. Whitfield; and the Estate of Harold F. Whitfield, Jr., Deceased, Plaintiffs and Appellants, v. THERRIAULT CORP., a Montana corp., a/k/a/ Therriault Ranch, a/k/a Therriault Creek Ranch; and the State of Montana, Defendants and Respondents. THERRIAULT CORPORATION, a Montana corporation, Defendant and Third-Party Plaintiff, v. THE STATE OF MONTANA, Defendant and Third-Party Defendant.
    No. 87-237.
    Submitted on Briefs Sept. 17, 1987.
    Decided Nov. 19, 1987.
    Rehearing Denied Dec. 15, 1987.
    745 P.2d 1126.

      Warden, Christiansen, Johnson & Berg, Thomas R. Bostock, Kalispell, for plaintiffs and appellants.
    Chris D. Tweeten, Agency Legal Services, Helena, and S.Y. Larrick, Kalispell, for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The District Court for the Nineteenth Judicial District, Lincoln County, dismissed plaintiffs’ claim for wrongful death against the State of Montana (State), and granted the State summary judgment. Plaintiffs appeal. We affirm.

The issue is whether the District Court erred in granting summary judgment in favor of the State.

Harold F. Whitfield, Jr., died on October 29, 1984, as a result of injuries sustained in an automobile accident which occurred on October 23, 1984. The highway patrol accident report indicates that on the morning of the accident, Mr. Whitfield was traveling north on U.S. Highway 93. At approximately 7:30 a.m., he apparently encountered two horses on the roadway about two miles south of Eureka, Montana. Mr. Whitfield’s automobile collided with one of the horses and Mr. Whitfield was fatally injured.

Mr. Whitfield’s wife and children brought this wrongful death action against the party alleged responsible for the loose horses, Therriault Corporation (Therriault). Plaintiffs have settled with Therriault, and Therriault is not a party to this appeal. Before settling with plaintiffs, Therriault filed a third party complaint seeking indemnity and contribution from the State. The plaintiffs amended their complaint to add a claim against the State. The claim against the State is based upon a highway department maintenance employee’s observation of two horses in the roadway prior to the accident.

Hubert McKenzie, the highway department employee, testified in a deposition that he saw the horses at approximately 5:15 a.m. while checking road conditions from Eureka to Stryker in a highway department dump truck. He said he followed the horses down the road for approximately one-half mile before he was able to pass them as they turned off on an approach road. He did not make any report of the horses being loose, but did note in his logbook that he had seen them. Mr. McKenzie testified that he proceeded to Stryker, turned around and returned to Eureka, arriving at approximately 7:00 a.m. Mr. McKenzie stated that he did not see the horses on his return trip.

Janice Pinson, who lives in a house near the accident scene, testified in a deposition that she observed Mr. McKenzie’s encounter with the horses. She stated that she saw a highway department dump truck “chase” the horses between 6:30 a.m. and 7:15 a.m., and that she was not sure of the exact time, but that the sun had not fully risen.

The plaintiffs contend that Mr. McKenzie failed to exercise reasonable care after discovering the horses on Highway 93. They argue that Mr. McKenzie breached a duty owed to Mr. Whitfield by failing to clear the horses from the roadway or to warn oncoming motorists. Plaintiffs also contend that the discrepancy between Mr. McKenzie’s testimony and the testimony of Mrs. Pinson as to the time Mr. McKenzie first encountered the horses constitutes a material issue of fact and that summary judgment was improperly granted.

Did the District Court err in granting summary judgment in favor of the State?

Rule 56, M.R.Civ.P., allows a court to enter summary judgment when the pleadings, depositions, and other documents on file, together with any affidavits filed, demonstrate no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. In reviewing a summary judgment, this Court is free to examine the entire case and reach a conclusion in accordance with its findings. Shimsky v. Valley Credit Union (Mont. 1984), [208 Mont. 186,] 676 P.2d 1308, 1310, 41 St.Rep. 258, 260. In the present case, the District Court file contains a number of depositions, along with answers to interrogatories and a number of exhibits.

