author: JUSTICE HARRISON

text:
    IN RE THE MARRIAGE OF AILEEN D. SCOTT, Petitioner and Appellant, and CARL D. SCOTT, Respondent and Respondent.
    No. 92-081.
    Submitted on briefs June 11, 1992.
    Decided July 21, 1992.
    49 St.Rep. 634.
    835 P.2d 710.
    254 Mont. 81.

      For Petitioner and Appellant: Paul Neal Cooley, Skelton & Cooley, Missoula.
    For Respondent and Respondent: Jeffrey H. Langton, Hamilton.
   JUSTICE HARRISON

delivered the Opinion of the Court.

The marriage of Aileen Scott (Aileen) and Carl Scott (Carl) was dissolved in the Fourth Judicial District, Missoula County, Montana. The District Court entered the Final Decree of Dissolution on August 5, 1991, which divided the property of the parties and made no provision for maintenance. Aileen moved the court to amend the decree and filed a motion for a new trial. The District Court denied both motions and Aileen appeals. We affirm.

The parties were married on December 14, 1979 in Missoula, Montana and the marriage lasted over eleven years. Both parties had previously been married and had children from those relationships. They had no children from their marriage to each other. Prior to the marriage Aileen was employed by Safeco Title Insurance Company as an office worker. She was educated through the eighth grade and completed two years of a business school program. Carl, who never progressed beyond the ninth grade, became quite successful by buying land and constructing houses, some of which he sold on contract. After complications with his arm in 1977, Carl ceased construction activities and lived off his investments. About that time, Carl established a horse trading business and owned several mares.

Carl entered the marriage with an approximate net worth of over $500,000 and Aileen approximately $18,000. In 1980, shortly after the parties married, they established a horse racing operation starting with the horses Carl owned prior to the marriage. The couple devoted their full attention to this venture throughout the course of their marriage. The horse racing business included racing, breeding, raising, and training of race horses. Carl managed the business aspects of the operation while Aileen became a licensed horse trainer and trained the horses they owned. Aileen also traveled to the race locations and dealt with the operation from that end.

The couple first lived in St. Ignatius, Montana, until moving to Ellensburg, Washington in 1982. Sometime in 1983, Carl purchased property at Lake Lenore, Washington and in July 1989, the parties moved to Corvallis, Montana. The parties were unsuccessful in making the horse racing business profitable and sustained losses totaling over $230,000 between 1981 and 1990.

The parties lived apart for over a year when, in April 1990, Aileen departed for Canada to run horses. In late May, Aileen received a substantial inheritance after the death of her mother consisting of approximately $100,000 in cash and 392 acres of real property near Butte, Montana. In early June, Carl asked Aileen not to return to the family home even though the parties had lived separately for over a year. Aileen initiated dissolution proceedings and was granted temporary maintenance of $1,000 per month which was later reduced to $500 per month.

Trial was held on June 25 and 26, 1991, and on July 20, 1991 the District Court entered Findings of Fact, Conclusions of Law and Order. On August 5,1991 the District Court entered the Final Decree of Dissolution which distributed the assets of the parties and eliminated all maintenance to Aileen. On August 20, 1991, Aileen filed a motion to amend the final decree as well as a motion for a new trial. The District Court denied both motions on October 1,1991 and Aileen now appeals to this Court.

This Court’s recent opinion of In Re Marriage of Danelson (Mont. 1992), [253 Mont. 310, 833 P.2d 215], stated:

This Court has recently clarified that our standard of review in regard to the factual findings of the district court relating to the division of marital property is whether the district court’s findings are clearly erroneous. In re Marriage of Sacry (Mont. 1992), [253 Mont. 378, 833 P.2d 1035,] 49 St.Rep. 452. Concerning this Court’s review of conclusions of law made by a lower court we have stated that “[w]e are not bound by the lower court’s conclusions and remain free to reach our own.” Schaub v. Vita Rich Dairy (1989), 236 Mont. 389, 391, 770 P.2d 522, 523. The basis for simply determining if the lower court’s conclusions are correct is that there is no discretion in determining a question of law. The lower court either correctly or incorrectly applies the law. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601.
In adopting these standards of review in division of marital property cases, this Court is not in any way discounting the considerable discretionary power that must be exercised by district courts in these cases. The courts are obligated to fashion a distribution which is equitable to each party under the circumstances. In re Marriage of Jones (1987), 229 Mont. 128, 745 P.2d 350; § 40-4-202, MCA. The courts, working in equity, must seek a fair distribution of the marital property using reasonable judgment and relying on common sense. Obtaining this equitable distribution will at times require the lower court to engage in discretionary action which cannot be accurately categorized as either a finding of fact or a conclusion of law. These discretionary judgments made by the trial court are presumed to be correct and will not be disturbed by this Court absent an abuse of discretion by the lower court. Meridian Minerals v. Nicor Minerals, Inc. (1987), 228 Mont. 274, 742 P.2d 456.

Danelson, at_, 833 P.2d at 219,220.

Aileen alleges numerous errors at the District Court level all related to property distribution and maintenance which can be combined into the following dispositive issue: Did the District Court err in dividing the marital estate and in not providing for maintenance to Aileen.

PROPERTY DISTRIBUTION

Section 40-4-202, MCA sets forth the criteria for the division of property in a dissolution proceeding as follows:

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. In making apportionment, the court shall consider the duration of the marriage and prior marriage of either party; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; ... whether the apportionment is in lieu of or in addition to maintenance; and the opportunity of each for future acquisition of capital assets and income.

Section 40-4-202(1), MCA.

In making property distribution we conclude that the District Court did take into consideration the items found in § 40-4-202(1), MCA. For instance, the court acknowledged the age of the parties and the eleven-and-one-halfyear duration of the marriage. The court also addressed the employability of the parties and their vocational skills by stating that Carl had not worked in construction for the last seventeen years while Aileen was an experienced horse trainer. Further, the court indicated that, with training, Aileen could return to work in an office position. Similarly, the District Court addressed the other items contained in the statute and the record supports each finding.

Section 40-4-202(1), MCA, also addresses property division with regard to property acquired prior to the marriage relationship as follows:

In dividing property acquired prior to the marriage; property acquired by gift, bequest, devise, or descent; property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent; the increased value of property acquired prior to marriage; and property acquired by a spouse after a decree of legal separation, the court shall consider those contributions of the other spouse to the marriage, including:
(a) the nonmonetary contribution of a homemaker;
(b) the extent to which such contributions have facilitated the maintenance of this property; and
(c) whether or not the property division serves as an alternative to maintenance arrangements.

Section 40-4-202(1), MCA. The record reflects that Carl owned substantial assets prior to his marriage to Aileen. He entered the marriage with extensive investments resulting from his efforts as a contractor totalling approximately $500,000. Even the horses that comprised the beginning of the couple’s horse racing venture were bought and paid for by Carl prior to the marriage. Aileen entered the marriage with an approximate net worth of $18,000. While Aileen made a contribution as a homemaker, it cannot be said that she made a contribution to maintenance of Carl’s pre-marriage property. In fact, the record indicates that Aileen knew virtually nothing about Carl’s construction business or his investments as evidenced by Aileen’s own testimony:

Question: Now, you’ve testified that — repeatedly that Carl was quite secretive about his business affairs?
Aileen: He was.
Question: Do you have any idea what his net worth was at the date of the marriage?
Aileen: No, he never discussed that with me ...
Question: Now, did land that Carl owned as of the date of the marriage, did you, yourself, put any money into any of that land?
Aileen: No.

The court also addressed Aileen’s inheritance of cash and real property. Aileen objects to the District Court’s consideration of her inheritance as part of the marital estate. However, we find, after a close review of the Findings of Fact, that the court was stating that Carl was not entitled to any portion of Aileen’s inheritance by listing only the remaining unspent balance of the inheritance in the Findings. The court observed that Aileen had already spent $52,000 of the inheritance and simply clarified that the remaining unspent $48,000 belonged solely to Aileen. Even without the inheritance as a component of the marital estate we conclude that while Aileen may not have received an equal portion of the marital estate, she received an equitable portion according to In re Marriage of Wersland (1991), 249 Mont. 169, 174, 814 P.2d 991, 994; citing In re the Marriage of Fitzmorris (1987), 229 Mont. 96, 745 P.2d 353.

We also mention that Aileen makes much out of the fact that some of the property divided between the parties was located in the state of Washington. She suggests that the property should therefore be divided according to community property standards under Washington law. We do not agree. This Court is not bound by Washington law. The dissolution proceeding was initiated by Aileen in Montana and the proceeding is now subject to adjudication accordingly.

Generally, Aileen objects to the amount she received in the dissolution proceeding based on percentage comparisons that indicate the disproportionate nature of the property division. After reviewing the record it is evident the District Court placed emphasis on the fact that Carl entered the marriage with substantially more than Aileen. Aileen’s contribution to the maintenance of Carl’s premarriage property was minimal, despite the eleven year marriage. Even the assets acquired during the marriage, namely the horse racing operation, was acquired with Carl’s pre-marriage funds. The record indicates that the operation almost continuously operated at a loss, therefore, Aileen’s efforts in this area did not facilitate the maintenance of the pre-marital property. Section 40-4-202(1), MCA, refers to a spouse’s contribution to “the increased value of property acquired prior to marriage,” and in the case at bar there has been no such increase, since the horse racing venture lost approximately $231,000 from 1981 to 1990. All these factors were properly reflected in Aileen’s award from the dissolution proceeding.

