text:
    IN RE THE MARRIAGE OF PATRICIA HALSE NORDBERG, n.k.a. PATRICIA HALSE, Petitioner, Appellant, and Cross-Respondent, and DEAN V. NORDBERG, Respondent, Respondent, and Cross-Appellant.
    No. 93-355.
    Submitted on Briefs March 24, 1994.
    Rehearing Denied Aug. 11, 1994.
    Decided June 21, 1994.
    51 St.Rep. 531.
    877 P.2d 987.
    265 Mont. 352.

      For Appellant: Bonnie Swandal and Brenda R. Cole, Swandal, Douglass, Frazier & Cole, Livingston.
    For Respondent: W.G. Gilbert, Jr., and W.G. Gilbert, III, Dillon.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Patricia Halse Nordberg appeals from final judgment and decree entered June 29, 1993, in the Fifth Judicial District, Madison County, dissolving her marriage to Dean Nordberg and dividing the marital estate. Respondent cross-appeals the District Court’s division of the marital estate.

We affirm in part, reverse in part, and remand.

Appellant raises the following issues on appeal:

1. Did the District Court err in declaring the judgment from the dissolution of the parties’ first marriage “null and void” where the judgment required periodic installment payments from respondent to appellant for her interest in the ranch assets acquired during the parties’ first marriage?

2. Did the trial court err in failing to compensate appellant for her interest in the parties’ ranching operation developed during their second marriage?

Respondent’s issue on cross-appeal is:

Did the District Court err in its valuation and distribution of the marital estate?

Patricia Halse Nordberg (now known as Patricia Halse) and Dean Nordberg were first married on May 5, 1981, in Sheridan, Montana. Prior to the time the parties married, Patricia was a homemaker and Dean was an ironworker. He later worked in cattle operations. No children were born of this marriage, although both parties have adult children from other marriages. Patricia was formerly widowed and brought the following assets to the first marriage: a family business, a homestead with a house and 19 acres, bonds from inheritance, life insurance proceeds, and various properties. Dean’s assets consisted of gold coins and personal property, and part ownership of a home. During this marriage the parties accumulated real property and livestock, farm and ranching equipment, and machinery. At the time of the present dispute, Patricia was 59 years of age and worked part-time at a sewing shop, and Dean was 58 years of age and operated his ranching business.

On April 21, 1987, with each party represented by their own attorney, the marriage was dissolved and the parties’ submitted property settlement agreement was incorporated into the final decree. The settlement granted the couple all property individually acquired before the marriage. Patricia received the two rental properties acquired during the marriage. Dean was granted the livestock, valued at $75,320, and ranch vehicles, equipment, tools, and machinery, valued at $39,800. As part of the property settlement of the cattle and machinery, Dean agreed to pay to Patricia $80,000 as full settlement of her claim to the property. Pursuant to the terms of the agreement, Dean paid $30,000 upon execution of the agreement. Dean was to pay the remaining $50,000 in the following manner: the first installment of $25,000 was due one year from the agreement date, and the second installment of $20,000 was due two years from the agreement date; Dean was to execute two promissory notes for $10,000, with one note having a security interest in Dean’s cattle, and the other secured by a title lien interest in his two pickups; and an additional $5,000 certificate of deposit was due two years from the agreement date. Dean never executed the documents nor did he pay the installment payments.

The parties were remarried approximately seven months later on September 30, 1987. This subsequent marriage was dissolved on June 29, 1993. During this second marriage the couple obtained rental property and purchased more cattle. Patricia contributed her separately-owned real property for running the ranching operation and infrequently participated in the operation during this marriage. Dean maintained and managed the ranching operation.

On April 13,1992, Patricia filed for dissolution of her marriage to Dean. The parties’ relationship during the dissolution proceedings was hostile and both disputed the distribution of the assets. On April 21, 1992, prior to the entry of the final decree, Dean sold 52 cow/calf pairs. In June 1992, the court ordered the proceeds of the sale divided equally between the parties and granted $58,940 to each.

After the matter was heard before a Special Master on December 28-29, 1992, the Special Master issued findings of fact and conclusions of law. Both parties filed objections to these findings which were denied. On June 29,1993, the District Court issued a judgment confirming the Special Master’s findings, denying the parties’ objections, and declaring the February 3, 1987, judgment from the prior dissolution decree “null and void.” Patricia appeals the District Court’s findings distributing the property and voiding the prior dissolution judgment, and Dean cross-appeals the division of the marital estate.

ISSUE 1

Did the District Court err in declaring the judgment from the dissolution of the parties’ first marriage “null and void” where the judgment required periodic installment payments from respondent to appellant for her interest in the ranch assets acquired during the parties’ first marriage?

The first dissolution settlement agreement between the parties granted Dean the livestock and ranch vehicles, equipment, tools, and machinery. As part of the property settlement of the cattle and machinery, Dean agreed to pay to Patricia $80,000 as full settlement of her claim to the property. Dean paid $30,000 upon execution of the agreement. The remaining installments were never paid. Dean argues that the judgment from the prior dissolution settlement for the ranching operation was satisfied by his payments for property taxes on Patricia’s separate properties, by his payments for the parties’ income taxes, and also, by his contribution of physical labor to improve her separate property.

Unlike the first dissolution where the parties entered into a settlement agreement, they agreed that a Special Master would assist in the proceedings for division of the marital estate for the second dissolution. The District Court adopted the Special Master’s findings. In Finding of Fact No. 7, the court states:

Neither party has performed or complied with the terms of the prior Property Settlement Agreement and Decree. The Court finds that both parties are estopped from asserting any rights under the previous decree and agreement. Both parties should be discharged from any obligation under that judgment.

In the judgment, the court further stated that “[t]he previous decree in Madison County Cause No. 7449 entered between these parties is declared null and void.”

Prior to the time a property settlement is approved and merged into a decree, § 40-4-201, MCA, allows the court to determine whether the agreement is unconscionable. In Hadford v. Hadford (1981), 194 Mont. 518, 523, 633 P.2d 1181, 1184, this Court stated:

Under section 40-4-201(2), MCA, the courts are bound by a property settlement agreement signed by both parties unless the court then finds the agreement to be unconscionable. Under this statute, the court can determine the question of conscionability on its own motion, or either of the parties can raise this issue before the agreement is merged into a decree and becomes final. [Emphasis added].

After the trial court determines that the property settlement is not unconscionable, § 40-4-201, MCA, provides in part:

(4)(a) unless the separation agreement provides to the contrary, its terms shall be set forth in the decree of dissolution ... and the parties shall be ordered to perform them; or
(5) Terms of the agreement set forth in the decree are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms.

In the present case, the trial court found the parties’ settlement agreement was not unconscionable and the settlement was merged into the dissolution decree. The judgment became final when no appeal was taken by either party before the appeal time expired under Rule 5, M.R.App.P

In order to modify or revoke a final property disposition, § 40-4-208, MCA, requires in pertinent part:

(3) The provisions as to property disposition may not be revoked or modified by a court, except:
(a) upon written consent of the parties; or
(b) if the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state. [Emphasis added].

Rule 60(b), M.R.Civ.P., upon motion by a party or a party’s legal representative, for several enumerated reasons, allows relief from a final order, judgment, or proceeding. Since neither party filed a motion for relief in this matter, we consider the residual clause of Rule 60(b) which allows the filing of an independent action based on equitable grounds, stating in pertinent part:

This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as may be required by law, or to set aside a judgment for fraud upon the court.

Those parties requesting relief under the 60(b) residual clause may base their claim upon extrinsic fraud, lack of personal notification, and fraud upon the court. Brown v. Small (1992), 251 Mont. 414, 420, 825 P.2d 1209, 1213 (citing Salway v. Arkava (1985), 215 Mont. 135, 695 P.2d 1302). However, here, neither party sought to modify or revoke the original property settlement and decree under § 40-4-208, MCA, nor did either party seek to reopen the judgment under Rule 60(b), M.R.Civ.P. Pursuant to § 40-4-208, MCA, the court could not thereafter sua sponte vacate the judgment without the consent of the parties in writing or without a hearing. This property settlement was not merged into the second marriage, and according to the record, Dean still owes for this judgment. Those assets from the judgment are Patricia’s separate assets.

The District Court did not have jurisdiction to vacate the prior judgment. We need not discuss whether the court was justified to vacate the judgment based upon equitable estoppel. We hold that the District Court erred in declaring the judgment from the dissolution of the parties’ first marriage “null and void.”

ISSUE 2

Did the trial court err in failing to compensate appellant for her interest in the parties’ ranching operation developed during their second marriage?

Patricia argues that she was not compensated for her contribution to the ranching operation and that Dean received more than a majority of the marital assets resulting in an inequitable distribution. She asserts that she contributed the greater portion to the parties’ assets by her large financial contributions during the first marriage when she spent $90,919 of her separate funds to establish the ranching operation. She also argues that she made the following additional contributions during the second marriage without receiving her interest from the ranching operation: the contribution of $19,375 of her own separate funds to purchase additional cattle; the contribution of her separate real property for cattle grazing; and the financial contribution for all the parties’ personal living expenses and most of the property taxes and insurance.

