author: MR. JUSTICE MORRISON MR. JUSTICE SHEEHY,

text:
    FRANK A GUNNIP, Receiver of McDonald & Eide, Inc., a corp., Gene Huntley and Robert P. Schwinn, Plaintiffs and Appellants, v. CONTINENTAL OIL COMPANY, a corp., and Shell Oil Company, a corp., Defendants and Respondents.
    No. 85-321.
    Submitted May 13, 1986.
    Decided Sept. 9, 1986.
    Rehearing Denied Dec. 9, 1986.
    727 P.2d 1315.
    MR. JUSTICE SHEEHY dissented and filed opinion in which MR. JUSTICE HARRISON joined.
    Huntley & Fakin, Gene Huntley argued, Baker, for plaintiffs and appellants.

      Moulton, Bellingham, Longo & Mather, William Bellingham, Billings, E.V. Gross argued, Houston, Tex., for Shell Oil.
    Crowley Law Firm, Carolyn Ostby argued, Billings, for Continental Oil.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Plaintiffs appeal the April 25, 1985, order of the Sixteenth Judicial District Court granting summary judgment in favor of defendants. We reverse and remand.

This action was brought by plaintiffs to secure an additional Vs of the proceeds from a producing oil well in Fallon County, Montana. The lease (Lease) in dispute covers the NWVi of Section 8, Township 7 North, Range 60 East, and has been the subject of litigation twice previously. A brief history of the chain of title is in order.

Prior to July 1955, McDonald & Eide, Incorporated (M & E) owned the entire working interest in the Lease. At all times, the Lease has been subject to a 12.5% landowner royalty and a 3% over-, riding royalty; these royalty interests are not in dispute. On July 12, 1955, M & E assigned 100 percent of its interest in the SV2 of the NWVi and 50 percent of its interest in the NV6 of the NWVi to H. W. McDonald. McDonald did not record this assignment until May 15, 1963.

On January 22, 1958, M & E’s corporate charter was repealed for failure to pay taxes. Under Delaware law, the corporation had three years to wind up its business. On June 1, 1961, corporate officers of M & E purported to assign M & E’s total working interest in the Lease to Vernon Eide and Jacob Von DeLinde. This assignment conflicted with the one previously made to McDonald.

Shortly thereafter, Continental Oil Company (Continental) began negotiations with Eide & Von DeLinde to purchase the Lease. Recognizing that McDonald had filed a quiet title action against Eide and Von DeLinde concerning the Lease, Continental sought McDonald’s participation in the deal. On May 22, 1962, Eide & Von De-Linde assigned an undivided V2 interest in the Lease to Continental. On May 24, 1962, McDonald signed an agreement ratifying the assignment from Eide & Von DeLinde to Continental of an undivided V2 interest in the Lease. The ratification agreement provided in part,

“. . . the undersigned, H.W. McDonald, does hereby ratify, adopt and confirm said assignment, in all things with the same force and effect as if the undersigned had been named the assignor therein and had duly executed and delivered said assignment to Continental Oil Company.

“For the same consideration, the undersigned does hereby transfer, assign, set over and convey unto Continental Oil Company an undivided one-half (V2) interest in the oil and gas lease above described

On March 20, 1964, while McDonald’s quiet title action was still pending, McDonald made the following assignments: to Gene Huntley 50 percent of his interest in the SV2 of the NW!4 and an undivided 50 percent interest in the NVfe of the NW Í4; to Donald Iverson 25 percent of his interest in the SV2 of the NW!4 and an undivided 25 percent interest in the NV2 of the NWV4; to Alvin Larson 25 percent of his interest in the SV2 of the NWVi and an undivided 25 percent interest in the NV2 of the NW14. Each of these assignments included a provision that the intent of the assignment was to convey to the assignee the respective share of moneys “held in suspense by Continental Oil Company.”

On June 16, 1964, final judgment No. 3679 was entered in McDonald’s quiet title action against M & E, Eide, Von DeLinde and Continental. The judgment quieted title in the Lease in McDonald to the extent of 50% of the NV2 of the NW!4 and all of the SV2 of the NWVi, yet held McDonald’s interest subject to the ratification agreement with Continental. The interests of Huntley, Iverson, and Larson were not addressed by the judgment.

On May 28, 1965, the stockholders of M & E appointed Frank Gunnip as receiver for M & E. On February 23, 1967, Gunnip sued M & E and its corporate officers to recover the Lease and other property. Findings of fact and conclusions of law were entered by the trial judge on December 21, 1970, ruling that the conveyance in 1961 of the Lease from M & E to Eide and Von DeLinde was voided in its entirety. Final judgment was delayed for several years due to interim proceedings providing for payment to parties who had developed the Lease. On January 7, 1976, final judgment No. 4062 was entered, providing that Gunnip was owner of a one-half interest in the N V2 of the NW lA; defendants Eide, Von DeLinde and Continental were held to have no interest in the Lease.

Shell Oil Company, responsible for disbursing the proceeds from the Lease, continued to pay Continental V2 of the proceeds based upon Continental’s assertions that it was entitled to that fraction. Continental continued to claim a 50 percent interest under the ratification agreement with McDonald. Although judgment No. 4062 held that Gunnip was owner of a 50 percent interest in the Nx/2 of the NWV4, Shell was paying him an amount equal to a 25 percent interest.

On October 6, 1981, Gunnip assigned a 3.75 percent interest in the Nx/2 of the NWx/4 to Huntley, and a 2.5 percent interest in the Nx/2 of the NWx/4 to Robert Schwinn.

Huntley became aware that Gunnip was not receiving his full share, and following demands for payment, Gunnip, Huntley and Schwinn filed suit requesting an additional Vs of the proceeds from the Lease. Following summary judgment motions from both parties, summary judgment was granted in favor of Continental by order dated April 25, 1985.

The sole issue on appeal is whether the District Court erred in granting Continental’s motion for summary judgment.

Rule 56(c), M.R.Civ.P. provides that summary judgment shall be granted when the record discloses no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. A review of the record before the District Court in this case reveals fact issues which must be resolved.

Continental asserts it is entitled to a 50% interest in the Nx/2 of the NWx/4 of the Lease under the ratification agreement with McDonald. However, Continental admits in its brief that it did not adopt this position at the time the ratification agreement was executed in 1964; prior to the time judgment No. 4062 was entered, Continental derived a 25% interest in the Nx/2 of the NWXA from the Eide and Von DeLinde conveyance and a 25% interest under the ratification agreement. Judgment No. 4062 voided the conveyance from M & E to Eide and Von DeLinde in its entirety, thereby eliminating the 25% interest Continental claimed under assignment from Eide and Von DeLinde. Following judgment No. 4062, Continental continued to assert a 50% interest under the ratification agreement with McDonald.

There remain unresolved issues of material fact regarding the interest of Continental. Although McDonald conveyed an “undivided one-half interest” in the Lease under the ratification agreement, Continental admits in its brief that it did not treat its 50% interest in the Nx/2 of the NWVi as being derived solely from McDonald until judgment No. 4062 was entered. In 1964 McDonald assigned undivided interests to Huntley, Iverson, and Larson. Huntley, Iverson and Larson have claimed under this assignment adverse to the interest Continental now claims under the ratification agreement. A trial must be held to assess Continental’s interest considering potential application of adverse possession, waiver and estoppel.

The court cannot decide Continental’s interest under McDonald’s ratification agreement without McDonald’s assignees before the court. They must be joined on remand.

Continental’s asserted 50% interest in the NW of the Lease must be tested against the interest of McDonald’s assignees and their successors in interest. The order of the District Court awarding summary judgment to Continental is reversed. The matter is remanded for further proceedings in accordance with this opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, HUNT and MR. CHIEF JUSTICE HASWELL, who was sitting for MR. JUSTICE GULBRANDSON, concur.

MR. JUSTICE SHEEHY,

dissenting:

I dissent.

The bone of contention in this law suit is Continental’s argument that it now owns all of McDonald’s undivided one half interest in the leasehold as it pertains to the NV2 of the NWVi of Section 8, Twn 7 N, R 60 E, in Fallon County, Montana.

I agree that the District Court should be reversed, but it is my view that we should order a summary judgment in this case in favor of Gunnip and his assigns to the effect that Gunnip and his assigns are entitled to 25% of the working interest in the NWV4 Section 8, Twn 7 N, R 60 E.

We should further order a summary judgment to the effect that Continental Oil Company is entitled to 37.5% of the working interest in the said NWV4 of Section 8.

We should further order a summary judgment that the remaining 37.5% of the working interest in the said NWVi is owned by McDonald and his assigns.

The working interest is 84.5% of 100% of production.

General Observations

None of the parties that are involved in his action owns a fee simple title either to the land or minerals. The quarrel in this lawsuit is about the division of the leasehold interest. The res of the lawsuit is the original lease, which had to be kept in force by the lessees, either by development of an oil and gas well or by the payment of delay rentals. We do not have the terms of the original lease before us. We only know from reference in the instruments that an oil and gas lease to the whole of the NV2 of Section 8 (including the NWí4 and the NEVi) was given by William P. Knox, a single man, and Mrs. Marsha Know Orrock and her husband, Robert Orrock, to a Frank H. Becker. Becker apparently assigned the full leasehold interest, subject to the landowners royalty and a 3% overriding royalty to McDonald and Eide, Inc., a corporation, before the commencement of the matters involved this lawsuit.

After Continental drilled, and oil and gas was produced in commercial quantity on the leasehold, the Montana Oil and Gas Commission adopted 160-acre spacing rules for the area. This means that the NWV4 of the section is treated as one spacing unit, and the NEV4 of the section is treated as a separate spacing unit, even though both of these quarter sections were included in the leasehold interest owned by McDonald and Eide, Inc. For the purposes of this lawsuit, we are interested only in the leasehold interest in the NWVi.

