text:
    VIOLET SYNEK, Claimant and Appellant, v. STATE COMPENSATION MUTUAL INSURANCE FUND, Insurer and Respondent.
    No. 94-471.
    Submitted on Briefs March 9, 1995.
    Decided July 25, 1995.
    52 St.Rep. 651.
    272 Mont. 246.
    900 P.2d 884.

      For Appellant: Terry Spear, Attorney at Law, Billings.
    For Respondent: Susan C. Witte, Legal Counsel, State Compensation Insurance Fund, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Violet Synek (Synek) appeals from an order of the Workers’ Compensation Court affirming the decision of the Montana Department of Labor and Industry (Department) which denied her claim for payment for past and continuing chiropractic treatments, penalty and attorney’s fees. We affirm.

We restate the issues on appeal as follows:

1. Did the Workers’ Compensation Court err in affirming the Department’s determination that Synek’s chiropractic treatments were not compensable?
2. Were Synek’s procedural due process rights violated by the Department’s procedures?

In the course of Synek’s employment with the Professional Nursing Personnel Pool, she suffered two accidents in 1980. In October 1980, she sustained cervical, lumbar and knee injuries. A few months later, she injured her upper back, left shoulder, arm and wrist. The State Compensation Insurance Fund (State Fund) is Professional Nursing Personnel Pool’s workers’ compensation insurer.

Synek sought treatment for her injuries from Dr. J.L. Cromwell (Cromwell), a chiropractor. In 1984, Cromwell sold his practice to Dr. Karlene Berish (Berish), who continued treating Synek. The State Fund paid for Synek’s chiropractic treatments.

In correspondence with the State Fund regarding Synek’s condition in 1987, Berish stated that she was treating Synek on a “patient need basis ... for relief of pain associated with flare-ups due to a very unstable lower back.” She further indicated that Synek’s condition “continues to deteriorate” and that she was providing Synek with “palliative care ... so that [Synek] may function more comfortably on a day to day basis.”

In November 1988, the State Fund informed Berish that it would no longer pay for Synek’s chiropractic treatments. The State Fund’s decision was based on the report of Dr. Phil Blom, who, after reviewing Synek’s file, opined that the treatments she was receiving were not compensable.

Synek filed a petition with the Department for the cost of unpaid treatments and for a determination with regard to the compensability of future treatments. The Department’s hearing examiner denied Synek’s claim, concluding that the State Fund was not liable for payment of past or, in the absence of specific authorization, future chiropractic treatments by Berish. Synek sought judicial review of the Department’s decision in the Workers’ Compensation Court and the court affirmed that decision. Synek appeals.

1. Did the Workers’ Compensation Court err in affirming the Department’s determination that Synek’s chiropractic treatments Were not compensable?

It is well-settled that “[workers’ compensation benefits are determined by the statutes in effect as of the date of injury.” Buckman v. Mont. Deaconess Hospital (1986), 224 Mont. 318, 321, 730 P.2d 380, 382. Thus, the 1979 version of the Workers’ Compensation Act applies to Synek’s claim arising from injuries sustained in 1980.

Section 39-71-704, MCA (1979), provides, in pertinent part:

Payment of medical, hospital, and related services.
In addition to the compensation provided by this chapter and as an additional benefit separate and apart from compensation, the following shall be furnished:
(1) After the happening of the injury, the employer or insurer shall furnish, without limitation as to length of time or dollar amount, reasonable services by a physician or surgeon, reasonable hospital services and medicines when needed, and such other treatment as may be approved by the division for the injuries sustained.

Administrative rules regarding chiropractic services were duly promulgated to implement the “other treatment as may be approved” portion of § 39-71-704(1), MCA (1979). Those rules, and the evidence regarding the nature of Synek’s chiropractic treatments vis-a-vis those rules, form the crux of this case.

Section 24.29.2003, ARM, sets forth the type of chiropractic treatments which are compensable:

Workers’Compensation Does Pay (1) For “therapeutics” defined as: any treatment considered necessary to return the patient to a preclinical status or establish a stationary status.
(2) Rehabilitation procedures necessary for reeducation or functional restoration of a disabled body system or part.

Section 24.29.2004, ARM, sets forth the chiropractic treatments which are not compensable:

Workers’ Compensation Does Not Pay (1) For maintenance — a regime designed to provide the optimum state of health while minimizing recurrence of the clinical status.
(2) Prevent treatment — procedures necessary to prevent the development of clinical status.

Via extensive findings based on the testimony and evidence of record, the Department’s hearing examiner determined that Synek’s treatments were “maintenance” rather than “therapeutics” under §§ 24.29.2003 and 24.29.2004, ARM. On that basis, the hearing examiner concluded that the treatments were not compensable.

On petition for judicial review to the Workers’ Compensation Court, Synek argued that the hearing examiner’s decision was not supported by substantial evidence. The court concluded that substantial evidence supported the decision and affirmed the determination that Synek’s treatments were not compensable.

In reviewing an agency’s decision in a contested case procedure under the Montana Administrative Procedure Act, reviewing courts apply the standards of review contained in § 2-4-704, MCA; State Comp. Mut. v. Lee Rost Logging (1992), 252 Mont. 97, 102, 827 P.2d 85, 88. Section 2-4-704(2)(a)(v), MCA, provides that the agency’s decision may be reversed if substantial rights have been prejudiced because the agency’s findings, inferences, conclusions or decisions are clearly erroneous in view of the substantial evidence of record. Lee Rost, 827 P.2d at 88. We apply the same standard of review as did the Workers’ Compensation Court.

Synek argues that her treatments have been aimed at achieving stability and, therefore, that they are compensable “therapeutics” under § 29.24.2003, ARM, and not “maintenance” as defined in § 29.24.2004, ARM. She asserts that a patient whose condition is unstable at any point in time following the work-related injury is entitled to chiropractic treatment at the insurer’s expense. She further contends that the hearing examiner’s application of the chiropractic rules produces an absurd result which justifies reversal.

In 1987, Berish wrote to the State Fund that Synek was being treated:

as needed for temporary relief of pain. Her condition continues to deteriorate gradually and remains unstable. I am providing palliative care for her so that she may function more comfortably on a day to day basis.

Berish reaffirmed this characterization of Synek’s treatments during the hearing. She testified that her treatment of Synek’s condition was “palliative” in nature, a term she defined as offering relief from pain with no cure expected. Berish also testified that, as of November 1988, Synek had reached a state of “maximum medical improvement,” and that she did not expect further improvement in Synek’s condition.

Berish’s testimony establishes that the chiropractic treatments for which Synek seeks compensation are not compensable under the applicable administrative rules. Section 24.29.2003, ARM, authorizes payment for treatments necessary to return the patient to a preclinical status or establish a stationary status. Berish’s characterization of Synek’s condition was that it was worsening, was not expected to become preclinical and might never reach a stable condition. Thus, Berish’s testimony supports the Department’s determination that her treatments of Synek were not “therapeutics” for which workers’ compensation is available under § 24.29.2003, ARM. Indeed, Berish’s testimony that the treatments were provided “as needed,” and for “temporary relief from pain,” corresponds to the definition of “maintenance” contained in — and not compensable under — § 24.29.2004, ARM, in that the treatments were provided to optimize Synek’s state of health by relieving pain as her condition deteriorates with age. We conclude that the hearing examiner’s findings and decision were supported by substantial evidence and are not clearly erroneous.

Anticipating our conclusion that the hearing examiner’s determination is supported by substantial evidence, Synek argues that §§ 24.29.2003 and 24.29.2004, ARM, are unreasonable, lead to an absurd result and constitute an improper basis for denial of her claim. She contends that Weis v. Div. of Workers’ Compensation (1988), 232 Mont. 218, 755 P.2d 1385, supports her position. Her reliance on Weis is misplaced.

Weis involved two issues: whether the legislature, in enacting § 39-71-122, MCA (1985), intended to restrict the making of an “impairment rating” to licensed medical physicians; and whether the Division of Workers’ Compensation properly exercised its rulemaking authority in promulgating an administrative rule under that statute which restricts impairment ratings to licensed Montana physicians holding a doctor of medicine degree. We first determined that the legislature did intend to limit impairment ratings to licensed medical physicians. On that basis, we concluded that the Division’s administrative interpretation of the statute via its administrative rule corresponded to the statute and was not improper. Weis, 755 P.2d at 1387.

Synek apparently contends that our discussion of the second issue in Weis supports her argument that §§ 24.29.2003 and 24.29.2004, ARM, are unreasonable and produce an absurd result. There, we stated that we give deference to an agency’s interpretation of a statute via its administrative rules “unless the interpretation produces an absurd result.” Weis, 755 P.2d at 1387 (citations omitted). In Weis, we concluded that the administrative rule essentially mirrored the legislature’s intent in enacting the statute and, therefore, that the Division properly enacted the administrative rule at issue. Weis, 755 P.2d at 1387.

