text:
    DONALD J. TIGART, Plaintiff and Respondent, v. RICHARD J. THOMPSON, Defendant and Appellant, DOUGLAS C. BROOKINGS, Plaintiff and Respondent, v. DICK THOMPSON, Defendant and Appellant. RICHARD J. THOMPSON, Third-Party Plaintiff and Appellant, v. DONALD J. TIGART, Third-Party Defendant and Respondent.
    No. 88-501.
    Submitted on Briefs April 27, 1989.
    Decided June 6, 1989.
    774 P.2d 401.

      Lon T. Holden, Jardine, Stephenson, Blewett & Weaver, Great Falls, for defendant and appellant.
    Erik B. Thueson, Helena, Patricia O’Brien Cotter, Cotter & Cotter, Great Falls, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

This is an appeal from an order of the District Court, Ninth Judicial District, granting plaintiffs Brookings and Tigart a new trial, granting them certain attorney fees and costs and ordering the production of an investigative file in the possession of defendant’s insurance carrier. Defendant in the action below, Richard J. Thompson, appeals.

The issues on appeal are whether the District Court erred

(1) by granting plaintiffs’ motions for a new trial based on irregularities in the proceedings which deprived plaintiffs of a fair trial;

(2) by awarding plaintiffs certain attorney fees and costs;

(3) by ordering defendant’s insurance carrier to produce its entire investigative file as it existed prior to the commencement of legal proceedings.

Additionally, under Rule 14, M.R.App.P., respondent Brookings raises the following issue: whether the District Court erred by denying Brookings’ request for a ruling that Thompson individually or Thompson and Tigart jointly were negligent as a matter of law.

We affirm in part and dismiss in part.

This case stems from a single car accident which occurred on the afternoon of January 4, 1985, on U.S. Highway 91 near the City of Conrad, Montana. Plaintiff Tigart was driving his pickup south on Highway 91 with plaintiff Brookings as his passenger. While rounding an icy corner on that highway near the Branding Iron Restaurant and Bowling Alley, plaintiffs encountered defendant Thompson entering the highway in his pickup near the intersection of Highway 91 and Front Street.

To avoid collision, Tigart let off of the accelerator and began pumping his brakes. His vehicle fishtailed on the ice and soon he lost control of it. The pickup veered across the highway and rolled into a steep ditch on the other side, injuring both Tigart and Brookings.

Thompson apparently had not seen Tigart approaching, did not see him swerve and crash, and continued his route until he reached his home in Brady, Montana. Thompson was not aware of any accident or his possible part therein until several days later when he was contacted by Harris, the investigating highway patrol officer about his actions on January 4, 1985.

At trial, plaintiffs offered testimony that Thompson entered the highway negligently from the bowling alley parking lot that day by failing to keep a proper lookout, failing to stop and failing to yield the right-of-way such that he created an immediate hazard to Tigart in violation of § 61-8-341, MCA. Further, plaintiffs alleged that such negligence legally caused their injuries. After the trial commenced, Brookings was allowed to amend his pleading asserting a separate negligence suit directly against Tigart, his driver. Tigart likewise was joined by Thompson as a third-party defendant.

Thompson, during the entire course of discovery and pretrial proceedings, maintained that he knew nothing of the accident, had no knowledge of any actions or circumstances on the day in question and had no independent recollection of whether or not he was even in the vicinity that day. Thompson further denied in answers to interrogatories that he had given any statements to anyone, except for talking with Officer Harris who made no notes of the conversation.

In her opening statement Tigart’s attorney asserted that she could state “with confidence” that Thompson would not refute any of her evidence, and that actually what Thompson would say would be consistent with Tigart’s contentions of what transpired on the highway that day.

Much to the surprise of both plaintiffs, on the opening day of trial, defense counsel stated that the evidence would show that his client had been bowling at the Branding Iron, left the parking lot there, drove to Front Street, and entered the highway from Front Street (not from the parking lot as plaintiffs contended) after stopping at the stop sign, looking both ways and proceeding cautiously. For a defense, Thompson additionally asserted that Tigart was driving too fast for the conditions.

Plaintiffs protested this new development. In chambers defense counsel explained that testimony would come in from Officer Harris who interviewed Thompson in connection with the accident. However, Harris took no notes from his conversation with Thompson and would be relying solely on his recollection of the conversation which occurred some three years earlier.

The trial judge ruled that Harris would not be allowed to testify as an expert witness at trial because he had not been identified by defense counsel as an expert in the pretrial order. Rather, he would only be able to testify as a fact witness as to what occurred at the accident scene when he arrived some twenty minutes after impact. This development and ruling severely limited the testimony that defense counsel could get in to prove the case asserted in opening statements.

However, on the Friday of the first week of trial, after the close of Brookings’ case, defense revealed for the first time that Thompson had actually given a statement to his insurance carrier, Safeco, which was tape-recorded just eleven days after the accident. This came to light during the course of trial when Tigart’s attorney subpoenaed the insurance adjuster and his records. Just before the adjuster was to testify, defense counsel notified the court and the plaintiffs that the statement existed.

The adjuster testified that all investigative files were kept in the Spokane, Washington, regional office. The tape was likewise in Spokane. It was agreed that the tape would be transcribed immediately. The tape was transcribed over the weekend and express-mailed to the Great Falls office where defense counsel turned it over to the plaintiffs for the first time.

Plaintiffs proceeded in trial on Monday and were allowed to read portions of the Thompson statement to the jury. The statement was to the effect that Thompson did not see the Tigart vehicle and had no knowledge of the accident. However, he was at that bowling alley on that day at that time; he remembered the road conditions as being “ripe for skating”; he was “slow getting on the highway”; and he also placed himself at the Front Street intersection, rather than entering the highway from the bowling alley parking lot.

Plaintiffs moved for a new trial based on surprise and for personal sanctions against defense counsel for concealment of evidence. Sanctions were not imposed; however, when a defense verdict was returned by the jury, the trial judge granted plaintiffs’ motions for a new trial. The judge further ordered that defendant pay attorney fees and costs associated with the first trial and incurred from the close of discovery until the completion of the appeal. Finally, the court ordered the defendant to produce the entire Safeco investigative file as it existed prior to the lawsuit being filed, based on a possibility that there may be even more undisclosed witness statements in the file.

Defendant appeals.

I. New Trials

The District Court granted a new trial based on irregularities in the proceedings which deprived plaintiffs of a fair trial. We agree.

Section 25-11-102, MCA, provides:

“Grounds for a new trial. The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:
“(1) irregularity in the proceedings of the court, jury or adverse party ... by which either party was prevented from having a fair trial;”

Defense counsel contends that it was mere inadvertence and not concealment which prohibited the production of the defendant’s statement during discovery. Such inadvertence surprised plaintiffs and materially affected their substantial right to a fair trial. As the District Court noted in its order, “Because of these new contentions and the surprise that they engendered, the plaintiffs were forced to try to do discovery during the course of trial.”

Prior to trial, both plaintiffs believed that the facts were uncontested because Thompson recalled nothing with which to dispute their evidence. However, at trial, many material facts were disputed from the speed of the vehicles and the condition of the road to the place from which Thompson actually entered the highway.

The order of the trial judge granting a new trial with regard to the direction of the trial states:

“The defendant has prevented the plaintiffs from receiving a fair trial and has created unfair surprise at trial by withholding a major piece of evidence until after the trial commenced.
“. . . the defendant’s contentions in the final pretrial order are devoid of any contentions concerning where or when Thompson pulled out onto the highway. Thus up until the time of trial, both this Court and the Plaintiffs were left with the impression — if not express contentions — that the defendant would take no position concerning his whereabouts or actions related to the subject accident.
“During the trial, the defense contended that the plaintiffs had major credibility problems because they were contending that the defendant’s evidence showed he pulled out from Front Street. On closing argument, the defense attorney stated that the plaintiffs and at least Tigart’s attorney had reshaped the facts because the driveway (parking lot) better fit their theory of liability.”