Since the spacing unit is 160 acres, a person owning either land or a leasehold interest under the area of the NWV4 is entitled to share in the proceeds from any oil or gas produced in the NWVi in the proportion that either his landowner’s royalty ownership, overriding royalty ownership, or lease ownership bears to 160 surface acres. The denominator is always 160 surface acres.

Facts

The facts in this case must be stated more clearly.

On June 1, 1961, McDonald and Eide, Inc., then the record owner of the leasehold interest, but subject to the landowners royalty and a 3% overriding royalty, ostensibly assigned all of its interest in the oil and gas lease to Vernon M. Eide and Jay Von DeLinde (hereafter Eide and Von DeLinde) in the NV2 of Section 8, Twn 7 N, R 60 E. This assignment was recorded and as far as the record title is concerned, indicated that Eide and Von DeLinde were the successors in interest to all of the interests of McDonald and Eide, Inc., in the oil and gas lease. Thus, Eide and Von DeLinde were the ostensible owners of all of the working interest; in other words after deducting royalty interests, Eide and Von DeLinde were the owners of 84.5% of 100% of the oil and gas rights of the land involved.

However, on July 12, 1955, prior to the ostensible assignment to Eide and Von DeLinde, the corporation McDonald and Eide, Inc. had assigned to H. W. McDonald, a portion of the leasehold interest in the following language:

. . all of its right, title and interest of the original lessee and present owner in and to said lease and rights thereunder, insofar as it covers the south half of the north west quarter (SV2 and NWV4) of Section 8, Twn 7 N, R 60 E, and 50% of its interest undivided in the north half of the north west quarter (NV2 of the NWV4) of Section 8, Twn 7 N, R 60 E, subject also to the 3% overriding royalty reserved ...”

Note that the description in the assignment from the corporation to McDonald related only to the leasehold interest in the NWV4 of the section, and that it was an assignment of an interest in the lease. Under the rules relating to 160-acre spacing units, McDonald thereby became the owner of 120/160, or 75% of the working interest in the whole of the NWXA.

Since McDonald became entitled to 75% of the working interest under the NWVi of the leasehold, it follows that the assignor, McDonald and Eide, Inc., still held the remaining 25% of the working interest in that quarter section.

H.W. McDonald did not immediately file for record in Fallon County the assignment from McDonald and Eide, Inc., to him of a portion of the leasehold interest.

Enter Continental Oil Company in 1962. On February 27, 1962, it entered into a farmout agreement with Eide and Von DeLinde, (as record owners of the whole of the leasehold interest) covering the N V2 of Section 8, Twn 7 N, R 60 E, subject to the overriding royalty.

A farmout in the oil business occurs when the holders of the leasehold interest farmout to another the obligation to drill a well. The consideration in this case was 50% of the working interest in the lease.

Under the terms of the farmout agreement with Continental, Eide and Von DeLinde agreed to assign to Continental an “undivided one-half interest in and to the said lease insofar as it covers said lands.”

In accordance with the farmout agreement, Eide and Von DeLinde did, on May 22, 1962, make an assignment to Continental Oil Company of “an undivided one-half of that certain oil and gas lease” covering the NVfc of the said Section 8. Eide and McDonald further provided:

“Assignee (Continental) agrees to bear and pay an undivided one-half (1V4) of the land owner’s royalty and of the overriding royalty not in excess of three percent (3%) burdening the above described lease.”

Somehow the record before us does not show how Continental Oil learned that H. W. McDonald had an interest in the leasehold. The interest of H.W. McDonald, of course, arose from the aforementioned assignment of July 12, 1955, wherein McDonald and Eide, Inc., had assigned to H. W. McDonald 100% of its leasehold interest in the SV2 of the NWVi of Section 8, and an undivided V2 interest of its leasehold interest in the NV2 of the NWí4 of Section 8. Although this assignment was made in 1955, McDonald had not recorded the instrument and did not record it until the 1960’s. Thus when Continental did its title work on the farmout from Eide and Von De-Linde, the courthouse records did not indicate the McDonald interest in the leasehold.

On learning of the possible McDonald claim to a portion of leasehold interest, Continental obtained from H. W. McDonald a “Ratification and Adoption of Assignment” in accordance with the assignment that it had already obtained from Eide and Von DeLinde. Such a written instrument was executed by McDonald on May 24, 1962, and by it McDonald ratified and confirmed the Eide and Von DeLinde assignment, and went on to say:

“For the same consideration, the undersigned does hereby transfer, assign, set over and convey onto Continental Oil Company an undivided one-half interest in the oil and gas lease above described and in the leasehold estate created thereby on the same terms and conditions as are set forth in the assignment attached hereto and marked exhibit ‘A.’ (Underlines ours.)”

Thus, in May of 1962, Continental thought it had covered all the bases. It had a farmout agreement and assignment from Eide and Von DeLinde for a 50% interest in the leasehold for all of the NVz of Section 8, and at the same time it had a ratification and adoption of assignment from McDonald for the same acreage in case it developed that McDonald did in fact own an interest in the leasehold by virtue of an unrecorded instrument. Continental could relax and go ahead with its drilling program, which it did, and after a well was successfully developed, it felt safe enough to enter into an operator’s agreement with Eide and Von DeLinde.

The operating agreement was made after the successful well was drilled and was dated September 25, 1962. The parties are Continental Oil Company and Eide and Von DeLinde. The instrument describes that Continental has a 50% interest in the leasehold, and contains the following provision in case of failure of title:

“20. Failure of title. In the event of the failure or partial failure of title to any interest subject hereto, the loss of any such title or titles shall be borne proportionately in accordance with the respective undivided interests of the parties in the lease title to which fails (sic) and no party shall be liable to any other for the loss of any such title.”

The roof fell in for Continental Oil Company, as far as Eide and Von DeLinde are concerned, when the District Court in Fallon County determined on December 18, 1970, that the purported assignment to Eide and Von DeLinde from McDonald and Eide, Inc. (the assignment of June 1, 1961,) was void for several reasons. By virtue of that judgment any claim of Continental to a portion of the working interest through Eide and Von DeLinde failed. The interest in the leasehold that was purportedly held by Eide and Von De-Linde was vested by the District Court judgment in Frank Gunnip, as receiver for the corporation, McDonald and Eide, Inc. Continental holds no lease or instrument of any kind signed by Gunnip, his predecessors, or successors that would now serve to limit Gunnip’s interest. The judgment means that Gunnip and his assigns are the sole owners of the working interest in the NEVi of Section 8. It further means that Gunnip and his assigns are the sole owners of an undivided one-half of the working interest in the NVfe of the NWVi of Section 8. Since Gunnip and his assigns own an undivided one-half of the working interest in the NVfe of the NWVi of the leasehold, his leasehold interest in that tract is 40 surface acres of working interest. The proportion of 40 over 160 equals 25%. Gunnip and his assigns are entitled to that amount of working interest irrespective of any other result in this lawsuit.

The remaining interest in the NWVi is owned by H. W. McDonald and his assigns, but subject to the terms of the ratification and adoption of assignment that McDonald had signed for Continental on May 24, 1962.

After the 1955 assignment from McDonald and Eide, Inc., H. W. McDonald owned all of the working interest in the SV2 of the NWVi of Section 8, and an undivided one-half of the working interest in the NV2 of the NWVi of said section. Continental claims that under the ratification agreement signed with McDonald, it is entitled to 50% of the working interest under the SVi, and all of McDonald’s working interest in the undivided one-half of the NV2 of the quarter section. Because McDonald's interest in the NV2 is only an undivided one-half, Continental claims that under its ratification and adoption of assignment agreement with McDonald, it became the owner of 100% of McDonald’s interest in the NV6 of the quarter section.

The fallacy of Continental’s position can be shown in two ways: One, the ratification and assignment signed by McDonald (and by Eide and Von DeLinde) did not constitute nor was it intended to constitute a transfer of the surface acres underlying the lease. Rather it was a transfer of a percentage interest in a leasehold, the lease which is res of this lawsuit, an interest which may be calculated by reference to the surface acres. Two, if Eide and Von De-Linde had in fact a valid ownership of an undivided one-half interest in the NV6 of the quarter section, and H.W. McDonald owned the other undivided one-half interest, under Continental’s position, Continental would have earned from the two sources 100% of the working interest in the NVfc of the quarter section by virtue of its farmout agreement and the assignments. This is absurd.

Giving effect to the intention of the parties, Continental, through the farmout and assignments, could only have earned 50% of the leasehold interest validly held by the parties with whom it contracted. The result is that with respect to the NWV4, Continental owns 50% of the working interest underlying the SV2 of the NWÍ4, and 25% of the underlying leasehold in the NV2 of the said quarter section.

Reduced to acreages and percentages, of the 80 surface acres underlying the SV4 of the quarter section, Continental owns 40 acres of working interest. Of the 40 surface acres representing an undivided one-half interest in the NVfe of the quarter section, Continental owns 20 acres of working interest. It therefore owns a total of 60/160 surface acres in the NWVi or 37.5% of the working interest.

The interest of H.W. McDonald in the NW!4 is subject to subsequent assignments. Those assignments are of record, and there is no contest before us as to the propriety of those assignments. A further lawsuit is not necessary in order to determine those interests and the remand by this Court to determine those interests is quite unnecessary.

There is no need for further extended litigation in this case. There should be no quarrel about the interests of the assigns under Gun-nip, nor of the assigns under McDonald’s 37.5% interest. All that should be left for the District Court to do, in my view, would be to require an accounting and make appropriate division of the monies held back and to be earned. I would so order.

