text:
    IN RE THE MARRIAGE OF CYNTHIA K. McDONALD, Petitioner and Respondent, and RUSSELL D. McDONALD, Respondent and Appellant.
    No. 93-144.
    Submitted on Briefs June 23, 1993.
    Decided November 10, 1993.
    50 St.Rep. 1411.
    261 Mont. 466.
    863 P.2d 401.

      For Respondent and Appellant: Gary A. Crowe, Kalispell.
    For Petitioner and Respondent: Mies Wm. Faerber, Kalispell.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Russell D. McDonald filed a motion in the District Court for the Eleventh Judicial District, in Flathead County, to set aside the parties’ dissolution decree which had been entered against him by default. Russell appeals from the court’s failure to grant the motion, which was deemed denied when the court failed to rule on it within 45 days pursuant to Rule 60(c), M.R.Civ.P.

We affirm.

The issue for this Court’s consideration is whether the District Court abused its discretion when it did not grant the motion to set aside the default decree.

On July 8,1992, Cynthia McDonald petitioned the District Court for dissolution of her marriage to Russell McDonald. Russell accepted service of process on July 9, 1992, but made no further appearance in the action. At Cynthia’s request, a default was entered against Russell by the Clerk of the District Court on August 4,1992.

Cynthia’s petition for dissolution requested that she be awarded custody of the parties’ minor child, Tyler» and further requested a specific division of the parties’ marital assets and debts. When Russell was served with notice of the petition for dissolution, he received a copy of these specific proposals. On October 14,1992, after Cynthia and her attorney presented evidence in support of the petition, the court entered a default decree in Cynthia’s favor, dissolving the parties’ six year marriage, and ordering custody, support, and division of the marital estate as requested by Cynthia. A copy of the decree was mailed to Russell on that same date.

Russell filed a motion to set aside the decree on December 11,1992, and requested the court to allow him to file a response to Cynthia’s petition for dissolution. The motion was filed pursuant to Rule 60(b), M.R.Civ.P, and the accompanying affidavit alleged that the decree had been obtained by Cynthia due to Russell’s mistaken beliefs and unconscious ignorance of the law. It also contained a request for joint custody and Russell’s claim that the division of the marital property was unconscionable.

After briefs were filed by both parties, the court held a hearing on January 21, 1993. However, the court did not rule on the motion within 45 days of the time it was filed and it was, therefore, deemed denied in accordance with Ride 60(c), M.R.Civ.R From this denial of his motion to set aside the decree, Russell appeals.

Did the District Court abuse its discretion when it did not grant Russell’s motion to set aside the default decree?

Russell contends that his motion was improperly denied because the court had not made a determination of whether there was excusable neglect justifying relief from the judgment and it failed to schedule an additional hearing to resolve this issue within 45 days from the date of his motion. Russell asserts that he was not provided with a sufficient opportunity to demonstrate to the court that he satisfied Rule 60(b)’s requirements regarding mistake, inadvertence, excusable neglect, or fraud. Russell also contends that the court lacked substantial evidence to support its property division order, and that it abused its discretion when it awarded sole custody of Tyler to Cynthia.

Rule 55(c), M.R.Civ.R, allows for the setting aside of a default judgment under the following circumstances:

For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).

Rule 60(b), M.R.Civ.R, states in pertinent part:

On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect... or (6) any other reason justifying relief from the operation of the judgment.

As noted in Rule 55(c), a default judgment may only be set aside “for good cause shown.” In Blume v. Metropolitan Life Insurance Company (1990), 242 Mont. 465, 791 P.2d 784, this Court clarified the standards which must be met by a defaulting party to establish such good cause. These criteria are: (1) the defaulting party proceeded with diligence; (2) the defaulting party’s neglect was excusable; (3) the defaulting party has a meritorious defense to the claim; and (4) the judgment, if permitted to stand, will affect the defaulting party injuriously. Blume, 791 P.2d at 786. We have also clearly stated that the burden of proof rests on the party seeking to set aside the default judgment. Slewing v. Pearson Co. (1987), 226 Mont. 458, 461,736 P.2d 120, 122.

Where a trial court fails to grant a motion to set aside a default judgment, the finding of even a slight abuse of discretion is sufficient to justify reversal of such an order. Empire Lath v. American Casualty (1993), 256 Mont. 413, 847 P.2d 276; Bd. of Directors Edelweiss Owners’ Assn. v. McIntosh (1991), 251 Mont. 144, 822 P.2d 1080. In this instance, after reviewing the record and considering the factors stated above, we conclude that the District Court did not abuse its discretion when it failed to grant Russell’s motion to set aside the default judgment.

On appeal, Russell urges this Court to consider the merits of the District Court’s decisions regarding custody and distribution of the marital estate. However, as we made clear inBlume, when reviewing the denial of a Rule 60(b) motion for the setting aside of a default judgment, the moving party must first satisfy the criteria for establishing good cause. Here, we conclude that Russell has failed to satisfy the threshold requirement of demonstrating excusable neglect which would justify setting aside the default decree.

In support of his motion to set aside the default judgment at the District Court level, Russell argued that he was not represented by counsel at the time the decree was entered and was under the mistaken opinion that he would have the opportunity to review an “agreement” prior to the finalization of the dissolution. Russell contended that he “was ignorant of the appropriate law under the circumstances [and]... was unconsciously ignorant of facts material to the contract.”

In In re Marriage of Castor (1991), 249 Mont. 495, 817 P.2d 665, we emphasized that “mistake,” “inadvertence,” and “excusable neglect” generally require some justification for an error beyond mere carelessness or ignorance of the law. Castor, 817 P.2d at 667 (citing Lomas and Nettleton Co. v. Wiseley (7th Cir. 1989), 884 F.2d 965, 967). After reviewing the record, we are not convinced that Russell’s mistaken beliefs or ignorance of the law rise to a level which would justify the setting aside of the decree.

The petition for dissolution which was served upon Russell contained very specific proposals for the distribution of the marital property and the care and custody of the minor child. Russell was also clearly informed that he had twenty days to respond to the petition. However, it is clear that at no time prior to the entry of the decree did Russell attempt either on his own, or with the advice of counsel, to express any objections he may have had to Cynthia’s proposals.

On appeal, Russell contends that he was not afforded an opportunity by the District Court to show that he had satisfied a showing of mistake, inadvertence, excusable neglect, or fraud. Although it is true that the court indicated it would schedule a continuation of the hearing in order to address the issues of custody and property distribution and did not do so, the burden was on Russell to initially support his Rule 60(b) motion with sufficient evidence to justify setting aside the decree. The record demonstrates that Russell did have ample opportunity to present his written arguments to the court and to testify at the January 21,1993, hearing in this regard.

We conclude that Russell failed to establish excusable neglect, mistake, or any other reason which would justify relief from the operation of the default judgment. We hold the District Court did not abuse its discretion when it did not grant Russell’s motion to set aside the default decree.

Affirmed.

