author: JUSTICE TRIEWEILER

text:
    JOHN WILLIAMS and BARBARA WILLIAMS, Plaintiffs and Respondents, v. ALVIN DeVINNEY, Defendant and Appellant.
    No. 92-313.
    Submitted on Briefs February 18, 1993.
    Decided July 15, 1993.
    50 St.Rep. 831.
    259 Mont. 354.
    856 P.2d 546.

      For Defendant and Appellant: Richard DeJana, Kalispell.
    For Plaintiffs and Respondents: Marshall Murray and Arm E. Clark, Murray & Kaufman, Kalispell.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Defendant Alvin DeVinney appeals from the findings of fact, conclusions of law, and judgment entered in favor of John and Barbara Williams by the District Court for the Eleventh Judicial District, Flathead County, on April 16,1992. The court found DeVinney liable for negligent misrepresentation and awarded plaintiffs damages in the amount of $17,092.50.

We affirm the District Court’s judgment of liability and remand to the District Court for a hearing to determine damages.

The following issues are raised on appeal:

1. Was the District Court’s finding that the property DeVinney sold the plaintiffs was unsuitable for the installation of a modular home clearly erroneous?

2. Did the court err when it concluded that DeVinney was personally liable for his negligent misrepresentations?

3. Was there any evidence to support the amount of damages awarded by the District Court?

4. Did the District Court err when it concluded that plaintiffs’ action is not barred by the statute of limitations?

In August 1987, plaintiffs John and Barbara Williams purchased a parcel of land from Alvin and Donna DeVinney in the DeVinneys’ Flathead County subdivision known as Addison Square. Plaintiffs also purchased a modular home from Kalispell Home Center, Inc. (KHC), which was to be placed on the parcel. Alvin DeVinney was employed by KHC, and acted as the sales agent for this transaction.

The purchase contract for the land provided that DeVinney would level and prepare the land for plaintiffs prior to the installation of the structure, and the agreement with KHC was that KHC would install the foundation and the modular home. Although Barbara Williams wanted a full, permanent foundation placed under the home, DeVinney advised plaintiffs that installing the structure on piers, in accordance with the manufacturer’s specifications, rather than on a full foundation, was more reasonable considering price and usefulness. According to Barbara Williams, DeVinney assured them that the piers would provide an adequate foundation and that the ground was sound. However, DeVinney had not performed any specific soil tests prior to selling the land to determine its suitability for installation of a modular home on concrete piers.

The installation was completed and plaintiffs moved into their home in the fall of 1987. Shortly thereafter, plaintiffs began experiencing problems with the house, but on each occasion, KHC made repairs to plaintiffs’ satisfaction. However, during the spring of 1989, rain began to pour down the inside walls of the bedrooms. Due to the seriousness of this problem, plaintiffs contacted a civil engineer, Robert Hafferman, to inspect both the modular home and the property. Hafferman found that the soil underneath the structure contained significant amounts of debris from the remains of a house which had burned down. He concluded that this debris did not allow the soil to properly compact, which caused instability of the foundation, uneven settling, and eventually, damage to the structure itself.

Plaintiffs commenced this action against Alvin and Donna DeVinney on March 1,1990, for intentional or negligent misrepresentation, alleging that they had relied on Alvin DeVinney’s false representation that the parcel had been properly prepared for the installation of their modular home. The DeVinneys filed an answer and counterclaim on May 15,1990, alleging that plaintiffs maliciously slandered them and damaged their reputation.

The DeVinneys’ motions to strike and for partial summary judgment were denied, and in a pretrial order dated October 29, 1991, District Court Judge Leif B. Erickson established the following two issues to be determined at a nonjury trial:

1. Whether the Defendants defrauded the Plaintiffs and/or negligently prepared the site in such a manner that it proximately caused the damages to the Plaintiffs’ mobile home, the amount of said damages, and whether punitive damages apply under the circumstance, and if so, the amount thereof.
2. Did the Plaintiffs defame the Defendants, and if so, what amount of damages, if any, should be awarded against them.

The trial was held on November 26 and 27, 1991, and in the findings of fact and conclusions of law issued on January 6, 1992, Judge Erickson concluded that Alvin DeVinney was liable for negligently misrepresenting to plaintiffs that the property he sold them was fit for the placement of the home they purchased. Donna DeVinney was dismissed as a party to the action on the basis that she had not made the representations upon which plaintiffs relied. Judge Erickson specified which damages were to be compensated, and unless an agreement could be reached, ordered a post-trial hearing to determine the amount due plaintiffs. Finally, Judge Erickson found that Barbara Williams had defamed Alvin DeVinney, and awarded DeVinney $1100 in nominal and punitive damages.

Plaintiffs subsequently moved for an order determining damages, based upon an affidavit of their professional engineer. DeVinney responded with a brief in which he argued that a hearing would be required, and that the damages requested by plaintiffs were in excess of what was specified in Judge Erickson’s order. Three additional affidavits were filed by DeVinney, countering the affidavit submitted by plaintiffs. After considering all of the affidavits, and without an evidentiary hearing, Judge Robert J. Boyd, who had replaced Judge Erickson, rendered judgment in favor of plaintiffs, and ordered DeVinney to pay John and Barbara Williams $17,092.50, plus their costs of suit.

From this judgment, and the District Court’s findings of fact and conclusions of law, DeVinney appeals.

I.

Was the District Court’s finding that the property DeVinney sold plaintiffs was unsuitable for the installation of a modular home clearly erroneous?

DeVinney asserts that the court’s finding that the soil was improperly compacted and caused the damage to plaintiffs’ home was contrary to the evidence. He contends that the evidence before the court was that the damage was due to the installation of the structure on piers which did not extend below the frost line. DeVinney quotes plaintiffs’ engineer, Robert Hafferman, as stating: “It was that it was not designed on a permanent foundation, and the modular home has got to be on a permanent foundation ...” DeVinney insists that, according to this testimony of plaintiffs’ own expert, it was KHC’s installer who improperly installed the home by not placing it on a “permanent” foundation consisting of piers extending below the frost line. Thus, DeVinney’s contention is that plaintiffs’ only claim against him was that he failed to properly prepare the site, but that the evidence demonstrated that an improper installation by KHC caused the problems to plaintiffs’ home.

This Court will affirm the findings of a trial court sitting without a jury unless the findings are clearly erroneous. Rule 52(a), M.R.Civ.R In Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287, we adopted a three-part test to determine if the findings are clearly erroneous in a nonjury case: A finding is clearly erroneous if it is not supported by substantial credible evidence, if the court misapprehended the effect of the evidence, or, if after review of the record, this Court is left with a definite and firm conviction that a mistake has been committed.

After a careful review of the record in this case, we conclude the District Court did not err when it found that a cause of the plaintiffs’ damage was the unsuitability of the soil where the home was located.

In his brief, DeVinney isolates certain statements by Hafferman concerning the consequences of failing to place the structure on a permanent foundation. However, when the evidence is considered in its entirety, there is support for the finding that Hafferman indicated the piers would have provided an adequate foundation if they had been placed below the frost line and were in good bearing soil. Although conflicts may exist in the evidence presented, it is the duty of the trial judge to resolve such conflicts. Due regard is to be given the trial court’s ability to judge the credibility of the witnesses, and it is not this Court’s function to substitute its judgment for that of the trier of fact. DeSaye, 820 P.2d at 1287-88; Daniels v. Dean (1992), 253 Mont. 465, 471, 833 P.2d 1078, 1082.

Furthermore, the record contains substantial evidence that the soil under the structure was not good bearing soil. It contained debris and could not evenly compact. Thus, the piers placed in this soil could not support the structure. Finally, there was evidence that DeVinney did represent to plaintiffs that the property was suitable for the placement of a modular home on a concrete pier foundation, but that he neither tested the site for its suitability nor properly prepared the site.

We conclude there was substantial credible evidence to support the District Court’s findings. We cannot conclude that the court misapprehended the effect of the evidence, nor does our review of the record leave us with a definite and firm conviction that a mistake has been committed. Therefore, we hold the court’s findings with respect to the unsuitability of the site were not clearly erroneous.

II.

Did the court err when it concluded that DeVinney was personally liable for his negligent misrepresentations?

DeVinney argues that the damage to plaintiffs’ home was caused by the installation of an improper foundation. His contention is that he made no misrepresentations to plaintiffs concerning the foundation, and therefore, cannot be held liable for negligent misrepresentation. Moreover, he challenges the court’s determination that he was personally liable. He argues that any statements in regard to the foundation were made in his capacity as an agent of KHC, and were made in good faith and with reasonable care. Therefore, DeVinney contends that he cannot be held liable for acts or representations made on behalf of his employer.

In Kitchen Krafters v. Eastside Bank (1990), 242 Mont. 155, 789 P.2d 567, we reaffirmed the definition of negligent misrepresentation which we adopted in State Bank of Townsend v. Maryann’s, Inc. (1983), 204 Mont. 21, 664 P.2d 295. In summary, to prove negligent misrepresentation, the plaintiff must establish that the defendant made a false representation of a past or existing material fact without reasonable grounds for believing the representation to be true, and the representation induced the plaintiff to rely upon it and resulted in damage to the plaintiff.

In this instance, after making its findings, the court concluded that, as a matter of law, DeVinney’s conduct satisfied the elements of the tort of negligent misrepresentation. Because of DeVinney’s unique position as both owner of the property and as the KHC salesman, the court concluded that the duty DeVinney was under was of a personal nature. In its conclusions of law, the court stated the following:

That Alvin DeVinney, as owner of the property sold to the Williams and as salesman for the mobile home sold to the Williams, was under a duty, when he took it upon himself to suggest an appropriate foundation for [the] home, to be aware of the suitability of the property for that type of foundation. Plaintiffs were entitled to rely upon his expertise since he held himself out as an expert and since he would be in an apparently superior position to know the nature of the property he was selling. In response to his argument that he, in fact, did not know the nature of the subject property, suffice it to say that in such an instance he should not have thus represented its suitability. When he decided to sell the property as appropriate for mobile homes and then presumed to know what type of foundation was satisfactory he created a duty to the Plaintiffs which they relied upon to their detriment.

