text:
    STATE OF MONTANA, Plaintiff and Respondent, v. FRANK CHESAREK, Defendant and Appellant.
    No. 97-494.
    Submitted on Briefs January 8, 1998.
    Decided January 30, 1998.
    1998 MT 15.
    55 St.Rep. 53.
    287 Mont. 215.
    953 P.2d 698.

      For Appellant: Brad L. Amdorfer, Arndorfer Law Firm, Billings.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Patricia J. Jordan, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney; Shawn P. Cosgrove, Deputy Yellowstone County Attorney, Billings.
   JUSTICE GRAY

delivered the Opinion of the Court.

¶ 1 Frank Chesarek (Chesarek) appeals from the judgment entered by the Thirteenth Judicial District Court, Yellowstone County, on his conviction of the offense of driving under the influence of alcohol (DUI), contending that the District Court erred in denying his motion to dismiss for lack of a speedy trial in the Yellowstone County Justice Court. We affirm.

¶2 The sole issue on appeal is whether the District Court erred in denying Chesarek’s motion to dismiss for lack of a speedy trial in the Justice Court.

BACKGROUND

¶3 Chesarek was charged with DUI in the Justice Court. He pleaded not guilty on February 7, 1996, and trial was set for August 7, 1996, approximately 182 days later.

¶4 On August 5,1996, Chesarek moved to continue the trial date due to his counsel’s unavailability for trial and filed a waiver of his right to a speedy trial for any delay attributable to his requested continuance. The Justice Court rescheduled the trial for December 10 and, on December 5, reset the trial for December 30,1996, sua sponte.

¶5 On December 23, 1996, Chesarek moved to dismiss for lack of a speedy trial under § 46-13-401(2), MCA. The Justice Court denied the motion to dismiss, tried Chesarek in absentia and found him guilty of DUI. Sentence and judgment were entered and stayed.

¶6 Chesarek timely appealed to the District Court and moved to dismiss for lack of a speedy trial in the Justice Court. He argued that his speedy trial rights had been violated twice: first, because the original trial date was in excess of 180 days after the entry of his plea, thereby violating the 6-month time period within which misdemeanor trials must be held under § 46-13-401(2), MCA; and second, because the State of Montana (State) was responsible for a total of 202 days of pretrial delay prior to the ultimate December 30 trial date, the 6-month limit for trials on misdemeanor charges was exceeded no matter how the statutory 6-month period was calculated. After briefing, the District Court denied the motion.

¶7 A jury subsequently found Chesarek guilty of DUI, the District Court entered sentence and judgment, and Chesarek appeals from the denial of his motion to dismiss for lack of a speedy trial in the Justice Court.

DISCUSSION

Did the District Court err in denying Chesarek’s motion to dismiss for lack of a speedy trial in the Justice Court?

¶8 The District Court did not address Chesarek’s argument that the original trial date was untimely under § 46-13-401(2), MCA, and rejected his second argument, concluding that Chesarek’s motion to continue the original trial date in the Justice Court past the 6-month statutory limit effectively rendered the time limit in § 46-13-401(2), MCA, inapplicable. On that basis, the District Court denied Chesarek’s motion to dismiss for lack of a speedy trial in the Justice Court. Chesarek asserts that the District Court erred. He reiterates on appeal the same two arguments raised in that court and also advances a third argument under the Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, speedy trial test.

¶9 Whether a defendant’s right to a speedy trial has been violated is a question of law. We review a district court’s conclusion of law to determine whether the interpretation of the law is correct. State v. Keating (1997), [285 Mont. 463], 949 P.2d 251, 256 (citation omitted).

¶10 We recently resolved Chesarek’s first argument on appeal that the original August 7, 1996, trial date in the Justice Court did not meet the requirements of § 46-13-401(2), MCA, because it was 182 days after the entry of his plea and, therefore, his right to a speedy trial was violated. In State v. Hayes, 1998 MT14, [287 Mont. 210], 953 P.2d 700, we interpreted the “6 months” language contained in § 46-13-401(2), MCA, to mean 6 calendar months rather than a specific number of days. Hayes, ¶¶ 10-11. More specifically, we determined that the 6-month period set forth in § 46-13-401(2), MCA, begins to run the day after the entry of the plea and expires 6 months later. Hayes, ¶ 8 (citations omitted). Thus, as applied in the present case, the statutory 6-month period began on February 8, 1996 — the day after Chesarek pleaded not guilty to the DUI charge — and expired on August 8, 1996. Chesarek’s original trial date of August 7, 1996, fell within that 6-month period and, as a result, we conclude that the original trial date was timely under § 46-13-401(2), MCA, and did not violate Chesarek’s right to a speedy trial.

¶11 In his second argument on appeal, Chesarek contends that § 46-13-401(2), MCA, remained applicable in the Justice Court notwithstanding his motion for a continuance. Under this theory, Chesarek’s motion for a continuance of the original trial date in the Justice Court merely tolled the running of the statutory 6-month period until December 10, after which it began running again and ran for 20 days before the trial occurred on December 30. Thus, according to Chesarek, the total pretrial delay chargeable to the State was 202 days — adding the 182 days which ran prior to the original trial date and the 20 days from the December 10 end of his continuance-related speedy trial waiver to the rescheduled trial on December 30 — and that time exceeds the 6 months allowed for trial of misdemeanor charges under § 46-13-401(2), MCA. We disagree.

¶12 Section 46-13-401(2), MCA, provides that

[a]fter the entry of a plea upon a misdemeanor charge, the court, unless good cause to the contrary is shown, shall order the prosecution to be dismissed, with prejudice, if a defendant whose trial has not been postponed upon the defendant’s motion is not brought to trial within 6 months.

We observe, at the outset, that the 6-month period for trial of a misdemeanor charge is only a general rule under the statute. If “good cause” can be shown for why the trial was not held within 6 months, the court need not dismiss the case. Moreover, § 46-13-401(2), MCA, explicitly states that the 6-month time period after which a dismissal is required applies only where a trial “has not been postponed upon the defendant’s motion ....” Here, Chesarek moved for a continuance and, pursuant to the plain language of the statute, the expiration of the 6-month period no longer requires dismissal.

¶ 13 Our cases, while not factually identical, are in accord. In State v. Crane (1989), 240 Mont. 235, 238, 784 P.2d 901, 903, we quoted State v. Ronningen (1984), 213 Mont. 358, 362, 691 P.2d 1348, 1350, in holding that, if a defendant requests the postponement, “the six-month trial deadline does not apply” and, therefore, the statute has no application. Chesarek cites to no authority to the contrary. Accordingly, we conclude that the generally applicable mandatory dismissal language in § 46-13-401(2), MCA, no longer applied after Chesarek moved to continue the August 7 trial date in the Justice Court.

¶14 Finally, Chesarek argues that he was denied his right to a speedy trial under the so-called Barker test enunciated by the United States Supreme Court and adopted by this Court in State ex rel. Briceno v. Dist. Ct. of 13th Jud. Dist., Etc. (1977), 173 Mont. 516, 568 P.2d 162. In this regard, we have carefully examined the District Court record and determined that Chesarek’s Barker argument— which balances the length of and reason for the delay, assertion of the speedy trial right and prejudice to the defense — was not presented to the District Court as an alternative basis for his motion to dismiss for lack of a speedy trial. His motion was premised entirely on alleged violations of his § 46-13-401(2), MCA, speedy trial right and, indeed, his brief stated that “[t]here is no balancing test in the lower courts.” A party may not raise an argument for the first time on appeal or change his theory from that advanced in the trial court. See, e.g., Jones v. City of Billings (1996), 279 Mont. 341, 347, 927 P.2d 9, 13 (citations omitted); State v. Fisch (1994), 266 Mont. 520, 524,881 P.2d 626, 629 (citation omitted). Therefore, we decline to address this argument.

¶15 Having concluded that the first trial date was within the 6-month period required by § 46-13-401(2), MCA, and that the 6-month limitation did not continue to apply after Chesarek’s motion for a continuance, we hold that the District Court did not err in denying Chesarek’s motion to dismiss for lack of a speedy trial in the Justice Court.

¶16 Affirmed.

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


source: Caselaw Access Project

author: JUSTICE REGNIER

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DANIEL ALLAN WAKEFORD, Defendant and Appellant.
    No. 97-067.
    Submitted on Briefs November 20, 1997.
    Decided January 30, 1998.
    1998 MT 16.
    55 St.Rep. 56.
    287 Mont. 220.
    953 P.2d 1065.

      For Appellant: Steven M. Hudspeth, Attorney at Law, Great Falls.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General, Helena; Brant Light, Cascade County Attorney; Jeffrey Mora, Deputy Cascade County Attorney, Great Falls.
   JUSTICE REGNIER

delivered the Opinion of the Court.

¶ 1 Daniel Allan Wakeford was charged by information on June 27, 1995, with the offenses of criminal possession of dangerous drugs, a felony, and misdemeanor possession of drug paraphernalia. Wakeford filed a motion to suppress physical evidence found after a warrantless search of his motel room. The Eighth Judicial District Court, Cascade County, denied the motion. Wakeford entered into a plea agreement with the State in which he agreed to plead guilty to the charge of felony criminal possession of dangerous drugs and the State agreed to dismiss the misdemeanor possession of drug paraphernalia. Wake-ford reserved the right to appeal from the District Court’s denial of his motion to suppress. The District Court sentenced Wakeford to the Department of Corrections for a term of five years with the recommendation that he be placed in a prerelease center. Wakeford appeals from the sentence and judgment of the District Court and from the order denying his motion to suppress. We affirm.

¶2 The only issue raised on appeal is whether the District Court erred in denying Wakeford’s motion to suppress evidence in which Wakeford argued that the evidence found in his motel room was gathered pursuant to an illegal search and seizure.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 At 9:44 a.m. on June 4,1995, Officers Pat Brickman and Robert McClellan of the Great Falls Police Department separately responded to the O’Hare Manor Motel in Great Falls on a dispatch call concerning a reportedly despondent and possibly suicidal male in Room 119.