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


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    DAVID ELLIOTT FIFE, Petitioner and Appellant, v. PATRICIA LEE MARTIN, Respondent and Respondent.
    No. 93-248.
    Submitted on Briefs September 30, 1993.
    Decided November 10, 1993.
    50 St.Rep. 1414.
    261 Mont. 471.
    863 P.2d 403.

      For Petitioner and Appellant: Paul Neal Cooley, Skelton & Cooley, Missoula.
    For Respondent: John McRae, Child Support Enforcement Division, James P. Taylor, Missoula; and Lynn M. Grant, Child Support Enforcement Division, Helena.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Petitioner David Fife brought this action seeking judicial review of the Department of Social and Rehabilitation Services, Child Support Enforcement Division’s (CSED’s), order which required him to submit to blood testing for purposes of establishing paternity. The District Court for the Fourth Judicial District, Missoula County, denied Fife’s petition for failure to properly serve CSED with a copy of the petition, as required by the provisions of the Montana Administrative Procedure Act. After petitioner moved for relief from the court’s order, the court found that he served neither the Attorney General nor CSED as required by law, and dismissed the action with prejudice. Petitioner appeals from that ruling. We affirm.

The pertinent issues are rephrased as follows:

1. Whether CSED is a necessary party to an action for judicial review of its administrative paternity hearing and subsequent order;

2. Whether, in an action for judicial review of an agency decision, service of process is valid when the petitioner fails to serve the agency properly and promptly after filing the petition for review;

3. Whether a district court may dismiss an action for judicial review of an agency decision for failure of the petitioner to validly serve process, when the court has not received a responsive pleading from the agency involved.

Patricia Lee Martin (Patricia), a single mother, gave birth to B.J.M. on September 30, 1981. Approximately ten years later, she applied for public assistance under the Aid to Families with Dependent Children program, and named David Elliot Fife (David) as B. J.M.’s father. As part of the application process she assigned all of her rights to collect delinquent, future and present child support obligations from the putative father to the State of Montana, Department of Social and Rehabilitation Services.

CSED thereafter sought enforcement of its assigned rights by attempting to establish the paternity of B.J.M. It sent David a notice of parental responsibility, and then set a date for an administrative hearing on the matter.

David in return moved the agency to dismiss the action, challenging the constitutionality of CSED’s process to determine paternity by compelled blood drawings. Acknowledging that constitutional issues cannot be determined in CSED’s administrative forum, the hearing examiner denied David’s motion. Following the hearing, the hearing examiner concluded there was sufficient evidence to demonstrate a reasonable probability that David may be the father of B.J.M., and ordered David to submit to paternity blood testing.

OnNovember 19,1992, Davidmoved CSED to stay its decision and transmit the administrative record to the Fourth Judicial District Court, Missoula County, where he planned to file a petition for judicial review. On November 23,1992, CSED responded by denying David’s motion on the grounds that CSED had not been served with a petition for judicial review of its administrative hearing order.

David thereafter filed a petition for judicial review at the District Court on November 25, 1992. He later (on or about November 30, 1992) mailed copies of the petition to both Patricia and CSED. In his petition, David named Patricia as the sole respondent.

On December 3,1992, David sent notice that he had filed a petition for judicial review to the administrative hearing examiner, CSED, and Patricia. The notice stated that a copy of the petition was “attached to the original [petition for judicial review],” which had been previously mailed to CSED and to Patricia.

CSED filed a copy of the transcript and administrative hearing record with the court; it neither answered the mailed petition for judicial review or the notice of filing nor appeared in court. Subsequently, David obtained and sent a summons to CSED and Patricia. He also sent an acknowledgement of service form to each of those parties on January 11, 1993. However, CSED did not accept service of process or acknowledge service of the summons and complaint as required by Rule 4D, M.R.Civ.P.

Prior to trial, the court reviewed the record and David’s petition and dismissed the action on the grounds that CSED had not been properly named nor served with process. The court also denied David’s motion to stay the agency’s decision.

David moved for relief from the order of dismissal on February 8, 1993, arguing, among other things, that the court should not have reviewed the administrative hearing record, that the order deprives him of his day in court, and that CSED was not a necessary party to the proceedings before the court. In its response, CSED agreed with the court’s holding that David had failed to properly serve the parties involved in the action.

By order dated March 23, 1993, the court reiterated its previous ruling, and also found that David had failed to serve the Attorney General’s Office. David appeals.

I

Is CSED a necessary party to an action for judicial review of its administrative paternity hearing and subsequent order?

In his petition for judicial review, David named Patricia as the sole respondent. His present argument, which is not specific, is that he could not properly serve the State because the case had already been dismissed in the District Court. Additionally, he asserts that “[n]either the State nor CSED were parties before the Administrative Hearing Examiner.” In the same paragraph of his brief, he contrarily states that “CSED, however, did represent [Patricia’s] interests.”

David’s arguments are not persuasive. Patricia had assigned her child-support collection rights over to CSED as part of the Aid to Dependent Families with Children application process. CSED is the real party in interest in the paternity action and in the underlying attempt to recover payment of child support benefits from the putative father of B.J.M. See § 40-5-232, MCA. Immediately prior to the hearing, the hearing examiner correctly gave notice to the parties that CSED was the real party in interest, by stating

[s]ection 40-5-232 of the Montana Code states that if the paternity of child has not been established, the Department [CSED] may proceed to establish the paternity administratively as allowed by Section 40-5-231 through 40-5-237 Montana Code Annotated. [Emphasis supplied],

CSED initiated proceedings to determine paternity; Patricia was merely assisting the agency in determining the identity of B.J.M.’s father. See §§ 40-5-202 and -204, MCA. Moreover, the record reveals that David, CSED and Patricia were all represented in their individual capacities during the administrative hearing. This cumulative evidence leads us to conclude the District Court did not err in ruling that CSED was the real party in interest.

II

In an action for judicial review of an agency decision, is service of process valid when the petitioner fails to serve the agency properly and promptly after filing the petition for review?

David argues that he served all of the parties of record by mailing copies of the petition of judicial review to CSED and Patricia, and that the District Court should have added CSED as a party to the action. He asserts the court’s order denies him of his day in court based merely on a technicality. CSED argues that it was never validly served, and therefore the District Court was without jurisdiction to try the case. We agree with CSED.

As discussed above, CSED, the real party in interest, was the proper respondent to David’s petition for judicial review. David failed to properly name CSED as the respondent in his petition for judicial review, and he failed to properly serve the agency as required by § 2-4-702, MCA. That section required David to serve copies of the petition promptly upon “the agency and all parties of record.” Construing the language of § 2-4-702, MCA, this Court has stated

service of a petition for judicial review within thirty days, or thereabouts, from the time the petition was filed in the District Court should not result in a dismissal [for failure to comply with § 2-4-702(2)(a), MCA]. ...

Rierson v. State (1980), 188 Mont. 522, 528, 614 P.2d 1020, 1024.