Here, unlike in Weis, the statute under which §§ 24.29.2003 and 24.29.2004, ARM, were promulgated contains broad rulemaking authority. Section 39-71-704(1), MCA (1979), authorizes compensation for “such other treatment as may be approved by the division for the injuries sustained.” The administrative rules at issue provide compensation for some types of chiropractic treatment and prohibit payment for other types of treatment. The rules, which constitute the Department’s “interpretation” of the statute, are entitled to deference unless they produce an absurd result. See Weis, 755 P.2d at 1387.

The administrative rules at issue, which include treatments of some kinds and exclude others, and which were promulgated pursuant to broad statutory language, are not facially or inherently arbitrary, capricious or unreasonable. Moreover, Synek does not articulate with any specificity the manner in which these rules produce an absurd result in this case under either the statute or the language of the rules themselves. Thus, under the general rule stated in Weis, §§ 24.29.2003 and 24.29.2004, ARM, are entitled to deference. On the basis of the record before us, we conclude that the administrative rules at issue here do not produce an absurd result.

We hold that the Workers’ Compensation Court did not err in affirming the Department’s determination that Synek’s chiropractic treatments were not compensable.

2. Were Synek’s procedural due process rights violated by the Department’s procedures?

Synek argues that she was denied due process by the Department’s procedures because of the one-year delay between the hearing and the hearing examiner’s decision. Relying on Carmichael v. Workers’ Compensation Court (1988), 234 Mont. 410, 763 P.2d 1122, she asserts that the legislature’s restructuring of the Department — including the elimination of the Division of Workers’ Compensation— precipitated this delay and constituted an impermissible retroactive application of statutes.

The issue before us in Carmichael was whether a statutory mediation requirement enacted in 1987 which, by its terms, applied to all workers’ compensation disputes regardless of when they arose, constitutionally could be applied to employment-related injuries which occurred prior to the effective date of the statute. The Workers’ Compensation Court determined that the statute was applicable and that, while the extra time required for mediation would cause some delay, the delay was not so substantial as to render application of the statute unconstitutional. Carmichael, 763 P.2d at 1126.

On appeal, Carmichael argued that retroactive application of the mediation requirement unconstitutionally impaired his contractual rights by significantly delaying his right to petition the Workers’ Compensation Court. We observed that Carmichael’s contractual workers’ compensation rights vested on the date of his injury and entitled him, as of that date, to directly petition the Workers’ Compensation Court. Carmichael, 763 P.2d at 1124. The mediation statute subsequently enacted by the legislature required exhaustion of the mediation procedure prior to filing a petition in the Workers’ Compensation Court, a delay of up to 100 days. Accordingly, we held that retroactive application of the mediation statute to Carmichael’s work-related injury substantially and impermissibly impaired his vested contractual rights. Carmichael, 763 P.2d at 1126.

In the case presently before us, no new procedure or inherent delay is contained in the legislature’s restructuring of the Department. As a result, unlike the situation in Carmichael, this case does not involve delay specifically and directly imposed by a legislatively-mandated procedural requirement. We conclude, therefore, that application of the statutes restructuring the Department does not violate Synek’s right to due process.

In a related argument, Synek requests this Court to address the question of what amount of time is “reasonable” for adjudication of a workers’ compensation petition. We decline to do so. Each workers’ compensation petition and claim presents its own unique facts and procedural history; these and other legitimate considerations properly influence the amount of time reasonably required to reach a decision. See Capers v. Flautt (S.C. App. 1991), 407 S.E.2d 660.

Finally, Synek argues that she is entitled to a 20% penalty, as well as attorney’s fees, on reversal of the Workers’ Compensation Court. Based on our conclusions herein, we need not address this argument.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, NELSON and LEAP HART concur.


source: Caselaw Access Project

author: JUSTICE WEBER

license: Public Domain

text:
    McCALIF GROWER SUPPLIES, INC., A California corporation, Plaintiff and Respondent, v. WILBUR REED, a/k/a BILL REED, d/b/a REED’S GREENHOUSE, Defendant and Appellant.
    No. 95-023.
    Submitted on Briefs May 11, 1995.
    Decided July 25, 1995.
    52 St.Rep. 659.
    272 Mont. 254.
    900 P.2d 880.

      For Appellant: Richard R. Buley, Tipp & Buley, Missoula.
    For Respondent: Bruce L. Hussey, Missoula.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a decision by the Fourth Judicial District Court, Missoula County, in favor of the plaintiff. We reverse and remand.

We consider the following issues on appeal:

I. Did the District Court err by failing to address defendant’s counterclaim for consequential and incidental damages?

II. Did the District Court err in awarding plaintiff attorney fees because defendant should have been awarded judgment and neither statutes nor contract call for such an award?

Plaintiff and respondent, McCalif Grower Supplies, Inc. (McCalif) is a California broker which provides the supply and shipping of plants from growers to wholesale greenhouses. Defendant and appellant, Wilbur Reed (Reed) operates a small greenhouse in Missoula, Montana known as Reed’s Greenhouse. McCalif and Reed had been involved in a business relationship for approximately 10 years. Reed would put in an order and McCalif would purchase the plant materials from growers and have the growers ship the plants to its customers such as Reed.

Reed had received orders from various retail outlets such as K-Mart and Ernst for Christmas poinsettias. On June 2, 1992, Reed then ordered poinsettia cuttings from McCalif. Reed ordered 10% more plants than the total number ordered from it by its various retail customers.

Upon receiving Reed’s order, McCalif ordered the plants from Chipsea Greenhouses in Lafayette, Colorado which directly shipped them to Reed. The shipment of poinsettia cuttings were received by Reed on August 11,1992. When accepting the shipment at the airport, a Reed employee could find no damage to the boxes containing the cuttings. However, when the boxes were opened, it was clear that many of the poinsettias were ruined because they had not been packed properly and were subsequently damaged. Poinsettias are unstable and tender plants and any damage will cause delayed maturity or will kill them.

Reed reported the damage within 24 hours to McCalif. McCalif told Reed to file a claim with the carrier, Delta Airlines. Reed filed a claim and received $924.66 compensation from Delta. McCalif also informed Reed that because it was so late in the season, it could not provide replacement plants to Reed.

Reed refused to pay $3,027.09 for the marketable plants, contending that he had lost $8,683.95 on the sale of the unmarketable plants and was entitled to offset the amount owed against his damages. Reed also testified that he lost the contracts with three Ernst stores when Reed failed to supply them according to their contracts.

McCalif filed an action against Reed for payment of the money due it for the poinsettias. Reed answered denying that he owed any amount to McCalif and counterclaimed against McCalif for incidental and consequential damages under the Uniform Commercial Code (hereinafter UCC) because of McCalif’s failure to deliver according to their contract.

A non-jury trial was held on September 6, 1994, and the District Court entered its findings and conclusions on September 7, 1994, in which the court ordered Reed to pay McCalif $3,223.56 and awarded attorney fees to McCalif in the amount of $510.

Reed then moved to amend the findings and conclusions because of the failure of the District Court to consider his counter claims. The District Court entered an amended judgment, which did not grant relief to Reed but did award interest at 10% to McCalif.

Reed appeals from the amended judgment.

I.

Did the District Court err by failing to address defendant’s counterclaim for consequential and incidental damages?

Reed argues that McCalif breached the warranties of merchantability and fitness for a particular purpose by not sending the ordered poinsettias. Reed further contends that McCalif cannot waive or limit these warranties after the sale has taken place. According to Reed, our statutes put the risk of liability on the seller until the goods are accepted by the buyer. Reed argues that he rejected the shipment within 24 hours and is not responsible legally to pay for the rejected shipment.

McCalif argues that Reed did not reject the goods until November 27, 1992, a date too far removed from the August delivery date to be an effective refusal of the goods. Further, McCalif argues that as the seller it is not liable for damage to the goods as long as it delivers them safely to the carrier. McCalif also contends that its contract with Reed specifically limits the warranties for a particular purpose and merchantability.

