author: JUSTICE LEAPHART

text:
    STEVEN K. BURGLUND, Petitioner and Respondent, v. LIBERTY MUTUAL FIRE INSURANCE CO., Respondent and Appellant, Insurer for UNITED PARCEL SERVICE, Employer.
    No. 96-558.
    Submitted on Briefs November 20, 1997.
    Decided December 16, 1997.
    54 St.Rep. 1339.
    286 Mont. 134.
    950 P.2d 1371.
    For Appellant: Larry W. Jones, Senior Attorney, Liberty Mutual Fire Insurance Company, Missoula.
    For Respondent: Darrell S. Worm; Ogle & Worm, Kalispell.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Liberty Mutual Fire Insurance Co. (Liberty) appeals from the decision of the Workers’ Compensation Corut finding that Steven K. Burglund’s (Burglund’s) current disability was caused by his 1984 work injury and was, therefore, not an occupational disease. We affirm.

Background

This Court previously reviewed a related matter at Burglund v. Liberty Mut. Fire Ins. Co. (1996), 279 Mont. 298, 927 P.2d 1006 (hereinafter Burglund I). A thorough recitation of the facts appears in that opinion. We review only the facts relevant to this appeal. Burglund was injured while performing his duties as a package car driver at United Parcel Service (UPS) on February 14, 1984. Burglund was diagnosed with L5-S1 spondylosis and underwent surgery for that condition in 1991. Burglund was unable to work prior to the surgery, but resumed his position at UPS on June 1,1991. Thereafter, his low-back condition worsened and in 1995 he resigned his position because he was unable to perform his duties as a package car driver.

Liberty concluded that Burglund’s inability to work was a result of an occupational disease arising subsequent to his 1984 injury and began paying temporary total disability benefits. When Burglund reached maximum medical improvement, Liberty began paying a $10,000 award under § 39-72-405(2), MCA (1993). Burglund, however, petitioned the Workers’ Compensation Court claiming his condition was a result of the 1984 injury rather than an occupational disease and requesting an award of attorney fees and costs. The Workers’ Compensation Court found that Burglund’s condition was a result of his 1984 injury, and that Liberty failed to satisfy its burden of showing that Burglund’s condition was not a natural progression of the 1984 injury. As a result, the Workers’ Compensation Court concluded that Burglund’s condition was not an occupational disease and awarded attorney fees and costs. Liberty appeals from the decision of the Workers’ Compensation Court.

Discussion

We set forth our standard of review in Burglund I: “This Court will uphold the Workers’ Compensation Court’s findings of fact if they are supported by substantial credible evidence. We review the trial court’s conclusions of law to determine if they are correct.” Burglund I, 927 P.2d at 1008 (citations omitted). The sole issue for our review is whether the Workers’ Compensation Court erred in finding that Burglund’s condition resulted from his 1984 injury and subsequent surgery in 1991 and, therefore, erred in finding that Burglund’s condition is not the result of an occupational disease.

Under § 39-72-102(10), MCA (1993), “ ‘Occupational disease’ means harm, damage, or death as set forth in 39-71-119(1) [injury and accident defined] arising out of or contracted in the course and scope of employment and caused by events occurring on more than a single day or work shift. ...” The crux of Liberty’s argument is that Burglund’s low-back condition accelerated while performing his duties at UPS between 1991 and 1995 and that the acceleration, rather than the original injury in 1984, caused his current disability.

The Workers’ Compensation Court noted that the claimant has the initial burden of showing by a preponderance of the evidence that he is entitled to compensation. Ricks v. Teslow Consolidated (1973), 162 Mont. 469, 483, 512 P.2d 1304, 1312. The court found that Burglund met that burden in this case by establishing a clear connection between his current condition and his 1984 injury. That connection was established through the testimony of Dr. Ned Wilson who testified that the deterioration of Burglund’s condition was multifactorial. While Dr. Wilson could not determine with any precision what effect Burglund’s work at UPS from 1991 to 1995 had on his low-back condition, Dr. Wilson opined that the 1984 injury was the material and substantial cause of Burglund’s disability.

The burden of proof then shifted to Liberty to establish that Burglund’s degenerative low-back condition was accelerated by a subsequent occupational disease. Walker v. United Parcel Service (1993), 262 Mont. 450, 456, 865 P.2d 1113, 1117. More specifically, Liberty had to prove that Burglund’s increased disability was not the result of a natural progression of the condition caused by the 1984 injury. The Workers’ Compensation Court concluded that Liberty failed to satisfy that burden.

Liberty relies on Caekaert v. State Comp. Mut. Ins. Fund (1994), 268 Mont. 105, 885 P.2d 495, to support its argument. This Court explained in Caekaert that “[a] later injury is compensable by the original carrier if it is a direct and natural result of a compensable primary injury, and not the result of an independent intervening cause attributable to the claimant.” Caekaert, 885 P.2d at 499 (citing Rightnour v. Kare-Mor, Inc. (1987), 225 Mont. 187, 189, 732 P.2d 829, 830-31). Caekaert involved a journeyman plumber who owned an independent poultry business. Mr. Caekaert (Caekaert) suffered from carpal tunnel syndrome and underwent several surgeries for his condition between 1988 (date of diagnosis) and 1993 (date of his last surgery). Thereafter, he petitioned the Workers’ Compensation Court for an award of medical expenses and disability benefits. The Workers’ Compensation Court found that Caekaert suffered from an occupational disease, but found that because Caekaert’s work in his poultry business aggravated his carpal tunnel, the State Fund was not responsible for the medical expenses or temporary disability benefits. We reversed and held that State Fund did not offer substantial evidence that a second event or exposure (the work at the poultry business) caused Caekaert’s disability. Caekaert, 885 P.2d at 501. In making that determination we focused on the medical evidence offered at trial.

Likewise, Liberty claims that Burglund’s work at UPS from 1991 to 1995 constituted a secondary exposure that aggravated his lower back and caused his disability. However, the medical evidence at Burglund’s trial substantially supported the Workers’ Compensation Court’s finding that Burglund’s condition was caused by a natural progression of his 1984 injury and 1991 surgery. While Dr. Wilson testified that Burglund’s work from 1991 to 1995 may have hastened the degenerative process that Burglund experienced, he further testified that such work was not a substantial cause of the degeneration and that Burglund’s low-back condition would have deteriorated even if he had not resumed his duties at UPS. The Workers’ Compensation Court’s finding that Burglund’s disability was caused by the 1984 injury and 1991 surgery is supported by substantial evidence. The Workers’ Compensation Court correctly concluded that Burglund’s disability is not an occupational disease. Affirmed.

JUSTICES NELSON, REGNIER, TRIEWEILER and GRAY concur.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    C. HAYDON LIMITED and DR. K. M. CLEWS, Plaintiffs and Respondents, v. MONTANA MINING PROPERTIES, INC., a Montana corporation; ORO FINO PLACER MINING CORPORATION, a Montana corporation; BLUEBIRD MINING CO., a Montana corporation; WEST BUTTE METALS, INC., a Montana corporation; GOLDBRICK MINING CO., a Montana corporation; EAST RIDGE MINING CO., a Montana corporation; SILVER BOW CONSOLIDATED CORP., a Montana corporation; BLACK ROCK MINING CO., a Montana corporation; YANKEE MINING CO., a Montana corporation; WABASH MINING CO., a Montana corporation; EUREKA MINING CO., a Montana corporation; ORIGINAL BUTTE MINING CO., a Montana corporation; MOUNTAIN CON MINING CO., a Montana corporation; WESTERN AND PACIFIC RESOURCES CORP., a British Columbia corporation; ALLAN FERGUSON; S. DAVID ANFIELD; STEVEN A. SANDERS; RICHARD M. CAWOOD; and JACOBS, PERSINGER & PARKER, a business association, Defendants and Appellants, v. FRANK CROWLEY, Plaintiff and Respondent.
    No. 97-142.
    Submitted on Briefs November 20, 1997.
    Decided December 16, 1997.
    54 St.Rep. 1341.
    286 Mont. 138.
    951 P.2d 46.

