text:
    LARRY SEMENZA and FAYE FITZGERALD, Plaintiffs, Respondents, and Cross-Appellants, v. RONALD BOWMAN and ERIC JOHNSON, d/b/a L & R SPRAYING SERVICE, Defendants and Appellants.
    No. 94-202.
    Submitted on Briefs October 13, 1994.
    Decided November 22, 1994.
    51 St.Rep. 1209.
    268 Mont. 118.
    885 P.2d 451.

      For Appellants: William O. Bronson, James, Gray & McCafferty, Great Falls.
    For Respondents: K. Dale Schwanke, Jardine, Stephenson, Blewett & Weaver, Great Falls.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Plaintiffs Larry Semenza and Faye Fitzgerald commenced this action in the District Court for the Tenth Judicial District for Judith Basin County to recover compensation for crop damage which they allege was caused when their crops were sprayed by defendants Ronald Bowman and Eric Johnson, d/b/a L & R Spraying Service. After trial before the court without a jury, the court found that L & R’s spraying caused plaintiffs’ damages, awarded damages based on their expert’s calculations, did not allow L & R’s expert to testify, and awarded prejudgment interest. L & R Spraying Service appeals from the District Court’s decision. Semenza and Fitzgerald cross-appeal. We affirm the judgment of the District Court.

The following issues are raised by L & R on appeal:

1. Did the District Court err when it concluded that Fitzgerald’s claim was not barred by the statute of limitations?

2. Did the District Court err when it excluded the opinion testimony of L & R’s expert witness?

3. Did the District Court err in its calculation of Semenza’s and Fitzgerald’s damages?

4. Did the District Court err when it awarded Semenza and Fitzgerald prejudgment interest?

On cross-appeal, Semenza and Fitzgerald raise the following issue:

Did the District Court err in its determination of the date from which prejudgment interest should accrue?

FACTUAL BACKGROUND

Defendants Ronald Bowman and Eric Johnson operated L & R Spraying Service as a partnership, which for simplicity will be referred to as L & R. Semenza owns and farms land near Helmville (Helmville farm) in Powell County, and near Utica (Utica farm) in Judith Basin County. Plaintiff Faye Fitzgerald owns a farm near Stanford (Stanford farm) in Judith Basin County, which Semenza custom farmed. In the spring of 1987, Semenza seeded approximately 260 acres of his Helmville farm, about 180 acres of his Utica farm, and roughly 521 acres of Fitzgerald’s Stanford farm, with Klages barley. Semenza asked L & R to spray those crops, and they did. L & R used a mixture of Banvel II and Low Vol 6 (LV6) which was an “off label” mixture not authorized for use on spring barley.

In May 1987, L & R sprayed this mixture on Semenza’s and Fitzgerald’s barley and spring wheat crops. In July 1987, Fitzgerald noticed that her barley crop was damaged. Semenza discovered similar problems with his barley crop.

On March 29, 1989, Semenza filed the original complaint in this case in which he alleged that L & R was negligent and damaged his crop. This complaint did not name Fitzgerald, but claimed damage to 953 acres, including the crop on Fitzgerald’s property. On or about January 15,1990, an amended complaint was filed adding Fitzgerald as a party but asserting the same cause of action.

A bench trial was conducted from January 25-29, 1993, and the District Court issued its findings and conclusions onNovember 19,1993.

To counter plaintiffs’ damage calculations, L & R called Dr. Ray Choriki to testify. After numerous objections and voir dire examination, the court did not allow Choriki to express his opinion.

The court found that L & R’s spraying caused the crop damage, and that Fitzgerald was damaged in the amount of $47,737.28, based on calculations done by her expert, Neal Fehringer. The basis for that amount was the court’s finding that she should have been able to sell all of her barley as malt barley at $3.69/bushel and would have harvested at least 13,194 more bushels. In addition, the court found that Semenza had to rent equipment for $3,000 to screen out “thins” to ensure the maximum amount of Fitzgerald’s barley was suited for malt, and added that amount to her damage award.

Fehringer also testified, and the District Court found, that based on crop reduction at both of his locations, Semenza sustained damages in the total amount of $55,073.02. The District Court also found that L & R knew that Semenza’s damages were at least the amount set forth above, and awarded Semenza and Fitzgerald prejudgment interest to accrue from September 15, 1989.

Both parties filed post-trial motions pursuant to Rule 59, M.R.Civ.P. Plaintiffs moved the court to award interest from the date of the damage in 1987. L & R moved for a new trial and to alter or amend the judgment. All post-trial motions were denied. Additional facts will be discussed where necessary to address the issues on appeal.

ISSUE 1

Did the District Court err when it concluded that Fitzgerald’s claim was not barred by the statute of limitations?

The District Court denied L & R’s motion for summary judgment based on the statute of limitations, and also denied its post-trial motion, which was made on the same basis. Our standard of review of a district court’s summary judgment ruling is de novo. Spain-Morrow Ranch, Inc. v. West (1994), 264 Mont. 441, 444, 872 P.2d 330, 331 (citing Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214). Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P., Spain-Morrow, 872 P.2d at 331-32.

L & R claims that the District Court erred when it concluded that Fitzgerald’s claim was not barred by § 27-2-207(1), MCA, which provides a two-year statute of limitations for injury to property since she was not added as a party until more than two years after her crops were damaged. L & R contends that Rule 15(c), M.R.Civ.P, does not contain specific language allowing a new plaintiff to be added after the statute of limitations has expired. The relevant portion of Rule 15(c) states:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.

We previously discussed similar contentions in Priest v. Taylor (1987), 227 Mont. 370, 740 P.2d 648, and Tynes v. Bankers Life Co. (1986), 224 Mont. 350, 730 P.2d 1115. Relying on the rationale ofthese cases, Fitzgerald argues that if the two-year statute of limitation applies, her claim should relate back to the date of Semenza’s original complaint. We agree.

In Priest, we concluded that a when party amends a complaint to add a new plaintiff and a new cause of action, the claim in the amended complaint will relate back if certain conditions are satisfied. Priest, 740 P.2d at 653. In Priest, we cited Tynes which allowed claims to relate back if the defendant would not be prejudiced. We emphasized that the later claim may relate back if the two parties are nearly identical and the later claim arises from the same conduct, transaction, or occurrence set forth in the original pleading as required by Rule 15(c), M.R.Civ.P. Priest, 740 P.2d at 654 (citing Tynes, 730 P.2d at 1120-21). We recognized that amendments involving new plaintiffs relate back in the following limited circumstances: (1) where there is a close identity of interest between the original plaintiff and the present plaintiff; and (2) where the new claim is based on the same allegations as the original claim. Priest, 740 P.2d at 655.

The damage in this case occurred in approximately July 1987. Semenza filed his complaint on March 30, 1989, in which he sought recovery for the damage to Fitzgerald’s acreage. On January 15,1990, an amended complaint was filed adding Fitzgerald as a plaintiff. Fitzgerald’s claim arose out of the same transaction or occurrence, i.e., that L & R’s spraying caused damage to her crops. The parties have a close identity of interest because Semenza custom farms Fitzgerald’s property and he requested L & R to spray Fitzgerald’s crop. Fitzgerald’s claim is based on the same allegations of negligence as Semenza’s original claim. Accordingly, we conclude that the amendment adding Fitzgerald related back to the original complaint and was not barred by the statute of limitations.

In addition, without regard to the relation-back doctrine, Fitzgerald’s claim was timely pursuant to our decision in Ritland v. Rowe (1993), 260 Mont. 453, 861 P.2d 175. In Ritland, the issue was whether the three-year tort statute of limitations for negligence, or the two-year property damage statute of limitations, applies to cases involving damages to property caused by negligent conduct. We held that where two statutes apply, the district court should apply the statute with the longer period of limitation. Ritland, 861 P.2d at 178. We hold that the District Court did not err when it held that Fitzgerald’s claim relates back and that her claim was not barred by the two-year statute of limitations.

ISSUE 2

Did the District Court err when it excluded the opinion testimony of L & R’s expert witness?

We have previously recognized that the trial court “is vested with great latitude in ruling on the admissibility of expert testimony.” Cottrell v. Burlington Northern Railroad Co. (1993), 261 Mont. 296, 301, 863 P.2d 381, 384 (citing Cash v. Otis Elevator Co. (1984), 210 Mont. 319, 332, 684 P.2d 1041, 1048). In Cottrell, we discussed the foundation necessary to establish an expert’s qualifications and stated that:

We set forth the standard that the determination of the qualification and competency of expert witnesses rests largely within the trial judge, and without a showing of an abuse of discretion, such determination will not be disturbed.

Cottrell, 863 P.2d at 384 (quoting Foreman v. Minnie (1984), 211 Mont. 441, 445, 689 P.2d 1210, 1212).

L & R argues that the District Court erred by disallowing the testimony of Ray Choriki and compounded this error by refusing to grant a new trial. L & R acknowledges that the District Court has broad discretion regarding the qualifications of an expert, but states that the degree of qualification goes only to the weight of the expert’s testimony.

Pursuant to Cottrell, when we review whether the District Court properly exercised its discretion by excluding Ray Choriki’s testimony, we must begin with Rule 702, M.R.Evid., which sets forth the criteria for admissibility of an expert’s opinion. It provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

In Cottrell, we acknowledged that implicit in that rule is a requirement that before a district court allows an expert witness to express an opinion, a foundation must be laid to show that the expert has special training or education, and adequate knowledge on which to base his or her opinion. Cottrell, 863 P.2d at 384.