Defendant’s contention that this surprise did not “materially” affect the substantial rights of the plaintiffs is without merit. The importance of the evidence cannot be underestimated, as it is the sole record of defendant’s recollection. Thompson was eighty years of age at the time of the first trial and may very well have had a lack of independent recollection of the day in question.

Granting a new trial is within the sound discretion of the trial court. Benner v. B.F. Goodrich, Co. (1967), 150 Mont. 97, 430 P.2d 648. This discretion is not without limitation. Nelson v. Fairmont Hot Springs (Mont. 1988), [234 Mont. 452,] 763 P.2d 1135, 45 St.Rep. 2042. However, an order granting a new trial will not be set aside absent a showing of abuse of discretion. Tope v. Taylor (Mont. 1988), [235 Mont. 124,] 768 P.2d 845, 45 St.Rep. 2242; State v. DeMers (Mont. 1988), [234 Mont. 273,] 762 P.2d 860, 45 St.Rep. 1901.

The credible evidence of this record shows that defense counsel denied the existence of a critical piece of evidence during discovery and then produced it during trial, after the close of Brookings’ case. Defense counsel in resisting the motion for new trial argued that nothing “irregular” had happened. What defense counsel views as nothing “irregular” in the course of this trial is a view that could only be shared with himself. Based on this record, defense counsel cannot make a showing that the District Court abused its discretion in ordering a new trial. That portion of the District Court order is affirmed.

II. Attorney Fees

Although the District Court did not assess personal sanctions against defense counsel, it awarded certain fees and costs in an amount to be determined to both plaintiffs pursuant to § 37-61-421, MCA. That portion of this appeal is dismissed without prejudice. The issue of attorney fees and costs is not in the form of a final order, and thus, the appeal is premature. This Court has held that there must be a final judgment from which an appeal may be taken before we are vested with jurisdiction. Rule 1, M.R.App.P.; In Re Marriage of Adams (1979), 183 Mont. 26, 598 P.2d 197; State ex rel. Raw v. City of Helena (1961), 139 Mont. 343, 363 P.2d 720.

Further, it is the duty of the attorneys involved in an appeal to bring this to the attention of the Court. As we stated in In Re Adoption of B.G.B. (1979), 183 Mont. 347, 599 P.2d 375:

“Too often this Court is confronted with cases that are not ready for appellate review within the meaning of the rules, but where the opposing parties do not bring this crucial fact to our attention. We often do not discover this until we are deeply into the process of review and indeed often in the opinion-writing stage. We cannot and will not tolerate this state of affairs.
“. . . If for some reason it is appealed prematurely, it is the duty of the parties to bring this to our attention by an appropriate motion to dismiss . . .”

599 P.2d at 381. This portion of the appeal is dismissed.

III. Investigative File

The District Court ordered the defendant to turn over Safeco’s entire investigative file as it existed prior to the filing of the complaint. That order is not entirely supported by the law in Montana.

Certainly, the judge was protecting any work product which would have been generated after the legal action was commenced and was merely assuring the exchange of discoverable information in fulfillment of the letter and the spirit of discovery rules. However, we conclude that there is no legal basis for such a broad order. That portion of the District Court order is reversed and modified as follows:

We order that any and all witness statements in Safeco’s file be disclosed. We held in Cantrell v. Henderson (Mont. 1986), [221 Mont. 201,] 718 P.2d 318, 43 St.Rep. 745, that a witness statement given by the defendant to his insurance carrier prior to the filing of the complaint is discoverable. Admittedly, defense counsel does not dispute the discoverability of the Thompson statement, but rather cites mere inadvertence for his failure to disclose. We have in this case a failure to disclose discoverable documents through negligent or willful conduct, thus warranting this Court’s order that all such statements in Safeco’s possession be revealed.

However, any motion to disclose an entire investigative file must be objected to by specific objections to any part which the defendant does not wish to disclose. Then the District Court can handle those objections during the normal course of the discovery process. This may require the plaintiffs to make additional, more specific requests for particular pieces of information.

IV. Rule 14, M.R.App.P.

We do not reach the issue of whether the District Court improperly denied Brookings a ruling under Rule 14 regarding negligence as a matter of law. Brookings failed to appeal properly this issue because he did not file a cross-appeal.

This Court does not review issues outside of those raised by the appellant. Mydlarz v. Palmer/Duncan Construction Co. (1984), 209 Mont. 325, 682 P.2d 695. As we stated in Mydlarz, “Although Rule 14, M.R.App.Civ.P., provides for review of matters by cross-assignment of errors, this does not eliminate the necessity for cross-appeal by a respondent who seeks review of matters separate and distinct from those sought to be reviewed by appellant.” Mydlarz, 682 P.2d at 700.

In summary, we affirm the District Court order for a new trial; we dismiss without prejudice the appeal regarding certain attorney fees and costs; disclosure is ordered of all witness statements, written, taped, or otherwise, in Safeco’s file, and we dismiss Brookings’ appeal of the denial of a Rule 14, M.R.App.P., ruling.

The case is remanded to the District Court for further proceedings consistent with this opinion.

MR. JUSTICES HARRISON, GULBRANDSON, SHEEHY, WEBER, HUNT and McDONOUGH concur.


source: Caselaw Access Project

author: MR. JUSTICE GULBRANDSON

license: Public Domain

text:
    ROBERT DEW and Sally Dew; Leighton Dresch and Jan Dresch; and James Posey and Lori Posey, Plaintiffs and Appellants, v. DOUGLAS C. DOWER and Alice S. Dower, a/k/a/ Alyce S. Dower, Defendants and Respondents.
    No. 88-542.
    Submitted on Briefs April 27, 1989.
    Decided June 6, 1989.
    Rehearing Denied June 29, 1989.
    774 P.2d 989.
    Cotter & Cotter, Patricia O’Brien Cotter, Great Falls, for plaintiffs and appellants.
    H. William Coder and Joseph M. Sullivan, Emmons & Coder, Great Falls, for defendants and respondents.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

The District Court for the Eighth Judicial District, Cascade County, entered a directed verdict at the close of trial in this matter. Plaintiffs appeal, arguing that they presented evidence which would warrant submitting to the jury several issues relating to their purchases of land from defendants, the Dowers. We reverse and remand for further proceedings consistent with this opinion.

The dispositive issue is whether the District Court erred in directing a verdict for the defendants at the close of all the evidence, based on the statute of frauds.

The Dowers owned approximately 205 acres of real property south of Great Falls, Montana. They sold the property in parcels of a little over 20 acres each. Defendant Alice Dower was, at the time of the sales, a licensed realtor. The plaintiffs, as husbands and wives, purchased some of those parcels. Plaintiffs executed buy-sell agreements and contracts for deed in purchasing their respective parcels.

Plaintiffs’ complaint alleged negligence, fraud, and breach of a covenant of good faith and fair dealing for the Dowers’ failure to bring the access roads up to “county grade.” Plaintiffs testified at trial that the Dowers orally agreed to improve two roads found on the 205 acres to “county grade” 60-foot wide roads and to guarantee access to the property. The Dowers testified that if any oral promises were made about the roads, it was to improve the roads to make them “passable” and to seek alternative access to the property. They maintained that they had done these things.

During oral arguments on the Dowers’ motion for directed verdict after all evidence had been submitted, plaintiffs’ attorney withdrew the claims as to plaintiffs Sally Dew, Jan Rae Dresch, and Lori Posey. She also withdrew all negligence claims alleged by plaintiffs. The court then directed a verdict for the Dowers and entered findings, conclusions, and a judgment in their favor on the remaining claims. It stated that plaintiffs were barred by the statute of frauds from claiming oral promises in addition to the terms of the written contracts between the parties.

Did the District Court err in directing a verdict for the defendants at the close of all the evidence, based on the statute of frauds?

The statute of frauds as applicable in this case is set forth at § 28-2-903(1)(d), MCA:

“(1) The following agreements are invalid unless the same or some note or memorandum thereof is in writing and subscribed by the party to be charged or his agent:
“(d) an agreement for the leasing for a longer period than 1 year or for the sale of real property or of an interest therein . . .