The District Court made the following Findings of Fact which are essentially controlling in this case:

4. Reed’s Greenhouse contacted McCalif in June, 1992, and placed an order for poinsettia cuttings. Their order specified the variety selection, quantity, size, date of shipment and the shipping method for a total price of $4,475.60. The order was processed immediately and the cuttings ordered from Chipsea, Inc., of Lafayette, Colorado for shipment on August 10,1992.
5. The Reeds received the shipment on August 11, 1992. At the time of receiving the shipment, Reed’s driver, Jeff Hausauer, did not see any obvious damage to the boxes which contained the poinsettias. "When the poinsettias were taken to Reeds Greenhouse and opened, it was apparent that several of the red poinsettias were ruined. Jeff Hausauer testified that the poinsettia flats were not packed in the shipping crates with materials that would keep the flats from moving and disturbing the plant materials. The damage to the plants is through the negligence of the shipper and the carrier and not the fault of Defendant Reed.
6. When it was apparent that there was no way to save several hundred of the red poinsettias, Maria Reed called McCalif to inform them of the damage. The agent of McCalif to whom Maria Reed spoke informed her that there were no red poinsettias available to replace the damaged plants, but they may have been able to find some white poinsettias. However, since eighty (80%) of the market for poinsettias during the holidays is for red poinsettias, that was unacceptable. Maria Reed was further informed by McCalif to file a claim with Delta Airlines for the damages, which Reeds did.
7. The Defendant received compensation from Delta Airlines in the amount of $924.66 — $720 for plant damage and $204.66 for shipping refund.
8. There was no written contract between the parties which limited McCalif’s liability or in any way waive or exclude the implied warranties of fitness for a particular purpose and implied warranty of merchantability. ...
9. Defendant Reed ordered a total of eight thousand twenty poinsettias (8,020) from Plaintiff McCalif. Six thousand three hundred seventy (6,370) of those plants were of the red variety (See Exhibit 1). Two thousand two hundred one (2,201) of the six thousand three hundred seventy (6,370) red poinsettias were damaged to the extent they could not be sold, leaving Defendant Reed only four thousand one hundred sixty-nine (4,169) red poinsettias. Defendant Reed had five thousand eight hundred nineteen (5,819) marketable plants for the Christmas season.

The District Court then calculated the value of the undamaged 5,819 poinsettias at a total of $3,027.09 plus box and drayage charges of $196.47.

We have reviewed the record, including the transcript, and conclude that there is substantial, largely uncontradicted evidence which supports each of the above described findings of fact. This Court will uphold findings of a trial court if they are not clearly erroneous. Anderson v. Johnson (1994), 264 Mont. 66, 870 P.2d 59. Our next step is to apply the above-described findings of fact to the law of the case. We note that the District Court did not consider the counter claims on the part of Reed, but only entered conclusions of law which awarded damages to McCalif in the amount of $3,223.56, computed as above set forth. It is clear that this transaction is subject to the Uniform Commercial Code, Title 30, chapter 2. The following code section establishes the general obligation of the parties:

30-2-301. General obligation of parties. The obligation of the seller is to transfer and deliver and that of the buyer is to accept and pay in accordance with the contract (Emphasis added.)

It therefore was the obligation of McCalif to transfer and deliver the poinsettias to Reed.

With regard to Reed’s right to reject a portion of the poinsettias, the following section provides:

30-2-601. Buyer’s rights on improper delivery.... if the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may:
(a) reject the whole; or
(b) accept the whole; or
(c) accept any commercial unit or units and reject the rest.

The record demonstrates that Reed accepted a portion of the commercial units of poinsettias and rejected the rest. The record further demonstrates, without contradiction, that Reed notified McCalif within 24 hours.

With regard to warranty the UCC states:

30-2-314. Implied, warranty — merchantability—usage of trade. (1) ... a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. ...

McCalif as seller therefore impliedly warranted that the plants were merchantable and fit for their particular purpose, which was planting in order to resell to retail outlets. While these warranties may be limited if there is an exclusion in writing, the District Court found there was no such written agreement between the parties as mentioned in finding of fact 8. In addition, the following warranty section is applicable:

30-11-217. Warranty when thing cannot be examined by buyer. One who sells or agrees to sell merchandise inaccessible to the examination of the buyer thereby warrants that it is sound and merchantable.

As a result McCalif warranted to Reed that the plants were sound and merchantable.

The extent of Reed’s damages is specified in the following section:

30-2-713. Buyer’s damages for nondelivery or repudiation. (1)... the measure of damages for nondelivery or repudiation by the seller is the difference between the market price at the time when the buyer learned of the breach and the contract price together with any incidental and consequential damages provided in this chapter (30-2-715), but less expenses saved in consequence of the seller’s breach. (Emphasis supplied.)

The pertinent part of the above-referenced section on consequential damages is the following:

30-2-715. Buyers incidental and consequential damages.
(2) Consequential damages resulting from the seller’s breach include:
(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and
(b) injury to person or property proximately resulting from any breach of warranty.

The record shows without contradiction that there was no other source for replacement of the damaged poinsettias (cover as referred to in the UCC). The record also shows that these elements were discussed between McCalif and Reed.

We therefore conclude that based upon the record before us, and the findings of fact of the District Court, Reed is entitled to damages for nondelivery or repudiation by McCalif which includes the difference in the market price mentioned in the statute as well as the incidental and consequential damages. The record does demonstrate that Reed proved that he would have been paid $3.95 per plant and that as aresulthe claimed damages in the sum of $8,693.95. Reed argues that judgment should be entered in his behalf in that amount. We point out that the record does not demonstrate whether or not there were any “expenses saved in consequence of the seller’s breach” on the part of Reed. We may assume there would have been some cost in raising the plants from August to December and that additional evidence may be required in order to determine any such offset.

We reverse the judgment for McCalif and remand for a determination by the District Court of the amount owing to Reed under its counter claim, including such consequential and incidental damages as the court determines to be appropriate, and the entry of the appropriate judgment balancing the awards to McCalif and Reed.

II.

Did the District Court err in awarding plaintiffs attorney fees because defendant should have been awarded judgment and neither statutes nor contract call for such an award?

Our review of the record indicates there is not a written contract which provides for the award of attorney fees. In addition no statute has been called to our attention which provides for attorney fees.

We therefore reverse the award by the District Court of attorney fees to McCalif.

Reversed and remanded for the determination of damages to the parties as previously specified.

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


author: JUSTICE WEBER JUSTICE LEAPHART JUSTICE NELSON

text:
    WENDI BRUNER, Plaintiff, Appellant, v. YELLOWSTONE COUNTY, A BODY POLITIC, YELLOWSTONE COUNTY ATTORNEY, DENNIS PAXINOS, SR., MICHAEL S. MATTHEW, H. ELWOOD ENGLISH, AND ITS FORMER DEPUTY COUNTY ATTORNEY, DAVID W. HOEFER, Defendants, Respondents.
    No. 95-026.
    Submitted on Briefs April 27, 1995.
    Decided August 3, 1995.
    52 St.Rep. 699.
    272 Mont. 261.
    900 P.2d 901.

      For Appellant: A. Clifford Edwards, Roger W. Frickle, Edwards Law Firm, Billings.
    For Respondents: Carey E. Matovich, Matovich, Addy & Keller, Billings.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from grant of summary judgment to the defendants by the Thirteenth Judicial District Court, Yellowstone County. We affirm.

The following issue is dispositive of the case:

Did the District Court err in granting summary judgment on the issues of negligent retention and sexual harassment?

Plaintiff, Wendi Bruner was employed as a secretary by the Yellowstone County Attorney’s Office from August of 1991 until she tendered her resignation on April 8,1992. In her resignation, plaintiff claimed that she had been continually sexually harassed by then Deputy County Attorney David Hoefer.

On April 9,1992, County Attorney Dennis Paxinos hired a private investigator to investigate plaintiff’s allegations and pending the investigator’s findings, suspended Hoefer with pay. The investigator concluded that the charges were warranted and Paxinos then terminated Hoefer without pay on May 19, 1992.

In its Memorandum and Order, the District Court pointed out that Hoefer began grievance procedures against the County and on May 22, 1992, the Board of County Commissioners conducted a preliminary hearing and on that date negotiated a compromise settlement with Hoefer. On June 1, 1992, Hoefer executed a release and settlement agreement with the County which provided that Hoefer tendered his voluntary resignation effective May 19, 1992 and released any and all claims between Yellowstone County and himself in return for $30,000 in settlement. While the $30,000 settlement was reported in the media, the settlement agreement contained a confidentiality clause and terms were not released to the public until after the County officials were compelled to release the documents.

On September 1, 1993, plaintiff filed a complaint with the Equal Employment Opportunity Commission, which rejected the claim as untimely, but issued a right to sue letter. On the same date the plaintiff filed a complaint of sexual harassment with the Montana Human Rights Commission (MHRC). In January, 1994, MHRC considered the length of delay in filing, but concluded that the statute of limitations was tolled on an equitable estoppel theory and that plaintiff’s claim was timely made. MHRC dismissed the plaintiff’s complaint without prejudice but did not issue a right to sue letter.

On April 1, 1994, plaintiff filed her First Amended Complaint in Yellowstone County District Court charging the defendants with negligent retention and sexual harassment and charging Hoefer with battery as well. Following two motions for summary judgment, the District Court held a hearing and thereafter issued its order on November 25, 1994, granting summary judgment to the defendants on all counts. Plaintiff appeals this order.

Standard of Review

The standard of review for a grant of summary judgment is well settled in Montana. This Court will apply the same evaluation as the district court based upon Rule 56, M.R.Civ.P. The movant must demonstrate that no genuine issues of material fact exist. Toombs v. Getter Trucking, Inc. (1993), 256 Mont. 282, 846 P.2d 265. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. S.M. v. R.B. (1993), 261 Mont. 522, 862 P.2d 1166. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. Lindey’s, Inc. v. Professional Consult ants, Inc. (1990), 244 Mont. 238, 797 P.2d 920. We review the legal determinations made by a district court as to whether the court erred. Matter of Estate of Alcorn (1994), 263 Mont. 353, 868 P.2d 629.