In this case, Semenza and Fitzgerald do not question Choriki’s qualifications as a soil scientist. Rather, Semenza and Fitzgerald argue Choriki’s scientific studies, on which he based his opinion, were performed in the 1960s under different conditions, involved different chemicals, and were not sufficiently connected to the crop damage that occurred in 1987 to establish a foundation.

The question in this case was whether the mixture of Banvel II with LV6 affected plaintiffs’ barley crops. The District Court heard testimony over a two-day period to determine whether Choriki’s prior studies were relevant to that issue. Choriki acknowledged that he lacked experience with claims involving this specific mixture. Additionally, Choriki never examined the samples of plaintiffs’ barley until trial. The District Court determined that Choriki was not qualified to render an expert opinion in this case. The court specifically found that Choriki’s testimony did not assist the trier of fact to understand the evidence, as required by Rule 702, M.R.Evid.

In Cottrell, we decided that the district court did not abuse its discretion because the expert lacked sufficient factual information to form a foundation for his opinion. Cottrell, 863 P.2d at 385. We noted that “Speculative testimony is inadmissible as evidence.” Cottrell, 863 P.2d at 385 (quoting Williams v. Wallace (1963), 143 Mont. 11, 13, 386 P.2d 744, 745).

L & R failed to establish a necessary connection between tests done in the 1960s on a variety of crops involving different chemical mixtures, and the present case. Choriki did not work with the chemical mixture applied to the damaged barley crops. Nor did Choriki examine the crop samples until trial. We hold that the District Court properly exercised its discretion when it excluded Choriki’s proffered opinion.

ISSUE 3

Did the District Court err in its calculation of Semenza’s and Fitzgerald’s damages?

A district court’s damage determination is a factual finding which must be upheld if it is supported by substantial evidence; we will not overturn a district court unless its determination was clearly erroneous. Columbia Grain Int’l v. Cereck (1993), 258 Mont. 414, 417, 852 P.2d 676, 678. L & R contends that the District Court erred as a matter of law by accepting plaintiffs’ expert’s damage calculations. They argue that the District Court compounded this error by not amending its judgment to reduce the amount of money awarded for crop losses. We note that L & R only challenges the damage measure on Semenza’s Utica farm, and Fitzgerald’s loss on the Stanford farm.

Montana law provides that the measure of damages in a crop loss claim is the net value of the crops lost; in other words, the amount the crops are sold for, less the expenses incurred to harvest and market them. Agri Lease, Inc. v. Gray (1977), 173 Mont. 151, 158-59, 566 P.2d 1114, 1118.

At issue in this case is whether the value of crops lost should be measured by the price at which the crops were sold, or the market price on the date that they were harvested. The former value was $3.69 per bushel, the latter was $2.40.

L & R claims that based on decisions from other jurisdictions, we should hold that the $2.40 value at the time of harvest must be used to calculate damages. See Decatur County Ag-Services, Inc. v. Young (Ind. 1981), 426 N.E.2d 644; Cutler Cranberry Co., Inc. v. Oakdale Electric Co-op. (Wis. 1977), 254 N.W.2d 234.

However, § 27-1-317, MCA, provides that damages shall compensate for all the detriment proximately caused, whether or not it could have been anticipated. In addition, § 27-1-302, MCA, requires that damages be reasonable. We have previously stated that compensatory damages to property are designed to return the damaged party to the same, or nearly the same, position enjoyed before the property is damaged. See Spackman v. Ralph M. Parsons Co. (1966), 147 Mont. 500, 506, 414 P.2d 918, 921. See also Billings Clinic v. Peat Marwick Main & Co. (1990), 244 Mont. 324, 345, 797 P.2d 899, 913 (stating compensatory damages should put the damaged party in the position he or she would have attained absent the tortious conduct).

In this case, testimony indicated that it was a common practice to delay selling crops for weeks or months to enable farmers to achieve a higher price for their crop. Testimony also indicated that pursuant to another common farming practice, Semenza and Fitzgerald, at the time of harvest, took out United States Government loans for the value of the crop, and then sought to sell the crop at a later date because of the glut in the barley market on the date of harvest. Semenza and Fitzgerald follow this practice whether or not their crop is damaged. Because this is their common practice, and was not done to enhance their damages, they are entitled to recognize the amount they would ordinarily recognize on the date of sale. This ensures Semenza and Fitzgerald are put in the position they would have attained and are compensated for all detriment that was proximately caused by L & R’s negligent acts.

We conclude, based on the evidence presented to the District Court, and Montana’s statutory law of damages, that the District Court’s finding regarding plaintiffs’ damages was supported by substantial evidence, it was not clearly erroneous, and it was not contrary to the laws of this State.

ISSUE 4

Did the District Court err when it awarded Semenza and Fitzgerald prejudgment interest?

A district court’s award of prejudgment interest is a question of law, and therefore, we examine whether the district court was correct in its application of the law. Dew v. Dower (1993), 258 Mont. 114, 125, 852 P.2d 549, 556. L & R challenges the District Court’s Conclusion No. 6 which awarded Semenza and Fitzgerald prejudgment interest at ten percent per annum from August 16, 1989, the date of a letter from plaintiffs’ counsel to L & R’s insurance company, which conveyed the amount of Semenza’s initial damage calculation. On January 7, 1994, the District Court amended its order to provide that interest would accrue from September 15, 1989, instead of August 16, a date 30 days after the written notice as required by § 27-1-210, MCA.

L & R asserts that the District Court erred because its prejudgment interest award was not based on an amount that plaintiffs were able to establish as a sum certain at a specific date before trial. L & R cites cases interpreting § 27-1-211, MCA, for this proposition. See McPherson v. Schlemmer (1988), 230 Mont. 81, 749 P.2d 51; Castillo v. Franks (1984), 213 Mont. 232, 690 P.2d 425. However, the District Court’s interest award was based on §§ 27-1-210 and -212, MCA.

Section 27-1-212, MCA, provides that “[i]n an action for the breach of an obligation not arising from contract and in every case of oppression, fraud, or malice, interest may be given, in the discretion of the jury.” In Dew, 852 P.2d at 556-57, we concluded that this section also applies in cases where the judge is the fact finder. There we upheld a district court’s award of prejudgment interest under § 27-1-212, MCA, noting that that section does not have a certainty requirement. Dew, 852 P.2d at 556. Section 27-1-212, MCA, is derived from a California statute, and in Dew we followed the California Supreme Court’s conclusion that their analogous section did not require liquidated damages. Dew, 852 P.2d at 556. Accordingly, we held in Dew that if § 27-1-212, MCA, applies, the judge has discretion to award prejudgment interest whether or not a plaintiff can reduce his or her claim to a sum certain prior to judgment. There is no showing by L & R that the District Court abused its discretion by its award of prejudgment interest under the facts in this case. Therefore, we conclude that the District Court did not err by its award of prejudgment interest pursuant to § 27-1-212, MCA.

CROSS-APPEAL

Did the District Court err in its determination of the date from which prejudgment interest should accrue?

Our discussion in the previous section is equally applicable to this issue. Pursuant to § 27-1-212, MCA, prejudgment interest is dependent on the discretion of the District Court. We will not conclude that the District Court properly exercised its discretion when it awarded prejudgment interest, and then conclude that it abused its discretion when it selected the time period from which that interest would run. We conclude that there was a rational basis for the date chosen by the District Court as the date from which interest would accrue, and that it did not err when it chose that date.

The judgment of the District Court is affirmed.

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


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE JUSTICE NELSON

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BARBARA STROBEL, Defendant and Appellant.
    No. 94-243.
    Submitted on Briefs September 22, 1994.
    Decided November 22, 1994.
    51 St.Rep. 1214.
    268 Mont. 129.
    885 P.2d 503.

      For Appellant: Craig R. Buehler, Lewistown.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General, Helena; Thomas P. Meissner, Fergus County Attorney, Lewistown.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Barbara Strobel pled guilty to felony theft before the District Court for the Tenth Judicial District, Fergus County. She appeals an issue reserved from her motion to dismiss the information filed against her. We affirm.

The issue is whether the District Court erred in denying Strobel’s motion to dismiss because the information was not filed within thirty days after she waived her right to a preliminary examination.

On August 26, 1993, Barbara Strobel was arrested on a charge of felony theft on a Fergus County Justice Court complaint, arrest warrant, and search warrant. Strobel was employed at Eddie’s Corner, a business establishment located at the intersection of U.S. Highways 87 and 191. She was charged with pocketing money and failing to ring up receipts while she worked as a cashier.

On August 27,1993, Strobel made an initial appearance before the Justice Court, where she was informed of the charges against her. She waived preliminary examination. The Justice of the Peace informed Strobel that her case would be bound over to District Court and appointed an attorney to represent her.

The first document filed in District Court was Strobel’s September 3,1993 motion to be released on her own recognizance. On September 27, 1993, the Fergus County Attorney filed a motion for leave to file an information in District Court charging Strobel with felony theft in violation of § 45-6-301, MCA. The County Attorney filed an affidavit of probable cause in support of his motion. The following day, September 28,1993, the District Court granted leave to file the information, which the County Attorney then filed.

On September 29,1993, Strobel moved to dismiss the information on grounds that it had not been filed within the thirty-day time period prescribed in § 46-11-203, MCA. The District Court denied that motion and also denied Strobel’s motion to be released on her own recognizance.