Judicial review of administrative actions exists as a creature of statute. Section 2-4-702, MCA, provides for judicial review of an administrative agency decision only after certain procedures have been followed. The procedures comprise a jurisdictional threshold which must be met in order to vest authority in a district court. See generally Nye v. Dep’t of Livestock (1982), 196 Mont. 222, 226, 639 P.2d 498, 500, citing Art. VII, § 4, Mont.Const. Service of process upon CSED must be made as required by Rule 4D(2)(h), M.R.Civ.P, which provides that when serving process upon any state board or agency, a party needs to deliver a copy of the summons and complaint to the Attorney General and to any other party which maybe prescribed by statute.

David filed the petition on November 25,1992. By mailing a copy of the petition to CSED and Patricia, he did not effectuate valid service of process because Rule 4D(2)(h), M.R.Civ.P., does not provide for service by mail upon CSED and because he failed to serve the Attorney General’s Office. We conclude David did not effectuate valid service of process as required by law, and the District Court correctly held that it was without jurisdiction to hear the case.

Ill

May a District Court dismiss an action for judicial review of an agency decision for failure of the petitioner to validly serve process, when the court has not received a responsive pleading from the agency involved?

David argues that the court dismissed the action before CSED filed a responsive pleading in the matter. He contends the court is without authority to issue an order, when no party specifically requested the order. Additionally, David alleges that § 40-5-236(3), MCA, gave the court jurisdiction in this matter and that the court obtained personal jurisdiction over CSED through its voluntary appearance. His arguments are without merit.

Failure to make proper service of process prevents the court from obtaining jurisdiction in a case. See generally In Re Marriage of Fonk and Ulsher (1993), [260 Mont. 379], 860 P.2d 145, 146-47, 50 St.Rep. 1112, 1113. When David failed to validly serve process upon the agency and the State of Montana, he prevented the District Court from obtaining jurisdiction over the action. The cotut is not required to wait for a party who has not been properly served to file a responsive pleading prior to dismissing the action for lack of jurisdiction.

Because the District Court did not have jurisdiction over CSED, the petition for judicial review was a mere nullity and was properly dismissed. We conclude the District Court did not err in dismissing the case.

Affirmed.

JUSTICES HARRISON, TRIEWEILER, GRAY and WEBER concur.


author: JUSTICE NELSON

text:
    JOHN T. MORAN, Plaintiff and Respondent, v. R. CHARLES ROBBIN and CHARLOTTE ROBBIN, and all other persons, unknown, claiming or who might claim any right, title, estate, or interest in or lien or encumbrance upon the real property described in the complaint adverse to plaintiff’s ownership or any cloud upon plaintiff’s title thereto whether such claim or possible claim be present or contingent, Defendants and Appellants.
    No. 93-330.
    Submitted on Briefs September 30, 1993.
    Decided November 10, 1993.
    50 St.Rep. 1417.
    261 Mont. 478.
    863 P.2d 395.

      For Defendants and Appellants: Dirk Larsen, Larsen & Neill, Great Falls.
    For Plaintiff and Respondent: Keith W. McCurdy, McCurdy Law Firm, Poison.
   JUSTICE NELSON

delivered the Opinion of the Court.

Defendants appeal an order of the Twentieth Judicial District Court, Lake County, granting plaintiff’s motion for summary judgment and upholding the validity of a tax deed issued to plaintiff. We reverse.

Although numerous issues were raised by the parties, we find two issues dispositive in this case:

1. Did the plaintiff “abandon” his mailed notice of pending tax deed issuance when he subsequently published notice of such pending tax deed issuance?

2. Did the plaintiff file a proper proof of notice following the publication of notice of pending tax deed issuance?

The defendants, R. Charles and Charlotte Robbins (the Robbins) owned real property in Lake County, Montana, approximately one mile north of Yellow Bay on the east shore of Flathead Lake. The real property included 6.68 acres of land with 285 feet of lake shore. It also included a cheriy orchard, family residence, garage, storage building, and cherry warehouse. The value of the lake shore frontage itself is estimated at between $285,000 and $570,000.

The Robbins had a history of paying their real property taxes late and a tax deed had issued on the property in 1980, but the Robbins subsequently regained title. However, the Robbins again fell behind in paying their real property taxes. On June 4,1990, the Robbins paid the 1987 and 1989 real property taxes. The taxes for 1988 remained unpaid at that time.

On June 22, 29, and July 6, 1989, the Lake County Treasurer published a Delinquent Tax Sale Notice stating that all properties with delinquent 1988 taxes would be sold at public auction on July 20, 1989. On July 21, 1989, the Robbins’ property was struck off to Lake County as purchaser and a Certificate of Tax Sale was issued.

On Januaiy 21, 1992, the plaintiff, John T. Moran (Moran), paid the Lake County Treasurer $3,208.76 for payment of the 1988,1990, and 1991 taxes, penalties, and interest due on the real property and received an assignment of duplicate Certificate of Tax Sale from Lake County. On July 17, 1992, Moran sent a notice of pending tax deed issuance to the Robbins by certified mail, return receipt requested. This letter stated that the redemption period expired on September 20, 1992. On August 9, 1992, the certified letter was returned to Moran as unclaimed. Moran filed the returned certified mail envelope with the Lake County Clerk and Recorder on August 24,1992.

Moran then published a notice of pending tax deed issuance in the Lake County Leader, the local newspaper, on August 27 and September 3,1992. This notice stated that the redemption period expired on October 26, 1992. On October 26, 1992, Moran applied for and received a tax deed on the subject real property.

On October 29,1992, the Robbins sent the Lake County Treasurer payment for the first half of the real property taxes for 1992. The treasurer refused payment and sent the Robbins a letter informing them that Moran had taken a tax deed on the property.

On November 9,1992, after the tax deed had been issued, Moran filed an Affidavit of Publication of the Notice of Pending Tax Deed Issuance with the Lake County Clerk and Recorder, and filed a complaint to quiet title to the real property. Both parties moved for summary judgment and, on May 13,1993, the District Court granted summary judgment in favor of Moran, upholding the validity of the tax deed. From this order, the Robbins appeal.

Our standard of review relating to conclusions of law is whether the trial judge’s interpretation of the law is correct. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.

Initially, we note that the law applicable to issuing a tax deed, Title 15, Chapter 18, Part 2, MCA, was substantially revised by the 1987 Legislature. Ch. 587 L. 1987. There has been minimal case law interpreting the new statutes since that time. However, much of the case law decided prior to 1987 is helpful in interpreting the revised statutes. And, the theories behind the strict statutory requirements applicable to tax deed proceedings remain intact.

Every essential and material step required by the tax deed statutes must be strictly followed. Stanford v. Rosebud County (1991), 251 Mont. 128, 134, 822 P.2d 1074, 1077-78. Strict compliance with the statutes is required because the owner risks losing his or her real property for the failure to pay the property taxes. Often, very valuable property is lost for a mere pittance. Indeed, in this case, property worth hundreds of thousands of dollars was “lost” after Moran paid less than $3500 in delinquent taxes, penalties, and interest.