¶4 After speaking with a desk clerk, they approached Room 119, where Wakeford was staying and heard voice of a male and female arguing inside. McClellan heard what he considered was a loud and heated argument. Both officers were concerned that they might be confronting a domestic abuse situation.

¶5 One of the officers knocked on the door and Wakeford responded by asking through the door who was there. The officers identified themselves and asked Wakeford to open the door. Wakeford initially refused to open the door, but then opened it partially after talking with the officers.

¶6 Wakeford opened the door sufficiently for the officers to see his face. Brickman noted that Wakeford’s eyes were dilated and he was breathing rapidly. Wakeford appeared angry and upset. Brickman testified that he could see only part of Wakeford’s body and could not see his hand which was behind the door. McClellan stated that he could not see Wakeford’s hands at all. Neither officer heard anything coming from inside the motel room.

¶7 The officers told Wakeford that they were concerned and wanted to make sure that the female in the room was fine. Wakeford told the officers that he had been fighting with Justine Degele, but insisted that she was fine and did not open the door any further. The officers thought it was necessary to check on Degele despite Wakeford’s assurances. The officers were also concerned for their own safety, as Wakeford remained partially hidden behind the door and they could not see if his hand held a weapon.

¶8 Once again, the officers told Wakeford that they needed to check on the woman in the room. He stepped back and they entered the room. The officers found Degele on the bed and spoke with her to make sure she was alright. She admitted that she had been fighting with Wakeford but stated that she was fine.

¶9 However, upon entering the room, the officers saw in plain view, on the counter and on the floor, a spoon with white powdery residue, a folded bindle, some cotton material and a dollar bill rolled up into a tube. McClellan then arrested Wakeford for possession of drug paraphernalia. Wakeford asserted his Miranda rights by not answering any questions. He did not consent to a search of his motel room and instead informed the officers that they needed to get a search warrant. The officers called for assistance and another officer, Sergeant Lockerby, arrived and conducted a field test on the residue. Wakeford was then transported to jail.

¶10 The officers secured the room and left. They went to the Cascade County Attorney’s office to obtain a search warrant. At this time, McClellan was able to contact Mike Gersack, Wakeford’s probation officer. Gersack told McClellan that Wakeford’s probation agreement contained a clause that would allow the search of Wake-ford’s room upon a reasonable suspicion that he may have violated his parole. Gersack then gave the officers permission to search Wakeford’s motel room. With Gersack’s permission to search Wake-ford’s room, the officers abandoned their efforts to obtain a search warrant.

¶11 The officers returned to the room and seized the items they noticed earlier. The residue turned out to be amphetamine. McClellan returned to jail and wrote Wakeford a complaint for felony possession of dangerous drugs.

¶12 On June 27, 1995, Wakeford was charged by information in the Eighth Judicial District Court, Cascade County, with violations of: (1) § 45-1-102(1), MCA (1993), felony criminal possession of dangerous drugs; and (2) § 45-10-103, MCAQ993), misdemeanor possession of drug paraphernalia.

¶13 On December 4, 1995, Wakeford filed a motion to suppress. Wakeford sought to suppress all of the evidence that the officers gathered after entering Wakeford’s motel room without a search warrant. An evidentiary hearing on the motion was held on February 26, 1996. On April 18, 1996, the District Court denied Wakeford’s motion to suppress.

¶14 On July 16, 1996, Wakeford entered a plea of guilty, pursuant to § 45-1-102(1), MCA (1993), to the offense of felony criminal possession of drugs. The State agreed to dismiss the charge of misdemeanor possession of drug paraphernalia. Wakeford reserved the right to appeal from the order denying his motion to suppress.

¶15 On October 11, 1996, the District Court sentenced Wakeford to the Montana Department of Corrections for a term of five years, with the recommendation that Wakeford was to be placed in a prerelease center. This sentence was to run concurrent with Wake-ford’s sentence in another Cascade County case. On October 25,1996, the District Court’s written judgment and sentencing order was filed.

¶16 On December 20, 1996, Wakeford filed a notice of appeal. Wakeford appeals from the sentence and judgment of the District Court and from the order denying his motion to suppress evidence.

DISCUSSION

¶17 Did the District Court err in denying Wakeford’s motion to suppress evidence in which Wakeford argued that the evidence found in his motel room was gathered pursuant to an illegal search and seizure?

¶18 The standard of review for a district court’s denial of a motion to suppress is whether the court’s findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Flack (1993), 260 Mont. 181, 185-88, 860 P.2d 89, 92-94.

¶19 On appeal, Wakeford challenges the authority of the officers to enter his motel room to conduct a warrantless search. Wakeford does not challenge the seizure of the drug paraphernalia, which the officers observed in plain view, or the validity of the subsequent search of the motel room, which was authorized by Wakeford’s probation officer. Wakeford argues that the officers had no justification for conducting a warrantless search by entering his motel room and, therefore, all evidence seized from the room should be suppressed as fruits of an illegal entry.

¶20 The State counters that the officers were justified in entering his motel room without a warrant under the “exigent circumstances” exception to the general prohibition against warrantless searches.

¶21 The Fourth Amendment of the United States Constitution, and Article II, Section 11, of the Montana Constitution, affords all persons the freedom from unreasonable searches and seizures. Warrantless searches and seizures conducted inside a home are per se unreasonable, subject to a few carefully drawn exceptions. State v. Rushton (1994), 264 Mont. 248, 870 P.2d 1355. The same protection against unreasonable searches and seizures that applies to private residences extends to guests in motel rooms. State v. Dow (1992), 256 Mont. 126, 844 P.2d 780. In Stoner v. California (1964), 376 U.S. 483, 490, 84 S. Ct. 889, 893, 11 L. Ed. 2d 856, 861, the United States Supreme Court held that:

No less than a tenant of a house, or the occupant of a room in a boarding house, McDonald v. United States, 335 U.S. 451, 69 S. Ct. 191, 93 L. Ed. 153 [1948,] a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures. Johnson v. United States, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436 [1948],

¶22 One exception to the warrant requirement is where exigent circumstances and probable cause are present. Warden v. Hayden (1967), 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782; State v. Sorenson (1979), 180 Mont. 269, 590 P.2d 136. Probable cause exists “if the facts and circumstances within the officer’s personal knowledge, or imparted to the officer by a reliable source, are sufficient to warrant a reasonable person to believe that the suspect has committed an offense.” State v. Schoffner (1991), 248 Mont. 260, 264, 811 P.2d 548, 551.

¶23 In upholding the warrantless search of Wakeford’s motel room, the District Court relied on the “exigent circumstances” exception to the warrant requirement. The exigent circumstances doctrine provides that a “warrantless entry by law enforcement officials may be legal when there is a compelling need for official action and no time to secure a warrant.” Michigan v. Tyler (1978), 436 U.S. 499, 509, 98 S. Ct. 1942, 1949, 56 L. Ed. 2d 486, 498.

¶24 Exigent circumstances are “those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.” United States v. McConnery (9th Cir. 1984) (en banc), 728 F.2d 1195, 1199 cert. denied (1984), 469 U.S. 824, 105 S. Ct. 101, 83 L. Ed. 2d 46. The State bears the heavy burden of showing the existence of exigent circumstances. Welsh v. Wisconsin (1984), 466 U.S. 740, 749-50, 104 S. Ct. 2091, 2097, 80 L. Ed. 2d 732, 743. It can meet that burden only by “demonstrat[ing] specific and articulable facts to justify the finding of exigent circumstances.” United States v. Driver (9th Cir. 1985), 776 F.2d 807, 810. The State must establish that the circumstances, as they appeared at the moment of entry, would lead a reasonable officer to believe that someone in the house or motel room required immediate assistance. United States v. Salava (7th Cir. 1992), 978 F.2d 320, 324.

¶25 We agree with the District Court that exigent circumstances existed in this case. The police responded to a dispatch that Wakeford was possibly suicidal and might harm himself. After checking with the motel clerk at the front desk, the officers approached Wakeford’s room. In the hallway, they heard two voices, male and female, arguing. Based on their experience, the officers believed that they were about to confront a potential domestic abuse situation.

¶26 When the officers spoke to Wakeford at the door, their concern over the situation increased. Wakeford held the door slightly ajar, preventing the officers from seeing inside the room and from observing whether Wakeford was holding anything in his hands. The officers observed that Wakeford was sweating, breathing heavily, andhis eyes were dilated. Wakeford admitted that he had been fighting with Degele but refused to allow the officers to check on her safety. The officers did not see or hear anything from Degele when talking to Wakeford at the door.

¶27 When officers acting on probable cause and good faith reasonably believe from the totality of the circumstances that the nature of the crime or character of the suspect pose a risk of danger to the arresting officers or third persons, exigent circumstances justify a warrantless entry, search, or seizure of the premises. See United States v. Gooch (9th Cir. 1993), 6 F.3d 673, 679; United States v. Gardner (9th Cir. 1980), 627 F.2d 906, 910-12. Although Wakeford assured the officers that he was not suicidal and that everything was fine in the room, it was reasonable for the officers to believe that exigent circumstances existed which required their immediate entry into the room to ensure the safety of the occupants of the room and themselves. The officers had not heard anything from the female, Degele, who was inside the motel room. Furthermore, the officers were concerned because they could not see if Wakeford, partially hidden behind the door, was holding a weapon in his hand. The officers told Wakeford that they needed to check on Degele before they could leave and he stepped aside. In the room, the officers spoke to Degele. She stated that she and Wakeford had been arguing but that she was fine. The officers noticed no evidence of physical injuries to her and she did not appear to be in any danger. After checking on Degele, the officers then saw drug paraphernalia in the room, providing probable cause to believe that an offense was being committed justifying Wakeford’s arrest.

¶28 Wakeford argues that the District Court failed to conclude that probable cause existed before the search. He asserts that probable cause must first exist before exigent circumstances can allow a warrantless search. He states that once the officers arrived in response to the dispatch call and saw that he was fine, it was unreasonable for them to conclude that Degele was in need of immediate assistance because Wakeford did not immediately allow the officers to check on her.

¶29 In response, the State argues that a showing or finding of probable cause of criminal activity is not required to justify a warrantless entry under exigent circumstances. The State contends that as long as the officers had a reasonable belief that Wakeford or Degele needed their assistance, it was not necessary for the officers to have probable cause to believe that Wakeford had committed an offense in order for the District Court to find that the officers’ search was lawful.

