text:
    FROM: THE DISTRICT COURT OF THE THIRTEENTH JUDICIAL DISTRICT, COUNTY OF YELLOWSTONE,
    STATE OF MONTANA, Plaintiff, vs. FRED W. SUTTON, Defendant.
    NO. DC-89-223 DECISION
    DATED this 6th day of December, 1990.
   On February 13, 1990, the Defendant was sentenced to sixty (60) years for Deliberate Homicide; and was given credit for 286 days served.

On December 6, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Joylyn Smith, of the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence imposed shall remain the same.

The reason for the decision is based upon Rule 17 of the Sentence Review Division.


source: Caselaw Access Project

license: Public Domain

text:
    FROM: THE DISTRICT COURT OF THE SIXTEENTH JUDICIAL DISTRICT, COUNTY OF ROSEBUD,
    STATE OF MONTANA, Plaintiff, vs. CODY R. MIX, Defendant.
    NO. DC-87-29 DECISION
   On March 31, 1988, the Defendant was sentenced to one hundred (100) years for Deliberate Homicide plus ten (10) years for the use of a weapon; the sentences shall be served consecutively; and he must complete restitution for Court Appointed Counsel; restitution for expenses of the victim’s funeral in the amount of $5,185; plus receive credit for 211 days credit for time served; dangerous designation.

On March 8, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Roger Carey of the Montana Defender Project. The state was represented by Marvin Quinlan, County Attorney from Rosebud County.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it was the unanimous decision of the Sentence Review Division that the sentence imposed shall be remanded back to the Sixteenth Judicial District for findings as to the reasons for designating the defendant as a dangerous offender for parole purposes as required by MCA, Sec. 46-18-404(3).

On April 26,1990, the Hon. Kenneth Wilson Amended the Sentencing and Commitment Order:

1. That the defendant be punished by imprisonment in the State Prison of Montana at Deer Lodge, Montana, for a term of one hundred (100) years for the crime of Deliberate Homicide.

2. That the defendant is hereby designated a dangerous offender pursuant to Section 46-18-404, MCA. The reasons for such designation are:

(a) the violent nature of the crime;

DATED this 6th day of December, 1990.

(b) the fact that a knife was used to stab the victim at least five times; and,

(c) the fact that the victim was brutally beaten and her body discarded.

3. That the defendant be punished by imprisonment in the State Prison of Montana at Deer Lodge, Montana, for a term of ten (10) years for the use of a weapon in the commission of the crime of deliberate homicide pursuant to Section 46-18-221 MCA.

4. That the order of April 1, 1988, is further amended by striking therefrom the requirement that the defendant make restitution for his court appointed counsel and the funeral expenses for the victim.

5. That these sentences shall be served consecutively, not concurrently.

6. That the Court imposes the mandatory fine of $20.00 pursuant to Section 46-18-236, MCA.

On December 6, 1990, the Sentence Review Division reviewed the Amended Decision that was prepared by Judge Wilson on April 26, 1990, and after careful consideration, it was the unanimous decision of the Sentence Review Division that the Amended Sentence imposed by Judge Wilson shall be affirmed as amended.

The reason for the decision is pursuant to Rule 17 of the Sentence Review Division.


text:
    FROM: THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT, COUNTY OF DEER LODGE,
    STATE OF MONTANA, Plaintiff, vs. HARVEY JAMES CALDWELL, Defendant.
    NO. DC-89-06 DECISION
   On August 2, 1989, the Defendant was sentenced to Negligent Homicide, ten (10) years; three Counts of Negligent Vehicular Assault and second offense DUI, six (6) months on each count; with all sentences to be served concurrently; 129 days credit for time served.

On December 6, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

DATED this 6th day of December, 1990.

The Defendant was present and was represented by Terrance Healow, of the Montana Defender Project. The state was represented by Mike Grayson, Deputy County Attorney from Deer Lodge County.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence imposed shall remain the same.

The reason for the decision is pursuant to Rule 17 of the Sentence Review Division.


text:
    FROM: THE DISTRICT COURT OF THE THIRTEENTH JUDICIAL DISTRICT, COUNTY OF YELLOWSTONE,
    STATE OF MONTANA Plaintiff, vs. DAVID GORDON DYSON, Defendant.
    NO. DC-90-116 DECISION
    DATED this 6th day of December, 1990.
   On May 30,1990, the Defendant was sentenced to eight (8) years with five (5) years suspended with conditions for Deceptive Practices; credit given for two (2) days time served plus $579.90 restitution.

OnDecember6,1990, the Defendants application for review ofthat sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by himself. The state was not represented.

Before heaiingthe application, the Defendantwas advised thatthe Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it ifsuch is possible. The defendantwas further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed.

The Petitioner withdrew his application from Sentence Review.


author: JUSTICE WEBER JUSTICE McDONOUGH,

text:
    IN THE MATTER OF THE ADOPTION OF C.J.H., W.L.H., T.A.H., Minors
    No. 90-267.
    Submitted on briefs Oct. 19, 1990.
    Decided Dec. 13, 1990.
    246 Mont. 52.
    803 P.2d 214.

      Donald L. Harris, Crowley, Haughey, Hanson, Toole & Dietrich, Billings for appellant.
    Marvin R. Ventrell, Gannett & Ventrell, Billings, for R.W.K., petitioner.
   JUSTICE WEBER

delivered the Opinion of the Court.

This appeal involves an adoption proceeding held in the Thirteenth Judicial District, Yellowstone County. Robert Kimpton, the stepfather of three minor children, filed a petition for their adoption. The children’s natural father, Warren Hoffman, did not consent. Following trial the Court entered its decree of adoption terminating the natural father’s parental rights. He appeals. We affirm.

The issues before us are:

1. Did the District Court act within its discretion when it granted the Petition for Adoption and terminated the natural father’s rights?

2. Is § 40-8-lll(l)(a)(v), MCA, constitutional under the United States Constitution and the Constitution of the State of Montana?

Warren Hoffman (Warren) and Chris Anderson (Chris) were married February 15, 1975. Three children were bom of the marriage.

Warren and Chris were divorced in 1986 and were awarded joint custody by decree. Warren was ordered to pay a total of $375 per month in child support and carry medical insurance for the children.

Later that year, Chris married Robert Kimpton (Robert), and the couple have resided together with the three children since that time. In 1989, Robert filed a Petition for Adoption of the children, alleging that Warren’s consent was not required because he failed to support the children during the one year preceding the filing of the Petition, and that the adoption would be in the best interests of the children. Chris consented to the adoption; the Department of Family Services approved the adoption; and Warren objected to the adoption.

Prior to granting the adoption and terminating Warren’s parental rights, the District Court made the following pertinent findings of fact: In December, 1987, Warren paid $200 in child support rather than the required $375 per month. He had failed to maintain medical insurance for the children at least since December of 1987. In 1988, Warren paid no child support. He maintained that he obtained a $100 money order and gave it to Chris, but that she gave it back. Warren claimed that the $100 was the best he could do and Chris maintained it was not enough. The Petition for Adoption was filed January 3, 1989. Warren furnished payments to Chris since the beginning of the year 1989 as follows: $40 in February, $40 in March, $100 in May and an additional $100 in May of 1989. Warren had a gross income during 1988 of at least $10,000.

The District Court also found that there is not a good relationship between Warren and the three children and continued contact between Warren and the children seriously endangered the children’s physical and emotional welfare. It found that a good relationship did exist between Robert and the children and that it would be in the best interests of the children if they were adopted by Robert.

The court concluded that the parental rights of Warren may be terminated without his consent. It further determined that it is in the best interests of the children that they be adopted by their stepfather, Robert. From that decision, Warren appeals.

I

Did the District Court act within its discretion when it granted the Petition for Adoption and terminated the natural father’s rights?

Warren contends that his consent was required since he paid as much child support as he was financially able. He maintains that his offer of the $100 money order and a coat he purchased for one of the children was sufficient to require that he must still give his consent to the adoption.

Robert and Chris maintain that Warren failed to provide support for his children during the one year period preceding the filing of the adoption petition. They contend that Warren refused to hand over the $100 money order after Chris made it clear to him that it in no way satisfied his child support obligation. They further maintain that payments in kind, (i.e. the coat), do not apply as child support. Rather, they maintain that child support means financial support.

Section 40-8-111, MCA, defines the consent required for adoption.

“(1) An adoption of a child may be decreed when there have been filed written consents to adoption executed by:
“(a) both parents, if living, or the surviving parent of a child, provided that consent is not required from a father or mother:
“(v) if it is proven to the satisfaction of the court that the father or mother, if able, has not contributed to the support of the child during a period of 1 year before the filing of a petition for adoption; ...”

Thus, a father’s rights may be terminated, and an adoption decreed without his consent upon a showing of nonsupport under the above statute. It is the public policy in Montana that the statutes concerning the termination of parental rights should not be interpreted in favor of those who shun the burden of parental obligations. In the Matter of the Adoption of D.J.V. (Mont. 1990), [244 Mont. 209,] 796 P.2d 1076, 1078, 47 St.Rep. 1522, 1524. The District Court found Warren failed in his child support obligation, and therefore his consent was not needed -under § 40-8-111(1)(a)(v), MCA.

In determining whether child support was paid during the one year period immediately preceding the filing of the petition for adoption, this Court has stated that any payment of support must first be applied to satisfy the earliest arrearage before it is applied to the support owed during the year before the filing of the Petition for Adoption. Warren maintains that the payments totaling $180 made in 1989 exceeded arrearages accrued prior to the filing of the petition for adoption. Chris and Robert maintain that payments made after the filing may not be applied to the pre-adoption year. We agree. Otherwise, any parent delinquent with child support payments could wait until after the filing of the petition for adoption to prevent the adoption, even when contrary to the best interests of the children. The payments made in 1989 by Warren were de minimus at best, considering the child support ordered was $375 per month and no medical insurance was provided. We hold that the District Court acted within its discretion when it granted the Petition for Adoption and terminated the natural father’s rights.

II

Is § 40-8-lll(l)(a)(v), MCA, constitutional under the United States Constitution and the Constitution of the State of Montana?