MR. JUSTICE HARRISON joins in the dissent of MR. JUSTICE SHEEHY.


source: Caselaw Access Project

author: MR. JUSTICE SHEEHY

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. VAN BUREN LASTER, Defendant and Respondent.
    No. 85-622.
    Submitted on Briefs July 31, 1986.
    Decided Sept. 9, 1986.
    724 P.2d 721.
    Mike Greely, Atty. Gen., Dorothy McCarter, Asst. Atty. Gen., Helena, Harold Hanser, Co. Atty., Teresa M. O’Connor, Deputy Co. Atty., Billings, for plaintiff and appellant.
    Robert L. Stephens, Jr., Billings, for defendant and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Van Burén Laster was charged in the District Court, Thirteenth Judicial District, Yellowstone County, with one count of criminal sale of dangerous drugs, a felony, as specified in Section 45-9-101, MCA. In the course of the trial before a jury, during the presentation of the State’s case, the District Court granted defendant’s motion for a mistrial. In a memorandum subsequent to the grant of the mistrial, the District Court found that further prosecution of the defendant would result in double jeopardy. On August 30, 1985, the District Court granted defendant’s motion to dismiss the cause with prejudice. The State appeals from the order of dismissal.

We decide this case, as did the District Court, under federal law and federal precedents. In so considering the cause, we affirm the District Court.

The double jeopardy clause of the fifth amendment to the federal Constitution protects a criminal defendant from repeated prosecutions for the same offense. United States v. Dinitz (1976), 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267, 273. The double jeopardy clause protects a defendant in his “valued right to have his trial completed by a particular tribunal . . .” Wade v. Hunter (1949), 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978. The criminal defendant’s right to have his case finally decided by the jury first selected is not absolute. A court will lift the double jeopardy bar to a second trial where “manifest necessity” exists, as when a mistrial is declared by the judge following a lack of verdict by a hung jury. United States v. Perez (1824), 9 Wheat. 579, 580, 6 L.Ed. 165.

Where, however, the defendant moves for a mistrial and the same is granted, the “manifest necessity” standard does not apply. United States v. Tateo (1964), 377 U.S. 463, 467, 84 S.Ct. 1587, 1590, 12 L.Ed.2d 448, 451. There is again a narrow exception to this rule; where the defendant moves for mistrial but is goaded into doing so by the prosecutor’s actions, the double jeopardy clause bars retrial even though defendant himself moved for the mistrial. United States v. Dinitz, supra.

In Oregon v. Kennedy (1982), 456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416, 426, the United States Supreme Court outlined the bounds of the narrow exception under federal law. The general rule was that a motion by a defendant for mistrial in effect waived his claim to double jeopardy:

“Because of the confusion which these varying statements of the standard in question have occasioned in other courts, we deem it best to acknowledge the confusion and its justifiability in the light of these statements from previous decisions. We do not by this opinion lay down a flat rule that where a defendant in a criminal trial successfully moves for a mistrial, he may not thereafter invoke the bar of double jeopardy against a second trial. But we do hold that the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial. (Emphasis added.)”

In determining the intent of the prosecutor in the case at bar, the District Court relied on the concurring opinion of Justice Powell that because “subjective” intent may often be unknowable, a court should rely primarily upon the objective facts and circumstances of the particular case. Oregon v. Kennedy, 456 U.S. at 679-80, 102 S.Ct. at 2092, 72 L.Ed.2d at 427 (Powell J., concurring). In considering the objective facts and circumstances of the case at bar, the District Court found “that the prosecutor did attempt to provoke this mistrial to afford the State a more favorable opportunity to convict by having an opportunity to charge the defendant with solicitation or sexual intercourse without consent.”

As we noted, the charge against Laster in this case was that on October 7, 1984, he had committed a felony in the criminal sale of dangerous drugs. The information charging the defendant was supported by an affidavit of the deputy county attorney, stating Laster gave P.S., then aged 16, cocaine before engaging in sexual intercourse with her. The affidavit further recited that after she left the defendant, P.S. called her mother. She then went to the hospital for a rape exam and a blood test. The affidavit recites that her blood test was positive for cocaine.

The information against the defendant was not filed until November 9, 1984.

A urine sample was taken on the evening of October 7 from P.S. and was analyzed by a laboratory technician at the hospital in Billings.

A sample of her blood was also sent to the State Crime Lab. The hospital technician detected traces of a substance that may have been a cocaine derivative in the urine sample. That sample was apparently destroyed after the analysis was completed. The blood sample sent to the State Crime Lab which has more sensitive testing equipment, was not preserved in such a way that the presence or absence of cocaine could be established from that sample in that laboratory.

On February 8, 1985, defendant’s counsel filed a motion to dismiss on the ground that the urine sample was adulterated through the State’s testing procedures and so there was no independent corroboration of the complainant’s testimony.

On February 20, 1985, the State, sensing from the laboratory report that its evidence was weak on whether cocaine was present, moved to amend the information to add an alternative count — criminal sale of imitation and dangerous drugs.

At a hearing on the two motions on March 5, 1985, a defense expert testified that the hospital technician’s test results were consistent with substances that are contained in many over-the-counter cold remedies, as well as cocaine, and that the presence of those substances produce a similar result in the type of test performed. After the hearing, the District Court denied the motion to amend the information, and denied the defendant’s motion to exclude the laboratory result provided that the State established a chain of evidence up to the point of the laboratory examination.

During the hearing, Laster was called to the stand. As to that portion of the hearing, the court found:

“During that hearing, the Defendant took the stand. On cross-examination, the prosecutor attempted to get the Defendant to admit that he is a pimp. During this line of questioning, defense counsel objected no less than fifteen times. The final objection was on the grounds that the examination was improper and consisted of discovery on the part of the State. This objection was sustained.”

Before trial, the defendant filed a motion in limine regarding the foundation for the State’s introduction of the urinalysis results and regarding hearsay evidence of other crimes. The District Court granted the motion on foundation to the extent that the State had to establish the chain of custody until the urine sample reached the lab technician. The court further granted the motion in limine as to evidence of other crimes to the extent that evidence of solicitation and prostitution were not part of the res gestae and could not be introduced as part of the State’s case-in-chief. No notice under State v. Just (1979), 184 Mont. 262, 273, 602 P.2d 957, 963 had been given. (Under Just, if the State intends to produce evidence of other crimes at the trial of the defendant, the State must give notice of such intention prior to the trial.)

On the morning of the trial, in chambers, Laster’s counsel moved for an order in limine respecting conversations at which the defendant was not present between the defendant’s brother, Eddy Laster, and P.S.’s sister, and P.S., relating to whether P.S. had agreed to go to Rockford, Illinois, with the defendant for the purpose of entering into prostitution. The court ruled that such proposed evidence was hearsay and would not be admissible unless defendant’s counsel opened up the areas on cross-examination.

When the State called its first witness, L.I., the prosecutor tried on two occasions to elicit testimony that either L.I. or P.S. were solicited “to go into another profession” than that of a high school student. On each occasion, the objection thereto was sustained.

P.S. followed L.I. as the next witness. On at least three occasions, the District Court, upon objection, overruled the prosecutor’s attempt to elicit testimony about conversations occurring when Van Burén Laster was not present.

A second development during the examination of P.S. occurred when the prosecutor sought to characterize the sexual intercourse between P.S. and Laster a rape. For an understanding of that development, a statement of the facts is necessary.

On the day of the incident, P.S. and her friend L.I. had gone to a shopping mall in Billings, Montana, for a few hours. They were picked up at the mall for a visit to the house occupied by P.S.’s sister Sheila and her consort, Eddy Laster, an admitted pimp. Eddy is the brother of the defendant here, Van Burén. At Sheila’s house there were a number of people, including P.S., L.I., Sheila, Eddy Laster and other persons unidentified. Van Burén did not come to the house until later in the afternoon.

After Van Burén arrived, P.S. went upstairs to her sister’s bedroom and tried on some of her sister’s clothes, changing out of the shorts she was then wearing and into an outfit described as a red top and gray pants. After she came down from the upstairs bedroom, she went in Van Buren’s car, sitting in the middle of the front seat between Van Burén and Van Buren’s brother, Eddy, to a motel location, where several women, evidently prostitutes, were getting ready to go out for the evening. From this location, Van Burén and P.S. took a taxi to the Wooden Nickel Motel, where Van Burén checked in, under the alias of Steve Horton, while P.S. stood beside him as he checked in.

In the motel room, P.S. said she watched television, while Van Burén busied himself around the premises. He gave her an alcohol drink which may have been vodka, two inches high in an ordinary motel drinking glass. She drank the vodka voluntarily, and reported no results. In the meantime, Van Burén got out a suitcase, and took from it some implements that were drug paraphernalia, including test tubes and a “bong.” She testified that he took a white powdery substance out of his suitcase, heated the substance and made out two “lines” on a mirror. He snorted or sniffed one of the lines and offered the other to her. She described that he scraped off the remaining line with a razor and by holding the razor to her nose, she was able to snort the remainder. Following this, Van Burén took off his clothes. She stated that she undressed herself because she didn’t want him to undress her, and apparently she got into bed with Van Burén, where they had sexual intercourse. Later she got up, got dressed, when two other persons appeared at the motel room for a time, and they “snorted some more coke.”

Sometime in the late evening, Van Burén arranged for her to take a taxi from the motel to her sister’s home. There she found one unidentified person and leaving him on an excuse, went a short distance to the War Bonnet Inn, where she called her mother.

When her mother came, P.S. told her that she had been kidnapped by two blacks, forced to take cocaine and that she had been raped. Her mother immediately took her to the local hospital and a “rape kit” was formulated there including the urine sample which was later examined by the laboratory technician.