Plaintiffs’ central argument is that the statute of frauds does not bar their claim because they were fraudulently induced into signing their contracts with the Dowers by Alice Dower’s false representations about the roads which would be built. They also assert that the District Court failed to examine the facts in the light most favorable to them, the non-moving parties. Third, they maintain that the court erred in failing to submit to the jury questions regarding Alice Dower’s fiduciary duty as a realtor and her breach of a covenant of good faith and fair dealing.

The Dowers and the District Court relied upon Kelly v. Ellis (1909), 39 Mont. 597, 104 P. 873. That case arose out of Kelly’s written contract to sell his ranch to Ellis. Kelly claimed that Ellis orally promised that Kelly would be employed as ranch manager. Kelly argued that he had been fraudulently induced into entering the written contract by the oral promise. This Court ruled that where there was no allegation of failure to keep all promises made in the written agreement, the statute of frauds precluded admission of evidence of an oral promise directly related to the subject matter of the contract. Kelly, 104 P. at 875-76.

Plaintiffs cite Goggans v. Winkley (1970), 154 Mont. 451, 465 P.7d 326. In that case, this Court set forth the rule that fraud in the inducement is provable by parol evidence, despite the parol evidence rule. Goggans, 465 P.2d at 330. However, evidence of a promise regarding a futurity is only admissible if there is also evidence of intent to defraud at the time the promise was made. Dodds v. Gibson Products Co. of W. Mont. (1979), 181 Mont. 373, 379, 593 P.2d 1022, 1025.

Plaintiffs also cite Majers v. Shining Mountains (Mont. 1986), [219 Mont. 366,] 711 P.2d 1375, 43 St.Rep. 16 (Majers I), aff’d after remand (Mont. 1988), [230 Mont. 373,] 750 P.2d 449, 45 St.Rep. 283 (Majers II). In that case, buyer and plaintiff Majers alleged a common-law implied covenant on the part of the seller to build roadways in Shining Mountains subdivision. As is true in the present case, the written contracts by which plaintiff purchased property did not contain a promise to build roads. However, recorded plats showing roadways within the subdivision were referred to in the contracts and used by the selling agents. In Majers I, this Court held that whether the use of the plats gave rise to an implied covenant was an issue of fact which must go to the jury. Majers I, 711 P.2d at 1378. In Majers II, this Court concluded that substantial evidence supported the district court’s finding that defendant’s sales agents had represented that defendant would construct and provide roads. Majers II, 750 P.2d at 451. This Court affirmed the district court’s order for specific performance (building the roads).

The evidence presented at trial in the present case included the testimony of plaintiffs Robert Dew and James Posey that Alice Dower promised to improve the roads to “county grade.” A realtor who showed and sold the property to plaintiff Leighton Dresch testified that prior to the sale, he met Alice Dower on the property and she showed him where the stakes were for the “county-standard-type” roads she was going to put in. The realtor repeated this representation to Mr. Dresch. A certificate of survey was introduced into evidence. It showed 60-foot road easements on the 205 acres. The male plaintiffs all testified that they had been shown the certificate of survey when they were negotiating to buy their parcels. The recorded certificate of survey was also referenced in the contracts for deed. Further, plaintiffs introduced a letter from the Dowers’ attorney to the insuring title company. In that letter the attorney agreed, on behalf of Alice Dower, to hold the title company harmless from any claims arising from purchasers’ access problems.

The written buy-sell agreements and the contracts for deed were introduced into evidence. The buy-sell agreements contained no promise to improve the roads and stated:

“Purchaser enters into this agreement in full reliance upon his independent investigation and judgment. No agreements, verbal or other, modify or affect this agreement.”

Each contract for deed contained a clause stating:

“Purchaser has carefully examined the described property and accepts the same in its present condition without reliance upon any statement, representation or warranty by or on behalf of the Vendor as to the condition or state of repair thereof.”

The testimony also included Alice Dower’s statement that she only promised to make the roads “passable,” which she maintained at trial that she had done. She admitted that she only improved the roadways to a 50-foot width and denied that survey stakes at the 60-foot width established the width of the planned roads. She testified that the stakes established only the outer boundaries to which property owners could fence.

It was clear in Majers that the sellers admitted promising to do work on the roads. Here, too, Alice Dower admitted at trial that she had promised to do roadwork; the dispute is about the extent of the promise. Because they sold their property in parcels of more than 20 acres, the Dowers were not required to comply with the Montana statutes requiring subdivision developers to provide roads. However, the plaintiffs’ case is not based upon the Montana subdivision statutes, but upon the extent of Alice Dower’s promises over and above what she was required to do.

The Dowers point out that Majers and the present case were submitted under different theories. Majers was decided under contract theories; the present case involved only a tort claim at the time the District Court entered its directed verdict. Nevertheless, we conclude that the present case is governed by the rules set forth in Majers, Goggans, and Dodds.

Plaintiffs are correct in their statement that, in ruling on a motion for directed verdict, the court must evaluate the facts in the light most favorable to the non-moving party. Stout v. Montana Power Co. (Mont. 1988), [234 Mont. 303,] 762 P.2d 875, 876, 45 St.Rep. 1926, 1928. There is a conflict in the evidence regarding the representations made by Alice Dower. We hold that the District Court erred in taking from the jury the issue of whether the plaintiffs were fraudulently induced to enter the contracts to purchase their parcels of land from the Dowers.

As to the claims of fiduciary duty and breach of covenant of good faith and fair dealing, those matters may be addressed anew upon retrial of this case.

Reversed and remanded.

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


author: MR. CHIEF JUSTICE TURNAGE MR. JUSTICE HUNT,

text:
    ROSE KELLER, Plaintiff and Respondent, v. SCHOOL DISTRICT NO. 5 and its Board of Trustees, Ed Argenbright, Superintendent of Public Instruction, Office of Public Instruction, State of Montana, Defendants and Appellants.
    No. 89-07.
    Submitted on Briefs April 27, 1989.
    Decided June 6, 1989.
    774 P.2d 409.
    Loren Tucker, County Atty., Virginia City, Beda Lovitt, Office of Public Instruction, Helena, for defendants and appellants.
    J.C. Weingartner, Helena, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Rose Keller, petitioner, was informed by the Sheridan School District, that her teaching contract was not to be renewed. Petitioner appealed to the County Superintendent of Public Instruction who upheld the decision of the School Board, stating that petitioner had not filed timely for an appeal. The State Superintendent affirmed the school board’s decision, but the District Court reversed the Deputy County Superintendent’s decision, finding that Keller’s appeal was timely and that she had followed the applicable statute properly in questioning her dismissal. Sheridan School District appeals the District Court’s decision. We reverse.

The issues brought forth by appellant are:

1. Whether an appeal by the nontenured teacher was filed timely with the county superintendent, subsequent to her termination.

2. Whether petitioner is entitled to reasons for the nonrenewal of her contract.

On April 14, 1987, petitioner was informed in writing that her teaching contract with Sheridan Public School District No. 5 was not being renewed for the 1987-88 school year. The letter informing her of nonrenewal gave no reasons for the termination of her contract. However, the minutes from the school board meeting reflected that the reason all nontenured teachers (of which Keller was one) had not been rehired was financial. Allegedly, all of the nontenured teachers were released in anticipation that the upcoming mill levy would not pass.

Respondent argues in her brief that the mill levy for the school district did pass in June 1987 and the board of trustees considered a motion to rehire all of the nontenured teachers, but the motion failed. The record discloses that a motion to rehire all of the nontenured teachers, with the exception of Rose Keller, was passed subsequently.

Following the April 14 nonrenewal letter, petitioner did not request reasons for her nonrenewal as permitted by § 20-4-206(3), MCA (1985). She allegedly relied on the school board minutes which stated that the nontenured teachers were being released “due to financial conditions of the district at this time.”

Petitioner appealed her termination with the County Superintendent on July 21, 1987. The appeal was dismissed on motion of the school district, for Keller’s failure to appeal within the thirty days required by 10.6.103(5), ARM. The State Superintendent of Public Instruction, Ed Argenbright, affirmed the decision of the Deputy County Superintendent.