Warren maintains that § 40-8-lll(l)(a)(v), MCA, is unconstitutional because a liberty interest has been taken away without the existence of a compelling state interest. However, we note that Warren has not complied with Rule 38, M.R.App.P., which states:

“It shall be the duty of counsel who challenges the constitutionality of any act of the Montana legislature in any suit or proceeding in the supreme court to which the state of Montana, or any agency thereof, or any officer or employee thereof, as such officer or employee, is not a party, upon the filing of the record to give immediate notice in writing to the court of the existence of said question, specifying the section of the code or the chapter of the session law to be construed. The clerk shall thereupon certify such fact to the attorney general of the state of Montana (Emphasis added).”

Warren filed notice of appeal on May 7, 1990. The record was filed on May 25, 1990. Warren did not file his notice of constitutional challenge until June 13, 1990, twenty days later. A delay of twenty days does not constitute “immediate” notice as prescribed by Rule 38, M.R.App.P. Warren offers no explanation for his delay in filing notice of constitutional challenge.

What exactly “immediate” means under Rule 38 has not been defined. However, this Court has held that a delay of 3 days was sufficiently “immediate” to file an affidavit of disqualification of a judge when the reason for the delay was reasonable. (Plaintiff resided in Lake County but had to travel to Missoula County to sign an affidavit of disqualification and the Thanksgiving holiday was the day after he received notice.) See Wheeler v. Moe (1973), 163 Mont. 154, 515 P.2d 679.

“Immediate” is defined in Black’s Law Dictionary, 6th ed. (1990) as follows:

“Present; at once; without delay; not deferred by any interval of time. ... A reasonable time in view of particular facts and circumstances of case under consideration ...”

We conclude that Warren has presented no facts to explain the delay of twenty days in filing his notice of constitutional challenge. We therefore conclude that he has failed to comply with the requirements of Rule 38, M.R.App.P. We will not address the question of the constitutional challenge.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, BARZ and HARRISON concur.

JUSTICE McDONOUGH,

dissenting:

A parent has a “fundamental liberty interest” in continuing his parental relationship with his children. See Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-5, 71 L.Ed.2d 599, 606. A decree terminating the parental relationship must be supported by clear and convincing evidence. See Matter of Adoption of R.M., S.P.M. and R.M. (1990), 241 Mont. 111, 118, 785 P.2d 709, 713.

Strict compliance with the statute is required. Matter of Adoption of B.L.P. (1986), 224 Mont. 182, 184, 728 P.2d 803, 804. The petitioner by statute must prove by clear and convincing evidence the failure to support for the one year while being able to do so. Here the record fails to show by clear and convincing evidence the ability of the appellant to pay the support; and the District Court did not make any finding as to the appellant’s ability to pay.

I would reverse and dismiss the petition.

JUSTICE HUNT joins in the foregoing dissent.


author: s/ J.A. Tumage, Chief Justice s/ Diane G. Barz, Justice s/ John Conway Harrison, Justice s/ John C. Sheehy, Justice s/ William E. Hunt, Justice s/ R.C. McDonough, Justice s/ Fred J. Weber, Justice s/ J.A. Turnage, Chief Justice s/ John Conway Harrison, Justice s/ Diane G. Barz, Justice s/ John C. Sheehy, Justice s/ R.C. McDonough, Justice s/William E. Hunt, Justice s/ Fred J. Weber, Justice

text:
    IN THE MATTER OF CHARLES A. GRAVELEY, An Attorney and Counselor at Law, Respondent.
    No. 89-247.
    September 6, 1990.
    246 Mont. 58.
    805 P.2d 1263.
   *****

ORDER

On the 11th day of May, 1989, the Commission on Practice of the State of Montana caused to be filed in this Court a complaint against Charles A. Graveley, an attorney authorized to practice law in this state. The complaint is in two counts, the first count alleging acts of improper conduct in representing his client, Philip Johnson, by making a false statement of material fact to a third person, failure to deliver funds to a third person who had an interest in them and acquiring a security interest in property adverse to his client’s interest; and the second count alleging improper representation of his client, Penny Plymale, by failing to appear on her behalf in a timely manner in an Oregon action, failing to keep her informed of the status of the case and failing to inform her of the adverse order entered by the Oregon court.

A formal hearing was held before the Commission on October 19, 1989, in Helena, Montana. On January 26, 1990, the Commission on Practice filed herein its findings, conclusions and recommendations, to the effect that Charles A. Graveley be publicly censured before the Supreme Court of the State of Montana and pay the costs of the proceedings against him.

In accordance with the Rules for Lawyer Disciplinary Enforcement adopted by this Court in cause No. 10910 on August 24, 1983, respondent Graveley filed his objections and recommendation to the Commission’s findings and recommendations. Special counsel for the Commission has filed his response and the matter is ripe for decision. This Court being advised and good cause appearing, now finds and determines as follows:

In the fall of 1985, Charles A. Graveley commenced representing Philip Johnson in a real estate transaction wherein Johnson was the buyer. James Slosson, a real estate agent had purchased a home in Anaconda, Montana, from an estate and sold it to Johnson under a real estate Sell and Purchase Agreement dated July 22, 1985. A Contract for Deed was to be drawn after the estate was closed and the property distributed to Slosson. Johnson took possession of the premises pending closing and obtained fire and extended insurance coverage on the property through First American Insurance Agency on August 21, 1985. On or about December 12, 1985, Johnson executed a Mortgage on the property in favor of Graveley as security for funds owed to him from previous representation. On January 21, 1986, a fire substantially destroyed the premises belonging to the estate. The estate had not been closed and no Contract for Deed had been entered into with Johnson.

On February 5,1986, Granite Realty owned by Slosson, was added as an additional insured. On February 11,1986, the estate was closed and the property was transferred to Granite Realty. On May 30,1986, the insurance company issued their final draft in the amount of $22,912.78 payable to Johnson, Granite Realty and Graveley. Johnson presented the check to Slosson for endorsement but Slosson refused to sign until he got a guarantee for full payment for the house. On June 6,1986, Slosson and his attorney called Graveley concerning the insurance proceeds. Graveley informed both Slosson and his attorney on the speaker-phone that the purchase price would be paid in fall if Slosson would endorse the check on behalf of Granite Realty. Slosson endorsed the check and it was deposited in Graveley’s trust account.

Johnson objected to the payment to Slosson and Graveley and wanted the insurance proceeds himself. On April 22, 1987, Graveley sent a partial payment of $1,500 to Slosson and informed him that the remaining amount would be made in the near future from a personal injury settlement of Johnson.

On July 13, 1988, Graveley made a final payment from his trust account to Slosson in the amount of $3,543.66. This payment was made two years and one month after the insurance proceeds were deposited in Graveley’s trust account. This payment was only made after a complaint with the Commission on Practice had been filed by Slosson on February 22,1988. It should be noted that Graveley never received compensation from Johnson for handling the fire loss matter.

There is clear and convincing evidence that attorney Graveley violated Rules 1.15 and 4.1 of the Rules of Professional Conduct when he made a material representation to Slosson and his attorney that if Slosson endorsed the insurance draft, Slosson would be paid in full.

The second count of the complaint arose over Graveley’s representation of Penny Plymale. Plymale was divorced and shared joint custody of her two children with her ex-husband who was required to pay child support. On May 12,1987, Plymale was served with an Order to Show Cause filed by her ex-husband seeking sole custody of one child and eliminating child support. The same day Plymale went to Graveley who stated he would file an appropriate motion. Plymale signed the papers on May 19,1987, but Graveley’s office did not send them out until May 22,1987. The Order to Show Cause had a ten-day return date. On May 26, 1987, the Oregon court modified the Decree as requested by Plymale’s ex-husband noting no response had been received.

Plymale called Graveley on about July 15, 1987, and was told the Order should not have been entered and it was a mistake. Graveley continued to represent Plymale until May of 1988. On July 2, 1987, the ex-husband’s attorney advised Graveley that he would not contest his motion and also advised that the ex-husband preferred not to get into further legal disputes and thought the matter could be resolved. Again, on September 10, 1987, the ex-husband’s attorney wrote and sent a proposed settlement. On October 21,1987, the attorney wrote again asking why there was no reply. Finally, on November 6, 1987, Graveley responded by letter. The ex-husband’s attorney wrote on November 17,1987 and again on December 31,1987, asking when he could expect to hear from Graveley. The correspondence in evidence shows another inquiry on February 26, 1988 asking whether or not Graveley still represented Plymale and emphasizing a desire to resolve the matter cordially.

Although Plymale had actual physical custody of both children through the winter months after July, 1987 and the entire period Graveley represented her, she received no child support from her ex-husband. Plymale continued to try to contact Graveley without success and finally in April of 1988, quit calling. She went to Graveley^ office and obtained her file on May 23, 1988. She entered into direct negotiations with her ex-husband and the matter was settled. She received custody of her children and the ex-husband commenced paying child support in September, 1988. She had received no child support from August, 1987 through August, 1988.

There is clear and convincing evidence that attorney Graveley Violated Rules 1.1, 1.3 and 1.4 of the Rules of Professional Conduct by failing to adequately represent Plymale causing great emotional and financial distress. Attorney Graveley failed to act with reasonable diligence and Plymale was deprived of child support for one year.

ACCORDINGLY IT IS ORDERED AND ADJUDGED:

1. That Charles A. Graveley be publicly censured before the Supreme Court of the State of Montana and shall appear before this Court in Helena, Montana, for the administration of a public censure on the 16th day of October, 1990, at 9:00 o’clock a.m.

2. That Charles A. Graveley be required to pay the costs of these proceedings.

3. Copies of this order shall be mailed to Charles A. Graveley; Special Prosecutor Gary Graham, Attorney at Law, Missoula, Montana; the Chairman and the Secretary of the Commission on Practice; and the Executive Director of the State Bar of Montana.