P.S. later admitted that the story she told her mother was a hoax and that the same story she had told to the public officials and examining doctor was also a hoax. She later revamped her story to indicate that she had gone to the motel with Van Burén, and that there he had given her the cocaine as was described above.

The cross-examination of P.S. by defendant’s counsel was devastating. She admitted to changing her story of the events of the day and evening several times before the trial and during the trial. She was faced with other statements she had given to an examining physician following the incident, wherein she stated she had been forced to engage in both oral and rectal intercourse. On her cross-examination, she professed not to know what those terms meant.

When the deputy county attorney got P.S. back for redirect examination, she proceeded to examine P.S. on the meanings and methods of committing oral and rectal intercourse. At this point, the District Court recessed the proceedings for the day and asked counsel to meet her in chambers. It was at that time that the District Court granted the motion for mistrial which had been made by the defendant’s counsel earlier in the day and took under advisement the motion to dismiss the cause entirely. The District Court later entered the written order dismissing the cause which is the subject of this appeal.

In reaching the decision that the prosecutor had attempted to provoke the defendant to move for a mistrial, the court made the following additional findings:

“From these objective facts and circumstances, the [c]ourt must determine whether the prosecutor intended to provoke the final motion for a mistrial to afford the State a more favorable opportunity to convict this defendant.
“This was a case where the prosecutor was aware that the State had little evidence on the offense charged. There were tests results indicating the presence of a substance which may have been cocaine. There was a testimony of one witness whose credibility could, and was, questioned.
“This is a case where the prosecutor attempted, through a series of overreaching questions, to shift the focus of the trial from a charge of the criminal sale of cocaine to the Defendant’s status as a black pimp.
“The prosecutor cannot have been surprised at the defendant’s motion, in light of the number of objections raised before and during the trial to this line of questioning.
“These questions were so prejudicial that the defendant had little choice but to move for a mistrial to avoid a conviction for crimes with which he had not been charged.”

It is clear from the record that the prosecutor attempted to get into evidence, after the District Court had ruled such evidence inadmissible, that P.S. had been solicited by others to engage in prostitution in Rockford, Illinois. It is clear from the record that the prosecutor sought to characterize as a rape an act of sexual intercourse which P.S. had described as consensual in her testimony at trial and in her statements given to the police.

It is further clear from the record that on redirect examination the prosecutor attempted to re-establish other sexual crimes purported to have been committed by Laster which P.S. had denied on her cross-examination but which she had reported to officials or examining physicians prior to the trial. It was at this point that the District Court declared a recess of the trial and shortly thereafter granted the motion for mistrial.

The State argues in brief that the Just test did not apply in this case, and that the evidence which the prosecutor sought to introduce was inseparably linked with the crime charged as part of the corpus delicti. See State v. Riley (1982), 199 Mont. 413, 649 P.2d 1273; State v. Gillham (Mont. 1983), [206 Mont. 169,] 670 P.2d 544, 40 St.Rep. 1576; State v. Trombley (Mont. 1980), 620 P.2d 367, 37 St.Rep. 1871; and State v. Frates (1972), 160 Mont. 431, 503 P.2d 47. In short, the State continues to argue that the following evidence was all admissible to prove the sale of dangerous drugs: that the defendant was a pimp and had raped P.S. at the time he gave her cocaine; that the defendant and his brother were pimps; that in acquiring P.S. as one of his prostitutes, Laster plied her with alcohol and cocaine, anesthetizing her so as to have sexual intercourse with her with minimal resistance. Not explained by the State is why these crimes were not charged by information against the defendant. Solicitation for prostitution, engaging in prostitution, and rape, are as serious, if not more serious than a single instance of offering cocaine to a 16 year old, heinous enough in itself.

The State’s argument falls from its own weight. P.S. testified she had been “raped” by Van Burén Laster. The testimony by which the prosecutor sought to prove solicitation for prostitution was clearly hearsay outside of the presence of the defendant. The State’s weak evidence that the substance was cocaine was probably irreparable. What the District Court could not finally accept was the State’s effort to shore up its weak proof of the drug charge by attempting to produce evidence of other crimes which might prejudice the minds of the jurors.

Moreover, the arguments of the State are beside the point. The question at issue here on appeal is whether the prosecutor intended to attempt to provoke a mistrial. Our duty on appeal is to determine whether that finding can be supported. This is the first instance where a finding of that nature has come to this Court since the decision in Oregon v. Kennedy (1982), 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416.

Ordinarily, the standard of review to be applied to a finding of fact by a district court in a criminal case is whether the finding of the district court amounts to an abuse of its discretion. Thus, we will support a determination of a district court as to whether a motion to file an information is supported by probable cause unless there is an abuse of discretion. State v. Bradford (Mont. 1984), [210 Mont. 130,] 683 P.2d 924, 929, 41 St.Rep. 962, 967. A motion whether to grant or deny a motion to dismiss at the close of the State’s case is within the sound discretion of the trial court and will not be disturbed unless an abuse of that discretion is shown. State v. Whitewater (Mont. 1981), 634 P.2d 636, 637, 38 St.Rep. 1664, 1666.

In State v. Counts (Mont. 1984), [209 Mont. 242,] 679 P.2d 1245, 1248, 41 St.Rep. 681, 686, we held that the ruling of the District Court on a motion for mistrial is not to be lightly disturbed. There we approved the holding of Schmoyer v. Bordeau (1966), 148 Mont. 340, 420 P.2d 316, that in order to overturn the court’s ruling on a motion for mistrial, this Court must be shown the error of the trial court’s ruling by evidence which is clear, convincing and practically free from doubt. In this case, with respect to the dismissal of the cause on grounds of double jeopardy, we adopt the usual standard that the State has the burden to show an abuse of discretion by the District Court. We find none.

The judgment of the District Court is affirmed.

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


author: MR. JUSTICE MORRISON

text:
    SAMUEL JACKSON and Rita Jackson, Plaintiffs and Appellants, v. KROLL, POMERANTZ AND CAMERON, a Law Partnership, Defendants and Respondents.
    No. 86-01.
    Submitted on Briefs June 20, 1986.
    Decided Sept. 9, 1986.
    724 P.2d 717.

      Cok & Wheat, Michael E. Wheat, Bozeman, for plaintiffs and appellants.
    Nash, Wellcome, Frost, Guenther & Zimmer, Page Wellcome, Bozeman, for defendants and respondents.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Samuel and Rita Jackson (Jacksons), sued defendant, Kroll, Pomerantz, and Cameron, (Kroll), a law firm with its principal place of business in New York, alleging conspiracy and violation of the Montana Insurance Unfair Trade Practices Act. Kroll moved to dismiss for lack of personal jurisdiction. Following a hearing, the Eighteenth Judicial District Court granted Kroll’s motion and dismissed the complaint. This appeal follows.

Jacksons purchased residential property in Belgrade, Montana. The property had been listed with Realty World Land Office. Elizabeth McNeal, a sales agent for Realty World, originally showed the property to Jacksons. She represented to Jacksons that the lot was 120 feet wide by 140 feet long. Jacksons purchased the property in May of 1982. On October 3, 1982, Jacksons learned that the lot was only 80 feet wide and that the fence and sprinkler system installed by the previous owners encroached upon the lots on either side of the property.

Jacksons notified Realty World of the discrepancy on October 19, 1982. Realty World was covered by an errors and omissions insurance policy issued by Ambassador Insurance Company of New York (Ambassador). Pursuant to the policy, Realty World notified Ambassador of Jacksons’ claim by giving notice to Ambassador’s agent, the Kroll law firm. Kroll commenced investigation of the matter on behalf of Ambassador. On May 18, 1983, Kroll sent a letter to Jack-sons’ attorney denying liability on the part of Realty World.

On November 10, 1983, Ambassador voluntarily placed itself into insolvency rehabilitation in the State of Vermont.

Jacksons have settled with all parties concerned except Ambassador and Kroll. On May 8, 1985, Jacksons filed their complaint against Kroll law firm. Elliott Kroll filed affidavits in July and August of 1985, explaining Kroll’s position.

Elliott Kroll stated in his affidavits that the Kroll law firm:

1. did not act as an insurance company but merely represented insurance companies;

2. always hired local counsel to represent Ambassador in the various law suits filed against it;

3. was paid by Ambassador on an interim basis, was not on retainer and is owed considerable money by Ambassador;

4. owns no property or offices in Montana, retains no employees or agents in Montana, has no clients in Montana and does not regularly conduct business in Montana;

5. would contact, by telephone or letter, the interested parties, informing them that Kroll was acting for Ambassador, ascertain the pertinent facts concerning the claim and report the information to Ambassador’s claims department;

6. never agreed to approve the payment of a claim unless approved by Ambassador’s claim agent first; and

7. never actually paid a claim with its own money.

The District Court granted respondent’s motion to dismiss holding that Rule 4B(1), M.R.Civ.P., cannot be extended to give Montana personal jurisdiction over Kroll. The District Judge found that according to Elliott Kroll’s affidavits, the act which resulted in the tort action — the denial of liability on an insurance claim — was committed by Ambassador, not Kroll. He then went on to find that even if Kroll was in some way responsible, there were insufficient “minimal contacts” by Kroll with Montana to satisfy due process.

The sole issue on appeal is whether the law firm of Kroll, Pomerantz, and Cameron is subject to the jurisdiction of the Montana Courts.

The rules controlling when a Montana District Court may exercise long-arm jurisdiction are well-settled. Rule 4B(1), M.R.Civ.P., states:

“Rule 4B. Jurisdiction of persons. (1) Subject to jurisdiction. All persons found within the state of Montana are subject to the jurisdiction of the courts of this state. In addition, any person is subject to the jurisdiction of the courts of this state as to any claim for relief arising from the doing personally, through an employee, or through an agent, of any of the following acts:
(a) the transaction of any business within this state;
(b) the commission of any act which results in accrual within this state of a tort action;
(c) the ownership, use or possession of any property, or of any interest therein, situated within this state;
(d) contracting to insure any person, property or risk located within this state at the time of contracting;
(e) entering into a contract for services to be rendered or for materials to be furnished in this state by such person; or
(f) acting as director, manager, trustee, or other officer of any corporation organized under the laws of, or having its principal place of business within this state, or as personal representative of any estate within this state.”