Dean argues that because the judgment from the prior dissolution settlement for the ranching operation was satisfied as argued in the first issue, she received all her interest in the ranching operation from the first marriage. He also maintains that she made minimal contributions to the ranching operation during the second marriage and he made the greater contribution. He contends that although the District Court granted him the ranching operation, it fashioned an equitable distribution by adjusting all the marital assets between the parties, awarding her an interest in all the marital property, including the ranching operation, when it granted Patricia the rental properties and ring.

Distribution of the marital estate is determined by the guidelines in § 40-4-202(1), MCA, which provides in part:

In a proceeding for dissolution of a marriage ... the court, without regard to marital misconduct, shall... finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both.

This statute grants the district court broad discretion to apportion the marital estate equitably to each party under the circumstances. In re Marriage of Zander (1993), 262 Mont. 215, 222, 864 P.2d 1225, 1230, 50 St. Rep. 1522, 1524.

Our review of marital property divisions is whether the district court’s findings of fact are clearly erroneous. In re Marriage of Maedje (1994), 263 Mont. 262, _, 868 P.2d 580, 583, (citing In re Marriage of McLean / Fleury (1993), 257 Mont. 55, 849 P.2d 1012). If substantial credible evidence supports the court’s findings and judgment, this Court will uphold the district court’s decision unless there is an abuse of discretion. Maedje, 868 P.2d at 583. In the distribution of assets, the District Court upheld the order granting Patricia one-half the total received for the interim sale of cattle of $59,940. She received real property totaling $75,830, a diamond ring valued at $25,000, and debts totaling $13,500, with a net total of $147,270. She also received a myriad of personal properties and the following separate property inherited or owned prior to either marriage to Dean: a family business; several properties with large amounts of acreage; real properties and leases; rental properties; checking and savings accounts; an insurance annuity policy; various investment interests; several gold kruggerands, maple leafs, and ingots; and stock.

The court upheld the $59,940 distribution to Dean for the one-half interest in the interim sale of cattle, and granted him the ranching operation valued at $130,075 and debts associated with the operation totaling $35,624.24, along with the $5,500 debt associated with the diamond ring awarded to Patricia, giving a net total of $148,890.76. He also received miscellaneous personal property.

The record shows that the District Court properly considered the statutory requirements within § 40-4-202, MCA. The Special Master, in the memorandum in support of findings, stated:

The Court recognizes that the division of the marital estate is not equal in this matter. Respondent has received a slight majority of the marital estate. This finding is justified by the equities in this action when considering PATRICIAS extensive separate properties and DEAN’S relative lack thereof. It is in the Court’s discretion to divide the property in this matter.

Before distributing the marital property the court determined the value of the marital properties and debts, and found that the parties contributed to the marital assets either in the form of money or labor and management decisions. The court determined the contributions to be of equal value. The court also properly considered the source of the parties’ assets. In her argument that she should receive an interest in the ranching operation because she invested her separate assets in the operation, Patricia attempts to lump together all the monetary contributions she made during the parties’ first marriage and second marriage. As discussed above in the first issue, the marital assets in the first marriage were settled by the parties’ agreement. In the second dissolution, the District Court properly determined that the marital assets acquired only during the second marriage were to be considered marital assets.

Patricia argues that In re Marriage of Brown (1978), 179 Mont. 417, 587 P.2d 361, supports her argument that she should receive an interest in the ranch. In Brown, the husband received by inheritance the family ranch valued at $350,000 - $450,000. The District Court awarded the wife $25,000 as her interest in the ranch. This Court held that the award to the wife was an inequitable division of the marital estate given that the length of the marriage was 14 years, that the ranch was the whole of the marital estate, and that the appreciation of the ranch’s value was due to both parties’ efforts. However, in the present case, the ranching operation does not constitute the entire marital estate, as was the case in Brown. After finding that the parties’ contributions to the marital properties were equal, the court then moved on to distribute all of the marital property in an equitable manner. Patricia received the parties’ two real estate rental properties and the diamond ring, plus numerous personal property and her own separate property. Dean received the ranching operation and personal property.

The rule is settled that an equitable distribution does not require a 50/50 distribution of the marital assets. In re Marriage of Bowman (1987), 226 Mont. 99, 734 P.2d 197. It is equity, not equality that guides a court’s discretion in dividing the marital estate. In re Marriage of Fitzmorris (1987), 229 Mont. 96, 745 P.2d 353. We find that substantial credible evidence supports the findings, and the District Court did not abuse its discretion by awarding the ranching operation to Dean.

ISSUE 3

Did the District Court err in its valuation and distribution of the marital estate?

Dean argues that the District Court erred by not computing the net worth of the parties before distributing the marital property pursuant to § 40-4-202, MCA.

After the Special Master issued the findings concerning the division of assets, Dean did not object to the absence of net worth, but only objected to personal property he did not receive. This Court will not find error in a district court’s ruling or procedure where the appellant acquiesced, participated, or did not object. In re Marriage of Smith (1990), 242 Mont. 495, 501, 791 P.2d 1373, 1377. Moreover, an exact net worth finding is not required when the relevant factors are considered and adequately set forth by the court. In re Marriage of Skinner (1989), 240 Mont. 299, 304, 783 P.2d 1350, 1353 (quoting In re Marriage of Hunter (1982), 196 Mont. 235, 245, 639 P.2d 489, 494). Our review of the court’s findings reveals that the total marital estate value was $350,785, debts totaled $54,624.24, leaving a net worth of $296,160.76.

Dean also argues that Patricia’s property was undervalued and much of her property was improperly omitted from the marital estate. After the time for discovery was over, the Special Master denied Dean’s motion for production of documents, stating that the motion was untimely, and that the parties had been granted ample time for discovery and raising the new issues at the close of evidence would necessitate an unwarranted continuance of the hearing. Further, the court addressed the substance of the motion stating that the evidence was clear and convincing that Halse Enterprises was Patricia’s separate asset and that Dean did not facilitate the maintenance of the asset. Those assets belonging to a spouse prior to a marriage, or acquired by gift, bequest, devise, or descent during the marriage are not part of the marital estate unless the spouse made contributions in the preservation or interest in that property. In re Marriage of Smith (Mont. 1994), 871 P.2d 884, 51 St. Rep. 277.

We affirm the District Court’s valuation and distribution of the marital assets. We reverse and remand to the District Court to reinstate the prior judgment and for further proceedings to determine the balance owed to Patricia from the judgment.

JUSTICES HARRISON, TRIEWEILER, NELSON and WEBER concur.


source: Caselaw Access Project

author: JUSTICE NELSON

license: Public Domain

text:
    GORDON PATTON, WILLIAM WINN, ROBERT ALLEN, and VAL FARRELL, Petitioners and Respondents, v. MADISON COUNTY and THE BOARD OF COUNTY COMMISSIONERS, WILLIAM R. DRINGLE, Chairman; BYRON BAYERS, JOHN ALLHANDS, and WALTER KANNON, and HAMBLETONIAN INN, INC., Respondents and Appellants. DAN R. McCLAIN and MARY ALICE McCLAIN, Trustees under the DAN R. McCLAIN and MARY ALICE McCLAIN DECLARATION OF TRUST, Plaintiffs and Respondents, v. WALTER KANNON and HAMBLETONIAN INN, INC., Defendants and Appellants.
    Nos. 93-445 and 93-446.
    Submitted on Briefs March 31, 1994.
    As Amended June 28, and Aug. 10, 1994.
    Rehearing Denied July 26, 1994.
    Decided June 21, 1994.
    51 St.Rep. 536.
    877 P.2d 993.
    265 Mont. 362.

      For Appellant: James H. Goetz and Robert K. Baldwin, Goetz, Madden & Dunn, Bozeman.
    For Respondent: J. Robert Planalp, Landoe, Brown, Planalp & Braaksma, Bozeman; Loren Tucker, Madison County Attorney, Virginia City.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal by appellants Walter Kannon and Hambletonian Inn, Inc., from a Fifth Judicial District Court, Madison County, judgment enforcing the settlement agreement, dated August 17, an order dated July 7, 1993, and an order denying Kannon’s motion for summary judgment dated June 15, 1992. We reverse.

The following are issues on appeal:

I. Did the District Court err in enforcing the oral settlement dictated into the record on June 23, 1992?

II. Did the District Court err in denying Kannon’s May 5, 1992, motion for summary judgment regarding Patton’s lack of standing?

III. Did the District Court err in denying Kannon’s May 4, 1992, motion for summary judgment regarding McClain’s claim that Kan-non was violating the restrictive covenants?

IV. Did the District Court err in granting judicial review of the respondents’ challenge to the Board of County Commissioners’ approval of the recorded covenants in the instant case?

BACKGROUND

Initially, we provide some framework to assist in a more complete understanding of the present case. On October 26,1993, pursuant to Rule 4(b), M.R.App.P., counsel for the parties stipulated to the consolidation of the appeals in the two above captioned cases because of the numerous identical or overlapping issues. This Court ordered the two cases consolidated on October 27,1993.

The appellants in the first case are Madison County and the Board of County Commissioners (Board), the Hambletonian Inn, Inc. and Walter Kannon, who, with his family, is a shareholder in Hambletonian Inn, Inc. (collectively, Kannon). Kannon is also the president of Hambletonian Inn, Inc. The Inn owns Lots 3 and 4 in the Kenner Estates Minor Subdivision. The respondents (Patton respondents) in the first captioned case are owners of real property adjacent to the Kenner Estates Subdivision.