DATED this 6th day of September, 1990.

s/ J.A. Tumage, Chief Justice

s/ Diane G. Barz, Justice

s/ John Conway Harrison, Justice

s/ John C. Sheehy, Justice

s/ William E. Hunt, Justice

s/ R.C. McDonough, Justice

s/ Fred J. Weber, Justice

PROCEEDINGS IN PUBLIC CENSURE AND ORDER

CHIEF JUSTICE: This is the time and date set for the public censure by the Supreme Court of the State of Montana of Charles A. Graveley, a member of the State Bar of Montana. If the counsel for Mr. Graveley is present, would he identify himself for the record?

Mr. Graveley, would you stand up and identify yourself for the purpose of the record here?

Are you one and the same person as the Charles A. Graveley, who is the subject of disciplinary action in this Court under our Cause No. 89-247?

Mr. Graveley, if you will come to the well of the Court, at the rostrum, and face the Court, the delivering Justice will now proceed with your public censure.

DELIVERING JUSTICE:

Mr. Graveley, this public censure is being delivered today in accordance with the Order of September 6, 1990 issued out of this Court and served upon you. These proceedings are founded on a complaint charging you with several violations of the Rules of Professional Ethics which apply to attorneys licensed to practice in the State of Montana. After a hearing at which you were personally present, the Commission on Practice issued its findings, conclusions and recommendations dated January 26, 1990. The Commission recommended that you be publicly censured before the Supreme Court and be required to pay all costs of the proceeding before the Commission.

The essential elements of the Order of this Court dated September 6, 1990, are incorporated herein by reference.

Charles A. Gravely, we herewith impose upon you the censure of this Court. The Supreme Court of the State of Montana unanimously concludes as follows:

That there is clear and convincing evidence that you violated Rules 1.15 and 4.1 of the Rules of Professional Conduct when you made a material representation to a third party and his attorney that promised payment if an insurance draft would be endorsed by that party and you finally made payment two years later.

That there is clear and convincing evidence that you violated Rules 1.1, 1.3 and 1.4 of the Rules of Professional Conduct when you failed to adequately represent a client in a child custody matter causing great emotional and financial distress. You failed to act with reasonable diligence and the client was deprived of child support for one year.

Charles A. Graveley, the Supreme Court of the State of Montana unanimously orders as follows:

1. That the costs of your proceedings before the Commission on Practice are determined to be a total of $1,089.92 as appears from the attached summary furnished by the Finance Officer of this Court. You will be furnished with a copy of the details of this statement.

2. Copies of this Proceeding in Public Censure and Order shall be delivered to you, Mr. Graveley; to Special Prosecutor Gary Graham, Attorney at Law, Missoula, Montana; to the Chairman of the Commission on Practice; and to George Bousliman, Executive Director of the State Bar of Montana.

Mr. Chief Justice, this completes the public censure of Charles A. Gravely, as Ordered by this Court.

CHIEF JUSTICE: Very well. The Clerk of this Court is hereby directed to place a copy of this public censure in the record of this proceeding in this Court.

DATED this 16th day of October, 1990.

s/ J.A. Turnage, Chief Justice

s/ John Conway Harrison, Justice

s/ Diane G. Barz, Justice

s/ John C. Sheehy, Justice

s/ R.C. McDonough, Justice

s/William E. Hunt, Justice

s/ Fred J. Weber, Justice


author: JUSTICE HARRISON

text:
    LEONARD F. THOMAS, Plaintiff and Appellant, v. DONNA E. HALE, Defendant and Respondent.
    No. 90-371.
    Submitted on briefs Nov. 15, 1990.
    Decided Dec. 13, 1990.
    246 Mont. 64.
    802 P.2d 1255.

      Leonard F. Thomas, Helena, pro se.
    James R. Halverson, Billings, for defendant and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

The District Court, in and for the First Judicial District, Lewis and Clark County, entered summary judgment in defendant’s favor. Plaintiff appeals and we affirm.

On appeal, Thomas has enumerated ten issues for review. Many of these issues overlap, some are not briefed and still others are not dispositive of the case. Therefore, we restate the issues as follows:

1. Whether the District Court erred in granting summary judgment in Hale’s favor on the issue of constructive fraud.

2. Whether the District Court erred in granting summary judgment in Hale’s favor on the issue of visitation interference.

On August 31, 1989, Leonard Thomas (Thomas) sued Donna L. Hale (Hale) alleging fraud and visitation interference. Thomas filed this suit as a result of Hale’s February 22,1989 expert testimony in a separate dissolution proceeding between Thomas and his ex-wife Nancy Thomas Erler in which Thomas sought to amend the dissolution decree regarding Thomas’ visitation rights with R., their daughter. Hale is R.’s counselor and, in that capacity, Hale gave opinions on visitation during the dissolution proceeding. Specifically, Hale testified that R.’s school performance had declined since the time that Thomas had reinitiated visitation with R. following an eight-year absence. Thereafter, on February 27, 1989, the court amended its previous order by increasing Thomas’ summer visitation rights from one week to two weeks and restricting overnight visits for a period of five months.

Following the February 27,1989 order, Thomas filed three motions with the court alleging that Hale’s testimony regarding R.’s school performance was erroneous and asked for a rehearing. Thereafter, by agreement of the parties, the venue of the Thomas v. Thomas case was changed to Lewis and Clark County. A hearing was held on Thomas’ motions beginning on October 19, 1989, and continuing on October 23, 1989. At that hearing, testimony was presented by R.’s teachers on the issue of R.’s school performance which corroborated Hale’s previous expert testimony which Thomas disputed. Thomas’ motions and the hearings which followed culminated in the District Court’s Findings of Fact, Conclusions of Law and Order dated January 5,1990. The District Court specifically found that Rita Bertelson, R.’s teacher for the 1988-89 school year, testified that R. was having difficulty in school and was often upset. The District Court vacated the two previous orders and awarded Thomas visitation rights with R. “one day each week for two and one-half hours after school and shall further have visitation one weekend day, two times each month, from 9:00 a.m. until 5:00 p.m.” The court also stated it would review the matter in 120 days to determine if visitation should be extended.

Meanwhile, on August 31, 1989, as a result of the February 27, 1989 order which prompted Thomas’ motion for a rehearing, Thomas also filed the instant case in which he contended the order was “adverse” to him and was improperly founded on Hale’s allegedly perjured testimony regarding R.’s school performance and that, therefore, Hale was liable for constructive fraud and visitation interference. The parties submitted briefs and argued, and on June 28,

1990 the District Court issued its final order granting summary judgment on all issues in Hale’s favor. From this order Thomas appeals. We affirm. Additional facts pertaining to each issue will be discussed as necessary.

The first issue for review is whether the District Court properly granted summary judgment in Hale’s favor on the issue of constructive fraud.

Summary judgment should be granted if the moving party successfully carries its burden to establish that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R To satisfy its burden of proof, the movant must provide the court with evidence which clearly indicates what the truth is, and which excludes any real doubt as to the existence of a genuine issue of material fact. Vanuden v. Hendricksen (1980), 189 Mont. 164, 167, 615 P.2d 220, 222. Once the movant has discharged this burden of proof, the party opposing the matter must come forward with substantial evidence raising a genuine issue of material fact. Rule 56(e), M.R.Civ.P.; Riley v. Carl (1981), 191 Mont. 128, 622 P.2d 228. Further, the non-moving party must set forth specific facts and cannot simply rely upon their pleadings, nor upon speculative, fanciful, or conclusory statements. Simmons v. Jenkins (1988), 230 Mont. 429, 432, 750 P.2d 1067, 1069. Then, applying these standards of review, this Court will not reverse a district court’s summary adjudication unless such order is clearly erroneous resulting in an abuse of discretion. Walker v. Larson (1986), 223 Mont. 333, 335, 727 P.2d 1321, 1322-23.

Section 28-2-406, MCA, defines constructive fraud as:

“(1) any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under him by misleading another to his prejudice or to the prejudice of anyone claiming under him; or
“(2) any such act or omission as the law especially declares to be fraudulent, without respect to actual fraud.”

In the lower court Thomas argued that Hale committed constructive fraud because she allegedly misrepresented to the court the facts of R.’s school performance while testifying in the capacity as R.’s social worker at a February 22,1989 hearing. Thomas attempted to satisfy the first element of constructive fraud by arguing that this alleged misrepresentation constituted a breach of a legal duty which Hale owed Thomas. The lower court granted summary judgment on this issue in favor of Hale.

Now Thomas argues that summary judgment was not proper because there existed a genuine issue of a material fact regarding Hale’s alleged misrepresentation. Here Thomas has concluded, based on his own speculation and opinion rather than substantial objective evidence contained in the record, that Hale’s February 22, 1989, testimony was untrue. Thomas’ speculation, in and of itself, is not enough to carry the burden required in order to preclude summary judgment.

On the other hand, we find that Hale has satisfied her burden of proof as required by Rule 56(c), M.R.Civ.P. A review of the record shows that Hale’s testimony that R.’s grades had dropped was corroborated by R., herself, and later by R.’s grade school teacher as well as by an affidavit from R.’s mother. The District Court found that Hale’s testimony regarding R.’s school performance was not perjured and that, therefore, no cause of action existed. Since these findings are supported by the record, we adopt them. Therefore, we find that no genuine issue of material fact exists, and that Hale was entitled to judgment as a matter of law. As such, we hold that the District Court properly granted summary judgment in Hale’s favor on the issue of constructive fraud.

The last issue is whether the District Court properly granted summary judgment in Hale’s favor on the issue of visitation interference.

Thomas argues that Hale aided and assisted R.’s mother Nancy in attempting to prevent, obstruct, and frustrate Thomas’ visitation rights. Thomas bases his argument, again, on allegations that Hale’s testimony was perjured.

Section 45-5-631, MCA, makes visitation interference a crime. That section states in pertinent part: “(1) A person who has legal custody of a minor child commits the offense of visitation interference if he knowingly or purposely prevents, obstructs, or frustrates the visitation rights of a person entitled to visitation under an existing court order.” Thomas urges that a civil cause of action exists for visitation interference and that Hale is liable. The pleadings and evidence in the record fail to demonstrate any act committed by Hale that could be attributed to visitation interference. The facts are clear. Hale was hired to counsel R. Hale testified in court as to her observations and professional opinions. Thomas’ mere allegations, absent any substantiation by objective evidence, that Hale lied and collaborated with Nancy, without more, do not support a cause of action for visitation interference. Thomas had ample opportunity at the hearing to cross-examine Hale and present contrary evidence which might have precluded summary judgment but chose not to do so. Furthermore, Hale’s testimony supported continued visitation by Thomas subject to a temporary restriction. Therefore, we hold that Hale was entitled to summary judgment on the issue of visitation interference. The District Court is hereby affirmed.