      For Appellants: Joan E. Cook, Attorney at Law, Great Falls.
    For Respondents: David M. McLean; Knight, Dahood, McLean & Everett; Anaconda (for C. Haydon Ltd. and Dr. K. M. Clews); Greg J. Skakles and Patrick T. Gallagher, Skakles & Gallagher, Anaconda (for Frank Crowley).
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

K. Malcom Clews commenced this action in the District Court for the Second Judicial District in Silver Bow County to recover damages from the defendant, Montana Mining Properties Incorporated (MMPI), for breach of contract. MMPI filed a third-party complaint against Frank Crowley and William Murray for common law fraud, conspiracy, and breach of fiduciary duty. William Murray was dismissed by order of the District Court and Crowley filed a counter claim against MMPI. Following a jury trial, judgment was entered against MMPI on November 7,1996. The jury verdict awarded Clews $298,275.33 for breach of a written agreement for his consulting services, and $8,268,851.78 for breach of MMPI’s promise to deliver stock. The jury verdict also awarded Crowley $2,000,000 for breach of MMPI’s promise to deliver stock. On November 18, 1996, MMPI filed a motion for new trial or in the alternative to alter or amend judgment. On January 10, 1997, the District Court denied MMPI’s motion. MMPI filed its notice of appeal on February 7, 1997. We affirm the jury’s verdict and the judgment of the District Court.

The issues on appeal are:

1. Did the District court err when it excluded evidence related to Clews’ and Clive Smith’s pending criminal charges of fraud and conspiracy?
2. Did the District Court err when it allowed testimony from another trial, regarding the agency relationship between Clive Smith and MMPI, as admissions against interest, and when it offered a jury instruction which characterized this testimony as a judicial admission?
3. Did the District Court err when it failed to give MMPI’s jury instruction regarding subsequent contracts?
4. Was there sufficient evidence to support the jury’s verdict?
5. Did the District Court err when it denied MMPI’s motion for a new trial?

FACTUAL BACKGROUND

Historically, the Anaconda Company owned a large block of mineral interests in Butte, Montana, which it sold to the Atlantic Rich-field Company (ARCO). ARCO subsequently disposed of all these mineral interests to Dennis Washington. An option to acquire these mineral rights was given to two Australian men, Laith Reynolds and Kerry Harmanis. Reynolds and Harmanis sought financial backing and entered into a joint venture agreement with named Clive Smith, a citizen of England, who became the financier of the joint venture. The members of the joint venture decided to form a series of Montana corporations to provide ownership vehicles to which they could transfer various mining claims, equipment, etc. One corporation, Montana Mining Properties, Incorporated (MMPI), was formed to act as agent for the other corporations.

On January 27, 1987, the members of the joint venture, Smith, Reynolds, and Harmanis, acting through MMPI, signed a contract with Dennis Washington to buy mineral rights and properties, and to obtain certain other benefits. Over the next two years, other Montana corporations were formed to provide ownership vehicles for various mining claims or equipment. All of these corporations specifically authorized MMPI to act as their agent and to provide management. That was the only reason for MMPI’s corporate existence.

The joint venture consisting of Smith, Reynolds, and Harmanis owned and controlled all of the stock in the mining corporations through companies formed in the Jersey Isles called the “Limiteds,” in proportion to their ownership percentages in the joint venture. Although the percentages of ownership in the joint venture were in a constant state of flux between the three men and a new stock holder, Robertson Research Limited, Smith eventually obtained the majority of the shares in the venture and absolute control over it and MMPI.

In an earlier lawsuit filed against MMPI by Dennis Washington, Smith indicated that he personally acted on behalf of MMPI on major matters; that he had procured all of the funding for MMPI acquisitions; and that he had personally caused $25 million to be expended in connection with the MMPI properties. He also testified on behalf of MMPI that all assets of MMPI were beneficially owned by the members of the joint venture. While on the witness stand, evidence was presented through Smith’s testimony and his attorney’s statements to the court, that Smith owned 77.5 percent of MMPI, and was the controlling person in that company.

In 1986, prior to the formation of the MMPI joint venture, Reynolds contacted Frank Crowley to inquire about valuable mineral deposits in Butte. Crowley has intimate knowledge about the mines on the Butte Hill and, at the time, had a lease arrangement with ARCO. As part of this lease arrangement, Crowley obtained a wealth of valuable geological and mining information which the Anaconda Company had accumulated over a period of 100 years. He referred to these records as the “golden records.” Crowley informed Reynolds that the mineral deposit on the Butte Hill was extremely valuable and very promising. Reynolds and Harmanis continued to solicit information from Crowley, who shared his opinions on the mineral deposits and the wealth of geological information found in the “golden records.”

Soon after, Reynolds and Harmanis purchased the property as part of the joint venture with Clive Smith. During the entire process of negotiation with Dennis Washington, Crowley provided his advice and opinions at the request of Reynolds and Harmanis. As a result of the purchase, MMPI owned, through the other twelve corporations, several mining blocks on the Butte Hill, along with a considerable amount of valuable mining equipment, including hoists, head frames, and compressors. Smith, Reynolds, and Harmanis requested that Crowley assist them with the management and development of the properties. They orally promised Crowley that they would pay his fees, expenses, and give him a management position in the new company and a substantial block of stock.

Sometime after the purchase of the mining interests on the Butte Hill, a dispute arose between Reynolds, Harmanis, and Smith which eventually led Reynolds and Harmanis to relinquish their interest in the joint venture. Smith then assumed the management and sole right to control and direct the MMPI operations.

During this time period, in April 1988, Smith, on behalf of MMPI, approached Malcom Clews and offered him employment with MMPI. At the time, Clews was associated with Robertson Research, one of the four parties who held stock in MMPI. Clews entered into an oral agreement to work for MMPI pursuant to Smith’s request. Initially he was to be paid a daily consulting fee, his out-of-pocket expenses, and was promised an executive position in any public company formed upon MMPI’s “realization,” along with a block of stock in the public company. Clews sent monthly invoices to MMPI in Butte, in accordance with the terms of this agreement.

In 1989, Clews and MMPI modified the oral agreement to require that Clews forgo his daily fee in return for a larger block of stock in the public company. Clews gave a credit against his monthly invoices for the daily fees charged from September 1988 to January 1989. The remainder of the original agreement was unchanged.

In March 1990, Clews and MMPI made a second modification to the oral consulting agreement. According to this modification, Smith, on behalf of MMPI, promised Clews a monthly consulting fee of £5000 (pounds sterling). The remainder of the original oral agreement was unchanged.

In May 1990, a potential realization on the American Stock Exchange looked promising for MMPI. During that time, an attorney who worked for the joint venture reduced to writing the portions of Clews’ and Crowley’s oral consulting agreements which dealt with fees and expenses. As a result, Crowley’s general manager agreement, which had previously been oral, was reduced to writing, as was Clews’ consulting agreement. The remaining portions of their oral agreements were unchanged. After these agreements were reduced to writing, both Clews and Crowley were made officers and directors of the various corporations constituting MMPI, and were listed on the vendors’ list as shareholders in the MMPI group of companies.

After several failed merger attempts, MMPI’s realization finally occurred. In 1991, a new company called Newco No. 393497 was specifically created to hold the assets and stock of the MMPI Butte mining corporations. Clews and Crowley were listed on the schedule of stockholders of this numbered company. This company was then merged with an existing British Columbian corporation called Nor Quest, which produced Western and Pacific Resources Corporation (k/n/a/ Synergy). Western and Pacific Resources Corporation owns 87.5 percent of MMPI stock and is publicly traded on the Vancouver and NASDAQ stock exchanges. The remaining 12.5 percent of stock was, and still is, held by Robertson Research Limited. Western and Pacific Resources Corporation is, and has been since the time of the merger, a publicly held corporation with an independent Board of Directors duly elected by the thousands of members of the public who hold stock shares.