The appellants in the second captioned case are Walter Kannon and the Hambletonian Inn, Inc. (collectively Kannon). The respondents (McClain respondents) in the second captioned case live within the four tract Kenner Estates Subdivision. When all respondents from both cases are referred to, the term “respondents” will be used.

The following background material is gleaned from the petition in Patton v. Madison County, one of the two cases consolidated herein. The petition alleges the following:

That on or about November 29, 1988, the Madison County Planning Board considered the application of Bay Bank for approval of a four-lot subdivision known as Kenner Estates located on 24.8 acres adjacent to the Madison River.
On December 7, 1988, the Madison County Planning Board recommended to the Respondents that the preliminary plat for Kenner Estates be approved subject to State Department of Health and Environmental Sciences’ approval and covenants be recorded that provided no structures would be allowed on any of the four tracts except one single-family dwelling, one garage and one guest house.
That at the regular meeting of the Respondents on February 13, 1989, the application for preliminary plat approval of Kenner Estates was approved. ... This approval was conditioned on the applicants obtaining approval of the State Department of Health and Environmental Sciences and the recording of protective covenants that provide that no structure should be allowed on any of the four tracts except one single-family dwelling, a garage and a guest house.
After receipt of the preliminary plat approval, the applicant recorded a set of protective covenants that did not conform to the mandated terms of the approved protective covenants. ...
That since the approval of the subdivision, at least three of the four residential lots have been sold to purchasers. One such purchaser, Walter Kannon, has utilized his tract of land as a commercial hunting and fishing lodge which has housed, fed and entertained sportsmen for a fee.

The respondents further state in their brief that the Hambletonian Inn, Inc. closed the sale of Lot 3 on May 23, 1989, receiving title subject to the protective covenants of record, which had been previously filed on May 12,1989. They assert that on November 27,1989, they attended a Madison County Planning Board meeting for the express purpose of registering complaints that the Inn was being operated in violation of the protective covenants of the subdivision.

Finally, the respondents state in their brief:

The protective covenants as recorded are interpreted to mean that this is a residential subdivision and that there is allowed on each tract of land three structures: a single family dwelling, a two car garage and one guest house on Tracts 1, 2 and 3. There are no dog kennels allowed on any tract nor are there any stables for horses allowed on any tract except Tract 4. The phrase “existing structures excepted” means that any structures that presently existed within the subdivision that were not a dwelling, a two car garage or a guest house need not be torn down. Commercial operations are prohibited from the Kenner Estates Subdivision.

On April 30,1990, the Planning Board passed a motion accepting the Kenner Estates Subdivision and the covenants as recorded. The covenants as recorded were accepted even though the covenants proposed were not the same as those recorded. At the May 7, 1990 meeting of the Board of County Commissioners, the County decided to give their full support to the Planning Board’s decision to accept the covenants to the subdivision as recorded and followed their decision with a letter to the Planning Board. The respondents thereafter, filed two separate actions contesting the operation of the bed and breakfast on Lot 3.

I. ORAL SETTLEMENT AGREEMENT

Did the District Court err in enforcing the oral settlement dictated into the record on June 23, 1992?

Kannon asserts that the settlement agreement was not a binding agreement. Kannon insists that the “settlement” which was recorded at the June 23,1992 hearing was conditioned upon approval of a final settlement agreement. We agree.

The transcript of the proceedings on June 23, 1992, reveals the following testimony:

Secondly, although my clients are here and I believe all respective clients are here and I want them to consent to this in sum and substance, this is conditioned upon the approval of the appropriate settlement documents and covenants by the parties of record and their attorneys.

(Emphasis added.) Additionally, the testimony relates that:

We dictated into the record the hope that this matter can be drawn, submitted, approved and then a hearing scheduled by the County Commissioners very soon. ...

The Court, in reply to this statement, concluded:

Well, we’ll just continue it without a date and then counsel can keep in touch with me and keep me advised as to the progress. And we’ll schedule the matter if it has to be tried. Does there appear to be — are you in the ballpark? Is there going to be a settlement? Counsel then replied:

I think so. (Emphasis added.)

“An agreement is binding if made by an unconditional offer, and accepted unconditionally.” Hetherington v. Ford Motor Co. (1993), 257 Mont. 395, 399, 849 P.2d 1039, 1042. In the instant case, the settlement read into the record states that “this is conditioned upon the approval of the appropriate settlement documents and covenants.” (Emphasis added.) There is, therefore, no unconditional offer, and there can also, then, be no unconditional acceptance.

The intentions of the parties are those disclosed and agreed to in the course of the negotiations. A party’s latent intention not to be bound does not prevent the formation of a binding contract. Such a condition, that it will not be effective until signed, must be part of the agreement between the parties. (Citations omitted.)

Hetherington, 849 P.2d at 1042. Here, the intention of the parties, made clear on the record, was that the final settlement documents and covenants would have to be approved. The respondents’ attorney said he thought that there was going to be a settlement. The condition that the settlement would not be effective until signed was a part of the agreement between the parties. Hetherington, 849 P.2d at 1042. Therefore, there was no unconditional offer nor was there an unconditional acceptance.

Kannon also argues that there was no “meeting of the minds” on the material terms of the settlement and therefore, there was no binding agreement. Again, we agree. The transcript of June 23,1992, reveals that the agreement was conditional. Moreover, in the correspondence between the attorneys which followed the June hearing, the respondents’ attorney added extra restrictions in the list of covenants in their amended covenants dated July 13,1992. Kannon’s letter in response to the respondents’ amended covenants stated that further discussion would be appreciated regarding possible additions to existing structures. Additionally, the respondents did not reply to another set of amended covenants Kannon had prepared, and instead, wrote Judge Davis to request a trial date. These activities are not those of two parties who have had a “meeting of the minds.” Hetherington, 849 P.2d at 1043. The matters still at issue were not “subsidiary,” or “collateral,” they were central to the very performance of the contract. Hetherington, 849 P.2d at 1043. The parties’ disagreement did not involve any issue which could easily have been settled by the court’s ruling that the appropriate covenants could be drafted. Hetherington, 849 P.2d at 1043. The covenants could only have been drafted and approved by the parties. The terms of the covenant were the essential matters at issue. There was no meeting of the minds in the instant case, and therefore, no binding settlement.

Because there was no unconditional offer, no unconditional acceptance, and no meeting of the minds, there was neither an executory accord nor a substituted contract as argued by the parties. There was simply an attempted but non-binding settlement. We hold that the District Court erred in granting summary judgment in the respondents’ favor and also erred in its order enforcing the oral settlement transcribed in the June 23, 1992 record. Accordingly, we reverse the District Court on this issue.

II. STANDING

Did the District Court err in denying Kannon’s May 5,1992 motion for summary judgment regarding Patton’s lack of standing?

The appellants contend that the respondents in the present case lack standing to enforce the restrictive covenants or compel the county to enforce the covenants. The respondents argue that because they are neighbors, and were invited to participate in the subdivision process, they have standing to enforce the covenants. Moreover, they state that the restrictive covenants constituted a negative easement, enforceable by the neighbors.

While the public may be invited to or have a right to provide input into the subdivision process, it does not follow that, without ownership of property within the subdivision, statutory authorization or on the basis of some other legal theory not at issue here, members of the public necessarily have the right to enforce or to insist that the local government enforce restrictive covenants once those are approved by the local government as a part of the subdivision. We conclude that here, the neighbors outside of the subdivision do not have standing to enforce the restrictive covenants in the instant case. Lillard v. Jet Homes, Inc. (La. 1961), 129 So.2d 109, is instructive as to the rationale for not extending standing rights to those persons not a part of the subdivision. It states:

Where a tract of land is subdivided into lots and burdened with restrictive covenants, real rights are created running with the land in favor of each and all of the grantees. The basis of the creation of this right is the mutuality of burden and the mutuality of benefit as between the grantees arising out of the imposition of such restrictions on the land itself. This mutuality of burden and benefit constitutes reciprocal promises as between the grantees, each supported by that of the other.

Lillard, 129 So.2d at 111-112. (Emphasis added.) Moreover:

Anyone not a grantee within the particular area or subdivision covered by the restrictions in question acquires no right thereunder as there is no mutuality of benefit or mutuality of burden as between his lot in one subdivision covered by one set of general restrictions and a lot in another subdivision covered by another different, distinct, and separate set of general restrictions. This lack of mutuality, or privity, prevents the creation of the real right, or the extension of the real right burdening one defined area to another area not described or included therein.

Lillard, 129 So.2d at 112.

In the instant case, Pattons, Winns, Allens and Farrells live in the area but do not live in the subdivision. Only Dan and Mary Alice McClain live in the Kenner Estates Minor Subdivision. The McClain respondents are the only respondents who share the mutuality of burden and benefit with Kannon as fellow owners of property in the Kenner Estates Subdivision. The others simply are not party to the reciprocal promises made between the grantees which form the basis upon which to challenge another grantee’s right to use his land in a given manner.