Sanctions

Thomas’ parental and visitation rights have been the subject of at least five separate legal actions or proceedings within the last two years. These issues originally arose in the dissolution proceeding between Thomas and his ex-wife Nancy in which Thomas sought to amend the dissolution decree regarding visitation rights. Then came the case initiated by Nancy and her ex-husband, Mark Erler, in an attempt to terminate Thomas’ parental rights and to establish the relationship of parent and child between Erler and R. In the third action, Thomas sued Nancy and Mark and their attorney for malicious prosecution and abuse of process in having brought the adoption action. Next came the action Thomas initiated against Hale alleging constructive fraud and visitation interference stemming from her testimony at a hearing held in the dissolution action. The fifth and last proceeding is the appeal now before this Court. Throughout the course of these numerous proceedings Nancy was represented by counsel while Thomas primarily appeared pro se. All but one of these proceedings were initiated by Thomas. Thomas claims that his motives for initiating these court proceedings were to establish and foster a loving parent-child relationship with R., his daughter. Ironically, these proceedings have created an environment of hatred and has caused more grief and heartache than any tender-aged child, such as R., should ever have to endure. Each of these proceedings has caused unnecessary distress both emotionally as well as financially on behalf of all parties involved. This in turn has had a profound adverse effect on R.’s well-being. We wish to put an end to Thomas’ abuse of the judicial system.

As we have previously stated, “It is important for the sake of the litigants and for the judicial system that litigation will at some time be finally ended.” Lussy v. Dye (1985), 215 Mont. 91, 93, 695 P.2d 465, 466. When an appeal, such as this one, is taken without substantial or reasonable grounds, we conclude that sanctions are appropriate. Searight v. Cimino (1989), 238 Mont. 218, 223, 777 P.2d 335, 337. Pursuant to Rule 32, M.R.App.P., we therefore impose damages on Leonard F. Thomas in the amount of $250 to be paid to the District Court.

JUSTICES WEBER, SHEEHY, HUNT and McDONOUGH concur.


author: JUSTICE WEBER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. SCOTT SOR-LOKKEN, Defendant and Appellant.
    No. 89-475.
    Submitted on briefs Nov. 1, 1990.
    Decided Dec. 18, 1990.
    246 Mont. 70.
    803 P.2d 638.

      Roger M. Kehew, Kalispell, for defendant and appellant.
    John Paulson, Asst. Atty. Gen., Helena, and Robert Slomski, Sanders County Atty., Thompson Falls, for plaintiff and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

In the District Court for the Twentieth Judicial District, Sanders County, defendant was convicted of two counts of felony assault. Defendant was sentenced to ten years for each count to be served concurrently, and determined to be a dangerous offender. Defendant appeals. We affirm.

We restate the issues presented as follows:

1. Did the District Court err in denying defendant’s motion to dismiss for lack of justice court jurisdiction to issue an arrest warrant on a complaint charging a felony?

2. Was there a proper determination of probable cause?

3. Was the photo identification conducted by the State suggestive?

4. Did the District Court err in allowing the testimony of David Galarneau over defendant’s objection?

5. Did the District Court err in denying defendant’s motion for a new trial?

On July 12, 1988, defendant, Scott Sor-Lokken, and his family were traveling eastbound on State Highway 135 in defendant’s sedan. Penny Shepard was also traveling eastbound on Highway 135 that afternoon on her way home to Kalispell.

Penny testified that she approached defendant’s car from behind and attempted to pass it on the two-lane highway. Defendant refused to allow Penny to go around him or to return to her place behind him and held Penny in the oncoming traffic lane. As the two cars continued down the highway side by side, defendant began to nudge Penny over in an attempt to run her into a concrete wall. While this occurred, a vehicle approached from the opposite direction. Penny slammed on her brakes and maneuvered behind defendant to avoid the oncoming vehicle. She then pushed her accelerator to the floor and managed to pass defendant.

After Penny passed the car, she looked in her rear view mirror and noticed a motorcycle for the first time. Monty Mcllhargey (Monty) was driving the motorcycle and had witnessed the incident between Penny and defendant. He decided that the safest course of action was to pass defendant quickly, which he accomplished.

Monty testified that defendant caught up to him and bumped him from behind, then attempted to run him off the road. While defendant repeatedly attempted to rim Monty off the road, one of defendant’s passengers threw glass Orange Crush bottles at him. The bottles struck Monty and his motorcycle. Penny witnessed these events through her rear-view mirror.

At the next town, Paradise, Montana, Penny and Monty reported the incident to the Sanders County Sheriff’s office. Penny and Monty provided the sheriff’s office with defendant’s personalized license plate inscription and gave general descriptions of defendant and his car.

The justice court in Sanders Coirnty issued an arrest warrant for defendant based upon a sworn complaint filed by the Sanders County Attorney. The complaint charged defendant with two counts of felony assault in violation of § 45-5-202(2), MCA. Defendant was arrested two days later and appeared before the justice court.

The State requested the District Court for leave to file an information. The motion was granted. The information filed charged defendant with two counts of felony assault. Defendant was arraigned on September 13, 1988, and entered a plea of not guilty to both counts. The District Court conducted the omnibus hearing on September 27, 1988.

On March 15, 1989, defendant filed a motion to exclude the testimony of the victims because of the alleged suggestiveness of the photographic lineup. He also filed a motion to suppress the arrest warrant, contending that the justice court lacked jurisdiction to issue the warrant in felony cases and that the examination of the complaint failed to establish probable cause. The District Court denied his motions.

On April 12, 1989, defendant moved to exclude the identification testimony of the witnesses, based upon the same grounds as the previous motions for the exclusion of witness testimony. The motion was denied.

The jury found defendant guilty on both counts of felony assault. Defendant filed a motion for a new trial. The District Court denied the motion. The District Court then sentenced defendant to ten years for each count of felony assault, to be served concurrently, and determined that defendant was a dangerous offender. Defendant appeals.

I

Did the District Court err in denying defendant’s motion to dismiss for lack of justice court jurisdiction to issue an arrest warrant on a complaint charging a felony?

Defendant contends that a justice court cannot commence a felony by complaint. He contends that the procedure violates Article VII, Section 5, of the Montana Constitution which states:

“(2) Justice courts shall have such original jurisdiction as may be provided by law. They shall not have trial jurisdiction in any criminal case designated a felony except as examining courts.”

The State urges that commencing a felony case by filing a complaint in a justice court is a procedure long accepted and practiced in Montana. The State cites State v. Snider (1975), 168 Mont. 220, 225, 541 P.2d 1204, 1207, for the rule that a justice court does not violate the original trial jurisdiction of district court when it exercises jurisdiction in the related nontrial proceedings of a felony prosecution. This Court stated:

“The use of the term ‘trial jurisdiction’ constitutes a legislative acknowledgment that other types of jurisdiction exist in these cases and are not vested exclusively in the district courts.
“Montana’s existing court system as established by the legislature supports a legislative intent to grant justices of the peace jurisdiction to issue search warrants. There are 56 counties in the state, with 28 district judges. These district judges serve judicial districts comprising from one to seven counties. They generally reside and spend the major part of their time in the most populous county within their judicial district. Because of this court system and its inherent geographical limitations, many of the outlying counties simply do not have a district judge available on a moment’s notice to issue search warrants,... But... every county has one or more justices of the peace. Under these known circumstances, the legislature will be presumed to have intended to grant justices of the peace the right to issue search warrants in the absence of any express limitation.”

Snider, 541 P.2d at 225-226. In Snider, the defendant was charged with th e felony of illegal possession of dangerous drugs. See also State v. Garberding, [47 St.Rep. 2157] [245 Mont. 356,], 801 P.2d 583 (Mont. 1990). We conclude that initiating a felony prosecution by complaint in the justice court is an established practice in Montana which is not prohibited by statute. We hold that the District Court correctly denied defendant’s motion to dismiss for lack of justice court jurisdiction to issue an arrest warrant on a complaint charging a felony.

II

Was there a proper determination of probable cause?

Defendant maintains that the County Attorney was not examined under oath by the Justice of the Peace concerning probable cause to believe that defendant committed the crime. He contends that a verified complaint reciting the statute is not the same as probable cause being sworn to by oath or affirmation. He urges that the probable cause for his arrest must be reduced to writing. He further contends that since no one had actually identified the defendant for nearly a month, no evidence linking him with the alleged crime was found within a reasonable time. He argues that the circumstantial evidence pointed only to the vehicle involved as belonging to him, not as he being the one driving the vehicle.

The State maintains that the County Attorney was under oath when he swore to the complaint, Justice of the Peace Beitz, testified that Claude Burlingame, the County Attorney at the time of the incident, swore to the complaint when it was filed and recited the underlying facts relating to probable cause. It argues that the fact that the County Attorney was not under oath before reciting the facts supporting probable cause does not invalidate the arrest. The State further contends that the substantial rights of the accused are not at stake and the accused’s right to counsel does not attach when the State applies for leave to file an information. It urges that a district court’s finding of probable cause may be challenged in a subsequent motion to dismiss. Finally, the State maintains that defendant received an independent judicial determination of probable cause within a reasonable time. The complaint was filed on July 13, 1988. Sanders County deputies arrested defendant two days later, and defendant appeared injustice court that same day. The State applied to the District Court for leave to file an information on August 4,1988, 20 days after the arrest, and filed the information on August 5,1988.

Section 46-6-201, MCA, provides that an arrest warrant may be issued when a written complaint is presented to a court charging a person with the commission of an offense and the court examines the complainant under oath to determine if there is probable cause for the arrest. Article II, Section 11 of the 1972 Montana Constitution requires probable cause supported by oath or affirmation reduced to writing.