The Petitioner appealed to the District Court and on November 3, 1988, the court reversed the decision of the Deputy County Superintendent of Schools, stating that Keller had appealed in a timely fashion and was entitled to be given reasons for the nonrenewal of her contract.

The first issue is whether the appeal by petitioner with the County Superintendent of Public Instruction was timely subsequent to her termination. We will address issue two in conjunction with issue one as they are closely related in the appeal process. Issue two is whether the teacher is entitled to reasons for her termination.

Upon the termination of a teaching contract, a nontenured teacher has the option of requesting the reasons for the nonrenewal release under § 20-4-206(3), MCA (1985).

“20-4-206. Notification of nontenure teacher re-election — acceptance — termination and statement of reason. (1) The trustees shall provide written notice by April 15 to all nontenure teachers who have been reallocated. Any nontenure teacher who does not receive notice of re-election or termination shall be automatically reallocated for the ensuing school fiscal year.” (Emphasis added) ....

“(3) When the trustees notify a nontenure teacher of termination, the teacher may within 10 days after receipt of such notice make written request of the trustees for a statement in writing of the reasons for termination of employment. Within 10 days after receipt of the request, the trustees shall furnish such statement to the teacher.”

“The nontenured teacher is entitled to a notice which states what undesirable qualities merit a refusal to enter into a further contract.” Bridger Education Association v. Board of Trustees, Carbon County School District No. 2 (1984), 209 Mont. 31, 34, 678 P.2d 659, 660. The request, in writing, must be made within ten days. A nontenured teacher also has the right to appeal the decision of the board of trustees, pursuant to 10.6.103(5), ARM, within thirty days of receiving notice of her nonrenewal. An exception to § 20-4-206(3), MCA, is subsection (4) of the same statute which states:

“The provisions of this section shall not apply to cases in which a nontenure teacher is terminated when the financial condition of the school district requires a reduction in the number of teachers employed and the reason for the termination is to reduce the number of teachers employed.”

Section 20-4-206(4), MCA.

Petitioner did not request the reasons for termination of her contract within ten days, nor did she appeal the board’s decision to not renew the contract within thirty days. 10.6.103(5), ARM.

Teacher claims that there are special circumstances involved here which did not require her to take action. According to the board of trustees’ minutes, the nontenured teachers were being released because “financial conditions” required the reductions. It is clear that if the board of trustees are to meet the § 20-4-206, MCA, statutory requirement of informing teachers of their renewal or termination, they must do so before April 15 (May 1, as of the 1987 Montana Legislature, § 20-4-206(3), MCA) of the current school year. Section 20-4-206(1), MCA. Therefore, if the mill levy vote does not take place until after April 15, then it is apparent that the school board may release all of the nontenured teachers until the board knows whether it will have the funds to rehire the nontenured teachers.

Because petitioner relied on the alleged financial condition grounds for the cancellation of her contract, she saw no necessity in requesting reasons for her termination, pursuant to § 20-4-206(3) or filing notice of appeal according to 10.6.103, ARM. Only after Keller was the only nontenured teacher not to be rehired did she appeal her termination. Allegedly, by this time, the reasons of the board had changed and, therefore, § 20-4-206(4), “financial conditions,” was no longer applicable. While Rose Keller waited to be rehired after the mill levy vote, her chance for appeal passed.

The statute requires a two-step process. First, if a teacher is not going to be rehired for the subsequent year, the board of trustees is required to give written notice to the nontenured teacher. Section 20-4-206(1), MCA. Second, the nontenured teacher has the right to request the reasons for her termination, but must make written request within ten days. Section 20-4-206(3), MCA. The letter received by Keller on April 14, informed her that she was not being rehired. Keller did not request reasons for her termination within the required ten days. The statute gives a nontenured teacher the opportunity to find out upon what grounds termination is based. Even in those cases where “financial conditions” is the alleged reason for termination, nontenured teachers cannot assume this is the reason for termination unless they request and receive from the district trustees written confirmation of the reasons for termination.

Having failed to comply with the requirement of § 20-4-206(3), MCA, Keller is not entitled to reasons for her termination. We hold that the decision of the District Court must be reversed and the findings of the Deputy County Superintendent reinstated.

Reversed.

MR. JUSTICES HARRISON, McDONOUGH and WEBER concur.

MR. JUSTICE HUNT,

dissenting:

I dissent. The Madison County Deputy Superintendent of Schools and the State Superintendent of Public Instruction both found that the Sheridan Public School Board of Trustees terminated four nontenured teachers, including appellant Rose Keller, due to the financial condition of the school district. Keller justifiably relied on this reason for her termination and did not request further justification. In fact, under § 20-4-206(4), MCA, the trustees were not required to give her reasons for her termination if the financial condition of the school district was indeed the reason for her nonrenewal. The majority, however, holds that, because Keller did not request a statement of reason within 10 days after notification of termination, she lost all rights of appeal. Under this reasoning, whenever a board of trustees decides not to renew contracts due to the financial condition of the school district, in order to protect appeal rights, all nontenured teachers must request a statement of reasons — just in case the trustees did not mean what they said when they adopted the resolution. If a teacher cannot rely on the resolution of a school-board, what can she rely on?

I would affirm the District Court.


author: MR. JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MICHAEL D.W. LANGE, Defendant and Appellant.
    No. 89-22.
    Submitted on Briefs April 20, 1989.
    Submitted on Briefs June 6, 1989.
    Rehearing Denied June 29, 1989.
    775 P.2d 213.

      Richard J. Carstensen, Billings, for defendant and appellant.
    Marc Racicot, Atty. Gen., Helena, Patricia J. Schaeffer, Asst. Atty. Gen., Helena, Victor G. Koch, County Atty., Sidney, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

The District Court of the Seventh Judicial District, Richland County, revoked the suspended sentence of Michael D. W. Lange, the defendant, for violations of the conditions of his probation, under § 46-18-203, MCA, in 1986 and again in 1988. Lange appeals. We affirm.

The following issues are raised on appeal:

1. Whether the 1986 revocation of defendant’s suspended sentence violated the double jeopardy clauses of the United States and Montana Constitutions rendering all further proceedings unconstitutional.

2. Whether substantial evidence supported the District Court’s exercise of discretion in revoking defendant’s 1988 suspended sentence.

3. Whether defendant’s due process rights were violated during the May, 1988 revocation hearing because he was unable to confront and cross examine a witness.

On November 2, 1983, a jury convicted defendant for the 1981 felony offenses of criminal sale of dangerous drugs and criminal possession with intent to sell in violation of §§ 45-9-101 and 45-9-103, MCA (1981). On February 29, 1984, he was sentenced to ten years with all suspended subject to conditions of probation. In 1986 defendant failed to report to his probation officer on several occasions. For these violations the District Court, on August 27, 1986, ordered a revocation of the February 29, 1984 sentence under § 46-18-203, MCA, and defendant was sentenced to serve ten years with eight years suspended again subject to conditions of probation upon release.

On December 3, 1986, defendant was paroled from the Montana State Prison and moved to North Dakota. At that time he was subject to the supervision of a North Dakota probation officer. Montana retained jurisdiction of defendant during his probationary period.

In May, 1988, defendant’s probation officer was contacted by security police at North Dakota State College of Science who informed him that defendant was suspected of selling marijuana on campus. Consequently, on May 17, 1988, the probation officer authorized a search of defendant’s dormitory room, his person, and a vehicle owned by defendant’s girlfriend but used by him. Nothing substantial was found in his room but the search of the vehicle revealed the remnants of a greeting card with residue of a vegetable-like substance which later tested positive for marijuana. A urinalysis test of defendant was administered on the day of the search and later on May 23, 1988. Both tests revealed recent marijuana use. The greeting card residue and urinalysis samples were analyzed and documented by the North Dakota State Toxicologist. Use and possession of dangerous drugs by the defendant were violations of his 1986 conditions of probation.