First, we have already held that there was substantial evidence to support the finding that the damage was caused by the unsuitability of the site. Although DeVinney asserts that he should be immune under agency principles, we note that the representations concerning the suitability of the property were not made on behalf of KHC; these representations were made for the purpose of DeVinney’s sale of the property to plaintiffs.

Next, even though DeVinney’s statements in which he recommended a suitable foundation may have been made on behalf of KHC, and therefore, were made in an agency capacity, § 28-10-702, MCA, specifies that an agent may be personally liable to a third person in certain situations. Specifically, this section provides that an agent is responsible to third persons for acts undertaken in the course of his agency, “when his acts are wrongful in their nature.” Here, implicit in the court’s conclusion is its determination that DeVinney’s actions were wrongful because he decided to sell the property as appropriate for mobile homes and then represented its suitability for the type of foundation he recommended, without any reasonable grounds for doing so.

Thus, based on the court’s conclusions with respect to the unique position DeVinney occupied, we find no grounds to shield DeVinney from liability under an agency theory. We hold that the District Court did not err when it concluded that, as a matter of law, DeVinney’s actions created personal liability

III.

Was there any evidence to support the amount of damages awarded by the court?

In the January 6, 1992, order, Judge Erickson held that plaintiffs were entitled to recover the following damages:

1. The cost of removing the mobile home from the present footings,
2. The cost of the original placement of the mobile home on those footings, and
3. The cost of replacing the mobile home on the permanent foundation.

Judge Erickson then ordered a hearing to determine the specific breakdown of these costs, unless an agreement could be reached by the parties.

As described earlier, both parties submitted affidavits concerning the costs but no further evidentiary hearings were held. When Judge Boyd took over the case following Judge Erickson’s resignation, the affidavits were considered and a judgment was entered in favor of plaintiffs. DeVinney was ordered to pay plaintiffs $17,092.50, plus their costs of suit.

DeVinney challenges this determination on two bases. First, he asserts that there was not sufficient evidence to support the award and that there should have been an evidentiary hearing. Second, DeVinney contends that the amount awarded included certain items specifically excluded from the order issued by Judge Erickson.

We agree with DeVinney’s initial assertion that there was insufficient evidence to support the damages award. A review of the record demonstrates that Judge Boyd’s decision was apparently based solely on the affidavits. Although the judgment states that oral argument was held, oral argument is not a substitute for sworn testimony.

The affidavits relied upon by the court, which attested to the costs of implementing Judge Erickson’s order, constituted inadmissible hearsay because they were written assertions, made out-of-court, which were offered to prove the truth of the matters asserted. Rules 801 and 802, M.R.Evid. Because the court relied only upon the affidavits, and did not consider documentary or testimonial evidence which was subject to cross-examination, it failed to meet the “substantial evidence” standard necessary to sustain its judgment. Adlington v. First Montana Title Ins. Co. (1990), 245 Mont. 304, 307, 800 P.2d 1051, 1053; Johnson v. Murray (1982), 201 Mont. 495, 506, 656 P.2d 170,175. Therefore, the award of damages, entered on April 16, 1992, is vacated and we remand for an evidentiary hearing and determination of damages pursuant to the order issued by Judge Erickson.

In response to DeVinney’s complaint that Judge Boyd had included costs which were not specifically provided for in the original order, we would simply note that Judge Erickson’s order outlined the general damages to be compensated, and ordered a further hearing to determine the specific amount. The court should properly include in its damages award the specific expenses which it finds, by implication, are necessary to satisfy the general directives of the earlier decision.

IV.

Did the District Court err when it concluded that plaintiffs’ action is not barred by the statute of limitations?

DeVinney’s final contention is that § 27-2-203, MCA, provides for a two-year statute of limitations for actions based on fraud or mistake, which includes actions based on negligent misrepresentation. Falls Sand & Gravel Co. v. W. Concrete, Inc. (D.C. Mont. 1967), 270 F. Supp. 495. Alleging that the evidence demonstrates the plaintiffs first learned of problems with the modular home in January 1988, and did not file their complaint until March 1,1990, DeVinney asserts that the court should have dismissed the complaint on the basis that it was barred by the statute of limitations. Plaintiffs contend, however, that it was not until the spring of 1989, when the serious leaks began and they hired an engineer to inspect the home and property, that they discovered the true nature of the problem.

The statute cited by DeVinney states that a cause of action for fraud or mistake does not accrue “until the discovery by the aggrieved party of the facts constituting the fraud or mistake.” Section 27-2-203, MCA. In this instance, the time at which plaintiffs discovered the facts giving rise to the cause of action is a question of fact, and therefore, is subject to a clearly erroneous standard on review. Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.

After reviewing the record, we conclude that there was substantial credible evidence to support the finding that plaintiffs had not discovered the source of the ongoing problems until the damage was significant enough to prompt them to hire an engineer to do a thorough inspection. It was at this time that plaintiffs discovered that the site, as they purchased it, was unsuitable for the placement of the modular home. The complaint alleging negligent misrepresentation was then filed within two years from the discovery of these facts. Therefore, the court’s conclusion that plaintiffs’ claim was filed in a timely fashion was not clearly erroneous.

For the reasons stated, the judgment of the court in regard to DeVinney’s liability for negligent misrepresentation is affirmed. The District Court’s judgment regarding the amount of plaintiffs’ damages is vacated and this matter is remanded to the District Court for an evidentiary hearing to determine damages.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY and McDonough concur.


source: Caselaw Access Project

author: JUSTICE NELSON JUSTICE TRIEWEILER

license: Public Domain

text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. RICHARD WAYNE BERGER, Defendant and Appellant.
    No. 93-032.
    Submitted on Briefs June 17, 1993.
    Decided July 15, 1993.
    50 St.Rep. 836.
    259 Mont. 364.
    856 P.2d 552.
    For Defendant and Appellant: Lawrence A. LaFountain, Havre.

      For Plaintiff and Respondent: Joseph P, Mazurek, Attorney-General, Kathy Seeley Assistant, Helena; David Go Rice, Hill County Attorney, Havre.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from the Twelfth Judicial District Court, Hill County, wherein the appellant, Richard Wayne Berger, pled guilty to the offense of criminal sale of dangerous drugs in violation of § 45-9-101, MCA, pursuant to a plea agreement under which he reserved his right to appeal the application of § 46-11-503, MCA, to this case. We hold that § 46-11-503, MCA, does not bar the prosecution of the appellant for the offense of criminal sale of dangerous drugs.

For purposes of this appeal, the parties have entered into an agreed statement of facts, as follows:

1. Shortly after 8 p.m., on April 22, 1992, Hill County Sheriff’s deputies monitored a sale of dangerous drugs by Richard Wayne Berger to an informant wearing an electronic transmitting device.
2. The next day, April 23,1992, shortly before midnight, officers executed a search warrant at Berger’s house.
3. Berger was found to be in possession of small amounts of marijuana and, at 12:15 a.m. on April 24, 1992, he was arrested and charged with two counts of possession of dangerous drugs (marijuana) in violation of MCA § 45-9-102.
4. On April 24,1992, Berger appeared injustice court and pled guilty to the two possession charges.
5. The information charging Berger with criminal sale of dangerous drugs for the April 22, 1992 sale was filed in the district court on July 28, 1992.
6. The parties agree that the April 22, 1992 drug sale and the April 24, 1992 possession charges were not a part of the “same transaction” as defined in MCA § 46-1-202(23).

Appellant Berger contends that the facts of this case fit within the provisions of § 46-ll-503(l)(b), MCA (1991), with the result that his prosecution for criminal sale of dangerous drugs is barred. He maintains that the 1991 amendments to § 46-11-503, MCA, eliminated the “same transaction” requirement from what is now subsection (l)(b) and expanded the protection of the statute to unrelated offenses. We disagree.

Section 46-11-503, MCA, is the Montana “double jeopard/’ statute. In pertinent part, that section provides as follows:

46-11-503. Prosecution based on same transaction barred by former prosecution. (1) When two or more offenses are known to the prosecutor, are supported by probable cause, and are consummated prior to the original charge and jurisdiction and venue of the offenses he in a single court, a prosecution is barred if:
(b) the former prosecution resulted in a conviction that has not been set aside, reversed, or vacated [.]

Section 46-11-503, MCA, was originally enacted in 1973 as § 95-1711(3), RCM (1947), and expressly applied only to prosecutions based upon the same transaction. See Sec. 6, Ch. 513, L. 1973.

Prior to amendments adopted by the legislature in 1991, the statute, in pertinent part, provided as follows:

46-11-503. When prosecution based on same transaction barred by former prosecution. If the offenses were known to the attorney prosecuting upon sufficient evidence to justify the filing of an information or the issuance of a warrant of arrest and were consummated prior to the original charge and if the jurisdiction and venue of the several offenses lie in a single court, a prosecution based upon the same transaction as a former prosecution is barred by such former prosecution under the following circumstances:... (Emphasis added).

The 1991 amendments to § 46-11-503, MCA, were part of a number of amendments adopted by the legislature to the Montana Code of Criminal Procedure, Title 46 MCA. It is well settled that, when construing a statute, the intent of the legislature is controlling, Holly Sugar v. Department of Revenue (1992), 252 Mont. 407, 412, 830 P.2d 76, 78; § 1-2-102, MCA.

While there is no specific discussion in the legislative history pertaining to the amendments to the code section at issue, it is instructive to note, however, that at the House Judiciary Committee hearing on March 8, 1991, with respect to Senate Bill 51, Robert Dechamps III, Chairperson of the Montana Criminal Procedure Committee stated that the objective of the bill was to streamline, codify, unify and consolidate procedural rules of criminal procedure that had been adopted by the courts over the years that did not exist in statute. “... [M]ost of what the committee did really didn’t change anything. The committee streamlined and codified the rules. Most of the bill is existing law.” See minutes of hearing on SB 51, House Judiciary Committee, March 8, 1991, p. 6.