Neither party contends Kroll is “found within the state of Montana.” Therefore, in order for jurisdiction to lie, Kroll must have done “personally, through an employee, or through an agent”, any of the above-described acts. In their complaint, Jacksons contend that through Kroll’s relationship with Ambassador, Kroll had the authority to and “did in fact participate in, manage and make command decisions concerning the evaluation and processing of Jacksons’ claim”; that these acts constituted the practice of the business of insurance; and that Kroll’s practice of the business of insurance violated the Montana Unfair Trade Practices act in that Kroll wrongly and in bad faith denied liability on their claim. These contentions, if true, constitute acts on which a tort action could be based. See Gould v. Mutual Life Insurance Co. of New York (1984), 37 Wash.App. 756, 683 P.2d 207.

Motions to dismiss, of which this is one, have

“the effect of admitting all well-pleaded allegations in the complaint. In considering the motion, the complaint is construed in the light most favorable to the plaintiff, and all allegations of fact contained therein are taken as true.” (Citations omitted.)

Willson v. Taylor (Mont. 1981), 634 P.2d 1180, 1182, 38 St.Rep. 1606, 1608.

Kroll attempts to refute the facts alleged in Jackson’s complaint through affidavits. Affidavits may be used to help determine personal jurisdiction issues under motions to dismiss. Knoepke v. Southwestern Railway Co. (Mont. 1980), 620 P.2d 1185, 1188, 37 St.Rep. 1910, 1914. However, affidavits may not be used by a defendant for the sole purpose of refuting the factual allegations in the complaint in order to deny plaintiffs their day in court. Harrington v. Holiday Rambler Corp. (1974), 165 Mont. 32, 37, 525 P.2d 556, 558-559. Because Elliott Kroll’s affidavits were used for exactly this purpose, we refuse to consider them. The contentions in Jacksons’ complaint are accepted as true for purposes of determining whether jurisdiction lies.

Since the contentions in Jacksons’ complaint constitute acts upon which a tort action could be premised, we hold that Kroll comes within Montana’s long-arm jurisdiction statutes. Rule 4B(1), M.R.Civ.P. However, our inquiry does not end here. We must next decide the most important question, whether the exercise of long-arm jurisdiction over Kroll would “comport with traditional notions of fair play and substantial justice.” Simmons v. State of Montana (Mont. 1983), [206 Mont. 264,] 670 P.2d 1372, 1376, 40 St.Rep. 1650, 1652.

In Simmons, supra, we adopted the test developed by the Ninth Circuit Court of Appeals in Data Disc, Inc. v. Systems Technology Assoc., Inc. (9th Cir. 1977), 557 F.2d 1280, 1287, for determining when exercise of our long-arm jurisdiction will be commensurate with defendant’s due process rights. When, as here, the nonresident defendant’s activities within Montana are not so “substantial” or “continuous and systematic”, as to subject defendant to general jurisdiction, the following three criteria must be met:

“1. The non-resident defendant must do some act or consummate some transaction within the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking its laws.
“2. The claim must be one which arises out of or results from the defendant’s forum-related activities.
“3. Exercise of jurisdiction must be reasonable.”

Simmons, 670 P.2d at 1378, 40 St.Rep. at 1656.

In order to determine whether exercise of jurisdiction would be reasonable, we must examine such factors as:

1. The extent of defendant’s purposeful interjection into Montana;

2. The burden on defendant of defending in Montana;

3. The extent of conflict with the sovereignty of defendant’s state;

4. Montana’s interest in adjudicating the dispute;

5. The most efficient resolution of the controversy;

6. The importance of Montana to plaintiff’s interest in convenient and effective relief; and

7. The existence of an alternative forum.

See Taubler v. Giraud (9th Cir. 1981), 655 F.2d 991, 994, and Simmons, 670 P.2d at 1383-1385, 40 St.Rep. at 1661-1664.

The trial judge erred in holding that Kroll’s due process rights would be violated should Montana exercise jurisdiction. If, as the complaint alleges, Kroll conducted the investigation on behalf of the insurance company and made the decision to deny liability, Kroll “purposely availed itself of the privilege of conducting business in Montana” and committed a tort which accrued in Montana. Under Montana law, the act causing the injury (the decision to deny liability) need not occur in Montana as long as the tort accrues here. See Bullard v. Rhodes Pharmacal Co., Inc. (D.Mont. 1967). 263 F.Supp. 79, 82, and Scanlan v. Norma Projektil Fabrik (D.Mont. 1972), 345 F.supp. 292, 293.

In addition, exercise of jurisdiction over Kroll is reasonable. If Kroll arranged with Ambassador to make decisions with respect to Ambassador’s liability throughout the country, Kroll “purposefully interjected” itself into those states where the effects of such decisions are felt, including Montana. If Kroll “purposefully interjected” itself into Montana, the burden and inequity of requiring Jacksons to prosecute this action in New York would be far greater than that of requiring Kroll to defend itself in Montana. Finally, jurisdiction is reasonable because Montana has a great interest in regulating bad faith by insurance companies in the state.

The decision of the trial judge is reversed and the cause is remanded for further proceedings.

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


author: MR. JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MATT WILLIAM CRAIN, Defendant and Appellant.
    No. 85-018.
    Submitted June 12, 1986.
    Decided Sept. 9, 1986.
    725 P.2d 209.

      Mike Greely, Atty. Gen., Kathy Seeley, Asst. Atty. Gen., Helena, for defendant and appellant.
    Skedd, Ashley, McCabe, Weingartner & Graveley, J. Mayo Ashley, Helena, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the conviction on one count of possession of dangerous drugs with intent to sell, and one count of possession of dangerous drugs. The case was tried to a jury in the Thirteenth Judicial District in and for the County of Yellowstone, Montana. Defendant was sentenced to twenty years in the State Prison at Deer Lodge on the first count and five years in the State Prison on the second count, with the sentences to run concurrently. We affirm.

A search warrant was issued for the purpose of searching the motel room of defendant, Matt William Crain. During the search, cocaine, marijuana, drug paraphernalia, cash, and records were seized. Crain later moved to suppress all the evidence seized, contending the application failed to set forth sufficient facts to establish probable cause for issuance of a search warrant. In essence he argues application of the “totality of the circumstances” test in Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, should not be applied to determine probable cause to issue a search warrant, and in this case neither the Gates test nor the two-pronged Aguilar-Spinelli test was met. See Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 and Spinelli v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637.

We use this opportunity to dispel any doubt Crain may have as to our position with regard to the use of the Gates “totality of the circumstances” test in determining sufficiency of the evidence to issue a search warrant. See State v. O’Neill (Mont. 1984), [208 Mont. 386,] 679 P.2d 760, 764, 41 St.Rep. 420, 424; State v. Hendrickson (Mont. 1985), [217 Mont. 1,] 701 P.2d 1368, 1371, 42 St.Rep. 981, 983; State v. Jensen (Mont. 1985), [217 Mont. 272,] 704 P.2d 45, 47, 42 St.Rep. 1191, 1194. In Hendrickson, supra, we said: “[i]t completely replaces the more stringent, two-pronged Aguilar-Spinelli test.”

We find no reason to abandon use of the Gates test for the more stringent Aguilar-Spinelli test. Probability of criminal activity, not a prima facie showing of criminal activity, is all that is necessary for a magistrate to issue a search warrant. State v. O'Neill, supra 679 P.2d at 764, 41 St.Rep. at 423; State v. Jensen, supra, 704 P.2d at 47, 42 St.Rep. at 1194.

Because evidence sufficient to establish probable cause for issuance of a search warrant is significantly less than evidence required to support a conviction, the issuing magistrate should be free to use his common sense to evaluate the information in the affidavit in determining whether probable cause exists to issue a warrant. AguilarSpinnelli forces the magistrates to engage in a “technical dissection of informant’s tips, [causing undue attention to be] focused on isolated issues that cannot sensibly be divorced from the other facts presented to the magistrate.” Gates, supra, 462 U.S. at 234, 103 S.Ct. at 2330, 76 L.Ed.2d at 545-546. Gates allows balancing.

The probable cause requirement for the issue of a search warrant is found in the Fourth Amendment to the United States Constitution: “. . . no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and person or things to be seized.” Art. II, Section 11 of the Montana State Constitution says: “. . . No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing.” When a search warrant has been issued, the determination of probable cause must be made solely from the information given to the impartial magistrate and from the four corners of the application. State v. O’Neill, supra, 679 P.2d at 764, 41 St.Rep. at 423; State v. Isom (1982), 196 Mont. 330, 342, 641 P.2d 417, 423; Thomson v. Onstad (1979), 182 Mont. 119, 122, 594 P.2d 1137, 1139.

In the instant case the following facts were considered by the magistrate. A concerned citizen who wishes to remain anonymous placed an unsolicited telephone call to the Yellowstone County Sheriff’s Department with information pertaining to the distribution of dangerous drugs within the county near Billings. Probable cause to issue a search warrant may be based on the tip of a confidential informant. State v. Paschke (1974), 165 Mont. 231, 234, 527 P.2d 569, 571. His information was not being provided for revenge or retaliation, but because he was concerned about distribution of dangerous drugs. Information which is motivated by good citizenship is accepted as reliable. State v. Sharp (Mont. 1985), [217 Mont. 40,] 702 P.2d 959, 962; State v. Kelly (Mont. 1983), [205 Mont. 417,] 668 P.2d 1032, 1043, 40 St.Rep. 1400, 1411. He agreed to meet with law enforcement officials at his home, so his identity was known to them.