Clews and Crowley testified at trial that MMPI’s oral promises of stock were not premised on being made subject to any pooling agreement, and neither the vendors list nor the subsequent schedule of stock holders in the numbered company indicated any pooling agreement restrictions. Clews and Crowley testified that they performed their services and remained with MMPI as consideration for the unrestricted stock promises, fees, expenses, and positions as directors and executives of MMPI.

Following the execution of the written contracts with MMPI, Clews continued to send monthly invoices for his services to MMPI. Many of the invoices were formally approved by Crowley in his role as general manager of MMPI and officer and director of the Montana corporations. However, Clews has yet to be paid for a large portion of his services to MMPI. His last bill to MMPI shows a cumulative total owing of £107,275.04 for his consulting fees and expenses. Additionally, after the realization occurred, Clews’ and Crowley’s requests for the stock they were promised were ignored, as were those of others. To date, no stock has ever been delivered to Clews or Crowley.

ISSUE 1

Did the District court err when it excluded evidence related to Clews’ and Clive Smith’s pending criminal charges for fraud and conspiracy?

We review discretionary trial court rulings to determine whether a district court has abused its discretion. See May v. First Nat’l Pawn Brokers, Ltd. (1995), 270 Mont. 132, 134, 890 P.2d 386, 388. In Montana Rail Link v. Byard (1993), 260 Mont. 331, 337, 860 P.2d 121, 125, we held that “[t]he standard of abuse of discretion is applied to discretionary rulings, such as trial administration issues, post-trial motions and similar rulings.” (Citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.) The test for abuse of discretion is whether the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. See Davis v. Davis (1996), 277 Mont. 188, 190, 921 P.2d 275, 277. We will not substitute our judgment for the District Court’s unless it clearly abused its discretion. See Gaustad v. City of Columbus (1995), 272 Mont. 486, 488, 901 P.2d 565, 567.

According to MMPI, as set forth in its motion in limine, on May 26, 1995, the British Security Office in England arrested Clews and Smith and charged them with conspiring to defraud in connection with the sale of stock in Butte Mining PLC, a United Kingdom Company. MMPI claims that the charge alleged that the claimed value of the stock of Butte Mining PLC far exceeded the value of the company’s assets. According to these facts, Clews and Smith currently await trial.

Prior to trial in this matter, the District Court granted Clews’ motion in limine to exclude evidence of any pending charges in England for the reason that they are irrelevant to any issue in this case. MMPI maintains that these charges are relevant to Clews’ credibility, as well as to the relationship between Clews and Smith. MMPI’s theory is that any promises for shares of stock made by Smith to Clews were in his individual capacity, and not as an agent of MMPI. Thus, the nature of Clews’ and Smith’s joint venture and the fact they are facing criminal fraud charges together is relevant. MMPI contends that the evidence would show that Clews is not an innocent victim who was defrauded out of payment for services rendered, but rather that he is a savvy businessman who knew exactly the type of arrangement into which he entered. MMPI cites a number of criminal cases in support of its contention that, because Clews allegedly brought forth his credibility as an issue at trial, MMPI should have the opportunity to rebut that evidence with evidence of Clews’ criminal activity.

Clews, on the other hand, contends, first, that his credibility and character were never an issue at trial, and second, that the criminal charges in England were only pending; there has been no conviction. Therefore, Clews argues that according to Article II, Section 17, of the Montana Constitution, and §§ 26-1-602 and 26-16-204, MCA, he should be presumed innocent until proven guilty. Clews maintains that an examination of Rules 401, 402, 403, 404, and 609, M.R.Evid., mandate that this type of evidence be excluded because the potential for prejudice far outweighs its probative value.

Clews also contends that MMPI did not give the notice required by Rule 404(b), M.R.Evid., and State. v. Just (1979), 184 Mont. 262, 602 P.2d 957, that other crimes or wrongful acts would be introduced for the purpose of proving motive, opportunity, preparation, plan, knowledge, or identity.

The District Court granted Clews’ motion in limine and excluded evidence of the pending criminal charges on relevancy grounds pursuant to Rules 401 and 403, M.R.Evid. We agree with the District Court and disagree with MMPI’s contention that it is necessary that these charges be admitted to demonstrate Clews’ lack of character and credibility.

We also disagree that this evidence is necessary to demonstrate the type of relationship between Clews and Smith. The fact that they are both facing fraud charges is not probative of the relationships between the two men. In fact, unproven charges do not prove anything.

Moreover, even if this evidence was relevant pursuant to Rule 401, M.R.Evid., we agree with the District Court that pursuant to Rule 403, M.R.Evid., its probative value is substantially outweighed by the danger of unfair prejudice. We therefore conclude that the District Court did not abuse its discretion when it granted Clews’ motion in limine and excluded evidence of Clews’pending criminal charges.

ISSUE 2

Did the District Court err when it allowed testimony from another trial, regarding the agency relationship between Clive Smith and MMPI, as admissions against interest, and when it offered a jury instruction which characterized this testimony as a judicial admission?

On appeal, MMPI contends that the District Court erroneously held that MMPI was collaterally estopped from asserting that Smith did not bind MMPI with his promises of stock to Clews and Crowley. It further contends that the District Court erred when it offered as a jury instruction a statement made by the former attorney for MMPI which establishes the agency relationship between MMPI and Smith, as a judicial admission which concedes the truth of the attorney’s statement.

We will first address MMPI’s claim that the District Court collaterally estopped it from rebutting the claim that Smith is an agent for MMPI. Our review of the record gives no indication that the District Court ever made such a ruling. We conclude that there was nothing done by the District Court to prevent MMPI from presenting evidence that Smith did not bind MMPI with promises of stock to Clews and Crowley.

On September 9, 1996, the District Court held a pretrial hearing to determine what exhibits could be used at the trial without objection. MMPI objected to a series of exhibits that were offered by Clews and Crowley. These exhibits included previous rulings and court orders in another lawsuit involving MMPI, as well as certain decisions arising from an MMPI lawsuit in England. Clews and Crowley had marked as exhibits portions of the transcript from those earlier hearings which described testimony given by Clive Smith and statements made by the attorney for MMPI. Crowley moved that the exhibits be admitted pursuant to the doctrines of collateral estoppel, judicial estoppel, or judicial notice. Clews moved that the exhibits be admitted because the statements were admissions by a party-opponent. At the conclusion of the arguments, the District Court indicated that the statements made by Smith and his attorney, in the other proceeding, were admissions by a party-opponent and, for this reason, certain portions of the transcript could be read into evidence. The District Court made no ruling with regard to Crowley’s argument that the statements should be admitted based on collateral estoppel, judicial estoppel, or judicial notice. The District Court indicated that the transcript provisions were sufficient and that the decisions of the other courts could be left out of the trial. The attorney for MMPI indicated that she would have no problem with the limited introduction of that testimony. Nothing in the record suggests that the ruling made by the District Court in any way prevented MMPI from introducing evidence that Clive Smith did not bind MMPI with his promises to Clews and Crowley.

Rule 801(d)(2), M.R.Evid., governs admissions by a party-opponent. That rule provides that a statement is an admission by a party-opponent and is not hearsay if:

[t]he statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of that relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

We conclude that all of the elements contained within this rule of evidence are met in this case and that the earlier testimony of Smith and the attorney for MMPI are not hearsay. The statements were offered against MMPI, and the statements regarding MMPI and Smith’s agency relationship were made by MMPI’s attorney and Smith himself. Both Smith and his attorney, on the record, testified as to Smith’s absolute ownership and control over MMPI.