Strobel subsequently pled guilty to the charged offense, reserving the right to appeal the issue raised in her September 29 motion to dismiss. She has been sentenced, and now appeals.

Did the District Court err in denying Strobel’s motion to dismiss the information because it was not filed within thirty days after she waived her right to a preliminary examination?

Under § 46-11-101, MCA, a prosecution may be commenced in Montana courts by: (1) a complaint; (2) an information following a preliminary examination or waiver of a preliminary examination; (3) an information after leave of court has been granted; or (4) a grand jury indictment. All prosecutions of offenses charged in a district court must be by indictment or information and all other prosecutions must be by complaint. Section 46-11-102, MCA.

A justice court has jurisdiction to act as an examining and committing court in cases involving felony offenses, such as the one with which Strobel was charged. Art. VII, Sec. 5(2), Mont. Const.; § 3-10-303, MCA. In such a case, § 46-10-106, MCA, provides that if the defendant waives a preliminary examination, “the judge shall hold the defendant to answer to the court having jurisdiction of the offense.” Section 46-11-203, MCA, provides:

(1) After a finding of probable cause following a preliminary examination or waiver of a preliminary examination or after leave of court has been granted, the prosecutor shall file within 30 days in the proper district court an information charging the defendant with the offense or any other offense supported by probable cause.
(2) Unless good cause to the contrary is shown, the court shall dismiss the prosecution if an information is not filed within 30 days as required in subsection (1).

As described above, Strobel was arrested upon a complaint and made her initial appearance in justice court. She argues that the charges against her should have been dismissed pursuant to subsection (2) above, because the information was filed in District Court more than thirty days after she waived a preliminary examination injustice court.

However, here, the information was filed in the District Court only after the County Attorney obtained leave of the court to file the information, an alternative method allowed under § 46-11-101, MCA, for commencing a prosecution. The requirements of § 46-11-203, MCA, were met, because the information was filed within thirty days after the District Court granted the County Attorney leave to file the information.

Strobel contends that the State cannot switch midstream in a prosecution from using the preliminary examination process in justice court to using the leave to file information process in district court. She argues that the words “dismiss the prosecution” in § 46-11-203(2), MCA, precluded the State from filing any information against her based on these offenses more than thirty days after she waived preliminary examination.

Strobel cites State v. Cardwell (1980), 187 Mont. 370, 609 P.2d 1230, appeal after remand (1981), 191 Mont. 539, 625 P.2d 553. In that case, this Court indicated approval of the definition of prosecution as “a series of proceedings from the time formal accusation is made by swearing out a warrant, the finding [sic] of an indictment or information in a criminal court, the trial, and final judgment.” Cardwell, 609 P.2d at 1233. This Court held that the term “prosecute” included the amendment of a criminal information. Cardwell, 609 P.2d at 1233. Neither that definition of prosecution nor the holding in Cardwell resolves this case.

If the District Court had dismissed the prosecution against Strobel pursuant to § 46-11-203(2), MCA, the effect would have been the discharge of Strobel and the exoneration of her bail. Section 46-13-402, MCA. Strobel has not provided persuasive authority for her contention that a dismissal under § 46-11-203(2), MCA, is with prejudice. The County Attorney would not have been precluded from commencing another prosecution for the same offense.

Although a criminal defendant has a right to an independent judicial determination of probable cause, the defendant has no vested right to a particular procedure for the probable cause determination. State v. Higley (1980), 190 Mont. 412, 418-19, 621 P.2d 1043, 1048. By filing a complaint in justice court, the State is not committed to the procedure by which probable cause will be determined; the prosecution may employ the alternative procedure of obtaining leave of court to file an information directly in district court. State v. Dunn (1970), 155 Mont. 319, 325, 472 P.2d 288, 292.

In this case, Montana law would have permitted but did not require the County Attorney to file, within thirty days of Strobel’s waiver of preliminary examination, an information commencing the prosecution in District Court without first seeking leave of court. In that situation, Strobel’s waiver of a preliminary examination would constitute an admission of the existence of probable cause. Alternatively, the County Attorney was permitted but not required by Montana law to seek leave of the District Court to file an information, by filing a motion supported by an affidavit showing probable cause to believe Strobel committed felony theft.

The District Court’s file does not contain a record of Strobel’s waiver of the right to preliminary examination in the justice court proceedings. Montana statutes and justice court rules do not set forth the manner in which the justice court is to hold the defendant to answer to the court having jurisdiction; there is no provision requiring the transfer of documents or records from justice court to district court. It appears that such a provision may be advisable. Where, as here, the district court record does not contain the defendant’s waiver of the right to preliminary examination in the justice court proceedings, we conclude it is reasonable for the county attorney to file documents in district court which set forth the facts as alleged by the State and which demonstrate probable cause to prosecute the defendant.

The State invites this Court to clarify which court had jurisdiction to consider Strobel’s conditions of release during the period between her waiver of preliminary examination and the filing of the information in District Court. Section 46-9-311, MCA, provides that the court before which the proceeding is pending, or in this case, the District Court, has jurisdiction to do so. Where, as was the situation for thirty-one days in this case, an inform ation has not yet been filed in district court, the remedy of habeas corpus would also be available, by which the district court or this Court could be asked to rule upon the legality of the conditions of bail established by the justice court.

We affirm the decision of the District Court denying Strobel’s motion to dismiss the information filed against her.

JUSTICES HARRISON, TRIEWEILER, HUNT and WEBER concur.

JUSTICE NELSON

dissenting.

I respectfully dissent. In my view, once the accused waives preliminary examination in justice court, the State is required under the clear and unambiguous language of § 46-11-203(1), MCA, to file an information within 30 days in district court. If the information is not filed within 30 days, absent a demonstration of good cause by the State, the district court is required to dismiss the prosecution with prejudice under subsection (2) of that statute.

In this case, the State did not file an information within 30 days of the date that the accused waived preliminary examination. Filing a motion for leave to file an information is not filing the information itself; a prosecution is commenced by filing an information, not by applying to file an information. Sections 46-11-101, MCA, and 46-11-201, MCA. Contrary to the State’s argument and the District Court’s ruling, the mandatoiy duty under § 46-11-203(1), MCA, to file an information within 30 days of the accused’s waiver of preliminary examination is not fulfilled by “substantial compliance” with the statute.

Moreover, the State did not demonstrate good cause for failing to file the information within the time required. As the State points out in its brief, “good cause” has been generally defined as a “substantial” or “legally sufficient” reason. State v. Rozzell (1971), 157 Mont. 443, 450, 486 P.2d 877, 881. It borders on the absurd to conclude that the State simply taking the steps necessary to commence the prosecution is a substantial or legally sufficient reason for not complying with the statutory mandate to file the information within 30 days. Simply failing to comply with the statute can hardly constitute the good cause necessary to justify failing to comply with the statute. Presumably, if the legislature had deemed it sufficient for the State to file the paperwork necessary to commence the prosecution in district court within 30 days, rather than to actually commence the prosecution, § 46-11-203, MCA, would have so provided.

Under the circumstances here, Strobel was entitled to have the prosecution against her dismissed. In my view that dismissal should have, necessarily, been with prejudice, for to conclude otherwise would allow the State to simply file a new information and re-institute the prosecution with the result that the sanction prescribed by the legislature in § 46-11-203(2), MCA, would be meaningless. We presume that the legislature would not pass a meaningless statute. Mont. Contractors’ Ass’n, Inc. v. Dept. of Highways (1986), 220 Mont. 392, 395, 715 P.2d 1056, 1058.

Furthermore, subsection (2) requires, significantly, that the district court dismiss the “prosecution,” and not simply the document which commences the prosecution, i.e., the information. To “prosecute” an action is not merely to commence it, but includes following it to an ultimate conclusion. A “prosecution” is “[t]he continuous following up, through instrumentalities created by law, of a person accused of a public offense with a steady and fixed purpose of reaching a judicial determination of the guilt or innocence of the accused.” Black’s Law Dictionary, 5th Ed. at page 1099. See also Rosebud County v. Flinn (1940), 109 Mont. 537, 541-42, 98 P.2d 330, 333-34; State v. Cardwell (1980), 187 Mont. 370, 374-75, 609 P.2d 1230, 1232-33, appeal after remand (1981), 191 Mont. 539, 625 P.2d 553. Again, the legislature’s mandate that if the information is not timely filed, the “prosecution” be dismissed, clearly contemplates that the entire criminal proceedings against the defendant be terminated with prejudice, if the statute is to have any meaning or purpose.

While this Court’s opinion is correct in stating that the methods of commencing a criminal prosecution under § 46-11-101, MCA, are in the alternative and that the defendant has no vested right to a particular procedure for determining probable cause or commencing a criminal prosecution, it is my opinion that once the 30 day clock begins to run by the accused’s waiver of preliminary examination in justice court, it is mandatory that the State, by whatever means it chooses under § 46-11-101, MCA, file an information in district court within the statutory time limit or, to demonstrate good cause why that was not accomplished. Under such circumstances, whether the State files the information under subsection (2) of the statute or after leave of court under subsection (3) of § 46-11-101, MCA, is immaterial, as long as the information is filed within the 30 day period required by § 46-11-203(1), MCA.