The Supreme Court of the United States has held that the issue in warrant proceedings is not guilt beyond a reasonable doubt but probable cause for believing that a crime has occurred. United States v. Harris (1971), 403 U.S. 573, 581-583, 91 S.Ct. 2075, 2080-2082, 29 L.Ed.2d 723; State v. Garberding, [245 Mont. 356,] 801 P.2d 583, 47 St.Rep. 2157. As the State maintains, that standard was met by the witness statements describing defendant and defendant’s license plate. Even if the defendant’s arrest had been unlawful, an illegal arrest has no.impact on subsequent prosecution using evidence not tainted by illegality. State v. Woods (1983), 203 Mont. 401, 662 P.2d 579; State v. Ellinger (1986), 223 Mont. 349, 725 P.2d 1201.

Defendant does not have a right to be present when the State applied for permission to file an information. This Court has held that a defendant’s right to counsel was not violated because counsel was not appointed until after the information was filed. State v. Farnsworth (1989), 240 Mont. 328, 333, 783 P.2d 1365, 1367.

Finally, § 46-7-103, MCA, requires the preliminary examination to be held within a reasonable time unless the district court grants leave to file an information. Here, the court made an independent determination of probable cause and granted the State leave to file an information. The State continued to investigate and prepare the case by conducting a photo array and examining the crime scene. Defendant remained incarcerated during that time. When a defendant remains incarcerated because he cannot meet bail, his incarceration is not a factor in calculating reasonable time. Farnsworth, 783 P.2d at 1368. We hold that there was a proper determination of probable cause and no rights of the defendant were violated.

Ill

Was the photo identification conducted by the State suggestive?

Defendant maintains that the photographic line-up was unreasonably suggestive. The State maintains that the photograph was not suggestive and did not deny defendant due process.

The Sanders County Attorney conducted a photographic lineup using a photograph of defendant taken while he was incarcerated. He was not wearing a shirt in the photo. The victims, Penny and Monty, each separately identified defendant. Later each made in-court identifications of the defendant as well.

The test for whether the identification procedure was suggestive or not has been defined by this Court. Atwo-pronged test determines whether or not the identification should be suppressed:

“First, was the identification procedure impermissibly suggestive; and, second, if so, did it under the totality of the circumstances have such a tendency to give rise to a substantial likelihood of irreparable misidentification.”

State v. Higley (1980), 190 Mont. 412, 621 P.2d 1043. The only way the identification here could be deemed suggestive is by the mere fact that defendant was the only man in the photographic lineup that was not wearing a shirt. Examination of the photographs does not indicate that fact was suggestive.

Looking at the second leg of the test, the totality of the circumstances, we conclude that the identification was reliable even if the identification procedure were considered suggestive. The facts to be considered in evaluating the likelihood of misidentification include:

“the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. (Citations omitted.)”

State v. Higley, 621 P.2d at 1049.

Both witnesses here were victims who viewed the defendant during the crime. Both witnesses separately positively identified the defendant both from the photographic array and in court. The identification with the photo array took place only two weeks after the crime. We hold that the photo identification conducted by the State was not suggestive.

IV

Did the District Court err in allowing the testimony of David Galarneau over defendant’s objection?

Defendant maintains that the District Court erred in allowing the testimony of David Galarneau over his objection. Mr. Galarneau is the automobile mechanic who worked on the alleged vehicle used in the crime, and testified as to its condition as it existed prior to the incident in question. During cross-examination, the State inquired as to Mr. Galarneau’s failure to appear the day before. The testimony relevant to this issue follows.

“Q. You got a subpoena to be in court here?
“A. Yes.
“Q. The subpoena told you to be here yesterday morning; is that true?
“A. I never got that one. I had one before I was suppose to have been here a couple weeks ago or something.
“Q. Okay. Where were you yesterday?
“Defense Counsel: Objection your Honor. I don’t see that it’s relevant.
“The Court: Overruled.
“Q. Where were you yesterday?
“A. Lake County Jail.”

The State maintains that this line of questioning was used to show the witness failed to respond to a previous subpoena which went to his credibility. It maintains that a question of credibility is a matter for the jury to decide. The State urges the defendant objected on grounds of relevancy, and the objection was properly overruled since the questioning was relevant and was not character evidence. No mention of an arrest or a conviction was made. Defendant did not move to strike.

Evidentiary rulings concerning the admissibility of evidence are within the District Court’s discretion and will not be disturbed absent a showing of an abuse of discretion. The presumption that a witness speaks the truth and is credible can be rebutted by evidence of the witness’ character for truth, honesty, and integrity, but evidence bearing on issues of witness’ credibility, in order to be admissible, must be more probative than prejudicial. State v. Hammer (1988), 233 Mont. 101, 759 P.2d 979.

The District Court must balance prejudice and probative value. Evidence of Mr. Galarneau’s failure to answer his subpoena by appearing the previous day does not tend to make any fact at issue in this action more or less probable than that fact would be without the evidence. Thus, defendant has failed to show any abuse in the District Court’s discretion that the testimony of Mr. Galarneau was more prejudicial than probative. We hold that the District Court did not err in allowing the testimony of David Galarneau over defendant’s objection.

V

Did the District Court err in denying defendant’s motion for a new trial?

Defendant maintains that he was entitled to a new trial pursuant to §§ 46-16-701 and 46-16-702, MCA. The State filed an answer stating that defendant failed to file a supporting brief pursuant to Uniform District Court Rule 2, which provides that failure to file a brief within five days subjects the moving party to a summary ruling. The court denied defendant’s motion.

Defendant argues that a denial of his motion based on Rule 2 was erroneous because Rule 2 does not apply to criminal cases. The State contends that the decision to deny the motion is a matter of trial court discretion and shall not be disturbed absent an abuse of judicial discretion. The State also urges that defendant’s motion for a new trial was untimely under § 46-16-702(2), MCA.

Defendant failed to provide the District Court with sufficient information to support his motion for a new trial. We conclude the District Court did not abuse its discretion. We hold that the District Court did not err in denying defendant’s motion for a new trial.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, SHEEHY and BARZ concur.


author: JUSTICE HUNT

text:
    PAT M. GOODOVER, Plaintiff and Respondent, v. LINDEY’S, INC., and the ESTATE OF WILLIAM C. FOREST, deceased, and the unknown heirs and unknown devisees of any Defendant, above-named, who may be deceased, et al., Defendants and Appellants.
    No. 90-148.
    Submitted on briefs Aug. 9, 1990.
    Decided Dec. 18, 1990.
    246 Mont. 80.
    802 P.2d 1258.

      Paul Neal Cooley, Skelton & Cooley, Missoula, for Lindey’s.
    Jerome T. Loendorf, Harrison, Loendorf & Posten, Helena, for Estate of Forest.
    John W. Larson, Missoula, for Goodover.
   JUSTICE HUNT

delivered the Opinion of the Court.

Defendant and appellant, Lindey’s, Inc., appeals from an order of the Fourth Judicial District Court, Missoula County, requiring it to undertake efforts to locate underground fuel storage tanks and to remove a restroom facility encroaching upon property owned by plaintiff and respondent, Pat M. Goodover. We affirm.

We will address the following issue:

Did the District Court err in fashioning a remedy to enforce its earlier declaratory judgment that established the location of the north-south boundary line dividing the parties’ property?

Plaintiff and respondent, Pat M. Goodover, is the owner of Lot 2 and defendant and appellant, Lindey’s, Inc., is the owner of Lot 1 of the Seeley Lake Shores Sites in Missoula County. In order to resolve a boundary dispute between the parties, Goodover, on August 21, 1984, filed an action for declaratory judgment and quiet title. After a trial held on April 7, 1987, the District Court issued findings of fact, conclusions of law and judgment in favor of Goodover, establishing the north-south boundary between the lots. The court specifically reserved the issue of damages for a later hearing.

Lindey’s appealed to this Court, arguing that substantial credible evidence did not support the boundary line established by the District Court. In Goodover v. Lindey’s, Inc., 232 Mont. 302, 757 P.2d 1290 (1988), we affirmed the judgment of the District Court.

After the complaint was filed but prior to trial, Lindey’s constructed a restroom facility and installed two underground fuel storage tanks in the area of the disputed boundary. Once the boundary was established by the District Court, it was apparent that the restroom encroached upon Goodover’s property. It was also possible that the fuel storage tanks encroached upon the property; however, it was impossible to determine the exact location of the tanks because they were buried.

Following this Court’s affirmance of the boundary-line issue, Goodover petitioned the District Court to issue an order requiring Lindey’s to show cause why it should not be required to remove the restroom facility from its encroachment and why it should not be required to determine the exact site of the underground fuel storage tanks. A hearing on the matter was held on November 13,1989, after which the District Court entered an order requiring Lindey’s to remove the encroaching restroom facility and to locate the buried fuel storage tanks. Lindey’s appeals.

Lindey’s raises a myriad of issues in an attempt to relitigate the boundary-line question. We reiuse to examine these arguments, however, because the boundary-line issue was reviewed and finally decided diming the first appeal to this Court. The District Court’s determination of the boundary line is thus res judicata and cannot be reconsidered on this appeal.

The issue we will consider is whether the District Court erred in fashioning a remedy to enforce its declaratory judgment that established the north-south boundary dividing the parties’ property. Lindey’s argues that the District Court exceeded its jurisdiction by requiring it to move the restroom and locate the fuel storage tanks when Goodover’s complaint did not request such measures in its prayer for relief. We do not agree.

Goodover brought this action as one for quiet title and declaratory judgment. The Uniform Declaratory Judgments Act, §§ 27-8-201 through -313, MCA, authorizes the District Court to provide supplemental relief when petitioned to do so. Section 27-8-313, MCA, states:

“Further relief based on a declaratory judgment or decree maybe granted whenever necessary or proper. The application therefore shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by a declaratory judgment or decree to show cause why further relief should not be granted forthwith.”

