text:
    IN RE THE MARRIAGE OF TERRY SHIKANY, Petitioner and Respondent, and CAROL L. SHIKANY, Respondent and Appellant.
    No. 94-079.
    Submitted on Briefs August 25, 1994.
    Decided October 25, 1994.
    51 St.Rep. 1031.
    268 Mont. 493.
    887 P.2d 153.

      For Appellant: Arthur D. Agnellino, Attorney at Law, Missoula.
    For Respondent: Joan E. Cook, Attorney at Law, Great Falls.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Carol L. Shikany (Carol) appeals from an order of the Eighth Judicial District, Cascade County, denying her motion to set aside both a decree dissolving her marriage to Terry Shikany (Terry), and an order to convey real property to Terry. We reverse.

The following issues are presented on appeal:

1. Did the District Court err by denying Carol’s motion to set aside the decree of dissolution and the order requiring the clerk of court to convey real property?

2. Did the District Court err in finding that Carol has a minimal interest in the family residence?

3. Did the District Court err in failing to find that Terry committed a fraudulent act upon the court by seeking service by publication?

On January 26, 1984, Carol and Terry were married for the first time. They resided in Missoula until January of 1985 when they moved to Billings. In April of 1990, Carol left Terry and returned to Missoula. Terry filed for dissolution, and the marriage was dissolved on March 20, 1991. Under the terms of the first dissolution, Terry became the sole owner of their residence in Billings.

The parties reconciled and were remarried on October 22, 1991. On November 4,1991, Terry transferred title to the Billings residence to Carol. Terry and Carol agree that transferring the entire title was the result of a misunderstanding on the part of the Yellowstone County clerk’s office. Both intended that Carol and Terry were to have a joint interest in the property.

On June 5,1992, Carol left Billings to visit her mother in Andover, Massachusetts. Before leaving town, Carol telephoned Terry and informed him that she was leaving him again. Terry knew that Carol was going to her mother’s in Andover. On November 2, 1992, Terry filed for dissolution in Cascade County. On November 4, 1992, Terry filed an affidavit in support of service by publication. Notice of the dissolution petition was published for four consecutive weeks in the Cascade Courier, a weekly Cascade County newspaper. Carol was never personally served with the petition for dissolution. On December 28, 1992, a default judgment was entered in Terry’s favor since Carol failed to answer the petition for dissolution. On January 6, 1993, Judge McKittrick of the Eighth Judicial District entered a decree of dissolution which decreed that: the marriage was dissolved, the parties’ personal property had been reasonably divided, the parties’ debts had been reasonably divided, and Carol’s former surname was restored. One of the findings of fact in the decree stated that the real property in Billings was awarded to Terry. On the same day, in a separate order, Judge McKittrick ordered the clerk of court for the Eighth Judicial District Court to sign a quitclaim deed giving Terry the entire interest in the real property located in Billings.

Carol testified that after visiting relatives in Michigan and Andover, Massachusetts, she went to New York and then to Florida with her mother and children. She then returned to Missoula sometime in late August of 1992. Carol testified that she first became aware of the decree of dissolution and order transferring title to the Billings property when her attorney advised her to call the Cascade County courthouse to get a copy of Carol and Terry’s first dissolution. Carol received a copy of the petition for dissolution of her second marriage to Terry on May 20, 1993.

On May 28,1993, pursuant to Rule 60(b), M.R.Civ.R, Carol moved the District Court for relief from the decree of dissolution and order transferring title to the Billings property. After several continuances, the District Court held a hearing on the motion and, by stipulation of the parties, considered testimony and the parties’ briefs and depositions. On January 31,1994, the District Court entered its order denying Carol’s motion. From this order, Carol appeals.

The dispositive issue in this case is whether the District Court erred by denying Carol’s motion to set aside the decree of dissolution and the order requiring the clerk of court to convey real property. Since this issue is dispositive, we will not address the other issues raised.

This Court reviews rulings on motions to set aside default judgments based on whether the district court abused its discretion; however, no great abuse of discretion is necessary to warrant reversal. In re Marriage of Broere (1994), 263 Mont. 207, 209, 867 P.2d 1092, 1093. The policy behind this is to favor a trial on the merits. Marriage of Broere, 867 P.2d at 1093.

In the present case, Terry served Carol by publication. Rule 4D, M.R.Civ.P, governs service by publication. In relevant part, it states:

(5) Service by publication — when permitted — effect—manner— proof.
(a) When permitted. A defendant, whether known or unknown, who has not been served under the foregoing subsections of this rule can be served by publication in the following situations only:
(iii) When the action is for dissolution ... of a marriage ....

This dissolution action qualifies for potential service by publication under Rule 4D(5)(a)(iii), M.R.Civ.P. However, the rule continues as follows:

(c) Filing of pleading and affidavit for service by publication; and order for publication. Before service of the summons by publication is authorized in any case, there shall be filed with the clerk in the district court of the county in which the action is commenced (i) a pleading setting forth a claim in favor of the plaintiff and against the defendant in one of the situations defined in (5)(a) above; and (ii) in situations defined in ... (5)(a)(iii), upon return of the summons showing the failure to find any defendant designated in the complaint, an affidavit stating that such defendant resides out of the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals defendant’s person to avoid the service of summons ... such affidavit shall be sufficient evidence of the diligence of any inquiry made by the affiant, if the affidavit recite the fact that diligent inquiry was made, and it need not detail the facts constituting such inquiry ....

Rule 4D(5)(c), M.R.Civ.R (emphasis added).

On November 4, 1992, Terry’s attorney filed an affidavit in support of service by publication which stated, in pertinent part:

3. That Mr. Shikany has informed me that his wife abandoned him from their family residence in Billings, Montana on or about June 1, 1992.
4. That Mr. Shikany has not heard from the Respondent since this time nor does he know her whereabouts.
5. That the Respondent has family in Andover, Massachusetts, but Mr. Shikany has had no confirmation that that is where Respondent is residing.
6. That because Respondent cannot be properly served the Petition for Dissolution of Marriage and Summons, there is a need to publish the Summons to the Petition in a [sic] accordance with the statutes of the State of Montana.

The affidavit does not state that Carol departed the state, was out of state at the time the affidavit was filed, was concealing herself, or that a diligent inquiry was made as to Carol’s whereabouts. Since the affidavit does not allege diligent inquiry, it is not sufficient evidence of a diligent inquiry. See Rule 4D(5)(c), M.R.Civ.P. Nor does the affidavit recite facts showing sufficient diligent inquiry on Terry’s part, it simply states that Terry had not heard from Carol since she left him.

In addition, our review of the record indicates that Terry’s efforts to discover Carol’s whereabouts were minimal at best. At the time the affidavit was filed, Carol resided in Missoula and had resided there since late August of 1992. Terry testified that he asked a few friends who lived in Missoula to tell him if they saw Carol. This does not amount to a diligent effort to find Carol.

The insufficiency of this effort is compounded by the facts that: Terry knew Carol was going to visit her mother in Andover, Massachusetts; Terry had Carol’s mother’s phone number and address in Andover, Massachusetts; Terry had Carol’s mail forwarded to her brother’s home in Michigan; and Terry had previously located Carol in Missoula to serve her with the dissolution petition from their first marriage.

Insufficient service of process is an ample ground to vacate the default judgment in this case. Fonk v. Ulsher (1993), 260 Mont. 379, 383, 860 P.2d 145, 147; citing Sink v. Squire (1989), 236 Mont. 269, 273, 769 P.2d 706, 708, and Shields v. Pirkle Refrigerated Freightlines, Inc., et al. (1979), 181 Mont. 37, 45, 591 P.2d 1120, 1125. In Fonk, Fonk’s mother was personally served instead of Fonk; a default judgment was subsequently entered, and Fonk moved to set aside the default judgment because he was not properly served. Fonk, 860 P.2d at 146. We held that service upon Fonk’s mother was insufficient service upon Fonk; to hold otherwise would violate Fonk’s due process rights under the Fourteenth Amendment to the United States Constitution and Article II, Section 17 of the Montana Constitution. Fonk, 860 P.2d at 148. Since Fonk was not validly served, we held that the default judgment was void. Fonk, 860 P.2d at 148.

Shields involved deficient service of process upon a corporation under Rule 4D(2), M.R.Civ.P.; we held that a strict and literal compliance with the law must be shown in order to support a judgment based on substituted or constructive service. Shields, 591 P.2d at 1124. We also held that the service was fatally flawed not only because of alack of due diligence, but also because the plaintiff failed to submit a sufficient affidavit in compliance with Rule 4D. Shields, 591 P.2d at 1125. We concluded that because service was deficient, the district court could not acquire jurisdiction and, therefore, the default judgment was void. Shields, 591 P.2d at 1125.

Here, as we have already noted, Terry failed to demonstrate due diligence. The affidavit submitted on behalf of Terry was insufficient under Rule 4D(5)(c), M.R.Civ.P. Because the service of process was deficient, the District Court did not acquire jurisdiction. To hold otherwise would violate Carol’s right to due process under both the United States and Montana Constitutions. Thus, we hold that the District Court abused its discretion in refusing to vacate the default judgment and order to convey the real property. The default judgment and order to convey real property are void.

Reversed and remanded.

JUSTICES GRAY, TRIEWEILER, NELSON and WEBER concur.


source: Caselaw Access Project

author: JUSTICE HARRISON JUSTICE GRAY, CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    JERROLD LUNDBERG, Petitioner and Appellant, -vs-LIBERTY NORTHWEST INSURANCE CO., INC., Respondent and Respondent/Insurer for PYRAMID MOUNTAIN LUMBER COMPANY, Employer.
    No. 94-284.
    Submitted on Briefs October 13, 1994.
    Rehearing Denied Jan. 18, 1995.
    Decided December 6, 1994.
    51 St.Rep. 1254.
    268 Mont. 499.
    887 P.2d 156.

      For Appellant: Norman H. Grosfield; Utick & Grosfield, Helena.
    For Respondent: Michael C. Prezeau; Garlington, Lohn & Robinson, Missoula.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Jerrold Lundberg (Lundberg) appeals the order of the Workers’ Compensation Court concluding that he was an independent contractor and denying him benefits for injuries suffered while working. We reverse.