¶30 As stated above, all warrantless searches are presumed unreasonable unless an exception to the warrant requirement exists. Ruston, 264 Mont. at 257, 870 P.2d at 1361. An exception to the warrant requirement is where exigent circumstances and probable cause are present. Dow, 256 Mont. at 129, 844 P. 2d at 782; State v. Kao (1985), 215 Mont. 277, 281, 697 P.2d 903, 906.

¶31 In this case, the Court concludes that probable cause did exist. The officers responded to a dispatch call stating that Wakeford was despondent. In the hallway of the motel, the officers heard loud voices engaged in what they believed to be a potential domestic abuse situation. When Wakeford came to the door, he appeared agitated, he was breathing heavily and sweating, and only partially opened the door, concealing his hands from the officers. The officers were not able to see or hear the female with whom Wakeford had been arguing and could reasonably assume that she had suffered from some injury or violent act. Thus, in these circumstances, probable cause existed that Wakeford may have committed domestic abuse against Degele that justified a warrantless search of the motel room.

¶32 We conclude that the District Court did not err in finding that the officers’ initial entry into the motel room was authorized as a warrantless search due to exigent circumstances. We further conclude that the officers did have probable cause to believe that Wake-ford had committed an offense before conducting the warrantless search.

¶33 Affirmed.

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


author: JUSTICE NELSON

text:
    MONTANA PUBLIC EMPLOYEE’S ASSOCIATION, a Montana non-profit Corporation; on behalf of, as their union, Tim Fellows, Jerry Brown, and all other employees of the Montana Department of Transportation similarly situated, Plaintiffs and Appellants, v. MONTANA DEPARTMENT OF TRANSPORTATION, Defendant and Respondent.
    No. 97-120.
    Submitted on Briefs May 15, 1997.
    Decided January 30, 1998.
    1998 MT 17.
    55 St.Rep. 60.
    287 Mont. 229.
    954 P.2d 21.

      For Appellant: Carter N. Picotte, Helena.
    For Respondent: Mike Pickard, Human Resources Attorney, Montana Department of Transportation, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

¶1 The Montana Public Employee’s Association (MPEA) appeals an order of the District Court for the First Judicial District, Lewis and Clark County, granting summary judgment in favor of the Montana Department of Transportation (MDT) in a controversy between the parties over the status of the “District Construction Allowance” (DCA) paid to certain MDT employees. We reverse and remand.

¶2 The sole issue raised on appeal is whether the District Court erred in determining that the DCA may not be included in the base pay of MDT employees for the purpose of calculating overtime.

Factual and Procedural Background

¶3 MDT employs a limited number of individuals in its construction bureau whose job sites change from time to time. For that reason, reporting stations have been established in various locations so that employees can report to work at a location closer to their homes. MDT then provides transportation from the reporting station to the actual work site during work hours.

¶4 MPEA acts as a labor union on behalf of public employees. MPEA and MDT negotiated a collective bargaining agreement on September 27, 1991, wherein they agreed that an allowance, the DCA, would be paid to certain construction bureau employees based upon the distance they travel from their home to the reporting station. This agreement was reaffirmed by the parties on several occasions, the last, prior to the filing of the complaint, being May 10, 1994. Eligibility for the DCA is based on the relationship of the reporting station to the central post office of the employee’s home town. Employees who reside in reasonable proximity to a reporting station or work site do not receive the DCA.

¶5 The DCA is found in a supplement to the collective bargaining agreement between the parties. It provides, in part:

1. Purpose and Application
a. Purpose: The purpose of this policy is to provide an allowance for District Construction personnel who are assigned to a project by the appropriate authority. This allowance is intended to accommodate special circumstances of employees in the District Construction offices who must report to different reporting stations. It is not provided as per diem, and employees are not considered to be in a travel status anytime they are covered under this policy.
b. Application: This policy will apply only to District Construction personnel who are subject to assignment to projects which require them to report to a designated reporting station in excess of twenty (20) miles one way from the central post office in the community in which he/she resides, or if the employee prefers a rural location, he/she will be considered to be residing at the central post office in the nearest city, town or community for mileage calculations only.
c. “Designated Reporting Station” means a collecting point for state vehicles, an office located in a town, the field office, the district office or other location serving the best interest of the Department. Reporting stations will be established where reasonable accommodations are available. Management will be the sole determiner of “reasonable accommodations.”
d. “Designated Shift” means a shift in which the employee actually works two (2) or more hours with the remainder of the regular shift in a pay status.

Supplemental to Master Contract for Department of Transportation Non-Maintenance Unit (May 10, 1994), pp. 8-9.

¶6 On May 9, 1995, MPEA filed a complaint against MDT seeking a Declaratory Judgment and alleging that the DCA should be treated as an element of an employee’s base pay for purposes of calculating overtime compensation. On January 17, 1996, MPEA filed an amended complaint basing its claim, in part, on the provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 through 219.

¶7 MPEA and MDT stipulated to the facts and agreed that the FLSA controls. The parties filed cross motions for summary judgment. On December 10,1996, the District Court entered its Order on Motions for Summary Judgment wherein the court concluded that since the DCA was reimbursement for travel expenses, it could not be included in an employee’s base pay for purposes of calculating overtime compensation. MPEA appealed.

Standard of Review

¶8 Our standard of review in appeals from summary judgment rulings is de novo. Motarie v. N. Mont. Joint Refuse Disposal (1995), 274 Mont. 239, 242, 907 P.2d 154, 156 (citing Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785). When we review a district court’s grant of summary judgment, we apply the same evaluation as the district court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we set forth our inquiry:

The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.

Bruner, 900 P.2d at 903 (citations omitted).

Discussion

¶9 Whether the District Court erred in determining that the DCA may not be included in the base pay of MDT employees for the purpose of calculating overtime.

¶10 The parties agree that there are no factual disputes in this case and that the FLSA is controlling. The FLSA is a federal statute establishing minimum wage, overtime pay, child labor, and equal pay requirements. 29 C.F.R. § 778.0 (1997). The Department of Labor (DOL) is responsible for determining the operative definitions of the terms used in the FLSA through interpretive regulations and as a general rule, DOL regulations are entitled to judicial deference and are the primary source of guidance for determining the scope and extent of exemptions to the FLSA. Spradling v. City of Tulsa, Okl. (10th Cir. 1996), 95 F.3d 1492, 1495 (citing Udall v. Tallman (1965), 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616).

¶11 Exemptions from or exceptions to the FLSA’s requirements are to be narrowly construed against the employer asserting them. Donovan v. Brown Equipment & Service Tools, Inc. (5th Cir. 1982), 666 F.2d 148, 153 (citing Arnold v. Ben Kanowsky, Inc. (1960), 361 U.S. 388, 392, 80 S.Ct. 453, 456, 4 L.Ed.2d 393). Furthermore, the employer bears the burden of showing that the employee fits “plainly and unmistakenly within the exemption’s terms.” Spradling, 95 F.3d at 1495 (citing Aaron v. City of Wichita (10th Cir. 1995), 54 F.3d 652, 657 cert denied_U.S._, 116 S.Ct. 419, 133 L.Ed.2d 336; Reich v. State of Wyoming (10th Cir. 1993), 993 F.2d 739, 741).

¶12 Under the FLSA,

no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

29 U.S.C. § 207(a)(1) (1997) (emphasis added). An enterprise “engaged in commerce or in the production of goods for commerce” includes an enterprise that “is an activity of a public agency,” 29 U.S.C. § 203(s)(l)(C) (1997), and a “public agency” includes the government or any agency of a state or a political subdivision of a state, 29 U.S.C. § 203(x) (1997).

¶13 Additionally, “regular rate” is defined in the FLSA as follows:

As used in this section the “regular rate” at which an employee is employed shall be deemed to include all remuneration for employment paid to, or on behalf of, the employee, but shall not be deemed to include—
(2) payments made for occasional periods when no work is performed due to vacation, holiday, illness, failure of the employer to provide sufficient work, or other similar cause; reasonable payments for traveling expenses, or other expenses, incurred by an employee in the furtherance of his employer’s interests and properly reimbursable by the employer; and other similar payments to an employee which are not made as compensation for his hours of employment; ...

29 U.S.C. § 207(e) (1997). Although the “regular rate” is a rate per hour, the FLSA does not require employers to compensate employees on an hourly rate basis; their earnings may be determined on a piece-rate, salary, commission, or other basis. 29 C.F.R. § 778.109 (1997). The regular hourly rate of pay of an employee is determined by dividing his total remuneration for employment (except statutory exclusions) in any workweek by the total number of hours actually worked by him in that workweek for which such compensation was paid. 29 C.F.R. § 778.109 (1997).

¶14 In granting summary judgment in favor of MDT, the District Court concluded that the DCA is not made as compensation for hours of employment or hours worked because employees receive the DCA regardless of the number of hours worked, so long as they work more than two hours in a shift. The court also concluded that the DCA appeared to be a form of reimbursement for travel expenses to employees and, because the FLSA provides that reimbursement for travel expenses is not to be included in an employee’s regular rate of pay for purposes of calculating overtime, the DCA may not be included in the base pay of MDT employees. The District Court based its conclusions on a review of numerous time sheets of employees, submitted by MPEA as exhibits, wherein the DCA funds were recorded under a section entitled “Travel Expense Claim.” Moreover, the court determined that the employees do not claim other statutorily created travel reimbursement for mileage and that the DCA was directly linked with the distance the employee had to travel to the reporting station.

¶15 MPEA maintains that the District Court erred in concluding that the DCA falls within the statutory exception for travel expenses contained in 29 U.S.C. § 207(e)(2). MPEA contends that the DCA is not an expense reimbursement under the FLSA because the travel expense is not incurred on the employer’s behalf or for the employer’s benefit or convenience. Hence, MPEA argues, since the regular rate includes all remuneration paid to an employee unless a specific exception is provided for in the FLSA and since the DCA does not fall within one of the statutory exceptions, the DCA may not be excluded from the “regular rate” for the purpose of calculating overtime compensation.

