source: Caselaw Access Project

author: JUSTICE ERDMANN

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ANTONIO RUBIN LEYBA, Defendant and Appellant.
    No. 94-491.
    Submitted on Briefs November 30, 1995.
    Rehearing Denied February 8, 1996.
    Decided January 9, 1996.
    53 St.Rep. 7.
    915 P.2d 794.
    276 Mont. 45.

      For Appellant: Ian Christopherson, Christopherson Law Offices, Las Vegas, Nevada.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Cregg Coughlin, Assistant Attorney General, Helena; Robert M. McCarthy, Silver Bow County Attorney,Brad Newman, Deputy County Attorney, Butte.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

Defendant Antonio R. Leyba appeals from a jury verdict of the Second Judicial District Court, Silver Bow Comity, finding him guilty of deliberate homicide. We affirm.

The issues on appeal are as follows:

1. Was the defendant denied the effective assistance of counsel?

2. Did the District Court err in not instructing the jury sua sponte on the elements of mitigated deliberate homicide?

3. Was there sufficient evidence to support the jury verdict?

FACTS

On January 2, 1994, a Butte resident discovered that a group of teenagers had held an unauthorized drinking party in his home while he was away for the New Year’s holiday. He later determined that three of his rifles were missing and assumed the teenagers had stolen them. He directed his son-in-law, defendant Antonio R. Leyba, to see if he could find out the serial numbers on the missing rifles. Actually the rifles had not been stolen by the teenagers, but had been pawned by Leyba at the Mountain Man pawn shop in Butte.

On the morning of January 3, 1994, a clerk in a store adjacent to the pawn shop heard shouting and other noises coming from the pawn shop. The clerk called the police after being told by a man who had come into her shop that there was a “mess” next door. The two police officers who arrived on the scene discovered that the pawn shop clerk, Charlie Miller, had been bludgeoned and stabbed to death. There was a large amount of blood on the floor which contained shoe prints. The officers discovered a handle from a hatchet that appeared to have blood on it and eventually discovered the head to the hatchet on a top shelf in the back room. Officers also found a bloody fingerprint which the Forensic Sciences Division of the Montana Department of Justice later positively identified as Leyba’s fingerprint.

When officers questioned Leyba, he told them he was at the pawn shop on the morning of January 3, 1994, to get serial numbers for rifles, but because the store was crowded he left to check with other sport shops in town. After officers told Leyba about the physical evidence they had collected, including bloody shoe prints which matched his athletic shoes, and his bloody fingerprint, Leyba changed his story. He said that he saw two men take Miller into the back room and beat him up, but that after seeing the body he decided to leave. After officers told Leyba his story was not credible, he admitted the murder.

When officers searched Leyba’s residence and vehicle they discovered the rifles, a three-inch skinning knife, an eleven-inch knife, one framing hammer, one claw hammer, athletic shoes and a cordless telephone, all of which had human blood on them. Although he admitted committing the murder, Leyba claimed he had acted in self-defense. Leyba is 6’ tall and weighs approximately 200 pounds. He suffered no wounds in the altercation. Miller, who was approximately 5’4” tall and weighed 135 pounds, suffered various defensive wounds to his hands and wrists in addition to the fatal blows.

On January 27,1994, Leyba was charged with deliberate homicide pursuant to § 45-5-102(1)(a), MCA (1993). On June 20-23, 1994, he was tried by a jury and found guilty. He was sentenced to 100 years in prison, plus an additional 10 years for the use of dangerous weapons in commission of the offense, with 25 years suspended. The District Court denied Leyba’s post-trial motion to alter or amend the judgment and this appeal followed.

ISSUE 1

Was the defendant denied the effective assistance of counsel?

Leyba claims his Sixth Amendment right to effective assistance of counsel was violated because his defense counsel only offered a deliberate homicide jury instruction. On appeal, Leyba contends his defense was based on mitigating circumstances and his defense counsel should have offered an instruction which would have allowed the jury to consider whether he was guilty of mitigated deliberate homicide.

We review claims of ineffective assistance of counsel based on a two-part test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The defendant must first establish that counsel’s performance was deficient in that counsel did not act within the range of competence demanded of attorneys in criminal cases. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Walker v. State (1993), 261 Mont. 1, 6, 862 P.2d 1,4; State v. Senn (1990), 244 Mont. 56, 59, 795 P.2d 973, 975. To satisfy the second prong of the test, the defendant must establish that the deficient performance prejudiced him so as to deprive him of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Walker, 862 P.2d at 4. The defendant must prove both elements of the test and the burden is heavy on a defendant seeking to reverse a judgment on the grounds of ineffective assistance of counsel. Walker, 862 P.2d at 4 (citing State v. McColley (1991), 247 Mont. 524, 526, 807 P.2d 1358, 1360).

We addressed a claim similar to Leyba’s in State v. Sheppard (1995), 270 Mont. 122, 890 P.2d 754 (Sheppard II). After we affirmed the defendant’s conviction for sexual intercourse without consent in State v. Sheppard (1992), 253 Mont. 118, 832 P.2d 370 (Sheppard I), the defendant sought post-conviction relief in the district court. Sheppard claimed ineffective assistance of counsel because his attorney failed to offer a jury instruction on a lesser offense. In affirming the district court’s denial of post-conviction relief, we stated that “when defense counsel makes a tactical decision to forgo an instruction that is inconsistent with the defense, we will not find error supporting an ineffective assistance of counsel claim.” Sheppard II, 890 P.2d at 758 (citing State v. Johnson (1993), 257 Mont. 157, 163, 848 P.2d 496, 499). Furthermore, we have stated that in order to constitute ineffective assistance, acts of counsel “must stem from neglect or ignorance rather than from informed, professional deliberation.” State v. Paulson (1991), 250 Mont. 32, 44, 817 P.2d 1137, 1144-45.

The record indicates that Leyba’s defense at trial was that he killed Miller in self-defense. Defense counsel provided notice to the State that he would rely on a self-defense theory and that the issue for the jury would be whether the use of force by Leyba was justified. Defense counsel presented witnesses who testified that Leyba was a peaceful person and a good father and husband. Witnesses testified that Miller was in a bad mood on the morning he was killed. Defense counsel presented psychological testimony to explain that Leyba was faced with a “fight or flight” response to a life-threatening situation. Leyba claimed the brutal killing was an emotionally charged response to a violent attack by Miller. All of this evidence was consistent with Leyba’s self-defense claim.

Leyba also made it clear to the District Court that he did not want the jury to consider the mitigated deliberate homicide instructions. After the State had requested that the mitigated deliberate homicide instructions be withdrawn, the following exchange took place:

DEFENSE COUNSEL: I’ve spoken about this with my client, and we agree those will be withdrawn and we will not offer a mitigated deliberate—
TONY LEYBA: I want it deliberate. If they are going to find me guilty, I want it deliberate.

The District Court then withdrew the mitigated deliberate homicide instructions.

Leyba and his attorney made a tactical decision to seek absolute acquittal on the theory of self-defense. Such a decision was consistent with Leyba’s theory of self-defense and was a trial strategy based on informed professional deliberation. It was not the result of neglect or deficient performance on the part of defense counsel.

A similar situation was presented in Bashor v. Risley (9th Cir. 1984), 730 F.2d 1228, cert. denied (1984), 469 U.S. 838, 105 S.Ct. 137, 83 L.Ed.2d 77, where a defendant convicted of deliberate homicide argued that his trial counsel was ineffective for failing to give the jury the option of convicting him of negligent or mitigated deliberate homicide. In rejecting his argument, the Ninth Circuit stated as follows:

It is true that counsel did not offer a negligent homicide instruction and that he objected to the mitigated deliberate homicide instruction. The record discloses that counsel did so not out of ignorance of the law but as the result of a tactical decision that the jury should be forced to the choice of finding Bashor guilty of deliberate homicide or acquitting him outright. With the benefit of hindsight we know that this strategy was incorrect; however, it did not constitute ineffective assistance of counsel.

Bashor, 730 F.2d at 1241.

Now that hindsight demonstrates his trial strategy was not successful, Leyba seeks a second opportunity to try the case under a different theory. We will not, however, second-guess trial tactics and strategy. Walker, 862 P.2d at 4; State v. Johnson (1993), 257 Mont. 157, 163, 848 P.2d 496, 499. The performance of Leyba’s counsel was not deficient and was within the range of competence demanded of attorneys in criminal cases.

' Having determined that Leyba’s claim does not satisfy the first element of the Strickland test, it is unnecessary to analyze the second element of the test. We conclude that Leyba was not denied his constitutional right to effective assistance of counsel.

ISSUE 2

Did the District Court err in not instructing the jury sua sponte on the elements of mitigated deliberate homicide?

We review jury instructions in criminal cases to determine whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. State v. Long (1995), [274 Mont. 228], 907 P.2d 945, 946. See also State v. Brandon (1994), 264 Mont. 231, 237, 870 P.2d 734, 737 (citing State v. Lundblade (1981), 191 Mont. 526, 529-30, 625 P.2d 545, 548).

Leyba claims it was error for the District Court not to instruct the jury sua sponte on the elements of mitigated deliberate homicide. He contends that the jury was faced with an all or nothing choice between conviction and acquittal. Leyba relies on Beck v. Alabama (1980), 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392, to argue that the evidence clearly weighs toward the mitigated charge and failure of the District Court to so instruct the jury violated his due process rights. However, in Beck the issue was an Alabama statute which prohibited the jury from considering a lesser included offense. Furthermore, four years following Beck the Supreme Court stated that:

Although the Beck rule rests on the premise that a lesser included offense instruction in a capital case is of benefit to the defendant, there may well be cases in which the defendant will be confident enough that the State has not proved capital murder that he will still want to take his chances with the jury. If so, we see little reason to require him ... to give the State what he perceives as an advantage — an opportunity to convict him of a lesser offense if it fails to persuade the jury that he is guilty of capital murder.

Spaziano v. Florida (1984), 468 U.S. 447, 456-57, 104 S. Ct. 3154, 3160, 82 L. Ed. 2d 340, 350.

In Sheppard I, the defendant, like Leyba, argued that the district court should have instructed the jury sua sponte on a lesser offense. There we stated that, upon request, a defendant is entitled to an instruction about a lesser offense if the evidence would permit a jury to find him guilty of the lesser offense and acquit him of the greater. Sheppard I, 832 P.2d at 373. The rule in Montana and in the majority of states is that if a request for such an instruction is not made, the appellate court will not overturn the conviction absent plain error. Sheppard I, 832 P.2d at 373. We held that

the prosecution and defense must have the option of foregoing a lesser charge instruction for strategic reasons.... Mandatory sua sponte jury instruction on lesser offenses is inconsistent with Montana law and our public policy of allowing trial counsel to conduct the case according to his or her own strategy ....