It is well settled in Montana that property division in a dissolution proceeding does not need to be equal but instead must be equitable. In re Marriage of Wersland (1991), 249 Mont. 169, 174, 814 P.2d 991, 994; citing In re the Marriage of Fitzmorris (1987), 229 Mont. 96, 745 P.2d 353.

A review of the record indicates that the District Court properly considered all the components mentioned in § 40-4-202(1), MCA, when dividing the parties’property and assets. Therefore, the District Corut did not err in dividing such property.

MAINTENANCE

An award of maintenance is governed by § 40-4-203(1), MCA, which provides that:

In a proceeding for dissolution of marriage or legal separation or a proceeding for maintenance following dissolution of the marriage ... the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:
(a) lacks sufficient property to provide for his reasonable needs; and
(b) is unable to support himself through appropriate employment. ...

Section 40-4-203(1), MCA.

The District Court found that Aileen did not lack sufficient property to provide for her reasonable needs. To that end, we note that Aileen repeatedly stated she was not asking for maintenance and that she felt she could support herself. The court properly considered her inheritance, her statements, her current income and future income potential. Thus, the court did not provide for maintenance.

Aileen also makes much out of the fact that what remains of her inheritance will soon be gone, as she anticipates those funds will go towards covering various costs of stabling her horses, motel bills, travel expenses, feed and other related expenditures. It is her choice to remain dedicated to a losing business proposition and neither the District Court nor Carl can be held responsible for that choice.

We conclude that after considering the requisite elements of § 40-4-203(1), MCA, the District Court properly determined that Aileen was not entitled to maintenance. Failing to meet the threshold questions in § 40-4-203(1), MCA, we need not progress to the standards set forth in § 40-4-203(2)(a) through (f), MCA. In re Marriage of Overturf (Mont. 1992), [253 Mont. 321,] 833 P.2d 213, 215.

After a review of the record in the case at bar, we find that the District Corot’s division of the marital estate and denial of maintenance was not clearly erroneous. Accordingly, we affirm.

JUSTICES GRAY, TRIEWEILER, McDONOUGH and WEBER concur.


source: Caselaw Access Project

author: JUSTICE WEBER

license: Public Domain

text:
    NAFTCO LEASING LIMITED PARTNERSHIP 301, et al., Plaintiffs and Appellants, v. FINALCO, INCORPORATED, a Delaware corp., Defendant and Respondent.
    No. 91-445.
    Submitted on briefs Apr. 15, 1992.
    Decided July 27, 1992.
    49 St.Rep. 644.
    835 P.2d 728.
    254 Mont. 89.

      For Plaintiffs and Appellants: Stephen D. Bell and Robert L. Sterup, Dorsey & Whitney, Billings.
    For Defendant and Respondent: Paul D. Miller and Kyle Anne Gray, Holland & Hart, Billings.
   JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiffs Naftco Leasing Limited Partnerships numbered 301, 302, 303, 304, and 305, and Moorhead Leasing Limited Partnership, (collectively referred to as plaintiffs) brought an action to reform lease contracts against defendant Finalco, Inc., in the Thirteenth Judicial District Court, Yellowstone County, Montana. The District Court found in favor of the defendant. Plaintiffs appeal. We affirm in part and reverse in part.

The dispositive issues in this case are restated as follows:

1. Did the District Court correctly conclude that plaintiffs’ action was barred by the statute of limitations?

2. Did the District Court properly award attorney fees to Finalco?

In this action, plaintiffs seek to reform a number of lease contracts executed with the defendant covering computer equipment. We will summarize the facts involved in this rather complex series of transactions.

In 1983, defendant, Finalco purchased approximately $22 million worth of computer equipment and leased such equipment to various parties under written lease agreements, which are herein called end user leases. The terms of these leases varied but were not longer than 60 months.

Defendant then sold the computer equipment to Lease-Pro, Inc., a corporate intermediary owned by Gerald DuBois and Dean Schennum. Lease-Pro in turn sold the computer equipment, subject to the end user leases, to the six plaintiff limited partnerships which leased the equipment back to Finalco.

Also during 1983, Gerald DuBois and Dean Schennum were marketing interests in the six plaintiff limited partnerships to various investors as tax shelters. Naftco Leasing, Inc., owned by DuBois and Schennum, was one of two general partners in all five of the Naftco limited partnerships, and also acted as the managing agent for Moorhead Leasing Limited Partnership, the sixth plaintiff. Either Gerald DuBois or Dean Schennum were also general partners in each of the Naftco limited partnerships.

During 1983, the plaintiffs entered into extensive negotiations on the terms of lease back contracts to be executed between the plaintiffs and the defendant. The terms of the lease back contracts were to be 96 months in length. The amounts of the “residual rentals” were key parts of the lease negotiations. “Residual rentals” were those lease amounts to be received by the defendant from business consumers after the expiration of the original end user leases, and prior to the end of the 96 month term of the lease back contracts. The distributions of such residual rentals by the defendant to the plaintiffs during the first 60 months of the lease back contracts are the subjects of this suit.

In December 1983, the plaintiffs, through their agent, Larry Hoffman, president of Naftco Leasing, Inc., executed the various lease agreements with the defendant. Those agreements provided that the defendant was entitled to 85 percent of the residual rentals and the plaintiffs were entitled to 15 percent of the residual rentals during the first 60 months of the lease agreements. After the first 60 months, the agreements provided that the plaintiffs would receive 75 percent of such residual rentals and the defendant would receive 25 percent of the residual rental income. Plaintiffs seek to reform the contracts based upon mistake, contending the parties agreed to share the original residual rentals on the following basis: 75 percent to the plaintiffs and 25 percent to the defendant during the first 60 months of each of the leases. The District Court found in favor of the defendant by concluding that the plaintiffs failed to prove mistake. The District Court further held that the statute of limitations contained in § 27-2-203, MCA, barred the plaintiffs from bringing their action. Finally, the District Court awarded the defendant attorney fees. The plaintiffs appeal these determinations.

I

Did the District Court properly conclude that the statute of limitations barred the plaintiffs’ action?

In 1983, the plaintiffs purchased over $22.6 million worth of computer equipment from the defendant. The lease contracts in connection with such purchases were executed by the parties in December 1983. Plaintiffs filed the present action to reform the lease agreements based upon mistake in January 1988. In substance, plaintiffs contend that the 21 lease agreements involved in this transaction were so lengthy that they failed to verify the percentages pertaining to the residual rentals when signing the agreements. The District Court concluded that the claims of the plaintiffs were haired by the statute of limitations. We agree.

In a similar action, purchasers brought an action to reform or rescind a property contract based on mistake. D’Agostino v. Swanson (1990), 240 Mont. 435, 784 P.2d 919. In that case we held that where the purpose of the action was to modify the agreement rather than enforce the agreement, the applicable statute of limitations is § 27-2-203, MCA. A’Agostino, 240 Mont. at 442, 784 P.2d at 923.

Section 27-2-203, MCA, provides:

The period prescribed for the commencement of an action for relief on the ground of fraud or mistake is within 2 years, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.

Thus, the two year limitations period begins to run when the party bringing the action discovered the mistake or in the exercise of ordinary diligence would have discovered the mistake. D’Agostino, 240 Mont. at 443, 784 P.2d at 924.

Here the District Court found that the statute of limitations started to run by no later than October 1985. Accordingly, the limitations period in this action ran by October 1987, prior to Naftco’s initiation of this suit. This Court will not disturb the findings of the District Court unless those findings are clearly erroneous. Rule 52(a), M.R.Civ.P.

The plaintiffs do not dispute that the present residual rental distribution percentages were clearly delineated in the lease agreements signed by Mr. Hoffman as agent for the plaintiffs in December 1983. In the same way, such distribution percentages again were listed in a December 30,1983 acceptance letter from defendant to the plaintiffs which was signed and returned by Mr. Hoffman. Further, the District Court found that the percentages set forth in the contracts were clearly set forth in at least eleven separate pieces of correspondence received by the plaintiffs during the period July 5, 1984, through October 17, 1985. These included an October 3, 1985 letter signed for by Mr. DuBois.

The District Court found that Mr. DuBois and Mr. Hoffman, both officers of Naftco Leasing, had notice of the percentages listed in the contracts, and therefore had notice of the alleged discrepancy in the residual rental income distribution by no later than October 1985. After our review of the record, we conclude that the District Court was not clearly erroneous in ruling that by the use of ordinary diligence plaintiffs should have discovered the alleged mistakes by no later than October 1985.

Plaintiffs next contend that the eight year statute of limitations under § 27-2-202(1), MCA, should be applied rather than the two year statute of limitations. We conclude that as was true in D’Agostino, mutual mistake is the essence of the action and not contract enforcement. As a result, § 27-2-203, MCA, governs this action. D’Agostino, 240 Mont. at 442, 784 P.2d at 923. We also do not accept plaintiffs’ contentions that the statute of limitations should be tolled until plaintiffs’ right to receive the payments had arisen.

We hold that the District Court properly concluded that the statute of limitations barred the actions on the part of the plaintiffs.

II

Did the District Court properly award attorney fees to defendant?