¶16 MDT contends, on the other hand, that not only does the DCA fall within the statutory exception for travel expenses found at 29 U.S.C. § 207(e)(2), but it also falls within the exception for “other similar payments to an employee which are not made as compensation for his hours of employment” also found at 29 U.S.C. § 207(e)(2). The MDT bases its contention on the fact that the DCA is not compensation for hours worked since qualified employees are paid the DCA whether they work two hours in a shift or eight hours.

¶ 17 “It is important to determine the scope of [the exclusions under the FLSA] since all remuneration for employment paid to employees which does not fall within one of these seven exclusionary clauses must be added into the total compensation received by the employee before his regular hourly rate of pay is determined.” 29 C.F.R. § 778.200(c) (1997). See also Brock v. Two R Drilling Co., Inc. (5th Cir. 1985), 772 F.2d 1199, 1200.

¶18 The DOL interprets the exception for travel expenses found in 29 U.S.C. § 207(e)(2) as follows:

Where an employee incurs expenses on his employer’s behalf or where he is required to expend sums solely by reason of action taken for the convenience of his employer, section 7(e)(2) is applicable to reimbursement for such expenses. Payments made by the employer to cover such expenses are not included in the employee’s regular rate (if the amount of the reimbursement reasonably approximates the expenses incurred). Such payment is not compensation for services rendered by the employees during any hours worked in the workweek.

29 C.F.R. § 778.217(a) (1997). However,

[t]he expenses for which reimbursement is made must in order to merit exclusion from the regular rate under this section, be expenses incurred by the employee on the employer’s behalf or for his benefit or convenience. If the employer reimburses the employee for expenses normally incurred by the employee for his own benefit, he is, of course, increasing the employee’s regular rate thereby. An employee normally incurs expenses in traveling to and from work, buying lunch, paying rent, and the like. If the employer reimburses him for these normal everyday expenses, the payment is not excluded from the regular rate as “reimbursement for expenses.”

29 C.F.R. § 778.217(d) (1997) (emphasis added).

¶19 In the case before us, the expenses were not incurred on MDT’s behalf or for MDT’s benefit or convenience. The DCA is reimbursement for normal everyday expenses incurred by the employee for his own benefit, namely traveling to and from work. Thus, the DCA may not be excluded from the regular rate as reimbursement for travel expenses under that provision of 29 U.S.C. § 207(e)(2).

¶20 Nor may MDT be relieved of liability under the Portal to Portal Act, 29 U.S.C. §§ 251 through 262. As a general rule, the Portal to Portal Act relieves an employer from liability or punishment under the FLSA for failing to pay an employee minimum wages or overtime compensation for “walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform. ...” 29 U.S.C. § 254(a) (1997). “The effect on the Fair Labor Standards Act of the various provisions of the Portal Act must necessarily be determined by viewing the two acts as interelated parts of the entire statutory scheme for the establishment of basic fair labor standards.” 29 C.F.R. § 790.2(a) (1997). Under the Portal to Portal Act, an employer is not relieved of liability or punishment if the activity is compensable by either “an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer,” 29 U.S.C. § 254(b)(1) (1997), as is the case here.

¶21 MDT argues that the parties had not intended, under the collective bargaining agreement, to include the DCA in the calculations for overtime compensation. However, “[t]here is no collective-bargaining exemption from the FLSA.” Reich v. Interstate Brands Corp. (7th Cir. 1995), 57 F.3d 574, 578; Featsent v. City of Youngstown (6th Cir. 1995), 70 F.3d 900, 905.

¶22 MDT also argues that, even if the DCA does not qualify for exclusion under the travel expense exception to the FLSA found in 29 U.S.C. § 207(e)(2), it may still be excluded from the regular rate for the purpose of calculating overtime because it falls within the exclusion, also found in 29 U.S.C. § 207(e)(2), for “other similar payments to an employee which are not made as compensation for his hours of employment.” We reject MDT’s argument.

¶23 To qualify for exclusion under this third and last clause of 29 U.S.C. § 207(e)(2), the DCA must “be ‘similar’ in character to the payments specifically described in section 7(e)(2).” 29 C.F.R. § 778.224(a) (1997). MDT has not contended that the DCA is similar to the payments excluded under the first clause of 29 U.S.C. § 207(e)(2) “for occasional periods when no work is performed due to vacation, holiday, illness, failure of the employer to provide sufficient work, or other similar cause,” and we have already shown that the DCA is not reimbursement for travel or other expenses under the second clause of 29 U.S.C. § 207(e)(2).

¶24 Instead, MDT contends that the DCA falls within the exceptions under 29 U.S.C. § 207(e)(2) because of the phrase therein that the excepted payments are “not made as compensation for [an employees] hours of employment.” MPEA argues that the DCAis similar because it is not compensation for hours worked since qualified employees are paid the DCA whether they work two hours in a shift or eight hours. We find this argument unpersuasive. “Section 7(e)(2) does not exclude every payment not measured by hours of employment from the regular rate.” Featsent, 70 F.3d at 904 (citing Reich, 57 F.3d at 577).

It is clear that the [“other similar payments”] clause was not intended to permit the exclusion from the regular rate of payments such as bonuses or the furnishing of facilities like board and lodging which, though not directly attributable to any particular hours of work are, nevertheless, clearly understood to be compensation for services.

29 C.F.R. § 778.224(a) (1997).

¶25 Therefore, we hold that the MDT has not met its burden of showing that the DCA fits “plainly and unmistakenly” within one of the statutory exceptions to the FLSA’s requirements. Spradling, 95 F.3d at 1495. Consequently, the DCA must be included in the regular rate for the purpose of calculating overtime. This does not mean, however, that the time spent traveling to and from work must also be counted as hours worked.

An employee who travels from home before his regular workday and returns to his home at the end of the workday is engaged in ordinary home to work travel which is a normal incident of employment. This is true whether he works at a fixed location or at different job sites. Normal travel from home to work is not work-time.

29 C.F.R. § 785.35 (1997). Ordinary travel from home to work “need not be counted as hours worked even if the employer agrees to pay for it.” 29 C.F.R. § 785.34 (1997) (citing Tennessee Coal, Iron & R.R. Co. v. Muscoda Local (1944), 321 U.S. 590, 64 S.Ct. 698, 88 L.Ed. 949; Anderson v. Mt. Clemens Pottery Co. (1946), 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515; Walling v. Anaconda Copper Mining Co. (1946), 66 F.Supp. 913).

¶26 Accordingly, we hold that the District Court erred in determining that the DCA may not be included in the base pay of MDT employees for the purpose of calculating overtime.

¶27 Reversed and remanded for further proceedings consistent with this opinion.

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


author: JUSTICE HUNT

text:
    IN RE THE MATTER OF J.M.W.E.H., A YOUTH IN NEED OF CARE.
    No. 97-048.
    Submitted on Briefs September 9, 1997.
    Decided February 4, 1998.
    1998 MT 18.
    55 St.Rep. 65.
    287 Mont. 239.
    954 P.2d 26.

      For Appellant: Richard Dzivi, Great Falls (appellant); Bethany Schendel, Great Falls (youth).
    For Respondent: Joseph P. Mazurek, Attorney General, Christina Lechner Goe, Assistant Attorney General, Helena; Brant Light, Cascade County Attorney, Susan Weber, Kirsten LaCroix, Deputy Cascade County Attorneys, Great Falls.
   JUSTICE HUNT

delivered the Opinion of the Court.

¶1 Terry E. (Appellant) is the natural mother of J.M.W.E.H. (J.H.), a minor child. She appeals from an order of the Eighth Judicial District Court, Cascade County, terminating her parental rights over J.H. and awarding permanent custody of J.H. to the Montana Department of Public Health and Human Services (DPHHS). We affirm.

¶2 We address the following issues on appeal:

¶3 1. Did the District Court err when it found that Appellant did not comply with the provisions of her treatment plan?

¶4 2. Did the District Court err when it refused to admit into

evidence certain papers concerning Appellant’s attendance to Alcoholics Anonymous (AA) meetings?

BACKGROUND

¶5 Appellant is the mother of five sons. J.H., born April 3, 1993, is the youngest of Appellant’s children, and has a father different than that of his four older brothers. Appellant has been involved with the DPHHS regarding physical neglect of her children since 1984. In September, 1991, the DPHHS filed a petition for temporary investigative authority. During the period of investigation, Appellant was diagnosed as chemically dependant and began attending AA meetings. Appellant’s case was closed in April, 1992, when she completed her treatment plan. After the close of the case, Appellant did not continue her AA meetings as recommended in her aftercare plan.

¶6 In March, 1993, the DPHHS received referrals regarding Appellant’s neglect of her children. To prevent removal of the children, the DPHHS attempted several informal interventions. Appellant responded when the DPHHS intervened, but once the DPHHS closed the investigation, Appellant slipped back into her old patterns of behavior. This same sequence of events happened again in October, 1993, just after J.H. was bom.

¶7 Marie Spurzem (Spurzem) babysat J.H. from the time he was five months old until he was eleven months old. Spurzem stated that J.H. often arrived at her house in the morning dirty, cold, and hungry. Spurzem described one incident as follows:

I’ve never seen a dirtier child. [Appellant] brought him to me one day, and he had been sitting evidently in the swing for a long time. And I moved the swing, which is a chair that she brought him in, and there was urine in the chair that poured out on my foot on the floor. The baby was wet from the neck down. And it was chilly out. It was cold. The baby had a blanket over it but was not wrapped in the blanket. It was just sitting in this puddle.

Spurzem stated that Appellant often gave her chunky food unsuitable for a child of J.H.’s age, and that J.H.’s bottles often contained sour milk.

¶8 On January 28, 1994, after receiving several referrals from professional health care workers indicating a severely deteriorated situation, two social workers went to Appellant’s home. The social workers found the children at home alone, with the two older twin boys, age 14, babysitting the three younger boys. The social workers took pictures of the home showing dog feces on the floor, garbage, moldy food, filthy kitchen counters and appliances, fire hazards, and the floor covered with dirty laundry. Nine-month old J.H. was sitting on the floor sucking on an ink pen. J.H.’s diaper was soiled and did not appear to have been changed all day.