Sheppard I, 832 P.2d at 373.

In the present case, the record indicates that Leyba chose to take his chances that the jury would not convict him of deliberate homicide based on his theory of self-defense. Not only did Leyba fail to object to the State’s requested withdrawal of the mitigated deliberate homicide instructions, he stated on the record that if the jury was to find him guilty, he wanted it deliberate. Unlike Beck, where a state statute foreclosed the opportunity for the jury to consider a lesser offense, Leyba voluntarily crafted his own trial strategy to avoid the jury considering the lesser charge. He cannot now with the benefit of hindsight be heard to complain that the instructions were insufficient and that the result violates his due process rights.

We conclude that, as a whole, the jury instructions fully and fairly instructed the jury on the law applicable to the case. The District Court did not err in failing to instruct the jury sua sponte on the offense of mitigated deliberate homicide.

ISSUE 3

Was there sufficient evidence to support the jury verdict?

We review the sufficiency of the evidence to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Arlington (1994), 265 Mont. 127, 146, 875 P.2d 307, 318 (quoting State v. Cyr (1987), 229 Mont. 337, 339, 746 P.2d 120, 122).

Leyba argues there was insufficient evidence to support the jury verdict. He claims he did not have a motive to deliberately plan the death of Miller, nor did he have the criminal intent to kill Miller. Leyba’s argument is based upon mens rea requirements that are no longer the law in Montana.

Section 45-5-102(1)(a), MCA (1993), provides that “[a] person commits the offense of deliberate homicide if: (a) he purposely or knowingly causes the death of another human being....” The State is not required to prove motive, nor is it required to establish that the killing was premeditated. We have stated:

The State need not establish a specific purpose to kill. Nor must it show that death was the result of deliberation other than the deliberation implicit within the statutory definitions of “purposely” and “knowingly.”

State v. Weinberger (1983), 204 Mont. 278, 289-90, 665 P.2d 202, 208-09 (citing State v. Sharbono (1977), 175 Mont. 373, 392, 563 P.2d 61, 72-73). If the act which causes the death is done purposely or knowingly, deliberate homicide is committed even if death is not the intended result. State v. McKimmie (1988), 232 Mont. 227, 231-32, 756 P.2d 1135, 1138 (citing State v. Sigler (1984), 210 Mont. 248, 260, 688 P.2d 749, 755).

In Weinberger, we cited the following Compiler’s Comments to § 45-5-102, MCA, and then stated:

“ ‘Purposely’ ... is the most culpable mental state and implies an objective or design to engage in certain conduct, although not particularly toward some result. ‘Knowingly' ... refers to a state of mind in which a person acts, while not toward a certain objective, at least with full knowledge of relevant facts and circumstances. Together these terms replace the concepts of malice and intent... premeditation is no longer an element of homicide ....”
We agree. We have previously recognized the legislative changes in the requirements of mens rea. State v. Sharbono, supra, 175 Mont. at 392-394, 563 P.2d at 72-73; State v. Coleman (1978), 177 Mont. 1, 30-31, 579 P.2d 732, 750, cert. denied, 448 U.S. 914, 101 S.Ct. 34, 65 L.Ed.2d 1177. Here, defendant’s objection to Instruction No. 11 on the ground that it was incomplete is founded upon mens rea requirements that are no longer the law in Montana.

Weinberger, 665 P.2d at 209. Leyba’s arguments in regard to motive and premeditation are therefore without merit.

Leyba goes on to argue that there was no direct evidence which proved deliberate homicide. Evidence was presented to the jury concerning Leyba’s awareness and knowledge of his actions. Leyba admitted to not liking Miller and to chasing him around the store. The forensic evidence proved that Leyba bludgeoned Miller’s head with one or more blunt instruments, breaking the skull open ‘like an eggshell.” Miller’s throat had been cut six times, cutting both the carotid artery and his internal jugular vein. Leyba also stabbed Miller nine times in the back when Miller was immobile. Leyba then concealed the fact he had been at the pawn shop and did not tell anyone he had been attacked by Miller.

When Leyba fled the murder scene he took four of the murder weapons with him and concealed them in his vehicle. He washed Miller’s blood off his hands and face and removed his outer clothing to conceal the fact that he had been involved in a brutal attack. There was sufficient evidence for the jury to find that Leyba acted knowingly, because even if death was not the intended result, he was aware of the high probability that such a result would be caused by his conduct. Section 45-2-101(33), MCA (1993).

The jury considered all the evidence presented, including Leyba’s own admission, his bloody fingerprint and shoe print, the nature of the injuries, and his possession and concealment of the murder weapons. The jury did not find Leyba’s theory of self-defense credible. We conclude there was sufficient evidence to support Leyba’s conviction of deliberate homicide pursuant to § 45-5-102(1)(a), MCA (1993), and affirm the jury’s verdict and the District Court’s judgment and order on the matter.

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


author: JUSTICE LEAPHART

text:
    JOHN P. TURNER, Plaintiff, Respondent and Cross-Appellant, v. MOUNTAIN ENGINEERING AND CONSTRUCTION, INC., et al., Defendants, Appellants and Cross-Respondents. KERIN AND ASSOCIATES, Plaintiff, v. AMERITRUST FINANCIAL CORP., et al., Defendants.
    No. 95-329.
    Submitted on Briefs November 16, 1995.
    As Amended on Denial of Rehearing February 8, 1996.
    Decided January 11, 1996.
    53 St.Rep. 23.
    915 P.2d 799.
    276 Mont. 55.

      For Appellant Johnston Excavating: Gregory O. Morgan, Attorney at Law, Bozeman.
    For Respondent and Cross-Appellant John R Turner: James A. McLean; Drysdale, McLean & Nellen, Bozeman; George A. Guynes, Attorney at Law, Santa Fe, New Mexico.
    For Plaintiff Kerin & Associates: Jon M. Hesse, Attorney at Law, Livingston.
    For Defendant Figgins Sand & Gravel, Inc.: Richard A. Ramler, Attorney at Law, Belgrade.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

This case arises out of a protracted dispute between the mortgagee (Turner) and construction hen creditors who performed work on the subject property. Turner executed on a foreign judgment, foreclosed on mortgages owned by the judgment debtor, and purchased the property at a sheriff’s sale. The subject property is located in Gallatin County, Montana, and is commonly known as the “Royal Village” subdivision.

On March 14, 1995, the Eighteenth Judicial District Court, Gallatin County, entered its Memorandum and Order for Summary Judgment, granting Turner’s Motion for Summary Judgment and finding his mortgages valid and superior to the construction liens. The original mortgages were executed in 1982 and 1983. In 1987, approximately eight years before the foreclosure sale, the construction liens were filed pursuant to § 71-3-535, MCA.

The District Court ordered Turner to prepare an appropriate decree and order for foreclosure of the property. In addition, the District Court awarded Turner his costs and attorney’s fees against defendants Kerin and Associates, Figgins Sand and Gravel, Inc., and Johnston Excavating, Inc. (the lien creditors). On April 27, 1995, the District Court amended its order, deleting its award of costs and attorney’s fees.

On May 5, 1995, the District Court entered its Judgment, Decree of Foreclosure, and Order of Sale. On May 25, 1995, in the interim between the judgment and the sheriff’s sale, the lien creditors filed their notice of appeal to this Court; however, they did not stay the proceedings or post a supersedeas bond. On June 22,1995, a sheriff’s sale was held to satisfy the four outstanding mortgages and Turner purchased the subject property.

The lien creditors appeal from the District Court’s Memorandum and Order for Summary Judgment and Turner cross-appeals from the court’s amended order which deleted his award of costs and attorney’s fees.

We summarize the issues raised on the lien creditor’s appeal and Turner’s cross-appeal as follows:

1. Did the District Court err in finding that Turner’s mortgages had priority over the construction liens?

2. Did the District Court err in finding that the statute of limitations had not run on the ‘Valley Bank” and “Greiner” mortgages?

3. Did the District Court err in granting priority to the “Greiner” mortgage even though the mortgage does not describe the debt it secures and does not adequately identify the mortgagee?

4. Did the District Court err in granting Turner’s motion for summary judgment?

5. Did the District Court err in amending its Memorandum and Order for Summary Judgment when it deleted Turner’s award of costs and attorney’s fees?

In light of the fact that the subject property has been sold at a court-ordered foreclosure sale, Turner filed a motion to dismiss the appeal as moot. The lien creditors assert that because the judgment was satisfied by an involuntary payment or performance, their appeal from the judgment is not thereby rendered moot. We hold the issue of mootness to be determinative of issues one through four.

In so holding, we take this opportunity to clarify the question of mootness as it relates to foreclosure actions. We have long recognized that a question is moot when this Court cannot grant effective relief. Martin Dev. Co. v. Keeney Co. (1985), 216 Mont. 212, 220, 703 P.2d 143, 147-48; State ex rel. Hagerty v. Rafn (1956), 130 Mont. 554, 557-58, 304 P.2d 918, 919-20; State ex rel. Begeman v. Napton (1891), 10 Mont. 369, 369-70, 25 P. 1045, 1045-46. In Martin Dev. Co., this Court stated that:

It is equally well recognized that payment of a money judgment by the judgment debtor does not, by itself, render the cause moot for purposes of appeal. A defeated party’s compliance with the judgment renders his appeal moot only where the compliance makes the granting of effective relief by the appellate court impossible.

Martin Dev. Co., 703 P.2d at 147. Confusion, however, has arisen due to the Court’s attempt to distinguish between voluntary and involuntary performance or compliance with a judgment. In a number of our prior decisions dealing with foreclosure actions and mootness, we have reasoned that, since foreclosure is involuntary rather than voluntary, it will not give rise to a waiver of the right to appeal from the judgment. See, e.g., Traders State Bank of Poplar v. Mann (1993), 258 Mont. 226, 234, 852 P.2d 604, 609; Moore v. Hardy (1988), 230 Mont. 158, 162, 748 P.2d 477, 480; LeClair v. Reiter (1988), 233 Mont. 332, 335, 760 P.2d 740, 742; First Nat’l Bank in Eureka v. Giles (1986), 225 Mont. 467, 468, 733 P.2d 357, 358 (citing First Nat’l Bank in Eureka v. Giles (Mont. 1986), 43 St.Rep. 1326, 1327-28). However, that voluntary versus involuntary analysis, in the context of mootness, was in error. Although the question of whether the appellant’s compliance with a judgment was voluntary or not has bearing on whether an appellant has waived his or her right of appeal, it has no bearing on the question of mootness.