On June 4, 1988, defendant’s eight year probationary portion of his sentence began under the supervision of his North Dakota probation officer. On June 10, 1988, defendant’s probation officer filed a report concerning the May, 1988, violations of probation and, on August 19, 1988, the Richland Deputy County Attorney filed a petition for revocation of defendant’s suspended sentence based on the report.

A hearing concerning the violations was conducted on September 19, 1988, and then continued to October 3, 1988. On October 25, 1988, the District Court found that defendant did indeed violate the conditions of his probation by the use and possession of marijuana in May, 1988. Consequently, the District Court revoked his suspended sentence under § 46-18-203, MCA, and sentenced defendant to five years in the Montana State Prison with five days credit for jail time previously served.

The first issue raised on appeal is whether the 1986 revocation of defendant’s suspended sentence violated the double jeopardy clauses of the United States and Montana Constitutions by enhancing his punishment thus, rendering all further proceedings unconstitutional.

The Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offense to be twice put in Jeopardy.” The clause protects offenders from multiple punishment for the same offense. Ex Parte Lange (1874), 85 U.S. (18 Wall.) 163, 21 L.Ed. 872.

The Montana Constitution affords a similar protection. Section 25, Art. II, 1972 Mont. Const., provides that, “No person shall be again put in jeopardy for the same offense . . .” We have held, however, that the revocation of a suspended sentence does not subject defendant to jeopardy twice for the same offense. Matter of Ratzlaff (1977), 172 Mont. 439, 445, 564 P.2d 1312, 1316.

A revocation hearing is not a criminal trial, Petition of Meidinger (1975), 168 Mont. 7, 15, 539 P.2d 1185, 1190, since there is no adjudication of guilt or innocence. Trial concerns a new crime while a revocation hearing concerns only whether the conditions of a suspended sentence had been violated. Marutzky v. State (Okla. Crim. App., 1973), 514 P.2d 430, 431. “The subsequent conduct, not his original offense, forms the basis of revocation and reinstates the original sentence.” Ratzlaff, 564 P.2d at 1316. The defendant, in this case, remained subject to the original sentence as if it had never been suspended, and he must live with the knowledge that “a fixed sentence for a definite term hangs over him.” Ratzlaff, 564 P.2d at 1316, and Roberts v. United States (1943), 320 U.S. 264, 268, 64 S.Ct. 113, 115, 88 L.Ed. 41, 44.

Under § 46-18-203(1), MCA, the District Court retains jurisdiction over defendant during the period of probation. See State v. Oppelt (1979), 184 Mont. 48, 53, 601 P.2d 394, 397, and Marutzky, 514 P.2d at 431. A revocation hearing is simply an exercise of the trial court’s supervision over defendant during probation and the consequence of revocation is execution of a penalty previously imposed. See Marutzky, 514 P.2d at 431.

We agree. As stated in State v. Eckley (1978), 34 Or.App. 563, 579 P.2d 291:

“Because the revocation proceeding is not a criminal adjudication, does not require proof of a criminal offense, does not impose punishment for any new offense, and is an act in the performance of the duty of judicial supervision of probationary liberty . . . the Double Jeopardy Clause ... is inapplicable.”

In this case, defendant violated the conditions of his 1986 probation by his failure to report to his probation officer. After a revocation hearing, he was sentenced to serve 10 years with two years suspended. We hold the revocation of defendant’s suspended sentence did not violate the double jeopardy clauses of the United States and Montana Constitutions.

Defendant next argued that the District Court abused its discretion because the revocation was not based on substantial evidence. We disagree.

The revocation of a suspended sentence comes within the purview of judicial discretion but must be supported by substantial evidence. State v. Lange (Mont. 1987), [226 Mont. 9,] 733 P.2d 846, 848, 44 St.Rep. 418, 420. The District Court revoked defendant’s suspended sentence for violating the conditions set forth in its August 27, 1986 judgment:

“That he violate no laws, city, county, state or federal.
“That he use no drugs of any kind unless prescribed to him by a licensed physician and that he not be in or about any place where dangerous drugs, as that term is defined by the State of Montana, are being used, dispensed or sold.”

The judgment also required that defendant submit to a search of his person, residence or vehicle, or an examination of his bodily fluids upon reasonable request of his probation officer.

On May 17, 1988, defendant’s probation officer authorized a search of defendant’s dorm room, his person, and a vehicle owned by defendant’s girlfriend but used by him. The search was based on information received from the North Dakota State College of Science security police that defendant was suspected of dealing drugs. The search of defendant’s car produced remnants of a smoked greeting card with a vegetable-like substance in its creases. Just prior to the search, defendant admitted to his North Dakota probation officer that he used a greeting card to roll and smoke a marijuana cigarette the previous week. An analytical report from the North Dakota State Toxicologist confirmed the residue taken from the card was indeed marijuana. Further, two urinalysis tests were administered to defendant at his probation officer’s request on May 17 and May 23, 1988. Both tests, also analyzed by the North Dakota State Toxicologist, confirmed recent marijuana use. Defendant made a second admission of marijuana use to his probation officer when the first urine sample was requested. During the revocation hearing, defendant’s probation officer testified to these events. Letters from the State Toxicologist which confirmed and explained the test results were admitted into evidence. We hold that this evidence meets the substantial evidence standard.

Further, § 46-18-203(1), MCA, provides in part:

“A judge . . . who has suspended the execution of a sentence . . . under 46-18-201 or his successor is authorized in his discretion to revoke the suspension or impose sentence and order the person committed.”

We will not reverse the District Court’s revocation of defendant’s suspended sentence absent a showing of abuse of discretion. See State v. Stangeland (Mont. 1988), [233 Mont. 230,] 758 P.2d 776, 45 St.Rep. 1446. The facts relied upon need not establish guilt beyond a reasonable doubt. State v. Robinson (1980), 190 Mont. 145, 619 P.2d 813, 37 St.Rep. 1830. We held in State v. Kern (1984), 212 Mont. 385, 389, 695 P.2d 1300, 1302:

“. . . All that is required is that the facts before him be such that the Judge is reasonably satisfied that the conduct of the probationer has not been what he agreed it would be if he were given liberty.”

The District Court properly used its discretion when it ordered the revocation of defendant’s suspended sentence based on the testimony of the probation officer and the letters from the North Dakota State Toxicologist.

The last issue raised on appeal is whether defendant’s due process rights were violated during the 1988 revocation hearing because he was not able to confront or cross-examine the North Dakota chemist who analyzed and documented the urinalysis tests. The chemist did not testify at the revocation hearing. Instead, letters from the chemist to defendant’s probation officer, which confirmed and explained the toxicology test results, were presented as evidence.

In this case, defendant stipulated that the letters could be received into evidence for the truth of the matter asserted during the 1988 revocation hearing. The defendant never specifically objected to the denial of his right to confront and cross-examine the chemist. He merely objected to his probation officer as an unqualified witness to give testimony about the contents of the chemist’s letters.

In fact, defendant’s counsel stated:

“Your Honor, we agreed that this gentleman [the chemist] did not have to appear and recite as evidence what was in his report, and what was in his report could be received in evidence without foundation, that’s correct.”

Defendant stipulated that presence and testimony of the chemist was not necessary and cannot now complain that his right to confront and cross-examine the witness was denied.

Affirmed.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. GEORGE R. POPESCU, Defendant and Appellant.
    No. 88-546.
    Submitted on Briefs May 11, 1989.
    Decided June 6, 1989.
    774 P.2d 395.

      Moses Law Firm, Charles F. Moses, Billings, for defendant and appellant.
    Marc Racicot, Atty. Gen., George Schunk, Asst. Atty. Gen., Helena, Thomas J. Sheehy, County Atty., Fort Benton, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Defendant Popescu was convicted of two counts of felony assault, one count of intimidation, and one count of criminal endangerment in a jury trial in the District Court for the Twelfth Judicial District, Chouteau County. He appeals. We reverse.

The dispositive issue is whether the District Court erred in refusing to give any of the justifiable use of force instructions offered by defendant and by the State.