With regard to the jury instruction which MMPI appeals, we conclude that the District Court did not commit reversible error by giving that instruction to the jury. The instruction which MMPI appeals addresses the fact that the attorney for MMPI, in a prior action, stated that Smith was the owner of 77.5 percent of the stock in MMPI and, as such, was the person with ultimate control of the affairs of MMPI. Although the District Court mischaracterized this statement as a judicial admission of fact, rather than as an admission by a party-opponent, that characterization, by itself, had no significance to the jury. The court correctly instructed the jury that the statement is binding on MMPI and requires no further proof. We conclude that the effect and intent of the instruction was the same as if the instruction characterized the statement as an admission by a party-opponent, and that the mischaracterization of the statement was, at most, harmless error.

Accordingly, we conclude that the District Court did not collaterally estop MMPI from asserting that Smith did not bind MMPI with his promises of stock to Clews and Crowley; that the District Court did not preclude MMPI from calling witnesses or presenting exhibits to prove that the promises of Smith did not bind it; and that the statements made by Smith and MMPI’s former attorney are admissible pursuant to Rule 801(d)(2), M.R.Evid., as admissions by a party-opponent. Moreover, we conclude it was not reversible error for the District Court to mischaracterize these statements as judicial admissions, rather than as admissions by a party-opponent.

ISSUE 3

Did the District Court err when it refused to give MMPI’s jury instruction regarding subsequent contracts?

We have held that “[i]t is not reversible error for a district court to refuse an offered instruction unless the refusal affects the substantial rights of the party who proposed the instruction.” Lacock v. 4B’s Restaurants, Inc. (1996), 277 Mont. 17, 21, 919 P.2d 373, 375.

MMPI contends that the District Court committed reversible error when it refused to give the following instruction regarding the statutory language of § 28-2-904, MCA.

The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.

The District Court indicated that MMPI could submit the instruction, but only of it was in writing. MMPI did not do so prior to the completion of settling jury instructions.

It is unclear whether the instruction regarding the statutory language of § 28-2-904, MCA, was ever submitted by MMPI. However, had MMPI submitted that instruction and the District Court refused to give it to the jury, the District Court’s refusal would not have been reversible error. According to the facts of this case, each of the contracts between MMPI and Clews were fully performed successive contracts. In exchange for his services, Clews was to receive stock in MMPI’s public company, Western and Pacific Resources Corporation, a position as the director and executive of the company, and fees and reimbursement for his expenses. The fees and expenses portion of the contract was later made into a written agreement, and the directors and officers of Western and Pacific Resources Corporation listed Clews as the director and chief executive of the company. Moreover, stock in Western and Pacific Resources Corporation was issued to Clews.

Because each successive contract varied from the previous contract, the contracts may have appeared to be modifications of one another and, as MMPI contends, only negotiations leading up to the final written contract. They were, however, separate contracts that both parties executed and performed. The final written contract was not intended to merge the previous contracts between the parties into one written agreement. It related to only that portion of the parties’ agreement which dealt with Clews’ consulting services and his fees and expenses.

In the case of Crowley, his written general manger contract incorporated entirely the oral consulting agreement between the parties. The oral consulting agreement, as referenced in the general manager contract, provided that in exchange for Crowley providing management and knowledge of the Butte area claims, geology, and community, as well as his assistance in bringing the MMPI proj ect to fruition, Crowley was to receive his fees, expenses, a substantial block of stock, and a director position. As such, MMPI’s appeal on this issue has no application to Crowley. Crowley’s written general manager contract fully incorporated any prior contracts between the parties.

Accordingly, we conclude that the District Court did not err by refusing to instruct the jury regarding the statutory language of § 28-2-904, MCA

ISSUE 4

Was there sufficient evidence to support the jury’s verdict?

The standard of review of a jury’s verdict is whether there is substantial credible evidence in the record to support it. See Tanner v. Dream Island, Inc. (1996), 275 Mont. 414, 422, 913 P.2d 641, 646; Barthule v. Karman (1994), 268 Mont. 477, 485, 886 P.2d 971, 976. See also Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 322-23, 820 P.2d 1285, 1287. In Baird v. Norwest Bank (1992), 255 Mont. 317, 323, 843 P.2d 327, 331, we held that

[s]ubstantial evidence is that evidence that a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. Although it may be based on weak and conflicting evidence, in order to rise to the level of substantial evidence it must be greater than trifling or frivolous.

(Citations omitted.) In Lackey v. Wilson (1983), 205 Mont. 476, 479, 668 P.2d 1051, 1053 we held that an attack upon a jury verdict as not supported by the evidence is proper only when there is a complete absence of any credible evidence in support of the verdict. All evidence and all inferences drawn therefrom must be considered in a light most favorable to the adverse party.

MMPI contends that the jury verdict should be reversed for lack of substantial evidence. It argues that there is not sufficient evidence for the jury to have found that Smith’s promises of stock to Clews and Crowley, in exchange for their services, rose to the level required to hold MMPI liable for these promises. Our review of the record, however, indicates that there was substantial evidence to establish that MMPI, through its agent Smith, did in fact promise and issue unencumbered stock to Clews and Crowley.

The facts of this case demonstrate that Clews and Crowley were both issued stock in MMPI’s public company, Western and Pacific Resources Corporation. The stock which they held in that company was based upon stock that Clews and Crowley held in Newco No. 393497. Clews and Crowley held stock in Newco No. 393497 because they were stockholders in MMPI. They owned stock in MMPI because Smith divided up his ownership interests in MMPI in the vendor’s lists prior to the formation of Newco No. 393497. All of these facts were presented to the jury and the jury agreed with Clews and Crowley that Smith, on behalf of MMPI, promised them stock in the public company.

MMPI also appeals the jury’s decision that the stock issued to Clews and Crowley was not subject to a pooling agreement of which Clive Smith was the majority shareholder. MMPI argues that the stock was issued to Clews and Crowley but that the pooling agreement, which contractually combined and controlled the stock of several shareholders of Western and Pacific Resources Corporation and prevented its members from freely selling their stock, had nothing to do with MMPI or their parent company Western and Pacific Resources Corporation. According to MMPI, Clews and Crowley entered into the pooling agreement with Smith alone and, therefore, MMPI cannot be held liable for the fact that Clews and Crowley cannot sell their pooled stock.

At trial, Clews and Crowley both maintained that they were not subject to the pooling agreement because they had never given their consent. MMPI claims that Clews and Crowley are bound by the pooling agreement because they acted as if they were bound by it when they unsuccessfully attempted to acquire their stock pursuant to the terms of the agreement. According to MMPI, because Clews and Crowley are bound by the pooling agreement made with Smith, MMPI cannot be held liable for Clews and Crowley’s inability to sell their stock. We disagree.

Throughout the trial of this matter, Clews and Crowley exhaustively provided evidence that Smith was in control of MMPI and that he acted on behalf of MMPI as its agent. Through Smith, MMPI promised stock to Clews and Crowley which was not subject to any pooling restrictions. It was only after the stock was issued that the pooling agreement appeared. Based upon this evidence, the jury determined that MMPI’s oral promises of stock to Clews and Crowley were not subject to the pooling agreement. The jury did not hold MMPI liable for the pooling agreement due to an agency relationship between Smith and MMPI, but rather that Clews’ and Crowley’s stock was not subject to the pooling agreement at all.

Accordingly, we conclude that there exists substantial credible evidence in the record to support the jury’s verdict that MMPI failed to deliver Clews’ and Crowley’s stock as promised.

ISSUE 5

Did the District Court err when it denied MMPI’s motion for a new trial?

The standard of review of a district court’s denial of a motion for a new trial is manifest abuse of discretion. See Baxter v. Archie Cochrane Motors, Inc. (1995), 271 Mont. 286, 287-88, 895 P.2d 631, 632 (“[t]he decision to grant or deny a new trial is within the sound discretion of the trial judge and will not be disturbed absent a showing of manifest abuse of that discretion”). See also Rasmussen v. State Comp. Mut. Ins. Fund (1995), 270 Mont. 492, 496, 893 P.2d 337, 339; Jim’s Excavating Serv., Inc. v. HKM Assoc. (1994), 265 Mont. 494, 512, 878 P.2d 248, 259.