The statute enables the District Court to retain jurisdiction to grant further relief as it deems necessary and proper to enforce the declaratory judgment. The supplemental relief should be designed to provide complete relief to the parties, which may include a monetary judgment or coercive relief or both. See Lowe v. Harmon, 167 Or. 128, 115 P.2d 297, 300 (1941). In fashioning the remedy, the court is not bound by the relief requested in the complaint but may order any relief needed to effectuate the judgment. Dry Canyon Farms, Inc. v. United States Nat’l Bank, 96 Or.App.190, 772 P.2d 1343, 1345 (1989).

In Dry Canyon Farms, 772 P.2d at 1345, the Oregon Court of Appeals interpreted the scope of Oregon’s supplemental relief statute which is identical to ours, as follows:

“[T]he scope of relief under ORS 28.080 [the Oregon supplemental relief statute] is controlled by the underlying declaratory judgment and not by the claims raised in the original proceedings. Accordingly, a party is not precluded from seeking supplemental relief in the form of damages by its failure to claim such damages in the original declaratory proceeding.”

Likewise, Goodover was not precluded from asking the District Court to order Linde/s to remove the restroom facility and to locate the underground fuel storage tanks. The remedies were needed to give complete and effectual relief to the declaratory judgment. The full resolution of the boundary-line dispute required Lindey’s to remove the encroachments from Goodover’s property. The District Court did not err in granting the supplemental relief.

Affirmed.

JUSTICES HARRISON, SHEEHY, McDONOUGH and WEBER concur.


author: CHIEF JUSTICE TURNAGE JUSTICE McDONOUGH,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOHN ED GAMBREL, JR., Defendant and Appellant.
    No. 90-255.
    Submitted on briefs Nov. 15, 1990.
    Decided Dec. 18, 1990.
    246 Mont. 84.
    803 P.2d 1071.

      Don Vernay, Kalispell, for defendant and appellant.
    Marc Racicot, Atty. Gen., Paul D. Johnson, Asst. Atty. Gen., Helena, Ted O. Lympus, County Atty., Kalispell, for plaintiff and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

John Ed Gambrel, Jr., was convicted of deliberate homicide following a jury trial in the District Court for the Eleventh Judicial District, Flathead County. He appeals. We affirm.

The issues are:

1. Did the District Court err in denying the defendant’s motion in limine and admitting into evidence the testimony of Alane Shuster, Shelly Birky, and Kathryn Jinx Kinslow?

2. Did the court err in denying the defendant’s motions for a mistrial?

3. Did the court err in denying the defendant’s motion for a new trial?

Defendant John Ed Gambrel, Jr., stands convicted of the February 5, 1989, murder of Lori Anne Schwegel in Whitefish, Montana. Following a report of a shooting shortly after 2 a.m. on that date, police officers discovered Schwegel’s body in the apartment she had shared with Gambrel. She had been shot three times in the chest, once in the right hand, once in the left cheek, and once in the right leg. Her body was lying on the living room floor next to a rifle and rifle case later determined to be Gambrel’s. Twelve spent shell casings were recovered from the living room, and two bullets were embedded in the ceiling. The front door of the apartment was ajar. There was no sign of forced entry or struggle.

Gambrel, suffering obvious head wounds, arrived at the apartment minutes later. He was transported to a hospital by ambulance, during which time he spoke a lot of gibberish and said, “help us, help us,” “help Lori,” “them coke son-of-a-bitches,” and also “I didn’t mean to hurt her.”

Gambrel claims that he and Schwegel were attacked by an unidentified third party. At trial, he testified that after a night on the town, he was knocked unconscious as he entered the apartment he and Schwegel shared. Gambrel testified that when he regained consciousness, he was lying across the body of Schwegel, who had stayed home that evening. He testified that he realized he had been shot and went to the apartment of his upstairs neighbor, who summoned the police.

Gambrel’s upstairs neighbor, Stuart McQuade, testified that he arrived home at about 2:00 a.m. He stated that he heard three “bangs” just before Gambrel came to his door for assistance. He stated that he did not see anyone around the apartments and, other than the three “bangs,” did not hear anything, although according to him the apartment walls were thin.

Gambrel hypothesized that he and Schwegel had been shot on the orders of Ben Sagen, at whose home he had at one time stayed. He claimed that Sagen had a contract out on his life. Sagen denied that. Sagen testified that Gambrel did owe him money and that he had threatened to contract with a collection agency to recover it.

Gambrel talked to a group of police officers on his way home about 2:00 a.m. One of those officers characterized Gambrel’s behavior at that time as “acting quite different.” The State’s theory is that Gambrel spent several hours downtown, went home and shot and killed Schwegel, returned to the bars, then talked to the officers in an attempt to establish an alibi before he again returned home and shot himself.

Gambrel had suffered two gunshot wounds. One was a grazing soft tissue injury to the chin. The other bullet entered under his chin, passed through the floor of his mouth, palate, nose and sinus, and exited between his eyes on the forehead. Two doctors testified at trial that Gambrel’s injuries were consistent with self-inflicted gunshot wounds. Sagen testified that Gambrel had once bragged to him that he had been to a mercenary school where he had learned how to shoot people without killing them. The doctors did not find any injury to the back of Gambrel’s head from being knocked unconscious. Also, Gambrel could not explain why his jacket was found neatly folded on the sofa in the apartment.

Gambrel had been seen at various downtown Whitefish bars all evening on February 4-5 except for a period of about an hour beginning at 10 or 11 p.m. Witnesses testified that Gambrel was “very intoxicated” and “scary,” and that he said he was planning to leave Schwegel and was angry with her. Gambrel denied making those statements and testified that he and Schwegel were very happy together.

Over the defense’s objection, the State presented testimony of three women with whom Gambrel had lived at various times. Alane Shuster testified about incidents in which Gambrel had physically abused her, culminating on Christmas Eve 1984. She stated that after they ate dinner, Gambrel tied her, naked and under protest, spread-eagle to a bed, then stuffed cut-up pieces of potato into her vagina. She testified that he watched her cry and beg him to stop for about ten minutes, then went to sleep on the couch, leaving her tied up. She later freed herself, but did not tell anyone about the incident because she was humiliated and embarrassed.

The second woman, Shelly Birky, testified that she allowed Gambrel to use a room in her apartment during the fall of 1986. She testified that she awoke at 5:30 a.m. on Christmas morning to find him on top of her having intercourse. She testified that as she tried to get away, he slammed her against walls, hit her, and repeated, “I will kill you; I will kill you; I will kill you.” She testified that she reported the incident to the police.

Kathryn Jinx Kinslow testified about a Halloween 1987 incident in which Gambrel chased her around her apartment and slapped her, then slashed her waterbed. She testified that he told her, “I am going to kill you, you are a dead woman, you are not going to be alive tomorrow morning. Don’t even bother going to sleep, because you are not going to live through to morning. You are not even worth living. I am going to take a knife and slit you from your cunt all the way up.” Kinslow filed a police report.

All three women were extensively cross-examined. Gambrel denied making any of the threatening statements and, aside from admitting that he had an argument with Kinslow on Halloween of 1987, denied that any of these incidents occurred.

Gambrel was found guilty of deliberate homicide and was sentenced to 100 years in prison plus 10 years for use of a dangerous weapon.

I

Did the District Court err in denying the defendant’s motion in limine and admitting into evidence the testimony of Alane Shuster, Shelly Birky, and Kathryn Jinx Kinslow?

In State v. Just (1979), 184 Mont. 262, 602 P.2d 957, this Court set out specific requirements which must be met before evidence of other crimes, wrongs, or acts will be admissible under Rule 404(b), M.R.Evid. The requirements are:

1. Similarity of crimes or acts; and

2. nearness in time; and

3. tendency to establish a common scheme, plan or system; and

4. the probative value of the evidence is not substantially outweighed by the prejudice to the defendant.

Just, 602 P.2d at 961. In addition, the State must give the defense advance notice of its intent to use such evidence and the jury must be admonished that the purpose of the evidence is limited. Just, 602 P.2d at 963-64.

In this case, the State gave pretrial notice of its intent to present the testimony of four women (one did not appear at trial). The defense made a motion in limine to prevent the women from testifying. After reviewing the women’s -written statements and hearing oral argument on the motion, the court ruled that the commonality among the offered testimony was

“being females who have cohabitated with Defendant for significant periods of time and have been physically attacked, to varying degrees, by the Defendant while he was in a state of intoxication. They have also been subjected to threats of further harm or death by the Defendant while he was in an apparent alcoholic rage.”

The court also ruled that the acts were not so remote in time as to be irrelevant or immaterial, that they were sufficiently similar as violent acts, and that their probative value outweighed their prejudicial effect. It denied the defendant’s motion in limine. The defense again argues here that the other acts disclosed in the testimony of the three women were not similar to deliberate homicide, were too remote in time, did not establish a common scheme, plan, or system, and were prejudicial beyond their probative value.

The defense argues that, in particular, testimony about Gambrel’s previous “bizarre sexual behavior” is not similar to the crime charged here. Gambrel’s act of tying up an unwilling Shuster and stuffing potatoes into her vagina, then leaving her in that state while he fell asleep on the couch, did involve sexual organs and may thus be described as “bizarre sexual behavior.” However, that act, like rape, is more accurately characterized as violent or sadistic than as sexual behavior. Like the violence against Schwegel, it was apparently unprovoked and occurred after Gambrel had been drinking. It is not true, as the defense argues, that the acts must have been perpetrated against the same victim to be similar. See State v. Tecca (1986), 220 Mont. 168, 714 P.2d 136. We conclude that the violent behavior against Shuster, especially when looked at in combination with the testimony of the other women, is sufficiently similar to the violent behavior of shooting Schwegel to have been admissible into evidence.

Similarly, we conclude that the rape of the sleeping Birky followed by death threats against her and the slapping, property destruction, and death threats against Kinslow are sufficiently similar to the crime charged here. We agree with the District Court that the similarities are in the nature of Gambrel’s relationships with the victims, that he had been drinking before each incident, and that he was violent and/or threatened deadly violence each time.