The Rafn opinion is apparently the source of this voluntary versus involuntary distinction; however, in later cases, Rafn’s characterization of the issue has been misstated. See, e.g., LeClair, 760 P.2d at 742. In Rafn, the district court prohibited the Montana Liquor Control Board from issuing beer and liquor licenses to persons other than those who had permits from the Blackfeet Tribe. Rafn, 304 P.2d at 919. The district court entered a writ compelling the Board to issue licenses to those parties who had tribal permits. Rafn, 304 P.2d at 919. The Board attempted to stay the issuance of the writ at the district court and at this Court. This Court, however, was not in session. Thus, the writs “were delivered to the [tribal permit holders] under protest and involuntarily” and tribal permit holders began to sell liquor and beer. Rafn, 304 P.2d at 919. Nonetheless, the Board members pursued their appeal and we held that:

[B]ecause their compliance with the mandate of the lower court was coerced by the threat of punishment for contempt had they disobeyed, they have by obeying lost none of their rights to appeal and that they are entitled to a review here.

Rafn, 304 P.2d at 919. This Court went on to state that if the involuntary or coerced compliance with the district court’s order were the only issue, this Court may have been able to hear the merits of the appeal. Rafn, 304 P.2d at 919. The Court went on to hold, however, that “we may not be called upon to review here, and perhaps reverse, if our review is to no purpose and our reversal without effect.” Rafn, 304 P.2d at 920. The Rafn Court recognized that the question was moot regardless of whether the Board, voluntarily or involuntarily, had obeyed the writs issued. Rafn, 304 P.2d at 920.

The Court analyzed what effect reversing the district court might have and recognized that since the licenses had already been issued, the parties could not be returned to their respective positions at the time of the applications. Thus, the Court held that the appeal was moot. Rafn, 304 P.2d at 920.

A party may not claim an exception to the mootness doctrine where the case has become moot through that party’s own failure to seek a stay of the judgment. Gates v. Deukmejian (9th Cir. 1993), 987 F.2d 1392, 1408. In Gates, the Ninth Circuit held that by refusing to seek a stay of execution of the award, and by paying the amounts awarded, the defendants mooted any error in the interim award. Gates, 987 F.2d at 1408.

The question of mootness is different from the waiver of appeal rights, which is a concept that has worked itself into our prior mootness analysis. See, e.g., Traders State Bank, 852 P.2d at 609; LeClair, 760 P.2d at 742; Moore, 748 P.2d at 480; First Nat’l Bank in Eureka, 733 P.2d at 358; Montana Nat’l Bank of Roundup v. State Dep’t of Revenue (1975), 167 Mont. 429, 432-33, 539 P.2d 722, 724. In each of these opinions, we have mixed the doctrine of waiver with our discussion of mootness. For example, in Traders State Bank, we stated that:

As in LeClair, Mann Farms and John Mann did not voluntarily relinquish their real estate and personal property to the Bank; the Bank foreclosed. We conclude that the failure to post a supersedeas bond or otherwise stay the proceedings below does not render Mann Farms or John Mann’s appeal moot.

Traders State Bank, 852 P.2d at 609. As this quote illustrates, the issue of mootness was confused with the involuntary nature of the foreclosure. This is in error. The issue of mootness is separate and distinct from the question of waiver of appeal rights. Complying with the judgment does not necessarily render the appeal moot. However, if compliance is voluntary, the party may be said to have waived any objection to the judgment. This is a different question than the issue of mootness.

In deciding whether a case is moot, we determine whether this Court can fashion effective relief. Martin Dev. Co., 703 P.2d at 147-48; Rafn, 304 P.2d at 920. In a situation where a judgment has been satisfied by an involuntary payment or performance, the party cannot be deemed to have waived or acquiesced in the judgment such that the appeal would be precluded by prior conduct which is inconsistent with the appeal. However, that does not mean that the appeal is not moot. Rafn, 304 P.2d at 920-21. The fact that a party has not voluntarily waived its right to appeal does not necessarily mean that this Court can still provide effective relief.

In Traders State Bank, relying on a passage in LeClair which mischaracterized the holding in Rafn, we held that “where payment or performance of a judgment by an appellant is involuntary, the appellant does not acquiesce to the judgment and the right to appeal is not affected.” Traders State Bank, 852 P.2d at 609 (citing LeClair, 760 P.2d at 742). We went on to state that “[w]e expressly overruled Henke [Gallatin Trust and Sav. Bank v. Henke (1969), 154 Mont. 170, 461 P.2d 448] and, in effect First Sec. Bank [First Sec. Bank of Kalispell v. Income Properties, Inc. (1984), 208 Mont. 121, 675 P.2d 982] and held that the appeal was not moot because the defendant had not voluntarily surrendered the property.” Traders State Bank, 852 P.2d at 609.

We now determine that this line of authority is unnecessarily confusing and in error. Moreover, these decisions all resulted in affirmances in favor of the foreclosing creditor and failed to analyze the question of what, if any, relief could be fashioned in the event of a reversal. See Rafn, 304 P.2d at 920-21. Accordingly, we overrule Traders State Bank, 852 P.2d at 609; LeClair, 760 P.2d at 742; Moore, 748 P.2d at 480; First Nat’l Bank in Eureka, 733 P.2d at 358; and Montana Nat’l Bank of Roundup, 539 P.2d at 724, to the extent that they hold that the voluntary versus involuntary payment or performance distinction is dispositive on the question of mootness.

In addition, we note that Rule 7(b), M.R.App.P., sets forth the procedure to stay a foreclosure sale. Rule 7(b), M.R.App.P., provides:

Upon service of notice of appeal, if the appellant desires a stay of execution, the appellant must, unless the requirement is waived by the opposing party, present to the district court and secure its approval of a supersedeas bond which shall have two sureties or a corporate surety as may be authorized by law. ... When the judgment or order determines the disposition of property in controversy as in real actions, replevin, and actions to foreclose mortgages, or when such property is in the custody of the sheriff or when the proceeds of such property or a bond for its value is in the custody or control of the court, the amount of the supersedeas bond shall be fixed at such sum only as will secure the amount recovered for the use and detention of the property, the costs of the action, costs on appeal, interest, and damages for delay. On application, the supreme court in the interest of justice may suspend, modify, restore, or grant any order made under this subdivision.

In the present case, the lien creditors failed to avail themselves of the protection of a stay of the proceedings under Rule 7(b), M.R.App.P. As Rule 7(b), M.R.App.P., makes clear, the lien holders should have sought a stay of the foreclosure sale.

After considering the issue of mootness in the foreclosure context, as well as Rule 7, M.R.App.P, we conclude that our holdings in First Sec. Bank of Kalispell v. Income Properties, Inc., Gallatin Trust and Sav. Bank v. Henke and State ex rel. Hagerty v. Rafn, correctly set forth the doctrine of mootness without inteijecting the concept of waiver and the distinction between voluntary and involuntaiy compliance.

Generally speaking, loss of property through foreclosure is involuntary and will not give rise to a waiver of the right to appeal from the judgment. For example, if the property has been foreclosed upon but not yet sold, it may still be possible for this Court to fashion a remedy. However, the underlying question we must confront in determining whether an appeal is moot is not whether the sale was involuntary, but, rather, whether or not this Court is in a position to grant effective relief.

In Martin Dev. Co., this Court determined that the appeal was not moot because, although a money judgment had been satisfied, no property had changed hands, and no third party interests were involved. The Court held that despite voluntary payment of the judgment, effective relief could still be granted. Martin Dev. Co., 703 P.2d at 147-48. However, our holding in Martin Dev. Co. contemplated a situation like the one raised in the instant case. In Martin Dev. Co., we noted that certain factors were not present; namely, that no property had changed hands and no third party interests were involved. Both of those elements are present in the case sub judice.

Here, the subject property has been sold at a sheriff’s sale and third party interests, albeit Turner’s, are involved. Further, there is no surplus from the sheriff’s sale for the lien creditors to attach. The appellants’ status as lien creditors who did not post a supersedeas bond or stay the proceedings at the District Court pending appeal, along with the fact that no surplus was recovered at the foreclosure sale, make it impossible for this Court to grant effective relief. The parties cannot be returned to the status quo. See Martin Dev. Co., 703 P.2d at 148; see also 9 James W. Moore et al., Moore’s Federal Practice ¶ 208.03 (2d ed. 1994) (stating that there is a particular danger of dismissal for mootness and, thus, a special need for seeking a stay when the district court refuses to enjoin or, as in this case, orders a sale of the property).

As this Court recognized in Martin Dev. Co., when there is no effective relief this Court can fashion, the appeal is moot. Martin Dev. Co., 703 P.2d at 147-48. Appellants allowed foreclosure sale to proceed, did not stay the proceedings, and did not post a supersedeas bond. As has been recognized, there is a danger of dismissal for mootness and, thus, a special need for seeking a stay when the sale of property is ordered and is not enjoined. A party who is confronted with a judgment ordering a foreclosure sale and who allows the foreclosure sale to proceed runs the risk that his appeal will thereby be rendered moot. Moore et al., supra at ¶ 208.03.

In summary, the voluntary versus involuntary distinction still has meaning in ascertaining whether an appeal is barred due to waiver. Thus, if an appellant has voluntarily complied with, or performed a judgment, that voluntary compliance may result in a waiver of that party’s right to appeal and, thus, it would be unnecessary for this Court to address the question of mootness. In a like manner, when compliance is involuntary, as in most foreclosure actions, the appeal is not barred or waived, but may, nevertheless, be moot to the extent that this Court cannot grant any effective relief. That peril has come to pass in the instant case. At this time, this Court cannot grant effective relief.

We therefore dismiss issues one through four of the appeal as moot and proceed to a discussion of issue five, which was raised by Turner on cross-appeal.

5. Did the District Court err in amending its Memorandum and Order for Summary Judgment when it deleted Turner’s award of costs and attorney’s fees?

In 1987, Kerin filed suit to foreclose its construction lien. Figgins Sand & Gravel and Johnston Excavating were named as defendants in the suit, and Figgins counterclaimed and cross-claimed seeking a determination of the priority of the liens and foreclosure of its lien. In that action, the mortgagees who were Turner’s predecessors in interest were also named as defendants, however, the action was stayed because of the bankruptcy petition filed by Ameritrust. Turner obtained an order from the United States Bankruptcy Court for the Eastern District of California abandoning the trustee’s interest in the Royal Village subdivision.