The sole issue on appeal is whether the Workers’ Compensation Court erred in finding that Lundberg was an independent contractor at the time of his injury.

Lundberg has a background working in forestry-related jobs, culminating in a career with the United States Forest Service. He began working for the Forest Service as a seasonal tree planter in 1968 and subsequently worked his way up through the ranks. When he retired from the Forest Service in 1985, he was the sales administrator for the Lincoln Ranger District of the Helena National Forest. By the time of his retirement, he was familiar with all aspects of the logging business. He was certified for numerous Forest Service positions, including sales administrator, timber cruiser, and log scaler.

After retiring from the Forest Service he formed a partnership with his son called Lundberg Logging. Its primary business involved many aspects of small scale timber sales. Lundberg Logging had a business checking account and employer identification number, paid dues to the Montana Logging Association, and owned a number of pieces of heavy equipment. Lundberg Logging further maintained liability insurance and workers’ compensation insurance for its employees, but Lundberg elected not to cover himself under its workers’ compensation policy. In 1991, Lundberg bought his son’s interest in Lundberg Logging, thus converting the business to a sole proprietorship.

While still employed with the Forest Service, Lundberg had worked with Pyramid Mountain Lumber Co. (Pyramid). He also worked on small contracts with Pyramid after forming Lundberg Logging. Pyramid utilized both employees and consultants in locating and purchasing timber. In 1992, Pyramid contacted Lundberg to inquire if he would be interested in purchasing timber for Pyramid in the Lewistown, Montana area. Lundberg and Pyramid entered into a consultation agreement that declared that “ [i]t is hereby understood that [Lundberg] is an independent consultant and not an agent or employee of Pyramid Mountain Lumber, Inc.” The agreement stated that Lundberg would “work full time for the first 4 months out of Lewistown to get established and then spend whatever time is necessary to achieve or exceed the [agreement’s timber purchasing] goal.” The agreement further established terms for the parties’ respective duties, termination, compensation, and other contractual provisions.

Pyramid provided Lundberg with living quarters in Lewistown, business cards similar to those given to Pyramid employees, reimbursed him for mileage, and maintained consultation between Lundberg and Pyramid employees and consultants to foster Lundberg’s work. Lundberg provided his own materials and recorded the days he worked and miles traveled. Pyramid did not include Lundberg in its vacation, sick leave, or health care policies, did not withhold income taxes, and reported his earnings on IRS form 1099 rather than form W-2. Lundberg was not subject to Pyramid’s personnel policies and was not issued a personnel handbook. He was not subjected to Pyramid’s standard mandatory drug screening, pre-employment physical, or company orientation procedures.

Lundberg maintained his home in Lincoln but traveled to Lewis-town during the week to work, where he stayed at Pyramid’s trailer house. Lundberg set his own schedule and every month he submitted a list of days he worked, the number of miles he had driven each day, where he had travelled, and an itemization of his reimbursable expenses. Lundberg determined which days he worked and took days off without notifying Pyramid. During one week in October, 1992, his truck did not work and he completed a short job near Lincoln for a post cutter, not related to Pyramid. He took days off for bad weather, personal business, and because his mother had surgery. Pyramid interpreted the consultation agreement as permitting it to designate or change the area in which Lundberg worked. The person who succeeded Lundberg as Pyramid’s timber buyer in Lewistown was a salaried Pyramid employee who determined his own daily work schedule but obtained approval for days off. Evidence was presented about a person under a contract similar to Lundberg’s who charged a daily rate for his services and considered himself an independent contractor.

In February 1993, Lundberg was seriously injured in a traffic accident while travelling on Pyramid-related business. At that time Pyramid was insured by Liberty Northwest Insurance Co., Inc. (Liberty) and was enrolled under Compensation Plan Number 2 of the Workers’ Compensation Act (Act). Liberty denied Lundberg’s claim for compensation following the accident, claiming that he was an independent contractor rather than an employee. The Workers’ Compensation Court concluded that Lundberg was an independent contractor and not an employee of Pyramid. This appeal followed.

Two standards of review apply to workers’ compensation cases. Where facts are disputed, “this Court will not substitute its judgment for that of the Workers’ Compensation Court and will uphold its findings if there is substantial evidence in the record to support them.” (Citations omitted.) Reeverts v. Sears, Roebuck & Co. (1994), [266 Mont. 509], 881 P.2d 620, 622. When no facts are disputed, “[w]e will uphold the court’s conclusions of law if its interpretation of the law is correct.” Reeverts, 881 P.2d at 622. The facts in this case are largely undisputed. At issue is only the application of the statute to the undisputed facts. “Therefore, this issue is one of law and this Court is free to reach its own conclusions from the evidence presented.” Schrock v. Evans Transfer and Storage (1987), 225 Mont. 348, 351, 732 P.2d 848, 851. We are not bound by the trial court’s determinations when reviewing interpretations of law. Sharp v. Hoerner Waldorf Corp. (1978), 178 Mont. 419, 423, 584 P.2d 1298, 1301.

We held that the Act “generally does not cover a person who is a sole proprietor or a working partner.” Loos for Loos v. Waldo (1993), 257 Mont. 266, 270, 849 P.2d 166, 169. Lundberg Logging is not the employer-contractor at issue. Neither Pyramid nor Lundberg allege that Lundberg was acting in any capacity as Lundberg Logging’s sole proprietor and we need not consider this exception.

The test to determine whether a person is an independent contractor or employee allows for no middle ground: The claimant is classified as an employee or as an independent contractor. It is well established that the fact that a contract designates a party as an independent contractor is not dispositive of a worker’s status: Aparty must have been an independent contractor in fact. Schrock, 732 P.2d at 850. Independent contractor status requires a “convincing accumulation” of evidence from the statutory test, whereas employee status may be found based on one part of the statutory test. Sharp, 584 P.2d at 1301-02.

Section 39-71-120, MCA, defines an independent contractor as follows:

(1) ... one who renders service in the course of an occupation and:
(a) has been and will continue to be free from control or direction over the performance of the services, both under his contract and in fact; and
(b) is engaged in an independently established trade, occupation, profession, or business.
(2) An individual performing services for remuneration is considered to be an employee under this chapter unless the requirements of subsection (1) are met. [Emphasis added.]

Because of the facts in this case, we begin by reviewing the second part of the statutory independent contractor test. Section 39-71-120(l)(b), MCA, requires that an independent contractor be “engaged in an independently established trade, occupation, profession, or business.” Lundberg argues that the independently established business requirement is not met because he did not engage in the business of buying timber for third parties. This assertion raises the question whether the statutory requirement for an independently established trade, occupation, profession or business must involve the identical services as those which give rise to the independent contractor/employee controversy.

We held that a pastor who received pay for work for third parties satisfied the statutory requirement that an independent contractor engage in an independently established trade, occupation, profession, or business. St. John’s Lutheran Church v. State Comp. Ins. Fund (1992), 252 Mont. 516, 521, 830 P.2d 1271, 1275. In that case the pastor was permitted to receive remuneration for work from third parties, even if time was taken away from Ms parish work. St. John’s, 830 P.2d at 1274. Lundberg, like the pastor in St. John’s, was able to work for others. However, Lundberg did not act for others in a similar capacity as he did for Pyramid. Neither Lundberg nor Lundberg Logging maintained a business procuring timber for third parties.

In a case involving unemployment insurance, the statute for which defines independent contractor identically to § 39-71-120(1), MCA, we held that equating the second part of the test with merely rendering services in the course of an occupation, as is already separately required in the first part of the statute, would render the second reqmrement a nullity. Northwest Publishing v. Montana Dept. of Labor & Ind. (1993), 256 Mont. 360, 364, 846 P.2d 1030, 1032. Lundberg’s timber purchasing “business” did not exist independently from Ms relationship with Pyramid. See Standard Chemical Mfg. Co. v. Employment Sec. Div. (1980), 185 Mont. 241, 251, 605 P.2d 610, 615.

The record demonstrates that Lundberg was proficient in most areas of timber harvest and sale and that he continued to operate Lundberg Logging after he began working for Pyramid. However, the record contains no indicia that Lundberg was engaged in buying timber for tMrd parties or that Pyramid Mred Lundberg Logging to procure timber with Lundberg working only for Lundberg Logging. The record indicates that Lundberg completed one job unrelated to Pyramid after he signed the agreement with Pyramid, but that is insufficient to conclude Lundberg was engaged in an independently established trade, occupation, profession, or business of purchasing timber for tMrd parties.

Reversed.

JUSTICES HUNT and TRIEWEILER concur

JUSTICE GRAY,

specially concurring.

I concur in the Court’s opinion and write separately only to clarify the basis for my agreement with the Court’s result.

The Workers’ Compensation Court made detailed findings of fact in this case and provided a complete legal analysis supporting its decision. The court determined that the right of control and equipment factors we have used to analyze independent contractor status weighed in favor of independent contractor status here. While these conclusions of the Workers’ Compensation Court are not incorrect, it is clear from the record before us that neither factor is particularly strong in this case.

The Workers’ Compensation Court also determined that the method of payment and right to terminate factors were, in essence, neutral in this case and did not weigh in favor of either independent contractor or employee status. Again, the court was correct. To this point, the record does not establish the “convincing accumulation of evidence” we have concluded is necessary to result in an independent contractor determination. See Sharp v. Hoerner-Waldorf Corp. (1978), 178 Mont. 419, 584 P.2d 1298.

The final factor, then, is the independent business factor. The Workers’ Compensation Court determined that the independent business factor weighed in support of independent contractor status. This Court holds that the court erred in that determination, concluding that Lundberg is not engaged in the independent business of timber purchases. I agree. The net result is that the independent business factor weighs in support of employee status in this case.

We also determined in Sharp that employee status may be proved on the strength of one of the factors. Sharp, 584 P.2d at 1302. That is the result of the lack of Lundberg’s participation in the independent business of timber purchases in this case. Nor, in this case, do the other statutory factors present a convincing accumulation of evidence in support of independent contractor status.