In this case, Finalco failed to list attorney fees in the pre-trial order. Accordingly, plaintiffs contend the District Court improperly granted defendant’s motion to amend the final judgment to include attorney fees. Plaintiffs contend that under Rule 16, M.R.Civ.P., the pretrial order controls the course of the action, and in this case, the defendant waived its right to recover attorney fees by omitting the issue from the pretrial order.

Rule 16(e) M.R.Civ.P. provides:

After any conference held pursuant to this rule, an order shall be entered reciting the action taken. This order shall control the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference shall be modified only to prevent manifest injustice.

Although both parties raised the issue of attorney fees in the pleadings, neither side raised the issue of attorney fees in the final pretrial order. Finalco admits it failed to include the issue of attorney fees in its pretrial order; however, it contends that the District Court properly amended the judgment and awarded attorney fees under this Court’s holding in Bell v. Richards (1987), 228 Mont. 215, 741 P.2d 788.

In that case, the defendants in a contract action failed to list attorney fees under “defendant’s contentions” in the pretrial order. There, this Court reversed a district court’s order denying the defendant’s posttrial motion to amend the judgment to include attorney fees. The Bell contract, set forth the following language:

In the event that either party may institute legal action for the enforcement of any right, obligation, provision or covenant of this Agreement, the prevailing party shall be entitled to a reasonable attorney’s fee in addition to costs of suit. In addition, Seller shall be entitled to their reasonable attorney’s fee in the event Seller has to furnish a default notice to Buyer.

228 Mont. at 217, 741 P.2d at 789. In Bell, both parties claimed attorney fees in the pleadings. Further, the plaintiffs in Bell included a right to attorney fees under the “plaintiff’s contentions” in the pretrial order. In addition, that final pretrial order presented the amount of fees to award to the prevailing party as an issue of fact to be decided at trial. 228 Mont. at 219, 741 P.2d at 791.

The Court in Bell reversed the District Court and remanded for determination of reasonable attorney fees for the defendants, stating as follows:

The defendants did not abandon their right to attorney fees by failing to mention the issue under “defendants’ contentions” on the pretrial order. The right is reciprocal. Presumably, since the plaintiffs mentioned the issue in the pretrial order, if they had been successful in the lawsuit, they would have been awarded attorney fees and costs. The plaintiffs had a contractual right to attorney fees, and pursuant to Section 28-3-704, MCA, so do the defendants.
The District Court reasoned further that, since there was no evidence introduced at trial with respect to attorney fees, to award attorney fees after a judgment was announced would amount to an issue being raised post-trial. However, the issue of attorney fees is not outside the court’s record. The contract upon which the court relied in deciding the dispute is before the court as evidence. A provision of that contract clearly provides for attorney fees to the successful party in a lawsuit concerning the contract. Also, the issue of attorney fees was raised in two places on the pretrial order.

228 Mont. at 219, 741 P.2d at 791.

Similarly, in this action, both parties claimed attorney fees in the pleadings. However, here the final pretrial order did not include any reference to attorney fees. Attorney fees were neither listed as a contention of the plaintiff nor was the amount to be awarded the prevailing party listed as a fact to be determined at trial. Further, here, the lease contracts between Naftco and Finalco failed to include a provision awarding attorney fees to the prevailing party on any action to enforce the leases. The contracts provided as follows: “Lessee shall... remain hable for costs and expenses incurred by lessor arising from such event of default or termination including without limitation reasonable attorneys’ fees ...”

In this case, as in Bell, no evidence was introduced on the issue of attorney fees during trial. Contrary to the facts in Bell, here the issue of attorney fees is not derived from the contract language itself, but is rather derived exclusively from § 28-3-704, MCA, Montana’s reciprocal attorney fees statute. Since Finalco’s attorney fees are not recoverable under the contract language, and no evidence was presented on this issue at trial; failure to raise the issue of attorney fees in the pretrial order placed this issue outside the record of the District Court.

Since the facts in Bell are not comparable to this case, Bell is not authority for allowing the defendant to collect attorney fees in the present case. We conclude that the District Court improperly granted defendant’s motion to amend the judgment.

We hold the District Court improperly awarded attorney fees to the defendant.

Affirmed in part and reversed in part.

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


author: JUSTICE HUNT

text:
    DEANNA PLUMLEE, Plaintiff and Appellant, v. HON. NEIL M. TRAVIS, CITY JUDGE, CITY OF LIVINGSTON, MONTANA, Defendant and Respondent.
    No. 91-448.
    Submitted on briefs June 26, 1992.
    Decided July 27, 1992.
    49 St.Rep. 648.
    834 P.2d 1386.
    254 Mont. 96.
    For Plaintiff and Appellant: Sarah Arnott Ozment, Livingston.

      For Defendant and Respondent: Robert Jovick, Livingston.
   JUSTICE HUNT

delivered the opinion of the Court.

Appellant Deanna Pluxnlee appeals from an order of the Sixth Judicial District Court, Park County, denying and dismissing her writ of certiorari.

We reverse.

Appellant raises several issues for our consideration. However, because of our holding below, we need only discuss the following issue:

Did a bench warrant for the arrest of appellant for failing to pay fines meet the requirements of § 46-6-105, MCA, and constitute a lawful arrest?

The facts of this case originally arose from events which led to the arrest and conviction of appellant for criminal trespass, disorderly conduct, and resisting arrest. As a result, appellant was sentenced to ten days in jail and ordered to pay $545 in fines and costs. Because appellant did not make any payments on the fines or perform any community service, and did not request any additional extension of time or make other arrangements to satisfy the fines, a bench warrant was issued for her arrest on November 29, 1990.

On the evening of April 22,1991, appellant and some of her friends were drinking at a rest area near Livingston. One of the friends was arrested for driving under the influence of alcohol. Appellant went with her friend to the police department. No one at the police station was aware of the outstanding warrant for her arrest, and appellant was permitted to leave.

Upon learning of the outstanding contempt warrant for appellant’s arrest, two police officers obtained the warrant and went to appellant’s trailer home on the night of April 22. The officers knocked on the door and appellant, who was in her night clothes and appeared intoxicated, answered the door. The officers announced themselves whereupon she requested to put on her shoes, which the officers told her she could do. They requested permission to enter the house and appellant motioned them to come inside. They then informed her that they had a warrant for her arrest and she became upset and requested to see the warrant. One of the officers went out to the squad car to get the warrant in an effort to calm her down. After the officer left, appellant became physically and verbally abusive to the officer remaining in the home. The officer informed her she was under arrest and placed her in a wrist lock in order to subdue her. The second officer came back into the trailer and assisted in the arrest.

On April 23, 1991, appellant was brought before a justice of the peace for the additional charges of resisting arrest and assault. Appellant pled not guilty and the charges in the Justice Court are still pending. About an hour after appearing in Justice Court, appellant then appeared in City Court for a contempt hearing.

The City Judge found appellant in contempt and sentenced her to 26 days in jail, which included $545 in prior fines to be worked off at the rate of $25 per day (22 days), plus a $100 contempt fine to be worked off at the rate of $25 per day, which added four days to her jail time.

Appellant served 15 days in jail before being released by order of the District Court as a result of appellant’s attorney filing a writ of certiorari. On June 7, 1991, the District Court held a hearing to determine if appellant’s bench warrant arrest was lawful and if her appearance in City Court did not comport with procedural due process. On June 19, 1991, the District Court issued its findings of fact, conclusions of law, and order denying and dismissing the writ of certiorari. Because of her lack of financial resources, this Court granted appellant permission to file this appeal in forma pauperis.

Did a bench warrant for the arrest of appellant for failing to pay fines meet the requirements of § 46-6-105, MCA, and constitute a lawful arrest?

In the case before this Court, the City Court Judge issued a bench warrant for appellant’s arrest which stated that the police were to arrest her “wherever she may be found ...” and that the warrant “may be served any time of the day or night.” The judge’s signature appeared twice on the warrant. One of those signatures specifically indicated that appellant could be arrested at night. Appellant argues that more specific language is required by § 46-6-105, MCA, such as “may be served upon the defendant at her home or private dwelling place at night.”

Prior to 1967, Montana law required an endorsement by a magistrate to allow for nighttime arrests for misdemeanor offenses. Section 46-6-105, MCA, was amended in 1967 to include the following:

An arrest may be made at any time of the day or night, except that a person may not be arrested in the person’s home or private dwelling place at night for a misdemeanor committed at some other time and place unless upon the direction of a judge endorsed upon an arrest warrant.

By placing restrictions on the time and place of arrest for misdemeanor offenses, the legislature was attempting to curb potential police abuse. The Revised Commission Comment to § 95-607, RCM (1947) (now codified at § 46-6-105, MCA), offers some insight into the reason for the change:

This provision broadens the scope of arrests for misdemeanors and allows arrests for all misdemeanors at night, except that a person cannot be arrested at night in his home for a prior misdemeanor unless upon the direction of a magistrate endorsed upon a warrant of arrest. This restriction was imposed to prevent the police from harassing a person or searching his home on the pretext of arresting him for a misdemeanor committed at some other time and place.

It is clear from the language of the statute and the Commission’s Comments, that the legislature intended to place an additional restriction on arresting an individual at night and in his home for a misdemeanor offense committed at some other time and place by requiring the endorsement of an independent magistrate.