The acts about which the three women testified occurred between two and four years before Schwegel was killed. This Court has allowed evidence of events which occurred nine years prior to the charged acts, when “there is a continuing pattern of similar conduct.” Tecca, 714 P.2d at 139. Here, there was a continuing pattern of violence against the women with whom Gambrel was living. We conclude that the acts were not too remote in time to be admissible into evidence.

We next address the presence of a common scheme, plan, or system. The evidence shows a common system of violence, after Gambrel had been drinking and directed against his partners, including death threats, sexual assaults, beatings, and murder. As in Tecca, “we find the number and similarity of incidents tends to establish a common scheme or plan under the third prong of the Just test.” Tecca, 714 P.2d at 139.

Finally, we consider whether the “other crimes” evidence was prejudicial beyond its probative value. In a different case, testimony about the acts disclosed by the three women might be too prejudicial. Here, Gambrel was charged with deliberate homicide. The prejudicial effect of the testimony against him must be viewed in light of the seriousness of that charge. Further, the probative value of the testimony by the three women must be viewed in light of the absence of any eyewitnesses to this crime. We conclude that the District Court was correct in ruling that the probative value of the testimony outweighed its prejudicial effect.

After considering the four Just factors, we conclude that the State has met its burden. We hold that the District Court did not err in denying the motion in limine.

II

Did the court err in denying the defendant’s motions for a mistrial?

Defendant moved for a mistrial at the conclusion of each of the three women’s testimony. At the conclusion of Shuster’s testimony, he cited her statements that he was a thief, that he was obsessed by Rambo movies, and that she had to bail him out of jail for an unrelated matter. The defense did not object to any of this testimony at the time it was given. The testimony was nonresponsive to the questions asked by the State’s attorney, who quickly interrupted the testimony about thievery.

The reason for the motion for a mistrial at the conclusion of Birky’s testimony was that she had stated that Gambrel was a thief and that he was banned from certain bars. Following a defense objection, the court gave a curative instruction as to the thief testimony. The State’s attorney interrupted the “banned at bars” testimony before the witness could complete her statement.

The defense moved for a mistrial at the conclusion of Kinslow’s testimony because she stated that Gambrel had agreed to get counseling for drug and alcohol problems. No objection was made at the time this testimony was given.

Our standard of review of a denial of a motion for mistrial is evidence that is “clear, convincing, and practically free from doubt, of the error of the trial court’s ruling.” State v. Counts (1984), 209 Mont. 242, 247-48, 679 P.2d 1245, 1248 (Citation omitted). We conclude that this standard has not been met. The court did not err in denying the motions for mistrial.

Ill

Did the court err in denying the defendant’s motion for a new trial?

Gambrel’s motion for a new trial was based on the same arguments he used in his motion in limine and in his motions for mistrial. He also cited State v. Heinrich (Mont. 1990), [242 Mont. 110,] 788 P.2d 1346, 47 St.Rep. 314, modified, 794 P.2d 696, which had just been decided.

Heinrich was originally charged with assault and criminal possession of dangerous drugs, both felonies. The State gave notice, as required under Just, of its intent to introduce evidence of other crimes, namely a previous guilty plea to possession of dangerous drugs, a previous conviction of the offense of intimidation, and evidence concerning a seizure of dangerous drugs from Heinrich’s trailer. Before trial, Heinrich entered a guilty plea to the charge of possession of dangerous drugs. Therefore, he was tried only on the assault charge. However, the trial court let in the other crimes evidence. This Court held that none of the evidence of other crimes should have been admitted because it was not related or similar and was too remote in time. Heinrich, 788 P.2d at 1350-51.

The defense argues that this Court’s opinion in Heinrich renders the admission of the testimony of the three women inadmissible in this case. We disagree. The two cases are obviously factually distinguishable, and the Just factors are fact-dependent.

Granting or denying a motion for new trial is within the discretion of the trial court. Section 46-16-702(1), MCA; State v. Brush (1987), 228 Mont. 247, 252, 741 P.2d 1333, 1336. For the reasons discussed above under Issues I and II, we hold that the District Court did not abuse its discretion in denying the motion for a new trial in this case.

Affirmed.

JUSTICES HARRISON, BARZ and WEBER concur.

JUSTICE McDONOUGH,

dissenting:

The fourth requirement of the Just rule (See State v. Just (1979), 184 Mont. 262, 602 P.2d 957) relative to the admissibility of evidence of other crimes, wrongs or acts has by the majority opinion lost practically all of its usefulness. Such requirement is as follows: “the probative value of the evidence is not substantially outweighed by the prejudice to the defendant.” Just, 602 P.2d at 961.

Here the defendant was charged with deliberate homicide of the woman he lived with by shooting her five times with a rifle. It is the relationship of this charge with the testimony of the witnesses Alane Shuster, Shelly Birky, and Kathryn Jinx Kinslow which is in question.

Their testimony relative to the other requirements of Just is questionable; for example, similarity of crime or acts. However, allowing Alane Shuster to testify to the defendant’s placement of the potatoes, a sexually perverted attack, is practically a guarantee of the criminality of the defendant’s character, his loathsomeness and his fitness for conviction of the crime charged. The same can be said of the testimony of Shelly Birky as to the act of rape. The testimony as to such physical assaults on Ms. Shuster and Birky, should have been at the very least limited in detail to lessen the extreme prejudicial effect. Evidence admitted under the Just rule is by its nature somewhat prejudicial and should be carefully weighed as to its probative value. In essence Rule 404(b), provides that evidence of other crimes, wrongs or acts is not admissible to show character of a defendant. The reason for this rule is that the jury should judge the defendant on the facts and law relevant to the actual crime charged and not on his character traits or that he is a “bad man”. I would reverse and remand for a new trial.

JUSTICES HUNT and SHEEHY concur in the foregoing dissent.


author: JUSTICE BARZ JUSTICE McDONOUGH,

text:
    BERRY W. OTTERSEN, a/k/a BERRY W. OTTERSON, Plaintiff and Respondent, v. WALLACE F. RUBICK, Florence Rubick, Larry F. Long, Peggy M. Long, and Lynne Geier a/k/a Lynn Geier, Defendants and Appellants.
    No. 90-262.
    Submitted on briefs Sep. 20, 1990.
    Rehearing Denied Peb. 6, 1991.
    Decided Dec. 18, 1990.
    246 Mont. 93.
    803 P.2d 1066.

      James P. Healow, Sweeney & Healow, Billings, for defendants and appellants.

      Martin J. Elison, Law Offices of Douglas Y. Freeman, Hardin, for plaintiff and respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

Defendants and appellants Wallace F. and Florence Rubick appeal the judgment awarded plaintiff and respondent Berry Ottersen following a non-jury trial in the District Court, Thirteenth Judicial District, Yellowstone County. We affirm.

The issues are:

1. Whether plaintiff creditor is barred from obtaining a deficiency judgment under the facts of this case when, although there was no notice of sale for a portion of the repossessed collateral, there were judicial proceedings and approval of sale for the balance of the collateral?

2. Was the finding of the District Court erroneous when it found that no foreclosure occurred and the plaintiff could pursue both termination and repossession and sue for the balance under the Sales Agreement?

3. Did plaintiff prevent performance of the Sales Agreement by defendants?

4. Did the District Court err when it considered matters not raised in the pretrial order?

On April 1, 1982, the plaintiff as seller, and defendants as buyers, entered into a Sales Agreement for the sale of a business known as “Berry’s Tall Fashions.” The defendants remained liable under the agreement but assigned their interest to Larry and Peggy Long and the Longs assigned to Lynne Geier. Geier filed bankruptcy in June, 1987. After Geier’s last payment on the contract in May, 1987, the sum of $48,188.76 plus ten percent per annum interest remained outstanding. Default notices by certified mail were sent by plaintiff to defendants Rubicks and the other assignees on September 15, 1987. The default was not cured within thirty days of notice. Geier had an automatic stay in bankruptcy and the bankruptcy trustee assumed control over all assets of the business. Plaintiff received a key to the business premises from the trustee. The owner of the premises demanded that all personal property be removed since rental payments were not made. Plaintiff removed the inventory and stored most of it in her garage. The display cases were placed in commercial storage and sold at a private sale in November, 1987 without notice to the defendants. The cash obtained was placed in an interest bearing account at the disposal of the bankruptcy court.

The plaintiff asked the District Court in a February, 1988, complaint against defendants to: (1) establish plaintiff’s security position in the collateral; (2) establish possession of the collateral; (3) order foreclosure of the collateral; and (4) grant judgment for the amount owed on the Sales Agreement less proceeds from the sale of collateral. In April, plaintiff moved the District Court for an order to allow sale of the inventory and fixtures held as collateral. A hearing on the motion was set for April 26, 1988. None of the defendants appeared at the hearing and the motion to allow the sale was granted. It appears that plaintiff’s counsel sent a copy of the notice of sale to each of the defendants’ attorneys on April 26, 1988. All of the money obtained from the sale was placed in an interest bearing savings account by plaintiff. After a non-jury trial, plaintiff was awarded judgment, costs and attorney’s fees and defendants appeal.

The first issue raised on appeal is whether plaintiff creditor is barred from obtaining a deficiency judgment under the facts of this case when, although there was no notice of sale for a portion of the repossessed collateral, there were judicial proceedings and approval of sale for the balance of the collateral. If a creditor forecloses on collateral pursuant to a note of indebtedness, commercially reasonable notice of sale must be sent to the debtor prior to disposition of the collateral or the creditor cannot obtain a deficiency judgment. Westmont Tractor Co. v. Continental I, Inc. (1986), 224 Mont. 516, 731 P.2d 327; Bank of Sheridan v. Devers (1985), 217 Mont. 173, 702 P.2d 1388; Wippert v. Blackfeet Tribe (1985), 215 Mont. 85, 695 P.2d 461; and Farmers State Bank v. Mobile Homes Unlimited (1979), 181 Mont. 342, 593 P.2d 734. These cases interpreted § 30-9-504(3), MCA.

“[E]very aspect of the disposition ... must be commercially reasonable. [RJeasonable notification ... shall be sent by the secured party to the debtor ...”