JUSTICE NELSON joins the foregoing special concurrence of JUSTICE GRAY.

CHIEF JUSTICE TURNAGE

dissenting:

I respectfully dissent.

It is clear from the record in this case that the findings of fact of the Workers’ Compensation Court are the basis upon which it made its decision. The standard of review is whether or not there is substantial credible evidence to support the court’s findings of fact.

The record in this case reveals that there is substantial credible evidence supporting the decision of the Workers’ Compensation Court. I would affirm.

JUSTICE WEBER joins in the dissent of CHIEF JUSTICE TURNAGE.


author: JUSTICE WEBER JUSTICE GRAY,

text:
    WALTER H. SAVOY, Plaintiff-Appellant, v. CASCADE COUNTY SHERIFF'S DEPT.; and UNITED STATES OF AMERICA, by and through the FARMER'S HOME ADMINISTRATION, its agency, Defendants-Respondents.
    No. 94-061.
    Submitted on Briefs September 15, 1994.
    Rehearing Denied Jan. 18, 1995.
    Decided December 13, 1994.
    51 St.Rep. 1300.
    268 Mont. 507.
    887 P.2d 160.

      For Appellant: Gary S. Deschenes, Deschenes Law office, Great Falls.
    For Respondents: George Darragh, Jr., Assistant U.S. Attorney, Great Falls; Nancy Cory, Great Falls.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a grant of summary judgment to defendants in this case by the Eighth Judicial District Court, Cascade County, Montana. We affirm.

We consider the following issues on appeal:

I. Did the District Court err when it determined that Farmer’s Home Administration had substantially complied with the redemption statutes found at § 25-13-801, et seq., MCA?

II. Did the District Court err when it determined that Farmer’s Home Administration was a proper party to redeem?

III. Did the District Court err when it determined that the Cascade County Sheriff’s Office had acted appropriately in not presenting Mr. Savoy with the deed to Tract II?

The real property involved here was the subject of a foreclosure action brought by the Federal Land Bank of Spokane against Hugh D. and Rita D. Sands. The foreclosure action involved three tracts of land, only two of which enter into this action, Tract I, and Tract II.

A decree of foreclosure was entered on February 28, 1989, by the Eighth Judicial District Court upon stipulation of the five junior lienholders and the default of the Sands. The court ordered a sale of the property on March 23, 1989, and the property was sold at a Sheriff’s Sale. Tract I and Tract II were purchased by Walter H. Savoy (Savoy) to whom the Sheriff issued a Certificate of Sale dated May 24, 1989. Savoy paid $3,001 for Tract I and $85,000 for Tract II.

The statutory period for redemption is one year. Thus, any redemptioner had until May 23, 1990, to redeem the property from Savoy.

On May 17, 1990, Patrick Sands, a successor-in-interest to Hugh and Rita Sands provided to Sheriff Barry Michelotti a notice of redemption for Tract I. The Sheriff’s Office issued a sheriff’s certificate of redemption on May 21, 1990, for Tract I at the same time Patrick Sands issued to Sheriff Michelotti a check in the amount of $3,180.06.

Also, on or about May 17, 1990, Farmer’s Home Administration (FmHA) sent a copy of a letter to the Sheriff of Cascade County addressed to Savoy stating that it was redeeming, for $85,000, Tract II of the property purchased by Savoy at the March 23, 1989 foreclosure sale. The letter told Savoy to contact Ms. Hensleigh, the County Supervisor for FmHA, if he had any questions.

Also attached to the letter sent to the Sheriff was a copy of the decree of foreclosure in favor of Federal Land Bank that included a list of the lienholders on the property, of which FmHA is listed as second, third and fifth lienholders having mortgages on the property. Also attached to the letter sent to the Sheriff was a check for $90,030.14, of which $85,000 was the purchase price paid by Savoy and the remainder representing the interest accrued on this money from the date of sale.

Sometime before June 8, 1990, Savoy contacted the Sheriff’s Office. He had questions about the process of redemption and Deputy Sheriffs John Strandell and Richard Duncan directed Savoy to §§ 25-13-801, et seq., MCA, and suggested that he obtain legal counsel.

On June 8,1990, the Sheriff’s Office received a letter from Savoy’s counsel stating that neither of the redemptions of Tract I and Tract II were appropriate and citing § 25-13-807, MCA, in support of this proposition. The letter directed the Sheriff to issue deeds for Tract I and Tract II to Savoy because the Notices of Redemption are invalid.

On August 17, 1990, Savoy filed a Complaint for Declaratory Judgment and Petition for Writ of Mandamus. The United States attempted to have the action removed to federal court, but Judge Paul Hatfield refused jurisdiction on October 26,1990. A hearing was held on December 4, 1990, and the Eighth Juclicial District Court heard oral arguments concerning the writ of mandamus. On December 20, 1990, the court issued its findings of fact and conclusions of law, denying Savoy’s request for Writ of Mandamus.

Following the December ruling, the court ordered the Sheriff’s Office to issue the deed to FmHA. The Cascade County Sheriff issued the deed pursuant to this order. Also following the December ruling, the parties engaged in discovery. FmHA and the Cascade County Sheriff’s Office moved for summary judgment as did Savoy. Ahearing was held on November 29, 1993, and the court granted summary judgment to FmHA and the Cascade County Sheriff’s Office.

Savoy appeals this grant of summary judgment.

Standard of Review

The standard for reviewing a grant of summary judgment is the same as that used by the district court. Emery v. Federated Foods, Inc. (1993), 262 Mont. 83, 863 P.2d 426. We must determine whether there is an absence of genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. Minnie v. City of Roundup (1993), 257 Mont. 429, 849 P.2d 212.

I.

Did the District Court err when it determined that Farmer’s Home Administration had substantially complied with the redemption statutes found at § 25-13-801, et seq., MCA?

The redemption statutes with which we are directly concerned in this case are the following:

25-13-806. Notice of redemption, liens, and taxes and assessments paid. Written notice of redemption must be given to the sheriff and a duplicate filed with the county clerk, and if any taxes or assessments are paid by the redemptioner or if he has or acquired any liens other than that upon which the redemption was made, notice thereof must in like manner be given to the sheriff and filed with the county clerk, and if such notice be not filed, the property may be redeemed without paying such tax, assessments, or lien.
25-13-807. Papers redemptioner must produce. A redemptioner must produce, to the officer or person from whom he seeks to redeem, and serve with his notice to the sheriff:
(1) a copy of the docket of the judgment under which he claims the right to redeem, certified by the clerk of the court or by the clerk of the district court in the county where the judgment is docketed; or if he redeem upon a mortgage or other lien, a note of the record thereof, certified by the county clerk; or if upon an attachment, a copy of the affidavit of attachment, certified by the clerk of the district court;
(2) a copy of any assignment necessary to establish his claim, verified by the affidavit of himself or of a subscribing witness thereto;
(3) an affidavit by himself or his agent showing the amount then actually due upon the lien.
25-13-808. To whom redemption money paid. The payment mentioned in 25-13-802 through 25-13-806 may be made to the purchaser or redemptioner, as the case may be, or for him to the officer who made the sale or, in case his term of office has expired, to his successor in office.

We will first review the pertinent findings of fact and conclusions of law on the part of the District Court.

Findings of Fact: On February 28,1989, a decree of foreclosure was entered in the case of Interstate Production Credit Ass’n, plaintiff, v. Hugh Sands, et al., in the District Court. On May 23,1989, a sheriff’s sale was held and plaintiff Savoy purchased the property known as Tract I for $3,001 and Tract II for $85,000, with the property located in Cascade County and with the property description of each tract set forth in the judgment and decree of foreclosure.

On May 17, 1990, six days less than one year after the date of sheriff’s sale, the FmHA submitted to the Cascade County Sheriff’s Department a notice of its intention to redeem the property known as Tract II. The notice was attached to a letter addressed to Savoy. FmHA also presented to the Sheriff with that letter a certified copy of the judgment decree in the action brought by Federal Land Bank as evidence of its right to redeem. Also enclosed with the notice to the Sheriff was a United States Treasury check in the amount of $90,030.14, which covered the original purchase price of $85,000 with interest at six percent for 360 days as mandated by statute. At the same time Tract II was being redeemed by FmHA, Tract I was redeemed by an assignee of the original debtor. The notice of redemption provided to the Sheriff’s Office was not filed at the clerk and recorders office (which did not meet the requirement of § 25-13-806, MCA, which requires that notice be filed with the county clerk). Some time between May 17, 1990 and June 8, 1990, Savoy’s counsel went over the documents in the Sheriff’s files. On June 8, 1990, Savoy through his attorney notified the Sheriff that he was contending that the redemption notice of FmHA was defective and such letter indicated plaintiff was protesting the redemption of both Tracts I and II, pursuant to § 25-13-807, MCA. No explanation of the nature of plaintiff’s objections to the notice of redemption was given.

The District Court findings referred to various motions and hearings conducted by it, and also to depositions taken by the parties. Following a hearing in December 1990, the District Court ordered the Sheriff to issue a sheriff’s deed to FmHA and that was done.

The District Court then adopted various conclusions of law including the following:

III.
Here, the Cascade County Sheriff’s Department received a certified copy of the judgment and decree of foreclosure with the notice of intention of Farmers Home Administration to redeem. In that judgment decree, the mortgage held by the Farmers Home Administration relative to Tract II was set forth with sufficient clarity and was identified appropriately by date and recording information. The information provided in the judgment decree was sufficient to allow any person to appropriately search the records and obtain information relative to the mortgage. The documents submitted by Farmers Home Administration provided the sheriff with adequate evidence of its right to redeem.
IV.
Cascade County Sheriff’s Department did not receive an affidavit of an amount due upon the mortgage from the Farmers Home Administration on May 17, 1990, and at no time thereafter. This affidavit does not affect Farmers Home Administration’s ability to redeem or propriety as a redeeming party, but is relevant only if a subsequent redemption were attempted. Plaintiff had actual knowledge of Farmers Home Administration redemption ...
V.
The notice of redemption was presented six days prior to the expiration of the redemption period. The notice provided by plaintiff, by and through his counsel of record, of his objection to the notice of redemption came after the redemption period expired. Further, the notice of objection was vague, ambiguous and set forth no specific grounds of objection. There is no evidence that prior to the redemption period expiring plaintiff made any effort to determine the amount actually due and owing to Farmers Home Administration upon its mortgage. It is plainly apparent that plaintiff’s objections demonstrate a preconceived desire to refuse to accept tender. If plaintiff had pointed out his objections Farmers Home Administration would have had time to remedy technical deficiencies. If one fails to state his objections to a a tender, he is deemed to have waived them.
VI.
Redemption statutes are remedial in nature and are to be liberally construed. In the absence of prejudice to the other parties, substantial compliance with the redemption statutes is sufficient to effect a redemption. Plaintiff received the full amount he was entitled to by the redemption. Plaintiff took no action to effect a subsequent redemption, if he was a party entitled to, and therefore has failed to show any prejudice.