The defendant, who was 37 years old at the time of trial, lives alone on a farm near Fort Benton, Montana. In 1986 and again in 1987, defendant hired a crew of custom combiners led by Jim Barker of Yazoo City, Mississippi, to cut his grain. In July and August 1987, Barker and his crew cut about 600 acres of grain on defendant’s farm, leaving about 400 acres uncut. They then went to another job. Their view was that the remaining 400 acres of grain were not yet ready to be cut. Defendant’s view was that they left him in the lurch. He hired another combiner to cut the remaining grain.

The following Saturday, Barker and a member of his crew, Hastings, went to defendant’s farm to collect their pay for the work they had done. Defendant and the combiners had a heated argument during which Hastings swore at defendant and defendant drew a handgun. Barker and Hastings then left.

The next morning, Barker and two of his crewmembers again drove out to defendant’s farm. More heated words were exchanged. Defendant fired his gun either into the air (his version) or at the three men (their version). Barker and defendant then came to the agreement that if Barker would obtain a written apology from Hastings and return to defendant some wooden blocks and a crescent wrench, defendant would pay for the work done. Later that afternoon, Barker and a crewmember returned to defendant’s farm with the requested items and defendant wrote them a check.

That evening defendant went to the Circle K store in Fort Benton to get a take-out sandwich. While he was still there, Barker and two others drove up and parked next to defendant’s truck. Then another pickup drove up and parked behind defendant’s truck. The occupants of that truck testified that this was the only available spot for them to park. Defendant met Barker as defendant was walking out of the store. Defendant also saw the other custom combiners outside. He displayed his gun when Barker said, “We will settle this right here and now.” Defendant returned to his pickup, yelled at those in the truck behind his to move, then rammed that truck out of the way so that he could leave. One of that truck’s passengers was just getting out when defendant rammed it and injured his knee. Defendant went home.

Defendant was charged with felony assault for the Saturday evening incident, intimidation and felony assault for the Sunday morning incident, felony assault for use of the gun in the Circle K incident, and criminal endangerment for ramming the pickup in the Circle K incident. After hearing the evidence, the court dismissed the count arising out of the Saturday evening incident. Defendant was convicted of the remaining charges.

At trial, defendant offered several instructions concerning the defense of justifiable use of force. The court refused them all, stating, “There is no evidence at all from which a threat can be aimed at the defendant and authorizing him to act the way he did.” The State did not object to the defendant’s proposed instructions on this subject and offered its own proposed instructions on self-defense. The court refused them, too.

It is the duty of the District Court to instruct the jury on every issue or theory which has support in the evidence. State v. Starr (1983), 204 Mont. 210, 217, 664 P.2d 893, 897. The elements of proof necessary to establish justifiable use of force were described by this Court in State v. DeMers (Mont. 1988), [234 Mont. 273,] 762 P.2d 860, 45 St.Rep. 1901. They are (1) that the defendant was not the aggressor, (2) that the defendant reasonably believed that he was in imminent danger of unlawful harm, and (3) that the defendant used reasonable force necessary to defend himself. DeMers, 762 P.2d at 865. In DeMers, the Court reviewed the defendant’s testimony to determine whether there was sufficient evidence to submit to the jury the issue of justifiable use of force.

In the present case, defendant testified that during his Saturday evening argument with the combiners, when Hastings swore and began running toward defendant, “I thought he fully intended to attack me.” He stated that he had been told that Hastings was “real crazy . . . wild, irresponsible.” He testified that he then grabbed his handgun and turned to face Hastings, saying “keep away from me.”

As to the Sunday morning incident, defendant testified that when Barker and the two other crewmembers came to the Popescu farm, they pulled up rapidly right in front of his truck. “It was very hostile and aggressive when he pulled in.” He testified that he feared a 3-against-l fight and fired a gun into the air.

Defendant testified that when he looked out the window of the Circle K on Sunday evening, he

“saw Barker pull in across the parking lot right diagonally at my pickup, the driver’s door, and pull up right next to it just as close as he thought he could get at the time. And right behind that came another pickup, a red and white pickup. Parked behind my pickup. I was blockaded in at that point.”

He stated that when he walked out of the store and met Barker, he had his gun in his hand, pointing at the ground. After Barker said, “We will settle this, right here and now,” Barker noticed the gun and asked, “Are you going to fire that here in front of everybody?” Defendant testified that he replied, “I will do what is necessary.” Defendant testified that when he got into his pickup he “thought I better get out of here. I am going to have to get out of here.” He stated that he called out to the occupants of the pickup behind his to move their vehicle, but that they ignored him. He then “lightly tapped” the pickup behind him with his truck, but the occupants continued to ignore him so he “backed out and moved the pickup out of my way.”

We conclude that under the circumstances presented in this case, the defendant’s testimony was sufficient to warrant submitting to the jury the issue of whether defendant exercised justifiable use of force. Defendant’s counsel properly entered his objection to the District Court’s refusal to give such instructions. We hold that it was error to fail to instruct on this issue. Because of this error, we reverse.

The defendant raised several other issues in his appeal. The first of these is whether the District Court erred in refusing to permit a licensed clinical psychologist to testify in defendant’s behalf. The defense offered this testimony under § 46-14-102, MCA, which relates to evidence that defendant suffered from a mental disease or defect. However, the defense did not give pretrial notice of relying on mental disease or defect, as required by § 46-14-201, MCA. We conclude that under these circumstances the court did not err in refusing to allow the testimony.

Defendant also raised three issues relating to whether certain witnesses should have been allowed to testify or not. These issues concern failure of the State to provide previous notice of witnesses who testified on rebuttal, failure of the Court to grant a continuance to allow the defense to pursue possible exculpatory testimony, and failure of the court to issue certificates for subpoenas for out-of-state witnesses desired by the defense. These issues may or may not re-arise on retrial. We will not consider them now.

Finally, defendant argues that the evidence was insufficient to convict him of intimidation for the Sunday morning incident. Since the evidence may not be identical on retrial, we decline to address the issue at this time.

Reversed and remanded for retrial.

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


author: MR. JUSTICE WEBER

text:
    ROGER THOMPSON, Plaintiff and Appellant, v. BOARD OF TRUSTEES OF SCHOOL DISTRICT NO. 2, Yellowstone County, Montana, said board consisting of the following; Maurice R. Colberg, Jr.; Frank J. Kolendich; Hewes D. Agnew; Ellen Alweis; Karen Trask Doolen; Jim Logan; Douglas B. Sipes; and Mike Young, Defendants and Respondents.
    No. 88-513.
    Submitted on Briefs April 27, 1989.
    Decided June 7, 1989.
    774 P.2d 412.

      Charles F. Moses, Moses Law Firm, Billings, for plaintiff and appellant.
    Laurence R. Martin and Sol Lovan, Felt & Martin, Billings, for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

This suit arises out of the nonrenewal of plaintiff’s teaching contract with School District No. 2 in Billings, Montana. Plaintiff appealed the Board of Trustees’ decision to terminate his employment and the reasons given for nonrenewal therein to the District Court for the Thirteenth Judicial District, Yellowstone County. The District Court granted summary judgment in favor of the School District on plaintiff’s claims for tort liability, punitive damages, violation of due process, and breach of the implied covenant of good faith and fair dealing. The court granted the plaintiff’s cross-motion for summary judgment based on the insufficiency of the reason given for nonrenewal. The court remanded the case back to the School District for a more sufficient statement of reasons. On appeal, the plaintiff challenges the adequacy of the District Court’s remedy, alleging that there has been a breach of the employment contract and that he is entitled to monetary damages. Based on our holding that the plaintiff is not entitled to pursue this remedy, we affirm the District court’s granting of summary judgment in favor of the School District and vacate the Order of remand.

We reframe the issues as follows:

Where a nontenure teacher has received notice of termination under § 20-4-206, MCA 1985, and challenges the sufficiency of the reasons given for termination, to what extent has the teacher the following remedies:

(1) Remedies under the grievance procedure of the Professional Agreement or union contract between the School Board and the Teacher’s Association.