In his comments as sponsor of the bill, Senator Van Valkenburg pointed out that “[t]his is a bill that modernizes and recognizes changes in case law that has [sic] occurred over the past 25 years since Montana’s Criminal Procedure Code was last revised and put into statute many of the common practices that occur in the criminal arena in the state of Montana.” See minutes of hearing on SB 51, House Judiciary Committee, March 8,1991, p. 5.

Moreover, the 1991 Commission Comments note that the new subsections (l)(a) and (l)(b)"... preserve the 1987 code but eliminate confusing and unnecessary provisions.”

Neither the legislative history nor the Commission Comments reveal that the legislature intended to substantively change the application of § 46-11-503, MCA, from prosecutions resulting from the same transaction to unrelated prosecutions.

The dissent argues that the majority has inserted into § 46-11-503(1), MCA, the requirement that the offenses be part of the “same transaction” and that it has improperly resorted to the use of legislative intent in construing the statute, thereby ignoring the clear provisions of the language of that section. While we have no argument with the principles of statutory construction cited by the dissent, when subsection (1) of the statute is read in conjunction with new subsection (2), the language of subsection (1) becomes less clear.

New subsection (2) of the statute provides that “[a] prosecution based upon the same transaction as a former prosecution is not barred under subsection (l)(d) when: ... .” We are required to avoid any statutory interpretation that renders any sections of the statute superfluous and does not give effect to all of the words used. Central Montana Elec. v. Adm’r of Bonneville Power (9th Cir. 1988), 840 F.2d 1472, 1478. If subsection (1) does not continue to pertain to prosecutions based upon the same transaction, then the language in subsection (2) making reference to such prosecutions is superfluous.

Furthermore, in amending the title of § 46-11-503, the legislature retained the “same transaction” language of the immediately preceding subsection (1). While, in construing a statute, the wording of the body, and not that of the title controls, Eastman v. School District No. 1 (1947), 120 Mont. 63, 78, 180 P.2d 472, 479 (overruled on other grounds), resort may, nevertheless, be had to the title as an aid to construction. State v. Bruce (1938), 106 Mont. 322, 332, 77 P.2d 403, 408, affirmed 305 U.S. 577, 59 S.Ct. 465, 83 L.Ed. 363 (overruled on other grounds). The legislature’s retention of the “same transaction” language in the title of the statute is a further indication that subsection (1) was not expanded to cover unrelated prosecutions.

Taking into consideration the general intent of the legislature to make procedural rather than substantive changes in the law by its adoption of the 1991 amendments to the criminal procedure code, and the above mentioned rules of construction, we hold that § 46-11-503(1), MCA, continues to apply only to prosecutions arising from the same transaction.

In this case the parties have agreed, and the record reflects, that the appellant’s prosecution of criminal sale of dangerous drugs arose out of a transaction separate from that involving his prosecution for possession of dangerous drugs. Accordingly, based upon our construction of the statute, § 46-11-503, MCA, does not bar his prosecution for criminal sale of dangerous drugs, and his conviction of that offense is affirmed.

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

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion. All of the facts which led to defendant’s arrest, prosecution, and conviction for the sale of dangerous drugs pursuant to § 45-9-101, MCA, were known to the State on April 24, 1992, when defendant was charged with and convicted of possession of dangerous drugs pursuant to § 45-9-102, MCA. For that reason, and because the other statutory elements are satisfied, defendant’s second prosecution, which was commenced on July 28, 1992, was clearly barred by the plain language of § 46-ll-503(l)(b), MCA.

The majority has held otherwise by inserting into § 46-11-503(1), MCA, the requirement that the offenses be part of the “same transaction.” However, in doing so, the majority has violated a cardinal principle of statutory construction. Section 1-2-101, MCA, provides as follows:

In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.

In departing from the current clear language of the statute which controls the outcome of this case, the majority has based its decision on its contention that the Legislature did not mean to say what it clearly did say when it amended § 46-11-503, MCA. Therefore, the majority ignores the plain language of that section in favor of what it concludes was the Legislature’s intent. However, in doing so, the majority has violated a second rule of construction which we have previously articulated in our decisions.

In White v. White (1981), 195 Mont. 470, 473-74, 636 P.2d 844, 845-46, we held that:

The intention of the legislature must first be determined from the plain meaning of the words used, and if interpretation of the statute can be so determined, the courts may not go further and apply any other means of interpretation. Haker v. Southwestern Railway Co. (1978), 176 Mont. 364, 578 P.2d 724; Montana Assn. of Underwriters v. State of Montana (1977), 172 Mont. 211, 563 P.2d 577. Where the language of a statute is plain, unambiguous, direct and certain there is nothing left for the court to construe. Doull v. Wohlschlager (1963), 141 Mont. 354, 377 P.2d 758; National Electric Contractors Assn. v. State Board of Education (1960), 137 Mont. 382, 352 P.2d 258; Vaughn & Ragsdale Co. v. State Board of Equalization (1939), 109 Mont. 52, 96 P.2d 420. The function of the court in construing a statute is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or omit what has been inserted. Section 1-2-101, MCA. In short, it is simply the duty of the Supreme Court to construe the law as it finds it. Dunphy v. Anaconda Co. (1968), 151 Mont. 76, 438 P.2d 660, and cases cited therein.

In State v. Hubbard (1982), 200 Mont. 106, 111, 649 P.2d 1331, 1333, we held that “[t]here is simply no reason for the use of legislative history to construe a statute where the language is clear and unambiguous on its face.”

Even more recently, in Dorn v. Board of Trustees of Billings School District (1983), 203 Mont. 136, 144, 661 P2d 426, 430, we held that:

The primary tool for ascertaining intent is the plain meaning of the words used. The Court properly refers to legislative history only when intent cannot be determined from the content of the statute. The instant statute does not necessitate such an inquiry.

There is nothing unclear about § 46-ll-503(l)(b), MCA, which requires reference to its legislative history in order to determine the Legislature’s intent. The language of the statute is clear and requires the dismissal of the charges filed against defendant on July 28,1992. However, if, as the majority suggests, inconsistent language in sub-paragraph (2) creates an ambiguity in § 46-11-503(1), MCA, then according to the rule of lenity the ambiguity must be construed in favor of the defendant and against the State which authored the ambiguous provision. State v. Goodwin (1991), 249 Mont. 1, 24, 813 P.2d 953, 967.

For these reasons, I dissent from the majority opinion.

JUSTICE HUNT joins in the foregoing dissent.


author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. SHARON F. YOUNG, Defendant and Appellant.
    No. 92-204.
    Submitted on Briefs July 8, 1993.
    Decided July 20, 1993.
    50 St.Rep. 839.
    259 Mont. 371.
    856 P.2d 961.

      For Defendant and Appellant: Arthur J. Thompson, Thompson & Sessions, Billings.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Assistant, Helena; Dennis Paxinos, Yellowstone County Attorney, Billings; Mark J. Murphy, Assistant Attorney General, Special Deputy County Attorney, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from a jury verdict in the Thirteenth Judicial District convicting Defendant of conspiracy to commit felony theft by deception. We affirm.

We state the issues on appeal as follows:

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

2. Does collateral estoppel bar the State from prosecuting the Defendant for conspiracy to commit felony theft by deception?

The Defendant Sharon F. Young (Sharon) was charged with conspiracy to commit felony theft for obtaining workers’ compensation benefits by deception. In January 1983, Sharon and her husband, co-defendant Robert Young, applied for workers’ compensation insurance coverage through the State Fund Mutual Insurance Company (State Fund) for themselves as owners and employees of the West Parrot Creek Properties. The Youngs’ application for coverage indicated that the nature of their business was raising far animals, and claimed an estimated $42,000 annual earnings for the business. The coverage began March 1, 1983.

Thereafter, Robert Young filed a claim for benefits, claiming he had injured himself on March 30, 1983. He reported he was rebuilding a set of corrals when cross-ties fell on him. Sharon was listed as a witness to the accident and signed the claim form as employer. The claim form indicated that Robert Young was earning $400 per week, which amount would provide him with the maximum amount of benefits allowable under law. Robert Young began receiving biweekly benefits after this alleged injury occurred.

Subsequently, on May 6, 1983, Sharon filed a claim for benefits, claiming that she had injured herself while lifting a bale of hay on May 4, 1983. Sharon also reported that she earned $400 per week. Sharon began receiving benefits on May 6, 1983. On that same day, Robert Young canceled their workers’ compensation insurance.

In November 1983, Robert Young’s doctor advised the State Fund that Robert’s medical condition had stabilized. The State Fund notified Robert Young that his benefits would be terminated on December 28,1983.

Thereafter, on December 21,1983, Sharon and Robert Young again applied for workers’ compensation insurance as partners in the West Parrot Creek Properties. The Youngs’ application for coverage indicated that the nature of their business was raising beef and feed, and claimed $41,600 annual earnings for the business (or $400 per week per person). The insurance coverage was effective on December 21, 1983. Thereafter, Robert Young filed a new claim for benefits, stating he was injured on December 31,1983, after inhaling the pesticide Furadan 44. Again, Sharon was fisted as a witness to the accident and signed the claim form as employer. The claim form indicated that Robert Young was earning $425 per week.

From April 1983 to December 1988, the State Fund paid Robert Young total compensation payments in the amount of $72,426.71. From May 1983 to July 1987, the State Fund paid Sharon compensation payments. On July 23, 1987, Sharon entered into a Full and Final Compromise Settlement with the State Fund. Sharon received total benefits in the amount of $116,148.14, plus an additional $21,650 for medical expenses.

An investigation into Sharon and Robert Young’s 1983 claims was initiated after a failed attempt by Robert Young and co-defendants Edith and Jack Wilkerson to fraudulently obtain workers’ compensation benefits in 1988. Subsequently, criminal charges were filed against Sharon and Robert Young and Edith and Jack Wilkerson.