The District Court then issued its order granting summary judgment to FmHA, and the plaintiff Savoy appeals from that.

We agree that the legal conclusion of the District Court was correct as to the remedial nature of redemption statutes. We hold that redemption statutes are remedial in nature and are to be liberally construed and that in the absence of some form of prejudice to parties involved, substantial compliance with redemption statutes is sufficient to affect a redemption in connection with mortgage foreclosure. A general statement to that effect was stated by this Court in Dipple v. Neville, et al. (1928), 82 Mont. 280, 291, 267 P. 214. In the Utah case of United States v. Loosley (1976), 551 P.2d 506, the Utah court said the following in connection with a redemption from a mortgage foreclosure:

... The main purpose of a mortgage is to ensure the payment of the debt for which [it] stands as security; and foreclosure is allowed when necessary to carry out that objective. But foreclosure is in the nature of a forfeiture, which the law does not favor. The proceeding is one in equity in which principles of equity should be applied ...
Consistent with the foregoing, rules and statutes dealing with redemption are regarded as remedial in character and should be given liberal construction and application to permit a property owner who can pay his debts to do so, and thus make his creditor whole, and save his property. Therefore, if a debtor, acting in good faith, has substantially complied with the procedural requirements of the rule in such a manner that the lender mortgagee is not injured or adversely affected, and is getting what he is entitled to, the law will not aid in depriving the mortgagor of his property for mere falling short of exact compliance with technicalities.

See also cases cited in Loosely including 55 Am. Jur, Mortgages, Sec. 867. With the foregoing rule of law as the background, we will consider the arguments of Savoy.

Savoy objects to the failure of FmHA to present the Sheriff’s Office with a certified copy of its existing mortgage and an affidavit of the amount owed under that mortgage, both of which are required to be presented to the Sheriff’s Office by the provisions of § 25-13-807, MCA. Savoy is technically correct in making this objection. However, the letter from FmHA directed to Savoy, of which a copy was served upon the Sheriff’s Office with a copy of the original Federal Land Bank foreclosure, specifically stated that FmHA was redeeming Tract II. The decree of foreclosure furnished contained a list of the lienholders on Tract II, and FmHA was listed as holding mortgages in the second, third and fifth lien position. The mortgages were described by specific reference to the book and page of recording in the office of the clerk and recorder. Savoy’s own affidavit of December 28, 1990, states that his attorney went to the Sheriff’s Office and reviewed the documents in the Sheriff’s file. Thus, Savoy’s attorney had the list of mortgages and their priorities. Savoy is properly chargeable with that knowledge.

Savoy contends he was prejudiced because no amount was listed as still owing under the FmHA mortgages. As previously stated, the letter from FmHA to Savoy gave him the name and telephone number of a person to call in FmHA if he had any questions. Savoy made no attempt to determine an amount owing on the mortgages or any other aspect of information. The only significant reason for Savoy needing the amount of the mortgage would have been if Savoy had himself wished to redeem the property. Savoy had 60 days from the time FmHA redeemed to himself redeem under the provisions of § 25-13-803, MCA. The record discloses that Savoy made no attempt of any type to redeem nor does the record contain any facts demonstrating that Savoy desired to redeem.

So far as the amount owing to FmHA, we conclude that Savoy had sufficient notice had he desired to redeem and that he sustained no prejudice as a result of FmHA’s failure to file an affidavit of the amount owing with the Sheriff’s Office.

Savoy had adequate knowledge that FmHA was a mortgage holder on the property he had purchased known as Tract II and that a substantial amount of money was undoubtedly owing under three mortgages. Savoy knew that he had 60 days in which to attempt redemption from FmHA and made no attempt to redeem or to discover any additional facts. We further point out that FmHA gave notice of redemption to Savoy six days before the end of its redemption period and had Savoy notified FmHA that he had questions or desired additional information of record, FmHA could have furnished the same. We agree with the conclusion of the District Court that Savoy received the full amount to which he was entitled for redemption purposes and that Savoy took no action to affect a subsequent redemption and has failed to show any prejudice as a result of the technical failures of FmHA to comply with the redemption statutes. We agree with the District Court that there are no questions of material fact. We affirm the holding of the District Court that FmHA substantially complied with the redemption statutes and therefore was entitled to judgment as a matter of law. We hold the District Court did not err in granting summary judgment to FmHA.

II.

Did the District Court err when it determined that Farmer’s Home Administration was a proper party to redeem?

Savoy argues that the papers supplied to the Sheriff’s Office admit that FmHA has no judgment against the property. Further, Savoy claims that the papers submitted to the Sheriff were inadequate to prove that FmHAhad an open mortgage still existing on the property. FmHA argues that it is a proper party and the court so found.

Section 25-13-801, MCA, states:

Who may redeem. (1) Property sold subject to redemption, as provided by 25-13-710, or any part sold separately may be redeemed in the manner hereinafter provided by the following persons or their successors in interest:
(b) a creditor having a lien by judgment, mortgage, or attachment on the property sold or on some share or part thereof subsequent to that on which the property is sold.

We have determined that Savoy had adequate notice that FmHAhad a legitimate mortgage on the property he bought at the foreclosure sale. Therefore, FmHA, being the holder of a mortgage, had the statutory right to redeem the property from Savoy.

We hold that the District Court did not err in determining that FmHA was a proper party to redeem Tract II.

III.

Did the District Court err when it determined that the Cascade County Sheriff’s Office had acted appropriately in not presenting Mr. Savoy with the deed to Tract II?

Savoy argues that the Sheriff’s Office should have known that the redemption was insufficient and should have issued Savoy the deed immediately upon his request. The Sheriff argues that he had requests from two different parties for issuance of the final deed to Tract II of the property and that he had to await the court’s decision concerning to whom to issue the deed.

The court determined that the Sheriff’s Office acted appropriately. We conclude that the record indicates that the Sheriff had no alternative but to await the court’s order. The record also shows that immediately upon issuance of the order FmHA received the deed. We hold the District Court did not err when it determined that the Cascade County Sheriff’s Office had acted appropriately in not presenting Mr. Savoy with the deed to Tract II.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON and HUNT concur.

JUSTICE GRAY,

concurring in part and dissenting in part.

As far as it goes, I concur in the Court’s discussion on issue III. As to issues I and II, I respectfully dissent. Given the remedial nature of mortgage redemption statutes, I agree that substantial compliance should be sufficient to effect a redemption in a mortgage foreclosure action. I do not agree, however, that FmHA was in substantial compliance with the redemption statutes at issue in this case.

The Court’s analysis and resolution of issue I focuses almost totally on what Savoy did or did not do in response to FmHA’s attempt to redeem. That focus is entirely inappropriate; the issue is whether FmHA substantially complied with statutory requirements, not whether or how Savoy responded. On that issue, I strenuously disagree with the Court’s analysis and result. I note in this regard that the Court does not even bother to analyze the “substantial compliance” question, but goes directly to the “prejudice” question. I submit that even the Loosley language on which the Court relies does not validate such an approach, but clearly requires the “substantial compliance” analysis to precede any “prejudice” analysis; only where substantial compliance has been established — as is not the case here, in my view — can a court proceed to a prejudice analysis. Instead, the Court here approaches the case backwards by using a lack of prejudice to itself establish substantial compliance.

Insofar as is relevant here, § 25-13-807, MCA, required FmHA to produce to the person from whom redemption is sought 1) a certified copy of the judgment or of the docket of the judgment; 2) a certified note of the record of the mortgage; and 3) an affidavit showing the amount actually due. The Court concedes that only one of these requirements was met. It then may have concluded, without so stating, that meeting one of three applicable statutory requirements constitutes “substantial compliance.” In doing so, the Court totally— and inappropriately — vitiates the statutory requirements. I cannot agree.

Moreover, the Court’s focus on Savoy’s actions or inactions also is inappropriate. It results in this Court telling redemptioners they need not comply with mandatory statutory provisions, in hopes that a party protesting the redemption will not meet judicially created and imposed standards. For example, the Court notes that Savoy’s protest did not specify the bases under § 25-13-807, MCA, for the protest. The Court conveniently fails to cite to any authority requiring such a specification of the bases for a protest; in addition, the Court’s conclusion that the statutory requirements were not met by FmHA— on the face of it — hardly lends support to the notion that the failure to specify bases for the protest is somehow relevant here.

The Court also dwells on a variety of other omissions by Savoy— none of which is statutorily based — in order to support its resolution of this issue. It suggests that Savoy had some obligation to check property records and telephone around in order to find for himself the information the statute required FmHA to provide to him. The effect is to shift a clear statutory burden from the redemptioner to the person from whom redemption is sought. In essence, the Court has either totally rewritten § 25-13-807, MCA, or has decided to judicially repeal that statute. We are not free to do either. See §§ 1-2-101 and -102, MCA.

For these reasons, and others about which a lengthy recitation of the multitude of defects in the redemption procedures used here would serve little purpose other than to give the Court’s opinion more precedential effect, I dissent. I would reverse the District Court.