After obtaining this order, Turner filed suit to foreclose on the Royal Village subdivision on December 30, 1992. In February of 1993, Turner’s suit was consolidated with the lien creditors’ suit. In an attempt to invalidate Turner’s mortgage and to obtain priority and validity of their liens, the lien creditors filed counterclaims and cross-claims. After a protracted dispute between the lien creditors and Turner, both Figgins and Turner filed motions for summary judgment. Turner’s brief in support of his motion for summary judgment included a request for attorney's fees and referenced § 71-3-124, MCA.

In its March 14, 1995, Memorandum and Order for Summary Judgment, the District Court awarded Turner his costs and attorney’s fees pursuant to §§ 71-1-233 and 71-3-124, MCA. Lien creditors moved the District Court to reconsider its award of costs and attorney’s fees and, on April 27, 1995, the District Court entered its Order Amending Summary Judgment striking the award. On cross-appeal, Turner argues that the lien creditors waived their right to object to the award of costs and attorney’s fees and, further, that the District Court was without the power to amend the original award. Lien creditors rely on Rules 52(b) and 60(b), M.R.Civ.P., as authorizing the District Court to amend its order. Even assuming that the court had authority to amend the award, an amendment denying the fees previously awarded pursuant to § 71-3-124, MCA, was not appropriate. Section 71-3-124, MCA, provides:

In an action to foreclose any of the liens provided for by parts 3, 4, 5, 6, 8, or 10 of this chapter, the court must allow as costs the money paid for filing and recording the lien and a reasonable attorney’s fee in the district and supreme courts, and such costs and attorneys’ fees must be allowed to each claimant whose lien is established, and such reasonable attorneys’ fees must be allowed to the defendant against whose property a lien is claimed, if such lien be not established. [Emphasis added.]

In Home Interiors, Inc. v. Hendrickson (1984), 214 Mont. 194, 692 P.2d 1229, this Court resolved a question of whether a mechanics lien took priority over a trust indenture in favor of the lien creditor and awarded attorney’s fees to the lien creditor under § 71-3-124, MCA. Home Interiors, 692 P.2d at 1232. The Home Interiors decision simply awarded attorney’s fees to the lien creditors without giving a rationale as to how § 71-3-124, MCA, applied to the facts. The effect of the decision, however, is that the fees were to be paid, not by Jones (the owner of the property) but by Security Pacific, the holder of the trust indenture (mortgagee). Apparently, the Court was persuaded that since Security Pacific, as mortgagee, defended the suit on behalf of the owner, it should be held responsible for the lien creditors’ attorney’s fees. In the alternative, the Court may have considered the fact that Security Pacific later purchased the property at the foreclosure sale, thereby becoming the owner of the property. Without expressing any opinion on the correctness of these rationales, we note that they both work to the benefit of Turner, because he, like Security Pacific, is a non-owner mortgagee who defended against the lien claimants, as well as an owner who purchased the property at a sheriff’s sale.

Furthermore, in this case, it is difficult to determine who was the “owner” of the property at the time of suit because of the confusing, disputed and allegedly fraudulent conveyances and mortgages of the property and Ameritrust’s bankruptcy petition. Since the encumbrances on the property exceeded its fair market value, the Bankruptcy Court granted Turner’s motion to abandon the property. After the abandonment, Ameritrust, the title owner of the property, no longer had an interest.

Section 71-3-124, MCA, required an award of attorney’s fees to the party successfully defending the lien foreclosure. Carkeek v. Ayer (1980), 188 Mont. 345, 348, 613 P.2d 1013, 1015. Thus, under the unique facts of this case, the District Court was correct in its original order which granted costs and attorney’s fees to Turner pursuant to § 71-3-124, MCA.

The proceedings evolved into a contest to determine the priorities and validity of various construction liens and mortgages as well as an action by Turner to foreclose on the mortgages. Lien creditors and Turner were the principal parties to the litigation and the priority of the construction liens and their foreclosure was central to the litigation. Here, Turner was not only attempting to determine the priority of his mortgages and foreclose on them, he was also defending against the construction lien holders’ foreclosure suits. Thus, under the unique circumstances of this case regarding the abandonment of the property by the bankruptcy trustee and Turner’s subsequent action as a principal party, the award was proper under § 71-3-124, MCA.

We reverse and remand for a determination of Turner’s costs and attorney’s fees pursuant to § 71-3-124, MCA.

JUSTICES NELSON, HUNT, ERDMANN, TRIEWEILER and GRAY concur.

      . We note that the result in Home Interiors is inconsistent with our mootness holding in issue one in the instant case. However, the parties in Home Interiors did not raise the issue of mootness, nor did we discuss that issue in the opinion. Accordingly, we do not overrule our decision in Home Interiors.


author: JUSTICE LEAPHART JUSTICE ERDMANN CHIEF JUSTICE TURNAGE,

text:
    GARY STRATEMEYER and CAROL STRATEMEYER, Plaintiffs and Appellants, v. LINCOLN COUNTY, JIM MOREY, NOEL WILLIAMS, and LARRY DOZEL, in their capacity as LINCOLN COUNTY COMMISSIONERS, and RAY NIXON, in his capacity as LINCOLN COUNTY SHERIFF, Defendants and Respondents.
    No. 95-326.
    Submitted January 11, 1996.
    Rehearing Denied May 7, 1996.
    Decided April 5, 1996.
    53 St.Rep. 245.
    915 P.2d 175.
    276 Mont. 67.

      For Appellants: Sydney E. McKenna (argued); Marsillo, Tornabene, Schuyler & McKenna, Missoula.
    For Respondents: James E. Vidal (argued) and James M. Ram-low; Murray & Kaufman, Kalispell.
    For Amicus Curiae: Lawrence A. Anderson (argued), Attorney at Law, Great Falls (for Montana Trial Lawyers Association).
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Gary Stratemeyer (Stratemeyer) appeals from the June 19, 1995, Order Granting Motion to Dismiss and Order of Dismissal of the Nineteenth Judicial District Court, Lincoln Comity, concluding that the statute of limitations barred Stratemeyer’s claim, that the Workers’ Compensation Act provided Stratemeyer’s exclusive remedy, and that Lincoln County, the Lincoln County Commissioners, and the Lincoln County Sheriff (collectively Lincoln County) breached no duty owed to Stratemeyer. We reverse.

We consider the following issues on appeal:

1. Did the District Court err in determining that Stratemeyer’s suit was not timely filed?

2. Did the District Court err in determining that the Workers’ Compensation Act provided Stratemeyer’s exclusive remedy?

3. Did the District Court err in determining that the Montana Safety Act did not apply to Stratemeyer’s claim?

This is Stratemeyer’s second appeal to this Court arising out of mental injuries he suffered while on duty as a deputy sheriff in Lincoln County, Montana. Stratemeyer v. Lincoln County (1993), 259 Mont. 147, 855 P.2d 506, cert. denied, _ U.S. _, 114 S.Ct. 600, 126 L.Ed.2d 566. Stratemeyer observed a traumatic gunshot injury to a suicide victim and alleges that he has suffered severe mental and emotional distress as a result of Lincoln County’s failure to train, counsel, and debrief him following the incident.

On May 4, 1990, Stratemeyer, an eight-year veteran of the Lincoln County Sheriff’s Department, responded to a suicide call. En route to the scene he learned that the victim, a teenage girl, was still alive. Upon arriving at the victim’s home, Stratemeyer was led to the bedroom where he found a seventeen-year-old girl who had shot herself in the head. The girl, covered in blood, was being held in her father’s arms. Stratemeyer forcibly removed the girl from her father’s arms and began administering cardiopulmonary resuscitation. When the ambulance arrived, Stratemeyer assisted the crew in loading the girl onto the gurney and into the ambulance. Shortly after escorting the ambulance to the hospital, Stratemeyer was dispatched to the scene of another accident. Later that evening, Stratemeyer learned that the girl had died.

Thereafter, Stratemeyer was plagued by thoughts of the girl’s suicide and his decision to tear the victim from her father’s arms during her last moments of life. Although Stratemeyer continued to report to work, he began to experience a lack of concentration and mental disorientation. Subsequently, Stratemeyer was diagnosed with post-traumatic stress disorder. Since the incident, Stratemeyer has been unable to return to his job with the Lincoln County Sheriff’s Department.

Stratemeyer filed a workers’ compensation claim on May 25, 1990, which was denied four days later. After Stratemeyer’s workers’ compensation claim was denied, he petitioned the Workers’ Compensation Court for a hearing regarding his wage loss benefits and medical expenses. The Workers’Compensation Court determined that Stratemeyer did not suffer an “injury” as defined in § 39-71-119, MCA. However, the court determined that subsections 3(a) and 3(b) of § 39-71-119, MCA, which exclude mental stress from the definition of injury were unconstitutional and violated the Equal Protection Clause of the Montana Constitution.

Lincoln County and its insurer appealed to this Court, and this Court determined that § 39-71-119, MCA, does not violate the Equal Protection Clause of the Montana Constitution because it is rationally related to the legitimate governmental objective of controlling the costs of the workers’ compensation program and providing benefits. Stratemeyer, 855 P.2d at 510. While Stratemeyer’s case was pending in this Court, Stratemeyer filed a tort claim against Lincoln County in Missoula County District Court on April 30, 1993. The District Court’s dismissal of Stratemeyer’s tort claim is the subject of the instant appeal.

1. Did the District Court err in determining that Stratemeyer’s suit was not timely filed?

In evaluating a Rule 12(b)(6) motion to dismiss, courts are required to construe a complaint in the light most favorable to the plaintiff. Loney v. Milodragovich, Dale & Dye, P.C. (1995), [273 Mont. 506], 905 P.2d 158, 160. A complaint should not be dismissed unless it appears that the plaintiff is not entitled to relief under any set of facts which could be proved in support of the claim. Loney, 905 P.2d at 160 (citing Boreen v. Christensen (1994), 267 Mont. 405, 408, 884 P.2d 761, 762). The District Court determined that although Stratemeyer’s complaint was filed within three years, as required by § 27-2-204, MCA, Stratemeyer had failed to first file his administrative claim with Lincoln County, as required by § 2-9-301, MCA, which, according to the District Court, was a prerequisite to filing suit. Thus, the District Court determined that Stratemeyer’s complaint failed to state a claim upon which relief could be granted because the administrative filing prerequisite of § 2-9-301, MCA, had not been satisfied. This determination is a conclusion of law. See Loney, 905 P.2d at 161. In reviewing a district court’s conclusions of law, we determine whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686; Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-04.