Investigating officers were able to corroborate much of his information by verifying the name, address, and vehicle of the person named as being involved in drug dealing. The informant also provided essentially correct information as to future actions of a third party. For example, an unknown person from Texas was to transport narcotics from Texas to Billings and make contact with a person in Billings. The Texas connection would stay in a Billings motel. Although this information alone might not establish probable cause for issuance of a warrant, under the totality of the circumstances test, it does.

Additionally, much of the information in the application was gathered solely by the investigators. By checking with motel personnel they were able to determine the person registered was not the person to whom the car was registered; he listed the car as an Oldsmobile when it was a Cadillac, and listed himself as a representative of a fictitious business firm in Colorado. He refused maid service and made numerous long distance telephone calls. He made connection with a person the informant said existed. He never left the room for any length of time and on at least two occasions when he did leave the room, his Billings contact stayed in the room.

While many of the individual details listed in the application also might be consistent with innocent behavior, when all of the information contained in the application is considered in its totality, these details are indicative of individuals involved in illegal drug transactions. A citizen informant’s tip, meeting with contacts, registration in a motel under a fictitious name, listing a non-existent employer and a non-existent vehicle, and failure to leave the room, indicate there was contraband in the room. Consequently, these non-criminal acts could well form part of the basis upon which probable cause is based. Gates, supra, 462 U.S. at 243, n.13, 103 S.Ct. at 2335, n.13, 76 L.Ed.2d at 552. n.13. There is sufficient information in the application for a magistrate to determine there was a probability drugs and drug records would be found in Crain’s room. That is all that need be shown to establish probable cause. State v. McKenzie (1978), 177 Mont. 280, 581 P.2d 1205. We affirm the District Court’s decision not to exclude the evidence, and affirm the conviction.

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


author: MR. CHIEF JUSTICE TURNAGE

text:
    The STATE OF MONTANA, Plaintiff and Respondent, v. STEVE N. KERNS, Defendant and Appellant.
    No. 86-115.
    Submitted on Briefs May 9, 1986.
    Decided Sept. 9, 1986.
    Rehearing Denied Oct. 21, 1986.
    725 P.2d 1190.
    Hennessey Law Office, Joseph P. Hennessey, Billings, for defendant and appellant.
    Mike Greely, Atty. Gen., James M. Scheier, Asst. Atty. Gen., Helena, Harold Hanser, Co. Atty., Charles A. Bradley, Deputy Co. Atty., Billings, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Appellant was convicted of forgery, a felony, following a jury trial in the District Court of the Thirteenth Judicial District, Yellowstone County. Prior to trial, the court denied appellant’s motions to dismiss for lack of speedy trial. Appellant appeals the denials. We affirm the District Court.

The sole issue is whether the appellant was denied his constitutional right to a speedy trial.

Respondent, State of Montana, filed a complaint against appellant, Steve N. Kerns, alleging one count of forgery and, in the alternative, one count of attempted theft. Appellant was arrested and released on his own recognizance on April 3, 1985.

On October 28,1985, appellant filed a motion to dismiss for lack of speedy trial, which was briefed, and the trial date of November 4 was vacated. On November 5, 1985, appellant filed a motion in limine, and on November 27, the motion to dismiss was denied and trial was set for December 9, 1985. This period of time (33 days) is not chargeable against the State.

Appellant moved again for dismissal for lack of speedy trial on December 9, 1985. The trial commenced on December 9, and the case was submitted to the jury on December 11, 1985. The District Court denied the motion to dismiss on December 10, 1985. The jury returned a verdict finding appellant guilty of forgery. The District Court ordered a one-year deferred sentence contingent on forty hours community service by appellant. Appellant now appeals the denials of his motions to dismiss.

The essential chronology of the case progression from arrest to trial appears from the record:

April 3 Defendant arrested; released on his own recognizance.

April 8 State files affadavit and motion for leave to file information

April 12 Defendant files motion to dismiss; hearing set for April 16.

April 16 State files brief in opposition to defendant’s motion. Court grants motion to file information, sets briefing schedule on defendant’s motion.

April 25 Defendant files memorandum in support of motion to dismiss.

April 30 State files response to defendant’s memorandum. Court sets June 4 as date for omnibus hearing and July 29 as trial date.

June 4 Court issues order that “pursuant to agreement between court and counsel” the omnibus hearing be continued until June 25.

June 25 Omnibus hearing held.

July 19 State makes request for issuance of subpoenas. Subpoenas issued and returns filed on July 25.

August 14 Trial date vacated and reset for November 4.

October 24 State makes request for issuance of subpoenas. Subpoenas issued and returns filed.

Defendant files motion to dismiss for lack of a speedy trial. October 28

State files brief in opposition to defendant’s motion. November 1

(Trial date vacated)

November 5 Defendant files motion in limine.

Court denies defendant’s motion to dismiss; trial set for December 9. November 27

Jury preselection. December 3

Trial begins. December 9

With reference to the chronology of events, the period of time from arrest on April 3, 1985, until May 2, 1985, the day following the District Court’s denial of defendant’s motion to dismiss (29 days) cannot be considered delay, institutional or intentional. Most of this period of time involved defendant’s motion to dismiss and related briefing.

The period of time from June 4, 1985, to June 25, 1985 (21 days), cannot be delay chargeable against the State because defendant’s counsel agreed to a continuance of the omnibus hearing to June 25.

Institutional delay, occasioned by the District Court’s management of its calendar, occurred from June 26 to July 29, 1985, the first date of trial setting (33 days), and institutional delay also occurred from July 29 to October 28, 1985 (91 days). Finally, institutional delay occurred from November 28 to December 9, 1985, the date of trial (11 days).

The total days chargeable to the State as institutional delay, therefore, is 135 days.

Once again we are asked to determine whether a criminal defendant’s constitutional right to a speedy trial has been abridged. Based on the record, we conclude that appellant’s right has not been abridged.

We have utilized a four-part balancing test in determining whether a criminal defendant’s right to a speedy trial, as guaranteed by the United States and Montana Constitutions, has been denied. State v. Larson (Mont. 1981), 623 P.2d 954, 38 St.Rep. 213; State v. Bailey (1982), 201 Mont. 473, 655 P.2d 494, 39 St.Rep. 2242; State v. Haskins (Mont. 1986), [220 Mont. 199,] 714 P.2d 119, 43 St.Rep. 290. The parts of the test are: (1) length of delay; (2) reason for delay; (3) the defendant’s assertion of the right; and (4) prejudice to the defendant. While none of the individual factors are dispositive, the length of the delay is the triggering mechanism of the four-prong test. Bailey, supra. Unless there is a period of delay long enough to be presumptively prejudicial, no further inquiry is required. State v. Armstrong (Mont. 1980), 616 P.2d 341, 37 St.Rep. 1563; Bailey, supra. The appellant has failed to meet the threshold test, and no presumption of delay attaches.

The District Courts’ denial of appellant’s motion to dismiss is affirmed.

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


author: MR. JUSTICE WEBER

text:
    JOHN STEFFEN, Plaintiff and Appellant, v. DEPARTMENT OF STATE LANDS, Board of Land Commissioners, Dennis Hemmer, Commissioner of State Lands, Defendants and Respondents.
    No. 86-179.
    Submitted July 10, 1986.
    Decided Sept. 9, 1986.
    724 P.2d 713.
    Gough, Shanahan, Johnson and Waterman, Jock O. Anderson, Helena, for plaintiff and appellant.
    Lyle Manley, Helena, for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Mr. Steffen appeals a decision of the District Court for Lewis and Clark County. The court affirmed the decision of the Department of State Lands (Department) that by subletting grazing land leased from the State, Mr. Steffen had lost his preference right to renew the lease. We reverse.

The issue is whether the denial of Mr. Steffen’s preference right was unlawful.

In 1972 Mr. Steffen was issued a 10-year state lease on a 640 acre tract of school trust land in Dawson County. This land had been leased by the Steffen family for use with their adjacent 1440 acres since the 1920’s. The land is grazing land, but Mr. Steffen had not owned cattle since the late 1960’s. During the years 1972 through 1978, Mr. Steffen subleased this tract of state land to Ronald Svenvold for cattle grazing. All of the subleases except the one for the year 1977 were filed with and approved by the Department. The subleases ran from May or June until September or October of each year.

Under Section 77-6-205, MCA, a state lessee who wishes to renew the lease is entitled to a preference over others who wish to lease the land. In 1979 this Court issued an opinion, Jerke v. State Dept. of Lands (1979), 182 Mont. 294, 597 P.2d 49, in which it held that a lessee’s preference right to renew a lease is lost when the lessee does not use the land but subleases it for the entire lease period.

Mr. Steffen did not sublease the state land in 1979. In response to his inquiry, he was advised by then-Commissioner of State Lands Leo Berry, Jr. that he could take in cattle on the state land and it would not be considered a sublease so long as he managed both the land and the cattle. In 1980 and 1981, Mr. Steffen entered supplemental lease agreements, taking in livestock belonging to Doug Svenvold, son of Ronald Svenvold. In October 1981, when the term of his lease was nearing its end, Mr. Steffen was advised in a letter from the Department that he was entitled to the preference right to meet the bid of any competing bidder and renew his lease. However, in February 1982 he was advised by the Commissioner of State Lands that the previous letter was incorrect and that because he had subleased the grazing right he had lost his preference to renew the lease. He was required to make a competitive bid for the lease. His was the high bid, and the new lease was issued to him.