See also generally, Town & Country Estates Ass’n v. Slater (1987), 227 Mont. 489, 740 P.2d 668 (“...the free use of the property must be balanced against the rights of the other purchasers in the subdivision.... [e]ach purchaser in a restricted subdivision is both subjected to the burden and entitled to the benefit of a restrictive covenant.”); Kosel v. Stone (1965), 146 Mont. 218, 404 P.2d 894 (“The purchasers having assented to such restrictions, they and their assigns may ordinarily enforce them inter sese for their own benefit.”) (Citation omitted.)

The respondents cite Reichert v. Weeden (1980), 190 Mont. 95, 618 P.2d 1216, for their argument that the restrictive covenants constitute a negative easement and are enforceable by the neighbors. However, the “neighbors” involved in Reichert were parties to the agreement which created the negative easement at issue. Moreover, all parties involved in the action in Haggerty v. Gallatin County (1986), 221 Mont. 109, 717 P.2d 550, also cited by the respondents, were parties to the agreement in question. Therefore, they do not stand for the proposition that “neighbors” have standing to challenge the restrictive covenants of other parties.

The Patton respondents also argued that they had standing to compel the Board to enforce the covenants. In State Etc. v. Board of Cty. Commissioners (1979), 181 Mont. 177, 592 P.2d 945, this Court discussed standing and who has a legal interest in subdivision issues. In concluding that Professional Consultants Inc., which platted five minor subdivisions and then submitted them to the Ravalli County planning board for review and approval, had no standing to maintain an action to compel the board to act upon the proposed subdivision, this Court stated:

Petitioner has stated no legal interest in any of the minor subdivisions that are the subject of this action. It is not the owner or purchaser of any of the property involved in this cause, and admits that it lacks any legal or equitable interest in the land. Some form of ownership in the land is necessary to embark standing to bring a mandamus action. (Citations omitted.)

State, Etc., 592 P.2d at 947. By the same token, parties who live outside of the subdivision do not have any legal interest in the subdivision. Therefore, they do not have any standing to compel the Board to enforce the covenants. The McClain respondents, who do live within the subdivision, did not seek to compel the Board to enforce the covenants in their complaint.

In conclusion, the Patton respondents are not owners of property within the subdivision and therefore, do not share the mutuality of the benefits and burdens as between grantees of the subdivision. We hold that the neighbors who live outside of the subdivision lack standing to enforce the restrictive covenants under the subdivision. The McClain respondents, who are owners of property within the subdivision, do have standing to challenge the restrictive covenants. However, because they did not seek to compel the Board to enforce the covenants, that issue is not before this Court.

III. RESTRICTIVE COVENANTS

Did the District Court err in denying Kannon’s May 4,1992 motion for summary judgment regarding McClain’s claim that Kannon was violating the restrictive covenants?

Kannon states that the restrictive covenant at issue imposes a restriction on the property, but that the exception in the covenant excepts existing structures from that restriction. He contends that because all structures existed at the time of the purchase of the property, they are free from the restrictive covenant. Moreover, the historical use of the property has been that of a lodge or guest house. The Pattons, Winns, Allens, Farrells and McClains took exception to Kannon’s use of his property to operate a bed and breakfast, contending that Kannon’s commercial operation violated the single family dwelling restrictive covenant.

The original covenant at issue, recorded in Madison County by the County Recorder on May 12, 1989, stated that:

No structure shall be allowed on any tract except one (1) single family dwelling, a two-car garage, and one (1) guest house on Tracts 1,2 and 3. Existing structures excepted. A stable for horses will be allowed on Tract 4.

However, the Chairman of the Madison County Planning Board and the Consulting Staff Planner had previously written a letter to the County Commissioners on December 7, 1988, stating that the applicable covenant should read:

No structure shall be allowed on any tract except one single family dwelling with a two car garage and one guest house. A stable is also allowed on Lot 4.

The clause, “existing structures excepted” was omitted. The Board then conditionally approved the Kenner Estates Minor Subdivision at its February 13,1989 meeting. On May 19,1989, Bill Dringle, the Chairman of the Board of County Commissioners wrote a letter to Jim McGee of Bay Bank, stating that its application for preliminary plat approval for the subdivision had been approved subject to certain conditions and including the modified covenant which did not except existing structures from the restriction.

The discrepancy between the covenants as recorded and the covenants as approved by the County Commissioners was the subject of much debate in Planning Board meetings, Board of County Commissioners meetings and a joint meeting between the two boards. However, the issue was resolved when the Planning Board, upon advice from the County Attorney, voted to “accept the Kenner Estate Minor Subdivision and covenants as recorded even though the covenants proposed and those recorded had different wording.” At the May 7, 1990 meeting of the Board, the Commissioners accepted and announced their full support of the Planning Board’s decision to accept the covenants as recorded. Therefore, the covenants we address are those recorded on May 12,1989, including the covenant which excepts existing structures from restrictions.

We hold that the operation of the bed and breakfast does not violate the restrictive covenant, for the reason that the covenant does not restrict the use of structures on the property. The covenant merely states that no structures shall be allowed on any tract except one single family dwelling, a two-car garage and one guest house. This is a restriction based on the types and number of buildings allowed on the property. Indeed, historically, the property was used as a guest ranch or a guest resort.

Jones v. Park Lane for Convalescents (Pa. 1956), 120 A.2d 535, is instructive concerning the two types of restrictive covenants. The Jones court stated:

Restrictions limiting the right of the owner to deal with his land as he may desire fall naturally into two distinct classes, the one consisting of restrictions on the type and number of buildings to be erected thereon, and the other on the subsequent use of such buildings. The restrictions in the former class are concerned with the physical aspect or external appearance of the buildings, those in the latter class with the purposes for which the buildings are used, the nature of their occupancy, and the operations conducted therein as affecting the health, welfare and comfort of the neighbors. A building restriction and a use restriction are wholly independent of one another, and, in view of the legal principles above stated, the one is not to be extended so as to include the other unless the intention so to do is expressly and plainly stated; to doubt is to deny enforcement.

Jones, 120 A.2d at 538. The restrictive covenant at issue here states that “[n]o structure shall be allowed on any tract except one (1) single family dwelling, a two-car garage, and one (1) guest house. ...” As stated above, this covenant limits the type and number of buildings on the property; it does not place restrictions on the use of the property.

Moreover, if the developers, Planning Board, Board or interested parties were concerned that no commercial operation akin to the Hambletonian Inn would be established in Kenner Estate Minor Subdivision, they could have argued for that restriction and so provided in the covenant. Collins v. Goetsch (Haw. 1978), 583 P.2d 353, 358. No such action was taken.

The respondents’ brief cites numerous cases standing for the proposition that if the rental of rooms is frequent, the single family dwelling restriction is violated. However, in the cases cited, the covenants at issue all contained language specifically pertaining to the use of the buildings. In the instant case, the covenant contains no language addressing the use of the buildings; the restriction applies to the types and number of buildings. See Sayles v. Hall (Mass. 1911), 96 N.E. 712; Pierce v. Harper (Mo. 1925), 278 S.W. 410; Kiernan v. Snowden (1953), 123 N.Y.S.2d 895; Southhampton Civic Club v. Couch (Tex. 1959), 322 S.W.2d 516; Wallace v. St. Clair (W.Va. 1962), 127 S.E.2d 742.

In conclusion, whether the term “existing structures excepted” is applied or not, because the restrictive covenant does not address the use of the buildings, Kannon’s commercial operation does not violate the covenant at issue. The covenant merely describes the type and number of buildings allowable on a lot in the subdivision. If there was a desire to restrict the use of the buildings, the desired restrictions should have been explicitly included in the covenants. We hold that the District Court erred when it denied Kannon’s motion for summary judgment on this issue. Accordingly, we reverse the order of the District Court on this issue.

IV. JUDICIAL REVIEW

Did the District Court err in granting judicial review of the respondents’ challenge to the Board of County Commissioners’ approval of the recorded covenants in the instant case?

We concluded in Issue II that the Patton respondents did not have standing in the instant case. The McClain respondents are the only respondents who have the requisite interest in the subdivision and its restrictive covenants to acquire standing. The McClain respondents, however, did not raise the issue of whether the Board could be compelled to enforce the covenant. Therefore, since the Patton respondents do not have standing and the McClain respondents did not take issue with the Board’s approval of the covenant, this issue is not before this Court, and accordingly, it will not be addressed.

REVERSED.

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


author: JUSTICE TRIEWEILER JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DEAN GARY CHRISTENSEN, Defendant and Appellant.
    No. 92-537.
    Submitted on Briefs June 2, 1994.
    Decided June 23, 1994.
    51 St.Rep. 542.
    877 P.2d 468.
    265 Mont. 374.

      For Appellant: Jeffrey T. Renz and Andrew F. Scott, Legal Intern, Montana Defender Project, University of Montana, Missoula.
    For Respondent: Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant Attorney General, Helena; Steven Howard, Sheridan County Attorney, Plentywood.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Dean Gary Christensen filed a petition for post-conviction relief in the District Court for the Fifteenth Judicial District in Sheridan County. The District Court dismissed the petition based on its conclusion that post-conviction relief is only available to persons adjudged guilty of an offense in a court of record. Christensen was convicted of reckless driving and operating a motor vehicle while an habitual traffic offender in the City Court for the City of Plentywood. That court is not a court of record. Christensen appeals the order of the District Court. We reverse and remand.