We agree with appellant that § 46-6-105, MCA, requires that a misdemeanor arrest warrant contain more specific language than the one issued in this case. We hold that an individual cannot be arrested in his home or private dwelling place at night for a misdemeanor offense committed at some other time and place without the express direction of a magistrate endorsed upon the warrant for arrest.

Because the city court’s bench warrant did not meet the requirements of § 46-6-105, MCA, we order that the contempt order be vacated and dismissed.

Reversed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, TRIEWEILER, McDONOUGH, GRAY and WEBER concur.


text:
    DON HENRY BISHOP, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Respondent.
    No. 91-613.
    Submitted on briefs May 21, 1992.
    Decided July 27, 1992.
    49 St.Rep. 650.
    835 P.2d 732.
    254 Mont. 100.

      For Petitioner and Appellant: Don Henry Bishop, Pro Se, Deer Lodge.
    For Respondent and Respondent: Marc Racicot, Attorney General, Carol E. Schmidt, Assistant Attorney General, Helena; Dennis Paxinos, County Attorney, and David W. Hoefer, Deputy County Attorney, Billings.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from an order of the Thirteenth Judicial District Court, Yellowstone County, Montana, denying appellant’s motion for post-conviction relief. We affirm.

We rephrase the dispositive issues on appeal as follows:

1. Whether the District Court erred when it denied post-conviction relief to the appellant which was based on theories of ineffective assistance of counsel and involuntary guilty plea.

2. Whether the District Court erred in not ordering the State to file a responsive pleading and in not holding an evidentiary hearing.

3. Whether the District Court erred by committing a due process violation when it passed sentence on the appellant based on a presentencing report that contained alleged inaccuracies.

On December 2,1989, an individual entered the King Avenue Kwik Way convenience store in Billings, Montana. The individual wore a nylon stocking over his head and face and pointed a handgun at the store clerk ordering him to place money from the cash register into a paper bag. The individual then forced the store clerk to place his hands in super glue which he had previously spread on the counter.

On June 10,1990, an individual entered the Great Harvest Bread Company in Billings, Montana, after normal business hours and removed cash and checks.

In mid-August, 1990, Dennis Henman (Henman) and Sandra Gust (Gust) both gave statements to the Billings Police Department identifying the appellant, Don Henry Bishop (Bishop), as the individual who committed the previously-mentioned robbery and burglary.

On September 11,1990, Bishop was charged with robbery under § 45-5-401, MCA, and burglary under § 45-6-204, MCA. The court-appointed defense counsel for Bishop and the defendant pled not guilty. On November 9,1990, Bishop signed an “acknowledgement of waiver of rights by plea of guilty” and changed his plea from not guilty to guilty. By signing the form, Bishop acknowledged that the county attorney agreed to recommend a sentence of ten years in prison with an additional three years for the use of a weapon in the course of the robbery, and an additional five years for the offense of burglary. These sentences were to run concurrently. Also, in signing the form Bishop acknowledged that the recommendation by the county attorney was not binding upon the court in passing sentence. The record reflects that onNovember 16,1990, the court accepted Bishop’s change of plea to guilty.

On January 8, 1991, the court conducted a hearing on sentencing at the conclusion of which the appellant, while responding to a question of whether he had anything additional to add before sentencing, made the following statement:

Your honor, what I did was wrong, I accept full responsibility for these actions. But I have a great deal in the past, and I’ve made two big mistakes — that’s not the only mistakes I’ve made in my life — I regret doing it, and I can tell you that I’ll never do it again because I’ve learned my lesson ....

The court did not accept the county attorney’s recommendation for sentencing, and instead imposed a twenty-five year sentence for the offense of robbery and a ten year sentence for the offense of burglary with five years for the use of a weapon. The sentences were to run concurrently. On August 15,1991, Bishop filed a petition for post-conviction relief based on theories of ineffective assistance of counsel and an involuntary guilty plea. Bishop also moved for substitution of the judge. The petition and the motion were both denied and Bishop appeals to this Court.

Denial of Post-Conviction Relief

Bishop first claims that he is entitled to post-conviction relief because he received ineffective assistance of counsel for three reasons: (1) misrepresentation of the law regarding corroborating evidence; (2) failure to address errors in a presentence report; and (3) a conflict of interest.

This Court previously adopted a test for ineffective assistance of counsel in State v. Boyer (1985), 215 Mont. 143, 147, 695 P.2d 829, 831. The test is comprised of a two-prong test adopted by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. We recently discussed the two-prong test.

“Under the two-pronged test set forth in Strickland, the defendant must first demonstrate that counsel’s performance was deficient. To demonstrate that counsel’s performance was deficient, defendant must prove that counsel’s performance fell below the range of competence reasonably demanded of attorneys in light of the Sixth Amendment. Second, the defendant must demonstrate that the counsel’s deficiency was so prejudicial that the defendant was denied a fair trial. To satisfy this requirement, the defendant must demonstrate that but for counsel’s deficient performance, it is reasonably probable that the result of the challenged proceeding would have been different. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; State v. Elliott (1986), 221 Mont. 174, 178, 717 P.2d 572, 575. When a guilty plea is at issue rather than the result of a trial, the defendant must demonstrate that but for counsel’s deficient performance, the defendant would not have pled guilty, and would have insisted on going to trial. Hill v. Lockhart (1985), 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210.”

State v. Aills (1991), 250 Mont. 533, 535, 822 P.2d 87, 88-89; quoting State v. Senn (1990), 244 Mont. 56, 59, 795 P.2d 973, 975. Bishop contends that he received ineffective assistance of counsel for the three previously-mentioned reasons, which we address individually.

First, with regard to Bishop’s assertion that his court-appointed counsel misrepresented the law on corroboration, we find no persuasive evidence in the record. Bishop was not afforded a hearing on this matter for reasons we will discuss later in this opinion. Instead, the District Court received evidence from Bishop in the form of a brief which he presumptively entitled “pre-hearing brief.” This brief purportedly sets forth evidence supporting Bishop’s claim for ineffective assistance of counsel. After reviewing the record, we agree with the District Court that Bishop failed to present persuasive evidence to support such a claim. For instance, Bishop alleges that the substance of an investigative police report proves that there was no evidence to corroborate his accomplice’s testimony. However, the report reveals that a corroborating statement was given by Gust. The report states that Gust was interviewed and that she corroborated the accomplice’s testimony. Bishop also claims that a November 9, 1990, letter he wrote to his girlfriend regarding his reluctance to plead guilty supports his contention that defense counsel misrepresented the law on corroboration. However, the letter contains no statements regarding corroboration of accomplice testimony or his understanding thereof but instead merely presents the pro’s and con’s of signing a plea agreement. After reading the letter, we find no support for Bishop’s contention. The District Court accurately describes Bishop’s contentions as mere conclusory allegations which fail to establish that his defense counsel’s performance was deficient. Bishop relies on State v. Laubach (1982), 201 Mont. 226, 653 P.2d 844, for the proposition that a defendant must be informed of the fact that a conviction cannot stand on the testimony of an accomplice unless their testimony is corroborated by other evidence. Laubach, 201 Mont. at 230-231, 653 P.2d at 846. In Laubach, two individuals stole a motorcycle and stored it at a friend’s ranch. One of the accomplishes testified against the other which was corroborated by other evidence including possession of the stolen cycle, his negotiation of the hiding place and the testimony of the friend whose ranch upon which the motorcycle was stored. Laubach is not helpful to Bishop as he contends. In fact, Laubach and the requirements of corroborating testimony are met in the case at bar because the record reflects that in addition to Bishop’s own admissions regarding the theft and burglary incidents, and the accomplice testimony of Henman, is Gust’s statement. Gust gave a statement to the Billings Police Department which identified Bishop as the suspect in each of the offenses. Gust’s statement corroborates the testimony of Bishop’s accomplice Hen-man, and therefore meets the requirements set forth in Laubach.

Further, Bishop’s contention that he was not informed of the law regarding corroboration of accomplice testimony does not alone establish counsel’s ineffective assistance. In Aills, 250 Mont. at 534-535, 822 P.2d at 88, the appellant claimed ineffective assistance of counsel because his court-appointed counsel failed to specifically inform him of possibilities regarding change of venue if the case went to trial. This Court stated that this failure was not evidence of counsel’s deficient performance to his client. Aills, 250 Mont. at 535, 822 P.2d at 89.

Next, Bishop contends that the sentence imposed upon him was based on a presentence report that contained numerous errors. His allegation of ineffective assistance of counsel comes into play because he insists that his counsel failed to attempt to correct the errors. However, the record reflects that Bishop’s counsel twice continued the sentencing hearing at Bishop’s request so that he could gather information to refute the alleged errors in the presentence report. Counsel also moved the court to allow probation and parole to release documents that contained information regarding the alleged errors. Additionally, the record reflects that Bishop’s counsel gave the judge the letter written by Bishop describing the alleged errors. Finally, what we find most convincing, is Bishop’s own testimony at the sentencing hearing regarding the alleged errors.

THE COURT: Other than that, however, I take it that there’s nothing in the presentence report that this defendant [Bishop] now contests?

[BISHOP’S ATTORNEY]: That’s my understanding, your Honor. Is that correct, sir?
MR. BISHOP: Yes, sir.