JUSTICE NELSON and JUSTICE TRIEWEILER join in the foregoing concurring and dissenting opinion of JUSTICE GRAY.


author: JUSTICE HUNT JUSTICE WEBER

text:
    MICHAEL BROCKIE, as Personal Representative of the Estate of ARIC C. BROCKIE, Deceased, Plaintiff and Appellant, v. OMO CONSTRUCTION, INC., Defendant and Respondent.
    No. 93-631.
    Submitted on Briefs June 23, 1994.
    Rehearing Denied Jan. 18, 1995.
    Decided December 13, 1994.
    51 St.Rep. 1322.
    268 Mont. 519.
    887 P.2d 167.

      For Appellant: Kurt M. Jackson, Hoyt & Blewett, Great Falls.
    For Respondent: Michael J. Milodragovich and Margaret L. Sanner, Milodragovich, Dale & Dye, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Michael Brockie, as personal representative of the estate of Aric Brockie, appeals from an order of the First Judicial District Court, Lewis and Clark County, denying appellant’s request for a new trial on the question of damages for the survivorship action.

Following filing of his appeal, appellant filed a notice of subsequent authority pursuant to this Court’s recent decision in Newville & Gannet v. State of Montana, Department of Family Services (1994), [267 Mont. 237], 883 P.2d 793, asking us to apply Newville retroactively to the wrongful death award. We discuss the application of the Newville decision in this opinion.

Reversed and remanded.

We state the issues as follows:

1. Was the jury’s special verdict finding zero survivorship damages to the estate of Aric Brockie contrary to the evidence?

2. Did the District Court err by denying appellant’s motion for a partial new trial on the issue of the survivorship damages sustained by Aric Brockie’s estate?

Aric Brockie was killed in an automobile accident on November 26, 1989, on Interstate 94, east of Billings. Aric was a passenger in a vehicle that skidded on an icy bridge deck and collided with a large, portable construction sign owned by defendant Omo Construction, Inc.

Brockie v. Omo Construction, Inc. was first tried in September 1991, and resulted in a verdict of “no negligence” in favor of defendant Omo. Prior to trial, appellant settled with and released the driver. This court reversed and remanded on the grounds of misconduct by the jury foreman. Brockie v. Omo Construction, Inc. (1992), 255 Mont. 495, 844 P.2d 61.

On remand, the jury returned a special verdict finding Omo 35 percent negligent for proximately causing Aric’s injuries and death. The jury found that the non-party driver was 65 percent negligent for proximately causing Aric’s injuries and death. The jury awarded Aric’s parents $170,000 in wrongful death damages. That amount was adjusted to reflect the 35 percent negligence attributable to Omo. The jury awarded Aric’s estate zero dollars in survivorship damages.

Appellant filed a motion for a partial new trial pursuant to Rule 59, M.R.Civ.R, limited to the issue of survivorship damages sustained by Aric’s estate. The District Court issued an order denying appellant’s motion. Appellant appeals the court’s order.

ISSUE 1

Was the jury’s verdict finding zero survivorship damages to the estate of Aric Brockie contrary to the evidence?

Appellant argues that the jury faded in its duty to award survivorship damages to the estate, despite the fact that the evidence and stipulations established funeral and medical expenses and a loss of future earning capacity for the remainder of Aric’s work life expectancy.

We have held that it is not the function of this Court to agree or disagree with a jury’s verdict. Schulke v. Gemar (1994), 264 Mont. 184, 870 P.2d 1378. Arnold v. Boise Cascade Corporation (1993), 259 Mont. 259, 856 P.2d 217. This Court’s role is to determine whether there was substantial evidence to support the verdict. Schulke, 870 P.2d at 1380; Arnold, 856 P.2d at 220. If conflicting evidence exists, we do not retry a case because the jury chose to believe one party over another. Simchuck v. Angel Island Community Association (1992), 253 Mont. 221, 833 P.2d 158. However, a “jury may not disregard uncontradicted, credible, non-opinion evidence.” Putnam v. Pollei (1969), 153 Mont. 406, 413, 457 P.2d 776, 780.

The record shows that prior to the second trial, the court granted appellant’s motion for partial summary judgment finding that Aric survived the accident, entitling his estate to a survivorship claim pursuant to § 27-1-501, MCA, which carries forward the claims the injured party had before death. Montana’s survivorship statute, § 27-1-501, MCA, provides in pertinent part:

(1) An action, cause of action, or defense does not abate because of the death or disability of a party or the transfer of any interest therein, but whenever the cause of action or defense arose in favor of such party prior to his death or disability or transfer of interest therein, it survives and may be maintained by his representatives or successors in interest. ...
(2) Actions brought under this section and 27-1-513 must be combined in one legal action, and any element of damages may be recovered only once.

The statute allows recovery by the decedent’s personal representative of decedent’s lost earnings from the time of injury to death; the present value of his reasonable earnings during his life expectancy; his medical and funeral expenses; reasonable compensation for his pain and suffering; and other special damages. Swanson v. Champion International Corp. (1982), 197 Mont. 509, 515, 646 P.2d 1166, 1169. We have consistently held that the estate’s right of recovery in a survivorship action is identical to that of the decedent’s had he lived. “No reason exists why the scope of the action should diminish because of his death.” Beeler v. Butte & London Copper Development Co. (1910), 41 Mont. 465, 478-79, 110 P. 528, 532; see also Swanson, 646 P.2d at 1169; Hurley v. Star Transfer Co. (1962), 141 Mont. 176, 184, 376 P.2d 504, 508; Autio v. Miller (1932), 92 Mont. 150, 169, 11 P.2d 1039, 1046.

The parties stipulated that Aric’s estate incurred funeral and medical expenses totaling $2,601.10. The parties also stipulated that at the time of his death, Aric was 19.45 years old and that he had a work life expectancy of 40.75 years. Appellant presented evidence that in the year before his death, Aric earned $3,239.08 at an Eastern Montana College computer lab. Appellant’s expert testified that Aric would have been expected to earn between $878,518 and $1,113,929 during his work life, depending on the type and amount of his education.

In Putnam, the personal representative of a college student killed in an automobile accident brought a survivorship action under § 93-2824, RCM, the predecessor of § 27-1-501, MCA. The plaintiff in Putnam offered expert testimony as to the decedent’s potential loss of future earnings; the decedent’s life expectancy; and testimony concerning the decedent’s employment history, education, and personal abilities. No evidence was submitted as to the amount of money the decedent earned at her employment. The jury returned a verdict of $449.95, the amount of the decedent’s personal property destroyed in the accident. The jury awarded nothing for the decedent’s loss of future earning capacity. The district court set aside the verdict and ordered a new trial limited to the issue of damages and held that there was insufficient evidence to support a verdict that the decedent had no future earning capacity. We affirmed and stated that the verdict was impossible, given the uncontradicted evidence which established an earning capacity at the time of death. We held that “there was no substantial evidence justifying the jury verdict awarding no damages for decedent’s loss of earning capacity.” Putnam, 457 P.2d at 780.

In the present case, the evidence offered by appellant to establish survivorship damages was either stipulated to or offered without contradiction. The jury did not have the choice whether to believe one party’s evidence over the other. As a result, the jury’s verdict in the present case is as impossible as was the verdict in Putnam. There is no substantial evidence to justify the jury’s failure to award survivor-ship damages.

In Rudeck v. Wright (1985), 218 Mont. 41, 709 P.2d 621, Mr. Rudeck died after a ‘lap mat” was negligently left in his stomach during surgery. His wife filed two medical malpractice claims for wrongful death, and in her capacity as personal representative of her husband’s estate, for his survival claims. The jury returned a verdict awarding Mrs. Rudeck $75,000 on her wrongful death claim and zero on the estate’s survival claim. The district court granted Mrs. Rudeck’s motion for a new trial. The defendant appealed.

We affirmed and held that the jury’s verdict in awarding damages on the wrongful death claim, but no damages on the survival claim, was “totally inconsistent and contrary to the mandates of the law.” Rudeck, 709 P.2d at 624.

If Mr. Rudeck’s death was caused by the negligence of defendant Wright, then the earlier injury to Mr. Rudeck which culminated in his death must have been caused by the same negligence. If the same negligence ... caused the personal injury to the living Mr. Rudeck and that same negligence caused his later death, the jury would be compelled to award damages for Mr. Rudeck’s personal injury (which were sought in the survival claim on his behalf by the personal representative of his estate) as well as awarding damages on the wrongful death claim. Because the jury did not do so, its verdict is inconsistent and is against the law.

Rudeck, 709 P.2d at 624.

Aric Brockie’s death was caused in part by respondent’s negligence. The injuries to the living Aric Brockie were caused by the same negligent acts of respondent that resulted in Aric Brockie’s death. The jury, therefore, was compelled to award survivorship damages for Aric’s personal injuries. We conclude, as we did in Rudeck, that because the jury failed to award damages for Aric’s personal injuries caused by respondent’s negligence, its verdict is “totally inconsistent and contrary to the mandates of the law.” Rudeck, 709 P.2d at 624.

We hold that the jury’s special verdict finding zero survivorship damages to the estate of Aric Brockie was contrary to the evidence.

ISSUE 2

Did the District Court err by denying appellant’s motion for a partial new trial on the issue of survivorship damages sustained by Aric Brockie’s estate?

Anew trial may be granted on grounds of insufficient evidence to justify the verdict. Section 25-11-102(6), MCA. Our standard of review of a ruling on a motion for a new trial is whether the district court abused its discretion. Estate of Spicher v. Miller (1993), 260 Mont. 504, 506, 861 P.2d 183, 184; Gass v. Hilson (1990), 240 Mont. 459, 461, 784 P.2d 931, 933. Under Rule 61, M.R.Civ.P., the trial court must determine whether a refusal to grant the motion for a new trial would appear inconsistent with substantial justice.

In Issue 1, we held that there was insufficient evidence to justify the jury’s verdict as to survivorship damages. By answering Issue 1 in the affirmative, we must necessarily answer Issue 2 in the affirmative pursuant to § 25-11-102(6), MCA, and our decisions in Putnam and Rudeck.

We hold the District Court erred by denying appellant’s motion for a new trial on the issue of the survivorship damages sustained by Aric Brockie’s estate. This matter is remanded to the District Court for a new trial on the issue of survivorship damages.