A claim of negligence must establish a legal duty, breach of that duty, and damages proximately caused by the breach. Detert v. Lake County (Mont. 1984), [207 Mont. 460,] 674 P.2d 1097, 1100, 41 St.Rep. 76, 79. Plaintiffs cite the general duty of the department of highways to maintain highways in a safe condition. See Sections 60-1-101 and -102, MCA. They also cite several cases in which the state was found negligent in vehicle-stock collisions on federal-aid primary highways. (Highway 93 is a federal-aid primary highway.) However, several of these cases hinge on the state’s duty to post warning signs for animal crossings. E.g., Jensen v. Maricopa County (1974), 22 Ariz. App. 27, 522 P.2d 1096. The State’s duty to post warning signs is not at issue here. In fact, there was testimony that the area in which Mr. Whitfield’s accident occurred was posted for range cattle. The plaintiffs also cite the State’s duty under Section 60-7-103, MCA, to fence the right-of-way through high hazard areas of the open range. Plaintiffs do not assert that this section of road had been classified as “high hazard.” Nor do they assert that this highway was constructed or reconstructed after July 1, 1969, as is required in order for the statute to apply.

Plaintiffs have not cited any authority stating that a Montana highway maintenance employee has a duty to remove live animals from the roadway. In addition, Mr. McKenzie’s uncontradicted deposition testimony is that the horses had turned off onto an access road when he last saw them. They were no longer on the roadway. Plaintiffs have cited no authority for their further assertion that Mr. McKenzie had a duty to somehow insure that the horses did not come back onto the highway. We conclude that the plaintiffs have not shown any duty on the part of Mr. McKenzie to do more than he did.

Plaintiffs contend that the differences in the testimony of Mr. McKenzie and Mrs. Pinson as to the time at which Mr. McKenzie encountered the horses constitutes a material issue of fact prohibiting summary judgment. We disagree. As discussed above, the plaintiffs’ case fails to establish a duty on the part of Mr. McKenzie. Absent a showing of such a duty, the time at which Mr. McKenzie saw the horses is not a material issue of fact. We conclude that the discrepancy between the time given by Mr. McKenzie and that given by Mrs. Pinson is not a basis to deny summary judgment to the State.

We affirm the lower court’s dismissal of the State from this action.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and GULBRANDSON concur.


author: MR. CHIEF JUSTICE TURNAGE

text:
    DARRYL GEORGE MEYER, Petitioner and Appellant, v. STATE OF MONTANA, Respondent.
    No. 87-184.
    Submitted on Briefs Aug. 20, 1987.
    Decided Nov. 20, 1987.
    745 P.2d 694.
    Hoyt & Blewett, John C. Hoyt, Great Falls, for petitioner and appellant.
    Mike Greely, Atty. Gen., Barbara Claassen, Asst. Atty. Gen. Helena, Patrick L. Paul, Co. Atty., Great Falls, Jeff McAllister and Tammy Plubell, Deputy Co. Attys., for respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Petitioner Darryl George Meyer appeals his driver’s license suspension pursuant to Montana’s implied consent law, Section 61-8-402, MCA. We affirm.

On March 8, 1987 Montana Highway Patrolman Cal Wylie observed a vehicle driving erratically near the Beacon Bar in Cascade County, Montana. Patrolman Wylie pulled the vehicle over and approached the driver. Wylie testified that he informed appellant Darryl Meyer that Meyer appeared to be under the influence of alcohol. Wylie then offered Meyer a ride home. Meyer accepted.

Approximately one hour later, Wylie again saw Meyer driving his vehicle near the Beacon Bar. Wylie arrested Meyer for driving under the influence of alcohol (DUI). Meyer was taken to the Great Falls Police Station.

At the police station, Wylie read Meyer the Montana Implied Consent Law Advisory Form. Meyer indicated that he understood the implied consent form. However, appellant Meyer requested that he call “a friend” prior to taking the breath test. Patrolman Wylie responded that Meyer could not make a phone call before finishing “the paperwork”. At trial Wylie testified that paperwork actually meant completion of Meyer’s DUI arrest. After Wylie denied Meyer’s request to call a friend, Meyer refused to take a breath alcohol test.

Patrolman Wylie seized appellant’s driver’s license and the Montana Department of Justice suspended Meyer’s license pursuant to Section 61-8-402, MCA, which provides in pertinent part:

“Chemical blood, breath, or urine tests.
(1) Any person who operates a vehicle upon ways of this state open to the public shall be deemed to have given consent. . . to a chemical test of his blood, breath, or urine for the purpose of determining the alcoholic content of his blood if arrested by a peace officer for driving or in actual physical control of a vehicle while under the influence of alcohol.
“(3) If a resident driver under arrest refuses upon the request of a peace officer to submit to a chemical test designated by the arresting officer as provided in subsection (1) of this section, none shall be given, but the officer shall, on behalf of the department, immediately seize his driver’s license. The peace officer shall forward the license to the department, along with a sworn report that he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public, while under the influence of alcohol and that the person had refused to submit to the test upon the request of the peace officer. Upon receipt of the report, the department shall suspend the license for the period provided in subsection (5).
“(5) The following suspension and revocation periods are applicable upon refusal to submit to a chemical test:
“(a) Upon a first refusal a suspension of 90 days with no provision for a restricted probationary license;