The proceedings are to a large extent ex parte, the owner is an unwilling party, is seldom, if ever, present at the sale, is generally ignorant of it, and the tax almost always bears a very small proportion to the value of the property sold. Upon these considerations it has generally been held that proceedings on tax sales should strictly comply with the statute. ...

Rush v. Lewis & Clark County (1908), 36 Mont. 566, 569, 93 P. 943, 944.

A critical element in the process of applying for a tax deed requires the giving of notice by the tax deed applicant to the owner of the real property. The giving of notice is jurisdictional; if the legal requirements with respect to notice are not complied with, a county treasurer may not legally issue a tax deed. Adkins v. Redeye (1981), 196 Mont. 114, 1 19, 639 P.2d 485, 487. In determining the sufficiency of the tax deed proceedings, the record alone is to be considered, and the county treasurer must ascertain from the documents filed as proof of notice whether the required notice has been given. See King v. Rosebud County (1981), 193 Mont. 268, 277-78, 631 P.2d 711, 716-17. A tax deed issued without the required proof of notice is void. See Perry v. Maves (1951), 125 Mont. 215, 217, 233 P.2d 820, 821.

With these principles in mind, we now review the procedural steps which lead up to the tax deed issuance in this case.

I — ABANDONMENT OF MAILED NOTICE

The Robbins contend that Moran “abandoned” his mailed notice of pending tax deed issuance when he subsequently published notice of that pending tax deed issuance. We agree.

In this case, Moran mailed a notice of pending tax deed issuance to the Robbins at the address contained in the county records of the county clerk. In that notice, Moran stated that the redemption date expired on September 20, 1992. When that letter was returned as unclaimed, Moran then chose to publish notice of the pending tax deed issuance. In that published notice, Moran stated that the redemption date expired on October 26,1992.

When Moran mailed the notice of pending tax deed issuance, he complied with the statutory notice requirement. However, Moran went a step further and elected to publish notice. The published notice had a different redemption date than the mailed notice. Under these facts, and without reaching the issue of whether Moran was required to publish notice after the mailed notice was returned unclaimed, we hold that the first notice was abandoned because of the difference in the redemption dates. There cannot be two redemption dates for the same tax deed property. Persons with a right to redeem have the right to rely on the date given in the notice, and to allow the tax deed applicant to use conflicting redemption dates would create confusion. It is reasonable to assume that Moran intended to give the Robbins additional time in which to redeem when he changed the redemption date in the published notice. Therefore, we hold that when Moran elected to pubhsh notice and lengthened the redemption date, the first notice was effectively abandoned and the second published notice and redemption date controlled.

II — PROOF OF NOTICE

The Robbins also argue that Moran failed to file a proper proof of notice following the service of notice of pending tax deed issuance, as required by statute. We agree.

Section 15-18-212(7), MCA, provides:

Proof of notice in whatever manner given must be filed with the county clerk. If the purchaser or assignee is other than the county, the proof of notice must be filed with the county clerk within 30 days of the mailing or publishing of the notice. If the purchaser or assignee is the county, the proof of notice must be filed before the issuance of the tax deed under this chapter. Once filed, the proof of notice is prima facie evidence of the sufficiency of the notice.

Based on our holding above, the published notice controls for purposes of this statute.

We note that, under the prior law, an affidavit was required to satisfy the proof of notice requirement. Under the new statute, an affidavit is not required, but the reasoning behind the requirement that a proof of notice, “in whatever manner given,” be filed remains clear: the giving of notice is jurisdictional, and unless the statutory requirements with respect to such notice are met, a tax deed may not issue. Yellowstone Inv. & Dev. Co., Inc. v. Yellowstone County (1982), 201 Mont. 290, 294, 654 P.2d 508, 511; Long v. Dillon (1984), 208 Mont. 490, 495, 679 P.2d 772, 775. As stated earlier, the county treasurer must be able to look to the record itself to determine whether the proof of notice has been filed. King, 631 P.2d at 716-17. In this case, Moran had a discussion with a Lake County Deputy Treasurer in which Moran “advised” the treasurer that he had mailed notice and published notice. Discussions between the treasurer and the tax deed applicant do not satisfy the statutory requirement that proof of notice be filed. In fact, there was no proof of the published notice on file at the time the tax deed was issued.

As pointed out above, § 15-18-212(7), MCA, requires that the proof of notice be filed within thirty days after the mailing or publishing of the notice. We have previously held that Moran abandoned the mailed notice when he published notice with a different redemption date. Therefore, Moran was required to file proof of notice within thirty days after publishing the notice. In this case, notice was published on August 27 and September 3, 1992. Clearly, when Moran filed the Affidavit of Publication of the Notice of Pending Tax Deed Issuance prepared by the Lake County Leader’s clerk on November 9, 1992, the thirty day period in which to file the proof of notice had expired.

However, Moran argues that § 15-18-212(3)(a) and (b), MCA, are curative statutes, wherein Moran is allowed 120 days to cure his failure to file proof of notice pursuant to § 15-18-212(7), MCA. We agree that § 15-18-212(3)(a) and (b), MCA, allows the non-county purchaser or assignee of a tax sale certificate to give notice of a pending tax deed issuance and to file the proof of notice within 120 days after the county treasurer notifies the purchaser or assignee of the requirement to do so.

We cannot agree, however, that this statute allows a purchaser or assignee to “cure” defects in filing the proof of the notice after the tax deed has been issued. The plain language of § 15-18-212(3)(b), MCA, which, on failure of the purchaser or assignee to file proof of notice, requires the treasurer to “cancel the property tax lien evidenced by the tax sales certificate or assignment,” directly counters such conclusion. More importantly, in this case, the treasurer never gave the contemplated notice, in any event.

Although the previous statutes specifically stated that no tax deed could issue prior to the filing of the proof of notice and the new statutes do not so specify, the reasoning behind the filing requirement remains intact. If a tax deed is issued by the treasurer without proof on file in his or her office that notice has been given as required by the statute, the deed is void. Stanford, 822 P.2d at 1078.

In this case, the treasurer issued the tax deed on October 26, 1992, and no proper proof of notice was on file at that time, such proof not being filed ■until November 9, 1992. There was, accordingly, no way, based on a review of the record, that the treasurer could determine that the statutory notice had been given to the property owners by the tax deed applicant as required by § 15-18-212, MCA. To the contrary, however, if Moran had timely filed the proof of notice in accordance with the statute, the proof would have necessarily been on file when the tax deed was issued. Therefore, the treasurer was without jurisdiction to issue the tax deed, and the tax deed which was issued prior to the time the statutorily-required proof of notice was filed is void ab initio. See Perry, 233 P.2d at 821.

Because no valid tax deed has been issued, the Robbins’ right to redeem the property has not terminated. See Walters v. Kruse (1986), 219 Mont. 386, 389, 712 P.2d 780, 782; Section 15-18-111(1), MCA.