Appellant’s notice of subsequent authority pursuant to our decision in Newville asks us to apply Newville retroactively to the wrongful death award. In that case, we concluded that the allocation of percentage of liability to non-parties violates substantive due process. We held that the relevant portion of § 27-1-703(4), MCA, is unconstitutional. When a statute is declared unconstitutional, it is void ab initio. State v. Coleman (1979), 185 Mont. 299, 319, 605 P.2d 1000, 1013.

Respondent argues that Newville should not be applied retroactively. Respondent concedes that the general rule regarding “change of law” is that this Court must apply the law that is in effect at the time it renders its decision. Lee v. Flathead County (1985), 217 Mont. 370, 704 P.2d 1060. Respondent asserts that the changed law should not be applied when it is necessary to prevent manifest injustice. See West-Mont Community Care v. Board of Health and Educational Sciences (1985), 217 Mont. 178, 703 P.2d 850. Respondent argues that application of the statute as amended would result in manifest injustice because respondent relied on the pre-Newville statute and did not name the driver as the third-party defendant. Had the trial taken place under the law after Newville, respondent maintains it would have protected its rights to indemnity and contribution from the driver by naming him as a third-party defendant.

Alternatively, respondent argues that in cases where new law has been applied retroactively, this Court has allowed the prejudiced party a new trial and the opportunity to amend the pleadings. Haines Pipeline v. MPC (1991), 251 Mont. 422, 830 P.2d 1230.

Both parties relied on pre-Newville law when presenting their cases at trial. The general rule is that a change of law between the law applied at trial and the time of appeal req[uires this Court to apply the changed law. Haines, 830 P.2d 1230; Lee, 704 P.2d 1060; West-Mont, 703 P.2d 850; Wilson v. State Highway Commission (1962), 140 Mont. 253, 370 P.2d 486.

An exception to the general rule, is that the new law will not be applied when it is necessary to prevent manifest injustice. Haines, 830 P.2d at 1238. This Court has defined manifest injustice as an application of a new law that impairs a vested right. West-Mont, 703 P.2d at 852. “A judgment is not a vested right while it is subject to review or while an appeal is pending.” Haines, 830 P.2d at 1238.

Because this case is still on appeal, respondent has no vested right in the pre-Newville application of § 27-1-703(4), MCA.

The jury found respondent 35 percent negligent, and the non-party driver 65 percent negligent, in causing Aric’s injuries and death. The jury awarded appellant $170,000 in wrongful death damages, and the court adjusted that amount to $59,000 to reflect the jury’s allocation of negligence.

On remand, the District Court will reinstate the full amount of the wrongful death award pursuant to our decision in Newville. That amount will be offset dollar-for-dollar by the pretrial settlement with the non-party driver.

We reverse the jury verdict finding zero survivorship damages and remand for a new trial limited to the issue of survivorship damages.

JUSTICES HARRISON, TRIEWEILER and NELSON concur.

JUSTICE WEBER

dissents as follows:

The majority opinion states issue one as follows:

1. Was the jury’s verdict finding zero survivorship damages to the estate of Aric Brockie contrary to the evidence?

That statement of the issue addresses only a part of the aspects which should be considered on this issue. I suggest that the defendant’s statement of issue is more complete:

1. Whether the district court abused its discretion in refusing to grant a new trial on the sole issue of survivorship damages where the jury awarded $170,000 as wrongful death damages.

In considering this issue, it is necessary to keep in mind the questions answered by the jury in the special verdict form prepared by the plaintiff:

QUESTION NO. 6:
Without making any reductions for percentages of negligence, what are the total damages sustained by Michael and Susan Brockie as the heirs of Aric Brockie?
ANSWER:
$ 170,000
If you have assessed damages in answer to question number six, you must answer question number seven. If you have not assessed damages in answer to question number six, you must proceed to answer question number seven.
QUESTION NO. 7:
Without making any reduction for percentages of negligence, what are the total damages sustained by the estate of Aric Brockie as the result of his death?
ANSWER:
$-0-

From the wording of the special verdict it appears quite possible that survivorship damages could have been included in the $170,000 answer to question six. That was the view of the trial judge. Following is the analysis of the District Court in which it denied plaintiff’s request for a new trial on the issue of survivorship damages only:

ORDER ON PLAINTIFF’S REQUEST FOR A NEW TRIAL
The jury in this matter returned its verdict on October 20,1993. In that verdict, the jury found that the total damages suffered by Michael and Susan Brockie as the heirs of Aric Brockie were $170,000. The jury further found that Defendant Omo was 35 percent negligent, which translates into an award of $59,500 for the Brockies. The attorneys for the Brockies have moved for a new trial on the issue of survivorship damages alone. The Brockies argue that there is no dispute but that Aric survived the accident and had a survivorship action. The Court agrees that this was undisputed. ...
Defendant contends that the jury could totally disregard the expert testimony if they wanted to. This is consistent with the supreme court holding in Putnam v. Pollei, 153 Mont. 406, 457 P.2d 776 (1969). ...Neither in that special verdict form nor in the closing arguments did Plaintiff’s attorneys offer any guidance to the jury as to how the damages were to be split up between Aric’s parents as the heirs in a wrongful death action and damages to be awarded to the personal representative of the estate. It would not have been difficult at all for such a jury questionnaire to have been drafted and offered, but none was.
The Brockies insist that they have not had a fair trial. This Court feels that they have received a fair trial. All of the evidence that they wanted introduced was introduced. The special verdict form that they offered was used by the Court. The $170,000 that the jury did award could well have been to compensate for Aric’s medical and funeral expenses, along with his earning capacity and damages to his parents. This we will never know. Primarily we will not know this because of the way the verdict form was crafted. For Plaintiff’s counsel to now complain about the verdict form that was crafted by Plaintiff does not find a receptive audience with this Court. Further, this is not a case as was Putnam where damages of $445 were awarded, nor was it a case such as Flaherty v. Butte Electric Railway, 42 Mont. 89, 111 P. 348 (1910) where $100 damages were awarded for the loss of a tluee year old child.
To allow a new trial on the survivorship action alone would allow Plaintiff to keep the money they have already won and roll the dice again. They have won a substantial award from the jury, and the fact that it is not broken out between the survivorship and wrongful death action is not the fault of Defendant nor this Court.
Therefore, Plaintiff’s request for a new trial on the question of damages for the survivorship action is hereby denied. (Emphasis supplied.)

In addressing this issue, the majority opinion emphasizes the uncontradicted evidence which establishes survivorship damages which should have been awarded, including funeral and medical expenses in the amount of $2,601.10 and earnings testified to by the plaintiff’s expert in an amount of $878,518 to $1,113,929. The majority opinion then concludes there is no substantial evidence to justify the jury’s failure to award such survivorship damages.

The foregoing analysis does not address the specific matters considered by the District Court in its denial of new trial. An example is the reference of the majority opinion to Putnam, v. Pollei (1969), 153 Mont. 406, 457 P.2d 776, in which the statement is made that the jury’s verdict in the present case is as impossible as was the verdict in Putnam. This fails to address the analysis correctly made by the District Court where it pointed out that in Putnam, the damages awarded were only $449.25, whereas in the present case, deunages were awarded in the amount of $ 170,000 and that amount could have included survivorship damages.

In a similar manner, the majority opinion relies on Rudeck v. Wright (1985), 218 Mont. 41, 709 P.2d 621. The majority opinion points out that in Rudeck, a new trial was awarded in a case in which the jury returned a verdict awarding Mrs. Rudeck $75,000 on a wrongful death claim and $0 on the estate’s survival claim. The key difference between Rudeck and the present case is that in Rudeck the Court allowed a new trial on all issues so that Mrs. Rudeck was not allowed to retain the $75,000 awarded her on the wrongful death damages and try again the issue of the estate’s survivorship damages.

As above quoted, the District Court concluded plaintiff had a fair trial. It emphasized that the special verdict form had been prepared by the plaintiff and that the “$170,000 that the jury did award could well have been to compensate for Aric’s medical and funeral expenses, along with his earning capacity and damages to his parents. This we will never know.” The District Court further emphasized that neither in the special verdict form nor in the closing arguments did plaintiff’s attorneys offer any guidance to the jury as to how damages were to be divided between Aric’s parents as his heirs in a wrongful death action and damages to be awarded to the personal representative of the estate.

I conclude there is no proper basis for overturning the denial of a new trial by the District Court, and I dissent on Issue I.

On Issue I, I do point out that the argument which appeared strongest to me in behalf of the plaintiff was the possible contradiction between the various instructions. Instruction No. 24 stated as follows:

Your award should include reasonable compensation for burial expenses and funeral services for the deceased and any reasonable medical charges which were incurred in connection with the death.

Defendant argues that this instruction fails to clearly tell the jury that the amount relating to medical and funeral expenses should be allocated to the estate on a survivorship claim. That argument does not consider the strongest argument under Instruction No. 34 which stated:

Your award should include reasonable compensation to Aric Brockie’s estate for:
The amount of lost earnings between the time of death and the time of trial; the present value of Aric Brockie’s reasonable earnings after the date of trial during the remainder of his life expectancy; and reasonable compensation for decedent’s loss of established course of life. (Emphasis supplied.)

While it is true that the special verdict form did not sufficiently advise the jury as to how to divide the damages, and while there was no explanation made by the plaintiff in the course of final argument, the above instruction certainly raises a significant issue. As a result, I believe it would have been proper for the majority opinion to conclude that there was sufficient confusion here to require a new trial and then to order a new trial on all aspects of the case. This would include a new trial on the issue of the $170,000 of damages. It would also allow consideration of the Newville case which is hereafter mentioned.

Issue II is stated by the majority opinion as:

Did the District Court err by denying appellant’s motion for a partial new trial on the issue of survivorship damages sustained by Aric Brockie’s estate?

The defendant’s proposed issue is stated as follows:

Whether a jury award allocating $170,000 in wrongful death damages to the decedent’s heirs, but $0 dollars in survivorship damages to the decedent’s estate, is reversible as contrary to the law when the plaintiff-appellant failed to provide any guidance or instructions to the jury concerning allocation of damages, and the jury followed all instructions actually given to it.