Our conclusion that “Montana law would have permitted but did not require the county attorney to file, within thirty days of Strobel’s waiver of preliminary examination, ... without first seeking leave of court” is misleading. Section 46-11-203, MCA, is mandatory, not permissive. “[T]he prosecutor shall file within 30 days ... an information. ...” Section 46-11-203(1), MCA. “[T]he court shall dismiss the prosecution if an information is not filed within 30 days as required in subsection (1).” Section 46-11-203(2), MCA. (Emphasis added). True, the State could have sought leave of court and could have filed an information within the 30 days after the accused’s waiver of preliminary examination. It does not follow, however, that, once the 30 day clock began to run by the accused’s waiver of preliminary examination, the State could simply ignore its statutory obligation to file, let that time expire, and then obtain leave of court and file its information at a later date. The plain mandatory language of the statute simply does not permit such an interpretation.

Finally, while the record of the accused’s waiver of preliminary examination was not in the form of a written record, and while I agree with this Court that there should be a statutory requirement for such a record, there is nothing in this case to indicate that Strobel did not waive her right to preliminary examination by failing to request one on August 27th at her initial appearance injustice court. Apparently, the justice of the peace and the accused had no problem in reaching that conclusion.

The long and short of it is that in this case the State did not file an information within 30 days of Strobel’s waiver of preliminary examination injustice court as required by § 46-11-203(1), MCA; the State did not demonstrate good cause why it failed to do so as required by § 46-11-203(2), MCA; and, under such circumstances, the District Court was required, pursuant to § 46-11-203(2), MCA, to dismiss the prosecution — in my view, with prejudice.

Accordingly, I would reverse and remand for entry of an order dismissing the prosecution against Strobel with prejudice to the merits. From our failure to so hold, I respectfully dissent.

JUSTICE GRAY joins in the foregoing dissent.

      . The right to speedy trial as defined by § 46-13-401(2), MCA, and the United States and Montana Constitutions would limit the right to commence another prosecution. However, violation of Strobel’s right to speedy trial has not been alleged.


author: CHIEF JUSTICE TURNAGE

text:
    JOSEPH M. McKAMEY, Plaintiff, Respondent and Cross-Appellant, v. STATE OF MONTANA, Defendant, Appellant and Cross-Respondent.
    No. 94-180.
    Submitted on Briefs October 13, 1994.
    Decided November 29, 1994.
    51 St. Rep. 1218.
    268 Mont. 137.
    885 P.2d 515.

      See also, 812 P.2d 1246.
    For Appellant: Charles E. Erdmann, Erdmann Law Office, Helena.
    For Respondent: Timothy J. McKittrick, McKittrick Law Firm, Great Falls.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The State of Montana appeals from a judgment of the District Court for the Eighth Judicial District, Cascade County. That court declared unconstitutional a requirement that firefighters employed by the State of Montana at the Montana Air National Guard base in Great Falls, Montana, be members of the Montana Air National Guard. We affirm.

The issues are:

1. Did the District Court err in refusing to dismiss this case on grounds that it does not constitute a case or controversy?

2. Did the court err in refusing to dismiss on grounds that McKamey failed to exhaust his administrative remedies?

3. Did the court err in refusing to dismiss on grounds that the challenged policy is a discretionary military policy over which district courts have no subject matter jurisdiction?

4. Did the court err in granting McKamey’s motion to quash and for a protective order?

5. Did the court err in granting summary judgment that the military service requirement is unconstitutional?

6. Did the court err in denying McKamey attorney fees and costs?

Joseph McKamey is one of nineteen firefighters employed at the Great Falls International Airport as civilian employees of the State of Montana, Department of Military Affairs. McKamey’s job includes providing protection for civilian aircraft and for a unit of the Montana Air National Guard stationed at the airport.

Before 1975, these firefighters were federal civilian employees. In that year, the federal positions were eliminated and the National Guard Bureau agreed to provide funding to allow the State of Montana to hire the firefighters as state employees.

Until 1986, the firefighters were scheduled to work “Kelly shifts” of 24 hours on and 48 hours off. This schedule placed them on duty for 65 hours in some weeks, 55 hours in other weeks, and 48 hours in the remaining weeks. However, their pay did not vary according to the hours worked, and they were not paid overtime compensation.

In 1984, McKamey and nine other firefighters filed a wage action against the State, claiming their employment arrangement violated the Montana Wage and Overtime Compensation Act, §§ 39-3-401 through -409, MCA. In 1985, the United States Supreme Court ruled that state employees enjoy the protection of the Fair Labor Standards Act. See Garcia v. San Antonio Metro. Transit Auth. (1985), 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016. The firefighters added that Act as a second basis for their claims. That action has been settled. See Stimac v. State (1991), 248 Mont. 412, 812 P.2d 1246.

In 1985, the Department of Military Affairs sought approval of a pay plan for the firefighters at the Great Falls airport which deviated from the State Compensation Plan. That plan was not approved. In June of 1986, the Personnel Division of the State of Montana endorsed an exemption from wage requirements for the firefighters. This exemption was premised upon a policy requiring these firefighters, as a condition of their employment, to be members of the Montana Air National Guard. Section 2-18-103, MCA, exempts certain types of positions from the wage requirements of the State Compensation Plan, among them “officers or members of the militia.”

McKamey and nine other firefighters filed a second wage action against the State in 1989. The decision in that action is now on appeal to this Court CTefft et al. v. State, Montana Supreme Court Cause No. 94-229).

In February 1992, McKamey filed this action seeking declaratory, injunctive, and equitable relief declaring the State’s military service requirement discriminatory and violative of his employment rights and the rights of other state employees similarly situated. Following discovery and briefing, the District Court heard the parties’ cross-motions for summary judgment. The court issued an extensive memorandum and order granting McKamey’s motion for summary judgment on grounds that the requirement violated the firefighters’ rights to equal protection and to due process. The court enjoined the State from using the military service requirement in any manner relative to McKamey or employees similarly situated. It ordered each party to pay its own attorney fees and costs. The State appeals. McKamey cross-appeals on the issue of attorney fees.

Issue 1

Did the District Court err in refusing to dismiss this case on grounds that it does not constitute a case or controversy?

Because McKamey does not claim he has already suffered a penalty from the military service requirement, the State maintains he is not entitled to a declaratory judgment. According to the State, a declaratory judgment at this point would be an advisory opinion based on a possible future occurrence. The State maintains no case or controversy exists, citing cases in which this Court has ruled that issuance of a declaratory judgment was not proper because no case or controversy was presented.

Section 27-8-201, MCA, grants Montana courts the power to render declaratory judgments:

Scope of power to render declaratory judgments. Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a final judgment or decree.

Section 27-8-202, MCA, provides:

Who may obtain declaratory judgment. Any person interested under a... written contract... or whose rights, status, or other legal relations are affected by a ... contract... may have determined any question of construction or validity arising under the instrument ... and obtain a declaration of rights, status, or other legal relations thereunder.

Section 27-8-203, MCA, states that a contract may be construed either before or after there has been a breach thereof. In addition, § 27-8-205, MCA, provides:

The enumeration in 27-8-202 through 27-8-204 does not limit or restrict the exercise of the general powers conferred in 27-8-201 in any proceeding where declaratory relief is sought in which a judgment or decree will terminate the controversy or remove an uncertainty.

Pursuant to the above statutes, it is not necessary that McKamey have already suffered an injury before seeking relief in the form of a declaratory judgment.

McKamey filed an affidavit with the District Court in which he states that one of the other firefighters, Edward Peters, was terminated from his employment as a firefighter after he retired from the Montana Air National Guard. McKamey states that the reason given for Peters’ termination was the military service requirement. In his affidavit, McKamey goes on to say that, based on Peters’ experience, he feels his own right to retire from the Montana Air National Guard has been threatened. He states that if his employment is terminated, his family will have no income, insurance, or other benefits, and his pension benefits will be severely reduced.

This Court has stated that a declaratory judgment suit against a government entity must be supported by allegations of past, present, or threatened injury to a property or civil right, and the alleged injury must be distinguishable from the injury to the public generally. Stewart v. Bd. of Cty. Com’rs of Big Horn Cty. (1977), 175 Mont. 197, 201, 573 P.2d 184, 186. Under the administrative policy now in effect, McKamey’s civilian employment as a firefighter is threatened if he resigns or retires from the Montana Air National Guard. The existence of a case or controversy is amply demonstrated by the multiple lawsuits concerning the firefighters’ employment status.

We hold that the requirement of a threatened injury has been met and that a case or controversy exists. We further hold that the District Court did not err in refusing to dismiss this action as inappropriate for declaratory judgment.

Issue 2

Did the court err in refusing to dismiss on grounds that McKamey failed to exhaust his administrative remedies?

The State argues district courts are without discretion to proceed under the Uniform Declaratory Judgments Act where the claimant has available administrative remedies, citing Roeber v. State, Dept. of Institutions (1990), 243 Mont. 437, 795 P.2d 424. However, when a claimant raises a bona fide constitutional claim in a declaratory judgment action, the exhaustion doctrine does not apply. Mitchell v. Town of West Yellowstone (1988), 235 Mont. 104, 109-10, 765 P.2d 745, 748. We hold that the District Court did not err in denying the State’s motion to dismiss.

Issue 3

Did the court err in refusing to dismiss on grounds that the challenged policy is a discretionary military policy over which district courts have no subject matter jurisdiction?

Citing Martelon v. Temple (10th Cir. 1984), 747 F.2d 1348, cert. denied, 471 U.S. 1135, 105 S.Ct. 2675, 86 L.Ed.2d 694, and Olson v. Nat. Guard (1972), 160 Mont. 387, 503 P.2d 24, the State maintains that the military service requirement is a discretionary state military policy and, as such, is outside the jurisdiction of the courts.