Evidence presented at trial in support of the State’s case against Sharon was as follows. At the time that the Youngs claimed annual earnings of $42,000 and $41,600, the West Parrot Creek Properties was an eighty-acre parcel of land near Roundup, Montana. In July 1983, a State Fund field examiner went to the Youngs’ property and found no corrals, no livestock, and no farm equipment. The field examiner met with Robert Young again in February, 1984, regarding the pesticide claim. Robert Young was unable to produce the package of pesticide but claimed to have purchased it in Hardin. The field examiner was unable to locate any business in Hardin which sold any pesticide to Robert Young.

Other evidence presented by the State showed that no game or fur farm license was ever issued to either Sharon or Robert Young. There were no state tax records which showed that either Young paid any taxes on any equipment or machinery. The Montana Department of Livestock records indicated that between 1982 and 1989, the Youngs owned or shipped only sixteen head of cattle. There was no other documentation of any fur animal or cattle business.

In 1986, Dr. William Shaw, a board-certified physician specializing in occupational medicine, examined the Youngs upon the State Fund’s request. Dr. Shaw indicated that Robert Young had a long history of medical problems, but concluded that none of Robert Young’s preexisting injuries were aggravated by any injuries in 1983. He also concluded that Robert Young’s lung problems were not associated with the inhalation of pesticide, but were the result of smoking. Dr. Shaw reported that, during the examination, Robert Young made the following statements: “That subsidy that Workers’ Comp is the best thing I’ve ever had,” “All these injuries have caused me to be this way,” and “Collecting Workers’ Comp is better than stealing.”

Dr. Shaw also examined Sharon, who also had a long history of medical problems. Sharon told Dr. Shaw that her May 4, 1983, injury occurred when she fell off the back of a pickup while feeding cattle. There were no cattle on the property in May, 1983, and Sharon’s prior claim to the State Fund did not state that she fell from a pickup.

During Dr. Shaw’s examination of Sharon, he saw no evidence that she had any problems sitting or moving, nor did she exhibit any signs of pain or discomfort. Dr. Shaw concluded that Sharon’s medical problems predated the alleged injury of May, 1983.

This evidence was presented to a jury on August 19 and 20, 1992. The jury found Sharon guilty of conspiracy to commit felony theft by deception. Sharon was sentenced to five years in prison, all suspended, and was ordered to make restitution. From that verdict and sentence, she appeals.

When the issue on appeal is whether there was sufficient evidence to support a jury verdict, the standard of review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. McLain, (1991), 249 Mont. 242, 246, 815 P.2d 147, 150.

I - SUFFICIENCY OF THE EVIDENCE

Sharon was convicted of conspiracy to commit felony theft by obtaining unauthorized control of State Fund monies through deception. Sharon contends that there was insufficient evidence to support her conviction because the State Fund “authorized” or “consented” to her actions by entering into a Full and Final Compromise Settlement of her workers’ compensation claim. Viewing the evidence in the light most favorable to the prosecution, we hold that there is sufficient evidence to support the conviction.

The only issue raised by Sharon regarding the sufficiency of the evidence is whether or not she obtained the workers’ compensation benefits by deception. Section 45-2-211, MCA, states that “the consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense.” Sharon would use this statute as a complete defense, and thus a bar to this conviction.

We note that consent is ineffective if it is induced by deception. Deception, as defined at § 45-2-101(17), MCA, means knowingly to:

(a) create or confirm in another an impression which is false and which the offender does not believe to be true;
(b) fail to correct a false impression which the offender previously has created or confirmed; ...

There are a number of instances in this case where Sharon “deceived” the State Fund. For example, Sharon deceived the State Fund into issuing workers’ compensation insurance on the West Parrot Creek Properties, when the same was not a legitimate, ongoing enterprise. She indicated that Robert Young and she both earned $400 per week, when she knew the same to be untrue. Sharon created or confirmed in the State Fund the impression that she had been injured while in the course and scope of her legitimate employment with the West Parrot Creek Properties. After the State Fund accepted liability for Sharon’s purported injury, Sharon failed to correct the false impression that she created regarding her injury, the nature of her business, and the earnings of that business.

There is no question that the State Fund’s consent to liability in this case was induced through Sharon’s deception. The State Fund did not know Sharon’s claim for benefits was fraudulent at the time it entered into the settlement agreement. Had the State Fund received accurate information from Sharon, they would not have extended over $135,000 in benefits to her. The State Fund did not consent to Sharon’s actions in this case.

Sharon claims that the State Fund could have ascertained the fraudulent nature of her claim if it had exercised due diligence. In essence, Sharon would have the State Fund conduct a “merits evaluation” of each and every claim filed with the State Fund before accepting liability and beginning benefits payments. We refuse to impose this burden on the State Fund. The State Fund should be able to rely on the truthfulness, completeness, and accuracy of the representations made by the claimant and employer. Willem Visser, a claims manager for the State Fund, estimated that the State Fund has approximately 20,000 claims per year. To force the State Fund to thoroughly investigate each claim on its merits before providing benefits would cause undue hardship on an already-burdened system. In addition, such a requirement would hurt claimants, in that it would unreasonably delay benefits payments and settlement of legitimate claims.

We hold that the State presented sufficient evidence to support the conviction in this case.

II - COLLATERAL ESTOPPEL

Sharon contends that the doctrine of collateral estoppel bars the State from prosecuting her in this case. She argues that the State is precluded from prosecution by the State Fund’s compromise settlement of the workers’ compensation claim. We disagree, and hold that collateral estoppel does not apply in this case.

The doctrine of collateral estoppel is also known as “issue preclusion.” It is similar to res judicata; however, res judicata “bars the same parties from relitigating the same cause of action while collateral estoppel bars the same parties from relitigating issues which were decided with respect to a different cause of action.” Boyd v. First Interstate Bank (1992), 253 Mont. 214, 218, 833 P.2d 149, 151. This Court has previously established a three-prong test to determine if the doctrine of collateral estoppel applies to a particular case. Boyd, 833 P.2d at 151.

1. The identical issue raised has been previously decided in a prior adjudication;
2. A final judgment on the merits was issued in the prior adjudication; and
3. The party against whom the plea is now asserted was a party or in privity with a party to the prior adjudication.

Boyd, 833 P.2d at 151. The first prong, identity of issues, is the most crucial of the three elements. Anderson v. State (1991), 250 Mont. 18, 21, 817 P.2d 699, 702. In order to satisfy this element, the identical issue or “precise question” must have been litigated in the prior action. Anderson, 817 P.2d at 702.

Collateral estoppel does not apply in this case, because Sharon cannot establish the threshold first element. The Full and Final Compromise Settlement reached between the State Fund and Sharon on July 23, 1987, dealt solely with the amount of benefits thought to be owed to Sharon. Sharon’s conspiracy to commit theft was not known at the time the compromise agreement was reached, and thus the fraud issue was not actually raised or litigated. Therefore, the issue in the workers’ compensation case and the issue in this criminal prosecution are not identical.

A party who obtains workers’ compensation benefits through trick and deception cannot assert the doctrine of collateral estoppel against the innocent victim. The State Fund is entitled to rely upon facts presented by the employer when applying for insurance coverage and by the employee when applying for benefits. If it is later discovered that the State Fund provided coverage or benefits because of fraud or deception, the State has the right to criminally prosecute those individuals to the fullest extent of the law.

Affirmed.

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


author: JUSTICE WEBER

text:
    DOUGLAS J. PIERCE, Plaintiff, Respondent, and Cross-Appellant, v. ALSC ARCHITECTS, P.S., a Washington professional service corporation, Defendant and Appellant.
    No. 92-396.
    Submitted on Briefs April 30, 1993.
    Decided July 20, 1993.
    50 St.Rep. 842.
    259 Mont. 379.
    856 P.2d 969.

      For Appellant: I. James Heckathorn, Murphy, Robinson, Heckathorn & Phillips, Kalispell.
    For Respondent: Roger M. Sullivan, McGarvey, Heberling, Sullivan & McGarvey, Kalispell.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal by ALSC Architects, P.S., of the Order of the District Court of the Eleventh Judicial District, Flathead County, which granted plaintiff’s motion for judgment notwithstanding the verdict and ordered a new trial on the remaining issues. We reverse and remand.

The parties present the following issues for review:

1. Did the District Court’s order granting judgment notwithstanding the verdict and ordering a new trial on the remaining issues have any force or effect?

2. Did the plaintiff file a timely notice of appeal?

Douglas J. Pierce (plaintiff) brought a negligence action against ALSC Architects, P.S. (defendant) as a result of personal injuries he received when he fell through a false ceiling in the Rosauer’s store in Kalispell, Montana. On November 1, 1991, after a trial, the jury returned a verdict in favor of defendant. On November 7, 1991, plaintiff filed timely Rule 50(b) and 59(a) post-trial motions for judgment notwithstanding the verdict and for a new trial, respectively. On November 8, 1991, counsel for defendant presented the District Court with a judgment on the jury verdict for the court’s signature. This judgment has never been signed by the District Court and, thus, never entered for the defendant.

The District Court did not rule on plaintiff’s motions within 45 days as required by Rule 59(d). Plaintiff’s counsel advised the District Court by letter dated December 17,1992, that the court had not ruled on the plaintiff’s motion for judgment notwithstanding the verdict or a new trial. On January 14, 1992, plaintiff’s counsel again sent a letter to the District Court advising the court that the motions had not been ruled on and defendant’s proposed judgment had not been signed. On January 17, 1992, the District Court issued an order ruling that “judgment n.o.v. be entered for the Plaintiff on the issue of Defendant’s negligence, with a new trial to determine all remaining issues raised by the pleadings.”