MMPI contends that the District Court should have granted a new trial because the jury awarded excessive damages to Clews. MMPI argues that the jury erroneously awarded consulting fees to Clews beginning in October 1988, more than a year prior to the effective date of the written consulting contract. MMPI further contends that the jury verdict erroneously awarded damages to Clews for services that were to be paid for in pounds sterling by converting those damages to United States’ dollars on each monthly “payday” throughout the term of Clews’ consulting agreement. MMPI maintains that this method of converting pounds sterling to dollars unfairly takes advantage of the historically high conversion rates which were in excess of those in effect on the day the verdict was rendered. According to MMPI, any damages awarded to Clews as a result of a breach of his consulting agreement with MMPI should have been awarded in pounds sterling and converted to dollars on the date the judgment was entered.

Clews, on the other hand, argues that the jury verdict was not in error and that the damages were not excessive. According to Clews, the first month that Clews billed for any consulting fees was the month of October 1990. The only charges for previous months were charges for out-of-pocket expenses incurred by Clews which were specifically authorized by his written agreement. The written contract required MMPI to pay Clews a retainer of £5,000 per month commencing February 1, 1990, until the expiration of the contract. Clews contends that the undisputed facts at the trial demonstrated that Clews had been providing services to MMPI since September 1988 and, therefore, a bill for expenses from September 1988 through January 1992 was proper. With regard to the conversion of the pounds sterling to dollars, Clews argues that he was entitled to the jury’s award which was computed on a month-by-month basis because this was a sum certain case.

We agree with Clews that the record demonstrates that he began providing services to MMPI in September 1988 and, thus, the jury’s award of expenses and fees from that date through January 1992 was proper. With regard to MMPI’s allegation that the jury erroneously calculated the exchange rate from pounds sterling to U.S. dollars on a monthly basis instead of on the day the judgment was entered, we conclude that MMPI cannot raise this alleged error for the first time on appeal. The record in this case indicates that MMPI failed to make a timely or specific objection to the manner in which the jury calculated the conversion rate for Clews’ damages. In State v. Huerta (1997), [285 Mont. 245], 947 P.2d 483, we held that where the appellant failed to object at the time the court made the alleged error, the objection was not timely. See also State v. Hofman (1996), 275 Mont. 455, 913 P.2d 1256; City of Forsyth v. Allison (1995), 274 Mont. 246, 908 P.2d 205; State v. Walter (1994), 266 Mont. 429, 880 P.2d 1346; State v. Smith (1986), 220 Mont. 364, 715 P.2d 1301; State v. Close (1981), 191 Mont. 229, 623 P.2d 940.

In addition to requiring a timely objection, we have held that the objection must be specific in order to preserve the issue for appeal. In State v. Loh (1996), 275 Mont. 460, 479, 914 P.2d 592, 603-04, we held that a trial objection that is very general in nature and which does not specify what authority, rule, statute, or constitutional provision might be violated by the court’s decision, is insufficient to preserve that issue on appeal. In State v. Weeks (1995), 270 Mont. 63, 85, 891 P.2d 477, 490-91, we further held that an objector has an obligation to make the basis and grounds for his or her objection clear to the court so that the district court is given an opportunity to correct itself and that broad, general objections do not suffice.

MMPI’s only objection to the manner of calculating damages was a general objection to the foundation of several exhibits, one of which was the calculation sheet for Clews’ damages which included the conversion tables used by the jury. MMPI’s claim on appeal that the jury erroneously converted the exchange rate of Clews’ damages each month, rather than on the day the judgment or payment was made, is an argument which it did not make to the District Court at the time the conversion tables were offered or admitted. WeconcludethatbecauseMMPI’sobjectionwasnottimelyorspecific, it did not preserve the issue for our consideration on appeal.

For these reasons, we affirm the jury’s verdict and the judgment of the District Court.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, REGNIER and HUNT concur.


author: JUSTICE REGNIER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. KENT JAMES PRATT, Defendant and Appellant.
    No. 97-144.
    Submitted on Briefs November 6, 1997.
    Decided December 16, 1997.
    54 St.Rep. 1349.
    286 Mont. 156.
    951 P.2d 37.

      For Appellant: J. Dirk Beccari; Quane, Smith, Howard «fe Hull; Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General; Helena; Robert L. “Dusty” Deschamps, III, Missoula County Attorney; Robert L. Zimmerman, Deputy County Attorney; Missoula.
   JUSTICE REGNIER

delivered the Opinion of the Court.

Kent James Pratt was charged by information on November 2, 1995, with the offenses of felony driving under the influence of alcohol, misdemeanor possession of more than one valid Montana driver’s license, and misdemeanor violation of the provisions of a restricted driver’s license. Pratt filed a motion to suppress evidence of his intoxication which had been obtained following the investigatory stop of his vehicle. Pratt also filed a motion to dismiss the charge for lack of jurisdiction. The Fourth Judicial District Court, Missoula County, denied both motions. Pratt entered into a plea agreement with the State in which he agreed to plead guilty to felony DUI and the State agreed to dismiss the two misdemeanor counts and make a specified sentencing recommendation. The District Court sentenced Pratt to a term of five years, with two years suspended, with the Department of Corrections, and recommended his placement in the intensive supervision program. Pratt reserved the right to appeal from the District Court’s denial of his pretrial motions. Pratt appeals from the sentence and judgment of the District Court, and from the orders denying his motion to suppress and motion to dismiss. We affirm.

The following issues are presented on appeal:

1. Did the District Court err in denying Pratt’s motion to suppress evidence, in which Pratt argued that Officer Pastian did not have a particularized suspicion to justify an investigatory stop of Pratt’s vehicle?
2. Did the District Court err in denying Pratt’s motion to dismiss the felony DUI charge for lack of jurisdiction?

FACTUAL AND PROCEDURAL BACKGROUND

The defendant’s motion to suppress was submitted and decided without an evidentiary hearing. As a factual basis for his motion, however, Pratt used two police reports which he attached to the motion. The following facts are derived from the reports which were considered by the District Court.

At 2:09 a.m. on October 5, 1995, Officer Scott Pastian of the Missoula City Police Department received a police dispatcher’s report of an intoxicated driver. The report related that the driver was operating a white Toyota Land Cruiser, license number resembling “GRIZZII” and traveling north on Van Burén Street from East Broadway. The complainant was Mike Lafournaise, the night manager of the Short Stop convenience store in Missoula.

Officer Pastian was traveling south on Van Burén Street when the dispatcher relayed the report with the description of the vehicle and license number. Officer Pastian saw Pratt’s Toyota driving toward him on Van Burén Street and then turn onto Elm Street. Officer Pastian initiated a traffic stop. Subsequently, Pastian arrested Pratt for driving under the influence of alcohol, fourth offense; possession of more than one valid Montana driver’s license; and violation of the provisions of a restricted driver’s license.

Officer J. Pontrelli overheard the dispatch report about the intoxicated driver and proceeded toward Van Burén Street. Upon hearing Pastian inform the dispatcher that he had stopped Pratt, Pontrelli drove to the Short Stop and talked to Lafournaise. Lafournaise described Pratt’s actions and intoxicated condition while at the store.

Lafournaise related to Officer Pontrelli that he saw a white male, now known as the defendant, Kent Pratt, drive a 1991 white Toyota Land Cruiser into the store’s gas pump lanes where he stopped and sat for awhile and then drove away onto Broadway. A short time later, Pratt returned to the Short Stop, parked again in the pump lane, and stayed in the vehicle for a few minutes. Pratt then exited the vehicle and staggered into the store to the bathroom. After coming out of the bathroom, he went to the beer cooler and stood in front of it as if he were going to purchase some beer. The store attendant then told Pratt that he could not purchase any beer since it was after 2:00 a.m. Pratt left the store, fumbled around in his vehicle, and finally drove away.