However, there are exceptions to this rule.

[W]hen presented with claims of judicially cognizable injury resulting from military intrusion into the civilian sector, federal courts are fully empowered to consider claims of those asserting such injury; there is nothing in our Nation’s history or in the Court’s decided cases, including our holding today, that can properly be seen as giving any indication that actual or threatened injury by reason of unlawful activities of the military would go unnoticed or unremedied.

Laird v. Tatum (1972), 408 U.S. 1, 15-16, 92 S.Ct. 2318, 2327, 33 L.Ed.2d 154, 165.

As the above quotation indicates, courts will intervene when a military decision intrudes into the public sector. The opinion in Martelon illustrates this point. The Martelon opinion was dependent on the court’s determination that the plaintiffs’ claims were “clearly related to military employment.” Martelon, 747 F.2d at 1350. The court contrasted Martelon with a New Jersey case in which a federal district court intervened after finding that the plaintiffs’ claims were incident to their civilian, not their military, employment.

In the present case, we agree with McKamey’s assessment that the State has not demonstrated that the military service requirement is related to military policy. The State concedes that the military service requirement is not imposed on firefighters in other states. In fact, a 1993 Federal Air National Guard Bureau operational guide, a copy of which McKamey filed in connection with his motion for summary judgment, states: “MANDATORY MILITARY MEMBERSHIP FOR O&M FIREFIGHTERS IS NOT RECOMMENDED.”

We hold that the District Court did not err in refusing to dismiss this case on grounds that the challenged policy is a discretionary military policy over which district courts have no subject matter jurisdiction.

Issue 4

Did the court err in granting McKamey’s motion to quash and for a protective order?

This issue relates to requests by the State for production of documents at the depositions of three witnesses for McKamey. The witnesses were members of the firefighters’ union to which McKamey belongs. The State asked those three witnesses to produce, at their depositions:

Correspondence of any kind between yourself and the State of Montana from 1974 through the present; correspondence of any kind between yourself and the Montana Air National Guard from 1969 through the present; all bills, reports, business records and minutes of meetings, information letters or other documents of the Great Falls Airport Firefighters Association, International Association of Firefighters Local #3261; billing statements from McKittrick Law Firm to this Union and all check stubs, registers, cancelled checks, or receipts showing payment for services of McKittrick Law Firm for the last 4 years.

Arguing that the requested materials were irrelevant to a declaratory judgment action and that the requests were overbroad and unlikely to lead to discoverable evidence, McKamey moved to quash and for a protective order. He further argued that the request violated his right to privacy and invaded privileged business of the firefighters’ union. Additionally, he alleged that the time allotted for responding to such requests was less than the thirty days required under Rules 30(b)(5) and 34(b), M.R.Civ.P.

Our standard of review concerning a district court’s ruling on a discovery matter is whether the district court abused its discretion. State of Or. ex rel. Worden v. Drinkwalter (1985), 216 Mont. 9, 12, 700 P.2d 150, 152. The above discovery request is overbroad in several respects. As McKamey points out, it would require production of twenty years’worth of correspondence with the State of Montana and four years’ worth of correspondence with the named law firm, none of which may have anything whatsoever to do with this action. We hold that the District Court did not abuse its discretion in granting McKamey’s motion to quash and for a protective order.

Issue 5

Did the court err in granting summary judgment that the military service requirement is unconstitutional?

Here, we consider arguments raised by the State under two issues: whether there exist material issues of fact precluding summary judgment, and whether the District Court erred in declaring the military service requirement unconstitutional as a matter of law.

We first explore whether material issues of fact exist. The State argues that the date on which the military service requirement was adopted is a material fact as to which there is a dispute. The State views this date as a material fact because McKamey has argued that the military service requirement was adopted in retaliation for the wage and hour claim filed against the State by McKamey and other firefighters.

The District Court found overwhelming evidence that military service, while encouraged, was not mandatory for the firefighters prior to 1986. However, if summary judgment is proper regardless of the retaliatory nature of the military service requirement, then the date on which that requirement was adopted is not a material fact barring summary judgment. McKamey’s claim of unconstitutionality does not depend on the retaliatory nature of the military service requirement. We conclude that the retaliatory nature of the military service requirement is not a fact material to determination of the constitutionality of the military service requirement.

The principal purpose of the Equal Protection Clause, Amend. XIV, U.S. Const., and Art. II, Sec. 4, Mont. Const., is to ensure that persons who are citizens of this country are not subject to arbitrary and discriminatory state action. Godfrey v. Mont. State Fish & Game Com’n (1981), 193 Mont. 304, 306, 631 P.2d 1265, 1267. Courts examine the right to equal protection under three levels of scrutiny— strict scrutiny for classifications which infringe fundamental rights or involve suspect classifications, such as race or national origin; middle tier analysis in specific limited situations requiring a somewhat heightened scrutiny; and rational basis analysis, for all other classifications. Meech v. Hillhaven West, Inc. (1989), 238 Mont. 21, 44-45, 776 P.2d 488, 502.

In this case, the District Court determined that the military service requirement did not meet the lowest of the three levels of scrutiny — the rational basis test. The inquiry under the rational basis test is whether the classification is rationally related to a legitimate government interest. Meech, 776 P.2d at 502-03.

In its analysis, the District Court reasoned:

[E]vidence which establishes that there is no rational basis for the military requirement policy is that the State of Montana treats its firefighters differently than other states in the country. If national security were the basis for mandatory membership in the Guard, then it is only logical that every state in the Union would require its firefighters to be members of the Guard. It is admitted by the State of Montana that mandatory membership in the Guard is a state by state decision. Since other states such as South Dakota, New Hampshire, Oregon and Iowa do not require its [sic] firefighters to be members of the Guard, it is apparent that national security is not a rational basis for guard membership.
As recently as October 19, 1993, the Federal National Guard Bureau in its Operational Guide for Air National Guard Operations and Maintenance Firefighters specifically stated on page 7, item 16Athat:
“MANDATORY MILITARY MEMBERSHIP FOR O&M FIREFIGHTERS IS NOT RECOMMENDED.”
Since the Federal National Guard Bureau has taken the affirmative stance that they do not recommend mandatory military membership, the State of Montana cannot establish a rational basis for the requirement. Furthermore, the State of Montana’s own Fire Chief Ball, at the Great Falls Airport, stated in his letter dated February 27, 1992 to Major Stack, LTC Mortag and Mr. Booker that:
“c. Mandatory Membership in ANG: Since there is no longer an alert requirement, the reasons for requiring fire fighter MANG membership is no longer valid. If State employees are not members of the ANG, it would make deployments and activations less of a scheduling problem. If fire fighters were not required membership, there would be more openings for traditional Guardsmen. Eliminating current policy of mandatory enlistment in the ANG can be impact bargained into the present contract with IAFF and show no liability or admission of guilt by any party.”
Both the National Guard Bureau and the State’s own fire chief have stated that there is, in fact, no rational basis for [the] mandatory military requirement.
The State also argues that because of the secret nature of the military business, the firefighters need special security clearances and thus, must be members of the National Guard. To obtain a special security clearance, military membership is not a prerequisite. ... There is no rational basis in terms of security clearance to require membership in the National Guard. There was evidence presented that at least two employees at the Great Falls Airport came in contact with classified military information and those employees were not required to be members of the Guard.

In short, the State failed to offer any compelling evidence that the military service requirement is rationally related to a legitimate government interest.

Similarly on appeal, the State has not offered any persuasive argument or evidence that the military service requirement is rationally related to a legitimate government interest. Instead, the evidence overwhelmingly supports the conclusion that the requirement’s sole purpose is to circumvent the wage and overtime standards set forth in the Fair Labor Standards Act and the Montana Wage and Overtime Compensation Act.

We hold that the District Court did not err in ruling that the military service requirement fails to meet equal protection standards under the rational basis test, and is thus violative of both the United States and the Montana Constitutions. Having so ruled, we need not address the District Court’s conclusion that the military service requirement also violates due process requirements.

Issue 6

Did the court err in denying McKamey attorney fees and costs? Sections 25-10-711 and 27-8-311, MCA, are the authority under which McKamey argues he should have been awarded his attorney fees and costs. Section 25-10-711, MCA, allows the award of attorney fees to a party who prevails in a claim against a government entity in which “the court finds that the claim or defense of the state, political subdivision, or agency that brought or defended the action was frivolous or pursued in bad faith.”

Section 27-8-311, MCA, allows the court to allow such costs in a declaratory judgment action “as may seem equitable and just.” There is no provision for an award of attorney fees in an action for declaratory judgment. State ex rel. Dept. of Health v. Lincoln Cty. (1978), 178 Mont. 410, 418, 584 P.2d 1293, 1297-98.

An award of attorney fees and costs is within the discretion of the trial court. Armstrong v. State, Dept. of Justice (1991), 250 Mont. 468, 469, 820 P.2d 1273, 1274. After reviewing the record, we conclude the District Court did not abuse its discretion in determining that the State’s defense was not frivolous or pursued in bad faith, and in denying McKamey’s request that he be awarded his attorney fees and costs.

Affirmed.