The issue on appeal is whether the District Court erred when it dismissed the petition for post-conviction relief.

Christensen did not appeal his conviction, but on July 9,1992, filed a petition for post-conviction relief with the District Court, in which he sought to vacate and set aside the City Court convictions on the bases that he was denied effective assistance of counsel and his right to a jury trial. His affidavit alleged that he was surprised when no jury was present at trial, and that after voicing his objection to his attorney, the attorney motioned him to be quiet and proceeded to trial before the Justice of the Peace. Christensen further alleged that his attorney did not explain that an appeal could be taken from his conviction.

These allegations were refuted in affidavits from Larry O’Toole, Christensen’s court-appointed attorney, and Tom Robertson, the City Court Judge who presided at Christensen’s trial. However, the District Court did not resolve the factual issue raised by the contradictory allegations. Instead, it dismissed the petition based on its interpretation of § 46-21-101, MCA.

The issue in this case concerns a question of law. We review conclusions of law to determine whether the district court’s interpretation of the law was correct. In re Marriage of Burris (1993), 258 Mont. 265, 269, 852 P.2d 616, 619.

The statutory provisions for initiating post-conviction hearings are found at §§ 46-21-101 through -105, MCA. At issue are the following provisions found at § 46-21-101(1) and (2), MCA:

When validity of sentence may be challenged. (1) Aperson adjudged guilty of an offense in a court of record who has no adequate remedy of appeal and who claims that a sentence was imposed in violation of the constitution or the laws of this state or the constitution of the United States, that the court was without jurisdiction to impose the sentence, that a suspended or deferred sentence was improperly revoked, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack upon any ground of alleged error available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy may petition the court that imposed the sentence or the supreme court to vacate, set aside, or correct the sentence or revocation order.
(2) If the sentence was imposed by a justice’s, municipal, or city court, the petition must be filed with the district court in the county where the lower court is located.

Christensen contends that the District Court improperly amended § 46-21-101(2), MCA, when it concluded that the reference to justice’s courts and city courts in that section was “surplusage” because § 46-21-101(1), MCA, limits post-conviction relief to persons adjudged guilty of an offense in a court of record, and that in doing so, the District Court ignored an elementary rule of statutory construction which provides that:

In the construction of 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. Where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.

Section 1-2-101, MCA. We agree.

Christensen cites Gaub v. Milbank Insurance Company (1986), 220 Mont. 424, 427-28, 715 P.2d 443, 444-45, where we restated the rules of statutory construction. These rules require this Court to construe or interpret a statute in accordance with the intention of the legislature. Missoula County v. American Asphalt, Inc. (1985), 216 Mont. 423, 426-27, 701 P.2d 990, 992. However, we must first look to the plain meaning of the words of the statute. State ex rel. Palmer v. Hart (1982), 201 Mont. 526, 530, 655 P.2d 965, 967. If the language is plain, unambiguous, direct, and certain, the statute speaks for itself and there is no need to resort to a legislative history or other means of interpretation. Palmer, 655 P.2d at 967.

We conclude that the language of § 46-21-101(2), MCA, is clear on its face and it is unnecessary to resort to other means of interpretation. Section 46-21-101(1), MCA, provides the forum in which to file a petition for post-conviction relief from an adjudication of guilt in a court of record. Subparagraph (2) of that section provides the forum in which to petition for relief when the sentence was imposed in other courts, including city court.

We conclude that the District Court erred when it dismissed Christensen’s post-conviction petition and hold that the remedy of post-conviction relief is available to defendants from a “city court” regardless of whether that court is a court of record as defined by § 3-1-102, MCA, due to the plain and unambiguous language of § 46-21-101(2), MCA.

We, therefore, reverse the judgment of the District Court and remand defendant’s petition for post-conviction relief for a hearing on the merits.

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

JUSTICE GRAY

specially concurring.

I concur in the analysis and result reached by the Court on the single legal issue presented; namely, that the District Court erred in dismissing the petition for postconviction relief on the basis that that remedy is unavailable in the district court to persons adjudged guilty of an offense in a nonrecord court.

I write separately to clarify the intent of the final sentence in the opinion, which “remand[s] defendant’s petition for post-conviction relief for a hearing on the merits.” My concern is that the words “hearing on the merits” could be read to limit the remand and preclude the State from raising at that time the issue of whether Christensen meets the additional prerequisite to postconviction relief under § 46-21-101, MCA, of “no adequate remedy of appeal.”

It is clear that the “no adequate remedy of appeal” portion of the statute was not the basis for the District Court’s action in dismissing the petition and is not an issue before us on appeal. That procedural fact should not be interpreted as an undermining of that portion of the statute. Nor should anything in this concurring opinion be construed to suggest that the State raise the issue on remand or to express any opinion that such a position, if taken by the State, would have merit.


author: JUSTICE GRAY JUSTICE TRIEWEILER

text:
    IN THE MATTER OF THE INVESTIGATIVE RECORDS OF THE CITY OF COLUMBUS POLICE DEPARTMENT: CYNTHIA GAUSTAD, as the parent and next friend of M.G., Petitioner and Appellant, v. CITY OF COLUMBUS, Respondent and Respondent.
    No. 93-487.
    Submitted on Briefs March 3, 1994.
    Decided June 27, 1994.
    51 St.Rep. 544.
    877 P.2d 470.
    265 Mont. 379.

      For Appellant: Jeffrey T. Renz, Jeffrey T. Renz & Associates, Missoula.
    For Respondent: Douglas D. Howard, Heard & Howard, Columbus.
   JUSTICE GRAY

delivered the Opinion of the Court.

Cynthia Gaustad (Gaustad) appeals from an order of the Thirteenth Judicial District Court, Stillwater County, denying her motion for attorney’s fees pursuant to § 2-3-221, MCA, after she prevailed in obtaining the inspection of an investigative file held by the City of Columbus. We vacate and remand.

On February 19, 1992, Gaustad’s minor son allegedly was assaulted by an adult in the Columbus Elementary School. While investigating the alleged assault, the City of Columbus Police Department (the City) interviewed more than a dozen witnesses.

Gaustad filed a petition in the District Court pursuant to both Article II, Section 9, of the Montana Constitution and the Criminal Justice Information Act. She sought release of the information in the City’s investigatory file and an award of attorney’s fees. Following an in camera inspection, the District Court allowed Gaustad to view and copy the file; it did not respond to her request for attorney’s fees. Gaustad then moved for an award of attorneys fees pursuant to § 2-3-221, MCA. The court denied the motion.

Section 2-3-221, MCA, provides that “[a] plaintiff who prevails in an action brought in district court to enforce his rights under Article II, section 9, of the Montana constitution may be awarded his costs and reasonable attorneys’ fees.” This Court determined in Associated Press v. Board of Pub. Educ. (1991), 246 Mont. 386, 804 P.2d 376, that, in cases successfully litigated under Article II, Section 9, an award of attorney’s fees pursuant to § 2-3-221, MCA, is within the court’s discretion. Associated Press, 804 P.2d at 380. We reiterated this determination in Bozeman Daily Chronicle v. City of Bozeman Police Dep’t (1993), 260 Mont. 218, 230, 859 P.2d 435, 442.

In Associated Press, this Court reviewed a district court’s award of attorneys fees and concluded that because the public benefited from the litigation, an award of attorneys fees using public funds “spread the cost of the litigation among its beneficiaries” and was not an abuse of the district court’s discretion. Associated Press, 804 P.2d at 380. Gaustad characterizes this language to mean that fees should be awarded as a matter of course to spread the costs of enforcing Article II, Section 9, of the Montana Constitution. To this end, Gaustad urges this Court to hold that § 2-3-221, MCA, requires the district court to award attorneys fees to the prevailing party in a suit brought under Article II, Section 9, of the Montana Constitution. We decline to do so.

In construing the meaning of a statute, we presume “that the terms and words used were intended to be understood in their ordinary sense.” In re Woodburn’s Estate (1954), 128 Mont. 145, 153, 273 P.2d 391, 394-95. The word “may’ is commonly understood to be permissive or discretionary. See In re Minder’s Estaate (1954), 128 Mont. 1, 9-10, 270 P.2d 404, 409. In contrast, “shall” is understood to be compelling or mandatory. See Abshire v. School Dist. (1950), 124 Mont. 244, 245, 220 P.2d 1058, 1059.

Gaustad’s argument that § 2-3-221, MCA, requires the District Court to award attorney’s fees is premised on the interpretation that “may” is mandatory rather than permissive. She cites to several cases where this Court interpreted “may” to be mandatory. Each of those cases interpret statutes other than § 2-3-221, MCA, and are distinguishable on a factual basis. Furthermore, each case involved an examination of the policies underlying the individual statutes and, in some cases, the legislative history of the statute. Based on that examination, this Court concluded that the only reasonable interpretation was that the duties imposed by the statute were mandatory. See Bascom v. Carpenter (1952), 126 Mont. 129, 246 P.2d 223. The legislative history of § 2-3-221, MCA, however, does not support such an interpretation.