ISSUE

Did the District Court err in granting summary judgment on the issues of negligent retention and sexual harassment?

The District Court concluded that the exclusive remedy for injury occasioned by this type of conduct is to be found in the Montana Human Rights Act under § 49-2-509(7), MCA. Reference was made to Harrison v. Chance (1990), 244 Mont. 215, 797 P.2d 200, which so holds. The court further concluded that plaintiff had failed to bring her claim in a timely fashion under the relevant statutes whether the 180 day statute or the 300 day statute be applied. Plaintiff had failed to bring a claim for more than 487 days. The District Court referred to the following allegation in the verified complaint of the plaintiff before the MHRC:

I knew that I had legal rights available to me to sue the County, however, I was willing to forego those rights on condition that Mr. Hoefer be removed from his employment and would never be in a position to sexually harass a secretary again.

Plaintiff contends the defendants are directly liable to her for negligence in retaining Hoefer, independent of Hoefer’s sexually harassing conduct. Plaintiff argues that the defendants knew of Hoefer’s conduct toward women but did nothing and that had the defendants acted responsibly, she would not have been injured by Hoefer.

Defendants contend that plaintiff cannot bring a tort action for negligent retention because it is still a tort action which was derived from Hoefer’s sexual harassment and that plaintiff’s sexual harassment claim is barred due to its untimeliness.

As the moving parties for summary judgment, the defendants had to show a complete absence of any genuine issues of fact deemed material in light of substantive principles that entitle that party to judgment as a matter of law. S.M., 862 P.2d at 1168. The defendants contend they satisfied that burden by showing that no material facts existed which would provide a cause of action against the County. Plaintiff also relies upon the letter sent by the County Attorney to Hoefer on May 19, 1992, following her resignation and the independent investigation. The letter contained the following paragraph with regard to Hoefer:

Specifically you were warned by both Chief Deputy Daniel Schwarz and myself [Paxinos] that your expectation that [Wendi] accompany you to all your court matters had been overdone. We further warned you that you were alienating [Wendi] from the rest of the staff... You were specifically requested to attend a seminar dealing specifically with sexual harassment, which you did. Chief Deputy Schwarz and myself gave you specific instructions to neither take breaks nor have lunch with [Wendi] alone. You were specifically instructed that there should always be at least one other support staff person or fellow attorney to protect both yourself and [Wendi] from any allegations of misconduct or inappropriate behavior.

While this letter suggests the possibility that the County Attorney had knowledge of Hoefer’s conduct prior to the date of his dismissal, such facts are not material to the resolution of the summary judgment issue. Summary judgment is appropriate where a plaintiff fails to set forth facts which would establish each element of the alleged cause of action. Dvorak v. Matador (1986), 223 Mont. 98, 727 P.2d 1306. Plaintiff merely argues that the defendants knew before her resignation that Hoefer was causing problems. In itself that letter fails to establish the elements of the tort of negligent retention.

The letter does demonstrate that the defendants had taken steps to eradicate unprofessional behavior on Hoefer’s part. Plaintiff failed to rebut the elements of the affidavit of the County Attorney which established that as soon as the County Attornéy was notified by the plaintiff that a problem existed, Hoefer was suspended and investigated. The affidavit establishes without contradiction that Hoefer never worked a day after the plaintiff resigned. Plaintiff failed to set forth any facts demonstrating actual notification to the defendants about Hoefer’s behavior until she actually resigned.

The key question is whether plaintiff could have recovered for negligent retention as a matter of law. The District Court relied on Harrison for the proposition that the exclusive remedy for any complaint arising from sexual harassment is § 49-2-509(7), MCA. Plaintiff argued that her action against the County was not based upon sexual harassment. Our more recent holding of Hash v. U.S. West Communication Services (1994), 268 Mont. 326, 886 P.2d 442, at page 445-46 held:

Hash asserts that timely filing of a discrimination claim with the HRC is not a prerequisite to filing with the district court. We previously have resolved this issue against Hash’s position. In Harrison v. Chance (1990), 244 Mont. 215, 797 P.2d 200, we held that the Act provides the exclusive remedy for sexual discrimination claims. We did so on the basis that a 1987 legislative amendment made the Act the exclusive remedy for sexual discrimination. We held that the “statutory procedures for discrimination are exclusive remedies and cannot be bypassed.” Harrison, 797 P.2d at 203. Like the plaintiff in Harrison, Hash chose to file a discrimination claim in district court without first timely filing her complaint with the HRC.
The Legislature clearly intended that the Act be the exclusive remedy for discrimination claims. We adopted this intent in Harrison and maintain it in the instant case. To permit parties to delay filing with the HRC until the HRC filing time ran out and then file their claims directly in district court would, in a sense, gut the Act. We reaffirm our decision that the HRC is the exclusive remedy for Hash’s discrimination claim. (Emphasis supplied.)

In Harrison, this Court further considered claims for intentional infliction of emotional distress and outrage arising from the charges of sexually explicit conduct and also theories of wrongful discharge and breach of the implied covenant of good faith and fair dealing. In our present case, plaintiff has charged the defendants with negligent retention of Hoefer. At that point, the following statement in Harrison is pertinent:

As in this case, any claim based upon sexual harassment can be framed in terms of numerous tort theories. The legislature expressed its intent that the Commission provide the exclusive remedy for illegal discrimination when it enacted subsection (7) of § 49-2-509, MCA. To allow such recharacterization of what is at heart a sexual discrimination claim, would be to eviscerate the mandate of the Human Rights Commission.

Harrison, 797 P.2d at 200. Plaintiff contends that the tort she charged has nothing to do with Hoefer’s sexual harassment. Clearly that is not a proper conclusion. If the sexual harassment were removed from the factual picture, plaintiff would have no tort claim. Because the sexual harassment is at the foundation of her claim of negligent retention, the only remedy she has is in the Montana Human Rights Act, §§ 49-2-101 et seq., MCA. We conclude that the holdings of Hash and Harrison are controlling and that the exclusive remedy for the claimed negligent retention of Hoefer and sexual harassment by Hoefer is to be found in the Montana Human Rights Act.

Section 49-2-501, MCA, required plaintiff to file her claim with the MHRC within 180 days, or if a grievance is filed first, 300 days. Plaintiff failed to file her claims within those periods of time. Plaintiff attempts to argue that she agreed not to file charges if the County would fire Hoefer and he could not harass other women. She became frustrated when she learned that the County had paid Hoefer $30,000, and then instituted these proceedings.

Plaintiff has failed to demonstrate any contract or agreement on the part of the defendants which was breached in connection with Hoefer. Plaintiff resigned on April 8, 1992, and raised to the County Attorney the issue of inappropriate behavior by deputy Hoefer. The County Attorney suspended Hoefer on April 9, 1992, and Hoefer did not work for Yellowstone County after that time.

It is true that the MHRC eventually determined that the statutory filing time should be tolled on a theory of equitable estoppel. However, the District Court specifically considered this issue and concluded that equitable estoppel did not apply so that the complaint was untimely filed.

Equitable estoppel is not favored and will be sustained only upon clear and convincing evidence. Ducham v. Tama (1994), 265 Mont. 436, 877 P.2d 1002. To constitute equitable estoppel, there must be conduct amounting to representation or concealment of material facts; these facts must be known to the party estopped at time of conduct; truth concerning these facts must be unknown to the other party claiming benefit of estoppel at the time it was acted upon; conduct must be done with intention, or at least with expectation that it will be acted upon by the other party; conduct must be relied upon by the other party and the other party must in fact act upon it in such a manner as to change his position for the worse. Kephart v. Portmann (1993), 259 Mont. 232, 855 P.2d 120.

Nothing in the record indicates that the County failed to carry through any representations to plaintiff. Hoefer did not work following the filing of plaintiff’s resignation. Plaintiff resigned as of the end of April in 1992, yet it was not until the end of May 1992 that the Commissioners decided to pay Hoefer to resign voluntarily without filing an action against the County. Thus, there never was any representation to plaintiff that the County would not pay Hoefer money to disappear. Plaintiff never relied, to her detriment, on anything that the County said. Therefore, the District Court was correct when it determined that plaintiff did not meet the requirements of equitable estoppel.

We hold that the District Court was correct in concluding that plaintiff had failed to bring her claims in a timely fashion under the appropriate statutes and that she had failed to prove equitable estoppel.

We affirm the conclusion of the District Court that the exclusive remedy for plaintiff’s complaint was under the provisions of the Montana Human Rights Act and that she failed to demonstrate any basis for the application of the tort of negligent retention. We further affirm the conclusion of the District Court that equitable estoppel did not apply and that as a result plaintiff had failed to meet the statutory deadlines. We hold the District Court correctly granted summary judgment to the defendants.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY and NELSON concur.

JUSTICE LEAPHART

dissenting.