Therefore, we do not find that counsel’s performance was deficient as alleged by Bishop.

Bishop also contends that he received ineffective assistance of counsel because his court-appointed counsel had a conflict of interest. The public defender representing Bishop apparently also represented Mr. Travis Spadt. Mr. Spadt was the clerk at the Kwik Way convenience store when it was robbed by Bishop. Mr. Spadt was also investigated for the crimes that Bishop admitted committing. In his claim for ineffective assistance of counsel based on a conflict of interest, Bishop has the burden to show that “an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler v. Sullivan (1980), 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333, 348. The “possibility of conflict is insufficient to impugn a criminal conviction.” Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719, 64 L.Ed.2d at 348. The record is devoid of any evidence that Bishop’s interests were adversely affected by his counsel’s performance. Accordingly, Bishop’s claim of ineffective assistance of counsel due to a conflict of interest fails.

After a review of the record we find that neither prong of the Strickland test is satisfied. Counsel’s performance was not deficient since it did not fall below the range of competence reasonably demanded of attorneys, and defendant did not demonstrate that but for counsel’s deficient performance he would not have pled guilty and insisted on going to trial. In addressing the issues of ineffective assistance of counsel, we note that “in any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. Considering all the circumstances of the case at bar, we hold that Bishop’s counsel’s performance was reasonable.

Bishop also contends that the District Court should have granted his request for post-conviction relief because his guilty plea was involuntary. We disagree. The record is replete with information that defeats Bishop’s assertion. As referenced previously, the plea agreement signed by Bishop clearly sets forth that the plea of guilty and the terms of the plea agreement are not binding upon the court. Instead, the terms of the agreement are merely that the county attorney’s office agrees to recommend to the court a specific sentence. Further, during the November 16, 1990 hearing in which Bishop changed is plea from not guilty to guilty, the following conversation took place:

THE COURT: Apparently there has been some sort of a plea bargain entered into between the county attorney’s office and yourself through your attorney, and I take it you understand that this Court is not bound by any such plea bargains?
MR. BISHOP: Yes, sir.
You understand also that if I accept your plea of guilty and later decide not to follow the recommendation of the county attorney’s office concerning sentence in this case, that you do not have a right to withdraw your plea of guilty?
MR. BISHOP: Yes, sir.
THE COURT: Are you suffering any emotional or mental disability of any kind?
MR. BISHOP: No, sir.

Again at the January 8, 1991, sentencing hearing the following discussion took place:

THE COURT: ... I take it that I explained to you, did I not, Mr. Bishop, at the time I accepted your plea of guilty, ...that if the Court saw fit not to go along with the plea bargain, you.did not have an opportunity to withdraw your plea automatically; you understood that, did you not?
MR. BISHOP: Yes, sir.

Clearly, Bishop understood the ramifications of entering pleas of guilty and was adequately informed of his rights.

Responsive Pleading and Evidentiary Hearing

Bishop contends that the circumstances in his case require a responsive pleading and an evidentiary hearing. We disagree. With respect to the responsive pleading, we find that under § 46-21-201(1), MCA, the court may or may not require a responsive pleading. Such a responsive pleading depends on whether “the files and records of the case conclusively show that the petitioner is not entitled to relief.” Section 46-21-201(1), MCA. After reviewing the record we find that the files and records of the case did in fact conclusively show that Bishop was not entitled to relief. Therefore, no responsive pleading was necessary.

With regard to the evidentiary hearing, we have previously said, “[I]t is not error to deny an application for post-conviction relief without an evidentiary hearing if the allegations are without merit or would otherwise not entitle the petitioner to relief.” Coleman v. State (1981), 194 Mont. 428, 433, 633 P.2d 624, 627. Coleman controls in the case at bar. Clearly Bishop’s allegations were without merit and therefore, the District Court did not err in not requiring an evidentiary hearing.

Due Process Violation

Bishop also contends that his due process rights were violated because his sentence was based upon a presentence report that contained various inaccuracies. We do not agree. Bishop pointed out the alleged inaccuracies in a letter he wrote to his attorney who, in turn, forwarded the letter to the court. In his letter, Bishop criticized the content of his presentence report almost on a point-by-point basis. However, we find that most of Bishop’s criticisms are interpretive in nature and he presented no substantial evidence to refute the contents of the presentence report. For instance, the presentence report stated that Bishop had not utilized his vocational training and abilities to hold a steady job and, consequently, had been unsuccessful in this venture. To support the statement that Bishop could not hold a steady job, the report indicated that Bishop held ten different jobs during a twenty month period. Bishop refuted this statement by stating in his letter that he had not held ten jobs in twenty months, and although he changed jobs frequently, he always had the permission of his parole officer. The report also indicated that Bishop had a chemical dependency problem which he refused to address. The report referred to a parole violation report which listed Bishop as receiving three positive tests for amphetamine use. Bishop, on the other hand, merely makes the statement: “I have not failed to address my drug and/or alcohol problems.”

These interpretational differences simply do not rise to the level of Bishop proving that the statements in the presentence report were false or erroneous. Additionally, Bishop was given the opportunity at his sentencing hearing to cross-examine James Corcoran, the probation/parole officer who prepared Bishop’s presentence investigation report. After a review of the record we do not find that Bishop has proven any of the alleged errors to be false or erroneous. In the District Court’s memorandum in support of the order which denied Bishop’s post-conviction relief, the court properly made a summation of.this area as follows:

Finally, on the date set for sentencing, the Court inquired of Petitioner [Bishop] if the report contained matters Petitioner disagreed with and allowed Petitioner to present testimony, in-eluding an examination of the probation officer who prepared the presentence report.... Petitioner has presented nothing more than conclusory statements regarding counsel’s deficient performance.

After a review of the record we find that to determine Bishop’s sentencing, the District Court primarily relied on his criminal history. During the sentencing hearing the court noted that Bishop’s previous record consisted of two armed robberies and an escape. Further, that Bishop was on probation when he committed the December 2, 1989 armed robbery in Billings. As a result, he broke the law by violating the terms of his parole as well as violating the Federal Firearms Act. The court went on to say:

[Y]ou appear that you are a person who could be a productive member of society if it were not for your criminal behavior, but in view of your record, I think you’re the type of person that society must be protected from.
In my view, when someone walks into a [Kwik] Way store or other store and points a gun at the clerk and says give me your money, that you’re very close to committing a very more serious offense that could — what if that person doesn’t do it, shooting happens, people are killed, society has established rules that say a person who does that has to be placed somewhere where he or she cannot injure other law-abiding members of society. I believe you fit in that category, sir, based upon your record ....
Under the circumstances, I feel that the plea bargain is inappropriate, and, therefore, after giving this matter some serious thought and taking into account the seriousness that the legislature has demonstrated, in how the legislature feels for these offenses, the offense of robbery is up to 40 years, the offense of burglary is up to 20 years, and, of course, an additional 10 years for the use of a weapon, in other words, you’re before me with maximum sentences hanging over your head of 70 years, if my mathematics are right.
[I] feel that the 10-year[s] for the armed robbery is inappropriate, three years for the use of a weapon is inappropriate, and five years for the burglary is inappropriate; these are the terms of the plea bargain.

It is apparent that in reviewing the presentence report, the District Court relied most heavily on Bishop’s criminal history.

The Fourteenth Amendment’s due process protection prohibits a court from relying on materially false information when sentencing a defendant. United States v. Wilson (9th Cir. 1990), 900 F.2d 1350, 1353. We find that Bishop has failed to prove that any of the information relied upon by the District Court in sentencing him was materially false.

Pursuant to the above discussion we hold the District Court did not err in denying Bishop’s motion for post-conviction relief.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, McDONOUGH and WEBER concur.

       “that” referring to testimony and cross-examination of the probation/parole officer who prepared Bishop’s presenten ce investigation regarding Bishop’s alleged post-arrest threats against his accomplice.


author: JUSTICE GRAY

text:
    IN RE THE MARRIAGE OF DOROTHY E. DORVILLE, Petitioner and Appellant, and DONALD KEITH DORVILLE, Respondent and Respondent.
    No. 92-030.
    Submitted on briefs June 25, 1992.
    Decided July 30, 1992.
    49 St.Rep. 658.
    836 P.2d 588.
    254 Mont. 111.

      For Petitioner and Appellant: Paulette C. Ferguson and Lori Ballenger, Missoula.
    For Respondent and Respondent: Jon Ellingson, Ellingson & Moe, Missoula.
   JUSTICE GRAY

delivered the Opinion of the Court.

Dorothy E. Dorville appeals decisions of the District Court of the Fourth Judicial District, Missoula County in her marital dissolution action. We affirm.

The issue we address on appeal is whether the District Court erred in refusing to award maintenance.

The appellant, Dorothy Dorville (Dorothy), and the respondent, Donald Dorville (Donald), were married in Colorado on May 10,1969. Two children were bom during the marriage.

Dorothy was 44 years old at the time of trial and was employed by the U.S. Forest Service. She has a college degree and previously had been employed as a teacher. Donald was also 44 years old. He attended college but does not have a degree. He was an employment services specialist with the Montana Job Service at the time of trial.