(2) The right of appeal under the nontenure teacher’s severance policy contained in the union contract providing for appeal of the notification to the School Board; and subsequent rights to appeal to the County Superintendent of School, and then to the State Superintendent, and finally to the court system under the Montana Administrative Procedure Act.

(3) Right to proceed in District Court seeking a recovery of damages suffered as a claimed result of the insufficiency of the notice of termination given to the teacher by the school district.

Section 20-4-206, MCA 1985, with regard to nontenure teacher notification, provides in pertinent part as follows:

“Notification of nontenure teacher reelection — acceptance — termination and statement of reasons. (1) The trustees shall provide written notice by April 15 to all nontenure teachers who have been reelected. Any nontenure teacher who does not receive notice of reelection or termination shall be automatically reelected for the ensuing school fiscal year.
“(2) . . .
“(3) When the trustees notify a nontenure teacher of termination, the teacher may within 10 days after receipt of such notice make written request of the trustees for a statement in writing of the reasons for termination of employment. Within 10 days after receipt of the request, the trustees shall furnish such statement to the teacher.

The pertinent portion of the Professional Agreement, or union contract, between the Board of Trustees of School District No. 2 and the Billings Education Association are as follows

“Article IV, Section 7. Non-Tenure Teacher Severance Policy:

“Subd. 1. Every non-tenured teacher shall be entitled to the following rights if his/her contract is not being renewed.

“(a) The teacher shall be notified by the Superintendent, in writing, that his or her contract will not be renewed pursuant to Montana statutes.

“(b) The notice shall state the specific reasons for non-renewal.

“(c) The teacher may appeal his/her non-renewal to the Board of Trustees or a committee thereof, by May 1. The Board, or its committee, shall reach a decision within twenty (20) days of the submittal of the appeal.

“Subd. 2. The decision of the Board, or its committee, shall not be subject to the grievance procedure as outlined in Article XII.

“Article XII,

“Section 4. Adjustment of Grievance, Time Limitation and Waiver:

The parties shall attempt to adjust all grievances which may arise during the course of employment of any teacher within the School District in the following manner: If a grievant believes there has been a grievance, he/she shall discuss the matter with the responsible administrator in an attempt to arrive at a satisfactory solution. If the grievance is not resolved as a result of this meeting, the grievance shall be reduced to writing, setting forth the facts and the specific provisions of the Agreement allegedly violated, and the particular relief sought. An alleged grievance must be presented in writing within twenty (20) days of the occurrence of the event, or within twenty (20) days of the time that the grievant through the use of diligence should have known of the alleged grievance.

“Subd. 1. Level I: The written grievance, signed by the grievant involved must be presented to the responsible administrator within the time limits provided in Section 4. The responsible administrator shall meet with the grievant within seven (7) days after receipt of the written grievance and give a written answer to the grievance within five (5) days of the meeting. The Grievant has five (5) days in which to either accept the answer or appeal it in writing to the next level.

“Subd. 2. Level II: If the grievance has not been resolved in Level I, it may then be processed to Level II by presenting the written grievance to the Superintendent. The Superintendent or his designee shall meet within ten (10) days after receipt of the written appeal to discuss the problem with the grievant. Within seven (7) days of the meeting the Superintendent or his designee shall submit his written answer to the grievant.

“Subd. 3 Level III: If the grievance remains unresolved at the conclusion of Level II, it may be submitted for binding arbitration at the discretion of the Association provided written notice of the request for submission to arbitration is delivered to the Superintendent’s Office within ten (10) days after the date of receipt of the decision at Level II.”

The case has a complex procedural history which unfortunately extends over a period starting in 1983. Mr. Thompson was employed by School District No. 2 as the choir director at Billings West High School. He served in that capacity for three years, each year being offered a one-year contract. In March, 1983, the Board of Trustees voted not to renew Mr. Thompson’s contract for the 1983-84 school year. That contract would have granted him tenure rights.

Mr. Thompson was notified of the Board’s decision by letter dated March 30, 1983 which said:

“In accordance with Section 20-4-206, of the School Laws of Montana, Annotated, (copy attached), you are provided notice of termination of your contract with School District No. 2, at the close of the 1982-83 school year.
“In keeping with the philosophy of School District No. 2 of retaining only the best teachers for tenure, School District No. 2 would be better served by another teacher in this position.”

On March 31, 1983, Mr. Thompson responded by letter which stated:

“In accordance with Section 20-4-206, MCA, I am requesting the reason or reasons for the board’s decision to terminate my employment with the district.
Also, in consideration with the board’s statement at the March 29, 1983 meeting, I am requesting a hearing before the board to address this matter.”

In response to the foregoing letter, the Board sent a letter to Mr. Thompson dated April 6, 1983, which stated:

“This responds to your letter of March 31, 1983. You have already been notified of the termination of your contract with School District No. 2, by letter from Dr. Poore, dated March 30, 1983. This letter included the reasons for the termination of your employment.
“Pursuant to your request, you may appeal your nonrenewal to the Board of Trustees at the Board meeting to be held at 4:00 p.m., Monday, April 11,1983, at the Administration Building. This appeal is granted you under the provisions of Article IV, Section 7, of the Professional Agreement between the Board of Trustees and the Billings Education Association.”

On April 11, 1983, Mr. Thompson and his counsel appeared before the Board of Trustees. Mr. Thompson’s counsel presented argument but was not allowed to call any witnesses. The Board characterized the proceeding as an “appeal” rather than a “hearing” and therefore did not allow the presentation of witness testimony. Following the presentation by Mr. Thompson’s counsel, the Board voted to affirm its prior decision not to renew Mr. Thompson’s contract.

In a letter dated April 11, 1983, addressed to Mr. Thompson, he was advised as follows:

“You have been afforded an appeal of the termination of your employment with School District No. 2 at the close of the 1982/83 school year, pursuant to Article IV, Section 7 of the Professional Agreement between the Board of Trustees of School District No. 2, and the Billings Education Association.
“This is to notify you of the Board’s decision, denying your appeal, and affirming the prior decision of the Board of Trustees, to terminate your contract and employment with School District No. 2, at the close of the 1982/83 school year.”

The Board did not advise Mr. Thompson orally or by the above letter of any additional reasons in support of the nonrenewal.

By notice dated April 19, 1985, Mr. Thompson appealed to the County Superintendent of Schools. By order denying appeal dated April 28, 1983, the County Superintendent concluded that the appeal had failed to meet the requirements set forth in the Administrative Rules of Montana in failing to set forth a proper caption, names and addresses, clear and concise statement of the matters asserted, a statement indicating that the petitioner has a contested case and that the County Superintendent has proper jurisdiction together with references to the particular sections of the statutes and rules involved. The County Superintendent concluded that he did not consider this a contested case and that he lacked jurisdiction. No appeal was taken by Mr. Thompson from that order. As a result, there was no further attempt to follow the procedure outlined in such cases as Throssell v. Board of Trustees of Gallatin County (Mont. 1988), [232 Mont. 497,] 757 P.2d 348, 45 St.Rep. 1228, and Yanzick v. School District No. 23, Lake County (1982), 196 Mont. 375, 641 P.2d 431. This was the extent of the appeal procedure exercised under the administrative law approach as outlined in the above cited cases.

In addition to proceeding under the appellate approach as previously described, Mr. Thompson also proceeded under the grievance provisions of the union contract, and in particular Article XII, Section 4 which is previously set forth. On April 5, 1983, Mr. Thompson filed a grievance with the School District under the provisions of Article XII, Section 4 of the union contract. The grievance was made on the regular Grievance Report form used by the Billings School District and was signed by the Billings Education Association representative. The key portions of that form stated:

“Date grievance occurred: March 29, 1983
“Statement of facts: Teacher was terminated on March 29, 1983.
“Inaccurate evaluations are a factor in this termination.
“Specific Provisions of Agreement Allegedly violated: Article XV — Sections 1, 2, 5, 6
Particular relief sought: Evaluation dated March 1, 1983, is to be removed from his file and grievant is to be offered a contract for the 1983-84 school year.”