Again, we reiterate the importance of strictly complying with all statutory requirements in tax deed proceedings. If the statutory procedures are not strictly followed, a tax deed will not stand under judicial scrutiny.

Reversed.

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


author: JUSTICE TRIEWEILER

text:
    HAROLD and MARY HAGEN, d/b/a HAGEN WESTERN FISHERIES, Plaintiffs and Appellants, v. DOW CHEMICAL COMPANY and MADISON COUNTY WEED MANAGEMENT DISTRICT, a political subdivision of the State of Montana, Defendants and Respondents.
    No. 93-011.
    Submitted on Briefs March 18, 1993.
    Rehearings Denied Dec. 16, 1993.
    Decided November 12, 1993.
    50 St.Rep. 1421.
    261 Mont. 487.
    863 P.2d 413.

      For Plaintiffs and Appellants: Gig A. Tollefsen, Berg, Lilly, Andriolo, & Tollefsen, Bozeman.
    For Respondents: Robert M. Carlson, Corette, Pohlman, Allen, Black & Carlson, Butte, (Dow Chemical); James T. Harrison, Jr. and James C. Cumming, Harrison, Loendorf & Poston, Helena (Madison County Weed District).
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Harold and Maiy Hagen filed suit in the District Court for the Fifth Judicial District in Madison County, to recover damages sustained when over 8000 pounds of fish died subsequent to the Madison County Weed Management District’s application of a weed poison adjacent to the ditch which supplied water to the Hagens’ fish farm. The Hagens appeal from the District Court’s order granting summary judgment in favor of the Weed District and Dow Chemical Company. The District Court concluded that the Hagens failed to submit sufficient evidence to establish that exposure to the weed poison caused the death of the fish.

We reverse.

The following issues are presented:

1. Did the court err when it granted summary judgment in favor of the defendants on the basis that, as a matter of law, there were no genuine issues of material fact regarding the cause of plaintiffs’ damages?

2. Did the court err when it granted summary judgment in favor of Dow Chemical on the claim for punitive damages on the basis that there were no issues of material fact regarding actual fraud or malice on the part of Dow?

On July 12 and July 20,1989, the Madison County Weed Management District sprayed a mixture of Tordon 22K, manufactured by Dow Chemical, and 2,4-D adjacent to the ditch which was the water supply of the Hagens’ fish farm near Sheridan, Montana. On the afternoon of July 21, 1989, a heavy rain washed some of this weed poison into the ditch and ultimately into the tanks at the Hagens’ fish farm. Within hours of the rainstorm, more than 8000 pounds of rainbow trout had died. During the next few weeks, more of the fish turned black, lost their mucous tissue, became blind, and eventually died.

The Montana Department of Agriculture was requested to investigate this unexplained fish kill. After performing autopsies on some of the fish and analyzing soil and vegetation samples, the Department concluded that the fish had been exposed to the weed poison, and cited the Weed District for violating Montana’s pesticide application law. Although the Department did not find conclusive evidence that the fish were killed due to toxicity from 2,4-D and picloram (the active ingredient of Tordon), it did not rule out the possibility that mortality was caused by sublethal levels of the weed poison acting in combination with other stresses. The autopsies performed by the Department revealed no signs of disease in the dead fish.

Harold Hagen investigated to determine whether such things as improper tank maintenance, disease, or lack of oxygen had caused the fish kill. He also conducted tests in which fish were exposed to the same mixture of weed poison that had been applied by the Weed District. He observed that the test fish exhibited similar symptoms prior to death as did the trout at the fish farm, and based on his evaluation of conditions at the fish farm, concluded that the only probable cause of this incident was exposure to lethal levels of the weed poison. He also hired an independent aquatic testing laboratory, Keeton Fisheries Consultants, to conduct further tests to evaluate the effect of the weed poison on trout. Based on its observations of lethal levels of picloram over different periods of exposure, Keeton Fisheries recommended that Tordon not be used where it could contaminate fish culture facilities.

On April 18,1990, the Hagens filed suit in District Court to recover damages, alleging that all of their fish stock (in excess of 15,000 pounds) were either killed or rendered unsuitable for commercial use. The Hagens claimed that the cause of the damage to their fish was the herbicide mixture which washed into the water source for their fish farm after a heavy rainstorm on July 21,1989.

Pursuant to § 7-22-2111, MCA, the Hagens alleged that the Weed District acted with gross negligence when it applied the weed poison in an area that was a “no spray” zone and allowed it to enter the Hagens’ water supply. The Hagens sued Dow Chemical Corporation for negligence in representing that the weed poison was not dangerous to fish and could be applied in the manner that it was applied by the Weed District. They also sued Dow under a theory of product liability for failure to warn, and for punitive damages pursuant to § 27-1-221, MCA, based upon the allegation that it willfully disregarded the high probability of substantial injury to fish and human populations.

Both defendants moved for summary judgment, and the Hagens followed with a motion for summary judgment against the Weed District. After a hearing on October 13, 1992, the court issued its order and memorandum in which it granted the defendants’ motions for summary judgment on the ground that the evidence presented was not sufficient to allow a jury to find that the weed poison caused the damage to the fish. It also granted summaiy judgment in favor of Dow on the claim for punitive damages on the ground that the Hagens failed to submit proof of actual fraud or malice by Dow. From this order, the Hagens appeal.

STANDARD OF REVIEW

Summary judgment is an extreme remedy which should not be granted when there is any genuine issue of material fact; the procedure should never be substituted for trial if a material factual controversy exists. Rule 56(c), M.R.Civ.P.; Cereck v. Albertson’s, Inc. (1981), 195 Mont. 409, 637 P.2d 509; Reaves v. Reinbold (1980), 189 Mont. 284, 615 P.2d 896.

The party seeking summary judgment has the burden of demonstrating a complete absence of any genuine factual issues. D’Agostino v. Swanson (1990), 240 Mont. 435, 442, 784 P.2d 919, 924. In light of the pleadings and the evidence before the court, there must be no material issue of fact remaining which would entitle the nonmoving party to recover. Marriage of Hoyt (1985), 215 Mont. 449, 454, 698 P.2d 418, 421. The party opposing summary judgment must present material and substantial evidence, rather than merely conclusory or speculative statements, to raise a genuine issue of material fact. B.M. by Berger v. State (1985), 215 Mont. 175, 179, 698 P.2d 399, 401.

This Court reviews an order for summary judgment by utilizing the same criteria used by a district court initially under Rule 56, M.R.Civ.P. Minnie v. City of Roundup (1993), 257 Mont. 429, 849 P.2d 212, 214, 50 St. Rep. 342, 343. Furthermore, on review, all reasonable inferences that might be drawn from the offered evidence should be drawn in favor of the party opposing summary judgment. Cereck, 637 P.2d at 511.

I.

Did the court err when it granted summary judgment in favor of the defendants on the basis that there were no genuine issues of material fact regarding the cause of plaintiffs’ damages?