The couple had a moderate middle-class lifestyle over the many years of the marriage. They accumulated considerable marital assets, including a family home, undeveloped property on Flathead Lake, vehicles, household furnishings, and Donald’s PERS monies. Donald receives military disability benefits each month as a result of a disability which occurred prior to the marriage. In addition, he received an inheritance from his father shortly before the marriage ended.

Dorothy filed a petition for dissolution of the marriage on February 17,1989. Trial was held in September, 1991. The District Court filed its findings of fact and conclusions of law October 1, 1991. The court awarded the parties joint custody of the minor child, with primary residential custody in Dorothy; it also awarded Dorothy child support of $450 each month. The marital estate, including Donald’s PERS accumulations, was valued and distributed. Dorothy received a net distribution of property valued at $50,985; Donald’s net share was $41,995. In addition, each party was awarded one-half of the proceeds — valued at approximately $45,000 after taxes — from a future sale of the Flathead Lake property. Finding that Dorothy had sufficient property to provide for her reasonable needs and that she was able to support herself through appropriate employment, the District Court refused to award maintenance.

The decree of dissolution was entered October 15, 1991. Dorothy filed a motion to alter or amend, which the court denied. This appeal followed.

Did the District Court err in refusing to award maintenance?

The court may award maintenance only if it finds that the spouse seeking maintenance lacks sufficient property to provide for her reasonable needs and is unable to support herself through appropriate employment. Section 40-4-203(1), MCA. Our standard of review of a grant or refusal of maintenance is whether the district court’s findings are clearly erroneous. In re Marriage of Sacry (Mont. 1992), [253 Mont. 378,] 833 P.2d 1035, 49 St.Rep. 452; In re Marriage of Eschenbacher (Mont. 1992), [253 Mont. 139,] 831 P.2d 1353, 49 St.Rep. 393.

The District Court found that Dorothy had a permanent job with the Forest Service from which she netted $883 every four weeks. The record reflects a reasonable expectation of a cost of living increase in Dorothy’s job each January and, in addition, periodic step increases. She was awarded the family home with approximately $54,000 equity and a remaining mortgage of approximately $13,000. In addition, she will net $45,000 cash after taxes upon sale of the Flathead Lake property. On the basis of these findings, the court found that Dorothy did not meet either of the statutory requirements for an award of maintenance. Dorothy asserts that the court erred as to both of the statutory criteria.

Dorothy argues, first, that the “sufficient property” finding was erroneous because the court failed to take into account that the property she received was income-consuming. “Sufficient property” as used in § 40-4-203, MCA, means income-producing, not income-consuming, property. In re Marriage of Luisi (1988), 232 Mont. 243, 756 P.2d 456.

Here, the court awarded Dorothy the family home. This clearly is income-consuming property for purposes of § 40-4-203, MCA, although we do note, as did the District Court, the appellant’s substantial equity in the home.

Dorothy also was awarded one-half of the net proceeds from the future sale of the Flathead Lake property, conservatively estimated by the District Court to be $45,000. Dorothy asserts that, until the sale occurs, the Flathead Lake property also is income-consuming. Thus, she contends that the court erred in finding that she has sufficient property under § 40-4-203, MCA, because all the property was income-consuming. We disagree.

It is true that, pending the sale of the Flathead Lake property, Dorothy must contribute $30 each month for taxes. This amount is inconsequential, however, in light of the property’s significant value and the lack of any associated debt. We previously have found that similar property to be sold in the future was in the nature of income-producing property. In re Marriage of Tow (1987), 229 Mont. 483, 748 P.2d 440. It is clear that the District Court so considered the Flathead Lake property proceeds here. Under the facts of this case, the District Court’s finding that Dorothy received sufficient property to provide for her reasonable needs is not clearly erroneous.

With regard to the property, Dorothy also argues that the District Court erred in not making a “determination” as to the income-consuming or income-producing nature of the property she was awarded. She relies on Marriage of Tow, and In re Marriage of Greenlee (1991), 249 Mont. 521, 816 P.2d 1073. We address this matter for purposes of clarity only.

We stated in Marriage of Tow that a specific finding regarding the nature of the properties awarded to the spouse seeking maintenance is required. Marriage of Tow, 229 Mont. at 486, 748 P.2d at 441-442. Indeed, such specific findings are encouraged in order that, on review, this Court can follow a district court’s rationale more closely. Subsequent to Marriage of Tow, however, we clarified the “specific finding” requirement by stating that such a finding is not required when “B]t is obvious from the findings and conclusions that the court considered the character of the property ...” in addressing the award of maintenance. In re Marriage of Cole (1988), 234 Mont. 352, 356, 763 P.2d 39, 42. In Marriage of Greenlee, we relied on Marriage of Cole in reversing a district court for failing to consider the nature of the property awarded. There, the court did not determine the value of certain real properties and the record was clear that both were burdened with substantial liabilities; in addition, the court failed to take into account the fact that, as a practical matter, the awarded retirement plan amounts were not available for some ten years. Marriage of Greenlee, 249 Mont. at 524, 816 P.2d at 1075.

Here, the specificity of the court’s findings as to the value of, and equity in, the properties demonstrates that it considered the nature of the properties. We conclude that the District Court properly considered the nature of the property awarded to the appellant.

Dorothy also contends that the District Court erred in determining that she is able to support herself through appropriate employment in that it failed to consider the standard of living the parties established during the marriage. Her analogy to In re Marriage of Dunn (1991), 248 Mont. 95, 809 P.2d 571, is misplaced.

In Marriage of Dunn, the wife’s income fell short of her expenses; the husband argued that she could erase the deficit with her share of the marital assets. The wife’s share of assets amounted to only $6,000 after income-consuming property and related debt were subtracted. This Court found that amount insufficient to provide the income which, in combination with the wife’s earnings, was necessary to meet her reasonable needs. Marriage of Dunn, 248 Mont. at 98, 809 P.2d at 573. Marriage of Dunn is distinguishable from the instant case.

Here, Dorothy’s monthly expenses are approximately $1,205 plus house and van payments. Her monthly net income is approximately $957 ($441.73 bi-weekly x 26 pay periods/year divided by 12 months). That income, together with the $450 monthly child support, significantly exceeds her monthly expenses when her house and van payments are not considered.

Those monthly payments are $318 and $357, respectively. At the time of trial, the total mortgage on the family home was $13,000, and the outstanding van loan was $5,000. Dorothy’s share of the Flathead Lake property proceeds is $45,000. It is clear that Dorothy could eliminate her outstanding debt and retain a sizeable income-producing cash remainder. At such a juncture, she would have income far exceeding her expenses plus a family home without debt and other assets. The District Court’s finding that Dorothy was able to support herself through appropriate employment is not clearly erroneous.

We hold that the District Court did not err in refusing to award maintenance. Because of that holding, we need not address Dorothy’s argument that Donald’s disability payments should be considered in relation to his ability to pay maintenance.

Affirmed.

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


text:
    BARBARA FOSTER, Plaintiff and Appellant, v. ALBERTSONS, INC., a corporation doing business under the laws of the State of Montana; and BOB ENGLE and KEN BLACKBURN, as individuals, Defendants and Respondents.
    No. 91-346.
    Submitted May 28, 1992.
    Decided July 27, 1992.
    49 St.Rep. 638.
    835 P.2d 720.
    254 Mont. 117.

      For Plaintiff and Appellant: Peter Michael Meloy argued, Meloy Law Office, Helena.
    For Defendants and Respondents: Donald Robinson argued, Poore, Roth & Robinson, Butte and William Sternhagen, Keller, Reynolds, Drake, Sternhagen & Johnson, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

This appeal arises from the District Court of the First Judicial District, Lewis and Clark County. The appellant, Barbara Foster, appeals that portion of the judgment entered in the case which was adverse to her following a jury trial on claims she brought against the respondents, Albertsons, Inc., Bob Engle and Ken Blackburn, after she was discharged from employment. We affirm in part, reverse in part and remand.

The appellant raises the following issues:

1. Did the District Court err in directing a verdict in favor of the respondents on the appellant’s breach of the implied covenant of good faith and fair dealing and wrongful discharge claims?

2. Did the District Court err in directing a verdict in favor of the respondents on the appellant’s intentional infliction of emotional distress claim?

The appellant began working for Albertsons in Helena as a grocery clerk in January 1984. She was employed under the terms of a collective bargaining agreement between Albertsons and the United Food and Commercial Workers International Union. The collective bargaining agreement contained a “just cause” provision for the discharge of an employee.

The appellant testified that during the course of her employment with Albertsons respondent Bob Engle, who was the manager of the store, sexually harassed her. She testified that Engle made lewd comments, solicited social contact and fondled her while at work. She further testified that she consistently rejected Engle’s advances and did her best to ignore his sexual innuendos and comments. Engle denied sexually harassing the appellant in any manner.

Testimony also reflected that in early March 1987, Engle and respondent Ken Blackburn, the loss prevention manager at Albertsons, began to suspect that the appellant was mishandling company funds and failing to record certain customer purchases. “Special shoppers” or “test shoppers” were hired to pose as impatient customers who would leave the correct change for their purchase at the checkstand during another customer’s transaction. Company policy required that if an impatient customer left money, the money was to be recorded as a separate sale immediately after completing the other customer’s transaction. The appellant was aware of this procedure.