¶9 While social workers were at the home, Appellant’s sister, Jody Thompson, arrived and agreed to take the children to her home. Around this same time, Appellant called from the home of J.H.’s father, Michael H. The social workers informed Appellant that the DPHHS was taking custody of her children and that a civil action would be filed. Appellant informed Michael H. of the action, and the social workers called the father of the other children, James E., and informed him of the action.

¶10 On January 31,1994, the DPHHS filed a petition for temporary legal custody and attached an affidavit explaining the above circumstances. On February 1,1994, the court declared the five children as youths in need of care, and on February 18, 1994, after an adjudicatory hearing, the court issued an order granting temporary legal custody of the five children to the DPHHS for six months. The DPHHS placed the children with Appellant’s sister and brother-in-law, Jody and Bert Thompson (Thompsons), for the period of temporary custody. The court attached to its order approved treatment plans for Appellant, Michael H., and James E. Among the objectives in Appellant’s treatment plan was that she was to (1) obtain a psychological evaluation and follow the examiner’s recommendations; (2) attend regular AA meetings; (3) attend parenting classes; and (4) insure that her home was clean and hazard free. In July, 1994, the DPHHS returned the four older boys to Appellant’s care. In August, 1994, the court held a review hearing in which the parties stipulated to a three-month extension of Appellant’s treatment plan and temporary legal custody to the DPHHS. In September, 1994, the DPHHS returned J.H. to Appellant’s care and continued monitoring the situation.

¶11 On October 24, 1994, the social worker assigned to the case, Brennan Swanberg (Swanberg), visited Appellant’s home and found the home to be extremely unsanitary and dangerous for children. Swanberg saw dirty clothes and old food on the floor. Also on the floor were small objects such as pennies and wood chips which posed a great danger to J.H. Swanberg saw boards with exposed nails over the windows of the home and believed this posed a great danger to all the children.

¶12 On October 30, 1994, the Cascade County Sheriff’s Office received a report that Appellant was waving a gun around in her home and posing a risk to her children. When Officer Steve Brekke arrived at the home, he noted that the Thompsons were in the house with Appellant, that Appellant was under the influence of something, but that the gun was boltless and was not loaded.

¶13 On November 29, 1994, the court held a review hearing. Based on Swanberg’s and Officer Brekke’s testimony, and Appellant’s admission that she drank alcohol on October 30,1994, the court placed all the children back in the care of the Thompsons, and extended Appellant’s treatment plan and the DPHHS’s temporary custody for another three months. On February 23,1995, Hebe Chestnutt (Chestnutt) was appointed guardian ad litem for the five children. Meanwhile, James E. had moved to Nevada and expressed his interest in taking custody of the four older boys.

¶14 Another review hearing was held in March of 1995. The court was informed that James E. had found suitable living quarters for himself and the four older boys in Nevada. The DPHHS and Appellant stipulated to another three-month extension of the DPHHS’s temporary custody of J.H. Appellant’s treatment plan was modified, requiring Appellant to do the following: (1) complete a chemical dependency outpatient treatment program; (2) maintain sobriety; and (3) maintain a clean household. The court stated that after eight weeks, if Appellant complied with her treatment program, and if Appellant’s chemical dependency counselor agreed, the court would allow Appellant to have overnight unsupervised visits with J.H. in Appellant’s home.

¶15 The review hearing set for May, 1995, was continued due to unavailability of counsel. On July 25, 1995, after a review hearing, the court issued an order extending temporary legal custody to the DPHHS for another three months. The court also restricted Appellant’s visits with J.H. from unsupervised to supervised, and directed Appellant and Michael H. to make every effort to complete their treatment plans. Michael H. refused to complete his treatment plan and expressly stated that he did not wish to parent J.H. The DPHHS continued to monitor the situation.

¶16 On September 16,1995, a neighborhood acquaintance of Appellant, Patricia Hopkins (Hopkins), saw Appellant at a local rodeo carrying cups of what appeared to be beer. Hopkins saw Appellant pass her three times in the stands, each time leaving empty-handed and returning with a new frothy beverage. Hopkins reported that she saw Appellant walking with Michael H. at the end of the rodeo.

¶17 At a review hearing on October 26, 1995, the parties again stipulated to another three-month extension of the DPHHS’s temporary custody of J.H. The parties also stipulated to a modification of Appellant’s treatment plan whereby Appellant would: (1) have no contact with Michael H. for the extension period; (2) attend AA meetings at least twice weekly; (3) maintain sobriety; (4) participate in random urinalysis testing; and (5) obtain counseling for problem-solving, self-esteem enhancement, and other issues the counselor deemed appropriate. The parties agreed that during the first month of the extension period, Appellant would have supervised visits with J.H., and that if Appellant complied with her treatment plan, she could have unsupervised visits with J.H. during the second month, and have J.H. returned to her care for the third month. The court issued an order containing the above provisions on October 30,1995. ¶ 18 During the next three months, several people witnessed Appellant violating the terms of her treatment plan. The following incidents suggest that Appellant did not maintain sobriety and did not refrain from seeing Michael H. On October 27, 1995, one day after Appellant agreed to her modified treatment plan, Swanberg saw Appellant in a bar. When Appellant saw Swanberg, Appellant fled but Swanberg could not catch her. On November 17,1995, Chestnutt saw Appellant leaving Michael H.’s house at 7:30 a.m. When Appellant saw Chestnutt, she again fled. On December 15,1995, Chestnutt saw a woman in Michael H.’s trailer. Appellant’s car was not at the trailer, so Chestnutt drove to Appellant’s residence. Appellant’s car was there, but the hood was up and the car did not appear to be operational. The next day, Chestnutt saw Michael H.’s truck parked at Pampered Pets Salon, Appellant’s dog-grooming business. Later the next week, on two separate occasions, Chestnutt drove by Michael H.’s trailer and saw Appellant’s car there. Bert Thompson, Appellant’s brother-in-law and J.H.’s foster parent, also saw Appellant’s car parked at Michael H.’s trailer in December, 1995, on “several occasions.”

¶19 Regarding Appellant’s urinalysis testing, Swanberg stated that Appellant would not answer the phone and would not make herself available for testing. With regard to the court-ordered counseling, Appellant admitted she did not seek counseling. Regarding Appellant’s visitation with J.H., Appellant had five supervised visits with J.H. during the entire three-month extension period. Chestnutt reported that during these visits, J.H. did not appear to be bonded to Appellant, and seemed disturbed in visits with her, often saying “No, Terry, No Terry.” Chestnutt reported that J.H. called his foster mother, Jody Thompson, “Mommy.” The DPHHS did not allow Appellant to progress to unsupervised visits with J.H., due to reports that she had violated her treatment plan.

¶20 On February 1,1996, the DPHHS filed with the court a petition for termination of Appellant’s parental rights over J.H., and the court set an initial hearing date for March 5,1996. The hearing commenced March 5-6, 1996, but due to illness of Appellant’s counsel, was not completed until September 16, 1996.

¶21 During the six-month period from the commencement to the conclusion of the hearings, the DPHHS continued to note incidents when it appeared Appellant was violating her treatment plan. In March, 1996, Chestnutt saw Appellant leaving a bar, and in June, 1996, Chestnutt saw Michael H.’s truck parked at Pampered Pets Salon at 7:30 a.m. In September, 1996, Swanberg was informed that R.E., Appellant’s ten year old son, was living with his mother. Swan-berg called R.E.’s school but was informed that R.E. was not enrolled in school. Swanberg and Chestnutt then went to Appellant’s apartment to find R.E. Swanberg and Chestnutt noted that the television was on, but no one answered the door. The door was open, so Swanberg and Chestnutt entered and called for R.E. While in Appellant’s apartment, Swanberg saw two empty beer cans in the kitchen and one half-empty beer can on Appellant’s nightstand. Appellant’s business partners also reported that during the summer of 1996, Appellant and her older sons were living at Pampered Pets Salon, and that conditions in the shop were so unclean that customers complained and took their business elsewhere. Bert Thompson stated that since initiation of the termination action in January, 1996, Appellant had not requested any visits with J.H., even on his birthday.

¶22 During the last two hearings, September 11 and 16, Appellant testified on her own behalf to explain to the court why her parental rights should not be terminated. Regarding her drinking, Appellant denied drinking any alcohol since October, 1994. She claimed that the witnesses who had seen her in bars or seen her carrying cups of beer at the rodeo were either mistaken or lying. She explained that the empty beer cans found in her apartment in September, 1996, belonged to her landlady and landlady’s boyfriend who were helping her move.

¶23 Regarding her contact with Michael H., Appellant admitted having contact with him, but denied “intimate contact.” She testified that Michael H. came to her residence only to fix her car and help her move. She admitted that during some of these visits, while her sons were visiting, Michael H. had contact with her sons. Appellant stated that her car was at Michael H.’s trailer only to be fixed, and that she herself was never at Michael H.’s trailer.

¶24 Regarding her attendance at AA meetings, Appellant testified that she attended AA meetings twice weekly from October 1995 through February 1996; that in other months she attended AA only two or three times monthly; and that in May, 1996, she stopped going to AAmeetings altogether because she was too busy with her business and her older children who were visiting for the summer. Appellant attempted to admit her AA attendance slips into evidence, but the DPHHS objected on grounds of hearsay and lack of foundation. The court sustained the objection and refused to allow the slips into evidence.

¶25 When asked why she never obtained the court-ordered counseling for problem-solving and self-esteem enhancement, Appellant stated that Swanberg was supposed to make the appointment and that she never heard from Swanberg. When asked why she never requested visitation with J.H. since January, 1996, Appellant replied that she thought her visitation rights had been taken away when the petition for termination was filed.

¶26 On October 8, 1996, the District Court entered its Findings of Fact, Conclusions of Law, and Order terminating Appellant’s parental rights over J.H. and awarding permanent legal custody of J.H. to the DPHHS. Specifically, the court found that: (1) Appellant had not successfully completed her treatment plan; (2) the conduct or condition of Appellant rendering her unfit was unlikely to change within a reasonable time; and (3) termination of Appellant’s parental rights over J.H. was in J.H.’s best interests.