It is well established that issues of negligence are generally not susceptible to summary judgment and are better determined at trial. Brohman v. State (1988), 230 Mont. 198, 749 P.2d 67. However, this Court has made clear that summary judgment is proper if a plaintiff fails to submit evidence which would establish an element material to his negligence action. U.S. Fidelity & Guaranty Co. v. Camp (1992), 253 Mont. 64, 831 P.2d 586; Dvorak v. Matador Service, Inc. (1986), 223 Mont. 98, 727 P.2d 1306.

In this instance, the District Court determined that the Hagens faded to establish liability for negligent conduct on the part of either the Weed District or Dow Chemical because the Hagens “failed to prove that the fish death was caused by any defect in Dow’s product or any actions or inactions of Dow or Madison County.” The court concluded that there was not sufficient evidence in the record to raise an issue of fact on the question of causation, and therefore, ruled that plaintiffs could not maintain an action for strict liability or negligence.

Dow Chemical and the Weed District assert that the court was correct in reaching this conclusion because the Hagens offered no admissible expert opinion testimony that the weed poison definitively caused or contributed to the death of the fish. Dow contends that expert testimony regarding causation is crucial and since the Hagens’ experts could only speculate on the issue of causation, summary judgment was proper. Dow contends that the Hagens failed to meet their burden of proof regarding causation because their case was based only on circumstantial evidence. In contrast, Dow offered the direct testimony of an expert who claimed that the cause of death was not its product Tordon, but rather was due to reduced oxygen availability caused by the obstruction of water flow in the tanks at the fish farm.

The Weed District also contends that the Hagens failed to establish a cause of action under § 7-22-2111, MCA, because there is no evidence in the record of a willful act on the part of the Weed District which could constitute gross negligence. The Weed District asserts that there is no proof that it sprayed in the area of the ditch, in 1989 or previously, knowing it to be a “no spray” zone. Nor is there any factual evidence that the Weed District was ever put on notice of the Hagens’ concern about spraying in the vicinity of the fish farm, or of other incidents of fish kills that the Hagens now claim occurred subsequent to the application of herbicides in previous years.

It is clear from the District Court’s summary judgment order and memorandum that it based its decision solely on a determination that there was no factual evidence upon which the jury could determine that the weed poison caused the fish to die. Therefore, the first issue before this Court is whether there is a complete absence of any genuine factual dispute on the question of causation. Even if the defendants have offered significant evidence to contradict the evidence offered by the Hagens, or in the case of the Weed District, offered evidence to dispute the claim of gross negligence, at this juncture our inquiry is simply whether the Hagens have produced sufficient evidence from which it can be reasonably inferred that the weed poison, applied by the Weed District and containing Dow’s product, caused the Hagens’ injuries.

After reviewing the record and considering the standard of review outlined above, we conclude that the Hagens did raise genuine issues of material fact regarding the cause of their damages and that this case does not fall into the category that allows the court to determine the absence of liability as a matter of law. Therefore, we hold that summary judgment was not appropriate in this instance.

This Court has adopted a flexible standard of proof on causation which may be met by circumstantial, as well as direct, evidence. Brothers v. General Motors Corp. (1983), 202 Mont. 477, 658 P.2d 1108; Brown v. North American Mfg. Co. (1978), 176 Mont. 98, 576 P.2d 711. Although a plaintiff does not meet his burden of proof by merely establishing that an incident occurred, it is well established that in actions dealing with product Lability, sufficient evidence to make a prima facie case may consist of establishing the circumstances of the incident, similar occurrences under similar circumstances, and elimination of alternative causes. Brothers, 658 P.2d at 1110. Also, courts in other jurisdictions have long accepted circumstantial evidence as an acknowledged basis for estabbshing causation in chemical poisoning cases because of the inherent difficulty in offering direct proof in these situations. See, e.g., Harrison v. Whitt (Wash. App. 1985), 698 P.2d 87; Wing v. Clark’s Air Service, Inc. (Idaho 1984), 683 P.2d 842; Thomas Helicopters, Inc. v. San Tan Ranches (Idaho 1981), 633 P.2d 1145; Branco Eastern Co. v. Leffler (Colo. 1971), 482 P.2d 364; Chickasha Cotton Oil Co. v. Hancock (Okla. 1957), 306 P.2d 330.

The record in this case discloses that the Hagens offered evidence that the Weed District applied a mixture of Tordon and 2,4-D to roadside weeds in the vicinity of the Hagens’ fish farm on two dates in July, one of which was the day before the fish died. There was also evidence that the fish had been exposed to the weed poison at the time of death. The investigation and testing by the Department of Agriculture demonstrated movement of the herbicide mixture from its point of application to the ditch, and ultimately into the fish tanks, immediately after the rainstorm on July 21, 1989. And the evidence was undisputed that within hours of the rainstorm which washed the herbicide into the fish tanks, over 8000 pounds of trout were dead or dying.

Autopsies performed on the fish by the Department revealed the presence of 2,4-D in the dead fish. However, Dow contends that since no picloram, the active ingredient in its product, was detected in the dead fish, there is no material factual issue in relation to the cause of action brought against Dow. Dow argues that without proof that the fish were exposed to picloram, the Hagens cannot establish liability on the part of Dow. There is evidence in the record, however, that picloram does not bioaccumulate in organic matter in the same fashion as 2,4-D. Therefore, the Hagens contend it can be inferred that since the fish were exposed to certain levels of 2,4-D, they were likewise exposed to the picloram that was in the herbicide mixture. Viewing this evidence in the light most favorable to the Hagens, as the party opposing summary judgment, it can be reasonably deduced that the fish were exposed to Dow’s product.

Furthermore, there is evidence in the record that test fish died when exposed to a similar herbicide mixture containing picloram, and that these fish exhibited the same symptoms prior to death as did the fish at the Hagens’ fish farm. Evidence was also presented that sublethal concentrations of these herbicides could be toxic due to the synergistic effects of mixing these ingredients, or the effect of these toxins in combination with natural stresses that the fish populations were subjected to. Although the parties’ various experts dispute the validity or applicability of some of this evidence, the credibility and weight to be given to such evidence is a matter to be resolved by the trier of fact, and is not a question of law. State v. Medina (1990), 245 Mont. 25, 34, 798 P.2d 1032, 1038.

The record also reveals factual disputes about possible causes of death other than exposure to toxic levels of the herbicide mixture. The Hagens contend that other causes were eliminated, while Dow’s experts assert that the cause of death was oxygen deprivation resulting from reduced water flow in the tanks. However, there was direct testimony from the caretaker who first discovered the dead fish that there was no shortage of water in the tanks at the time the fish died, and therefore, no lethal shortage of oxygen. Because of such contradictory evidence, the exact cause of death under the circumstances of this case constitutes a material question of fact.