Engle and Blackburn were unable to locate purchases made by the test shoppers on the cash register tapes from the appellant’s till. On March 16, 1987, Engle and Blackburn summoned the appellant into the store office; during the time she was there her employment was terminated. The appellant testified that she was forced to remain in the office for more than two hours and that Engle forced her back in her chair each time she sought to leave. Engle and Blackburn each testified that the appellant was not detained against her will and not physically pushed back in her chair. While in the office, the appellant did write and sign a statement admitting to dishonest behavior.

After her termination, the appellant filed a claim of sex discrimination against Albertsons and Engle with the Montana Human Rights Commission asserting that she had been sexually harassed by Engle throughout the course of her employment with Albertsons. After receiving a “right to sue” letter from the Human Rights Commission, the appellant filed the present action in the District Court on March 11, 1988. The appellant never sought to utilize the grievance procedure under the collective bargaining agreement covering her employment with Albertsons.

The appellant’s complaint named Albertsons and Engle and Blackburn, individually, as defendants. Although not artfully drafted, her complaint appears to have sought recovery of damages for the following claims:

Count I — Breach of the implied covenant of good faith and fair dealing;

Court II — False imprisonment;

Count III — Wrongful damage to her marriage;

Count IV — Assault and battery;

Count V — Negligent and intentional infliction of emotional distress;

Count VI — Defamation; and

Count VII — Wrongful discharge.

The case was tried to a jury. Upon motion of the respondents, the court directed a verdict in their favor on the defamation claim on the grounds that there was no evidence that the defamatory matter was “published.” It also directed a verdict on the implied covenant and wrongful discharge claims based on its conclusion that the claims were preempted by federal labor law because the appellant’s employment with Albertsons was covered by a collective bargaining agreement. On its own motion, the court directed a verdict in favor of the respondents on the intentional infliction of emotional distress claim based on its conclusion that the tort was not recognized in Montana as a separate cause of action. It also directed a verdict against the appellant on the wrongful damage to marriage claim on the grounds that, while it might constitute an element of damages, it could not be a separate count.

The case was submitted to the jury by way of a special verdict form which stated as follows:

We, the jury in the above-entitled matter, find the following special verdict in this case:
Issue No. 1: Did the Defendants commit an assault or battery against the Plaintiff?
Answer: Yes No_
Issue No. 2: Did the Defendants engage in sex discrimination against the Plaintiff in violation of the Constitution of the State of Montana?
Answer: Yes_No_
Issue No. 3: Did the Defendants falsely imprison the Plaintiff?
Answer: Yes No_

If you answered “no” to Issues 1,2, and 3, then proceed no further. Have your foreperson sign this verdict and inform the Bailiff that you have reached a verdict. If you answered Issue Nos. 1,2, and/or 3 “yes”, then answer the following:

Issue No. 4: [T]he amount of money awarded to the Plaintiff for her losses is $_.
Issue No. 5: Did the Defendants act in a wilful, wanton, reckless and malicious fashion against the Plaintiff, justifying an award of punitive damages?
Answer: Yes_No_
Note: Eight of you must agree to your answer to each issue).

In relation to Issue No. 2 of the special verdict form, the jury was given an instruction which set forth in its entirety Article II, Section 4, of the Montana Constitution:

INSTRUCTION NO. 9
The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm[,] corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas.

The jury found for the appellant on the assault and battery and false imprisonment issues and for the respondents on the sex discrimination issue. The jury also found that the respondents’ conduct toward the appellant justified an award of punitive damages. It awarded the appellant $5,000 in general damages and, in a separate post-trial proceeding, $5,000 in punitive damages. The appellant’s motion to increase the punitive damages award was denied by the District Court. The appellant obtained new counsel and appealed.

I.

Did the District Court err in directing a verdict in favor of the respondents on the appellant’s claims of breach of the implied covenant of good faith and fair dealing and 'wrongful discharge?

The District Court directed a verdict against the appellant as a matter of law on her claims of breach of the implied covenant of good faith and fair dealing and wrongful discharge. It concluded that the claims were preempted by § 301 of the Labor Management Relations Act of 1947 (LMRA), 61 Stat. 156, 29 U.S.C. § 185(a), because her employment with Albertsons was covered by a collective bargaining agreement. Our standard of review on appeal is whether the District Court’s interpretation of the law is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601.

Section 301 of the LMRA provides that:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

The United States Supreme Court has interpreted § 301 as a congressional mandate to develop a unified federal common law to address labor contract- disputes. Textile Workers Union v. Lincoln Mills (1957), 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972. In order to ensure a uniform interpretation of labor contract terms, federal labor law preempts, pursuant to § 301, any state-law claim which is based on a collective bargaining agreement or is substantially dependent on an interpretation of its terms. Allis-Chalmers Corp. v. Lueck (1985), 471 U.S. 202, 220, 105 S.Ct. 1904, 1916, 85 L.Ed.2d 206, 221.

The District Court’s conclusion that the appellant’s claims were preempted by federal labor law was based on our decisions in Brinkman v. State (1986), 224 Mont. 238, 729 P.2d 1301; Smith v. Montana Power Co. (1987), 225 Mont. 166, 731 P.2d 924; and Fellows v. Sears, Roebuck and Co. (1990), 244 Mont. 7, 795 P.2d 484. In ruling on the question of preemption, the District Court stated:

The wrongful discharge action and the violation of the covenant as it relates to losing the job, the cases are pretty clear. I think the Brinkman and Montana Power [Smith] case and Fellows case, that they’re right. She has to go through the collective bargaining agreement. I don’t have jurisdiction to even address those items based on those cases, and the fact that they [the respondents] filed a motion for summary judgment, and I agree, it was untimely and thus denied, doesn’t preclude them from raising that on a motion for directed verdict. So, in that regard, the motion is also granted.

Each of the cases relied on by the District Court considered the preemptive effect of § 301 on state-law claims where the employment relationship was covered by a collective bargaining agreement. Because Smith and Fellows were at least partially premised on our decision in Brinkman, a focus on Brinkman is appropriate.

The plaintiff in Brinkman was a state employee whose employment was covered by a collective bargaining agreement between the State of Montana and the Montana Public Employees Association. The plaintiff brought suit against the State alleging that he had been wrongfully discharged in retaliation for his work-related injury, thus violating public policy. He also alleged that he was discharged in violation of an implied covenant of good faith and fair dealing. The district court granted summary judgment against the plaintiff, holding that he was barred from further proceedings pursuant to § 301 because of his failure to exhaust contractual remedies under the collective bargaining agreement.

Brinkman contended on appeal that under our holding in Malquist v. Foley (1986), 220 Mont. 176, 714 P.2d 995, a state-law claim for discharge in violation of public policy would not be preempted by federal law. In Malquist, we cited approvingly from Garibaldi v. Lucky Food Stores, Inc. (9th Cir. 1984), 726 F.2d 1367, which held that claims for wrongful discharge in violation of public policy would not be preempted. Garibaldi involved an employee who was discharged for reporting a shipment of adulterated milk to health officials.

We agreed with the district court in Brinkman that the plaintiff’s claims were preempted by § 301. We distinguished Malquist, stating that it was inapplicable because the collective bargaining agreement in Malquist did not cover the “conduct complained of’ (blacklisting). Brinkman, 224 Mont. at 245, 729 P.2d at 1306. We also distinguished Garibaldi, clarifying that in that case the state-law claim furthered a state interest in protecting the general public which transcended the employment relationship. Brinkman, 224 Mont. at 247, 729 P.2d at 1308. We concluded that Brinkman’s claims did not involve a state interest in protecting the general public which transcended the employment relationship and that the state interest which did exist was “completely and inexorably intertwined” with the employment relationship because the collective bargaining agreement protected the plaintiff from discharge without just cause. Brinkman, 224 Mont. at 247-48, 729 P.2d at 1308.

The appellant asserts that Brinkman is no longer viable as a standard for § 301 preemption in light of the United States Supreme Court’s decision in Lingle v. Norge Division of Magic Chef, Inc. (1988), 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410. We agree.

In Lingle, the issue presented was whether an Illinois employee covered by a collective bargaining agreement that provided a remedy for discharge without just cause could enforce her state-law remedy for retaliatory discharge for filing a workers’ compensation claim. After Lingle’s action was removed to federal court on the basis of diversity jurisdiction, the federal district court dismissed her state-law claim based on § 301 preemption. It concluded that the retaliatory discharge claim was “inextricably intertwined” with the provision in the collective bargaining agreement which prohibited discharge without just cause. Lingle, 486 U.S. at 402. The Seventh Circuit Court of Appeals agreed that the state-law claim was preempted by § 301, concluding that the disposition of the retaliatory discharge claim involved the same factual analysis as the contractual determination under the collective bargaining agreement of whether Lingle was discharged for just cause. Lingle, 486 U.S. at 402.

The Supreme Court reversed the Court of Appeals’ decision, stating:

We agree with the court’s explanation that the state-law analysis might well involve attention to the same factual considerations as the contractual determination of whether Lingle was fired for just cause. But we disagree with the court’s conclusion that such parallelism renders the state-law analysis dependent upon the contractual analysis .... § 301 pre-emption merely ensures that federal law will be the basis for interpreting collective-bargaining agreements, and says nothing about the substantive rights a State may provide to workers when adjudication of those rights does not depend upon the interpretation of such agreements.

Lingle, 486 U.S. at 408-09.