JUSTICES HARRISON, TRIEWEILER, NELSON and HUNT concur.


author: JUSTICE HUNT JUSTICE GRAY

text:
    JOHN BABCOCK, Plaintiff and Appellant, v. LISA LYNN WONNACOTT, Defendant and Respondent.
    No. 93-430.
    Submitted on Briefs September 1, 1994.
    Decided November 29, 1994.
    51 St.Rep. 1224.
    268 Mont. 149.
    885 P.2d 522.

      For Appellant: Daniel R. Sweeney, Attorney at Law, Butte.
    For Respondent: Lisa Lynn Wonnacott, Pro Se, Butte.
   JUSTICE HUNT

delivered the opinion of the Court.

Appellant John Babcock appeals from an order of the Second Judicial District Court, Silver Bow County, granting temporary custody of his minor child, B.B., to a maternal great aunt.

Reversed and remanded.

We state the issue as follows:

Did the District Court err in granting temporary custody of a minor child to a maternal great aunt during a modification of custody proceeding between the biological mother who had been granted physical and legal custody of the child at dissolution, but who, at the time of the hearing, was in the Montana State Prison, and the biological father who was granted visitation rights by the court in the dissolution, and who now had custody of the child?

On October 31,1991, B.B. was bom to appellant John Babcock and respondent Lisa Wonnocott, an unmarried couple living together. After the couple separated, appellant filed a motion to establish paternity and to request temporary custody. On April 15, 1992, the court entered an order establishing appellant as the natural father of B.B. The court granted respondent legal and physical custody of B.B., with visitation rights granted to appellant.

In June 1993, respondent was convicted of felony forgery and sentenced to a term of five years, with one year suspended, to be served at the Women’s Correctional Facility in Warm Springs. The Montana Department of Social and Rehabilitation Services had custody of the child and turned that custody over to appellant. In an effort to gain permanent custody of B.B., appellant filed a motion on July 12, 1993, to modify the April 15, 1992, order which granted respondent full custody of B.B. The court ordered respondent to show cause why appellant’s motion to modify should not be granted. Ahearing on the show cause order was held on August 6,1993. In addition to other witnesses, B.B.’s maternal great aunt gave testimony concerning her employment, the number of bedrooms in her home, her relationship with B.B., her perceptions of B.B.’s physical and emotional condition, her relationship with appellant, her care of B.B.’s half-brother, and her willingness to assume temporary custody of B.B.

On August 12, 1993, the court issued its findings of fact, conclusions of law, and order. The court found that it was in the best interest of B.B. that he remain in the legal custody of respondent, but placed in the temporary custody of his great aunt. The court concluded that the environment provided for B.B. by appellant seriously endangered B.B.’s emotional health. The court then ordered that B.B. be placed in the temporary custody of his great aunt while respondent served the remainder of her sentence. Appellant was granted week-day visitation rights to allow B.B. to visit respondent on weekends. Appellant appeals the court’s order.

Did the District Court err in granting temporary custody of a minor child to a maternal great aunt during a modification of custody proceeding between the biological mother who had been granted physical and legal custody of the child at dissolution, but who, at the time of the hearing, was in the Montana State Prison, and the biological father who was granted visitation rights by the court in the dissolution, and who now had custody of the child?

This Court will review a district court’s conclusions of law to determine whether the district court’s interpretation of the law was correct. In re Marriage of Schara (1994), [266 Mont. 76], 878 P.2d 908, 910; In re Marriage of Barnard (1994), 264 Mont. 103, 106, 870 P.2d 91, 93 (citing In re Marriage of Burris (1993), 258 Mont. 265, 269, 852 P.2d 616, 619).

Respondent is unable to care for B.B. during her incarceration, therefore, appellant is entitled to custody under § 40-6-221, MCA, which provides that:

The father and mother of an unmarried minor child are equally entitled to the custody, services, and earnings of the child. If either parent be dead or unable or refuses to take the custody or has abandoned his or her family, the other is entitled to the custody ... of the child....

We have held that the right of a parent to custody of his or her child is a fundamental, constitutional right. In re Guardianship of Aschenbrenner (1979), 182 Mont. 540, 544, 597 P.2d 1156, 1160; Matter of Guardianship of Doney (1977), 174 Mont. 282, 288, 570 P.2d 575, 577. This constitutionally protected right is not weakened by the fact that a child is born out of wedlock. Matter of M.G.M. (1982), 201 Mont. 400, 406, 654 P.2d 994, 998. The district court is powerless to deprive a natural parent of custody of a minor child because it determines that a non-parent enjoys more financial resources or leads a more preferable life-style than does the parent. Doney, 570 P.2d at 576. Any showing that the great aunt might have been able to provide a better environment for B.B. was irrelevant to the question of custody, as between appellant and respondent, in view of the statutory and constitutional rights of a parent to custody.

It has long been the law in Montana that where a third party seeks custody to the exclusion of a natural parent, the right of the natural parent prevails cm til a showing of forfeiture of that right. Aschenbrenner, 597 P.2d at 1162-63 (citing Henderson v. Henderson (1977), 174 Mont. 1, 10, 568 P.2d 177, 181-82); Matter of Fisher (1976), 169 Mont. 254, 259, 545 P.2d 654, 657. “[A]bsent a finding of abuse or neglect based on clear and convincing evidence, parental rights may not be terminated.” M.G.M., 654 P.2d at 997; Doney, 570 P.2d at 577; In re Matter of J.L.B. (1979), 182 Mont. 100, 109, 594 P.2d 1127, 1131. A finding of abuse, neglect, or dependency is the jurisdictional prerequisite for any court-ordered transfer of custody from a natural parent to a third party. M.G.M., 654 P.2d at 998; In re Gore (1977), 174 Mont. 321, 327, 570 P.2d 1110, 1113. Abuse, neglect, and dependency are defined by § 41-3-102, MCA, which provides in pertinent part that:

(2)“Abused or neglected” means the state or condition of a child who has suffered child abuse or neglect.
(5) (a) “Child abuse or neglect” means:
(i) harm to a child’s health or welfare, as defined in subsection (8); or
(ii) threatened harm to a child’s health or welfare, as defined in subsection (15).
(b) The term includes harm or threatened harm to a child’s health or welfare by the acts or omissions of a person responsible for the child’s welfare.
(7) “Dependent youth” means a youth:
(a) who is abandoned;
(b) who is without parents or guardian or not under the care and supervision of a suitable adult;
(c) who has no proper guidance to provide for necessary physical, moral, and emotional well-being;
(d) who is destitute;
(e) who is dependent upon the public for support; or
(f) whose parent or parents have voluntarily relinquished custody and whose legal custody has been transferred to a licensed agency.
(8) “Harm to a child’s health or welfare” means the harm that occurs whenever the parent or other person responsible for the child’s welfare:
(a) inflicts or allows to be inflicted upon the child physical or mental injury;
(b) commits or allows to be committed sexual abuse or exploitation of the child;
(c) causes failure to thrive or otherwise fails to supply the child with adequate food or fails to supply clothing, shelter, education, or adequate health care, though financially able to do so or offered financial or other reasonable means to do so;
(d) abandons the child by leaving the child under circumstances that make reasonable the belief that the parent or other person does not intend to resume care of the child in the future or by willfully surrendering physical custody for a period of 6 months and during that period does not manifest to the child and the person having physical custody of the child a firm intention to resume physical custody or to make permanent legal arrangements for the care of the child; or
(e) is unknown and has been unknown for a period of 90 days and reasonable efforts to identify and locate the parents have failed.
(15) “Threatened harm to a child’s health or welfare” means substantial risk of harm to the child’s health or welfare.

The Legislature has established the procedure under § 41-3-401, MCA, which the State must follow, and the findings the court must make, before custody of a child may be taken from a natural parent. For example, the county attorney did not file a petition alleging abuse, neglect, or dependency as requiredby § 41-3-401(1), MCA. As a result, there was no petition alleging abuse, neglect, or dependency as required by § 41-3-401(9)(a), MCA, and appellant was not served with a copy of the petition under § 41-3-401(4), MCA. Finally, no citation was served on the Department of Family Services prior to the hearing, as required by § 41-3-401(8), MCA.

Considerable testimony and evidence was offered challenging appellant’s parenting skills while establishing the great aunt’s ability to provide adequate care for B.B. In response, the court based its findings and conclusions on a “best interest of the child” analysis. The District Court concluded that the best interest of B.B. was served by allowing respondent to retain custody and by granting temporary custody to the great aunt. However, the “best interest of the child” analysis should only be used after a showing of dependency, abuse, or neglect by the natural parent pursuant to § 41-3-102, MCA, or during a custody dispute between two natural parents. By relying on a “best interest of the child” analysis, the court did not meet the jurisdictional and procedural prerequisites for depriving appellant custody of B .B. in favor of the great aunt. Without meeting these prerequisites, the District Court had no jurisdiction to deprive appellant of custody. Aschenbrenner, 597 P.2d at 1162; Doney, 570 P.2d at 578.

After reviewing the record, we conclude that the District Court’s interpretation of the law was incorrect, and that the award of temporary custody to the great aunt was improper and must be reversed.

We hold that the District Court erred in granting temporary custody of the minor child, B.B., to a maternal great aunt during a modification of custody proceeding between the biological parents of the minor child.

Reversed and remanded for further proceedings in accordance with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON and NELSON concur.

JUSTICE GRAY

specially concurring.

I concur in the Court’s opinion. It is my view, however, that additional clarification is necessary to prevent confusion in this important area of child custody.