Considering this evidence in its entirety, despite the fact that there is evidence to the contrary, one could reasonably find that the fish died from exposure to the herbicide containing Dow’s product based on the following circumstances: the fish died shortly after the weed poison was washed into the water tanks; traces of weed poison were found in the fish; fish have died from exposure to this weed poison under similar circumstances; and no alternative cause of death has been proven. Under the tests outlined in Brothers, 658 P.2d at 1110, and Brown, 576 P.2d at 716, we conclude that the circumstantial evidence presented here is sufficient to raise a material question of fact regarding causation.

Dow urges this Court to reject certain expert testimony offered by the Hagens in which it is asserted that the fish were exposed to lethal levels of the herbicide mixture and that this was the cause in fact of the incident, on the basis that this evidence constitutes inadmissible hearsay under the Montana Rules of Evidence, or that the parties are not qualified to offer expert opinions. Without ruling on the admissibility of the documents in question, the transcript shows that the Hagens intended to offer this evidence as direct testimony during the trial, and this evidence was discussed diming the summary judgment hearing. However, even if we accept Dow’s contention that this evidence should not have been considered by the District Court during the summary judgment hearing, and therefore, that this Court should disregard the substance of this disputed evidence, we have already held that there is sufficient circumstantial evidence in the record, as discussed above, to raise a material issue of fact regarding the cause of the fish kill.

Dow insists that, under this Court’s recent decisions in Nelson v. Montana Power Company (1993), 256 Mont. 409, 847 P.2d 284, and Camp, 831 P.2d 586, summary judgment was proper because, based on the record, the Hagens could not prove by a preponderance of the evidence that their injury was caused by the defendants’ actions. Those cases are distinguishable from the situation here, however, because in both Nelson and Camp the evidence consisted wholly of unsupported conclusory or speculative statements. In this instance, the plaintiffs’ claim is corroborated by sufficient factually based circumstantial evidence such that, when considered as a whole, a genuine issue of material fact exists. Although the District Court concluded that the Hagens would not be able to prove by a preponderance of the evidence that the fish died from exposure to the weed poison, we conclude that, based on the evidence in the record, reasonable minds could differ in this regard. As long as there is a material issue of fact in dispute, as exists under the circumstances presented here, summary judgment is not appropriate.

II.

Did the court err when it granted summary judgment in favor of Dow Chemical on the claim for punitive damages on the basis that there were no issues of material fact regarding actual fraud or malice on the part of Dow?

The Hagens sought to recover punitive damages on the basis that Dow was aware of its product’s danger to fish cultures and acted with a willful disregard of the rights of others by representing that it could safely be applied in the manner that it was applied by the Weed District. The District Court dismissed this claim on the basis that the Hagens submitted no evidence of actual fraud or actual malice on the part of Dow.

The Hagens contend that there was sufficient evidence to allow a jury to find in their favor. They argue that Dow was aware of research indicating that picloram was unsafe at levels of .035 parts per million (ppm), and that Dow itself had a study that indicated picloram was lethal at 1 ppm. The Hagens contend that Dow acted with malice when it represented that the lethal concentration was much higher than this, and when its agent advised the Weed District that it could safely use the herbicide around fish despite its knowledge to the contrary.

As already noted in the discussion on causation, the record in this case is replete with contradictory evidence regarding the toxicity of the herbicides which were sprayed in the vicinity of the fish farm. There is evidence that one of Dow’s employees had conducted tests to determine the effects of Tordon on fish, and found that picloram was lethal at a concentration of 1 ppm. Other tests conducted by Dow, however, indicate that picloram is not lethal until it reaches concentrations of 15 ppm. The record also contains evidence of testing by Dr. Dan Woodward, which was forwarded to Dow, demonstrating that picloram was unsafe even at a level of .035 ppm.

The Code of Federal Regulations requires a warning label stating “This Pesticide is Toxic to Fish” if the pesticide contains an active ingredient which is toxic to fish at a concentration of 1 ppm or less. 40 C.F.R. § 156.10(h)(2)(ii)(B) (1992). The Tordon label does not have such a warning, and Dow contends that the existing label adequately advises against use of the product where it might contaminate water used for irrigation or domestic purposes. However, the evidence shows that even though Dow had knowledge of the Woodward study and its own testing which demonstrated toxicity at this level, the only reports submitted to the Environmental Protection Agency regarding the need for a warning on Dow’s label were the company’s tests indicating toxicity at 15 ppm.

The record also contains evidence that the Woodward study established that there is a synergistic affect when picloram and 2,4-D are combined which results in a lower level of toxicity than either of the chemicals alone. Nevertheless, the record demonstrates that Dow represented to its users that the chemicals could be mixed and safely applied, and if used according to the label, it was not toxic to fish. However, as already noted, the label does not warn about the potential dangers when used in close proximity to fish populations.

Montana law provides that reasonable punitive damages may be awarded when a defendant has been found guilty of actual fraud or actual malice. Section 27-1-221, MCA. Actual malice occurs when a defendant has knowledge of facts or intentionally disregards facts that create a high probability of injury to the plaintiff and then proceeds to act with indifference or disregard of the high probability of injury. Section 27-1-221(2), MCA.

The Hagens were not required to prove during the summary judgment proceedings that Dow’s actions constituted actual malice, but rather that a genuine dispute exists with regard to this allegation. After reviewing the record, we conclude that there was evidence that Dow was aware that its product had characteristics which created a high probability of damages to people like the Hagens. A factual dispute exists regarding whether Dow represented to EPA that a warning label was not required when it knew otherwise, and whether Dow represented that it was safe to mix the herbicides and apply the mixture in the vicinity of fish cultures, when it knew otherwise. Therefore, we conclude that a genuine factual dispute exists on the issue of punitive damages and summary judgment should not have been granted.

Accordingly, the judgment of the District Court is reversed and this matter is remanded for further proceedings consistent with this opinion.

JUSTICES HARRISON, GRAY, HUNT and WEBER concur.


text:
    IN THE MATTER OF GUS E. MORLOCK, Respondent.
    No. 93-187.
    Submitted on Briefs August 26, 1993.
    Decided November 15, 1993.
    50 St.Rep. 1426.
    261 Mont. 499.
    862 P.2d 415.
    For Appellant: Lonnie J. Olson, Montana Advocacy Program, Billings.

      For Respondent: Jim Obie, Chief Legal Counsel, Corrections and Human Services, Helena.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Gus E. Morlock appeals from an order of the District Court for the Fifth Judicial District in Jefferson County, Montana, which recommitted him to the Montana Developmental Center. Morlock seeks reversal of the order of recommitment based on his assertion that the Department of Corrections filed an untimely petition for recommitment under § 53-20-128, MCA. We reverse.

The dispositive issue on appeal is whether the petition for recommitment was filed in an untimely manner under § 53-20-128, MCA.

On July 31, 1991, the District Court for the Second Judicial District, Silver Bow County, committed Gus E. Morlock to the Montana Developmental Center for a period of eight months.

Pursuant to the provisions of the District Court order, Morlock’s commitment to the Montana Developmental Center expired on March 31, 1992. No petition for recommitment was filed before the expiration of Morlock’s commitment to the Center. On October 2, 1992, six months after the expiration of the order of commitment, the Department of Corrections filed a petition for recommitment of Morlock and properly served notice of a right to a hearing on the petition.