I dissent. For reasons outlined below, I would recognize the tort of negligent retention in Montana and reverse the grant of summary judgment.

The tort of negligent retention:

arises when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his [or her] unfitness, and the employer fails to take further action such as investigating, discharge, or reassignment. Yunker [v. Honeywell], 496 N.W.2d [419] 423 (quoting Garcia v. Duffy, 492 So.2d 435, 438-39 (Fla.Dist.Ct.App. 1986)).

ML v. Arndt (Minn. App. 1995), 531 N.W.2d 849, 857 (employee that had previously shot a co-worker and showed aggression towards coworkers was retained). In Vollmer v. Bramlette (1984), 594 F.Supp. 243, the Federal District Court for the District of Montana concluded that an employer has a duty to protect his or her employees from foreseeable employee-caused harms. That court concluded that in the negligent hiring context, “the question of foreseeability, such as which would give rise to a duty of the employer, is a question of fact not properly disposed of by summary judgment.” Vollmer, 594 F.Supp. at 248.

The basis of responsibility under the doctrine of negligent hiring is the master’s own negligence in hiring or retaining in his employ an incompetent servant whom the master knows or by the exercise of reasonable care should have known was incompetent or unfit and thereby creating an unreasonable risk of harm to others.

Estate of Arrington v. Fields (Tex. Civ. App. 1979), 578 S.W.2d 173, 178.

The District Court in the case at hand, found that Bruner’s claim for negligent retention was founded in unrelenting sexual harassment during her employment and that the exclusive remedy for this type of conduct (sexual harassment) is found in the Montana Human Rights Act. I disagree. Exclusivity only applies if the two remedies share indispensable elements. Sexual harassment under the HRA and negligent retention do not share indispensable elements. The HRA requires proof of discrimination. The tort of negligent retention does not.

In Retherford v. AT&T Communications of the Mountain States, Inc. (Utah 1992), 844 P.2d 949, the plaintiff alleged, among other claims, that AT&T negligently employed several employees who harassed her. The court analyzed whether Utah’s Anti-Discriminatory Act (UADA) provided the exclusive remedy for her claims. The court adopted the indispensable element test as the analytical model to determine whether a statutory cause of action forecloses a common law remedy. Retherford, 844 P.2d at 963. Applying the test, the court first identified the injury that the statute was designed to address. Retherford, 844 P.2d at 965. Second, the court examined the elements of the plaintiff’s tort claims to determine whether any element of the claim was a necessary element of the statutory cause of action. Retherford, 844 P.2d at 965. That court concluded that the UADA addressed employment discrimination against members of specified protected groups. The court found that:

[njoticeably absent from the list of the indispensable elements of the four claims [one of which was negligent employment] is an injury that is a target of the UADA: retaliation for complaints of sexual harassment. While it is true that all four claims arise out of defendants’ retaliatory conduct, preemption depends on the nature of the injury, not on the nature of the conduct allegedly responsible for that harm.

Retherford, 844 P.2d at 967.

I would apply the two-part test from Retherford to the instant case. First, the injuries addressed by the Montana Human Rights Act (HRA) include various employment-related discriminatory acts. Second, the elements of Bruner’s tort, negligent retention, require that Bruner prove that Yellowstone County’s “negligence in hiring, supervising, or retaining its employees [Hoefer] proximately caused her harm.” See Retherford, 844 P.2d at 967. The HRA does not address negligent retention of an employee who harasses or discriminates against another employee. Rather, the HRA focuses on the discriminatory acts of the employer which directly impact upon the injured employee. The HRA provides in relevant part that:

(1) It is an unlawful discriminatory practice for:
(a) an employer to refuse employment to a person, to bar a person from employment, or to discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, creed, religion, color, or national origin or because of age, physical or mental disability, marital status, or sex distinction[.]

Section 49-2-303(l)(a), MCA.

If Bruner were alleging that Yellowstone County was harassing or discriminating against her then she would have a claim under the HRA and any common law harassment and discrimination claims against Yellowstone County would be preempted. Likewise, a claim against the County based upon Hoefer’s harassing conduct would merely be derivative in nature and would be preempted. However, here, Bruner is suing Yellowstone County, not for Hoefer’s conduct, but for the County’s own negligence in retaining Hoefer in a position where, given his prior history of harassing other women, it was foreseeable that he would harass Bruner.

The claim for negligent retention focuses on Yellowstone County’s failure to terminate Hoefer once it learned that Hoefer was harassing women employees — i.e. Bruner’s predecessors. The factual basis of the negligent retention claim against Yellowstone County started before Bruner was even hired. Bruner presented deposition testimony from the county attorney indicating that he was concerned that Bruner’s two predecessors would file constructive discharge claims against the County based upon Hoefer’s conduct towards them. This testimony certainly raises a question of fact as to the County’s prior knowledge (i.e. foreseeability) sufficient to defeat a motion for summary judgment on the claim of negligent retention.

The HRA addresses discrimination against an employee as opposed to negligence in hiring or retaining an employee. Burner’s claim of negligent retention is not premised upon discrimination. Secondly, her claim is based upon the County’s own actions, not those of Hoefer. Thus, her claim of negligent retention is not preempted by the HRA and is not controlled by the time constraints of § 49-2-501, MCA, which requires filing with the HRA within 180 days or with the EEOC within 300 days.

I would reverse the District Court’s grant of summary judgment on the question of negligent retention. I do not believe that the claim of negligent retention was preempted by the HRA nor do I believe that the claim of negligent retention is subject to the filing deadlines of the HRA.

JUSTICES HUNT and TRIEWEILER join in the foregoing dissenting opinion.

JUSTICE NELSON

specially concurs.

I concur with the result reached in our opinion because I am satisfied that application of our decision in Harrison v. Chance (1990), 244 Mont. 215, 797 P.2d 200, mandates that result. I do not, however, read our opinion as a refusal to recognize the tort of negligent retention in a case involving different underlying facts. As far as I am concerned, that issue remains to be decided in the future.


author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. LOREN ROBERT BAKER, Defendant and Appellant.
    No. 94-335.
    Submitted on Briefs June 29, 1995.
    Decided August 4, 1995.
    52 St.Rep. 735.
    272 Mont. 273.
    901 P.2d 54.

      For Appellant: Loren R. Baker, Deer Lodge, Pro Se.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Patricia Jordan, Ass’t Attorney General, Helena; Mike McGrath, Lewis and Clark County Attorney, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

Loren Robert Baker (Baker), pro se, appeals from the Decision and Order of the First Judicial District Court, Lewis and Clark County, denying his petition for post-conviction relief. We affirm.

Background

As a result of a jury trial, Baker was convicted on June 21, 1990, of robbery, reckless driving and carrying a concealed weapon. He was subsequently sentenced to serve a total of 36 years in prison and was designated a dangerous offender for parole eligibility purposes. We affirmed Baker’s conviction on appeal in State v. Baker (1991), 249 Mont. 156, 815 P.2d 587, and reference is made to our decision in that case for further background information. The Montana Sentence Review Board affirmed Baker’s sentence on August 21, 1992.

Baker filed his petition for post-conviction relief on January 6, 1994, alleging ineffective assistance of counsel. In his petition Baker claimed that his counsel: (1) failed to litigate issues concerning an alleged illegal search, an alleged compelled self-incrimination, and the admission of other crimes evidence; (2) failed to raise other possible defenses; (3) failed to prevent the use of evidence of past behavior at sentencing; and (4) failed to request a hearing pursuant to § 46-18-222, MCA, regarding his mental condition.

In accordance with our decision in Petition of Gillham (1985), 216 Mont. 279, 704 P.2d 1019, the State moved for and obtained orders requiring Baker’s trial counsel to respond to the claims of ineffective assistance of counsel. After briefing and the consideration of various documents and the responses of counsel, but without an evidentiary hearing, the District Court denied Baker’s petition on May 20,1994. Baker appeals.

Further facts are set forth in our following discussion as necessary to dispose of the issues raised.