The majority opinion concluded that its answer on issue one required a reversal of the District Court. The authority for this decision is Putnam in which the key distinction from this case was the award to Putnam of insignificant damages in the amount of $449.25. The distinction from Rudeck is that in Rudeck, the entire case was remanded for a new trial including the $75,000 awarded, as compared to the present case where the plaintiff is allowed to retain his share of the $170,000, but is allowed to go to trial on the issue of survivorship damages.

For the reasons set forth under Issue I, I dissent from the conclusion that the District Court erred in denying the plaintiff’s motion for a partial new trial on the issue of survivorship damages.

Newville Application

The majority opinion points out that the plaintiff asks us to apply Newville v. Montana Department of Family Services (1994), [267 Mont. 237], 883 P.2d 793, retroactively to the wrongful death award of $170,000. I think it important to quote the pertinent portions of Newville:

We conclude that the allocation of percentages of liability to non-parties violates substantive due process as to the plaintiffs.
We hold that the following portion of § 27-1-703(4), MCA (1987), violates substantive due process:
... persons released from liability by the claimant, persons immune from liability to the claimant, and any other persons who have a defense against the claimant...
We further conclude that the remainder of the statute is capable of being executed in accordance with the legislative intent. As a result of our holding of unconstitutionality, we have eliminated that portion of the statute which allowed an allocation of negligence to non-parties ... (Emphasis supplied.)

Newville, [267 Mont. 237], 882 P.2d 793. For this analysis, the key aspect is that Newville determined there could be no allocation of negligence to non-parties.

In the present case, all of the parties and the District Court as well, concluded that § 27-1-703, MCA (1987), did allow an allocation of negligence to a non-party driver. As a result, the verdict form prepared by the plaintiff and accepted by the defendant and given by the District Court, and used by the jury, resulted in a jury finding that the non-party driver was 65 percent negligent and the defendant Omo was 35 percent negligent. At that point, the understanding of the parties and of the District Court was that the $170,000 in total damages would be reduced by the 65 percent negligence which was attributable to the non-party driver. As a result of the interpretation in the majority opinion, this understanding is disregarded and the $170,000 is reinstated in full. On its face, this demonstrates a manifest injustice to the defendant.

While the majority opinion does not explain the basis for all of its decision, I assume that it is relying on State ex rel. Deere and Co. v. District Court (1986), 224 Mont. 384, 730 P.2d 396, which concluded that the 1985 version of § 27-1-703, MCA, excluded a party against whom recovery was not allowed — and having concluded that recovery was not allowed against a settling defendant, held that there was no right of contribution as to such settling defendant. After Deere was issued, § 27-1-703, MCA, was amended substantially in 1987. This 1987 amendment included the statement that for the determination of the percentage of liability attributable to each party whose action contributed to the injury, the trier of fact should consider the negligence of a number of stated persons, and specifically included persons released from liability by the claimant and persons immune from liability to the claimant. The amended statute required the trier of fact to apportion the percentage of negligence to all such persons. I emphasize the distinction between allowing an allocation of negligence to persons released from liability, and allowing contribution from such persons released from liability. While this view of the statute has not yet been considered by this Court — the contention could be made under the 1987 statute that there can be an allocation of negligence to a third-party defendant who has been released from liability even though there could be no right of contribution from that third-party defendant who has already settled with the plaintiff. As an example, in the present case, if the driver of the vehicle who had settled with the plaintiff had been named as a third-party defendant, and if the jury verdict had been the same as in the present case then the result could have been precisely the same as in the present case — that being an award of $170,000 for all of the damages of the plaintiff, but with the defendant Omo only responsible for 35 percent of the same under the revised statute.

I conclude there is a manifest injustice in the application of Newville to the defendant in the manner which has been accomplished in the majority opinion. I conclude that Newville is not authority for the application made in the majority opinion because it did not decide whether a party settling with the claimant still could be named as third-party defendant to whom negligence could be allocated.

I dissent from the majority opinion.

CHIEF JUSTICE TURNAGE joins in the foregoing dissent.

JUSTICE GRAY joins in the foregoing dissent.


author: JUSTICE HUNT JUSTICE TRIEWEILER

text:
    MARGARET A. DUCHSCHER and WALDEN J. DUCHSCHER, Plaintiffs and Respondents, v. JIMMY LEE VAILE, Defendant and Appellant.
    No. 94-188.
    Submitted on Briefs December 1, 1994.
    Decided December 15, 1994.
    51 St.Rep. 1364.
    269 Mont. 1.
    887 P.2d 181.

      For Appellant: J. Michael Young, Jardine, Stephenson, Blewett & Weaver, Great Falls.
    For Respondents: Patricia O’Brien Cotter, Cotter & Cotter, Great Falls, (for Margaret Duchscher); Theodore K. Thompson, Attorney at Law, Havre, (for Walden Duchscher).
   JUSTICE HUNT

delivered the Opinion of the Court.

Defendant Jim Vaile appeals the order of the Twelfth Judicial District Court, Hill County, refusing to modify or partially vacate an out-of-court arbitration award in favor of plaintiff Margaret Duchscher. We affirm.

The issue on appeal is whether the District Court erred in refusing to partially vacate or modify Margaret’s arbitration award.

Plaintiffs and defendant were involved in an automobile accident in Havre, on January 9, 1989. Margaret and Walden Duchscher initially filed suit in District Court, seeking both general and special damages from Jim Vaile. The parties later agreed by stipulation to submit the dispute to binding arbitration before Gordon R. Bennett, retired District Court Judge. The stipulation granted the arbitrator the power to decide all issues of liability and either grant or deny compensatory and general damages pursuant to Montana law. The stipulation further provided that costs may be awarded to the prevailing party. However, the stipulation specifically provided that “each party shall bear their own attorneys fees.”

Arbitration began on August 4,1993, in Great Falls. The arbitrator received testimony and evidence for two days. On August 5, the arbitrator indicated that he was prepared to rule without post-hearing briefs or argument. He informed counsel that he was finding for plaintiffs on all issues of liability, and stated that he would award Margaret $60,000 in special damages and $50,000 in general damages, for a total of $110,000. Walden also received an arbitration award which is not contested and is not at issue on appeal.

The arbitrator further stated that he intended to award Margaret her attorney fees in addition to the damage award. Counsel for all parties informed the arbitrator that the arbitration stipulation specifically prohibited the award of attorney fees. The arbitrator then stated that he would amend his original decision, withdrawing the $50,000 award for general damages.

The arbitrator issued the formal written arbitration award on August 6, 1993, awarding Margaret the following damages:

Special Damages
Past medical expenses $15,285.75
Past prescription expenses 1,207.44
Past travel related to treatment 4,521.41
Past wage loss 13,848.00
Future medical & related expenses 25,000.00
General damages
Past pain and suffering $50,000.00
Future pain and suffering .40,0.00,00
TOTAL $149,862.60

The arbitrator stated in the final award that “I understand the parties have agreed on attorney fees and costs and will therefore make no award for them.”

After the final award, Vaile paid all but $40,000 of Margaret’s award. Vaile appealed Margaret’s award to the District Court, seeking modification or partial vacation of the general damages award in the amount of $40,000. Vaile argued that the arbitrator improperly increased the general damages award in order to cover Margaret’s attorney fees. The District Court refused to modify or vacate the general damages award, stating that it lacked the power under Montana’s Uniform Arbitration Act, §§ 27-5-312 and -313, MCA, to modify the arbitration award. Vaile appeals.

Did the District Court err in refusing to partially vacate or modify the arbitration award?

The National Conference of Commissioners on Uniform State Laws approved the revised Uniform Arbitration Act (UAA) on August 20,1955. Since its approval, 35 states have adopted in substance the provisions of the UAA. Montana adopted the UAA in 1985. Section 27-5-112, MCA, provides that “[t]his chapter must be construed to effectuate its general purpose to make uniform the law of those states that enact [the UAA].” Therefore, to effect the purpose set forth by the Legislature, we look to applicable decisions of other jurisdictions which have also adopted the UAA.

The scope of judicial review of an arbitration award is strictly limited to the statutory provisions governing arbitration. Mausbach v. Lemke (Nev. 1994), 866 P.2d 1146, 1149; United Technology v. Dar Al Islam (N.M. 1993), 846 P.2d 307,309; Canon School Dist. v. W.E.S. Const. Co. (Ariz. App. Div. 11993), 868 P.2d 1014, 1021; Utility Trailer Sales of Salt Lake v. Fake (Utah 1987), 740 P.2d 1327, 1329; Loomis, Inc. v. Cudahy (Idaho 1982), 656 P.2d 1359, 1361-62; see also Faure, The Arbitration Alternative: Its Time Has Come, 46 Mont. L. Rev. 199, 214 (1985). Sections 27-5-312 and -313, MCA, establish the statutory grounds to modify, correct, or vacate an arbitration award and generally limit the district court’s review to allegations of fraud, partiality, misconduct, excess of power, or technical problems in the execution of the award.

Section 27-5-312(1), MCA, provides:

Vacating an award. (1) Upon the application of a party, the district court shall vacate an award if:
(a) the award was procured by corruption, fraud, or other undue means;
(b) there was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;
(c) the arbitrators exceeded their powers;
(d) the arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of 27-5-213, as to prejudice substantially the rights of a party; or
(e) there was no arbitration agreement and the issue was not adversely determined in proceedings under 27-5-115 and the party did not participate in the arbitration hearing without raising the objection.

Section 27-5-313(1), MCA, provides:

Modification or correction of award by court. (1) Upon application made within 90 days after delivery of a copy of the award to the applicant, the district court shall modify or correct the award if:
(a) there was an evident miscalculation of figures or an evident mistake in the description of any person, thing, or property referred to in the award;
(b) the arbitrators awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
(c) the award is imperfect in a matter of form not affecting the merits of the controversy.

The Montana Uniform Arbitration Act clearly does not authorize judicial review of arbitration awards on the merits of the controversy, particularly in light of § 27-5-312(2), MCA, which provides that “[t]he fact that the relief was such that it could not or would not be granted by a court of law or equity is not grounds for vacating or refusing to confirm the award.” Accord Fernandez v. Farmers Insurance Co. of Arizona (N.M. 1993), 857 P.2d 22, 25 (construing statutory provisions identical to §§ 27-5-312 and -313, MCA).