The legislature originally passed House Bill 531, later codified as § 2-3-221, MCA, with mandatory “shall” language. Governor Thomas Judge returned the bill unsigned, recommending that the legislature replace the mandatory language of the bill with language placing the award of attorney’s fees within the district courts’ discretion. 3 House Journal 1553 (1975). In response, both the House and the Senate amended H.B. 531 to include the permissive “may.” 3 House Journal 1597 (1975), 3 Senate Journal 1546 (1975). The amended version was submitted for Governor Judge’s approval on April 19, 1975. 3 House Journal 1790 (1975). Governor Judge signed H.B. 531, as amended, on April 21, 1975. 1975 Mont. Laws 1303. Thus, the clear intent of the statute is that an award of attorney’s fees is discretionary and the legislative history of § 2-3-221, MCA, precludes an interpretation that the statute is mandatory.

Moreover, the legislature may amend a statute at any time. We presume that the legislature is aware of the existing law, including our decisions interpreting individual statutes. In re Wilson’s Estate (1936), 102 Mont. 178, 194, 56 P.2d 733, 737. The legislature has met in regular session since our decision in Associated Press. We presume that if the legislature disagreed with our interpretation that § 2-3-221, MCA, was discretionary, it would have amended the statute accordingly. It did not do so.

For these reasons, it would be inappropriate to modify our interpretation that an award of attorney’s fees pursuant to § 2-3-221, MCA, lies within the discretion of the district court. We conclude that such an award is discretionary rather than mandatory.

We review a district court’s discretionary rulings for abuse of discretion. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603-04. We previously have concluded that, in certain cases, a district court’s outright denial of a motion without a sufficient rationale for its action is not an exercise of discretion, but is an abuse of that discretion. See Gursky v. Parkside Professional Village (1992), 258 Mont. 148, 152, 852 P.2d 569, 571.

The District Court’s order contains a bare denial of Gaustad’s motion for attorney’s fees pursuant to § 2-3-221, MCA; it is devoid of any explanation or rationale for its decision. This bare denial renders our review for abuse of discretion difficult. Moreover, the court’s order demonstrates that it was uncertain whether § 2-3-221, MCA, applied in cases such as this where a private individual obtains the release of criminal justice information. Two weeks after the District Court’s order, we determined that § 2-3-221, MCA, is applicable in cases seeking the release of criminal justice information under Article II, Section 9, of the Montana Constitution. Bozeman Daily Chronicle, 859 P.2d 435, 442-43.

We conclude that a remand is appropriate here in light of the District Court’s bare denial of Gaustad’s motion and the availability of Bozeman Daily Chronicle to clarify the applicability of § 2-3-221, MCA, to this case. On remand, the District Court is directed to include its rationale in granting or denying the motion.

Vacated and remanded.

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

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

The majority relies on its decisions in Associated Press v. Board of Public Education (1991), 246 Mont. 386, 804 P.2d 376, and Bozeman Daily Chronicle v. City of Bozeman Police Department (1993), 260 Mont. 218, 859 P.2d 435, for the proposition that an award of attorney fees pursuant to § 2-3-221, MCA, is discretionary. However, the precise issue presented by this case was not before this Court in either of the cases relied upon. In both cases, attorney fees were awarded and the public entity argued on appeal that they should not have been awarded because it had acted in good faith. However, this Court affirmed the award of attorney fees for the reason that the cost of litigation which is beneficial to the public should be spread among all of its beneficiaries. Attorney fees were referred to as discretionary. However, there was no analysis of the language used in the statute, nor any discussion of why an award of attorney fees pursuant to the statute was permissive, rather than mandatory.

The majority concludes that when construing a statute we must apply terms and words as they are ordinarily understood, and that “may” is commonly understood to be permissive or discretionary. However, we have a long history of cases in this State where the term “may” has been construed to provide a mandatory directive to the court or public official vested with authority to act. See, e.g., Bascom v. Carpenter (1952), 126 Mont. 129, 136, 246 P.2d 223, 226, where we pointed out that:

In Simpson v. Winegar, 122 Or. 297, 258 P. 562, 563, the court said: “It is well settled that, where even the word ‘may’ is used, and the rights of the public or of a third party are affected, the language is mandatory, and must be strictly obeyed. In Kohn v. Hinshaw, 17 Or. 308, 311, 20 P. 629, 631, Mr. Justice Strahan said: ‘... It is a general principle in statutory construction that, where the word “may” is used in conferring power upon an officer, court, or tribunal, and the public or a third person has an interest in the exercise of the power, then the exercise of the power becomes imperative.”’ [Emphasis added].

We have construed the term “may” when used in statutes to be imperative or mandatory and the equivalent of “shall” or “must” as long ago as 1901 in our decision in Montana Ore Purchasing Company v. Lindsay (1901), 25 Mont. 24, 27, 63 P. 715, 716. We have consistently so held, wherever appropriate, in subsequent cases. See State ex rel. Stiefel v. District Court (1908), 37 Mont. 298, 96 P. 337; State ex rel. Case v. Bolles (1925), 74 Mont. 54, 238 P. 586; Thomas v. Cloyd (1940), 110 Mont. 343, 100 P.2d 938; Hanson v. City of Havre (1941), 112 Mont. 207, 114 P.2d 1053.

Sure, these cases involve different facts and different statutes. If they did not, we would not need to decide this case. However, the majority has ignored prior decisions of this Court where statutes which provided that a trial court “may” award attorney fees to a prevailing party were interpreted to require that attorney fees be awarded without any discretion on the part of the trial court. See Walker v. H. F. Johnson, Inc. (1978), 180 Mont. 405, 591 P.2d 181; Catteyson v. Glacier General Assurance Co. (1979), 183 Mont. 284, 599 P.2d 341.

It is also true that legislative intent is one factor to consider when interpreting the statute. However, legislative purpose must also be considered. For example, in Montana Ore Purchasing Company, 63 P. at 716, we also held that:

[T]he word is interpreted to mean “shall” or “must” whenever the rights of the public or of third persons depend upon the exercise of the power or performance of the duty to which it refers.

In this case, and in all cases where a citizen of Montana petitions for the disclosure of public records pursuant to his or her right granted in Article II, Section 9, of the Montana Constitution, and where a district court or this Court concludes that the right to information has been withheld, that person has performed a service for the State, and all other citizens in the State, by enforcing a part of our Constitution which would otherwise be violated. The degree of good faith with which the Constitution is violated is irrelevant.

The expense of this service, which is of benefit to everyone because our Constitution is reinforced and strengthened, should not and cannot be born solely by that individual who takes the initiative to compel a public official to perform his or her duty. There may be little economic incentive to do so, yet the public’s right to know is priceless.

In this case, for example, the filing fees to a successful party are $135, and other costs and attorney fees approached $1000. When those kind of costs are necessarily incurred to enforce a constitutional right, how can it be argued that the rights of the public do not depend upon the district court’s exercise of its power to reimburse the person who, at his or her own expense, has breathed life into the Constitution?

For these reasons, I would reverse the order of the District Court and hold that the language in § 2-3-221, MCA, which authorizes an award of attorney fees, is directive or mandatory and not discretionary or permissive.

I do, however, concur with the majority that if the District Court had discretion to deny attorney fees, that discretion was abused in this case. The thrust of its rationale for denying attorney fees is that they are inappropriate where documents are requested under the Criminal Justice Information Act. That issue was resolved to the contrary in the Bozeman Chronicle case. If the District Court had any other basis for exercising its discretion by denying an award of attorney fees in this case, that basis is not set forth in its order, and I find none from my review of the record.


author: CHIEF JUSTICE TURNAGE JUSTICE TRIEWEILER

text:
    DONALD C. WHITE and EDITH J. WHITE, Plaintiffs and Appellants, v. SHIRLEY S. MURDOCK, ROBERT JOSEPH LYNDS, JANE DOE, JOHN DOE and the STATE OF MONTANA, Defendants and Respondents.
    No. 93-565.
    Submitted on Briefs March 4, 1994.
    Rehearing Denied July 29, 1994.
    Decided June 27, 1994.
    51 St.Rep. 547.
    877 P.2d 474.
    265 Mont. 386.

      For Appellants: James A. Haynes, Hamilton.
    For Respondents: Robert E. Sheridan, Garlington, Lohn & Robinson, (Murdock); Shelton C. Williams, Williams & Ranney, P.C., Missoula (Lynds); Betsy Brandborg, Special Assistant Attorney General, Helena.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Edith White was injured in an automobile accident when the vehicle in which she was riding struck a moose on the highway and rolled over. She and her husband, Donald White, brought this action in the District Court for the Twenty-first Judicial District, Ravalli County, to recover their damages. The District Court granted the summary judgment motions of defendants Robert Lynds, Shirley Murdock and the State of Montana. We affirm.

The issue is whether disputed issues of material fact preclude summary judgment.

This case arose out of two motor vehicle accidents on U.S. Highway 93 between Hamilton and Darby, Montana, at approximately 10:45 p.m. on August 21, 1991. Defendant Lynds was driving south at a speed of 50 to 55 miles per hour in a rented Winnebago motor home. It was a clear, dark night and the road was dry. Just north of Darby, at milepost 34.3, an 800- to 900-pound moose suddenly entered the highway five to eight feet in front of the motor home. The motor home struck the moose before Lynds was able to bring it to a controlled stop 300 to 600 feet further down the highway. Lynds does not remember actually seeing any oncoming vehicles at the time the motor home struck the moose, but he was certain he had his headlights dimmed in anticipation of oncoming traffic.