Mr. Steffen then requested and was granted a hearing before the Commissioner of State Lands on the matter of the loss of the preference right. The Commissioner determined that the Department was correct in ruling that Mr. Steffen had lost his preference right. He found that the Svenvolds exercised the primary management of the cattle during the terms of the subleases. He concluded that a lessee of state grazing land is buying the forage, which is expressed in AUM’s. An AUM is the amount of forage one animal unit (a cow and calf pair) will consume in a month. The Commissioner concluded that when the available AUM’s are consumed by a sublessee’s cattle, the land will be considered subleased for the entire year. Mr. Steffen’s sublessee’s cattle used up most of the available AUM’s each year. The Commissioner cited this Court’s opinions in Jerke and Skillman v. Department of State Lands (1980), 188 Mont. 383, 613 P.2d 1389, in support of his decision.

Mr. Steffen appealed to District Court. The District Court affirmed the administrative decision. It stated that the Commissioner’s findings of fact are supported by substantial credible evidence, and that the opinion was sound and legally correct and would not be overturned.

In its brief, the Department has correctly stated the standards of review of administrative decisions. We must affirm administrative findings of fact unless they are clearly erroneous; if the record contains support for the agency findings, this Court may not weigh the evidence. City of Billings v. Billings Firefighters (1982), 200 Mont. 421, 430, 651 P.2d 627, 632. The scope of review of agency conclusions of law is greater. An agency conclusion may be reversed if it represents an abuse of discretion. Billings, 651 P.2d at 632.

The Commissioner’s findings included these:

“10. During the years 1972 through 1982, Mr. Steffen alleged he performed some of the management functions. He made sure that the state was paid for the lease. He controlled access when the land was not being subleased, and at one time advised a seismic exploration company that they must apply to the Department of State Lands prior to entering the state land for exploration purposes. Mr. Steffen had authority as to when the cattle were to be put on and taken off of the land, and as to the number of cattle placed on the state land. This authority was used however, in conjunction or in consultation with the Svenvolds. Mr. Steffen directed, at times, the placement of the Svenvolds’ salt blocks, cattle scratchers and calf feeders which were located on the state land. He performed weed control on the land. He provided water, to the state land, through his own improvements. Mr. Steffen at one time disposed of one of the Svenvold’s cows which had died on the state land. Mr. Steffen, at times, farmed an adjacent tract, and was therefore, able to monitor the state land. Mr. Steffen, at times, repaired and maintained the fences, and he occasionally returned the Svenvolds’ stray cattle to the state land.
“11. During the years when Svenvold cattle were on the state land Doug Svenvold kept a watch on the cattle, both for himself and for his father. There was no difference of opinion between Doug Svenvold and Mr. Steffen as to when the cattle were to be placed on the state land. Apparently the parties jointly decided the ‘turn in’ dates. The Svenvolds placed their own salt blocks, calf feeders, and back scratchers on the land and refilled the feeders when needed. The Svenvolds also supplied the feed supplements and the fly powder for the cattle. In addition, the Svenvolds, at times, decided where to place the salt, scratchers and feeders in order to ensure uniform grazing. The Svenvolds did some of the fence maintenance and used about $200.00 worth of their own material in so doing. Mr. Steffen rarely, if ever, assisted in placing the cattle on the land or taking them off. The Svenvolds, on occasion, took responsibility for disposing of dead cattle.
“12. Both Mr. Steffen and the Svenvolds exercised elements of management of the state land. The Svenvolds exercised the primary management of the cattle while the subleases were in existence. This means that the Svenvolds were exercising the vital elements of managing the leasehold interest while the allowable AUM’s were being consumed by the Svenvold cattle.”

There is support in the record for the above findings of fact. With the exception of the last sentence in paragraph 12, the District Court’s determination that the findings could not be disturbed was correct.

The determination of which party is exercising the vital elements of managing this leasehold interest is a legal conclusion. The last sentence in paragraph 12 should properly appear in the conclusions of law. The Commissioner restated it there:

“1. When the state leases grazing land, the lessee is buying the forage, which is expressed in AUM’s. When those AUM’s are consumed the lease has little if any, value for the rest of that year. Therefore, when a state lessee subleases the land, and all or nearly all the AUM’s are used by the sublessee, it does not matter whether the sublessee’s livestock are on the land one month or twelve months for purposes of calculating the duration of the sublease. As a result, the Svenvolds subleased this state tract for at least 7 of the 10 years.
“2. Mr. Steffen did not exercise the majority of the management of this lease. He allowed the Svenvolds to exercise most of the elements of management. As a result, the arrangement with the Svenvolds did not include a retention of management by Mr. Steffen within the spirit of the Jerke and Skillman cases (cited in the following Opinion), and the Department correctly determined that Mr. Steffen lost his preference right.”

As discussed above, the standard of review of agency conclusions of law is whether they represent an abuse of discretion. Before analyzing whether the Commissioner’s conclusions represent an abuse of discretion, it is appropriate to review the facts and holdings in Jerke and Skillman.

In Jerke, this Court held that the preference in lease renewal had been unconstitutionally granted to the lessee Grazing District, because the District subleased the land for the entire 10-year term. The Court reasoned that the preference right seeks to include the concept of sustained yield within the policy of obtaining full market value on leases of state land. It induces the state’s lessees to follow good agricultural practices and make inprovements on the land. The Court stated:

“Where the preference right does not further the policy of sustained yield, it cannot be given effect. In such a situation, full market value can be obtained only by pure competitive bidding. Here, the Grazing District, the holder of the preference right, does not even use the land; it cannot use good agricultural practices or make improvements thereon. Likewise, the actual user of the land, who as a member of the Grazing District is prevented from bidding on the lease, is not motivated to further the policy of sustained yield. There is no guarantee the Grazing District will exercise its preference right and moreover, if it does, the actual user is not assured the land will be allocated to him.
“To allow the preference right to be exercised in this case would be to install the Grazing District as the trustee of the land. It, rather than the Department of State Lands, would decide who will occupy the land but it would not be bound by a constitutional or fiduciary duty. Under such a scheme, the policy of sustained yield would have no place.
“To allow an existing lessee who does not use the land to exercise a preference right constitutes an unconstitutional application of the preference right statute . .

Jerke, 597 P.2d at 51.

In Skillman, this Court upheld the district court’s application of the rule in Jerke to an individual lessee who violated the terms of his lease by subletting without the required approval of the Department. The Department had discovered the violation and cancelled the lease, but the lessee then paid a penalty and the lease was renewed. The matter was taken to District Court by Mr. Skillman, another party who wished to lease the land. The District Court applied Jerke and ordered the land reopened for competitive bidding. This Court held that “[e]very point of law and every policy consideration is as applicable to [this lessee] as it was to the grazing district.” Skillman, 613 P.2d at 1391. The judgment of the District Court was affirmed, and the lease was reopened for bidding.

In the present case, it is not true that every point of law and every policy consideration set out in Jerke is applicable. The Department’s findings of fact show that Mr. Steffen retained significant responsibility and control over the leased land throughout the sublease periods. Mr. Steffen retained control of whether the property should be grazed by subleasing for only one grazing season at a time. He retained control of what months of the year the property would be grazed. He retained responsibility for weed control, developed and retained responsibility for the water supply, and’ retained responsibility for fences. He also retained responsibility for controlling public access, retained control over the locations of feeders, scratchers, and salt blocks, monitored the cattle to ensure the allowable AUM’s were not exceeded, and retained responsibility for paying the State its annual lease payment. While it appears that the sublessees were primarily responsible for the day-to-day management of the cattle, it is not true in this case that management of the cattle is synonymous with management of the leasehold interest in the land. We conclude that Mr. Steffen retained responsibility for the essential elements of the leasehold interest in the land. There has been no allegation whatsoever of mismanagement of the land, and the constitutional rationale set out in Jerke and Skillman is inapplicable. We hold that the Department’s conclusion that Mr. Steffen is no longer entitled to his preference right represents an abuse of discretion.

An additional question is raised by the facts and the law in Skillman. Is Mr. Steffen’s failure to file his sublease with the Department in 1977 a sufficient ground for denial of his right to the preference? This issue was not addressed by the Department’s order; the failure to file was not discovered until the hearing before the Commissioner. Section 77-6-205(3), MCA, provides for discretionary cancellation of a renewal lease of state lands for a violation of the terms of the lease, but the violation must not have occurred more than 3 years prior to the date on which a notice of cancellation is issued. Since no notice of cancellation has been issued, and the unfiled lease was for the year 1977, the time limit for cancellation of the lease has passed. It is too late for denial of the preference on that ground.

We reverse the decision of the District Court and remand to the District Court for appropriate action to reinstate Mr. Steffen’s preference right.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES SHEEHY, MORRISON and HUNT concur.


text:
    In re the MARRIAGE OF DORIS V. WATERS, Petitioner and Respondent, and DUANE R. WATERS, Respondent and Appellant.
    No. 85-621.
    Submitted on Briefs May 30, 1986.
    Decided Sept. 10, 1986.
    724 P.2d 726.

      Strause & Anderson, Lawrence A. Anderson, Great Falls, for respondent and appellant.
    Swanberg, Koby, Swanberg & Matteucci, Gorham Swanberg, Great Falls, for petitioner and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

This case concerns the narrow question whether the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. Section 1408, should be applied retroactively to final decrees of dissolution which were entered subsequent to the United States Supreme Court decision in McCarty v. McCarty but prior to the aforementioned federal statute. Although a number of states have already considered this question, it is one of first impression before this Court.

Doris Waters filed a petition in the District Court of the Eighth Judicial District to modify the dissolution decree entered in that court on October 20, 1981. The petition was filed May 24, 1985, pursuant to Rule 60(b)(5) or (6) of the Montana Rules of Civil Procedure, or, in the alternative, Section 40-4-208, MCA. Duane Waters moved to dismiss the petition. The court denied his motion and entered judgment awarding Doris Waters one-half of Duane Waters’ military pension and relieving the latter of his obligation to pay maintenance. We affirm that judgment.