Without knowledge of the District Court’s January 17th order, counsel for plaintiff signed plaintiff’s Notice of Appeal and filed it with the Flathead County Clerk of Court. The notice was stamped by the clerk’s office at 3:19 p.m. on January 21,1992. Plaintiff’s counsel also requested transmittal of the District Court record to the Supreme Court, gave a check for the filing fee to the Clerk of Court’s office and requested that the court reporter prepare a trial transcript.

On January 22, plaintiff’s counsel was contacted by the clerk’s office and informed that the District Court had issued an order dated January 17, 1992, granting judgment notwithstanding the verdict and ordering a new trial on all other issues raised in the pleadings. Plaintiff’s counsel was asked if he wished to withdraw the Notice of Appeal. Plaintiff’s counsel advised the clerk’s office the following day, January 23, 1992, that the notice of appeal could be withdrawn. No motion for withdrawal, notice of motion for withdrawal, or order for withdrawal was filed. The original Notice of Appeal and counsel’s check were returned by the clerk’s office. The Notice of Appeal was returned with the Clerk of Court’s “filed” stamp obliterated with correction fluid.

On January 24,1992, plaintiff filed a Notice of Entry of Judgment and filed a Motion for a Scheduling Order. On January 28, 1992, counsel for the defendant filed defendant’s Notice of Appeal. Subsequently, defense counsel filed a petition for a Writ of Supervisory Control when the clerk’s office scheduled a scheduling conference after he had filed a notice of appeal. This was denied on April 2,1992. Plaintiff’s counsel submitted the returned original Notice of Appeal and check for $75.00 to the Clerk of the Supreme Court in his appendix to his brief in response to defendant’s petition for writ of supervisory control.

L

Did the District Court’s order granting judgment notwithstanding the verdict and ordering a new trial on the remaining issues have any force or effect?

We begin our journey through this procedural mire by noting that both a Rule 50(b), motion for judgment notwithstanding the verdict and a Rule 59(a) motion for a new trial are subject to the 45-day time limit allowed the district court for ruling on these motions by Rule 59(d), M.R.Civ.P. The 45-day period is mandatory. See, In re the Marriage of Miller (1989), 238 Mont. 108, 111, 776 P.2d 1218, 1220. Moreover, the 45-day period begins to run from the date the motion is filed whether or not the judgment has been entered. Miller, 776 P.2d at 1220. The District Court ruled on plaintiff’s motions 71 days after they were filed. We conclude that despite the fact that judgment had not been entered, the 45-day period began to run when plaintiff’s motions were filed.

We hold the plaintiff’s motions were denied by operation of law under Rule 59(d), M.R.Civ.P., when the District Court did not rule within 45 days of filing the motion.

Our next inquiry is whether or not the District Court’s order dated January 17, 1992 is nonetheless effective under Rule 59(e), M.R.Civ.P, as contended by plaintiff. Rule 59(e), M.R.Civ.P., provides:

Rule 59(e). On initiative of court. Not later than 10 days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a motion for a new trial, timely served, for a reason not stated in the motion.

Plaintiff contends that Rule 59(e), M.R.Civ.P., vests the court with jurisdiction until 10 days after entry of judgment. As noted above, the District Court did not sign the judgment submitted by defendant. Defendant contends that by granting the motions after the 45-day period had expired, the District Court was without jurisdiction to enter the order and, therefore, the order is of no force or effect.

Plaintiff relies on In re Marriage of Kink (1987), 226 Mont. 313, 735 P.2d 311, for his argument that the District Court retains jurisdiction to order a new trial until 10 days after entry of judgment. In Kink, the district court ordered a further evidentiary hearing after both parties moved to amend the findings and conclusions. The court’s order was within the 45-day time period after filing of both motions. An argument was made that the court lost jurisdiction to rule on the motions because at the time the court amended the findings and conclusions, the 45-day period had expired. This Court concluded that the District Court’s order, issued prior to the expiration of the 45-day period, was in fact an order for a new trial. Kink, 735 P.2d at 313.

Defendant contends that this case is distinguishable from Kink because here we had passed the 45-days at the time the court granted plaintiff’s motion and that if the Kink district court had waited until the 45 days expired, it would have lost jurisdiction. We agree with the defendant that the expiration of the 45-day period affected the District Court’s jurisdiction. However, the District Court lost jurisdiction for the issue only; it did not lose jurisdiction to order a new trial under Rule 59(e).

The District Court’s order here specifically states that it is based on the plaintiff’s motion:

Upon motion of the plaintiff and good cause appearing therefor,
IT IS HEREBY ORDERED that judgment n.o.v. be entered for the Plaintiff on the issue of Defendant’s negligence, with a new trial to determine all remaining issues raised by the pleadings.

The District Court was without jurisdiction to grant a new trial for reasons stated in the plaintiff’s motion. Clearly, the court’s order, as set forth above, grants a new trial based on plaintiff’s motion. We conclude that the court lost jurisdiction to grant plaintiff’s motion for any of the reasons stated in the motion 45 days after it was filed.

We hold the District Court’s Order granting judgment notwithstanding the verdict and granting a new trial to determine all remaining issues raised by the pleadings is of no force or effect.

II.

Did the plaintiff file a timely notice of appeal?

By vacating the District Court’s order granting plaintiff’s motion, we reinstate the denial of the same by operation of law. The question then becomes whether or not this Court will consider the merits of plaintiff’s appeal from the denial of his motion. As explained below, we decline to rule on this issue.

The procedural facts of this case, as noted above, are quite confusing. Plaintiff’s Notice of Appeal was signed and delivered to the Clerk of Court and stamped by the clerk’s office at 3:19 p.m. on January 21, 1992. Plaintiff’s counsel also requested transmittal of the District Court record to the Supreme Court, gave a check for the filing fee to the Clerk of Court’s office and requested that the court reporter prepare a trial transcript.

On January 22,1992, plaintiff’s counsel was contacted by the Clerk of Court’s office and informed that Judge Keedy had issued an order dated January 17, 1992 in favor of plaintiff and granting plaintiff’s post-trial motion for judgment notwithstanding the verdict and ordering a new trial on all other issues raised in the pleadings. Plaintiff’s counsel was asked if lie wished to withdraw plaintiff’s Notice of Appeal. Plaintiff’s counsel advised the Clerk of Court’s office the following day that the Notice of Appeal could be withdrawn. No entry in the clerk’s permanent record remains to show the appeal was filed. However, the docket contains a blank space which has been corrected to remove an entry.

The Notice of Appeal was returned to plaintiff’s counsel with the Clerk of Court’s stamps obliterated with correction fluid. The original Notice of Appeal and counsel’s check in the amount of $75.00 were then returned by the clerk’s office. No motion for withdrawal, notice of motion for withdrawal, or order for withdrawal was filed. Plaintiff’s check and Notice of Appeal were included with documents sent to this Court in March of 1992 in response to defendant’s application for a writ of supervisory control. In a document filed with this Court, however, the parties stipulated for purposes of this appeal, that plaintiff would be denominated respondent and cross-appellant and defendant would be denominated appellant and respondent.

Plaintiff now contends that his Notice of Appeal was effectively filed when delivered to the Clerk of Court and that his counsel’s oral directive to withdraw the Notice of Appeal after it had been delivered was insufficient. He further contends that only a properly withdrawn notice of appeal will divest this Court of its jurisdiction.

This Court has jurisdiction after the filing of the notice of appeal except for the District Court’s limited jurisdiction to dismiss the appeal when it has not been docketed by the Clerk of the Supreme Court. Plaintiff’s appeal has not been docketed by the clerk as of the date of this writing.

Rule 4(a), M.R.App.P, provides in pertinent part:

Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the supreme court deems appropriate, which may include dismissal of the appeal. (Emphasis added.)

Rule 4(a) allows this Court to dismiss an appeal on appropriate grounds.

We conclude that dismissal of plaintiff’s appeal is appropriate in this case. We do note that the procedural errors which caused the problems in this case resulted from the conduct of the District Court Judge and not of either counsel. Counsel for defendant presented a proper document to the District Court for signature. It was the obligation of the District Court to enter judgment promptly upon submission. In addition, plaintiff’s counsel filed timely motions which were not ruled on during the time allowed for these motions under the Rules of Civil Procedure. Plaintiff’s counsel notified the District Court that the court had not ruled on the motions and had not entered judgment. The subsequent order filed when the court was without jurisdiction caused needless confusion with all concerned.

Because we conclude that the District Court’s order granting a new trial was improper and because we direct the entry of judgment for defendant in accordance with the jury’s verdict, we conclude that either party will then have the amount of time allowed by law in which to file a notice of appeal from that judgment. In view of that conclusion, we do not find it necessary to address the issue of the adequacy of the notice of appeal.

We vacate the Order of the District Court granting plaintiff’s motion for judgment notwithstanding the verdict and ordering a new trial on remaining issues; and remand to the District Court for an order to enter the judgment in favor of the defendant pursuant to the jury’s verdict.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HARRISON and HUNT.


text:
    RICHARD SALTZMAN, JR., Plaintiff and Respondent, v. MONTANA DEPARTMENT OF TRANSPORTATION, Defendant and Appellant.
    No. 92-474.
    Submitted on Briefs February 4, 1993.
    Decided July 20, 1993.
    50 St.Rep. 845.
    259 Mont. 386.
    856 P.2d 965.

      For Defendant and Appellant: Jack A. Holmstrom, Montana Department of Transportation, Helena.
    For Plaintiff and Respondent: Michael E. Wheat, Cok & Wheat, Bozeman.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

On January 16, 1991, plaintiff Richard Saltzman, Jr., filed his complaint in the District Court of the First Judicial District, Lewis and Clark County, to enforce a settlement agreement entered into with the Montana Department of Transportation. On April 27, 1992, the District Court dismissed his complaint with prejudice based on his failure to prosecute his claim in a timely fashion. However, on June 10, 1992, plaintiff moved the District Court, pursuant to Rule 60(b)(6), M.R.Civ.P, to vacate and set aside its earlier judgment. That motion was granted on August 14, 1992. The Department appeals from the District Court’s August 14, 1992, order. We affirm.