Issues

In his opening brief, Baker raises twenty-five issues (Baker’s issues) which we simply reiterate here as follows:

1. Whether an exception should be made to allow application of exclusionary rule to testimony of private individuals whose felonious conduct was first-aggression assault causing injury to the accused and whose subsequent search produced no physical evidence of alleged theft?
2. Whether merchant violation of standards of reasonableness in his treatment of a customer voids his right to assert a shoplifting claim?
3. Whether a strong showing of probable factual innocence of theft is reasonable doubt of guilt of robbery which merits relief?
4. Whether the state has denied Baker the equal protection of the laws?
5. Whether the state has denied Baker speedy remedy for injury of person and the administration of right and justice?
6. Whether the trial court errored [sic] and denied due process of law by precluding pretrial motions and evidentiary hearing from defense trial counsel?
7. Whether officer’s testimony of Baker’s admissions was evidence obtained from interrogation where officers compelled self-incrimination in absence of counsel, and the inadmissible testimony should have been suppressed?
8. Whether counsel was deficient in omission to perform pretrial investigation of plausible defenses?
9. Whether state procedural default of timely notice requirements prejudiced the defense with indefensible surprise?
10. Whether indefensible surprise from untimely notice compelled self-incrimination from the defendant?
11. Whether indefensible surprise shifted the burden of proof to the defense and unlawfully negated the state’s responsibility to prove every element of crime beyond reasonable doubt?
12. Whether evidence of past acts and offenses prejudiced the jury?
13. Whether the state is required to meet the standards cited in its notice and omission to do so is unfair to the defense?
14. Whether the principles of fundamental fairness require the Just standards to be met, prerequisite to admission of evidence of past acts or offenses, regardless of what rule of procedure the evidence is introduced under?
15. Whether defense evidence was prejudicially suppressed?
16. Whether the Presentence Investigation Report is biased and contributed to prejudicial sentencing?
17. Whether Baker was deprived of fair hearing and consideration of mitigating circumstances for lesser sentence?
18. Whether the dangerous designation was improperly imposed?
19. Whether state default at trial prejudiced sentencing?
20. Whether it is an unjust succession of sentence to upon release from prison incarcerate Baker in the county jail for one year: where this would reverse earned custody reductions, would be contrary to rehabilitative processes, and would cause breach of family relationships?
21. Whether Baker’s sentence is cruel punishment?
22. Whether defense counsel’s performance was deficient, and the deficient performance prejudiced the defense?
23. Whether conviction was obtained through malicious prosecution?
24. Whether prejudicial error occurred when prosecution raised prior conviction for carrying a concealed weapon and rose [sic] issue of defendant’s failure to obtain concealed weapon permit?
25. Whether defendant’s testimony at trial was inadmissible, and his decision to testify was incompetent, because of mental impairment; and, whether these facts merit reversal?

For purposes of convenience and our discussion we adopt the following issues as proposed by the State:

1. Whether Baker’s issues 2-6, 13-14, 16, 18-21, 23 and 25 are procedurally barred for failure of Baker to raise them in his original petition in District Court?

2. Whether Baker’s issues 1, 7, 9-14, 17 and 19 are procedurally barred for failure of Baker to raise them in his direct appeal?

3. Whether Baker’s issues 10-14 and 24 are barred by the doctrine of res judicata?

4. Whether Baker received effective assistance of counsel?

Standard of Review

We review the District Court’s denial of a petition for post-conviction relief to determine whether substantial evidence supports the findings and conclusions of the court. Walker v. State (1993), 261 Mont. 1, 6, 862 P.2d 1, 4 (citing State v. Coates (1990), 241 Mont. 331, 336, 786 P.2d 1182, 1185). We will not overturn the court’s legal conclusions if the tribunal’s interpretation of the law is correct. Wagner v. State (1995), [270 Mont. 26], 889 P.2d 1189, 1190 (citing Eiler v. State (1992), 254 Mont. 39, 42, 833 P.2d 1124, 1126).

Discussion

1. Whether Baker’s issues 2-6, 13-14, 16, 18-21, 23 and 25 are procedurally barred for failure of Baker to raise them in his original petition in District Court?

Section 46-21-105(1), MCA, provides:

All grounds for relief claimed by a petitioner under 46-21-101 must be raised in the original or amended petition. Those grounds for relief not raised are waived unless the court on hearing a subsequent petition finds grounds for relief that could not reasonably have been raised in the original or amended petition.

Baker’s petition filed in District Court was premised upon his claim that he did not receive effective assistance of counsel; it was on that basis that the court denied his petition. Baker’s issues 2-6,13-14, 16, 18-21, 23 and 25, were not raised in his original petition filed in District Court, but are, instead, raised for the first time in this appeal.

Under the clear and unambiguous language of § 46-21-105(1), MCA, Baker’s issues 2-6, 13-14, 16, 18-21, 23 and 25, have been waived and are procedurally barred from being raised inasmuch as these issues were not raised in Baker’s original petition. Moreover, this being a direct appeal from the District Court’s Decision and Order denying post-conviction relief under § 46-21-203, MCA, we will decline to consider issues not first raised in the trial court. Section 46-20-701, MCA; Rule 2(a), M.RApp.P.; State v. McColley (1991), 247 Mont. 524, 528, 807 P.2d 1358, 1361.

Accordingly, we will not consider Baker’s issues 2-6, 13-14, 16, 18-21, 23 and 25, further.

2. Whether Baker’s issues 1, 7, 9-14, 17 and 19 are procedurally barred for failure of Baker to raise them in his direct appeal?

Section 46-21-105(2), MCA, provides:

When a petitioner has been afforded a direct appeal of the petitioner’s conviction, grounds for relief that could reasonably have been raised on direct appeal may not be raised in the original or amended petition.

Under this statute, a petitioner, like Baker, who has been afforded a direct appeal of his conviction may not raise in a post-conviction petition grounds for relief that he could reasonably have raised in his direct appeal. McColley, 807 P.2d at 1361. Moreover, we have held that the procedural bar applies to issues which were not properly preserved at the trial level for appeal. State v. Gorder (1990), 243 Mont. 333, 792 P.2d 370.

Here, Baker could reasonably have preserved his issues 1, 7, 9-14, 17 and 19, on their merits by first raising them in District Court. Having failed to do so the sole issue which he may now raise is one of ineffective assistance of counsel, by reason of the failure of counsel to preserve those issues.

Unless a post-conviction petitioner can demonstrate a fundamental miscarriage of justice (which Baker has failed to do here), we will consistently apply the procedural bar. See, Eiler; Petition of Evans (1991), 250 Mont. 172, 819 P.2d 156; McColley; Duncan v. State (1990), 243 Mont. 232, 794 P.2d 331; Tecca v. McCormick (1990), 246 Mont. 317, 806 P.2d 11; Petition of Martin (1989), 240 Mont. 419, 787 P.2d 746.

Accordingly, we conclude that Baker’s issues 1, 7, 9-14,17 and 19, are procedurally barred under § 46-21-105(2), MCA, as having not been raised on direct appeal.

3. Whether Baker’s issues 10-14 and 24 are barred by the doctrine of res judicata?

In his direct appeal, Baker raised, and we decided against him, the issue of whether the trial court erred when it allowed the State to offer testimony of prior crimes and alleged acts. Baker, 815 P.2d at 589. Baker contended that the evidence relating to the prior aggressive acts was inadmissible because it failed to conform to Rule 404(b), M.R.Evid., and State v. Just (1979), 184 Mont. 262, 602 P.2d 957. Baker, 815 P.2d at 589. In support of his appeal, Baker argued that the trial court erred when it allowed the State to introduce evidence of other crimes on rebuttal; that the jury was not voir-dired on this evidence; and that the State should not have been allowed to raise the issue of character through cross-examination of a defense witness. Baker’s issues 10-14 and 24 are the same as those raised in his direct appeal.

We will apply the bar of res judicata to the re-litigation of issues already determined on direct appeal if:

(1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.

Coleman v. State (1981), 194 Mont. 428, 438, 633 P.2d 624, 630 (quoting Sanders v. United States (1963), 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148, 161).

Having already decided Baker’s issues 10-14 and 24 on direct appeal, we conclude that the doctrine of res judicata bars reconsideration of these issues in this appeal.

4. Whether Baker received effective assistance of counsel?

The only issue which Baker has properly raised in this appeal is his claim of ineffective assistance of counsel. We will only consider the specific allegations of deficient performance which were properly raised in the trial court. Walker, 862 P.2d at 5.

In Walker, citing the seminal case of Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, along with McColley and Coates, we summarized the nature of our review of ineffective assistance of counsel claims as follows:

There is a heavy burden of proof on a defendant who seeks to reverse a judgment on the grounds of ineffective assistance of counsel. [Citation omitted.] In evaluating ineffective assistance of counsel claims, we utilize a two-part test as set forth in [Strickland] . First, the defendant must establish that counsel’s performance was deficient. [Citation omitted.] Counsel’s performance will be evaluated pursuant to the “reasonably effective assistance” test; if counsel acted within the range of competence demanded of attorneys in criminal cases, his performance was not deficient. [Citation omitted.]
To satisfy the second prong of the Strickland test, the defendant must establish that the deficient performance prejudiced the defendant so as to deprive him of a fair trial. [Citation omitted.] The standard for evaluating prejudice is whether a reasonable probability exists that, but for counsel’s deficient performance, the trial’s outcome would have been different. [Citation omitted.] However, this Court will not second-guess trial tactics and strategy. [Citation omitted.]

Walker, 862 P.2d at 4.

Moreover, a defendant alleging ineffective assistance of counsel bears the burden of proving both deficient performance and prejudice, and the proof must be grounded in facts found on the record, not in mere conclusory allegations. State v. Hurlbert (1988), 232 Mont. 115, 120, 756 P.2d 1110, 1112-13. If it is clear that the defendant has not suffered prejudice depriving him of a fair trial as a result of counsel’s allegedly deficient performance, the analysis ends at that point. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. See also Hurlbert, 756 P.2d at 1113.