In reporting Pratt’s actions at the Short Stop to the police, Lafournaise described the vehicle and its distinctive personalized license plate, and informed the dispatcher that Pratt was traveling north on Van Burén Street.

On November 2, 1995, Pratt was charged by information in the Fourth Judicial District Court, Missoula County, with violations of: (1) § 61-8-401, MCA, DUI, a fourth lifetime offense, a felony; (2) § 61-5-111, MCA, possession of more than one valid Montana driver’s license, misdemeanor; and (3) § 61-5-113, MCA, violation of provisions of a restricted driver’s license, a misdemeanor.

Pratt has three prior convictions for DUI which occurred on June 10, 1985; March 7, 1989; and September 13, 1991.

On January 11,1996, Pratt filed a motion to suppress the evidence of his intoxication which had been obtained following the investigatory stop of his vehicle. On February 6, 1996, the District Court denied Pratt’s motion to suppress.

On March 8,1996, Pratt filed a motion to dismiss the felony charge for lack of jurisdiction. In that motion, Pratt argued that two of his prior DUI convictions should have been expunged from his record and, therefore, could not be used as a basis for a felony DUI prosecution. Pratt also argued that, as applied to his prior DUI convictions, the 1995 amendments to the DUI sentencing statutes violated the constitutional prohibitions against ex post facto legislation. On June 21, 1996, the District Court denied Pratt’s motion to dismiss.

On October 7, 1996, Pratt entered a conditional plea of guilty, pursuant to § 46-12-204(3), MCA, to the offense of felony DUI. The State agreed to dismiss the two misdemeanor counts and make a specified sentencing recommendation. Pratt reserved his right to appeal from the orders denying his motions to suppress and dismiss.

On November 22, 1996, the District Court sentenced Pratt to a term of five years, with two years suspended, with the Department of Corrections, and recommended his placement in the intensive supervision program. The District Court’s judgment was filed on December 9, 1996.

On February 6, 1997, Pratt filed a notice of appeal, and on February 7, 1997, the District Court entered an order staying the sentence pending final determination by this Court.

Pratt appeals from the sentence and judgment of the District Court, from the order denying his motion to suppress evidence, and from the order denying his motion to dismiss.

ISSUE 1

Did the District Court err in denying Pratt’s motion to suppress evidence, in which Pratt argued that Officer Pastian did not have a particularized suspicion to justify an investigatory stop of Pratt’s vehicle?

The standard of review for a district court’s denial of a motion to suppress is whether the court’s findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Flack (1993), 260 Mont. 181, 185-88, 860 P.2d 89, 92-94.

Pratt argues that the District Court erred in denying his motion to suppress and in finding him guilty of driving under the influence of alcohol. Pratt claims that Officer Pastian did not have enough information to form a particularized suspicion of criminal activity to justify an investigatory stop pursuant to § 46-5-401, MCA.

In Montana, the requirement of particularized suspicion was adopted in State v. Gopher (1981), 193 Mont. 189, 631 P.2d 293, and is codified at § 46-5-401, MCA, which provides:

Investigative stop. In order to obtain or verify an account of the person’s presence or conduct or to determine whether to arrest the person, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.

In Gopher, this Court adopted the two-part test enunciated by the United States Supreme Court in United States v. Cortez (1981), 449 U.S. 411, 101 S. Ct. 690, 66 L. Ed. 2d 621, to evaluate whether the police have sufficient cause or a “particularized suspicion” to stop a person. In asserting that a police officer had the particularized suspicion to make an investigatory stop, the State has the burden to show:

(1) objective data from which an experienced officer can make certain inferences; and (2) a resulting suspicion that the occupant of a certain vehicle is or has been engaged in wrongdoing or was a witness to criminal activity.

Gopher, 193 Mont. at 194, 631 P.2d at 296.

Whether a particularized suspicion exists is a question of fact which depends on the totality of circumstances. State v. Reynolds (1995), 272 Mont. 46, 899 P.2d 540. In evaluating the totality of the circumstances, a court should consider the quantity, or content, and quality, or degree of reliability, of the information available to the officer. Alabama v. White (1990), 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 309.

In this case, both Pratt and the State appropriately focus their arguments on the nature of the information provided by the citizen informant and the role it played in forming Pastian’s particularized suspicion in justifying the investigative stop of Pratt’s vehicle. Pratt argues that the citizen informant who provided the information to the Missoula City Police Department was unknown to Pastian before he initiated the stop of his vehicle. Therefore, Pratt contends Pastian could not have assessed the reliability of the informant’s information and rely on that information in forming a particularized suspicion to justify the stop. Pratt also argues that the detailed information establishing the foundation of Lafournaise’s opinion was provided to Officer Pontrelli after Pastian stopped Pratt. Furthermore, Pratt asserts that Pastian made no observation regarding his driving before stopping him. Thus, without assessing the reliability of the informant or observing any erratic driving on Pratt’s part, Pastian possessed no objective data upon which to base his stop of Pratt’s vehicle.

The State concedes that Pastian’s report does not indicate that the officer himself observed any erratic driving prior to the investigatory stop of Pratt’s vehicle. However, the State counters by arguing that the information provided by the citizen informant about Pratt to the Missoula City Police Department was sufficient in itself to justify the stop.

This Court has held that an arresting officer may rely on information conveyed by a reliable third person, including an anonymous citizen informant, in forming the basis for a particularized suspicion to justify an investigative stop. See Boland v. State (1990), 242 Mont. 520, 792 P.2d 1; State v. Ellinger (1986), 223 Mont. 349, 725 P.2d 1201. For example, we have stated that a citizen report of a DUI, the reported vehicle observed halfway off the road, and the vehicle pulling away when an officer approached is sufficient to establish a particularized suspicion. State v. Sharp (1985), 217 Mont. 40, 702 P.2d 959. Likewise, two anonymous telephone calls corroborated by officers and evidence of excessive speed were sufficient grounds for a justifiable stop. State v. Shaffer (1987), 227 Mont. 221, 738 P.2d 491. In both Sharp and Shaffer, unlike this case, the information provided by the citizen informant was corroborated by independent observation of wrongdoing or illegality by the officer in order to meet the particularized suspicion standard.

Not surprisingly, both parties refer to and place great emphasis on our recent decision in State v. Lee (1997), 282 Mont. 391, 938 P.2d 637. Lee involved the investigatory stop of a vehicle after a report from an anonymous citizen informant was relayed to the arresting officer. In Lee,

the anonymous caller stated that she “believed Lee was under the influence of alcohol and speeding.” This statement, along with a description of the car and the direction it was heading, was all the information that was provided to the dispatcher. The dispatcher relayed this information to Officer Collins. The caller did not provide the dispatcher with any basis for her belief that Lee was driving under the influence of alcohol or speeding. At the time of the call, the informant did not state whether she had personally observed Lee drinking or that he was speeding or driving erratically. The informant merely believed that Lee was speeding and under the influence of alcohol.
Before Officer Collins stopped Lee, he did not have any contact with the informant to assess whether the information provided was reliable or had any basis in fact. Officer Collins saw a car matching the informant’s description traveling north on the Fort Peck highway and turned around to follow it. Collins testified that the car was not speeding, weaving, or swerving. When the patrol car accelerated to get behind the vehicle driven by Lee, Lee slowed down to 35 miles per hour. Outside of this deceleration, Officer Collins observed no violations of the law or driving anomalies. Lee did not exhibit patterns consistent with a person driving while under the influence of alcohol; there was no evidence of erratic driving.

Lee, 282 Mont. 391, 938 P.2d at 640 (emphasis added).

In Lee, the anonymous citizen informant provided the dispatcher with little information except a statement of opinion, a description of the vehicle, and the general direction of travel. Upon locating Lee’s vehicle, the officer initiated an investigatory stop before first assessing whether the information was reliable or had any basis in fact and, second, corroborating the information with any observation of illegal activity or indication of impaired or erratic driving. Based upon these facts, we held that a citizen informant’s opinion which is not supported by either the basis for such belief or by the officer’s personal observations cannot be sufficient to form a particularized suspicion. Lee, 282 Mont. 391, 938 P.2d at 640.