The issue on appeal is whether, due to the passage of 45 days, the District Court lost jurisdiction to grant plaintiff’s motion to vacate the court’s earlier judgment.

FACTUAL BACKGROUND

On January 16, 1991, plaintiff, through his attorney, filed a complaint in which he alleged that a settlement agreement entered into between the Montana Department of Transportation and plaintiff, on April 2,1979, had been breached by the Department. The 1979 settlement agreement resolved an earlier claim by plaintiff that the Department had discriminated against him as an employee based upon physical and mental handicap. As part of that agreement, the Department agreed to reinstate plaintiff as an employee, and he agreed to dismiss various formal complaints that had been filed against the Department.

The Department answered plaintiff’s complaint on May 16, 1991, and a scheduling conference was conducted by the District Court on July 12,1991. As a result of that conference, this case was set for trial on April 27,1992, and January 30,1992, was established as the date for completion of discovery. Other dates for the completion of pretrial matters were also established.

The Department subsequently submitted written interrogatories and requests for admissions to plaintiff’s attorney. However, no responses were ever provided in spite of the District Court’s order compelling plaintiff to respond to the interrogatories.

The Department attempted to comply with other deadlines established by the District Court. However, there was no compliance by plaintiff’s attorney. He failed to provide a witness list or an exhibit list, and did not attend the pretrial attorney conference in compliance with the District Court’s scheduling order.

On March 9, 1992, the Department moved the District Court to dismiss plaintiff’s complaint as a sanction for plaintiff’s failure to provide responses to discovery or otherwise comply with the District Court’s scheduling order. Plaintiff’s attorney did not respond to this motion, or other earlier motions to dismiss which had been filed by the Department.

On April 27, 1992, the District Court entered its order dismissing plaintiff’s claim with prejudice because of his failure to prosecute that claim in a timely manner. Notice of entry of that judgment was filed and mailed to plaintiff’s attorney of record on the following day.

Norma Saltzman is plaintiff’s mother, and due to his handicap has attempted to assist him with his claim. In an affidavit filed with the District Court, she stated that during the time that plaintiff’s former attorney represented him, he had advised her and her husband that he was proceeding with discovery and that everything was under control. Plaintiff’s attorney also told her that he anticipated that he would be prepared for the original trial date, but advised her that if he was not prepared, there would be no problem having that trial date continued. He did not advise them of outstanding discovery requests from the Department, and no copies of any legal documents were ever shown or provided to them.

Plaintiff advised the District Court by affidavit that after the complaint was filed in this case, he had one conversation with his attorney, but heard nothing further from him and was provided with no copies of discovery or pleadings in his case.

In March 1992, plaintiff’s parents began looking for other representation for their son, but were advised to continue with the services of their original attorney. Finally, on June 4, Michael Wheat, an attorney in Bozeman, agreed to represent plaintiff. He made several calls to the former attorney’s office to discuss the case, but the calls were not returned. On June 5, 1992, he wrote to that attorney and advised him that he had agreed to represent plaintiff and asked if they could make arrangements to transfer the file. On that same date, Wheat also called the attorney for the Department to notify him that he would be representing plaintiff. That call was returned on June 8, 1992. It was during that telephone conversation that Wheat was first advised that plaintiff’s complaint had been dismissed with prejudice. On that same date, Wheat notified plaintiff and his parents of the dismissal. This was their first notice of the dismissal.

On June 8, and again on June 9, Wheat called the office of plaintiff’s former attorney on several occasions to arrange for substitution of counsel. However, those calls were not returned.

On June 10,1992, Wheat filed a motion in the District Court pursuant to § 37-61-403, MCA, asking that he be substituted for plaintiff’s former attorney as the attorney of record for plaintiff. On that same date, he filed a motion pursuant to Rule 60(b)(6), M.R.Civ.R, for an order vacating the District Court’s earlier judgment.

Although there was no objection to plaintiff’s motion for substitution of counsel, that motion was not acted upon by the District Court until August 14, 1992, when it was granted. On that same date, the District Court granted plaintiff’s motion, over the objection of the Department, to vacate its earlier judgment.

On appeal, the Department does not reargue the merits of plaintiff’s Rule 60(b)(6) motion. It simply alleges that by August 14, 1992, 65 days had passed since the motion was filed, and therefore, pursuant to Rule 60(c) and Rule 59(d), M.R.Civ.R, the District Court was without jurisdiction to grant plaintiff’s motion.

Therefore, we limit our review to that issue.

DISCUSSION

Rule 60(c), M.R.Civ.P., provides that:

Motions provided by subdivision (b) of this rule shall be determined within the times provided by Rule 59 in the case of motions for new trials and amendment of judgment and if the court shall fail to rule on the motion within the 45 day period, the motion shall be deemed denied.

In this case, the District Court did not rule on plaintiff’s motion within 45 days and that is the basis for the Department’s contention that it was without jurisdiction to do so on August 14,1992. However, plaintiff points out that neither did the District Court rule on his motion to substitute Michael Wheat for his former attorney and that until that motion was granted, there was no valid Rule 60(b)(6) motion pending before the District Court. The motion for substitution was not granted until the date on which plaintiff’s Rule 60(b)(6) motion was granted, and therefore, plaintiff contends that the District Court’s order was timely.

The Department responds that Wheat acted as plaintiff’s attorney, and that the motion he filed on plaintiff’s behalf should be deemed effective from the date on which it was filed. In support of that argument, the Department refers us to several cases from other jurisdictions, including Baker v. Boxx (Cal. App. 2d 1991), 277 Cal. Rptr. 409, and In re Goldstein (2d Cir. 1930), 43 F.2d 698.

In support of his position, plaintiff relies on Giacona v. State (Ark. App. 1992), 839 S.W.2d 228.

Because these decisions are based on statutory rules or equitable principles that are not present in this case, we find none of them persuasive. Instead, we conclude that our decision is controlled by our earlier decision in Endresse v. Van Vleet(1946), 118 Mont. 533, 169 P.2d 719. In that case, the defendants’ attorney was appointed to the federal bench after the trial. No formal substitution of counsel had been filed with the district court and the defendants resided out of state. The plaintiff filed a notice of appeal with the clerk of court, along with an affidavit, pointing out that defendants were unrepresented and there was, therefore, no attorney upon whom notice of appeal could be served. This Court held that under those circumstances, the proceedings were suspended until a new attorney was formally substituted for the defendants’ former attorney, and therefore, the notice of appeal had not been effectively served. In arriving at that conclusion, this Court stated the following relevant rule:

A party having an attorney of record in an action must be heard in court through such attorney and the court has no power or authority of law to recognize anyone in the conduct or disposition of the case except the attorneys of record therein.
Even death of a party to an action does not revoke the authority of his attorney of record in such action, “but the authority of the attorney is continued in all respects the same and with like effect as it was prior to the death of such party, until such attorney shall withdraw his appearance in said action ... or some other attorney shall be substituted for him, or his authority shall be otherwise terminated, and entry thereof made to appear in the record of such action or proceeding.” Sec. 8974 Rev. Codes.
In the absence of any relation of the attorney to the subject of the action, other than that arising from his employment, the client has the absolute right to change his attorney at any stage in the action by complying with the provisions of sections 8975 and 8976, Revised Codes, but such change must be entered upon the minutes of the court or be upon order of the court after notice (sec. 8975) and thereafter written notice must be given to the adverse party of the change and substitution of a new attorney or of the appearance of the party in person and, “Until then he [the adverse party] must recognize the former attorney.” Sec. 8976, Rev. Codes.

Endresse, 169 P.2d at 720.

It is clear then from our previous decision that so long as plaintiff was represented by his original attorney, the court had no power nor authority to rule upon a motion filed by anyone else on plaintiff’s behalf. The authority to act on plaintiff’s behalf could only be transferred according to the procedure provided for by statute. The controlling statute during the time that this case was decided was § 37-61-403, MCA. It provides as follows:

The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows:
(1) Upon consent of both client and attorney, filed with the clerk or entered upon the minutes;
(2) Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.

In this case, consent of the original attorney for substitution of counsel could not be obtained. That attorney did not respond to the telephone calls or correspondence which requested his withdrawal. The only means by which plaintiff could accomplish a substitution of counsel was by order of the District Court. He promptly moved for such an order within two days from the date on which he discovered that his complaint had been dismissed. There is no contention by the Department that the motion for substitution had to be ruled on within any specified period of time. That motion was granted on August 14, 1992. Prior to that date, the District Court had no power or authority to recognize the motion which had been filed on plaintiff’s behalf pursuant to Rule 60(b)(6), M.R.Civ.P.

Therefore, we conclude that the 45-day period provided for in Rule 60(c) did not begin to run until plaintiff’s motion for substitution of counsel was granted and there was an authorized motion for post-judgment relief for the District Court to consider.

For these reasons, we hold that the District Court had jurisdiction on August 14, 1992, to grant plaintiff’s motion for relief from the judgment which had been entered on April 27,1992. Since that is the only issue we have been asked to address, the order of the District Court is affirmed.

JUSTICES HARRISON, HUNT, McDONOUGH and WEBER concur.


text:
    CLARENCE KING and LOIS FAY KING, on their own behalf and as Personal Representatives of the Estate of DAVID R. KING, Plaintiffs and Appellants, v. THE STATE OF MONTANA, THE STATE HOSPITAL, and THE DEPARTMENT OF INSTITUTIONS, Defendants and Respondents.
    No. 92-545.
    Submitted on Briefs July 1, 1993.
    Decided July 20, 1993.
    50 St.Rep. 848.
    259 Mont. 393.
    856 P.2d 954.

      For Plaintiffs and Appellants; Howard C. Greenwood, Hamilton.

      For Defendants and Respondents: Norman C. Peterson, Agency Legal Services Bureau, Helena; William Gianoulias, Risk Management and Tort Defense Division, Department of Administration, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from an Opinion and Order of the Twenty-First Judicial District Court granting Defendants’ motion to dismiss the Plaintiffs’ complaint for its failure to state a claim upon which relief may be granted. We affirm.