The Court is careful to state that this case involves a child custody modification proceeding between the biological mother and the biological father. This case does not involve a proceeding in which the child’s maternal great-aunt sought legal custody of the child. Notwithstanding the nature of the proceeding before it, the District Court granted temporary custody of the child to the great-aunt. The Court holds, and I agree, that the District Court erred in doing so.

In reaching its decision, the Court correctly states that under circumstances and statutes not before us here involving an abused, neglected or dependent child, custody might be granted to a nonparent. It does not address any other circumstances in which custody might be granted to a nonparent.

We held in In re Custody of R.R.K. (1993), 260 Mont. 191, 859 P.2d 998, that a nonparent could seek custody of a child pursuant to the provisions contained in § 40-4-211(4)(b), MCA. I specially concur here only to express my understanding that the Court’s failure to mention this alternative basis through which nonparents properly might be granted custody — which, like the situation involving an abused, neglected or dependent child, also is not before us — is not in any way a negation of our decision in In re Custody of R.R.K.


author: JUSTICE HARRISON

text:
    IN THE MATTER OF HOWARD LARRY PHILLIPS, Petitioner and Appellant, v. CITY OF LIVINGSTON, a Municipal Corporation, BILL R. DENNIS, RUTH EGGAR, LYLE GILLARD, LEE HARRIS, and PATE MIKESELL, as member of and constituting the City Council of the City of Livingston, Montana, Respondents and Respondents.
    No. 94-084.
    Submitted on Briefs September 15, 1994.
    Decided November 29, 1994.
    51 St.Rep. 1227.
    268 Mont. 156.
    885 P.2d 528.

      For Appellant: William F. Frazier, Jr.; Swandal, Douglass, Frazier & Cole, Livingston.
    For Respondent: Robert L. Jovick, Attorney at Law, Livingston.
    For Amicus Curiae: Michael J. San Souci, Bozeman; Attorney for Montana State Council of Professional Firefighters, International Association of Firefighters and Local No. 630, IAFF
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from an order of the District Court for the Sixth Judicial District, Park County, denying Howard Larry Phillips’ (Phillips) petition for a writ of mandamus. We reverse.

We restate the issues raised as follows:

1. Do the city of Livingston’s termination hearing procedures supersede statutory termination procedures for firefighters established by the state legislature?

2. Is Phillips entitled to the relief provided by a writ of mandamus?

The city of Livingston (Livingston) employed Phillips as a full time firefighter beginning October 16, 1989. On October 6, 1993, Kenton G. Griffin, Livingston’s city manager, sent Phillips notice that there would be a termination hearing the next day regarding Phillips’ employment. The notice informed Phillips that he was suspended with pay because of allegations that he contrived to steal $20 from the local Firefighters Association. The notice stated that the alleged theft would be addressed at the termination hearing. Later the same day, Griffin sent Phillips an addendum stating that the termination hearing would be postponed until October 8, 1993 because two additional allegations would be discussed. These allegations were that Phillips had misappropriated a flashlight and carabiners.

Phillips objected to having the hearing on such short notice and requested a continuance. On October 8, 1993, Griffin sent Phillips a letter stating that his request for a continuance of the hearing was granted, extending the hearing date to October 14, 1993. The notice added an allegation that Phillips stole hemostats, and informed him that this allegation would also be considered at the hearing.

The termination hearing was held on October 14, 1993. Griffin presided at the hearing. Phillips’ counsel objected to the hearing because it did not conform to the mandates of § 7-33-4124, MCA, which requires firefighters’ termination hearings to be held before the city council or commission. Griffin overruled Phillips’ objection and, on October 18, 1993, Griffin sent Phillips his formal notice of termination. Griffin, acting as the Livingston city manager, unilaterally decided to terminate Phillips.

On October 22, 1993, Phillips petitioned the District Court for a writ of mandamus to command his reinstatement as a firefighter. On January 12,1994, the court issued its order denying Phillips’petition. Phillips moved for reconsideration. On January 24, 1994, the court reaffirmed its previous decision. From these orders, Phillips appeals.

I

Do the city of Livingston’s termination hearing procedures supersede statutory termination procedures for firefighters established by the state legislature?

For clarity, we note at the outset that although Livingston has adopted the commission-manager form of government, Livingston’s city commission refers to itself as the Livingston city council. Livingston’s policy and procedures manual, which the Livingston city council adopted by resolution number 2175 on June 18, 1990, states that the city manager shall hold a termination hearing prior to any discharge, and that only the city manager may discharge an employee. This procedure conflicts with a Montana statute regarding the discharge of firefighters which provides:

Suspension procedure. (1) In all cases of suspension the person suspended must be furnished with a copy of the charge against him, in writing, setting forth reasons for the suspension. Such charges must be presented to the next meeting of the council or commission and a hearing had thereon, when the suspended member of the fire department may appear in person or by counsel and make his defense to said charges.
(2) Should the charges not be presented to the next meeting of the council or commission after the suspension or should the charges be found not proven by the council or commission, the suspended person shall be reinstated and be entitled to his usual compensation for the time so suspended.
(3) If such charges are found proven by the council or commission, the council or commission, by a vote of a majority of the whole council or commission, may impose such penalty as it shall determine the offense warrants, either in the continuation of the suspension for a limited time or in the removal of the suspended person from the fire department.

Section 7-33-4124, MCA, (emphasis added).

We examined a city’s attempt to supersede Montana statutes dealing with municipal fire departments in Billings Firefighters Local 521 v. City of Billings (1985), 214 Mont. 481, 694 P.2d 1335. In that case, the city of Billings passed an ordinance which purported to supersede almost all of Title 7, Chapter 33, Part 41, MCA, regarding municipal fire departments. Billings Firefighters, 694 P.2d at 1337. We examined § 7-1-114(f), MCA, which states that local government powers are limited by any law requiring local government to carry out a function or provide any service. Billings Firefighters, 694 P.2d at 1339-40. We held that the Billings ordinance was deficient because the ordinance did not require the city to provide an essential service; specifically, the ordinance did not provide for the mandatory creation of a municipal fire department which is required of every city in § 7-33-4101, MCA. Billings Firefighters, 694 P.2d at 1339-40. In reaching our conclusion that the Billings ordinance was void, we expressly noted that we were not ruling upon other possible conflicts between the ordinance, other sections of Title 7, Chapter 33, Part 41, MCA, and § 7-1-114(f), MCA. Billings Firefighters, 694 P.2d at 1340. We now have reason to make such a ruling regarding Livingston’s policy and procedures manual.

In the present case, Livingston attempted to supersede the statutory duty of the city council to hold a hearing before it decides to terminate a suspended firefighter. We hold that this violates § 7-1-114, MCA, which states in relevant part:

(1) A local government with self-government powers is subject to the following provisions:
(f) Any law directing or requiring a local government or any officer or employee of a local government to carry out any function or provide any service ....
(2) These provisions are a prohibition on the self-government unit acting other than as provided. [Emphasis added.]

Section 7-33-4124, MCA, clearly requires the Livingston city council to hold a hearing at its next meeting following the suspension of a municipal firefighter. The council failed to perform this function. Livingston’s policy and procedures manual essentially has the city manager perform the council’s function. As applied to firefighters, this policy violates the limitations placed on local governments’ powers by § 7-l-114(f), MCA. Thus, as the policy is applied to city firefighters, it is void.

Livingston argues that the termination procedures provided in the city manual validly supersede those provided in § 7-33-4124, MCA, because those termination procedures were included in Livingston’s collective bargaining agreement with the union. In support of its position, Livingston cites § 39-31-306(3), MCA, which states in part: “An agreement between the public employer and a labor organization must be valid and enforced under its terms when entered into in accordance with the provisions of this chapter. ...”

Livingston also cites a Kansas case in support of its argument. In Gorham v. City of Kansas City (Kan. 1979), 590 P.2d 1051, 1056, the Kansas Supreme Court held that terminated policemen waived their due process rights to a pre-termination hearing because their union had entered into a collective bargaining agreement with a grievance procedure. We note that Phillips was provided with notice of the charges against him before the city manager conducted the termination hearing. However, the issue in this case does not involve the denial of constitutional due process. Gorham is distinguishable because there was no specific statutory right to a termination-hearing at issue, and the bargaining agreement here is different from that in Gorham.

We have not addressed the issue of whether a laborer waives the right to due process, or a statutorily mandated hearing, by entering into a collective bargaining agreement; nor do we need to today. A thorough examination of the collective bargaining agreement makes it possible to give effect to both § 7-33-4124, MCA, and § 39-31-306(3), MCA. Section 1-2-101, MCA, states in relevant part that “[w]here there are several provisions or particulars, such construction is, if possible, to be adopted as will give effect to all.”

Livingston’s policy and procedures manual provides that the city manager shall hold a termination hearing prior to any discharge, and that only the city manager may discharge an employee. Article V of the collective bargaining agreement is entitled “Policy and Procedures.” Section 5.1 of the agreement states: “The Union agrees to adopt the City of Livingston[’]s Policy and Procedures manuals where not in conflict with this Agreement.” Article XIII of the collective bargaining agreement is entitled “Discipline and Discharge.” Section 13.3 states: “The employer may suspend an employee with pay pending the final decision as to the appropriate discipline or the overturning of the discipline by the appropriate authority” (emphasis added).