Pratt relies on Lee in arguing that Pastian did not have sufficient information to form a particularized suspicion to justify an investigatory stop of his vehicle. Pratt contends that the circumstances surrounding the investigatory stop of his vehicle are identical to the facts in Lee, in that the tip from the citizen informant was not reliable and that the officer did not observe any erratic or impaired driving.

The State argues that Lee is factually distinguishable and does not control the resolution of Pratt’s case. The State contends that the citizen informant was not anonymous, but had identified himself to the dispatcher. Furthermore, the citizen informant also indicated that his report was based upon his own observations that Pratt was drunk and driving.

Citizen informants can provide useful information and play an important role in law enforcement. At the same time, however, it is imperative to recognize the potential for abuse if the information provided by a citizen informant is not reliable. The United States Supreme Court has recognized the problems associated with tips from citizen informants:

Informants’ tips, like all other clues and evidence coming to a policeman on the scene may vary greatly in their value and reliability. One simple rule will not cover every situation. Some tips completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized.

Adams v. Williams (1972), 407 U.S. 143, 147, 92 S. Ct. 1921, 1924, 32 L. Ed. 2d 612, 617-18.

Recognizing the frequency in which we encounter issues involving citizen informants, it is appropriate that we provide further guidance on the proper use of information given by citizen informants. We find the analysis as set forth by the Oregon Court of Appeals in State v. Villegas-Varela (Or. 1994), 887 P.2d 809, useful in evaluating a citizen informant’s report and adopt this approach for Montana.

In Villegas-Varela, the defendant appealed from a denial of his motion to suppress. The police officer at the suppression hearing testified that he received a dispatch that an anonymous caller reported an “intoxicated driver operating a small red vehicle with four subjects in it. The vehicle was driving erratically all over the road.” Although the caller provided the license number, he did not give his location, the location of the car, the direction of travel or a description of any of the occupants. The caller also did not give his name or telephone number. More than an hour later, the arresting officer observed the defendant’s vehicle and followed it for several blocks without observing any traffic infraction. After following the car into a parking lot, the officer identified the license plate and matched it to the one provided by the dispatcher. He then arrested the defendant for driving under the influence of intoxicants, givingfalse information to a police officer, and driving with a suspended license.

On appeal, the defendant argued that the trial court erred in denying his motion to suppress, contending that the arresting officer lacked reasonable suspicion to justify the stop because the informant was anonymous and not sufficiently reliable. In reversing the trial court, the Oregon Court of Appeals stated when reasonable suspicion is based solely on a citizen informant’s report, that report must contain some indica of reliability. Villegas-Varela, 887 P.2d at 810. The court identified three factors that are important in determining the reliability of a citizen informant’s report.

The first factor is whether the citizen informant identifies himself to law enforcement and thus exposes himself to criminal and civil liability if the report is false. Villegas-Varela, 887 P.2d at 810. Under this factor, a tip may be considered more reliable if the informant provides his or her name to law enforcement authorities or delivers the information to the officer in person. The second factor is whether the report is based on the personal observations of the informant. Villegas-Varela, 887 P.2d at 811. The Oregon court recognized that:

An officer may infer that the information is based on the informant’s personal observations if the information contains sufficient detail that
“it is apparent that the informant had not been fabricating [the] report out of whole cloth ... [and] the report [is] of the sort which in common experience may be recognized as having been obtained in a reliable way ....”

Villegas-Varela, 887 P.2d at 811 (quoting Spinelli v. United States (1969), 393 U.S. 410, 417-18, 89 S. Ct. 584, 589-90, 21 L. Ed. 2d 637, 644). The third factor is whether the officer’s own observations corroborated the informant’s information. Villegas-Varela, 887 P.2d at 811. Corroboration of the tip occurs when the officer either observes illegal activity or finds the person, the vehicle, and the vehicle’s location substantially as described by the informant.

In applying these factors to the instant case, the report by citizen informant Lafournaise about Pratt’s condition can be viewed as reliable and, therefore, provided Pastian with a particularized suspicion justifying his investigatory stop of Pratt’s vehicle. First, Lafournaise identified himself during the 911 call and was subjected to a full interview by another officer soon after making the report. Lafournaise, therefore, was exposed to not only civil liability, but also criminal prosecution pursuant to § 45-7-205, MCA, if the report was fabricated. Second, although we do not have a transcript of Lafournaise’s call to the dispatcher, we can infer from the record that Lafournaise was reporting his personal observations of Pratt’s activities that led him to believe that Pratt was intoxicated. He provided the dispatcher with information indicating that he was the night manager of the Short Stop and thus in a position to have observed Pratt. Furthermore, he provided information detailing the vehicle description, the direction the vehicle was traveling, and the vehicle’s personalized license plate number. Certainly a report given by an on-duty manager of a retail establishment is “of the sort which in common experience may be recognized as having been obtained in a reliable way.” Finally, in accordance with the third factor, the report was sufficiently corroborated when Pastian observed the described vehicle within a short period of time, traveling in the direction and on the same street indicated by Lafournaise. Therefore, we conclude that Pastian had a particularized suspicion to initiate the investigatory stop of Pratt.

Pratt also argues that Pastian, as the officer who initiated the investigatory stop, must have personally assessed the reliability of the informant’s tip before making the stop. Pratt finds fault with Pastian making the stop without having spoken with the informant or, at least, having any information regarding the circumstances which led to the report, the person who made the report, the manner of Pratt’s driving, the facts relating to Pratt’s level of impairment, or the basis for the informant’s belief in making the report.

The United States Supreme Court has held that an officer who is unaware of the factual basis for particularized suspicion, may make an investigatory stop upon a directive or request for action from another officer or law enforcement agency. United States v. Hensley (1985), 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 2d 604. See also Whitley v. Warden (1971), 401 U.S. 560, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (an officer who is unaware of the factual basis for probable cause, may make an arrest upon a directive from another officer with probable cause). In such a situation, the directing officer’s knowledge of underlying facts and circumstances is imputed to the acting officer. The rationale for this rule is that the officer is entitled to assume that whoever issued the directive or request had particularized suspicion. However, in the absence of such a directive of request, information held by other officers but not communicated to the acting officer is not imputed to the acting officer. Whitley, 401 U.S. at 568-69.

The Ninth Circuit has concluded that although an officer who issues a wanted bulletin must have particularized suspicion sufficient to justify an investigatory stop, the officer who acts in reliance on the bulletin is not required to have personal knowledge of the evidence creating a particularized suspicion. United States v. Robinson (9th Cir. 1976), 536 F.2d 1298 (holding that an officer who relied on a radio dispatch report in making an investigatory stop of a vehicle did not have a particularized suspicion when the dispatcher did not have a factual foundation for a particularized suspicion before relaying the information to the officer). The Ninth Circuit noted “effective law enforcement cannot be conducted unless police can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.” Robinson, 536 F.2d at 1299.

In Gopher, we stated that facts known to one officer at the time he directed another officer to make an investigatory stop could appropriately form a basis for particularized suspicion. See Gopher, 193 Mont. at 191-93, 631 P.2d at 294-96. Likewise, in Boland, we held that an arresting officer may rely on information conveyed by another officer in determining probable cause to arrest. Boland, 242 Mont. at 525, 792 P.2d at 3.

We therefore conclude that Pratt’s argument that Pastian must personally assess the reliability of the citizen informant’s tip is unpersuasive. Pastian, as the acting officer, could reasonably rely on information relayed to him by the dispatcher for particularized suspicion justifying an investigatory stop of Pratt’s vehicle. Pastian observed Pratt’s vehicle mere moments after receiving the report from the dispatcher. Under these circumstances, we cannot conclude that Pastian was compelled to corroborate the dispatcher’s report by following Pratt’s vehicle and waiting for a traffic violation to occur. Under the factually driven totality of the circumstances test, Pastian appropriately relied on the dispatcher’s report. Although he did not observe any erratic driving, Pastian sufficiently corroborated the information relayed by the dispatcher when he located Pratt, within moments of the dispatch, driving a white Toyota Land Cruiser with the license number as reported by Lafournaise, traveling in the direction reported by Lafournaise — north on Van Burén Street.