STANDARD OF REVIEW

¶27 The standard of review of a district court’s findings of fact in a parental rights termination case is whether the findings are clearly erroneous. Matter of J.L. (1996), 277 Mont. 284, 287, 922 P.2d 459, 461. A finding is clearly erroneous if it is not supported by substantial evidence, if the trial court misapprehended the effect of the evidence, or if this Court is left with a definite and firm conviction that the District Court made a mistake. Matter of R.B.O. (1996), 277 Mont. 272, 277, 921 P.2d 268, 271 (citation omitted). With the exception of a district court’s conclusions involving the exercise of discretion, such as a determination that a child is abused or neglected, we review a district court’s conclusions of law to determine whether they are correct. Matter of R.B.O., 921 P.2d at 271. The standard of review for evidentiary rulings is whether the District Court abused its discretion. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263.

DISCUSSION

¶28 In deciding whether to terminate one’s parental rights, a court must make findings in accordance with the criteria set out in § 41-3-609, MCA. Matter of C.A.R. (1984), 214 Mont. 174, 182-83, 693 P.2d 1214, 1219. Section 41-3-609, MCA, provides in pertinent part:

Criteria for termination. (1) The court may order a termination of the parent-child legal relationship upon a finding that any of the following circumstances exist:
(e) the child is an adjudicated youth in need of care and both of the following exist:
(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time; or
(f) the parent has substantially failed to successfully complete or meet the goals of a treatment plan approved by the court and the child has been in an out-of-home placement for a cumulative total period of 1 year or longer.

Section 41-3-609(1), MCA. Section 41-3-609(2), MCA, further provides:

In determining whether the conduct or condition of the parents is unlikely to change within a reasonable time, the court shall enter a finding that continuation of the parent-child legal relationship will likely result in continued abuse or neglect or that the conduct or condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care. In making the determinations, the court shall consider but is not limited to the following:
(a) emotional illness, mental illness, or mental deficiency of the parent of a duration or nature as to render the parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time;
(d) excessive use of intoxicating liquor ... that affects the parent’s ability to care and provide for the child; ...; and
(g) any reasonable efforts by protective service agencies that have been unable to rehabilitate the parent.

¶29 Because the termination of parental rights involves fundamental liberty interests, the party seeking termination must present to the district court clear and convincing evidence that the above statutory criteria have been met. Matter of J.L., 922 P.2d at 461. Moreover, when evaluating the above criteria, the court must give primary consideration to the best interests of the child as demonstrated by the child’s physical, mental, and emotional conditions and needs. Section 41-3-609(3), MCA; Matter of J.L., 922 P.2d at 461.

Issue 1

¶30 Did the District Court err when it found that Appellant did not comply with the provisions of her treatment plan?

¶31 Appellant makes several arguments to support her contention that the District Court erred in finding she failed to comply with the provisions of her treatment plan. First, Appellant argues that the court’s finding was based on unproven assumptions and hearsay, rather than on clear and convincing evidence. Second, Appellant argues that the court improperly considered “old, irrelevant” evidence of Appellant’s conduct prior to October 30, 1995, the date the court issued its last modified treatment plan. Third, Appellant argues that she complied with the provision of her treatment plan requiring that she not maintain contact with Michael H., because she refrained from “intimate” contact with him. Finally, Appellant argues that the court erred in considering evidence gathered by Swanberg when she entered Appellant’s home without permission. We will address each argument separately.

A. Credibility of Witnesses

¶32 First, Appellant argues that there exists no credible evidence on which to base a finding that Appellant failed to comply with her treatment plan. Appellant contends that the statements made by several witnesses indicating they had seen Appellant’s car at Michael H.’s trailer, and had seen Michael H.’s truck at Appellant’s home and place of business, are not conclusive proof that Appellant and Michael H. were actually in contact with each other. Similarly, Appellant contends that the statements made by several witnesses indicating they had seen Appellant in a bar, had seen beer cans in her apartment, and had seen her carrying cups of a frothy beverage at the rodeo, are not conclusive proof that Appellant was drinking. Appellant points out that on cross-examination, Swanberg and Chestnutt stated they never saw the physical bodies of Appellant and Michael H. together, only their vehicles. Appellant also highlights Hopkins’ statement on cross-examination that the frothy beverages could possibly have been soft drinks. Finally, Appellant points to her own contradictory testimony as proof that the witnesses’ allegations are unsubstantiated.

¶33 In the context of parental rights termination cases, we have defined the term “clear and convincing evidence” as that quality of proof “more than a mere preponderance but not beyond a reasonable doubt.” Matter of J.L., 922 P.2d at 462 (adopting the Kansas Supreme Court’s holding in In the Interest of S.M.Q. (1990), 247 Kan. 231, 796 P.2d 543, 545). We have held that clear and convincing evidence “does not call for unanswerable or conclusive evidence.” Matter of J.L., 922 P.2d at 462 (citation omitted).

¶34 Applying these rules to the instant case, the fact that Appellant’s testimony conflicts with other witness testimony, or the fact that the witnesses’ allegations are based on inferences, does not automatically preclude the court from finding that Appellant violated her treatment plan. The evidence in the record is substantial and establishes beyond a mere preponderance that Appellant violated her treatment plan. Moreover, in non-jury trials, the credibility of witnesses and the weight to be afforded their testimony is a matter left to the sound discretion of the district court. Keebler v. Harding (1991), 247 Mont. 518, 523, 807 P.2d 1354, 1357. It is not the role of this Court to “substitute [our] evaluation of the evidence for that of the trial court, or pass upon the credibility of witnesses.” Matter of J.L., 922 P.2d at 462 (citation omitted).

¶35 Appellant points out that the District Court allowed into evidence hearsay testimony by Burt Thompson concerning what Appellant’s eldest twin son told him about Appellant’s unclean house. While we agree with Appellant that this testimony is inadmissible hearsay under Rule 801(d), M.R.Evid., we hold the admission of the testimony to be harmless error. We have held that “a reversal cannot be predicated upon an error in admission of evidence, where the evidence in question was not of such a character to have affected the result.” Matter of Inquiry into M.M. (1995), 274 Mont. 166, 169, 906 P.2d 675, 677. Given the extensive evidence presented by the DPHHS against Appellant, much of which is set out in the beginning of this opinion, the exclusion of the hearsay statement would not have made a difference in the final outcome of this case. Having extensively reviewed the record, we hold that the District Court’s findings are supported by substantial evidence and are not clearly erroneous.

B. Relevant Time Period for Evaluation

¶36 Appellant next argues that in deciding whether Appellant complied with her treatment plan, the court erred in considering evidence of Appellant’s behavior occurring prior to October 30,1995, the date of Appellant’s last modified treatment plan. Without legal analysis, Appellant summarily argues that the incidents occurring before October 30, 1995, are “irrelevant.” It appears Appellant bases her argument on language in the court’s October 30, 1995 order wherein the parties stipulated:

1. That [Appellant] has substantially complied with the treatment plan approved by this Court on January 12, 1995.

¶37 The DPHHS counters that when making the decision to terminate parental rights, the district court is entitled to consider the entire history of the case. Matter of KF.L. (1996), 275 Mont. 102, 106, 910 P.2d 241, 244 (“[A] complete history is relevant” to the issue of parental rights termination); Matter of Inquiry into B.T.B. (1992), 254 Mont. 449, 453, 840 P.2d 558, 559-60 (court did not abuse its discretion in considering parents’ non-compliance with prior treatment plans).

¶38 We agree with the DPHHS and hold that the District Court did not err in considering evidence of Appellant’s non-compliance with treatment plans in effect prior to October 30, 1995. Although the parties stipulated that Appellant substantially complied with the January 12, 1995 treatment plan, this stipulation is not logically inconsistent with the court’s ultimate decision to terminate Appellant’s parental rights. The court considered the entire history of Appellant’s case and found that Appellant was unsuccessful in completing her overall treatment plan. Based on our review of the record, we conclude that this finding was not clearly erroneous.

C. The Meaning of “Maintain Contact”

¶39 Appellant next argues that she complied with the provision of the treatment plan requiring that she not maintain contact with Michael H. because she refrained from “intimate” contact with Michael H. Appellant blames the court for failing to specify the meaning of “maintain contact,” and argues that her interpretation of the provision, that she could still be friends but could not have intimate contact with Michael H., is the correct one. Appellant argues that any other interpretation would be “ludicrous” as it would mean that even a coincidental meeting with Michael H., such as passing by one another while walking down the street, would be a violation of the treatment plan.

¶40 We do not agree with Appellant. First, we note that the court did not impose the above provision on the parties. Rather, the court adopted the provision as stipulated by the parties. Appellant agreed to not maintain contact with Michael H. for ninety days. If Appellant thought the provision to be ambiguous at that time, she should not have stipulated to it. Second, had the court intended that Appellant refrain only from intimate contact with Michael H., the court would have inserted the word “intimate” in its order. The meaning of the provision was clear and unambiguous. No contact means no contact, either intimate or casual. We conclude that the court’s finding that Appellant violated her treatment plan by maintaining contact with Michael H. was not clearly erroneous.

D. Alleged, Illegal Entry of Appellant’s Home

¶41 Finally, Appellant assigns error to the District Court’s consideration of evidence illegally obtained by Swanberg when she entered Appellant’s home without permission and while no one was home. Appellant argues that this evidence should have been excluded as fruit of an illegal search and seizure. Appellant reasons that had this evidence been excluded, the District Court’s findings would have been clearly erroneous for lack of substantial evidence supporting the findings.

¶42 We decline to address the search and seizure issue on the merits. This issue is not properly before us because it was not raised in the District Court. The Montana Rules of Evidence provide:

Error may not be predicated upon a ruling which admits ... evidence unless ... a timely objection or motion to strike appears of record stating the specific ground of objection, if the specific ground was not apparent from the context.

Rule 103(a)(1) M.R.Evid.

¶43 During the termination hearings, Swanberg was examined and cross-examined concerning the circumstances surrounding her September, 1996 entry into Appellant’s apartment, and the beer cans she saw while inside the apartment. Appellant never objected to the testimony and the District Court was never presented with the opportunity to rule on its admissibility. Therefore, we cannot consider the issue on appeal.