The statute refers to both duties in separate sentences and in mandatory language. Different interests are protected by the two requirements.

In an Ohio State Law Journal article, the author stated:

“[T]he purpose of commercial reasonableness is to set standards of propriety at the time of disposition of the collateral. Notice on the other hand was included to insure that the debtor (and other secured parties) could protect his interest in the collateral itself after default and before disposition.”

Note, Denial of Deficiency: A Problem of Reasonable Notice Under UCC § 9-504(3), 34 Ohio St. L.J. 657, 666 (1973).

However, § 30-9-507(2), MCA, provides that a disposition which has been approved in any judicial proceeding shall conclusively be deemed to be commercially reasonable. Therefore, in this case the plaintiff should be able to avoid all controversy over the reasonableness of the disposition and the notice provided since she went to court prior to the disposition. Any objections about the manner of notice were met by complying with the provisions of the Montana Rules of Civil Procedure. There is also no question that defendants received a notice of default and notice of acceleration of the Sales Agreement.

The defendants introduced no evidence that the price obtained at court-approved sale was unreasonable. In Dulan v. Montana Nat. Bank of Roundup (1983), 203 Mont. 177, 661 P.2d 28, this Court stated:

“This Court interpreted these two sections of the UCC [§§ 30-9-504(3) and 30-9-507(2), MCA] in the Talcott case, supra. We held that the reasonableness of the sale is not determined by price but the manner in which the sale was conducted. In other words, if the sale is considered commercially reasonable then the price is reasonable.
“Thus, in light of the above authority and the fact that ‘reasonable price’ is the objective of a commercially reasonable disposition, we hold that a large discrepancy in price can be considered within the parameters of section 30-9-504(3), MCA. We also conclude that the complaining party has the burden of proving the price received was less than the fair market value of the collateral.” (Emphasis in original.)

Dulan, 661 P.2d at 32.

The disposition and sale of some display cases in November of 1987 prior to the initiation of court proceedings was clearly without notice required in § 30-9-504(3), MCA. Defendants contend that sale alone should bar the plaintiff from recovering a deficiency judgment. The fair market value of these display cases does not appear in evidence and the defendants introduced no evidence that the price obtained at the private sale was unreasonable. Defendant Rubick testified that he saw the display cases in the empty store but took no action.

It is clear in this case that the plaintiff did mitigate damages by terminating storage expenses and placing all proceeds in an interest bearing account. The defendants only suffered damages, if at all, in an amount equal to the difference between what the cases were worth and what they sold for. Section 30-9-507(1), MCA, provides an adequate remedy for sale of a minor portion of the collateral:

“If the disposition has occurred the debtor or any person entitled to notification or whose security interest has been made known to the secured party prior to the disposition has a right to recover from the secured party any loss caused by failure to comply with the provisions of this part. If the collateral is consumer goods, the debtor has a right to recover in any event an amount not less than the credit service charge plus 10% of the principal amount of the debt or the time price differential plus 10% of the cash price.”

Farmers State Bank v. Mobile Homes Unlimited (1979), 181 Mont. 342, 347, 593 P.2d 734, 737, states:

“It is also generally held that a secured creditor’s failure to give the notice required under U.C.C. § 9-504(3) (... section 30-9-504(3), MCA) prior to disposition of collateral precludes or limits the creditor’s right to recover a deficiency judgment.” (Emphasis added.) This case indicates that this Court has recognized that a total bar of a deficiency judgment is not warranted in some cases.

The Montana cases: Westmont Tractor Co.; Bank of Sheridan; Wippert; and Farmers State Bank; supra, all indicate that notice requirements are mandatory for reasons which vary from case to case, but it is important to enable the debtor to protect his interest in the property by paying the debt or by being present at the sale to the end it not be sacrificed by a sale less than its true value. When a deficiency judgment is barred, it sometimes suggests that the creditor is proceeding with unclean hands or without good faith. This is completely absent in this case. Here the defendant Rubick, a sophisticated businessman who already had another court deny him a deficiency judgment, obviously thought he would do the same to a 71-year-old retired lady. In this case the fair market value of the display cases, even if different from the price obtained at the private sale, falls far short of the $48,000 due under the Sales Agreement and amounts to less than one-fifth of the total proceeds from sold collateral turned over to the District Court.

Defendants next contend that under the Sales Agreement plaintiff must elect to terminate and repossess, or sue for the balance due, but may not have both remedies. They argue that all of the plaintiffs actions were foreclosure actions barring recovery of the balance due on the contract. The District Court’s finding of fact number 22 states:

“22. The Court finds that the plaintiff did not intend to foreclose her security interest in the property, but rather elected to terminate the contract and demand payment in full on the unpaid balance, an option that she was entitled to under the terms of the Sales Agreement as well as under the terms of Section 30-9-501(1). While some terminology in some of the default notices as well as the pleadings seem to indicate a foreclosure of the security interest, the actions taken by the plaintiff are consistent with her election to reduce her claim to judgment. Furthermore, action, if any, to foreclose her security interest was not pursued to a conclusion.”

In this case the contract between the parties does not limit or restrict the remedies of plaintiff upon default. Sections 30-9-501(1) and (2) make it clear that the statement of rights and remedies of the Uniform Commercial Code do not exclude other remedies provided by agreement.

We hold that finding of fact number 22 is not clearly erroneous. There is substantial evidence in the record which supports the finding that no foreclosure occurred. “In the absence of a contractual provision expressly limiting the remedy or remedies available, a party may pursue any remedy which law or equity affords, as well as the remedies specified in the contract.” Glacier Campground v. Wild Rivers, Inc. (1978), 182 Mont. 389, 403, 597 P.2d 689, 696.

The third issue on appeal is whether Ottersen prevented performance of the Sales Agreement by Rubicks. Rubicks argue that by Ottersen allowing Geier to run the store into default and removing the merchandise from the store before the Rubicks had a chance to run the business, she removed the Rubicks’ chance to perform. Defendant Rubick has failed to meet that requisite burden of proof in the District Court. The burden of proving it was not possible to perform falls upon the Rubicks. Ehly v. Cady (1984), 212 Mont. 82, 687 P2d 687.

The last issue raised by appellants is whether the District Court erred when it considered matters not raised in the pretrial order.

Rule 16, M.R.Civ.P relating to pretrial procedures is a permissive not mandatory rule. Bell v. Richards (1987), 228 Mont. 215, 217, 741 P.2d 788, 790. “A pretrial order ... should be liberally construed to permit any issues at trial that are ‘embraced within its language.’ ” (Citation omitted.) Bell at 217, 741 P.2d at 790. Furthermore, all of the legal issues considered by the District Court, if not set forth specifically in the pretrial order, were argued in the briefs presented to the court. We hold that there was no error.

Affirmed.

JUSTICES HARRISON, SHEEHY and WEBER concur.

JUSTICE McDONOUGH,

dissenting:

I dissent. This case involves the Disposition of Collateral after default under the U.C.C. Such disposition is governed by statute, § 30-9-504(3)(a), MCA, which clearly provides "... reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor ...” This section provides that disposition of collateral must be commercially reasonable. The burden of proof as to whether or not a disposition is commercially reasonable is on the secured party. It is generally held that a “secured creditor’s failure to give the notice required [now under § 30-9-504(3), MCA] prior to disposition of collateral precludes or limits the creditor’s right to recover a deficiency judgment. Annot. 59 ALR 3rd 401.” See Farmers State Bank v. Mobile Homes Unlimited (1979), 181 Mont. 342, 374, 593 P.2d 734, 737.

In the case of Wippert v. Blackfeet Tr. of Blackfeetlnd. Res. (1985), 215 Mont. 85, 695 P.2d 461, the secured party, after default of the debtor, sent a letter informing the debtor of its intent to foreclose and apply the proceeds to the loan. The secured party failed to state the time or place of the proposed sale. The collateral (cattle) was later sold at public auction for less than the indebtedness. The Court stated:

“This letter fails to satisfy the notice requirements of either the U.C.C. or the security agreement. There is no mention of either the time or place of sale, and without that information a debtor is precluded from taking action to assure that a competitive price is obtained for his collateral at a public sale.
“We hold that failure to provide the notice required by section 30-9-504(3), MCA, precludes a creditor’s right to obtain a deficiency judgment.”

Wippert, 695 P.2d at 465.

In Bank of Sheridan v. Devers, 217 Mont. 173, 702 P.2d 1288, the secured party sent notice of the sale of the collateral to the debtor, but the date of sale therein was wrong. This Court held that the secured party failed to give the debtor commercially reasonable notice of the sale of the collateral and therefore the bank was precluded from recovery of any deficiency judgment.

In Westmont Tractor v. Continental I, Inc. (1986), 224 Mont. 516, 731 P.2d 327, one of two debtors agreed with secured party as to how collateral would be sold. The collateral was sold accordingly and no notice of agreement or sale was ever given to the other debtor. The Court held that failure of the secured party to provide notice of sale bars a deficiency judgment against the other debtor. Westmont Tractor, 731 P.2d 331.

In this case the collateral was fixtures and inventory of a store. The secured creditor sold the display cases without any notice whatsoever to the appellant debtor. The judicial proceedings cannot be relied upon as to the other property because the motion to sell the balance of the collateral noted that the sale would occur upon notice to the defendants and the court’s order allowing sale stated that sales are to be conducted by the respondent upon notice being given. The notice allegedly given is not part of the record and did not comply with the parties’ agreement nor did it comply with the statutory law and the District Court did not find in its findings that proper notice of sale was given.

As set forth above every aspect of the disposition must be commercially reasonable. Here there was a failure of any proper notice. Whether or not a notification is reasonable as to time and place as set forth by the statute is one thing, but where no proper notice is given at all, the question of reasonableness is not even reached. This case has been essentially decided on equitable ad hoc grounds by the District Court and this Court. One wonders what the decision would be under these same facts if the creditor was a large financial institution and the debtor was a little grey-haired grandmother who co-signed her grandchild’s or child’s note and security agreement and the institution was seeking a deficiency judgment against her.

CHIEF JUSTICE TURNAGE and JUSTICE HUNT concur in the foregoing dissent.