We review the refusal of a trial court to vacate, modify, or correct an arbitration award under an abuse of discretion standard. See Canon School Dist., 868 P.2d at 1021, 1024. Vaile argues that the arbitrator exceeded his authority by “juggling general damage calculations in order to award attorneys fees” to Margaret after learning that the parties contracted to pay their own attorney fees. Margaret argues that the verbal statements of the arbitrator at the conclusion of the arbitration proceedings cannot be afforded the status of a final and binding arbitration award.

Section 27-5-216(1), MCA, provides that

[t]he award must be in writing and signed by the arbitrators joining the award. The arbitrators shall deliver a copy to each party personally by certified mail or as provided in the agreement.

We hold that the requirements set forth in § 27-5-216(1), MCA, must be met before a final arbitration award can be said to exist. In this case, a final and binding arbitration award did not exist until the arbitrator reduced his award to writing, signed it, and delivered it to the parties.

Vaile urged the District Court, and urges this Court on appeal, to disregard the express language of the written arbitration award and to find that the arbitrator impermissibly awarded attorney fees to Margaret. Like the District Court, we decline to do so. The arbitrator expressly stated in the award: “I understand the parties have agreed on attorney fees and costs and will therefore make no award for them.” (Emphasis added.) The party seeking to vacate, modify, or correct an arbitration award bears the burden of proving that one of the statutorily enumerated grounds exists. See Matter of Town of Silver City (N.M. 1993), 857 P.2d 28, 34.

While the District Court acknowledged that the arbitrator may have briefly considered the issue of attorney fees at the conclusion of the arbitration proceedings, the District Court concluded that the final written award did not provide for attorney fees. The District Court concluded that the $40,000 in general damages which Vaile contests was not awarded as attorney fees, but instead, was awarded to Margaret for future treatment of her medical conditions. The arbitrator clearly stated in the final award:

I would evaluate past pain and suffering, loss of established course of life and plain inconvenience at $50,000 and, assuming, perhaps optimistically, that treatment will alleviate some of this detriment

I would evaluate future general damages at $40,000. We hold that the District Court correctly denied Vaile’s motion to partially vacate or modify Margaret’s final award.

Affirmed.

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

JUSTICE TRIEWEILER

specially concurring.

I concur with the majority’s conclusion that the District Court did not abuse its discretion when it refused to vacate or modify the plaintiffs’ arbitration award.

I disagree with what is left out of the majority opinion.

Section 27-5-112, MCA, provides that the purpose of Montana’s Uniform Arbitration Act is to make uniform the. law of those states which have enacted it. One of those states that has enacted the Uniform Arbitration Act is New Mexico.

The New Mexico court, in Fernandez v. Farmers Insurance Co. of Arizona (N.M. 1993), 857 P.2d 22, 26 (cited in the majority opinion), provided that while judicial review is limited by statute, the district court may find an arbitrator’s mistake of fact or law so gross as to imply misconduct, fraud, or lack of fair and impartial judgment, each of which is a valid ground for vacating an award. I conclude that such a consideration must, at a minimum, be included in our standard of review. Otherwise, agreements to arbitrate would be agreements to avoid the obligations imposed under Montana law, and therefore, void as contrary to public policy.

Finally, the parties in this case stipulated that the arbitration award would be made pursuant to Montana law. If the arbitrator’s decision was based on a gross disregard for Montana law, it exceeded his authority pursuant to the arbitration agreement. I conclude that the district court’s scope of review should include review for gross mistakes of law or fact.

However, applying that standard of review in this case, I conclude that there were no mistakes of law or fact so gross that they justify setting aside the arbitrator’s award. For these reasons, I specially concur in the majority opinion.


author: THE HONORABLE ROBERT BOYD HON. THOMAS M. MCKITTRICK. HON. G. TODD BAUGH

text:
    STATE OF MONTANA, Plaintiff, vs. MONICA JEAN WALL, Defendant.
    NO. DC-81-95
    DECISION
    DATED this 19th day of November, 1993.
   On August 30, 1993, the Defendant was sentenced to twenty (20) years with five (5) years suspended for Mitigated Deliberate Homicide, with several conditions imposed. The Defendant received credit for two (2) days time served.

On November 19,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Milton Datsopoulos, Attorney from Missoula, Montana. The state was represented by Larry Nistler, Lake County Attorney.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.

After careful consideration, there is a split decision of the Sentence Review Division. Judge G. Todd Baugh and Judge Thomas McKittrick vote to affirm the decision as originally imposed. They are filing specific concurrent opinions and reasons, which are independent of one another, and are attached to this Decision.

Hon. Thomas McKittrick, Chairman, and Hon. G. Todd Baugh, Member.

DISSENT:

THE HONORABLE ROBERT BOYD

DISSENTS. The Sentence Review Board wishes to thank Milton Datsopoulos, Attorney from Missoula for his assistance to the defendant and to this Court. The Board also wishes to thank Larry Nistler, County Attorney from Poison, Montana, for appearing on behalf of the State of Montana.

OPINION BY

HON. THOMAS M. MCKITTRICK.

The narrow issue before the Sentence Review Board is whether the sentence imposed on the Defendant Monica Jean Wall, is inadequate or excessive. The sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), M.C. A. Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court provides that the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive. There have been no arguments advanced suggesting the sentence is inadequate.

It is clear, from the record, that the sentencing judge considered all of the mitigating factors in this case, including psychological and psychiatric reports and testimony, in handing down the sentence which is now being reviewed. Monica Jean Wall was originally charged with Deliberate Homicide, a Felony, which carries a possible death or life sentence or imprisonment of up to 100 years. The District Court allowed the charge to be amended to Mitigated Deliberate Homicide which carries a penalty of not less than 2 nor more than 40 years imprisonment and a fine of not more than $50,000.00. A Plea Agreement was entered into between the Defendant and the State of Montana. The Defendant was advised that the Court was not bound by the Plea Agreement before she changed her plea to guilty. The Court did not follow the Plea Agreement nor did the Court follow the same recommendation contained in the Pre-Sentence Investigation Report which was for a sentence of 20 years in the Montana State Penitentiary with all time suspended.

Upon her plea of guilty the Court sentenced the Defendant to 20 years imprisonment with 5 years suspended. The District Court did not declare the Defendant dangerous for the purpose of parole eligibility nor did he declare her ineligible for parole. Furthermore, the District Court did not sentence the Defendant for the Commission of a Felony with a Dangerous Weapon. Section 46-18-221, M.C.A., provides that a person found guilty of any offense and who used a weapon in the commission of that offense shall, in addition to the punishment provided for the commission of such offense, be sentenced to a term of imprisonment of not less than 2 nor more than 10 years.

The reasons advanced for the modification of the sentence are insufficient to deem the sentence excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court. The Defendant’s arguments would be more appropriate for the Montana State Parole Board.

While there is evidence that the deceased abused the Defendant, the killing of another is not the answer to spousal abuse. The District Court’s sentence was clearly not excessive, considering the potential sentence which the Defendant could have received and considering that a life was taken by a violent act committed by the Defendant.

DATED this 3rd day of January, 1994.

Hon. Thomas M. McKittrick

OPINION BY

HON. G. TODD BAUGH

I concur in the opinion of the Hon. Thomas M. McKittrick.

I would like to add that there is no sentence that is "the right sentence" in any given case. Sentencing simply is not an exact science and reasonable people will often disagree about any given sentence. Especially is that so in a case such as this.

The Sentence Review Division of the Supreme Court and, I am sure, the sentencing Judge also, understand the mitigating circumstances and society’s failure to adequately address violence in general and spousal abuse in particular. As a society we have failed in our obligation to Monica Jean Wall. As a result she took the law into her own hands and fashioned relief society would not provide.

Nonetheless, killing and the use of guns to settle differences cannot be the answer. For deterrence of others in similar situations, a prison sentence must be imposed in these cases. However, it does not serve our society well to sit back smugly and say the problem is addressed when Monica Jean Wall is sent to prison for killing her abusive husband. We owe it to our children and grandchildren to address the issue of spo.usal abuse before it ever gets close to the situation in which Monica Jean Wall found herself.

Dated this 6th day of January, 1994.

Hon. G. Todd Baugh


text:
    STATE OF MONTANA, Plaintiff, vs. WENDELL ODELL GRAY, Defendant.
    NO. DC- 92-23
    DECISION
    DATED this 19th day of November, 1993.
   On July 23, 1992, the Defendant was sentenced to fifteen (15) years for Robbery. Credit is given for 186 days time served and any additional time served awaiting transportation to Montana State Prison. The defendant is dangerous and ineligible for parole for the entire 15 years.

On November 19,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was represented by Marty Lambert, Gallatin Deputy County Attorney.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, Member and Hon. Robert Boyd, Alternate Member.

The Sentence Review Board wishes to thank Mr. Gray for appearing pro se and would also like to thank Marty Lambert for appearing on behalf of the State of Montana.


text:
    STATE OF MONTANA, Plaintiff, vs. FRANK EUGENE JOHNSON, Defendant.
    NO. CR-92-44
    DECISION
   On June 30, 1993, the Defendant was sentenced to twenty (20) years for Sexual Assault, without the possibility of parole.

On November 19,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed at this time.

DATED this 19th day of November, 1993.

The matter has been dismissed with leave to reapply for Sentence Review.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, Member and Hon. Robert Boyd, Alternate Member.


text:
    STATE OF MONTANA, Plaintiff, vs. JAMES ROBERT FRANK, Defendant.
    NO. CR-92-26
    DECISION
    DATED this 19th day of November, 1993.
   On July 21,1993, the Defendant was sentenced to ten (10) years for the revocation of Theft. Credit is given for 123 days time served.

On November 19,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed at this time. The defendant explained that he has contacted the Montana Defender Project and they have agreed to assist him at a later date.

The matter has been dismissed with leave to reapply for Sentence Review.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, Member and Hon. Robert Boyd, Alternate Member.