The appropriate authority for administering discipline in this case was the city council, pursuant to § 7-33-4124, MCA. Thus, the section of Livingston’s policy and procedures manual which vests the city manager with the power to discharge firefighters conflicts with § 13.3 of the collective bargaining agreement. Therefore, in accordance with § 5.1 of the collective bargaining agreement, Phillips’ union did not adopt Livingston’s policy and procedures manual where it deals with discipline and discharge of city employees. We hold that the city of Livingston’s termination hearing procedures do not validly supersede those procedures established by the state legislature for the termination of firefighters.

II

Is Phillips entitled to the relief provided by a writ of mandamus?

A district court’s denial of a writ of mandamus is a matter of legal interpretation; we review district courts’ legal interpretations as to whether they are correct. Rocky Mountain Timberlands, Inc. v. Lund (1994), 265 Mont. 463, 466-68, 877 P.2d 1018, 1020-21; citing Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 803 P.2d 601.

Section 27-26-102, MCA, provides as follows:

(1) A writ of mandamus may be issued by the supreme court or the district court or any judge of the district court to any lower tribunal, corporation, board, or person to compel the performance of an act that the law specially enjoins as a duty resulting from an office, trust, or station or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled and from which the party is unlawfully precluded by the lower tribunal, corporation, board, or person.
(2) The writ must be issued in all cases in which there is not a plain, speedy, and adequate remedy in the ordinary course of law.

[Emphasis added.]

We have stated that the writ of mandamus will lie where, in addition to there being no plain and adequate remedy in the ordinary course of law, the party seeking to invoke the writ is entitled to the performance of a clear legal duty against whom the writ is directed. State ex rel. Neuhausen v. Nachtsheim (1992), 253 Mont. 296, 299, 833 P.2d 201, 203; citing State ex rel. Galloway v. City of Great Falls (1984), 211 Mont. 354, 358, 684 P.2d 495, 497.

Here, there is no question that a clear legal duty exists. Under § 7-33-4124, MCA, the Livingston city council is directed to conduct a termination hearing at its next meeting following a firefighter’s suspension. Since they failed to do so, the relief specifically provided by § 7-33-4124(2), MCA, is Phillips’ reinstatement to his former position.

“As a general rule, before mandamus will issue to a public officer, board or municipality, a demand for the performance of the act sought to be compelled is required.” Liebman v. Brunell (1984), 212 Mont. 459, 460, 689 P.2d 248; citing State ex rel. School District No. 29, Flathead County v. Cooney (1936), 102 Mont. 521, 59 P.2d 48. Phillips has demanded the Livingston city council to hold a termination hearing since the city manager first presided over Phillips’ termination hearing. Thus, he has met the demand requirement.

Livingston argues that mandamus is inappropriate because Phillips has not exhausted his avenues of remedy under the grievance procedure contained in the collective bargaining agreement. In support of its position, Livingston cites Lueck v. United Parcel Service (1993), 258 Mont. 2, 851 P.2d 1041. In Lueck, we affirmed the district court’s summary judgment and dismissal of a former United Parcel Service employee’s retaliatory discharge claim because he failed to utilize the grievance procedures available in his union’s collective bargaining agreement with UPS. Lueck, 851 P.2d at 1044-45.

The present case, however, is distinguishable from Lueck. Lueck did not involve an application for writ of mandamus. Further, there was neither a clear statutory duty for a legislative body to take action, nor was there a clear and mandatory statutory remedy provided for the discharged employee. Here, § 7-33-4124(1), MCA, clearly establishes that the Livingston city council has the duty to hold a termination hearing after the suspension of a firefighter. Section 7-33-4124(2), MCA, just as clearly provides that the remedy for the council’s failure to hold such a hearing is Phillips’ reinstatement to his former position.

Finally, mandamus is the proper remedy in this case because Phillips does not have a plain, adequate, and speedy remedy. Section 27-26-102(2), MCA. Phillips’ remedy for the denial of the process provided in § 7-33-4124(1), MCA, is clear. Section 7-33-4124(2), MCA, provides that if the city council or commission does not hold a termination proceeding following a firefighter’s suspension, the firefighter is entitled to reinstatement and pay for the term the firefighter was suspended. We hold that the District Court incorrectly interpreted the law and erred by failing to issue the writ of mandamus.

For the reasons previously stated, we reverse the judgment of the District Court and remand for proceedings consistent with this opinion.

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


text:
    CLUB BUFFET BAR, INC., Plaintiff and Respondent, v. RAY LILIENTHAL, a/k/a RAY LILENTHAL, UNITED STATES OF AMERICA (acting by and through the INTERNAL REVENUE SERVICE) and STATE OF MONTANA (acting by and through its DEPARTMENT OF REVENUE), Defendants and Appellants.
    No. 94-233.
    Submitted on Briefs October 28, 1994.
    Decided November 29, 1994.
    51 St.Rep. 1231.
    268 Mont. 164.
    885 P.2d 526.

      For Appellant: John Houtz, Forsyth.
    For Respondent: Richard W. Josephson, Josephson & Fredricks, Big Timber.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

In this action, Club Buffet Bar, Inc. (Club Buffet Bar), seeks to repossess real and personal property and a liquor license financed through a contract for deed. The District Court for the Sixteenth Judicial District, Rosebud County, granted summary judgment to Club Buffet Bar. The buyer, Ray Lilienthal, appeals. We affirm and remand for determination of the amount of attorney fees to be awarded to Club Buffet Bar.

The issue on appeal is whether material issues of fact bar summary judgment on Lilienthal’s counterclaims.

In 1980, Ray Lilienthal contracted to purchase from Club Buffet Bar a liquor license and real and personal property located in Ash-land, Montana. The parties’ contract required Lilienthal to make monthly payments, to insure the property and keep it free of liens, and to pay all taxes on the property. A default clause provided that if Lilienthal failed to perform any of his obligations and failed to cure default after thirty days’written notice, Club Buffet Bar could terminate the contract and Lilienthal would forfeit his interest in the property.

In December 1992, Club Buffet Bar brought this action alleging numerous defaults by Lilienthal and asking to be restored to possession of the property. Lilienthal counterclaimed that Club Buffet Bar unreasonably withheld consent to and interfered with his negotiations for resale of the property.

Lilienthal testified before the District Court at a January 1993 hearing on Club Buffet Bar’s motion for a temporary injunction. In his testimony, Lilienthal admitted to receiving a notice of default dated August 6, 1992. He further admitted to the following uncured defaults:

- being at least five monthly payments behind at the time of the hearing
- having no fire insurance on the property
- allowing at least four federal tax liens to be filed against the property
- allowing a Montana Department of Revenue warrant of distraint to be filed against the property
- allowing a lien to be filed on the liquor license
- being delinquent in payment of the real property taxes

At the end of the hearing, the parties reached a tentative settlement.

Later, when the parties were not able to finalize the settlement, Club Buffet Bar moved for summary judgment. The District Court determined that Lilienthal’s testimony at the January 1993 hearing demonstrated there was no basis for his counterclaims. The court granted summary judgment in favor of Club Buffet Bar, including reasonable attorney fees and costs as allowed under the contract.

Do material issues of fact bar summary judgment on Lilienthal’s counterclaims?

Summary judgment is proper when the record discloses no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R This Court’s standard of review of a ruling on a motion for summary judgment is the same as the district court’s. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214.

In his counterclaims, Lilienthal argues he has over $50,000 of equity in the bar and that returning the real and personal property and liquor license to Club Buffet Bar amounts to unjust enrichment. However, a party requesting relief from forfeiture must tender full compensation to the vendor as a condition precedent to relief. Section 28-1-104, MCA; Daugherty Cattle v. General Const. (1992), 254 Mont. 479, 485-86, 839 P.2d 562, 565. Because Lilienthal does not claim to have tendered full compensation to Club Buffet Bar, his argument fails.

Lilienthal also maintains he has established a prima facie case that the owners of Club Buffet Bar, the Howards, interfered with his negotiations to sell the property to Greg Humphreys. He alleges that the Howards offered Humphreys a better deal on the property than he had offered Humphreys. He states that after the Howards talked to Humphreys, Humphreys signed an affidavit that Lilienthal had threatened to “strip” the property if Club Buffet Bar attempted to retake possession of it. (The business has remained closed since Christmas 1992, under a temporary restraining order and injunction to prevent Lilienthal from “stripping” it.)

In his testimony before the District Court, Lilienthal stated his deal with Humphreys did not go through because

he didn’t come up with his end of the deal that I wanted to hear. There was somebody backing him with the money and that wasn’t working out.

A letter from Humphreys’ attorney to Lilienthal indicated Humphreys backed away from the deal because of the liens Lilienthal had allowed to be placed upon the property. Additionally, Lilienthal admitted that Club Buffet Bar would have allowed the contract to be assumed by a reputable person. He conceded that the Howards “were very cooperative that way.” Lilienthal’s testimony thus disproved his counterclaim of contract interference.

We conclude, based upon Lilienthal’s own sworn testimony, that he has not demonstrated material issues of fact concerning his counterclaims. Because he has also failed to show any material issues of fact concerning his default, we hold that the District Court did not err in entering summary judgment for Club Buffet Bar.

The contract for deed provides that “the prevailing party shall be entitled to recover from the other party a reasonable attorney fee to be fixed in amount by the court” in litigation between the parties arising from the contract. The District Court awarded attorney fees to Club Buffet Bar. We remand this case to the District Court for determination of the amount of attorney fees to be added to the judgment as a result of this appeal.

Affirmed.

JUSTICES GRAY, TRIEWEILER, NELSON and WEBER concur.