Lincoln County asserts that Stratemeyer’s claim should be barred because he did not first file his claim with Lincoln County. Section 2-9-301, MCA, sets forth the procedure for filing claims against the State and its political subdivisions. Lincoln County argued that because of Stratemeyer’s failure to comply with § 2-9-301, MCA, within the three-year statute of limitations, he is barred by the statute of limitations from pursuing his claim. The District Court agreed, concluding that § 2-9-301 and § 27-2-204, MCA, barred Stratemeyer’s claim. Section 2-9-301, MCA, provides:

(1) All claims against the state arising under the provisions of parts 1 through 3 of this chapter must be presented in writing to the department of administration.
(2) A complaint based on a claim subject to the provisions of subsection (1) may not be filed in district court unless the claimant has first presented the claim to the department of administration and the department has finally denied the claim. The department must grant or deny the claim in writing within 120 days after the claim is presented to the department. The failure of the department to make final disposition of a claim within 120 days after it is presented to the department must be considered a final denial of the claim for purposes of this subsection. Upon the department’s receipt of the claim, the statute of limitations on the claim is tolled for 120 days. The provisions of this subsection do not apply to claims that may be asserted under Title 25, chapter 20, by third-party complaint, cross-claim, or counterclaim.
(3) All claims against a political subdivision arising under the provisions of parts 1 through 3 shall be presented to and filed with the clerk or secretary of the political subdivision.

Lincoln County argues that Stratemeyer’s failure to present and file his claim with the Lincoln County Clerk and Recorder within the three-year statute of limitations bars his suit in district court. Stratemeyer contends that he did not pursue his tort claim in district court until this Court’s decision in Stratemeyer and the United States Supreme Court’s subsequent denial of his petition for a writ of certiorari had been handed down. He argues that had he attempted to submit his tort claims to the county before exhausting possible remedies under the Workers’ Compensation Act his tort claims would have been dismissed based on the exclusive remedy rule.

Stratemeyer contends that the plain language of § 2-9-301, MCA, does not require him to present his claim to the county clerk before filing in district court. He argues that subsection (3) of § 2-9-301, MCA, applies and that subsection (3), unlike subsections (1) and (2), does not require him to file with the clerk before filing a complaint in district court.

In construing a statute, “the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. The rules of statutory construction require the language to be construed according to its plain meaning. Clarke v. Massey (1995), 271 Mont. 412, 416, 897 P.2d 1085, 1088. If the language is clear and unambiguous, then no further interpretation is required; we will resort to legislative history only if the intent cannot be determined from the plain wording of the statute. Clarke, 897 P.2d at 1088. Where the intention of the legislature can be determined from the plain meaning of the words used in a statute, the courts may not go further and apply other means of interpretation. Clarke, 897 P.2d at 1088 (citing Tongue River Elec. Coop. v. Montana Power Co. (1981), 195 Mont. 511, 515, 636 P.2d 862, 864).

Lincoln County asserts that this Court has previously interpreted subsection (3) of § 2-9-301, MCA, to require a plaintiff to first file a claim against the entity before proceeding in district court. See Rouse v. Anaconda-Deer Lodge County (1991), 250 Mont. 1, 4, 817 P.2d 690, 691. However, the language in Rouse on which Lincoln County relies is dicta. In Rouse, we were considering whether the statute of limitations set forth in § 27-2-203, MCA, barred Rouse’s claims against Anaconda-Deer Lodge County. Rouse, 817 P.2d at 691. Rouse’s compliance with § 2-9-301(3), MCA, was not at issue. Although we stated that “the statutory requirements enacted by the legislature mandate a plaintiff asserting a cause of action against a governmental entity to first file a claim before that entity before filing an action in district court,” this sentence is not related to our holding in Rouse and it is contradicted by other language in the opinion. Rouse, 817 P.2d at 691. Later in the opinion we stated that:

With respect to claims against political subdivisions, the statutes do not state that a final disposition of the claim before a local tribunal is a prerequisite to filing an action in district court. The statutes also do not provide an automatic denial period claims made against a county or political subdivision similar to the 120 day period for claims against the state.

Rouse, 817 P.2d at 692. In Rouse, we recognized that the plain language of subsection (3) does not require a final disposition of the claim or an automatic denial period for the claim, yet, inexplicably, we read the “first file” requirement into the statute. This violates the mandate of § 1-2-101, MCA, and our rules for statutory construction. See Clarke, 897 P.2d at 1088. We reject our broad statement in Rouse which would require a claimant to “first file” his claim with the political subdivision before proceeding in district court. This statement is contrary to both our subsequent logic in that case and the plain language of the statute. To the extent that Rouse expresses an opinion inconsistent with our analysis in the instant case, Rouse is expressly overruled. We hold that although subsection (2) of § 2-9-301, MCA, requires that a claim first be presented to the Department of Administration, and that the department dispose of the claim before a plaintiff can file a complaint in district court, subsection (3) of § 2-9-301, MCA, contains no such requirement. Rather, § 2-9-301(3), MCA, merely requires that a claim be filed, it does not require that it be “first presented” or that it be acted upon before a complaint can be filed. Accordingly, we determine that Stratemeyer’s complaint, which was filed within three years pursuant to § 27-2-204, MCA, is not barred by his failure to first file an administrative claim with the Lincoln County Clerk pursuant to § 2-9-301(3), MCA.

2. Did the District Court err in determining that the Workers’ Compensation Act provided Stratemeyer’s exclusive remedy?

The exclusive remedy rule is perhaps the most firmly entrenched doctrine in workers’ compensation law. See, e.g., Workmen’s Compensation Act, 1915 Mont. Laws 168; Shea v. North-Butte Mining Co. (1919), 55 Mont. 522, 179 P. 499. The rationale for adopting workers’ compensation legislation was to guarantee workers with work-related injuries some form of compensation in exchange for relinquishing any potential tort claims against their employers.

The enactment of the Workers’ Compensation Act was essentially a compromise between industry and labor — workers received guaranteed no-fault recovery, and industry was relieved of the possibility of large and potentially uncapped recoveries in the tort system. Lewis & Clark County v. Industrial Accident Bd. (1916), 52 Mont. 6, 8-11, 155 P. 268, 269-70. Montana’s exclusive remedy provision, § 39-71-411, MCA, provides:

For all employments covered under the Workers’ Compensation Act or for which an election has been made for coverage under this chapter, the provisions of this chapter are exclusive. Except as provided in part 5 of this chapter for uninsured employers and except as otherwise provided in the Workers’ Compensation Act, an employer is not subject to any liability whatever for the death of or personal injury to an employee covered by the Workers’ Compensation Act or for any claims for contribution or indemnity asserted by a third person from whom damages are sought on account of such injuries or death. The Workers’ Compensation Act binds the employee himself, and in case of death binds his personal representative and all persons having any right or claim to compensation for his injury or death, as well as the employer and the servants and employees of such employer and those conducting his business during liquidation, bankruptcy, or insolvency. [Emphasis added.]

Lincoln County argues that Stratemeyer’s employment was covered under the Act, thus, that the Act is his exclusive remedy. In asserting that a covered injury is necessary before the exclusivity provision can be applied, Stratemeyer relies on the second sentence of § 39-71-411, MCA, which provides that an employer is not subject to liability for the “death of or personal injury to an employee.” We find Lincoln County’s argument to be unpersuasive.

The quid pro quo between employers and employees is central to the Act; thus, it is axiomatic that there must be some possibility of recovery by the employee for the compromise to hold. The scope of immunity from tort relates to the definition of injury under § 39-71-119, MCA. As Professor Larson observed:

If ... the exclusiveness defense is a “part of the quid pro quo by which the sacrifices and gains of employees and employers are to some extent put in balance,” it ought logically to follow that the employer should be spared damage liability only when compensation liability has actually been provided in its place, or, to state the matter from the employee’s point of view, rights of action for damages should not be deemed taken away except where something of value has been put in their place.

2A Arthur Larson, The Law of Workmen’s Compensation § 65.40 (perm. ed. rev. vol. 1995).

By definition, the mental injury which Stratemeyer suffered is excluded from coverage under the Workers’ Compensation Act. Section 39-71-119(3), MCA. This is further evidenced by the policy statement added by the 1993 Montana Legislature to § 39-71-105(5), MCA. That section declares the “public policy” of the Workers’ Compensation Act. Section 39-71-105(5), MCA, provides:

It is the intent of the legislature that stress claims, often referred to as “mental-mental claims” and “mental-physical claims”, are not compensable under Montana’s workers’ compensation and occupational disease laws. The legislature recognizes that these claims are difficult to objectively verify and that the claims have a potential to place an economic burden on the workers’ compensation and occupational disease system. The legislature also recognizes that there are other states that do not provide compensation for various categories of stress claims and that stress claims have presented economic problems for certain other jurisdictions. In addition, not all injuries are compensable under the present system, as is the case with repetitive injury claims, and it is within the legislature’s authority to define the limits of the workers’ compensation and occupational disease system.

Thus, it is unequivocally clear that mental injuries, such as Stratemeyer’s, are beyond the scope of coverage of the Workers’ Compensation Act. Accordingly, under Lincoln County’s theory, employees would have no possibility of recovery for mental injuries and yet the employer would be shielded from all potential liability. If that were the case, the quid pro quo, which is the foundation of the exclusive remedy rule would be eliminated. Such a result would be contrary to the spirit and intent of the Workers’ Compensation Act. Cunningham v. Northwestern Improvement Co. (1911), 44 Mont. 180, 222, 119 P. 554, 566. Stratemeyer asserts that in light of the restrictive definition of injury in § 39-71-119, MCA, as well as the policy statement in § 39-71-105(5), MCA, there is no quid pro quo for workers who suffer “mental-mental” injuries. We agree. Absent the quid pro quo, the exclusive remedy cannot stand, and the employer is thus exposed to potential tort liability. Errand v. Cascade Steel Rolling Mills (Or. 1995), 888 P.2d 544, 552; Day v. NLO, Inc. (S.D. Ohio 1992), 811 F. Supp. 1271, 1279.