In support of the School District’s motion for summary judgment, the uncontradicted affidavit of the Director of Personnel of the School District established that the grievance was denied through Level I and II administrative hearings. As previously set forth, those levels provide at Level I for the presentation of the grievance to the responsible administrator who is required to meet with the grievant, and denied the written grievance. At Level II, the grievance was presented to the Superintendent, and such Superintendent also denied the grievance. The next choice under the contract for Mr. Thompson was to submit that grievance for binding arbitration at Level III. The affidavit establishes that the Billings Education Association, Mr. Thompson’s representative, dropped its attempts to move the grievance to binding arbitration. As a result, the record establishes that Mr. Thompson failed to proceed through to binding arbitration and thereby obtain a final binding arbitration determination of his grievance.

In considering the grievance requirements under the union contract, it is important to keep in mind that Mr. Thompson’s grievance as stated in the Report Form was limited to his argument that the evaluation dated March 1, 1983, was inaccurate and should be removed from the file and that he should be offered a contract for the next school year. At that point, Mr. Thompson made no suggestion that the reasons given in the notice of nonrenewal were insufficient. This is significant because he now urges that the insufficiency of such notice should be a proper basis for the award of damages in the District Court action which was brought against the School District.

The next procedural aspect is the filing of the complaint by Mr. Thompson against the School District. On June 16, 1983, after all the above-described procedures were followed, Mr. Thompson filed his complaint in the District Court of Yellowstone County. In that complaint he alleged that the defendants had negligently, wrongfully and unlawfully terminated his employment and that the School Board did not provide standards or guidelines for termination, that his termination was prejudged, that the District violated the open meeting law, that such termination did not represent the independent and informed judgment of each member, and that the notice was defective “in that it did not set forth the specific reasons for his termination as required by law.” The complaint claimed damages by being deprived of employment and terminated without right. After the filing of various pleadings, a motion for partial summary judgment was filed by the plaintiff and the defendant also filed motions for summary judgment. By order dated March 31, 1988, the District Court granted summary judgment to both the plaintiff and the defendant. In granting the motion of the plaintiff Thompson for summary judgment as to the sufficiency of the notice, the Order stated:

“2. That the Plaintiff’s Cross-Motion for Summary Judgment on the alleged insufficiency of the statutory notice requirements is hereby GRANTED. This issue is REMANDED to the school board of the Billings High School District No. 2, Yellowstone County, Montana, and said school board is directed to provide the Plaintiff with specific reasons for non-renewal of his contract within thirty days of the date hereof. The Court recognizes that this cause arose over five years ago and that the school board may no longer be able to provide the Plaintiff with specific reasons for non-renewal due to changes of members on the school board, and changes of personnel, lost or misplaced records and the like. If the board is unable to comply with the Court’s Order due to such reasons, it may certify such fact to the Court within the time herein before provided and serve a copy of such certification to counsel for the Plaintiff. On the other hand, if the board is able to comply by providing Plaintiff with specific reasons for non-renewal and certification of such compliance is made together with proof of service of such certification on counsel for Plaintiff, then judgment may be entered accordingly.”

The order of the District Court also granted the defendants’ motion for summary judgment in the following respects: regarding the non-applicability of the Montana Open Meeting Law; regarding the defendants’ claim that the individually named Trustees are immune from liability; as to plaintiff’s claim for imposition of punitive damages as to both the School District and the Trustees; defendants’ motion regarding the failure to state a claim for breach of the covenant of good faith and fair dealing; and defendants’ motion for the failure to state a claim for wrongful discharge.

The effect of the foregoing Order on summary judgment was to remand to the School District in order to provide Mr. Thompson with notice of reasons which met the requirement of Bridger Education Association v. Board of Trustees, Carbon County (1984), 209 Mont. 31, 678 P.2d 659. Mr. Thompson challenged the adequacy of the remedy by motion to alter or amend which the District Court denied. In his appeal Mr. Thompson contends that the School District was obligated to furnish specific reasons for termination, that he was not afforded a meaningful appeal or a hearing, that there has been a breach of contract and that he is entitled to damages. The key element is that Mr. Thompson contends he is entitled to damages which have effectively been denied him by the summary judgment of the District Court and the above-described remand.

I.

REMEDIES UNDER GRIEVANCE PROCEDURE OR UNION CONTRACT

In his Grievance Report Mr. Thompson referred to his termination on March 29, 1983. He then claimed that inaccurate evaluations were a factor in that determination and asked that the evaluation dated March 1, 1983, be removed from his file. His own Grievance Report contradicts the basic assertion in the complaint filed in the District Court where he complains that the notice was insufficient.

We conclude that the grievance procedure under the union contract is the binding method of disposing of the issues raised under the grievance procedure. We therefore conclude that Mr. Thompson could not have proceeded into District Court on the same issues raised in the grievance procedure. Under the agreement negotiated by the Billings Education Association with the School District, the final decision in the grievance process is a binding arbitration. Because Mr. Thompson chose not to proceed to binding arbitration, that terminated any further rights with regard to the claimed grievance.

As we review Article IV, Section 7 of the union contract, we conclude that the issue of the sufficiency of the notice of termination properly could have been included in the Grievance Report form and handled through the grievance procedure. Had he properly proceeded in that manner, his right to receive a specific statement of reason for nonrenewal would have been satisfied through the grievance procedure.

In this instance he chose not to proceed to arbitration as he apparently concluded that he preferred to make a claim for damages in District Court. We hold that the proper method for obtaining a statement of specific reasons for nonrenewal by Mr. Thompson was set forth in the grievance provisions of the union contract. We further hold that by failing to follow these contract provisions, Mr. Thompson has lost his right to obtain specific reasons for nonrenewal. We therefore conclude that that the District Court improperly remanded to the School District.

II.

RIGHT OF APPEAL UNDER CONTRACT SEVERANCE

POLICY

In his complaint in District Court Mr. Thompson argues that the notice did not contain specific reasons for nonrenewal. In making these contentions he overlooks the procedure which he previously followed. We pointed out that Mr. Thompson appealed his nonrenewal to the Board of Trustees of the School District. Pursuant to the contract, he was given an appellate hearing and the decision by the School Board was affirmed. At that point Mr. Thompson appealed to the County Superintendent of Schools. As previously described, the County Superintendent declined to rule on his appeal. Under the administrative procedure outlined in Throssell and Yanzick, Mr. Thompson was required to appeal to the State Superintendent and in the event of an adverse ruling, only then did he have the right to proceed in District Court, following the procedure under the Administrative Procedure Act. As a result, his remedies would have been limited to recovery appropriate under the union contract and the Act.

We hold that by failing to follow the administrative procedure outlined in the mentioned two cases, Mr. Thompson gave up his right to a final determination under the administrative procedure required in Montana. We therefore conclude that he no longer had a claim for nonrenewal of his contract.

III.

DISTRICT COURT CLAIM OF DAMAGES

Mr. Thompson argues extensively that he has a right to recover all damages which he has suffered in all of these proceedings, including references to the idea of reinstatement, and most important, to monetary damages. As Mr. Thompson summarized in his own brief, he claims he is entitled to damages for the breach by the School District of his contract. We conclude that he does not have such a right under the facts of this case.

As previously outlined, Mr. Thompson had the opportunity of grieving the sufficiency of the notice itself under the grievance procedures. He chose not to go to binding arbitration. As a result, he no longer had a right to contend in the District Court action that the notice itself was insufficient. In a similar way, if Mr. Thompson believed that he properly should have been retained as a nontenure teacher, the procedure to be followed was that previously outlined under Part II of this opinion. As he failed to follow the appropriate administrative procedure, he is barred from making the same contentions in the present proceedings before the District Court.

We therefore hold that there were no further remedies available to Mr. Thompson under the complaint which he filed in the District Court; and conclude that the District Court properly granted summary judgment on the various theories requested by the School District.

We vacate the remand by the District Court to the School District as there is no requirement for such further consideration by the School District under the union contract. With that exception we affirm the District Court.

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

MR. JUSTICE SHEEHY did not participate in this decision.