We restate the issues on appeal as follows:

1. Did the District Court err in dismissing the Plaintiffs’ negligence claim against the Defendants?

2. Did the District Court err in dismissing the Plaintiffs’ intentional tort and 42 U.S.C. § 1983 claims against the Defendants without addressing those claims in its Opinion and Order?

On May 23, 1989, Victor Buddell (Buddell) was involuntarily committed to the Montana State Hospital for a three-month term and examination. On July 28, 1989, an evidentiary recommitment hearing was held before District Judge Ted L. Mizner. At the conclusion of this hearing, Judge Mizner found that Buddell was a danger to himself but that the least restrictive environment for Buddell was a conditional release to the community. On August 24, 1989, Buddell was released from the Montana State Hospital pursuant to Judge Mizner’s Order. The State of Montana did not appeal that release order. On September 13,1989, Buddell murdered David R. Kang, the son of the Plaintiffs, Clarence and Lois King (Kings).

The Kings filed an action against the Defendants (collectively referred to as State) alleging negligence, intentional acts, and violations of David R. King’s civil rights under 42 U.S.C. § 1983. The State filed a motion to dismiss under Rule 12(b)(6), M.R.Civ.P. District Judge Ed McLean dismissed the Kings’ complaint on September 9, 1992, holding that the Kings had failed to establish a prima facie case of negligence because the State had no duty to appeal Judge Mizner’s decision. Without referring to the Kings’ claims based on intentional acts and an alleged violation of 42 U.S.C. § 1983, the District Court dismissed those claims as well. From the dismissal of the Kings’ complaint, this appeal follows.

In reviewing a Rule 12 motion to dismiss, we will construe the complaint in the light most favorable to the plaintiffs and take the allegations of the complaint as true. Willson v. Taylor, (1981), 194 Mont. 123, 126, 634 P.2d 1180, 1182. The dismissal will be affirmed only if this Court finds that the plaintiffs are not entitled to relief under any set of facts which could be proven in support of the claim. Proto v. Missoula County (1988), 230 Mont. 351, 352-53, 749 P.2d 1094, 1095-96. When a case is dismissed pursuant to a pretrial motion and the credibility of witnesses is not an issue, the scope of review is broad and this Court may make its own examination of the entire case and make a determination in accordance with its findings. Shimsky v. Valley Credit Union (1984), 208 Mont. 186, 189-90, 676 P.2d 1308, 1310. The Court will uphold the result reached by the district court if its decision was correct, regardless of the reasons given by the district court for its conclusion. Shimsky, 676 P.2d at 1310.

I - NEGLIGENCE CLAIM

The Kings’ negligence action fails on two grounds. First, the State had no duty to appeal the District Court’s decision not to recommit Buddell to the Montana State Hospital. Second, the Kings could not establish that the acts of the State were the proximate cause of their son’s death.

A. DUTY TO APPEAL

The Kings contend that the State was negligent in not appealing the District Court’s decision to conditionally release Buddell to the community. In order to sustain a negligence action, the plaintiff must establish a legal duty, breach of that duty, and damages caused by that breach. Whitfield v. Therriault Corp. (1987), 229 Mont. 195, 197, 745 P.2d 1126, 1127. The Kings’ argument necessarily requires that the State owed the Kings a duty to appeal the District Court’s decision. We disagree.

The recommitment proceedings involving Buddell originated under Title 53, Chapter 21, MCA. The State petitioned for an extension of the commitment period pursuant to § 53-21-128, MCA, and the District Court entered an order consistent with the statutory authority therein. These mental health statutes provide for appellate review of the district court’s order. Section 53-21-131, MCA, states:

Appellate review of any order of short-term evaluation and treatment or long-term commitment may be had by appeal to the supreme court of Montana in the manner as other civil cases. ... (emphasis added)

The word “may” is to be given its ordinary meaning unless there is a specific reason to treat it otherwise. County of Chouteau v. City of Fort Benton (1979), 181 Mont. 123, 128, 592 P.2d 504, 507. The ordinary meaning of “may” is that of permissiveness. If a statute is permissive, “there is no ‘clear mandatory duty’ to perform the function enumerated by the statute.” Platz v. Hamilton (1982), 201 Mont. 184, 189, 653 P.2d 144, 147. In this case, the determination to appeal the District Court’s decision regarding Buddell’s release was discretionary. There was no mandatory duty on the State to appeal this decision.

In addition, the Kings’ contention that the State had a duty to appeal this decision raises serious policy concerns. For example, if the State had appealed this decision, there is no guarantee the appeal would have been successful. To impose a duty to appeal district court decisions would encourage attorneys to appeal every unfavorable decision to avoid being second-guessed at a later date. As the State points out in its brief, “[t]his Court would find itself the arbiter not only of whether a judge had made a correct decision based on the evidence, but also whether the attorney who did not appeal was or was not reasonably prudent and should have appealed because it was a close decision.” The exercise of the right to appeal, by its very nature, must remain discretionary. Therefore, because the State had no duty to appeal the District Court decision, no action for negligence may he.

B. PROXIMATE CAUSE

The State also contends that the Kings could not prove the proximate cause element necessary to establish negligence. We agree.

To satisfy the third element of a negligence action, causation, the Kings must prove both cause in fact and proximate (or legal) cause. In this case, cause in fact is established through the “but for” test, where the injury would not have occurred but for the State’s negligence. Kitchen Krafters, Inc. v. Eastside Bank of Montana (1990), 242 Mont. 155, 167, 789 P.2d 567, 574. Proximate cause is established by applying a foreseeability test. Kitchen Krafters, 789 P.2d at 575. If the consequences of an act are not reasonably foreseeable, there is no proximate cause. Kitchen Krafters, 789 P.2d at 575. In addition, if a plaintiff’s injury is caused by the intervening act of a third-party, the defendant’s actions cannot be viewed as the proximate cause of that injury. Graham v. Montana State Univ., (1988), 235 Mont. 284, 289-90. 767 P.2d 301. 304.

In this case, the Kings could not establish proximate cause against the State, as the Kings’ injury was clearly caused by the acts of Buddell. The Kings have attempted to distinguish our decisions in VanLuchene v. State (1990), 244 Mont. 397, 797 P.2d 932; Kiger v. State Dep’t. of Inst. (1990), 245 Mont. 457, 802 P.2d 1248; and United States Fidelity & Guar. Co. v. Camp (1992), 253 Mont. 64, 831 P.2d 586. However, these three cases clearly control in this case.

In VanLuchene, an inmate at the Montana State Prison was released after serving the entire term of his sentence. After his release, he killed a young child. VanLuchene, 797 P.2d at 933. The parents and siblings of the child sued the State, alleging the State was negligent in releasing the inmate prior to his completing the sexual offender treatment program and for failing to warn the public of his release from prison. VanLuchene, 797 P.2d at 934. The district court dismissed the case, holding that the plaintiffs’ theories of proximate cause were speculative and that the State’s acts were not the proximate cause of the plaintiffs’ injuries. VanLuchene, 797 P.2d at 934. The district court’s dismissal was affirmed by this Court. VanLuchene, 797 P.2d at 936.

In Kiger, a paroled inmate from the Montana State Prison shot a woman while attempting to steal her car. Kiger, 802 P.2d at 1249. The victim filed an action against the State, alleging the State was negligent during the parole process of the inmate. Kiger, 802 P.2d at 1249. The district court dismissed this action on the basis that the plaintiff could not establish proximate cause. Kiger, 802 P.2d at 1249. This court affirmed, stating that the inmate’s actions could not have been reasonably foreseen by the State. Kiger, 802 P.2d at 1251.

In Camp, a prisoner on work release became intoxicated, passed out, and started a fire when his lighted cigarette fell on a couch. Camp, 253 Mont. at 65-67, 831 P.2d at 587; 49 St.Rep. at 373. The district court entered summary judgment against the plaintiff, finding that the plaintiff could not establish proximate cause. Camp, 253 Mont. at 65-67, 831 P.2d at 587; 49 St.Rep. at 373. This Court affirm eel that dismissal, holding that the prisoner’s intervening acts were not reasonably foreseeable. Camp, 253 Mont. at 67-68, 831 P.2d at 588; 49 St. Rep. at 374.

These three cases are analogous to the case at bar. The acts of Buddell were not reasonably foreseeable and, therefore, the Kings cannot establish proximate cause against the State.

II - INTENTIONAL TORT AND 42 U.S.C. § 1983 CLAIMS

The Kings contend that the District Court erred in dismissing the entire complaint, because the District Court’s Opinion and Order only addressed the negligence action. We agree with the District Court’s decision to dismiss the intentional tort and 42 U.S.C. § 1983 claims.

The Kings did not allege any specific intentional tort action in their complaint. Rather, the Kings alleged that the State “intentionally adopted and carried out a considered and deliberate practice ... of routinely not appealing the rulings of the District Court at recommitment hearings.” As we previously held, the State has no mandatory duty or obligation to appeal the ruling of a district court at a recommitment hearing. Thus, the Kings have failed to allege any intentional act committed by the State upon which relief could be granted.

The action based on 42 U.S.C. § 1983 also must be dismissed. The Kings filed this action against the State of Montana, the State Hospital, and the Department of Institutions. These parties are not “persons” subject to liability under this federal civil rights statute. Holladay v. Montana (D.C. Mont., 1981), 506 F.Supp. 1317, 1321. See also Will v. Michigan, 491 U.S. 58, 64, 109 S.Ct. 2304, 2308, 105 L.Ed.2d 45, 53. (“[A] state is not a person within the meaning of § 1983.”)

In Holladay, the plaintiff was suspended from his job as superintendent of the Pine Hills School for Boys, a division of the Montana Department of Institutions. The plaintiff filed an action against the State of Montana and the Department of Institutions, among others, alleging violations of 42 U.S.C. § 1983. Holladay, 506 F.Supp. at 1320. The State of Montana and the Department of Institutions filed a motion to dismiss the action. Calling the Department an “alter ego” of the State, the court found that neither party could be considered a “person” under the federal civil rights statute and dismissed the action against them. Holladay, 506 F.Supp. at 1320-21.