The accident pushed the radiator against the engine block and the motor home began to fill with steam or smoke. After Lynds checked to make sure the moose was not in the immediate vicinity of the disabled motor home, he and his family got out. Lynds then became aware that another vehicle was possibly in trouble when he heard voices and saw headlights shining at an unnatural angle to the road.

Plaintiff Edith White was a passenger in the front seat of the second motor vehicle, a Ford Bronco driven by her niece, defendant Shirley Murdock. Murdock, her two children, her niece, and White had been visiting White’s daughter. Murdock turned north onto Highway 93 from White’s daughter’s private driveway, which was located approximately one-tenth of a mile south from where Lynds struck the moose.

When Murdock first saw the dead or dying moose, it was lying on the road in her lane of traffic near the center line, approximately two car lengths ahead of her. She swerved to miss the moose but hit it with the tires on the driver’s side of the Bronco. She lost control and the vehicle rolled. Murdock’s estimated speed at the time of impact was 25 to 30 miles per hour. Neither Murdock nor White recalls seeing the Lynds vehicle before or during the accident.

Lynds, Murdock, and the State of Montana were the only remaining defendants in this action when they moved for summary judgment in the District Court. The Whites asserted that these three defendants were negligent and that their negligence was an actual and proximate cause of Edith White’s injuries sustained in the accident. The defendants argued that the undisputed material facts show that both accidents were unavoidable “acts of God” and that they were not liable as a matter of law.

The parties filed deposition testimony by Lynds, Murdock, Edith White, highway patrol officer Charles Gorman, and State of Montana Highway Department employees Rusty Wrigg and Darrell Daw. After reviewing the deposition testimony and the arguments and briefs of the parties, the District Court granted summary judgment in favor of defendants Lynds, Murdock, and the State. The court found that the Whites presented no evidence, other than speculative conjecture, which would raise material questions of fact as to whether Lynds or Murdock failed in their duty to act as reasonable persons under the circumstances. The court found that the Whites were not able to establish the element of proximate cause against the State. Concluding that the Whites had failed to sustain their claims of negligence against any of the defendants, the court dismissed the action with prejudice.

Do disputed issues of material fact preclude summary judgment?

Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R This Court’s standard of review is the same as that of the district court. Knight v. City of Missoula (1992), 252 Mont. 232, 243, 827 P.2d 1270, 1276.

A negligence action requires proof of four elements: (1) existence of a duty; (2) breach of the duty; (3) causation; and (4) damages. If the plaintiff fails to offer proof of one of these elements, the action in negligence fails and summary judgment in favor of the defendant is proper. U.S. Fidelity and Guar. Co. v. Camp (1992), 253 Mont. 64, 68, 831 P.2d 586, 589. The causation element requires proof of both cause in fact and proximate cause. Kitchen Krafters v. Eastside Bank (1990), 242 Mont. 155, 167-68, 789 P.2d 567, 574.

The Whites maintain they have established questions of fact as to whether both Lynds and Murdock should have seen the moose before they did and as to whether Lynds failed a duty to warn Murdock of the moose in the road. They cite this Court’s opinion in Dillard v. Doe (1992), 251 Mont. 379, 824 P.2d 1016, as authority that, in a summary judgment motion, the court must presume that a breach of duty occurred. That was not the holding of Dillard.

Dillard was a comparative negligence case in which the plaintiff was injured when a snowplow hit him while he was walking on a roadway. For purposes of a motion for summary judgment, the district court was asked to assume that defendant snowplow driver was negligent. Given that assumption, the court was asked to rule whether, as a matter of law, the plaintiff’s negligence was greater than defendant’s, thus barring recovery. The court answered “yes” and granted summary judgment for defendant. This Court reversed on that issue. Remanding, this Court stated “it remains to be seen after sufficient further development of the record, whether any actual negligence on the part of the [defendant] can be shown by the [plaintiff].” Dillard, 824 P.2d at 1020.

The Whites also cite language from Payne v. Sorenson (1979), 183 Mont. 323, 326, 599 P.2d 362, 364, which was recently quoted in Oklaand v. Wolf (1993), 258 Mont. 35, 40-41, 850 P.2d 302, 306:

Under Montana law, a motorist has a duty to look not only straight ahead but laterally ahead as well and to see that which is in plain sight. Furthermore, a motorist is presumed to see that which he could see by looking, and he will not be permitted to escape the penalty of his negligence by saying that he did not see that which was in plain view.

This language only establishes a presumption of negligence where there is evidence of something “which he could see by looking” or “which was in plain view.” As discussed below, no such evidence was produced in this case. Further, neither Payne nor Okland is analogous to the present case.

In Payne, the appealing plaintiff argued that the defendant was negligent as a matter of law and that the question of defendant’s negligence was erroneously submitted to the jury. We rejected that argument, in the absence of evidence that all reasonable minds could agree on the issue. Payne, 599 P.2d at 364.

In Okland, the plaintiff produced evidence of defendant’s negligence, including the testimony of an eyewitness off-duty police officer and expert testimony by an accident reconstructionist. Both witnesses testified that the defendant should have seen the plaintiff before the collision. Okland, 850 P.2d at 305-06.

Here, the Whites have produced no evidence whatsoever in support of their position that Lynds was negligent. Lynds was not ticketed and the investigating highway patrol officer testified that Lynds could not have avoided hitting the moose under the circumstances of this case. It was a dark night, and a dark moose suddenly came onto the road directly in front of Lynds. There was no evidence that Lynds was looking other than where he should have been or that it was possible for him to have seen the moose any sooner than he did.

As to a duty to remove the moose from the highway after he hit it, Lynds’ uncontradicted testimony demonstrated that he simply did not have enough time to do anything to warn Murdock of the possibility of a moose in the road. The Bronco had already rolled by the time Lynds got his family out of the motor home. There was additional testimony that three men working together were unable to move the moose carcass, and that a truck was finally used to drag it off the road. We conclude that the District Court did not err in ruling that the Whites have failed to establish material issues of fact concerning whether Lynds breached a duty.

Next the Whites argue that the bare facts of the accident involving the Bronco supply enough evidence that Murdock failed to act as a reasonable person to defeat her motion for summary judgment. To establish material questions of fact, the party opposing summary judgment must set forth specific facts and cannot rely on speculative, fanciful, or conclusory statements. Sprunk v. First Bank System (1992), 252 Mont. 463, 466, 830 P.2d 103, 105. The Whites presented nothing other than their conclusory statement in support of their position that Murdock should have seen the moose sooner than she did and that she did not react as a reasonable, prudent person would be expected to react. The opinions in the depositions of the investigating highway patrol officer, Murdock herself, and Edith White do not establish anything Murdock did which was inappropriate or negligent. Because the Whites have produced no evidence upon which a jury could, without relying upon speculation or conjecture, conclude that Murdock failed to act as a reasonable person, we hold that the District Court did not err in ruling that they failed to establish a material question of fact as to whether Murdock breached a duty.

Finally, the Whites contend there is a factual question as to whether the absence of moose hazard signs caused or contributed to this accident and is attributable to the State. They maintain that the “substantial factor” test of causation is appropriate in this case, rather than the “but for” test. The substantial factor test is applied only when each of several acts, alone, could have caused the damages. Kitchen Krafters, 789 P.2d at 574. Here, it cannot be said that the absence of warning signs alone could have caused Edith White’s injuries. The “but for” test applies.

Additionally, no evidence was produced that there was an established or known moose crossing place at or near milepost 34.3, where these accidents occurred. State highway department employees testified that there had been a known moose crossing several miles up the road, and that warning signs had, in the past, been posted there. However, they also testified that the signs had been repeatedly stolen and after the road was rebuilt and the slough which had formerly attracted moose to that area was drained, it was decided that the signs would not be replaced.

Even if the signs had remained posted, Lynds testified that he did not believe his increased caution as a result of reading the warnings would have enabled him to see the moose earlier than he did or to avoid hitting the moose. The signs had been posted north of where Murdock encountered the moose. Because she was traveling north, she would not have come across the signs before she encountered the moose. The Whites have not produced rebuttal evidence on these points. We hold that the District Court did not err in ruling that the Whites have failed to establish material issues of fact as to whether actions or inactions of the State of Montana proximately caused their damages.

Affirmed.

JUSTICES HARRISON, GRAY, NELSON and WEBER concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

The majority has once again usurped the function of the jury to resolve the legitimate factual issues presented by the evidence in this case.

Only when there are no issues of material fact and the moving party is entitled to judgment as a matter of law is summaryjudgment pursuant to Rule 56(c), M.R.Civ.R, appropriate. Reaves v. Reinhold (1980), 189 Mont. 284, 287, 615 P.2d 896, 898.

In concluding whether there are issues of material fact, the role of the district court and this Court requires more than simply construing the testimony of the moving party in the maimer most favorable to that party. All reasonable inferences that may be drawn from the offered proof are to be drawn in favor of the party opposing the summary judgment. Reaves, 615 P.2d at 898.

Furthermore, we have, for good reason, held that ordinarily issues of negligence are questions of fact not susceptible to summary adjudication. Duchesneau v. Silver Bow County (1971), 158 Mont. 369, 377, 492 P.2d 926, 931. This case is a classic example of why issues of negligence are not normally susceptible to summary judgment.