In Day, the plaintiffs asserted tort claims against their employer and the employer contended that the plaintiffs had not suffered an injury under Ohio’s Workers’ Compensation Law. Day, 811 F. Supp. at 1278. The plaintiffs argued that their injuries did not qualify as compensable injuries under Ohio’s Workers’ Compensation Act. In asserting their tort claims, the plaintiffs argued that their emotional distress injuries did not fall within the Ohio Workers’ Compensation Act’s definition of “injury.” Day, 811 F. Supp. at 1279 (discussing Ohio Rev. Code § 4123.01(C)). The court noted that the Ohio Act excluded “[p]sychiatric conditions except where the conditions have arisen from an injury or occupational disease....” Day, 811 F. Supp. at 1279 (quoting Ohio Rev. Code § 4123.01(C)). The court determined that “if an employee’s malady does not fall under the definition of an “injury” ... then the exclusivity provisions of workmens’ compensation do not apply.” Day, 811 F. Supp. at 1279.

The court noted that workers’ compensation claims involving emotional distress can be classified as “mental-mental” (mental stimulus, mental consequence), “mental-physical” (mental stimulus, physical consequence), or “physical-mental” (physical stimulus, mental consequence). Day, 811 F. Supp. at 1280 (citing 1B Arthur Larson, The Law of Workmen’s Compensation § 42.20-42.25 (perm. ed. rev. vol. 1991)). The court concluded that only “mental-mental” claims are actionable in tort in Ohio’s courts because Ohio’s exclusive remedy rule continues to govern “mental-physical” and “physical-mental” claims. Day, 811 F.Supp. at 1280 (citing Harover v. City of Norwood (Ohio Ct. App. 1988), 549 N.E.2d 1194).

The Day court opined, similar to the Montana Legislature in setting forth its “public policy” statement in § 39-71-105(5), MCA, that the subjectivity, costs, and the nature of damages involved in “mental-mental” claims led Ohio’s courts to reasonably determine that workers’ compensation does not cover these claims and, as a result, the employee may sue in tort. Day, 811 F. Supp. at 1281-82. However, given the facts of the case before it, the court concluded that the plaintiffs’ claims arose from a physical, non-mental stimulus and, as a result, the exclusivity provisions of Ohio’s Workers’ Compensation Law controlled. Day, 811 F. Supp. at 1280-81.

Likewise, in Errand, the Oregon Supreme Court concluded that the exclusivity provision of Oregon’s Workers’ Compensation Act did not shield the employer from the employee’s tort claims because the employee did not suffer a “compensable injury” as that term is defined in the Oregon Act. Errand, 888 P.2d at 552. The Workers’ Compensation Board determined that the injury suffered by the employee was not compensable. Thereafter, Errand brought a civil suit against his employer based on statutory and common law tort claims. Arguing that workers’ compensation was Errand’s exclusive remedy, the employer moved for and was granted summary judgment.

The Oregon Court of Appeals affirmed stating that “the exclusivity of the Act is not limited to claims that are ultimately determined to be compensable.” Errand, 888 P.2d at 546 (citing Errand v. Cascade Steel Rolling Mills, Inc. (Or. Ct. App. 1994), 869 P.2d 358, 360). However, the Oregon Supreme Court reversed, determining that:

In plaintiff’s workers’ compensation case, it was established that the employer had no liability to compensate plaintiff under the Workers’ Compensation Law. By providing for an employer’s freedom from “other” liability [tort liabilityJ, it may be inferred from the exclusivity provision that there must exist, as a predicate for that freedom, some actual liability under the Workers’ Compensation Law before the exclusivity provision may protect the employer from “all other liability. ” Thus, the text of the exclusivity provision, specifically its use of the term “liability,” further supports the conclusion that the statutory definition of “compensable injury” applies to ORS 656.018. [Emphasis added.]

Errand, 888 P.2d at 548. Although Oregon’s Workers’ Compensation Act uses different terminology than ours, the underlying principle of the opinion is equally applicable under our Act; namely, that the employer cannot receive the benefit of the exclusive remedy provision when the Act’s definition of “injury’ precludes any possibility of recovery for the particular injury at issue.

Section 1-2-107, MCA, provides that:

Whenever the meaning of a word or phrase is defined in any part of this code, such definition is applicable to the same word or phrase wherever it occurs, except where a contrary intention plainly appears.

Therefore, the definition of injury in § 39-71-411, MCA, must be construed consistently with the restrictive definition of injury in § 39-71-119, MCA. Thus, an injury excluded by § 39-71-119, MCA, necessarily must be excluded as an injury from the exclusive remedy provision of § 39-71-411, MCA. The exclusive remedy rule applies only if the injury suffered by the worker is covered by the Act. Sections 39-71-119 and 39-71-411, MCA; see also Day, 811 F. Supp. at 1280 (finding that Ohio’s exclusive remedy rule governs “mental-physical” and “physical-mental” claims). For example, in a “physical-mental” claim, where an employee loses an arm, that employee’s remedy under the workers’ compensation act is exclusive and he cannot recover in tort for emotional distress. By definition, under Montana’s Workers’ Compensation Act, Stratemeyer’s injury is excluded from coverage. Sections 39-71-105(5) and 39-71- 119(3)(a)-(b), MCA; Stratemeyer, 855 P.2d at 508-10. Thus, under both the definition of injury in § 39-71-119, MCA, and the statement of public policy in § 39-71-105(5), MCA, it is evident that “mental-mental” injuries were intended to be outside the scope of coverage of the Workers’ Compensation Act. It is equally evident that this exclusion defeats the' quid pro quo central to the Act. See Great Western Sugar Co. v. District Court (1980), 188 Mont. 1, 6, 610 P.2d 717, 720. Stratemeyer did not suffer an injury as defined in the Act and, therefore, the Act does not afford him any “remedy;” certainly not an “exclusive” remedy. Errand, 888 P.2d at 548. The exclusion of Stratemeyer’s “mental-mental” injury leaves him without workers’ compensation coverage and likewise removes Lincoln County’s shield from a tort claim. Thus, in keeping with the quid pro quo of the Act, we hold that Stratemeyer is allowed to proceed in tort against his employer.

3. Did the District Court err in determining that the Montana Safety Act did not apply to Stratemeyer’s claim?

In reviewing a district court’s conclusions of law, we determine whether the court’s interpretation of the law is correct. Carbon County, 898 P.2d at 686 (citation omitted). The existence of a duty is a legal question for the court, while breach of that duty is a question for the jury. Ganz v. United States Cycling Federation (1995), 273 Mont. 360, 903 P.2d 212, 215. The District Court determined that there was “no duty under Montana law which could have been breached by Defendants” and that Stratemeyer failed to state a claim under the Montana Safety Act, §§ 50-71-201 and 50-71-203, MCA. Specifically, the District Court concluded that:

Plaintiffs do not cite any authority which would extend the duty imposed by the safe place to work statutes to include alleged injuries for emotional distress which resulted from the Plaintiff observing a traumatic incident not caused by Defendants, and the Court concludes that there is no such Montana authority.

Stratemeyer contends that his claim is based on Lincoln County’s failure to train, supervise, treat and debrief him following the incident. According to Stratemeyer, the traumatic nature and consequences of responding to the suicide were foreseeable, and post-traumatic stress disorder is a common injury for law enforcement personnel, emergency medical technicians and disaster and emergency services personnel. He alleges that the District Court interpreted the Montana Safety Act too narrowly, when it construed it to include only physical harm. We agree.

Section 50-71-201, MCA, provides in relevant part:

Each employer shall:

(1) furnish a place of employment that is safe for each of his employees;
....
(4) do any other thing reasonably necessary to protect the life, health, and safety of his employees.

The plain language of the statute does not limit its application to only physical harm. Rather, § 50-71-201(4), MCA, and § 50-71-203(3)-(4), MCA, contain the broad duty to “do any other thing reasonably necessary to protect the life, health, and safety of his employees.” Although it remains a question for the finder of fact to determine whether the employer breached its duty in failing to train, supervise, treat, or debrief Stratemeyer, we determine here that the Montana Safety Act is applicable to mental as well as physical injuries. We hold that the District Court erred in concluding that the Montana Safety Act does not encompass mental or emotional distress type injuries.

Reversed and remanded.

JUSTICES HUNT, TRIEWEILER, NELSON and GRAY concur.

JUSTICE ERDMANN

concurring in part and dissenting in part.

I concur with the majority’s holding on Issue 1, respectfully dissent from its holding on Issue 2, and join with Chief Justice Turnage’s dissent on Issue 3. Gary Stratemeyer’s mental injuries resulted from duties performed within the scope of his employment as a Lincoln County Sheriff’s Deputy. See Stratemeyer v. MACO Workers Corp. Trust (1993), 259 Mont. 147, 855 P.2d 506 (Stratemeyer I). The legislature has declared that mental injuries are not compensable under the Workers’ Compensation Act. Section 39-71-105(5), MCA.

In Stratemeyer I this Court held that the exclusion of mental injuries without physical manifestations was rationally related to a legitimate government objective of controlling the costs of the workers’ compensation program. Stratemeyer then filed a tort action against Lincoln County in district court. The District Court dismissed the action on the basis that the Workers’ Compensation Act provided the exclusive remedy for Stratemeyer. The majority has now reversed this determination and has held that even though Stratemeyer’s employment was covered under the Act, since his injury is not compensable under the Act the exclusive remedy provisions do not apply. In doing so, the Court avoids a harsh result and if it were within this Court’s province to do so, I would certainly join the majority. However, the scope of coverage for employment-related injuries should remain within the province of the legislature and its power to define and amend the Workers’ Compensation Act.

The majority correctly notes that the exclusive remedy rule is perhaps the most firmly entrenched doctrine in workers’ compensation law. Montana’s exclusive remedy provision provides in part:

For all employments covered under the Workers’ Compensation Act or for which an election has been made for coverage under this chapter, the provisions of this chapter are exclusive.

Section 39-71-411, MCA (emphasis added). There is no dispute that Stratemeyer’s employment was covered under the Act and therefore the remedy provisions of the Act, no matter how harsh, are exclusive.

I do not agree with the majority’s interpretation of the language in § 39-71-411, MCA, which states that “an employer is not subject to any liability whatever for the death of or personal injury to an employee covered by the ... Act.” (Emphasis added.) The language is unambiguous and simply states that the employer is not liable for injuries to its employees covered under the Act. The majority misinterprets the language to create an exclusivity provision that is injury-driven, rather than employment-driven. The majority states that “[t]he exclusive remedy rule applies only if the injury suffered by the worker is covered by the Act.” On the contrary, under the plain language of § 39-71-411, MCA, the focus should not be on the type of injury incurred but instead on whether the injury occurred within the scope of employment.