Following the reasoning in Holladay, we hold that the State of Montana, the State Hospital, and the Department of Institutions are not “persons” under 42 U.S.C. § 1983 and thus the action against these parties was properly dismissed by the District Court.

Affirmed.

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


text:
    ALEX B. MOGAN, PAUL B. MOGAN, MARLIN R. MOGAN, EDWIN MOGAN, JOHN W. MOGAN, JOHN GILBERT MOGAN, DAVID C. MOGAN, d/b/a MOGAN & SONS, Plaintiff and Appellants, v. CARGILL, INC., and AL STERNBERG, Defendants and Respondents.
    No. 92-564.
    Submitted on Briefs June 17, 1993.
    As Amended July 27, 1993.
    Decided July 20, 1993.
    50 St.Rep. 851.
    259 Mont. 400.
    856 P.2d 973.

      For Appellants: David C. Mogan, Lewistown, pro se.
    For Defendants and Respondents: Robert L. Sterup, Dorsey & Whitney, Billings.
   JUSTICE WEBER

delivered the Opinion of the Court.

David C. Mogan appeals the Order of the District Court of the Seventeenth Judicial District, Valley County, which granted summary judgment to the defendant on the basis of the statute of limitation for contracts for the sale of goods. We affirm.

The sole issue on appeal is whether the District Court applied the correct statute of limitation in this action for breach of a contract for the sale of grain.

Alex B. Mogan, Paul B. Mogan, Marlin R. Mogan, Edwin Mogan, John W. Mogan, John Gilbert Mogan, and David C. Mogan, d/b/a Mogan & Sons (Mogans) filed a complaint on May 21,1991, alleging that Cargill, Inc. and A1 Sternberg had breached a contract to purchase 85,000 bushels of wheat at $3.75 per bushel. Mogans claimed that A1 Sternberg, an employee of Cargill, Inc., agreed to purchase the wheat on May 23,1986.

On May 23, 1986, Sternberg purchased 50,000 bushels of wheat from Mogans pursuant to an agreement with Alex Mogan, father of appellant David C. Mogan. A written agreement was executed for this transaction. The record indicates that this was the normal practice between the parties for grain sales. Later in the afternoon of May 23, 1986, Alex Mogan again contacted Sternberg and offered to sell an additional 85,000 bushels of wheat for the same price. Sternberg advised Alex Mogan that he could not purchase that amount so close to 5:00 p.m. without consulting with Cargill, Inc.’s area merchant.

Alex Mogan contacted Sternberg again on either May 25th or 26th to inquire whether the offer was accepted by Cargill, Inc. Sternberg advised Mogan that Cargill, Inc. would not purchase the additional 85.000 bushels of grain for that price. Subsequently, on May 28,1986 and June 13, 1986, Alex Mogan executed written contracts for other grain sales.

On July 5, 1986, David C. Mogan wrote a letter to Cargill, Inc. demanding compensation for breach of a contract to purchase 85,000 bushels, claiming the grain was sold on May 23, 1986. Cargill, Inc. responded to this letter on July 28, 1986, advising David C. Mogan that it was Cargill, Inc.’s position that there was no contract.

Although Mogans were represented by counsel in this action before the District Court, they are not so represented on appeal. David C. Mogan, acting “in propria persona,” is not an attorney licensed to practice law in Montana. Therefore, he may only represent himself and is the only appellant in this action.

Did the District Court err in determining that the four-year statute of limitation for contracts for the sale of goods barred this action? The contract in issue is an alleged oral contract for the sale of

85.000 bushels of wheat. The District Court determined that § 30-2-725, MCA, sets forth the limitation period for an action such as this. That section provides in pertinent part:

Statute of limitations in contracts for sale. (1) An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued. ...

Section 30-2-725(1), MCA.

Appellant contends that § 27-2-202(2), MCA, provides the appropriate period to bring an action for an oral contract for the sale of grain. Section 27-2-202(2) provides:

Actions based on contract or other obligation. ...
(2) The period prescribed for the commencement of an action upon a contract, account, or promise not founded on an instrument in writing is within 5 years.

Appellant contends that § 27-2-202(2), MCA, is the more specific statute because of the words “not founded on an instrument in writing.” We do not agree.

Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R Where the issues raised on appeal are questions of law, this Court will affirm the District Court’s order granting summary judgment if the movants were entitled to judgment as a matter of law. Evans v. Montana Nat’l Guard (1986), 223 Mont. 482, 726 P.2d 1160. The standard of review applied by this Court is the same as that initially used by the District Court. Kelly v. Widner (1989), 236 Mont. 523, 771 P.2d 142.

In this case, the District Court wrote a clear opinion analyzing §§ 27-2-202(2) and 30-2-725(1). We agree with that analysis. Section 27-2-202(2), MCA, is a general statute of limitation covering actions on contracts. Section 27-2-105, MCA, provides that civil actions must be commenced within the time prescribed in part 2 “except when another statute specifically provides a different limitation.” Section 30-2-725(1), MCA, specifically provides for a different limitation — four years — for contracts for the sale of goods.

The Official Comment to § 2-725 of the Uniform Commercial Code states:

Purposes: To introduce a uniform statute of limitations for sales contracts, thus eliminating the jurisdictional variations and providing needed relief for concerns doing business on a nationwide scale whose contracts have heretofore been governed by several different periods of limitation depending upon the state in which the transaction occurred. This Article takes sales contracts out of the general laws limiting the time for commencing contractual actions and selects a four year period as the most appropriate to modern business practice. This is within the normal commercial record keeping period.

Contracts for the sale of wheat come within the definition of “goods” and are governed by the provisions of the Uniform Commercial Code for sales which has been adopted in Montana and is set forth in §§ 30-2-101 through 30-2-725, MCA. See, specifically, § 30-2-103, MCA, and 30-2-105(1), MCA.

We conclude the appropriate statute of limitation to apply to this proceeding concerning an alleged contract for the sale of wheat is the four-year period provided for in § 30-2-725(1), MCA. Appellant’s claim accrued no later than May 26,1986. Because Mogans’ complaint was filed on May 21,1991, more than four years after the claim accrued, it is barred by the statute of limitation set forth in § 30-2-725(1), MCA.

We hold the District Court properly dismissed Mogans’ claim because it was barred by the four-year statute of limitation for sales contracts.

Cargill, Inc. has asked this Court to award it reasonable attorney fees and costs incurred in responding to “this frivolous appeal.” We note that David C. Mogan has presented similarly imperceptive arguments in other cases previously before this Court. See e.g., Credit Associates, Inc. v. David C. Mogan (1992), 255 Mont. 307, 843 P.2d 321 (district court properly denied counterclaim and third-party complaint as being frivolous); and Mogan v. Montana Pub. Serv. Comm’n, (Cause No. 93-159, unpublished opinion dated July 20, 1993) (affirmed district court dismissal of appeal for failure to state a claim upon which relief could be granted).

In Huffine v. Boylan (1989), 239 Mont. 515, 517, 782 P.2d 77, 78, we stated:

While this Court accommodates pro se litigants when possible, Huffine is no stranger to litigation. He has been involved in thirteen District Court cases and has attempted several appeals.

David C. Mogan is also no stranger to litigation. In each of the cases listed above, David C. Mogan represented himself. In each case, he filed numerous motions with the district court or the administrative agency. In addition to the cases listed above, David C. Mogan has represented himself before this Court in a number of other actions in which we have dismissed his appeal, affirmed the district court or denied his petition. He has brought the following unsuccessful proceedings since 1990:

David C. Mogan v. Allstate Motor Club, Inc. (Cause No. 90-224, unpublished opinion dated Sept. 5, 1990) (district court affirmed; two motions by Mogan denied; clerk instructed not to accept further filings in this matter from Mogan).

In the Matter of David C. Mogan (Cause No. 90-619, unpublished order dated Jan. 3, 1991) (Petition for Writ of Mandamus denied and ordered stricken in its entirety).

David C. Mogan v. State of Montana (Cause No. 91-157, unpublished order dated April 30, 1991) (Petition for Habeas Corpus denied; one motion denied).

State of Montana v. David C. Mogan (Cause No. 91-035, unpublished order dated June 25, 1991) (appeal from conviction of speeding dismissed; petition for reh’g filed dismissed; clerk instructed not to accept additional documents from Mogan in this matter; appealed to United States Supreme Court (cert. denied)).

David C. Mogan v. Citicorp Diners Club; Capitol Credit Corp., et al. (Cause No. 92-625, unpublished opinion dated March 25, 1993) (district court affirmed).

David C. Mogan has been represented by counsel in only one case that he has appealed to this Court. See Mogan v. City of Harlem (1989), 238 Mont. 1, 775 P.2d 686. In that case, we affirmed the district court and termed Mogan’s arguments “meritless.”

Sanctions are properly awarded if an attorney or a party fails to abide by the mandate of Rule 11, M.R.Civ.P, which states in pertinent part:

... The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper... that to the best of the signer’s knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation .... If a pleading, motion, or other paper is signed in violation of this rule, the Court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including reasonable attorney’s fee.

David C. Mogan’s appeal is not warranted by existing law and he has not made a good faith argument for a change in the existing law. The standard for imposing sanctions is that of reasonableness under the circumstances. Brown v. Jensen (1988), 231 Mont. 340, 350, 753 P2d 870, 876. We conclude David C. Mogan’s appeal was taken without substantial or reasonable grounds in these circumstances. Therefore, according to Rule 32, M.R.App.P., this Court orders that sanctions be imposed upon David C. Mogan in the amount of $500.00 to be paid to Cargill, Inc. to help defray litigation costs.

Affirmed.

JUSTICES HUNT, GRAY, NELSON and TRIEWEILER concur.