¶44 In sum, we conclude that the District Court’s findings aré supported by substantial evidence and, therefore, are not clearly erroneous. The record is replete with evidence that Appellant did not successfully complete her treatment plan. She continued to see Michael H., she failed to maintain sobriety, she failed to attend AA meetings on a regular, consistent basis, and she failed to obtain individual counseling. The court correctly found that Appellant’s conduct rendering her unfit was unlikely to change within a reasonable time. The court considered the fact that since the DPHHS obtained temporary custody of her children in February, 1994, Appellant was given numerous continuances and opportunities to comply with her treatment plan. The court correctly found that termination of Appellant’s parental rights was in the best interests of J.H. J.H. had been out of the care of his mother for all but the first 10 months of his life. The record shows that Appellant neglected caring for J.H. for those few months, and that thereafter J.H. was not bonded to his mother. Based on these circumstances and the record as a whole, we hold that the District Court’s findings concerning termination of Appellant’s parental rights were not clearly erroneous.

Issue 2

¶45 Did the District Court err when it refused to admit into evidence certain papers concerning Appellant’s attendance to AA meetings?

¶46 During the September 11, 1996 hearing, Appellant attempted to admit into evidence documentation of her recent attendance to AA meetings. The DPHHS objected on the grounds of hearsay and lack of foundation, and the court sustained the objection. Appellant argues the court erred in refusing to admit the AA slips at the September 11, 1996 hearing, when it had already admitted a similar AA slip at a prior March 5, 1996 hearing. Appellant further contends that her testimony met the requirements of authentication as provided in Rule 901(a) and (b), M.R.Evid.

¶47 The court was not required to admit into evidence Appellant’s AA slips at the September 11, 1996 hearing simply because it had admitted a similar slip at a prior hearing. At the March 5, 1996 hearing, the DPHHS failed to object to the admission of the AA slip, therefore it was admitted. However, at the September 11, 1996 hearing, the DPHHS properly objected to the slips and the court properly sustained the objection.

¶48 Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), M.R.Evid. A statement is “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.” Rule 801(a), M.R.Evid. Here, the AA slips are clearly hearsay as they are written assertions made by leaders of AA meetings, and offered by Appellant as proof of her attendance to AA meetings. Appellant neither alleges nor establishes that any hearsay exception or exclusion applies to admission of the AA slips. We conclude that the court did not abuse its discretion in ruling that Appellant’s AA slips were inadmissible. Because we conclude that Appellant’s AA slips were properly refused as inadmissible hearsay, we need not consider the issue of authentication.

¶49 Accordingly, the District Court’s decision to terminate Appellant’s parental rights over J.H. is affirmed.

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


author: JUSTICE LEAPHART

text:
    RICK and ELLEN HARNE, Plaintiffs and Appellants, v. WENDELL DEADMOND d/b/a DEADMOND CONSTRUCTION, Defendant and Respondent.
    No. 97-341.
    Submitted on Briefs January 22, 1998.
    Rehearing Denied March 12, 1998.
    Decided February 10, 1998.
    1998 MT 22.
    55 St.Rep. 80.
    287 Mont. 255.
    954 P.2d 732.

      For Appellants: Jonathan Motl and Deborah Smith; Reynolds, Motl & Sherwood, Helena.
    For Respondent: Kenneth H. Gray; Jackson & Rice, Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Rick and Ellen Harne (Harnes) appeal from the decision of the Fifth Judicial District Court, Jefferson County, resulting in a $7,000 jury verdict in favor of the Harnes as a result of Deadmond Construction’s (Deadmond’s) negligent construction of their home and judgment awarding attorney fees in the amount of $11,255 to Deadmond pursuant to the Montana Consumer Protection Act (MCPA). We reverse and remand.

Factual and Procedural Background

¶2 In 1992, the Harnes entered into a written contract with Deadmond for the construction of a new home in Jefferson County. The contract provided that Deadmond would deliver possession of the home to the Harnes by August 24,1992 and was contingent upon the Harnes’ obtaining financing. The Harnes obtained approval of the financing on July 8,1992 and moved into their substantially complete home on Labor Day weekend. During construction and after taking possession of the home, the Harnes reported several defects in the construction of the home. For example, a glulam beam in the basement was misplaced, a change in the stairway design resulted in less headroom than required by the building code, a living room wall appeared bowed, and the basement flooded as a result of the foundation and drainage design. The Harnes informed Deadmond of the problems and requested that he repair the defects. Deadmond asserted at trial that he responded by ordering the repair of several of the problems. However, the Harnes were unsatisfied with the results and filed suit against Deadmond asserting negligent construction, unfair trade practice in violation of the MCPA, breach of contract, fraud, deceit and punitive damages.

¶3 The matter proceeded to trial and after presenting four days of testimony, counsel began closing arguments. Defense counsel opened his argument by discussing the MCPA. He characterized the statutory scheme as having been passed by the Montana legislature to “get the scammers and the swindlers who are preying upon Montana consumers.” Plaintiffs’ counsel objected to this argument asserting that it was not an appropriate characterization of the law. The court overruled the objection. Defense counsel concluded his argument by asserting that he was representing Deadmond because Deadmond had built a house for his family fifteen years prior and did a good job. Plaintiffs’ counsel objected to defense counsel “testifying” and vouching for the veracity of his client. The District Court overruled the objection, and defense counsel continued to relate his personal experience with Deadmond. After a few minutes, plaintiffs’ counsel interrupted the argument again. This time the court instructed defense counsel that he had gone too far, that his time had expired, and that he must conclude his argument.

¶4 The jury returned a verdict in the amount of $7,000 in favor of the Harnes as a result of negligent construction by Deadmond. The jury, however, did not award damages under any of the remaining causes of action, including the MCPA. During post-trial motions, Deadmond requested an award of attorney fees as a result of his successful defense of the MCPA cause of action. The District Court entered an amended judgment awarding Deadmond attorney fees in the amount of $11,255. The Harnes appeal from the amended judgment, and the jury verdict. The Harnes present two issues on appeal:

1) Did the improper and prejudicial closing argument by Deadmond’s counsel constitute reversible error?
2) Did the District Court err in awarding attorney fees to Deadmond pursuant to the Montana Consumer Protection Act?

We conclude that the first issue is dispositive and thus do not reach the second issue.

Discussion

¶5 Improper argument requires reversal only when prejudice has resulted which prevented a fair trial. Moralli v. Lake County (1992), 255 Mont. 23, 32, 839 P.2d 1287, 1292 (citing Gunnels v. Hoyt (1981), 194 Mont. 265, 276, 633 P.2d 1187, 1194). The Harnes assert that the comments made by defense counsel during closing argument were so improper and prejudicial as to deprive them of a fair trial. The Harnes base their claim of prejudice on two arguments made by defense counsel.

¶6 First, during jury voir dire, defense counsel, in determining if any of the potential jurors knew him, stated that he served three terms in the Montana House of Representatives, the third year in a leadership position. Defense counsel then was able to tie this legislative experience into his closing argument. He began his argument with a discussion of the Montana Consumer Protection Act. The following discussion took place:

DEFENSE COUNSEL: Let me start by talking about the Consumer Protection Act. ... This is a law passed by the Montana legislature to get the scammers and the swindlers who are preying upon Montana consumers. Okay? It’s passed to get the bait and switchers. It’s passed to get those people who are out preying on, on people and trying to get their business inappropriately.
PLAINTIFFS’ COUNSEL: Your Honor, that’s not what the law says. So I would object on the basis that it’s not an appropriate representation of the law.
DEFENSE COUNSEL: I can argue the law, Your Honor.
COURT: Yes, go ahead.

Defense counsel then proceeded to tell the jury about an example he had heard of where:

people were coming through and they were telling elderly people that they were spraying some water coating on their roofs so their roofs wouldn’t leak. And they got up there, and they charged these people; and they sprayed just untreated water on the roof. Okay? That’s an example of scamming the consumer.... And I would just hate to see, if nothing else happens in the jury room, I would hate to see Mr. Deadmond have to have that on his record, that he was convicted of scamming consumers.

The Harnes assert that this portion of the closing argument by defense counsel was improper and prejudicial not only as a mischaracterization of the law, but also because it was clothed in defense counsel’s prior representation that he served in the legislature thus lending more credence to his statement as to what the legislature intended.

¶7 As further evidence of the prejudicial effect of these statements by defense counsel, the jury, after it had begun deliberations, sent a note to the court stating “[a]s to Instructions 8, 9, 13, and 14 [the MCPA instructions],we are uncertain what unfair trade practices entail. We need a layman’s term answer.” The only jury instruction which purported to define unfair trade practice was Instruction No. 8. Instruction No. 8 read as follows:

You are instructed that, under the Montana Consumer Protection and Unfair Trade Practices Act, an unfair or deceptive trade practice occurs when the injury satisfies three tests: It must be substantial; it must not be outweighed by any counterveiling [sic] benefits to consumers or competition that the practice produces; and it must be an injury that consumers themselves could not reasonably have avoided.

Although Instruction No. 8 addressed the type and scope of injury that must result from an unfair trade practice, it did not directly state what type of practice constitutes an unfair trade practice. Understandably, the jury was confused as to what exactly, in lay terms, constituted an unfair trade practice. Counsel could not agree on a clarification, so the District Court instructed the jurors that they were required to rely on the instructions given and the court would not instruct them further. The jury was thus left with defense counsel’s “scammer and swindler” argument as the only thing approximating a layman’s explanation.

¶8 The Harnes also argue that defense counsel obstructed their ability to obtain a fair trial by improperly characterizing the MCPA as a criminal offense by stating that he would hate to see Deadmond have it “on his record, that he was convicted of scamming consumers.” The Harnes sought a civil remedy under the MCPA. While Deadmond, if determined to be a violator of the act may have suffered civil penalties pursuant to § 30-14-142, MCA, or potential damage to his business, Deadmond would not “be convicted” or have “a record” as defense counsel implied.