The majority supports it conclusion by overlaying the definition of “injury” found in § 39-71-119, MCA, onto § 39-71-411, MCA. Such a stretch is not necessary, as the language of § 39-71-411, MCA, standing on its own, is clear when it states that “[f]or all employments covered under the ... Act... the provisions of this chapter are exclusive.”

The majority’s reliance on Errand v. Cascade Steel Rolling Mills (Or. 1995), 888 P.2d 544, is not persuasive. In discussing that case, the majority notes in passing that the language of the Oregon Workers’ Compensation Act differs from ours. However, I find the difference in the statutory language to be significant. The Oregon exclusivity provision provides that a complying employer’s liability “is exclusive and in place of all other liability arising out of compensable injuries to the subject workers” and that the “rights given to a subject worker ... for compensable injuries under this chapter are in lieu of any remedies they might otherwise have for such injuries against the worker’s employer.” Errand, 888 P.2d at 546-47 (quoting Or. Rev. Stat. 656.018(1) and Or. Rev. Stat. 656.018(2)).

The Oregon Legislature, unlike ours, has chosen to specifically tie its exclusivity provision to “compensable injuries.” Our legislature could certainly choose to restrict Montana’s exclusivity provision to “compensable injuries,” but has chosen not to do so. The Montana Workers’ Compensation Act is the exclusive remedy for all employ-merits covered under the Act, regardless of the nature of the injury involved.

I agree with the majority that the quid pro quo between employers and employees is central to the Act, but it is a legislatively created quid pro quo and, within constitutional limits, is defined by the legislature.

The majority’s rationale that the employer is shielded from liability only for those injuries covered under the Act essentially rewrites the language of § 39-71-411, MCA. This Court should not assume legislative functions by adding what the legislature has omitted, or by omitting what the legislature has added. Russette v. Chippewa Cree Housing Auth. (1994), 265 Mont. 90, 93-94, 874 P.2d 1217, 1219. The majority has added “covered injury” to the exclusive remedy statute, and therefore, has improperly assumed a legislative function. I would affirm the District Court on Issue 2.

* * *

CHIEF JUSTICE TURNAGE,

dissenting:

I join in Justice Erdmann’s dissent on Issue 2. I also respectfully dissent from the majority opinion on Issue 3.

The majority has interpreted Montana’s Safety Act as creating a duty on the part of the defendants and respondents to take steps to prevent psychological harm from incidents in the workplace. This interpretation stretches the Act far beyond the legitimate purposes for which it was enacted, with no citation to legislative history or case law as support for that extension. The absence of such citation is quite understandable, as none exists.

The Montana Safety Act was adopted in 1969. Discussion by advocates and legislators at the hearings on the bill centered around the need for employers to provide employees with safety equipment such as hard hats and boots. See Minutes of House Public Health, Welfare and Safety Committee, February 4,1969; Minutes of Senate State Administration Committee, February 24, 1969. When the Act was amended in 1991 to, inter alia, exclude a requirement that employers provide protective footwear for employees, it was again discussed at legislative hearings as a safeguard requiring employers to provide safety equipment for employees. See Minutes of House Labor and Employment Relations Committee, February 21, 1991; Minutes of Senate Labor and Employment Relations Committee, March 12, 1991.

The cases citing the Act, too, have involved the duty to protect from physical injury. See, e.g., Hondo v. PPG Industries, Inc. (1989) 236 Mont. 493, 771 P.2d 956 (worker became ill from paint fumes); Kemp v. Bechtel Const. Co. (1986), 221 Mont. 519, 720 P.2d 270 (worker injured in ditch cave-in); Cain v. Stevenson (1985), 218 Mont. 101, 706 P.2d 128 (worker fell on slippery cinder block “step” at exit from building under construction); Stepanek v. Kober Const. (1981), 191 Mont. 430, 625 P.2d 51 (worker fell from scaffolding); Reynolds v. Burlington N. (1980), 190 Mont. 383, 621 P.2d 1028 (runaway railway cars struck worker); Shannon v. Howard S. Wright Const. Co. (1979), 181 Mont. 269, 593 P.2d 438 (worker fell from ladder).

Expanding the Montana Safety Act to require employers to provide training, supervision, treatment, and debriefing to protect workers from on-the-job psychological harm may be a valid subject for discussion among the peoples’ elected representatives in Montana’s legislature. In my view, however, it is not appropriate for accomplishment by judicial fiat, as the majority does here. I respectfully dissent.


text:
    STANLEY RASMUSSEN, Personal Representative of the Estate of FRED PELZMAN, Deceased, Plaintiff and Respondent, v. JOE R. LEE, Defendant and Appellant.
    No. 95-272.
    Submitted on Briefs February 15, 1996.
    Order Denying Rehearing May 9, 1996.
    Decided April 9, 1996.
    53 St.Rep. 263.
    916 P.2d 98.
    276 Mont. 84.

      For Appellant: Gorham E. Swanberg and Matthew Hutchison, James, Gray & McCafferty, Great Falls.
    For Respondent: John P. Wuerthner, Wuerthner & Wuerthner, Great Falls; Kenneth R. Olson, Attorney at Law, Great Falls.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

This is an appeal from a decision of the Ninth Judicial District Court, Teton County, granting summary judgment on the claim of unlawful detainer in favor of Stanley Rasmussen, personal representative of the estate of Fred Pelzman (the estate). We affirm.

Joe Lee has requested that we strike certain evidence referenced in the estate’s brief. The evidence referred to was not considered by this Court in our decision. Lee’s request is therefore moot and we choose not to rule on his motion to strike.

We restate the issues as follows:

1. Did the District Court err in granting summary judgment in favor of the estate on the estate’s claim of unlawful detainer?

2. Did the District Court err in requiring Lee to post a $60,000 supersedeas bond?

FACTS

Fred Pelzman owned an 800 acre ranch in Teton County, north of Choteau. Lee and his wife moved to Choteau in 1977. Lee struck up an acquaintance with Pelzman and subsequently entered into a series of transactions with him. They apparently entered into a work/share agreement in 1977, but no copy of that agreement was produced.

On July 25, 1978, Lee prepared a lease between his wife and Pelzman covering a two-year period which began in November 1977 and ended in November 1980. The lease covered the ranch, fifty-five cows, and two bulls for an annual rental of $3,000. Lee also drafted a “Right of First Refusal,” dated February 15, 1978, purporting to grant to Lee the right to purchase the Pelzman ranch for fair market value. Five weeks later, Lee drafted another document which was also entitled a “Right of First Refusal” granting to him the right to purchase the ranch for $120,000.

After the lease between Lee’s wife and Pelzman expired, Lee drafted another lease. The second lease was between himself and Pelzman and covered the ranch, fifty cows, and two bulls for $3,000 per year. The lease commenced January 1, 1981, and expired by its own terms on December 31, 1985.

Pelzman died in May 1986. Following his death, his estate wrote two letters to Lee giving Lee notice that his lease would be terminated on December 31, 1986, which included a one-year extension by implication. The estate demanded possession of the ranch and cattle on or before January 1,1987. Lee refused to relinquish the property.

In September 1986, Lee filed an action for specific performance to exercise his option in purchasing Pelzman’s ranch and cattle for fair market value. The district court determined that Lee had no option, but rather a right of first refusal which had not come into effect because there was no notice of any intent by Pelzman or his estate to sell. The district court’s decision was affirmed by this Court in Lee v. Shaw (1991), 251 Mont. 118, 822 P.2d 1061.

In March 1987, the estate filed an action asking that Lee’s lease be terminated. The complaint was amended in April 1989 to allege an action for unlawful detainer. The issue of Lee’s right to possession of the ranch was bifurcated from the damage issue pursuant to Lee’s motion.

In the meantime, the estate executed a purchase and sell agreement dated July 10, 1992, with another party. Lee brought an action against Pelzman’s estate for specific performance to enforce the agreement giving Lee the right of first refusal to buy the ranch for a specified price. The district court concluded, and we agreed, that Lee waived his right of first refusal and therefore the ranch was available for other offers. Estate of Pelzman (1993), 261 Mont. 461, 863 P.2d 1019.

As for the present bifurcated action, the District Court found there was no genuine issue of material fact and concluded that summary judgment was appropriate for the unlawful detainer action. The court found that Lee was notified by the estate in June 1986 that his lease would terminate on January 1, 1987. The court concluded that the continued holding by Lee of the property from that date triggered the unlawful detainer statute. Accordingly, the District Court granted summary judgment in favor of Pelzman’s estate on April 21, 1995, and ordered Lee to vacate the premises. From that decision, Lee appeals.

Lee requested a stay of the District Court’s order pending appeal. The District Court granted Lee’s request and set a supersedeas bond in the amount of $60,000 to cover damages incurred by the estate due to Lee’s continuous possession of the ranch during the coruse of this appeal. Lee also appeals from the court’s setting of the supersedeas bond.

ISSUE 1

Did the District Court err in granting summary judgment in favor of the estate on the estate’s claim of unlawful detainer?

We review a district court’s grant of summary judgment using the same evaluation as the district court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903.

The movant must demonstrate that no genuine issue of material fact exists. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.

Bruner, 900 P.2d at 903 (citations omitted).

In its order granting summary judgment and requiring restitution of premises, the District Court found that “Lee has presented no sworn evidence that demonstrates any genuine issue of material fact as to his claimed right to continued possession of the property in question, as is his burden in a summary judgment proceeding, once the proponent of summary judgment has demonstrated the lack of such issues of fact.”

On appeal, Lee claims a question of fact exists as to whether the estate consented to his remaining on the property. Such consent would be fatal to a claim of unlawful detainer. In reviewing Lee’s brief in opposition to the summary judgment motion and the transcript of the District Court hearing, we have determined that Lee did not present to the District Court the argument that the estate consented to Lee’s possession of the property. We will not address an issue presented for the first time on appeal. Fandrich v. Capital Ford Lincoln Mercury (1995), 272 Mont. 425, 431, 901 P.2d 112, 115-16. Therefore, the issue of the estate’s consent is not before us.

Lee also claims a question of fact exists as to whether the agreement between him and Pelzman dated March 20, 1978, provided for Lee’s possession of the property until time of sale. Lee contends the estate could not unilaterally terminate the lease where its term was set forth in the March 20 agreement, and therefore, the estate’s June 1986 termination notice was ineffectual.