In adopting Villegas-Varela, we note that our decision in Lee would remain unchanged under the three-factor analysis. First, in Lee, the citizen informant was anonymous. Therefore, the informant did not subject herself to criminal and civil liability for making a false report. Second, due to the limited information that the informant provided, the dispatcher or officer could not have known if that report was based on the informant’s own personal observations. Third, the officer did not corroborate the report by observing any illegal activity or impaired or erratic driving that formed the basis of the report before making the investigatory stop.

As stated above, the issue of whether or not a particularized suspicion exists is factually driven and depends on the totality of circumstances. Information from a tip provided by a citizen informant, whether identified or anonymous, may provide the basis for an investigatory stop. The tip must be analyzed under the three factors that we adopt from Villegas-Varela to determine its reliability. Generally, tips that are less reliable, such as those provided by anonymous informants, necessarily require more corroboration on the part of the investigating officer in order to establish a particularized suspicion. In situations such as Lee, where the tip was anonymous and lacked any foundation for the informant’s opinion, the officer must corroborate the tip by observing some behavior on the part of the driver, either illegal or indicative of some impairment, that alerts the officer to a possible violation.

In Pratt’s case, for reasons discussed above, the tip was more reliable. Lafournaise identified himself to the dispatcher and stated that the tip was based on his own personal observations of Pratt’s activities that led him to believe that Pratt was driving while intoxicated. Corroboration of the tip occurred almost immediately after the dispatcher relayed the tip when Pastian came upon Pratt’s vehicle as described and initiated the investigatory stop. Here, the quality of the information or reliability was high. Thus, the tip corroborated by the officer when he found the vehicle as described was sufficient to raise a particularized suspicion, even though the officer did not observe any illegal or impaired driving on Pratt’s part before the investigatory stop.

Because Officer Pastian, acting under the facts imparted to him by the dispatcher, had a particularized suspicion that Pratt was driving under the influence of alcohol, we therefore hold that the investigatory stop of Pratt’s vehicle was justified pursuant to § 46-5-401, MCA.

Furthermore, we adopt the analysis of Villegas-Varela and conclude that the District Court did not err by denying Pratt’s motion to suppress evidence obtained as a result of Officer Pastian’s investigatory stop.

ISSUE 2

Did the District Court err in denying Pratt’s motion to dismiss the charge of felony DUI, fourth offense, for lack of jurisdiction?

A district court’s grant or denial of a motion to dismiss in a criminal case is a question of law which we review de novo. State v. Brander (1996), 280 Mont. 148, 150-51, 930 P.2d 31, 33.

Pratt argues that the District Court lacked jurisdiction because two of his prior DUI convictions should not have been considered in enhancing the current DUI charge from a misdemeanor DUI to a felony DUI, fourth offense. Pratt further argues that the 1995 amendments to § 61-8-714, MCA, constitute an ex post facto law in violation of Article II, Section 31, of the Montana Constitution, and Article I, Section 10, of the United States Constitution.

The 1995 Montana Legislature enacted revisions to Montana’s laws prohibiting driving after having consumed intoxicating amounts of alcohol. See 1995 Mont. Session Laws, Chs. 447, 546, and 567. Among other changes, the Legislature created a felony sanction for repetitive DUI offenders. A new subsection, § 61-8-714(4), MCA (1995), provided in part:

On the fourth or subsequent conviction, the person is guilty of a felony offense and shall be punished by imprisonment for a term of not less than 1 year or more than 10 years and by a fine of not less than $1,000 or more than $10,000.

In accordance with this new subsection, the Legislature amended § 61-8-714(6), MCA (formerly subsection (5)), as follows:

For the purpose of determining the number of convictions under this section, “conviction” means a final conviction, as defined in 45-2-101, in this state, conviction for a violation of a similar statute in another state, or a forfeiture of bail or collateral deposited to secure the defendant’s appearance in court in this state or another state, which forfeiture has not been vacated. An offender is considered to have been previously convicted for purposes of sentencing if less than 5 years have elapsed between the commission of the present offense and a previous conviction, unless the offense is the offender’s fourth or subsequent offense, in which case all previous convictions must be used for sentencing purposes. If there has not been an additional conviction for an offense under this section for a period of 5 years after a prior conviction under this section, then all records and data relating to the prior convictions are confidential criminal justice information, as defined in 44-5-103, and public access to the information may only be obtained by district court order upon good cause shown.

First, we address Pratt’s argument that the 1995 amendments to § 61-8-714, MCA, increase the punishment for his prior convictions and thus constitute an ex post facto law in violation of Article II, Section 31, of the Montana Constitution, and Article I, Section 10, of the United States Constitution.

In Brander, we addressed the very same ex post facto argument concerning the 1995 amendments to § 61-8-714, MCA. We held that the application of the 1995 amendments did not violate the ex post facto clauses of the Montana and United States Constitutions. Brander, 280 Mont. 148, 930 P.2d 31. The 1995 amendments neither punish Pratt for his previous convictions nor increase the penalty for any prior conviction of DUI. See Brander, 280 Mont. at 154, 930 P.2d at 35. The enhancement of Pratt’s present DUI to felony status is the punishment for a fourth DUI. In making a fourth DUI a felony, the Legislature chose to punish repetitive behavior more severely and does not act to impose a new penalty for a prior conviction.

Next, Pratt contends that the convictions of June 10,1985, and March 7, 1989, no longer exist based upon a repealed expungement provision which was in effect as part of the DUI penalty statute from 1981 to 1989. He argues that 1985 and 1989 convictions have either been removed from Pratt’s record for purposes of determining the number of convictions or have been expunged completely.

At the time of Pratt’s first two convictions, § 61-8-714(5), MCA (1985), provided in part:

An offender is considered to have been previously convicted for the purposes of this section if less than 5 years have elapsed between the commission of the present offense and a previous conviction. If there has been no additional conviction for an offense under this section for a period of 5 years after a prior conviction hereunder, then such prior offense shall be expunged from the defendant’s record.

In 1989, the Montana Legislature amended § 61-8-714(5), MCA, to provide that if, after five years, a defendant had no additional DUI convictions, the defendant’s earlier DUI conviction would no longer be expunged from his record, but rather the information relating to the prior DUI conviction would become confidential criminal justice information. Brander, 280 Mont. at 152, 930 P.2d at 33-34.

In Brander, we held that under the expungement provision any DUI conviction that occurred before October 1, 1989, and was followed by at least five years without a subsequent conviction, was expunged from a defendant’s record and could not be counted as a prior conviction for felony DUI. See Brander, 280 Mont. at 155-57, 930 P.2d at 35-37. Furthermore, in reaffirming Brander, this Court held that any pre-1989 DUI convictions which are followed by additional DUI convictions within five years are never eligible for ex-pungement. State v. Beckman (1997), [284 Mont. 459], 944 P.2d 756.

Thus, under Brander and Beckman, Pratt’s 1985 DUI conviction was not eligible for expungement from his record because less than five years had passed before his next DUI conviction in 1989. Likewise, Pratt’s 1989 DUI conviction could not be expunged from his record because he was subsequently convicted for DUI in 1991, less than the five years required for expungement under the statute.

We conclude that the District Court did not err in denying Pratt’s motion to dismiss based on ex post facto grounds. Also, we conclude that the District Court correctly considered all of Pratt’s prior convictions as the basis for felony DUI prosecution.

Affirmed.

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

      . We note that in Sharp the citizen informant was anonymous at the time the report was taken by the dispatcher. However, during the stop, the informant was identified and provided further information to the arresting officer via the dispatcher.