With these legal principles in mind, we address each of Baker’s ineffective assistance of counsel claims. Baker alleges that counsel failed to move to suppress evidence obtained by a private citizen search (Baker’s issues 1 and 8). We conclude that counsel did not err in so doing and that a motion to that effect would have been frivolous under the facts of this case. Since our decision in State v. Long (1985), 216 Mont. 65, 700 P.2d 153, we have not applied the exclusionary rule to suppress the fruits of private citizen searches, unless the citizens were “agents of the State.” State v. Christensen (1990), 244 Mont. 312, 797 P.2d 893. Here, the patrons of Dapper Dan’s bar in Helena were clearly not acting at the behest of law enforcement.

Baker also contends that trial counsel did not provide effective assistance in failing to move to suppress his statements to Helena police officers Whitcomb and Hartman on the day following his arrest as he was being transported from the Jefferson County jail to the Lewis and Clark Comity jail (Baker’s issues 7-8). We conclude that Baker’s contentions are without merit. Officer Whitcomb testified that he did advise Baker of his Miranda rights, that he was not sure that the tape recorder had been turned on at that point (the tape was inaudible), and that he did not recall Baker asking for an attorney. The District Court concluded that Baker offered no proof to the contrary.

Moreover, Baker suffered no prejudice as a result of the introduction of his statements. Other witnesses at trial confirmed much of what Baker stated to the police, and he never denied committing the offenses charged, his defenses being self-defense and mental disease and defect. In view of these circumstances and because of the substantial quantum of evidence offered against Baker at trial, it is unlikely that the outcome of the trial would have been different even if his statements had been suppressed.

Baker maintains that counsel failed to effectively litigate the admission of other crimes evidence (Baker’s issues 9 and 14). Again, we disagree. While Baker argues that he was prejudiced in preparing his defense because the Just notice was not timely served and that his counsel should, therefore, have asked for a continuance, it is within trial counsel’s professional judgment to determine whether a continuance is necessary. Absent proof to the contrary, we will not assume that defense counsel’s failure to move for a continuance prejudiced Baker’s substantial rights. The District Court found no prejudice, nor do we.

Baker argues that trial counsel erroneously failed to object to the cross-examination of the aikido instructor. In Baker, we concluded that the State’s cross-examination was proper, because the defendant had put his character in issue and that rebuttal by past acts was proper. Baker, 815 P.2d at 589. While there was no objection to the cross-examination by defense counsel, any such objection would have been overruled, the subject having been raised on direct examination. Generally, whether to object is left to the discretion of trial counsel in any event. Hurlbert, 756 P.2d at 1114; McColley, 807 P.2d at 1360. Again Baker has failed to demonstrate that his defense was prejudiced.

Baker contends that counsel was ineffective by failing to obtain a gag order preventing an open trial (Baker’s issue 15). Baker wanted to present evidence that an assault on his wife in 1988 caused him to take measures to defend himself and caused extreme mental stress which he contends affected his actions on the night of the offenses. One of Baker’s trial counsel stated that he advised Baker against this course of action, because he felt that the motion would be denied and create more adverse publicity; his other counsel agreed with that analysis. The District Court found that counsels’ determination was a reasoned strategic decision. We agree. Counsels’ analysis of the law was correct. See, for example, Globe Newspaper Co. v. Superior Court (1982), 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248; Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973; State ex rel. Smith v. District Court (1982), 201 Mont. 376, 654 P.2d 982.

Moreover, during the trial Baker had the opportunity to present evidence of the attack on his wife, of his mental state at the time of the crime, and of his reaction to the attack. Baker has failed to demonstrate how the attack on his wife some one and one-half years prior to the offenses with which he was charged would have provided a valid defense. Again, no prejudice has been shown affecting Baker’s substantial rights, and we reject his arguments.

Baker contends that trial counsel erred in failing to prevent use of evidence of past behavior at sentencing (Baker’s issue 19). Again, we find no support for Baker’s position. Baker’s past conduct had been introduced in rebuttal during the trial over the objection of defense counsel. More importantly, even if such conduct had not been introduced at trial, such evidence would have been properly presented as part of the presentence investigation report which the court would have reviewed and considered at sentencing. Sections 46-18-101(3), MCA, and 46-18-111, MCA. Defense counsel could not have prevented the introduction of Baker’s criminal history at sentencing had he tried.

Baker argues that counsel failed to request a hearing pursuant to § 46-18-223, MCA, on whether the mandatory minimum sentence should apply to him (Baker’s issues 17 and 22). The District Court ruled that the mandatory minimum sentence was not considered in this case. Baker was given a twenty-five year term for his robbery conviction and a ten year term for use of a weapon. Accordingly, whether the exceptions to the mandatory minimum sentence would have applied is moot. Moreover, Baker had every opportunity at trial to present his theory that he was the victim of threats, intimidation and harassment which prevented him from acting with purpose or knowledge on the date of the offense. He has failed to present any new evidence relating to these factors which would have been presented at a mitigation hearing, had one been held. Again, Baker has failed to demonstrate how defense counsel’s failure to request a § 46-18-223, MCA, hearing prejudiced his defense.

In summary, having carefully reviewed the record and having considered defendant’s claims of ineffective assistance of counsel, we conclude that Baker has failed in his burden to prove that trial counsel made errors so serious that he was deprived of “counsel” as guaranteed by the Sixth Amendment to the United States Constitution. Moreover, Baker has failed in his burden to show that counsel’s performance in any way prejudiced his defense so as to deny him a fair trial.

The District Court Decision and Order denying Baker’s petition for post-conviction relief is, in all respects, AFFIRMED.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BRUCE EUGENE BUTLER, Defendant and Appellant.
    No. 94-341.
    Submitted on Briefs March 30, 1995.
    Decided August 4, 1995.
    52 St.Rep. 745.
    272 Mont. 286.
    900 P.2d 908.

      For Appellant: David E. Stenerson, Attorney at Law, Hamilton.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Micheál Wellenstein, Ass’t Attorney General, Helena; Robert L. Deschamps, Missoula County Attorney, Missoula; Fred VanValkenburg, Deputy County Att’y, Missoula.
   JUSTICE NELSON

delivered the Opinion of the Court.

On August 18, 1992, the State charged defendant Bruce Eugene Butler (Butler) by information in the Fourth Judicial District Court, Missoula County, with one count of sexual assault, a felony. Butler initially pleaded not guilty to the charge but subsequently entered an Alford plea. Upon the State’s recommendation, the District Court suspended Butler’s sentence subject to court-ordered conditions. Alleging numerous violations of the conditions, the State filed a petition to revoke Butler’s suspended sentence. Following the State’s second petition to revoke Butler’s suspended sentence, the District Court revoked the suspended sentence and ordered Butler committed to the Montana State Prison for ten years. Butler appeals the District Court’s revocation of his suspended sentence. We affirm.

Butler raises the following issue on appeal:

Did the District Court violate Butler’s Fifth Amendment right against self-incrimination by revoking Butler’s suspended sentence?

BACKGROUND FACTS

On August 18, 1992, the State charged Butler with one count of sexual assault, a felony. At the hearing on Butler’s motion to dismiss counsel, the District Court explained to Butler the option and consequences of entering an Alford plea under § 46-12-212(2), MCA. Four days later, Butler entered an Alford plea to the charge of sexual assault, stating that it was in his best interest to enter the plea and that there was a factual basis for the charge. Pursuant to the plea bargain agreement, Butler waived the pre-sentence investigation. The District Court sentenced Butler to ten years in the Montana State Prison, but suspended Butler’s sentence subject to the following thirteen conditions:

1. supervision of probation and parole;
2. mental health counseling and/or alcohol and drug counseling as directed by Butler’s probation officer;
3. no consumption of alcohol or entering bars;
4. submit to a test of bodily fluids for alcohol or drugs;
5. at Butler’s own expense, undergo a sex offender evaluation by a professional person designated by the probation officer and enter and complete a sexual offender treatment program recommended by the probation officer;
6. pay restitution to the victim for the cost of her counseling;
7. submit to a search of his person, vehicle, or residence at the request of his probation officer;
8. no contact with the victim or her family;
9. reimburse Missoula County for the cost of his public defender;
10. pay $100 for the cost of the prosecution;
11. pay a surcharge of $20;
12. serve 120 days in the Missoula County Jail with credit for time already served; and
13. obey all laws.

The District Court also ordered Butler to immediately sign up for probation, to obtain a travel permit when leaving the state, and upon arrival at his destination, to have a law enforcement agency confirm Butler’s location to the probation officer.

On March 19, 1993, the State filed a petition to revoke Butler’s suspended sentence, alleging that Butler had been entering bars, drinking, and had not undergone a sexual offender evaluation or treatment program. Butler did not appear at the revocation hearing and the District Court subsequently issued a bench warrant for his arrest. On July 26, 1993, Butler appeared in court and denied the State’s allegations. On August 30, 1993, Butler withdrew his denials and admitted all of the allegations. The District Court continued Butler’s probation, ordered Butler to follow all of the original conditions, and required Butler to enter a sexual offender program within 60 days.