On March 16, 1987 appellant Meyer successfully petitioned the District Court to restore his driving privileges pending hearing. Following a May 11, 1987 hearing, the District Court ordered that Meyer’s driver’s license he suspended for 90 days. Meyer appeals the order of the District Court.

ISSUE 1

Did the District Court err when it held that Meyer refused to take a breath test?

Appellant Meyer contends that he did not refuse to take a breath test. Appellant argues that substantial credible evidence does not support the findings of the District Court that Meyer refused to take a breath test.

The following conversation occurred at the Great Falls Police Station between Meyer and Patrolman Wylie:

“OFFICER: ... Do you understand what I have read to you, Mr. Meyer?
“MEYER: Yes.
“OFFICER: Would you like to take a breath test for me?
“MEYER: Well, can I call a — call a friend of mine?
“OFFICER: For what?
“MEYER: For — I want to ask him a question.
“OFFICER: What — what does that have to do with taking a breath test?
“MEYER: Well I just want to call him.
“OFFICER: Well, I’ll tell you what. You can call him after we are done with the paperwork. I have to know right now whether or not you want to take a breath test.
“MEYER: No. I don’t want to take the breath test right now, but I will call this person and I’ll maybe take it then.
“OFFICER: Why would you have to call somebody to find out whether or not you are going to take the breath test? I’m confused.
“MEYER: Well can’t I make a telephone call?
“OFFICER: When we are finished with the paperwork you can —
“MEYER: — okay —
“OFFICER: — make as many telephone calls as you want. But I do need to know right now whether you will take a breath test.
“MEYER: No.
“OFFICER: Okay. You realize that I am going to seize your Montana Driver’s License . . . (inaudible)
“MEYER: Yes. [Emphasis added.]

Previously we held that a defendant who repeatedly requested to speak with an attorney after being asked to submit to a breath test refused by implication to take the test. Johnson v. Division of Motor Vehicles (Mont. 1985), [219 Mont. 310,] 711 P.2d 815, 817, 42 St.Rep. 2045. In the case at hand, appellant Meyer requested to call a friend after being asked to consent to a breath test. Appellant was told by. Patrolman Wylie that he could not call his friend prior to taking the breath test. Meyer’s response constitutes a refusal under Johnson v. Division of Motor Vehicles, 711 P.2d at 817, 42 St. Rep. at 2048. The District Court properly held that Meyer refused to submit to a breath test pursuant to Section 61-8-402, MCA.

ISSUE 2

Was appellant Meyer prejudiced when Patrolman Wylie failed to instruct appellant that he had no right to counsel prior to taking the breath test?

A person arrested for DUI is deemed to have consented to take a breath test as a matter of law. Section 61-8-402, MCA. Results of a breath test are not self-incriminating. South Dakota v. Neville (1983), 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748,. Prior to taking a breath test, a defendant has no right to counsel. State v. Armfield (Mont. 1984), [214 Mont. 229,] 693 P.2d 1226, 1229, 41 St. Rep. 2430, 2433; Art. II, Section 24, 1972 Mont. Const. A breath test does not constitute a “critical stage event”. Therefore, no right to counsel exists. Armfield, 693 P.2d at 1230, 41 St. Rep. at 2433, citing United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149.

Patrolman Wylie informed Meyer that he could not call his friend prior to taking a breath test. In doing so, Wylie effectively told Meyer that he could not speak to his friend, attorney or any other person. If arguendo, Wylie had told appellant Meyer that he had no right to speak to an attorney, the results would have been the same. Appellant Meyer would have been forced to decide without assistance whether he wished to take a breath test. That result is exactly what happened.

Appellant has not challenged our holding in Armfield or Section 61-8-402, MCA. Nor has appellant presented this Court with evidence of prejudice. The District Court did not err when it held that appellant was not prejudiced by Patrolman Wylie’s failure to instruct Meyer that he had no right to counsel. Accordingly, we hold that appellant’s driver’s license was properly suspended.

Affirmed.

MR. JUSTICES HARRISON, SHEEHY, HUNT and McDON-OUGH concur.