The March 20, 1978, agreement provides in pertinent part:

I, Fred Pelzman, Sr., agree to give Joe R. and Floie N. Lee first option to purchase property I own in the above Legal Description upon or before my passing for the sum of one hundred and twenty thousand dollars. It is agreed by the undersigned that the option holders will reside and maintain the said property until time of sale. A ledger of time and improvements will be kept for the purpose of reimbursement by the landowner. Upon notification of intent to sell, a period of 45 days will be allowed for payment.

In Lee, we determined that the March 20 agreement granted a right of first refusal to the sale of the Pelzman property which is effective upon notice of intent to sell. Lee, 822 P.2d at 1064. The estate received an offer to purchase by another party and entertainment of that offer ripened Lee’s right of first refusal. Pelzman, 863 P.2d at 1021. We concluded, however, that Lee waived his right of first refusal and the estate could accept the other offer. Pelzman, 863 P.2d at 1022.

The only obstruction to the sale was Lee’s refusal to deliver possession of the property to the estate. ‘We have long held that one cannot benefit from his own wrong.” Payne v. Stratman (1988), 229 Mont. 377, 382, 747 P.2d 210, 213 (citing Roundup Cattle Feeders v. Horpestad (1979), 184 Mont. 480, 485, 603 P.2d 1044, 1047, and § 1-3-208, MCA). Accordingly, Lee cannot claim his possession of the property was lawful based upon the March 20 agreement. We conclude that the District Court did not err in finding there was no question of fact as to whether the March 20 agreement gave Lee possession of the property, and therefore, the estate’s notice of June 1986 effectively terminated the lease agreement.

The District Court found that the unlawful detainer statute, § 70-27-108(1), MCA, applied in this case due to Lee’s continued possession of the property after his rights were terminated. The District Court then concluded the estate was entitled to restitution of the premises pursuant to § 70-27-205(1), MCA. Lee asserts that if he was found to have possessed the property without permission, § 70-27-108(2), MCA, and its special notice provision for agricultural property would apply instead. Section 70-27-108, MCA, provides as follows:

A tenant of real property or mining claim, for a term less than life, is guilty of unlawful detainer:

(1) when he continues in possession, in person or by subtenant, of the property or any part thereof after the expiration of the term for which it is let to him without the permission of the landlord or the successor in estate of his landlord, if any there be, but in case of a tenancy at will, it must first be terminated by notice, as prescribed in 70-27-104;
(2) where he continues in possession, in person or by subtenant, without permission of his landlord or the successor in estate of his landlord, if any there be, after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and 3 days’ notice in writing requiring its payment, stating the amount which is due, or possession of the property shall have been served upon him .... In all cases of tenancy upon agricultural lands where the tenant has held over and retained possession for more than 60 days after the expiration of his term without any demand of possession or notice to quit by the landlord or the successor in estate of his landlord, if any there be, he shall be deemed to be holding by permission of the landlord or the successor in estate of his landlord and shall be entitled to hold under the terms of the lease for another full year and shall not be guilty of an unlawful detainer during said year, and such holding over for the period aforesaid shall be taken and construed as a consent on the part of a tenant to hold for another year',
(3) when he continues in possession, in person or by subtenant, after a neglect or failure to perform other conditions or covenants of the lease or agreement under which the property is held ....

(Emphasis added).

Lee argues that since he held over and retained possession of agricultural lands for more than sixty days after the expiration of the lease term without a demand or notice to quit by the estate, he is entitled to hold over under the terms of the prior lease for another year. The estate contends that subsection (2) applies only to tenants who have defaulted in the payment of rent. In opposition, Lee relies on our decisions in Holliday Land & Livestock Co. v. Pierce (1977), 174 Mont. 393, 571 P.2d 93, and Hamilton v. Rock (1948), 121 Mont. 245, 191 P.2d 663, where we applied § 70-27-108(2), MCA, to cases involving agricultural tenants where default in rent was not at issue. Those cases are distinguishable on their facts and are also based upon an erroneous interpretation of law.

In Hamilton, the tenant had a one-year lease. At the expiration of that lease, the landlord informed the tenant “all deals were off.” However, the landlord also said “[i]n the future if you wish to rent or buy the place, you have to see ... my agent.” Hamilton, 191 P.2d at 665. The tenant cut the hay crop after the expiration of the lease and the landlord claimed possession of the hay crop. Considering the landlord’s reference to continued possession of the land, the jury found the tenant was provided no notice to quit, and therefore, had a right to continued possession of the land and its crop for one year pursuant to § 9889, RCM (now codified at § 70-27-108(2), MCA). In contrast, Lee was provided notice of the termination of his lease and the unequivocal expectation by the estate that they sought possession of the property.

In Holliday, an agricultural tenant obtained a one-year lease which was extended to two years. After the end of the second lease term, the tenant remained on the property but paid no advance rental. Six months later, after the tenant’s crops had been planted, the landlord served the tenant notice to pay rent or abdicate possession of the property. The landlord subsequently filed a complaint for unlawful detainer. Holliday, 571 P.2d at 94.

In that case, this Court applied § 93-9703(2), RCM (the predecessor of § 70-27-108(2), MCA), and concluded that the tenant was presumed to have permission of the landlord for the full year and could not be found liable for unlawful detainer. Holliday, 571 P.2d at 95. The present case is distinguished from Holliday in that the estate did not request payment of rent in return for continuation of the lease but explicitly demanded possession of property as of January 1, 1987. Possession of property in this case is not due to default in rent, where iaHolliday it was. In fact, Lee tendered the annual 1986 rent of $3000 to the estate in December 1986. Therefore, our decision in Holliday does not apply.

In Holliday, however, we referred to our decision in Pipkin v. Connolly (1975), 167 Mont. 284, 538 P.2d 347, where we applied § 93-9703(2), RCM, to a holdover agricultural tenant who had not defaulted in rent. Pipkin, 538 P.2d at 348-49. The tenant was found liable for unlawful detainer by the district court and was ordered to deliver possession of the property with its crops to the landlord. Pipkin, 538 P.2d at 348. In that decision we stated:

Under [§ 93-9703(2), RCM] a hold-over tenant for sixty days without notice who invests time and seed will not lose this investment to the landlord. However, the statute gives him no more than the right to harvest his crop to protect his investment and protects him from liability in an action for unlawful detainer.

Pipkin, 538 P.2d at 351 (citing Miller v. Meredith, Hill and Whitfield (1967), 149 Mont. 125, 129, 423 P.2d 595, 597). We concluded that:

[The tenant] remained on the property sixty days after the lease terminated and planted their crops. Therefore, under section 93-9703(2), they had a right to harvest those crops and are protected from liability for unlawful detainer.

Pipkin, 538 P.2d at 351.

While this Court in Hamilton and Pipkin used § 70-27-108(2), MCA, to attain equitable results, we consider the application of that subsection in cases other than for default of rent to be in error. Section 70-27-108, MCA, provides three situations where a tenant can be found liable for unlawful detainer. Subsection (1) provides for continued possession “after expiration of the term for which it is let to him without the permission of the landlord.” Subsection (2) provides for continued possession “after default in the payment of rent.” Subsection (3) provides for continued possession “after a neglect or failure to perform other conditions or covenants of the lease.”

“[W]hen interpreting a statute all parts must be construed together without according undue importance to a single or isolated portion.” Sutherland Stat. Const. § 46.05. The provision Lee relies upon — the exception for agricultural property — is part of subsection (2). It is not referenced in any other part of that statute. Accordingly, the agricultural exception is applicable only to subsection (2) which is in the context of default of rent, and we overrule our holdings in Hamilton, 191 P.2d at 666, and Pipkin, 538 P.2d at 351, to the extent they are inconsistent with this interpretation of § 70-27-108(2), MCA.

Section 70-27-108(2), MCA, does not apply to the present case since the unlawful detainer action was not for default of rent. Notice subsequent to termination of the lease was not required. Lee was in possession of the property after expiration of the term for which it was let to him without the estate’s permission. Lee is therefore liable for unlawful detainer pursuant to § 70-27-108(1), MCA.

We conclude the District Court did not err in its interpretation of law, and we affirm the District Court’s grant of summary judgment in favor of the estate.

ISSUE 2

Did the District Court err in requiring Lee to post a $60,000 supersedeas bond?

The District Court granted to Lee a stay of execution pending appeal as to the unlawful detainer judgment and the matter of possession of the property involved. In connection with the stay, the District Court required Lee to post a supersedeas bond in the amount of $60,000.

The District Court based the bond amount on the estate’s loss of interest on the sale price agreed to by the third party. The court figured a reasonable rate of return of eight percent over a four-year period. The court also took into consideration costs the estate would incur on appeal and the damage the estate would suffer from the delay caused by appeal as it must maintain the property without reimbursement from any source when, without this proceeding, the property would be in the possession of the third party buyer who would bear such costs.

Lee contends the court erred in calculating the bond amount. According to the court’s calculations, eight percent interest on the agreed upon sale price of $165,000 for four years is $52,000. Lee maintains that this amount should be deducted from the supersedeas bond because it was improper for the court to presume the sale to the third party would come to fruition. Lee stresses that a buy/sell agreement is merely an agreement to agree and therefore speculative.

We review a district court’s order setting the amount of a supersedeas bond to determine whether the district court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason. Safeco Ins. Co. v. Lovely Agency (1985), 215 Mont. 420, 426, 697 P.2d 1354, 1358.

Previously, Lee asked this Court to exercise supervisory control and reduce the amount of supersedeas bond Lee was required to post. In our order of September 18, 1995, we determined there was no compelling reason why we should reduce the amount of Lee’s supersedeas bond. “The purpose of a supersedeas bond as a condition for staying enforcement and execution on a judgment is to secure the rights of the judgment creditor during the appeal process.” Safeco, 697 P.2d at 1358 (citing Poulsen v. Treasure State Industries, Inc. (1979), 183 Mont. 439, 442, 600 P.2d 206, 208).

The only event preventing the closing of the sale to the third party was Lee’s possession of the property. The District Court calculated the amount of interest the estate lost from its inability to reinvest any sale proceeds, the cost of taxes, and appeal expenses. We conclude now as we did then — there was a reasonable basis for the amount of the bond that the court established. Therefore, the District Court did not err in requiring Lee to post a $60,000 supersedeas bond.

We affirm.

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

      . By our interpretation of § 70-27-108(2), MCA, we also overrule the holdings in Miller v. Meredith, Hill and Whitfield (1967), 149 Mont. 125, 423 P.2d 595, Kenfield v. Curry (1965), 145 Mont. 174, 399 P.2d 999, and Enott v. Hinkle (1962), 140 Mont. 206, 369 P.2d 413, to the extent they are inconsistent with our opinion.