¶9 The second alleged prejudicial statement occurred toward the end of defense counsel’s closing argument when the following statements were offered:

DEFENSE COUNSEL: About 15 years ago I was a young attorney out of law school. I’d hung out my shingle, and I went to work. And I didn’t make very much money. And my family was growing bigger than my practice was.
PLAINTIFFS’ COUNSEL: Objection, Your Honor. This is personal testimony not allowed in closing. He’s about to verify the veracity of Mr. Deadmond.
COURT: Oh, go ahead.
DEFENSE COUNSEL: Thank you, Your Honor. And I needed a house. So I went down to a local builder to see if he could build me just a basic square house. And he gave me a price, and it was too much, more than I could afford. Someone told me about Wendell Deadmond. And I looked up Wendell Deadmond and said, “Can you get me a house?” And he drew me a plan and a house that was affordable that I could get into. I’m still living in that house today. I’ve added onto it. And I’ve finished the basement, and my family’s still growing. But I’m living in that house today 12 years later. I’m his attorney today because I was first his customer those many years ago. Did I have defects in the house? Yeah, I did. I called him up. He sent someone out on several times to address this problem and that problem and this problem—
PLAINTIFFS’ COUNSEL: Your Honor—
DEFENSE COUNSEL: —and that problem.
COURT: Yeah, I think you’re going a little farther—
PLAINTIFFS’ COUNSEL: —it is testimony.
COURT: And your time’s up anyway.

The Harnes argue, as they did below, that defense counsel was improperly vouching for the credibility of his client by, in effect, “testifying” to the jury about his own favorable experience with Deadmond. This Court has not had occasion to examine the effect of counsel testifying regarding his own experience with his client; however, the Montana Rules of Professional Conduct clearly forbid this type of action by an officer of the court unless the attorney is acting as a witness. Rule 3.4, adopted to ensure fairness to the opposing party and counsel, states: “A lawyer shall not... in trial, ... assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant....” Rule 3.4, M.R.Prof.Conduct.

¶10 This Court has recognized the importance of Rule 3.4 in the context of a criminal proceeding. In State v. Stringer (1995), 271 Mont. 367, 897 P.2d 1063, we held that it is highly improper for the prosecutor to characterize either the defendant or witnesses as liars or offer personal opinions as to credibility. We recognized that when prosecutors make improper comments in the presence of the jury, “the prosecutor’s personal views inject into the case irrelevant and inadmissible matters or a fact not legally proved by the evidence, and add to the probative force of the testimony adduced at the trial the weight of the prosecutors’ personal, professional, or official influence.” Stringer, 897 P.2d at 1071-72. As a result, we warned, “[t]his Court has been unequivocal in its admonitions to prosecutors to stop improper comment and we have made it clear that we will reverse a case where counsel invades the province of the jury....” Stringer, 897 P.2d at 1072. The same principles apply in the civil context when counsel, using the weight of his personal, professional, or official influence, improperly offers his opinion as to the justness of a cause or the credibility of a witness, particularly when the witness is his own client. Defense counsel’s arguments to the jury in the present case violated the clear prohibition of Rule 3.4 and resulted in unfairness to the Harnes.

¶11 Civil cases reviewing misconduct by counsel, including improper statements during closing argument, have focused on whether the misconduct was cured by an instruction from the court. In Gunnels v. Hoyt, defense counsel, during closing arguments, improperly alluded to evidence not in the record. We determined that the subsequent instructions given by the district court prevented any prejudice that may have resulted to the plaintiff. Gunnels, 633 P.2d at 1194. We further concluded that the misconduct of defense counsel did not rise to the level of reversible error. Gunnels, 633 P.2d at 1195. Similarly, in Moralli, we held that misconduct by plaintiff’s counsel was “sufficiently cured by the District Court’s instruction regarding the comment.” Moralli, 839 P.2d at 1293. In this case, however, the District Court did not admonish or otherwise instruct the jury not to consider the improper arguments made by defense counsel. As a result, the jury was left to consider the improper arguments. We conclude that the arguments made by defense counsel were improper, prejudicial, and constitute reversible error. Reversed and remanded for a new trial.

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


author: CHIEF JUSTICE TURNAGE

text:
    KEN VENNES, Guardian ad litem for CHRISTINE VENNES, Plaintiff and Appellant, v. DAVID MILLER and BRUCE MILLER, Defendants and Respondents. DAVID MILLER, Third-Party Plaintiff, v. PEGGY VENNES, Third-Party Defendant.
    No. 97-626.
    Submitted on Briefs January 15, 1998.
    Decided February 10, 1998.
    1998 MT 23.
    55 St.Rep. 84.
    287 Mont. 263.
    954 P.2d 736.

      For Appellant: John Frohnmayer, Bozeman.
    For Respondents: Heidi Fanslow, Warden Christansen, Johnson & Berg, Kalispell (David Miller); Scott B. Spencer, Libby (Bruce Miller); Ann German, Libby (Peggy Vennes).
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

¶1 In this negligence action, the Nineteenth Judicial District Court, Lincoln County, granted summary judgment in favor of defendant David Miller. We affirm.

¶2 We restate the issue as whether the District Court erred in ruling that David Miller breached no duty to the injured party, Christine Vennes.

¶3 Three-year old Christine Vennes was bitten on the face by a dog owned by Bruce Miller. The incident occurred in the yard of a home which Bruce Miller rented from his father, David Miller. Christine’s father, Ken Vennes, filed this action on his daughter’s behalf against both Millers. David Miller responded with a third-party negligence claim against Peggy Vennes, Christine’s mother, who was caring for Christine when the dog bit her.

¶4 On cross-motions for summary judgment, the District Court granted judgment in favor of Christine against Bruce Miller and in favor of David Miller against Christine. The court certified the judgment in favor of David Miller as final for purposes of appeal pursuant to Rule 54(b), M.R.Civ.P. Christine appeals.

Discussion

¶5 Did the District Court err in ruling that David Miller breached no duty to Christine Vennes?

¶6 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.P. This Court’s review of an appeal from a summary judgment ruling is de novo. Estate of Strever v. Cline (1996), 278 Mont. 165, 170, 924 P.2d 666, 669.

¶7 Christine must prove the following elements to recover on her negligence claim against David Miller:

1. That David Miller owed a duty to her;
2. That he breached his duty to her;
3. That David Miller’s breach caused damages to her; and
4. That she suffered actual damages.

See Wiley v. City of Glendive (1995), 272 Mont. 213, 217, 900 P.2d 310, 312.

¶8 “Duty is the first element of a negligence claim and is a question of law.” Wiley, 272 Mont. at 217, 900 P.2d at 312. As her basis for asserting a breach of duty by David Miller, Christine cites Lincoln County’s dog control ordinance. Specifically, she argues that the dog that bit her, Mikey, was a vicious dog. Lincoln County Ordinance 7.1.601 prohibits keeping, harboring, or maintaining a vicious dog in Lincoln County unless the dog is securely and adequately confined upon its owner’s property or leashed on a line not more than six feet long. The parties’ depositions establish that Mikey was kept on a chain approximately ten feet long.

¶9 Under the Lincoln County ordinance, a “vicious dog” is a dog which bites or attempts to bite a human being without provocation or a dog which harasses, chases, bites, or attempts to bite any other animal. Lincoln County Ordinance 7.1.102(7). The ordinance’s definition of “vicious dog” further provides that “[t]he term animal includes] all livestock and any domestic pet.”

¶10 There is nothing in the record to indicate that before he bit Christine Mikey qualified as a vicious dog on the basis of having bitten or attempted to bite a human being. David Miller testified in his deposition that before Mikey arrived on the property, he asked the previous owner of the dog, his other son, if Mikey had ever bitten anyone. The answer was no. Bruce Miller testified in his deposition that Mikey was usually chained up in his yard, and that to his knowledge, Mikey had never bitten anyone either before or after he bit Christine.

¶11 Christine argues that Mikey was a vicious dog because he was a hunting dog, bred to chase other animals. However, the depositions establish that Mikey was bred to hunt mountain lions, not livestock or domestic pets. Under the definition of “vicious dog” set forth in the Lincoln County ordinance, the fact that Mikey was bred to hunt mountain lions did not establish that he was a vicious dog, because mountain lions are not livestock or domestic pets.

¶12 The District Court based its analysis on this Court’s opinion in Criswell v. Brewer (1987), 228 Mont. 143, 741 P.2d 418. In Criswell, a dog bite victim sued the dog’s owner and the owner of the ranch on which the dog’s owner worked and lived. We upheld summary judgment in favor of the ranch owner on the basis that the ranch owner was not the “keeper” of the dog and that the record indicated that the ranch owner met the duty of reasonable and ordinary care under the circumstances. In the present case, the District Court reasoned that, like the ranch owner in Criswell, David Miller was not the keeper of the biting dog, and that, in general, a nonresident property owner is not liable for injuries to others inflicted by a dog owned and maintained by the occupant of the property in question.

¶13 Christine argues that the District Court’s Criswell analysis is erroneous because of factual differences between this case and Criswell: i.e., David Miller could have required that Mikey be kept in a pen but didn’t, although he knew dogs could be dangerous to children and that dogs, in general, could bite; this case occurred in a residential area, unlike Criswell; and no statute or ordinance controlled in Criswell whereas here, the ordinance controlled. Christine also argues that in comparing this case to Criswell, the District Court erroneously referred to a City of Libby ordinance relating to persons who have “charge, care or control” of dogs, instead of the above Lincoln County ordinance.

¶14 In Criswell, we agreed with the district court that a landlord is not a “keeper” of a tenant’s dog because landlords do not “own, have possession of or ‘manage, control or care for an animal as owners are accustomed to do ...’ ” Criswell, 228 Mont. at 145, 741 P.2d at 420. In the present case, there is nothing to indicate that David Miller owned, had possession of, managed, controlled, or cared for Mikey. Therefore, nothing in the record indicates that David Miller was a “keeper” of Mikey. We hold that the above rifling from Criswell applies in this case, the arguments raised by Christine being inconsequential to that point.

¶15 Having reviewed the record, we conclude that the District Court correctly granted summary judgment in favor of David Miller. We therefore affirm the judgment of the District Court.

JUSTICES NELSON, GRAY, REGNIER and TRIEWEILER concur.