On December 7, 1993, the State filed a second petition to revoke Butler’s suspended sentence. The State alleged that Butler 1) changed his place of residence without first obtaining permission; 2) left his assigned district without first obtaining written permission from his probation officer; 3) did not maintain employment; 4) did not personally report to his probation officer; 5) did not undergo a sexual offender evaluation; 6) did not complete a sexual offender treatment program; 7) had not reimbursed Missoula County for the cost of his public defender; 8) had not paid the $20 surcharge; and 9) had not paid $100 for the cost of his prosecution.

Butler denied the allegations but later admitted them with explanations. The State recommended continued probation; however, the probation officer recommended incarceration. Based on Butler’s admissions, the District Court found that Butler violated his probation and therefore revoked his suspended sentence and ordered Butler committed to the Department of Corrections for ten years without eligibility for parole until Butler completes the sexual offender program. Butler appeals the revocation of his suspended sentence.

DISCUSSION

Did the District Court violate Butler’s Fifth Amendment right against self-incrimination by revoking Butler’s suspended sentence?

Butler alleges that the District Court revoked his suspended sentence primarily because he would not admit guilt in order to either undergo a sexual offender evaluation or enter a sexual offender treatment program. Thus, Butler claims that the District Court violated his Fifth Amendment right against self-incrimination when it revoked his suspended sentence.

The standard for revocation of a suspended sentence only requires that the judge be reasonably satisfied that the conduct of the probationer has not been what he agreed it would be if he were given liberty. State v. Lundquist (1992), 251 Mont. 329, 331, 825 P.2d 204, 206 (citing State v. Robinson (1980), 190 Mont. 145, 148-49, 619 P.2d 813, 815). We review a district court’s decision to revoke a suspended sentence to determine if the district court abused its discretion. Lundquist, 825 P.2d at 206.

The State argues that this Court should not review Butler’s claim that the District Court violated Butler’s Fifth Amendment right against self-incrimination because Butler did not raise bis Fifth Amendment claim in the District Court. The State bases its claim on § 46-20-104(2), MCA, which covers the scope of appeal by a defendant and provides in part:

Upon appeal from a judgment, the court may review the verdict or decision and any alleged error objected to which involves the merits or necessarily affects the judgment. Failure to make a timely objection during trial constitutes a waiver of the objection except as provided in 46-20-701(2).

In State v. Arlington (1994), 265 Mont. 127, 151, 875 P.2d 307, 321, we construed § 46-20-104(2), MCA, to bar a defendant from raising an issue on appeal if that defendant did not raise the issue before the district court.

Although Butler did not specifically state that his Fifth Amendment right against self-incrimination had been violated, he raised the issue that he was in a catch-22 situation if he wanted a suspended sentence but did not want to admit guilt to the sexual acts. Butler evidenced his misgivings about having to admit guilt before undergoing either a sexual offender evaluation or a sexual offender treatment program when he answered the District Court’s questions as follows:

Like I said, if it goes to a jury trial, I’m going to end up in prison for something I didn’t do. And if I plead guilty and go to this doctor and don’t admit it to him, I still end up in prison for a year.

The issue of self-incrimination was central to Butler’s discussion with the District Court on December 10, 1992. We conclude that Butler sufficiently raised the issue of his Fifth Amendment right against self-incrimination, and, therefore, we review Butler’s claim on its merits.

Butler argues that our holding in State v. Imlay (1991), 249 Mont. 82, 813 P.2d 979, controls the instant case. In Imlay, we held that in sex offense cases, we should “protect the defendant’s constitutional right against self-incrimination, and... prohibit augmenting a defendant’s sentence because he refuses to confess to a crime or invokes his privilege against self-incrimination.” Imlay, 813 P.2d at 985. Following a jury trial, defendant Imlay was convicted of sexual assault, a felony, and sentenced to five years in the Montana State Prison. Defendant was placed on formal probation for all but 35 days of the sentence on the condition that he enroll in a sexual therapy program. When the defendant enrolled in, and scheduled six consecutive appointments, but was unable to complete the program because he would not admit guilt of the crime he was convicted of, the district court revoked his suspended sentence. Imlay, 813 P.2d at 980-82.

In contrast, Butler did not go to trial and assert his Fifth Amendment right against self-incrimination but instead entered an Alford plea and admitted guilt in order to obtain favorable sentencing recommendations. A defendant waives certain constitutional rights by pleading guilty, including the right to trial and the right against compulsory self-incrimination. Boykin v. Alabama (1969), 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 279. “In light of the importance of the rights waived, it is a well-settled legal principle that a guilty plea must be a voluntary, knowing, and intelligent choice among the alternative courses of action open to the defendant.” State v. Radi (1991), 250 Mont. 155, 159, 818 P.2d 1203, 1206 (citing North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162). There was every indication that Butler voluntarily and knowingly chose among his alternative courses of action. The District Court and Butler’s attorney discussed with Butler “that the prosecutor [was not] willing ... to do anything less than sex offender treatment.” The District Court further counseled Butler,

[o]f course, you always have the Alford plea if you need to do that; but on these sexually-related charges, you’ve got sexual treatment — that you never get out of sexual offender treatment unless you admit to the allegations ordinarily.

Sexual offender evaluation and treatment were conditions of the suspended sentence that Butler knew the State would not forego.

The State argues that the plea bargain agreement between Butler and the State was a contractual agreement. In State v. Owens (1992), 254 Mont. 224, 836 P.2d 595, we held that “[p]lea bargaining agreements are subject to contract law standards.” Owens, 836 P.2d at 598 (quoting State v. Dinndorf (1983), 202 Mont. 308, 311, 658 P.2d 372, 373). We have held that we will not lend our assistance to a person accused of a crime in escaping the obligations of a plea bargain agreement after accepting its benefits. State v. Reynolds (1992), 253 Mont. 386, 392, 833 P.2d 153, 157.

In the instant case, Butler chose to plead guilty instead of going to trial and agreed to the conditions of his suspended sentence in return for the State recommending his suspended sentence. However, Butler failed to comply with the conditions and therefore did not fulfill his end of the bargain. Importantly, Butler not only failed to comply with the sexual offender conditions of the suspended sentence but he also violated seven other conditions.

Butler contends that the District Court revoked Butler’s suspended sentence primarily because of Butler’s failure to undergo sexual offender evaluation and treatment. In contrast, the State contends that seven of the nine violations of Butler’s suspended sentence did not concern sexual offender treatment. We have held that “no violation of a probation agreement is minor.” State v. Rogers (1989), 239 Mont. 327, 330, 779 P.2d 927, 929 (quoting Collins v. State (Wyo. 1986), 712 P.2d 368, 371). In Rogers, the sole issue on appeal was whether the district court abused its discretion when it revoked Rogers’ suspended sentence and imposed a ten-year sentence of incarceration. Rogers, 779 P.2d at 928. We noted that a “district court’s decision to revoke a suspended sentence cancels a prior act of grace and is within the court’s discretion.” Rogers, 779 P.2d at 929. Rogers argued that he had substantially complied with the terms and conditions of his probation and that his violations were merely technical. Rogers, 779 P.2d at 928. In Rogers, we held that the record clearly demonstrated, and that the defendant did not deny, that he violated the conditions of his suspended sentence. Rogers, 779 P.2d at 929.

Similarly, Butler admitted that he violated seven conditions of his suspended sentence. Notwithstanding the sexual offender treatment violations, there was a sufficient basis to support the District Court’s decision to revoke Butler’s suspended sentence. In light of the record, the District Court did not abuse its discretion when it revoked Butler’s suspended sentence.

Butler requested that we allow him to withdraw his Alford plea and proceed to trial as a remedy for the violation of his Fifth Amendment right against self-incrimination. The State argues that Butler did not file a motion to withdraw his guilty plea in the District Court and is therefore precluded from doing so before this Court. Without reaching the issue of whether such a motion must be “filed,” i.e. in writing, we have, nevertheless, consistently held that a request to withdraw a guilty plea must be first raised in district court. See Radi, 818 P.2d at 1206 (“Initially, the grant or denial of a motion to withdraw a guilty plea is within the sound discretion of the trial court”); State v. Martz (1988), 233 Mont. 136, 760 P.2d 65; Matter of Hardy (1980), 188 Mont. 506, 614 P.2d 528.

Moreover, subject to the exceptions of § 46-20-701(2), MCA, this Court will not entertain issues not raised before the trial court. State v. Redfern (1987), 228 Mont. 311, 313, 741 P.2d 1339, 1340. Thus, we need not discuss the merits of Butler’s request to withdraw his guilty plea because the issue was not first raised before the District Court.

In summary, we hold that the District Court did not abuse its discretion in revoking Butler’s suspended sentence.

AFFIRMED.

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