Before discussing the facts, and inferences from those facts which give rise to issues of fact, it is necessary to discuss the rules of law which pertain to the defendants’ conduct.

Both defendants, Shirley Murdock and Robert Lynds, are excused from their collision with a 600 to 900 pound moose based on the majority’s acceptance of their disclaimer that they did not observe it until it was too late to avoid it. However, their protest is of little assistance to them under Montana law. As noted by the majority, we held in Payne v. Sorenson (1979), 183 Mont. 323, 326, 599 P.2d 362, 364, that:

Under Montana law, a motorist has a duty to look not only straight ahead but laterally as well and to see that which is in plain sight. Furthermore, a motorist is presumed to see that which he could see by looking, and he will not be permitted to escape the penalty of his negligence by saying that he did not see that which was in plain view.

Montana’s laws pertaining to motor vehicle equipment require that any vehicle being operated on Montana’s highways between sunset and sunrise must be equipped with headlamps which on high beam are capable of illuminating objects at a distance of350 feet, and on low beam are capable of illuminating objects at a distance of 100 feet. Section 61-9-220, MCA. Unless approaching or following another vehicle, use of the higher beam is required. Section 61-9-221(2), MCA.

In other words, it makes no difference that defendant Murdock claims not to have seen a 600 to 900 pound moose lying in the middle of the highway until she was two car lengths away, and it makes no difference that defendant Lynds failed to see the same moose until it was located in his lane of travel at a distance of 5 to 8 feet away. Both parties are presumed to have seen that which could have been seen had they been reasonably diligent and, if their vehicles were equipped as required by law with the proper headlamps which were being used as required by law, they should have seen the object with which they collided in this case at a distance of at least 350 feet away.

Lynds testified that he was operating a recreational vehicle at a speed of 50 to 55 m.p.h. and proceeding in a southerly direction on Highway 93 just north of Darby. It was dark out, but there was little traffic and the road was straight and dry. He testified that he did not have his headlamps on high beam, but was not following another vehicle and does not recall that any vehicle was approaching him.

Contrary to the representation in the majority opinion, he did not testify that the moose with which he collided entered the highway 5 to 8 feet in front of him. He testified that when he first observed the moose it was already in his lane of travel and 5 to 8 feet away.

He acknowledged that from the high seating position in the RV that he was driving he had a good field of vision. Yet, in spite of that field of vision and the 350 feet at which his headlamps should have illuminated the roadway and the adjoining areas, he had no idea where the moose came from until it was 5 to 8 feet in front of him. In fact, he never did apply his brakes.

Only one of two situations could have occurred prior to Lynds’ collision with the moose. Either the moose was in his lane of travel all along and he should have been aware of its presence at a distance of 350 feet away and been able to make some effort to avoid it, or it approached the highway from an area he was obligated to observe but which he evidently did not observe. In either event, he failed to comply with his obligation under Montana law, as set forth in our Payne decision, to observe the roadway ahead of him and see that which was in plain view.

Furthermore, when Lynds stopped his vehicle 300 to 600 feet ahead of where his collision occurred, he had an obligation to do what he could to warn approaching motorists of the hazard he had created. He states in his testimony that he did so by activating the flashing warning signals on his vehicle. However, Murdock, who struck the same moose shortly after Lynds’ collision, stated that even though the motor home was parked on the highway prior to her collision, she did not see it because there were no flashing lights. She testified that if she had seen flashing lights she would have slowed her vehicle.

For similar reasons, there were issues of fact regarding Murdock’s negligence. She testified that as she left the home where she and Edith White had been visiting, she doesn’t recall whether her headlights were on high or low beam, but acknowledged that she saw no oncoming traffic, and therefore, there was no reason not to have them on high beam.

From the time she turned onto the highway until she collided with the moose, she had not accelerated to more than 25 or 30 miles an hour. When she first saw the moose, it was straddling the center lane of the highway and blocking about half of her lane of travel. However, she testified that she did not see the moose until she was nearly two car lengths away. The highway was newly paved and had wide shoulders and there was ample room for her to avoid the moose. However, she swerved too late to completely avoid it, and as a result, rolled her vehicle. Obviously, the moose did not jump out in front of her, it was lying prone on the highway. Had her headlights been on high beam, she should have been able to see it for a distance of 350 feet. However, even on low beam, had she been keeping the lookout required by law, she should have seen it a distance of 100 feet away, not two car lengths, or approximately 20 feet away, as she testified.

This testimony raises several issues of fact that should have been decided by a jury. (1) Were Lynds or Murdock keeping a proper lookout as required by law? (2) Had they been keeping a proper lookout, at what point should they have observed the hazard ahead of them on the roadway? (3) Finally, when Lynds and Murdock did observe a hazard ahead of them on the roadway, did they act reasonably or negligently in response to that hazard?

The majority opinion never reaches these issues because it turns the rules of summary judgment upside down. It takes the testimony of the parties moving for summary judgment and construes it in the manner most favorable to them. The majority also completely ignores all necessary inferences from the testimony given by defendants. The majority simply disposes of these issues by concluding that under Payne there is only a presumption of negligence when the object struck is in plain view, and that there is no evidence that the moose was in plain view in this case. That conclusion defies logic. If both defendants’ headlights were operating as required by law, and if the moose was located where they first described it, why wasn’t it in plain view earlier than when they first observed it? It is simply impossible that it was not.

The majority inappropriately refers to the fact that defendants were not ticketed. However, that observation is neither correct nor relevant. Lynds was ticketed because three passengers in his RV did not have seatbelts on. Perhaps that explains his reluctance to apply his brakes before colliding with the moose. However, whether he was or was not ticketed for any violation is irrelevant to whether or not he was negligent.

The majority also relies on the highway patrol officer’s testimony that Lynds could not have avoided hitting the moose under the circumstances of this case. However, that testimony was incompetent for the purposes for which it was offered or accepted by the majority. The patrolman was not at the scene of the accident and did not observe its maimer of occurrence. He did not know where the moose came from before appearing in Lynds’ lane of travel and acknowledged that depending on its route to where it was struck, Lynds might have been able to observe the animal substantially in advance of his collision with it.

I also dissent from the majority’s conclusion that the District Court correctly dismissed Donald and Edith White’s claim against the State of Montana by summary judgment. This part of the majority opinion is incorrect for two reasons.

First, the majority discusses whether the State breached a duty of due care by its failure to erect a warning sign in advance of the area where this accident occurred. Contrary to the representations of the majority opinion, there was ample evidence that the State had such a duty. Based on prior vehicle collisions with moose in this area, the Highway Department had determined that a hazard existed as early as 1987, and had first erected warning signs at that time. Even though a slough which was one of the attractions for moose in the area had been eliminated by road reconstruction in 1991, the Highway Department contract for that construction required that the contractor re-erect the signs as part of the highway project. The fact that the signs were stolen did not relieve the Highway Department of the duty to maintain its highway by putting them back up again. Section 61-8-203, MCA, requires that the State warn motorists of known hazards. Darrell Daw, the Field Maintenance Supervisor for the Highway Department in the area where the accident occurred, testified that frequent moose crossings were a known hazard, even after reconstruction of this stretch of highway.

Most importantly, however, the District Court did not decide, and the State on appeal does not argue, that it had no duty to erect warning signs. The District Court concluded, based simply upon Lynds’ and Murdock’s testimony that they would not have slowed down because of warning signs, that there was no causal relationship between the State’s failure to erect the signs and the collisions which resulted in Edith White’s injuries. However, the opinions of the District Court and the majority of this Court ignore significant other testimony given by both defendants. For example, Lynds testified that when he sees deer crossing signs it makes him more alert and he is more inclined to watch what is happening on the road ahead of him. "When asked if he would have driven any differently had he seen signs warning him that moose crossed the highway in the area where this collision occurred, he testified: “I probably would have driven a little bit more defensively, yes, but it wasn’t there.” He also testified that if he had known there was a possibility of moose crossing in the area, and if there had not been a car coming toward him, his headlights would have been on high beam at the time of the accident, rather than low beam.

This testimony, when considered in combination with the legal requirements for headlamps on vehicles, the broad range of vision available in the recreational vehicle, and the broad range of illumination that would have occurred from high beam, are direct evidence that the collision which led directly to Edith White’s injuries could have been avoided had an appropriate warning been given to Lynds.

Likewise, Murdock testified that if she had seen moose warning signs that evening they would definitely have made an impression on her and she would have been more alert for the hazards that moose present. Perhaps in her case, because of the low speed at which she was already traveling, she would not have been going any slower because of warning signs. However, had Lynds been adequately warned there would not, in all likelihood, have been a dead moose on the highway for Murdock to collide -with.

None of these facts are referred to in the District Court opinion or the majority’s opinion. Considering these facts it is impossible to conclude that there are not at least inferences from the testimony which create factual issues regarding the subject of causation.

Under our laws pertaining to the respective responsibilities of courts and juries, the majority has no business substituting its judgment regarding the merits of plaintiffs’ claim for that of the jury. However, that is what they have done in this case. For these reasons, I dissent from the majority opinion.

JUSTICE HUNT joins in the foregoing dissent.