Duane Waters, appellant, and Doris Waters, respondent, were married in Wray, Colorado, on May 23, 1954. Duane joined the armed forces of the United States approximately eighteen months before marrying Doris. In 1975 he retired from the United States Air Force and began receiving his military pension. On October 20, 1981, the parties obtained a dissolution of their marriage.

At the time of the initial hearing, the law in Montana treated military pensions as a marital asset which was subject to equitable distribution. In Re Marriage of Miller (Mont. 1980), 187 Mont. 286, 609 P.2d 1185, 37 St.Rep. 556. However, before the final decree of dissolution was entered, the United States Supreme Court held, in effect, that federal law precluded state courts from dividing military retirement pay pursuant to state community property or equitable distribution laws. McCarty v. McCarty (1981), 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589. As a result, the District Court found that Duane’s military pension was not a marital asset, and it awarded Doris $300 per month in maintenance in lieu thereof. She did not appeal from that judgment.

Effective February 1, 1983, Congress passed the “Uniformed Services Former Spouses’ Protection Act” (USFSPA) which provides:

“Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.”

10 U.S.C. Section 1408(c)(1). This Act specifically overruled McCarty and allowed state courts to once again consider military retirement pay when making a distribution of property upon divorce. Some twenty-seven months after the Act was passed, Doris filed her petition to modify the decree of dissolution.

Appellant has raised three issues on appeal:

1. Has Doris Waters waited an unreasonable length of time to petition for modification of the judgment?

2. Is the petition to modify the judgment barred by laches?

3. Does a change in the applicable law after a final judgment has been rendered establish “changed circumstances so substantial and continuing as to make the terms unconscionable” under Section 40-4-208, MCA?

I

Respondent filed her petition under Rule 60(b)(5) or (6), M.R.Civ.P., and the District Court found that the action was proper under Rule 60(b)(6). Appellant contends that the action was not brought within a reasonable time, but he does not raise the issue whether Rule 60(b) can properly be used in this case as a means for reopening the final judgment. Nevertheless, we must consider this question since it involves the subject matter jurisdiction of this Court and of the lower court.

A

Respondent contends and the District Court found that the USFSPA should be applied retroactively so as to allow her to begin receiving a share of appellant’s military pension. In order to prevail on this argument, respondent must overcome two formidable obstacles. First, as a general rule, statutes are presumed to operate prospectively only. Penrod v. Hoskinson, M.D. (1976), 170 Mont. 277, 552 P.2d 325; Sullivan v. City of Butte (1922), 65 Mont. 495, 211 P. 301. Second, the doctrine of finality of judgments is an important concept in our law, and it is entitled to great weight. There must be some point at which litigation ends and the respective rights between the parties are forever established. Under ordinary circumstances, once this point is reached a party will not be allowed to disturb that judgment. However, Rule 60(b) is an exception to the finality of judgments doctrine.

Rule 60(b)(6), M.R.Civ.P., provides:

“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
“(6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time . . .” The source of this rule is Rule 60(b) of the Federal Rules of Civil Procedure. Our rule is identical to the federal rule except in certain respects not pertinent to this decision.

In determining what the ambiguous phrase “any other reason” means, the United States Supreme Court has stated:

“In simple English, the language of the ‘other reason’ clause, for all reasons except the five particularly specified, vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.”

Klapprott v. United States (1949), 335 U.S. 601, 614-615, 69 S.Ct. 384, 390, 93 L.Ed. 266, 277. Subsequent to Klapprott, the Court set up the “extraordinary circumstances” test in Ackermann v. United States (1950), 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207. Thus, before a party will be allowed to modify a final judgment under Rule 60(b)(6), he must first show that none of the other five reasons in Rule 60(b) apply, and he must also demonstrate extraordinary circumstances in his case which justify relief.

We find that respondent has met both of these requirements. None of the other five reasons listed in the rule apply to this case. Likewise, respondent has shown extraordinary circumstances sufficient to allow reopening of the dissolution decree.

Appellant is correct in his assertion that a change in the decisional law subsequent to a final judgment does not represent extraordinary circumstances under Rule 60(b) so as to allow reopening of that judgment. Most federal courts considering that issue have so held. See e.g., McKnight v. United States Steel Corp. (7th Cir. 1984), 726 F.2d 333, 336, holding that “a change in the applicable law after entry of judgment does not, by itself, justify relief under 60(b).” and DeFilippis v. United States (7th Cir. 1977), 567 F.2d 341, 343, stating at Fn. 5 that the “courts are generally agreed that a change in the law after entry of judgment does not alone justify relief under [Rule 60](b)(6).” Additionally, this Court has previously held that a change in the decisional law after a final judgment does not provide a sufficient basis for modifying that judgment under Rule 60(b). Fiscus v. Beartooth Elec. Cooperative, Inc. (1979), 180 Mont. 434, 591 P.2d 196. However, the circumstances of this case go far beyond a mere change in the law.

The law in Montana prior to McCarty was such that military pensions were treated like any other asset of the marriage and were subject to equitable distribution. After the USFSPA was passed, this Court decided In Re Marriage of Kecskes (Mont. 1984), [210 Mont. 479,] 683 P.2d 478, 41 St.Rep. 1170, which reaffirmed that military retirement pay constituted a marital asset. Thus, those spouses of members of the armed forces who obtained dissolutions prior to Mc Carty were entitled to share in their spouses’ military pensions. Likewise, those spouses who obtain dissolutions after Kesckes will be entitled to have their spouses’ military pensions treated as a marital asset. However, those spouses who were divorced during the period between McCarty and Kecskes were denied this right. To forbid those spouses who were divorced during this period from obtaining a modification of their decrees would create a category of people who were denied substantial rights solely because of the unfortunate time within which their decrees happened to be made final. This fate does not befall others similarly situated whose decrees were not or will not be made final during that period.

The legislative history of the USFSPA indicates that the Act was meant to apply to those spouses who were divorced during the period between McCarty and the Act. “The primary purpose of the bill is to remove the effect of the United States Supreme Court decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981).” 1982 U.S. Code Cong. & Ad. News 1555, 1596. It is also clear that Congress meant for the law to apply retroactively. The Committee Report states at p. 5:

“The provisions of S. 1814 reversing the effect of the McCarty decision are retroactive to June 26, 1981, the date on which the U.S. Supreme Court issued that decision. That is, the committee intends the legislation to restore the law to what it was when the courts were permitted to apply State divorce laws to military retired pay. Former spouses divorced in the interim period between the McCarty decision and the effective date of this law will have the opportunity to return to court to have their decrees modified in light of this legislation.”

At p. 16, the Report reiterates:

“This retroactive application will at least afford individuals who were divorced (or had decrees modified) during the interim period between June 26, 1981 and the effective date of this legislation the opportunity to return to the courts to take advantage of this provision.”

Thus, it is obvious that Congress intended the USFSPA to apply to those spouses who were denied their share in military pensions solely because of the McCarty decision.

Because of the unique factual situation which is present in this case and in others similarly situated, we hold that the USFSPA should be applied retroactively and that Rule 60(b)(6) may be used to modify dissolution decrees that were final after the McCarty decision but before the effective date of the USFSPA. However, we emphasize the limited nature of this decision; it does not establish a general rule for reopening a final judgment merely because there has been a subsequent change in the law upon which that judgment was based. Only when extraordinary circumstances are found to exist, as in the present case, may Rule (60)b)(6) be used to modify a final judgment.

This holding is consistent with decisions in other jurisdictions. We have found no cases which have refused to allow modification of divorce decrees which became final after McCarty where a procedural mechanism similar to Rule 60(b) existed in the state. See e.g., Flannagan v. Flannagan (1985), 42 Wash.App. 214, 709 P.2d 1247; Smith v. Smith (Del. 1983), 458 A.2d 711; Koppenhaver v. Koppenhaver (1984), 101 N.M. 105, 678 P.2d 1180; Castiglioni v. Castiglioni (1984), 192 N.J. Super. 594, 471 A.2d 809. Like the views expressed by other courts considering this issue, we find that to rigidly apply the doctrine of finality of judgments in this situation would work a substantial injustice and would frustrate the intent of Congress in passing the USFSPA.

B

Rule 60(b)(6) provides that the motion “shall be made within a reasonable time . . .” What is a reasonable time will depend on the particular facts of the individual case. Questions of timeliness under the rule are addressed to the sound discretion of the court, and the court’s judgment will be overturned only upon a showing of abuse of discretion. See McKnight, supra. Relevant to the determination of timeliness is prejudice to the party opposing the motion and the basis for the moving party’s delay. See Matter of Whitney-Forbes, Inc. (7th Cir. 1985), 770 F.2d 692.

Appellant contends that the motion was not filed within a reasonable time because the USFSPA became effective on February 1, 1983, and respondent’s motion was not filed until May 24, 1985. Were appellant prejudiced by this delay, his argument might have some merit. However, the court granted respondent the right to one-half of appellant’s military pension payments starting on August 1, 1985, and relieved appellant of his obligation to pay maintenance after July 31, 1985. We perceive no prejudice to appellant by respondent’s delay. The District Court did not abuse its discretion by finding that the motion was filed within a reasonable time.

II

Appellant contends next that respondent’s motion is barred by laches. Since we have determined that respondent filed her motion within a reasonable time and that appellant has suffered no prejudice by the delay, this assertion is without merit.

The third issue raised by appellant will not be considered since we have determined that respondent’s motion was proper under Rule 60(b)(6), M.R.Civ.P.

Affirmed.

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