The Supreme Court noted that to prove retaliatory discharge under Illinois law Lingle had to show (1) that she was discharged, and (2) that the employer’s motive in discharging her was to deter her from exercising her rights under the state workers’ compensation laws or to interfere with her exercise of those rights. Lingle, 486 U.S. at 407. It held that the claim was not preempted by § 301, concluding:

Each of these purely factual questions pertains to the conduct of the employee and the conduct and motivation of the employer. Neither of the elements requires a court to interpret any term of a collective-bargaining agreement. To defend against a retaliatory discharge claim, an employer must show that it had a non-retaliatory reason for the discharge, [citation omitted]; this purely factual inquiry likewise does not turn on the meaning of any provision of a collective-bargaining agreement. Thus, the state-law remedy in this case is “independent” of the collective-bargaining agreement in the sense of “independent” that matters for §301 pre-emption purposes: resolution of the state-law claim does not require construing the collective-bargaining agreement.

Lingle, 486 U.S. at 407.

Finally, the Supreme Court noted in Lingle that there was nothing novel in its recognition in that case that substantive rights in a labor relations context can exist without the necessity of interpreting collective bargaining agreements. Lingle, 486 U.S. at 411. Discussing antidiscrimination laws in particular, the Supreme Court stated that:

The operation of the antidiscrimination laws does, however, illustrate the relevant point for §301 pre-emption analysis that the mere fact that a broad contractual protection against discriminatory — or retaliatory — discharge may provide a remedy for conduct that coincidentally violates state law does not make the existence ... of the state-law violation dependent upon the terms of the private contract.

Lingle, 486 U.S. at 412-13.

Lingle holds that a state-law claim is preempted by § 301 only where its resolution requires construing the collective bargaining agreement. This is true even if the state-law analysis involves the same factual considerations as the contractual determination under the collective bargaining agreement of whether the employee was discharged for just cause. Thus, our decision in Brinkman is overruled to the extent that it holds that a state-law claim is preempted merely because resolution of such a claim requires the same analysis of the facts as the contractual determination of just cause under the collective bargaining agreement.

We now address the appellant’s state-law claims of breach of the implied covenant of good faith and fair dealing and wrongful discharge in light of the Supreme Court’s preemption analysis in Lingle. The appellant’s implied covenant claim comprised Count I of her complaint. In this count, the appellant listed specific allegations of misconduct on the part of the respondents which formed the bases of her claim. These included allegations that Engle sexually harassed her throughout her period of employment with Albertsons and discriminated against her on the basis of sex in violation of the Montana Constitution.

The District Court correctly concluded that the appellant’s breach of the implied covenant of good faith and fair dealing claim was preempted by § 301. Any implied covenant of good faith and fair dealing in the employment context arises from the underlying contract of employment which, here, is the collective bargaining agreement. Collective bargaining agreements must be interpreted by application of federal law, not state law. Teamsters Union v. Lucas Flour Co. (1962), 369 U.S. 95, 102, 82 S.Ct. 571, 576, 7 L.Ed.2d 593, 598. Because an implied covenant arises from or is implied in the collective bargaining agreement, questions involving the existence and breach of an implied covenant necessarily require placing the terms of the collective bargaining agreement in issue. Thus, the implied covenant claim is preempted by federal law pursuant to § 301. See Paige v. Henry J. Kaiser Co. (9th Cir. 1987), 826 F.2d 857, cert. denied, 486 U.S. 1054, 108 S.Ct. 2819, 100 L.Ed.2d 921 (1988). We hold that the District Court did not err in directing a verdict in favor of the respondents on the appellant’s breach of the implied covenant claim.

The appellant’s wrongful discharge claim comprised Count VII of her complaint. In this count, the appellant incorporated by reference the specific allegations of Count I, including those of sexual harassment and sex discrimination. The appellant asserted that she was discharged in retaliation for resisting Engle’s alleged sexual harassment activities.

Montana has recognized a common law cause of action for retaliatory discharge related to sexual harassment. Specifically, we recognized a cause of action for discharge from employment that violates public policy. Drinkwalter v. Shipton Supply Co. (1987), 225 Mont. 380, 732 P.2d 1335; Dare v. Montana Petroleum Marketing Co. (1984), 212 Mont. 274, 687 P.2d 1015. Sexual harassment is against public policy. Drinkwalter, 225 Mont. at 384, 732 P.2d at 1338 (citing Holien v. Sears, Roebuck and Co. (Or. 1984), 689 P.2d 1292 and Chamberlin v. 101 Realty, Inc. (D.N.H. 1985), 626 F.Supp. 865).

To prove retaliatory discharge, the appellant would have to show that (1) she was discharged, (2) she was subjected to sexual harassment during the course of employment, and (3) her employer’s motivation in discharging her was to retaliate for her resistance to those sexual harassment activities. Holien, 689 P.2d at 1300. As in Lingle, each of these purely factual questions, including the respondents’ defense against the claim, pertains to the conduct of the appellant and the conduct and motivation of the respondents. While the factual inquiry may parallel that of the contractual determination of just cause, it does not turn on the meaning of any term of the collective bargaining agreement. Thus, the appellant’s wrongful discharge claim is independent of the collective bargaining agreement for purposes of § 301 preemption. Consequently, the District Court incorrectly concluded that the appellant’s wrongful discharge claim was preempted by § 301.

The respondents assert that Lingle is distinguishable from the present case because in Lingle the plaintiff’s complaint was dismissed in its entirety by the federal district court. They assert that in this case the appellant was given the opportunity to “fully present and litigate” her “sexual discrimination/harassment” claim by way of Issue No. 2 of the special verdict form and that the jury rejected her allegations of harassment. As a result, the respondents argue that allowing the appellant to litigate her wrongful discharge claim, which is based on allegations of sexual harassment already rejected by the jury, impermissibly gives her a “second bite of the apple.”

Based on the record before us, we conclude that the appellant was not given the opportunity to fully present her claim to the jury. The appellant did not bring a sexual harassment claim against the respondents as a separate cause of action. Rather, her specific allegations of sexual harassment formed the basis of her retaliatory discharge claim. The jury instruction proposed by the appellant which would have attempted to tie the harassment testimony directly to one of the pleaded counts — wrongful discharge — was not given; indeed, it could not have been given once the District Court directed a verdict on the wrongful discharge claim.

Instead, the special verdict form submitted to the jury, which appears to have been based on one offered by the respondents, asked the jury whether the respondents engaged in sex discrimination against the appellant in violation of the Montana Constitution. Jury Instruction No. 19 set forth Article II, Section 4, of the Montana Constitution and stated in part that “[njeither the state nor any person, firm[,] corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas.” The jury found that the respondents did not engage in sex discrimination against the appellant in violation of the constitution.

It is clear that the appellant testified extensively at trial regarding Engle’s acts of sexual harassment, including allegations that Engle made sexual comments and advances to her and fondled her while she was at work. It is also clear that the jury was given the language of Article II, Section 4, of the Montana Constitution and was asked to determine whether the appellant was subjected to sex discrimination by the respondents. From the record before us, however, we are not assured that the jury was provided with the appropriate framework in which to tie, in any meaningful way, the appellant’s testimony to the constitutional language provided in Instruction No. 19. Given the language of the special verdict form and Instruction No. 19, we cannot conclude that the jury rejected the appellant’s specific allegations of ongoing sexual harassment when it determined that the respondents did not engage in sex discrimination in violation of the constitution. We hold that the District Court erred in directing a verdict in favor of the respondents on the appellant’s wrongful discharge claim.

II.

Did the District Court err in directing a verdict in favor of the respondents on the appellant’s intentional infliction of emotional distress claim?

The District Court, on its own motion, directed a verdict in favor of the respondents on the appellant’s intentional infliction of emotional distress claim. The directed verdict was entered as a matter of law based on the trial court’s conclusion that this Court has not recognized the tort of intentional infliction of emotional distress as a separate cause of action. We conclude that the District Court erred in directing a verdict on this claim.

In Doohan v. Bigfork School Dist. No. 38 (1991), 247 Mont. 125, 805 P.2d 1354, we stated that we have not rejected the validity of the tort of intentional infliction of emotional distress as a separate cause of action. Rather, we simply have not addressed a factual situation that would give rise to Lability for the tort under the “extreme and outrageous conduct” standard set forth in § 46 of the Restatement (Second) of Torts. Doohan, 247 Mont. at 138, 805 P.2d at 1362. Comment “d” to § 46 explains that the nature of the conduct which gives rise to liability for the tort is extreme and outrageous conduct going “beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” We further stated in Doohan that whether a plaintiff has introduced sufficient evidence to support a prima facie case for intentional infliction of emotional distress which would survive a motion for a directed verdict is a question of law. Doohan, 247 Mont. at 142, 805 P.2d at 1365.

In light of Doohan, it is clear that the District Court erred in concluding that the appellant’s intentional infliction of emotional distress claim was subject to a directed verdict solely on the basis that it was brought as a separate cause of action. The parties had no opportunity to argue whether, under the legal standard set forth in Doohan, the evidence established the threshold level of conduct necessary to survive a motion for a directed verdict. We conclude that it is necessary to remand for such further proceedings on the intentional infliction of emotional distress claim as may be appropriate based on the evidence presented at a new trial in this cause.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.

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