On February 10,1993, a hearing pursuant to the petition was held in the District Court for the Fifth Judicial District, Jefferson County. Prior to the hearing, Morlock filed an oral motion with the court to dismiss the action for recommitment based on his assertion that the petition for recommitment was filed in an untimely manner under § 53-20-128, MCA.

The District Court heard arguments from both parties. The Department conceded that the petition for recommitment was untimely under § 53-20-128, MCA. However, the court denied Morlock’s motion to dismiss the action and proceeded with the hearing. On February 28, 1993, the District Court entered its findings of fact, conclusions of law and final order, which recommitted Morlock to the Montana Developmental Center for a period of twelve months from October 2,1992. It is from this order of recommitment that Morlock appeals.

Morlock asserts that the Department of Corrections did not file the petition for his recommitment within the time period specified in § 53-20-128, MCA, and that failure to follow the statute mandates reversal of the District Court’s order of recommitment.

Section 53-20-128(1), MCA, provides:

If the qualified mental retardation professional in charge of the resident determines that the admission to the residential facility should continue beyond the period specified in the court order, he shall, at least 15 days before the end of the period set out in the court order, send written notice of his recommendation and request for renewal of the order to the court that issued the order, the resident, his parents or guardian, the next of kin, if known, the attorney who most recently represented the resident, if any, and the responsible person appointed by the court, if any. The recommendation and request must be accompanied by a written report describing the habilitation plan that has been undertaken for the resident and the future habilitation plan that is anticipated by the qualified mental retardation professional. [Emphasis added].

This Court has held that Montana’s civil commitment laws are to be strictly followed. Mental Health of S.J. (1988), 231 Mont. 353, 355, 753 P.2d 319, 320 (citing In the Matter of T.J.F. (1987), 229 Mont. 473, 747 P.2d 1356). We conclude that the filing requirement of § 53-20-128, MCA, is mandatory. The statute allows a petition for recommitment only if renewal of the commitment order is requested at least 15 days before the expiration of the commitment order.

The Department of Corrections admits that it did not comply with the 15-day requirement set forth in § 53-20-128, MCA, when it filed its petition to recommit Morlock to the Montana Developmental Center. It filed the petition for Morlock’s recommitment six months after his commitment order expired.

Because the Department did not comply with the statutory filing requirement of § 53-20-128, MCA, the District Court was without authority to recommit Morlock and its order of recommitment is reversed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY, HUNT, NELSON andWEBER concur.


author: JUSTICE HUNT

text:
    IN THE MATTER OF DECLARING N.R.M., A Youth In Need Of Care.
    No. 92-609.
    Submitted on Briefs August 5, 1993.
    Decided November 16, 1993.
    50 St.Rep. 1428.
    261 Mont. 502.
    862 P.2d 1171.

      For Appellant: Chris P. Christensen, Kalispell.
    For Respondent: Randy K. Schwickert, Deputy Flathead County Attorney, Kalispell.
   JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal from an order of the Eleventh Judicial District Court, Flathead County, declaring N.R.M. a youth in need of care, terminating the parental rights of the natural mother, and awarding permanent legal custody of N.R.M. to the Montana Department of Family Services (DFS).

We affirm.

The mother presents the following issues on appeal:

1. Was there substantial evidence to support the District Court’s order terminating the parental rights of the mother?

2. Did the District Court abuse its discretion when it denied the mother’s request to reopen the case to submit additional evidence?

N.R.M. was bom on April 23,1991. He is the son of J.M.C. (natural mother) and M.E.S. (natural father). In June 1991, the DFS began receiving referrals on the mother stating that she left the baby with anyone she could find, she was drinking and partying, and was not taking care of N.R.M.’s medical needs. On October 3,1991, the DFS filed a petition for temporary investigative authority with the District Court. The District Court found N.R.M. to be a youth in need of care.

The DFS and the mother developed a Treatment Plan on July 1, 1991. However, the plan was not presented to the court for approval. The plan, which listed several goals for the mother, was developed by the DFS to remedy the mother’s conduct. She agreed to receive substance abuse treatment, to abstain from alcohol or drags, to obtain an evaluation at the Chemical Dependency Clinic, to participate in parenting classes, to establish a stable home environment, and to check into obtaining a GED when N.R.M. reached six months of age. The mother did not complete this plan.

Soon after implementation of the plan, the DFS received referrals that the mother sexually abused four children. As a result, the DFS placed N.R.M. in foster care with the mother’s consent during the sexual abuse investigation. While he was in foster care, the foster parents discovered that N.R.M. suffered from a condition known as tracheal malacia which makes him susceptible to infections and requires careful attention. N.R.M. also had an ear infection and a serious diaper rash. The mother denied that the child suffered from any medical problems. She stated that the doctors could not diagnose the tracheal malacia condition, when in fact they had properly diagnosed the child and prescribed medication which the mother failed to administer. Since placing N.R.M. in foster care, his condition has improved.

During the early period of N.R.M.’s foster placement, the mother exercised inconsistent visitation. When visitation did occur, the child screamed in response to the mother’s contact. This reaction was limited to the mother. The DFS stopped visitation at the house of the foster parents because the mother demonstrated a hostile and critical attitude and behavior toward the foster parents.

During the early stages of the mother’s chemical dependency evaluation, her participation in treatment programs was sporadic and ineffective. She failed to stay sober, and did not properly attend all of her out-patient meetings.

On February 18, 1992, the mother signed a new treatment plan. Although the District Court approved the plan on February 19,1992, the DFS and the mother worked together with the plan for five months before approval. This plan required the mother to complete an in-patient drug/alcohol treatment program, attend Aftercare, AA meetings, and abstain from alcohol and drugs. The plan required her to complete a sex offender evaluation, establish a stable home environment for the child, complete parenting classes, and obtain a valid driver’s license. Finally, the plan required the mother not to let people move in and out of the home, to have weekly contacts -with a social worker, to maintain regular supervised visits with N.R.M., and to remain law abiding. The court required the mother to complete the plan by June 1,1992.

During the two plans, the mother made five attempts for treatment of her alcohol and drug abuse, but was unsuccessful. Before leaving on her fifth attempt at treatment, the authorities arrested the mother for possession of drug paraphernalia, possession of alcohol, and possession of dangerous drugs. Throughout the course of her treatment plan the mother continued to drink and possess illegal drugs. Since the DFS initiated proceedings to terminate the mother’s parental rights, she has completed a treatment course for her substance abuse.

Because of the mother’s failure to complete both treatment plans, the DFS filed for termination of parental rights and permanent custody on June 16,1992. The court appointed counsel for the mother, and a hearing was held on September 29, 1992. The natural father did not appear at the hearing. On October 9,1992, the District Court issued its order terminating the parental rights of the natural parents and granting permanent legal custody to DFS. The mother filed a motion to reconsider, which the court denied. The mother appeals from the decision terminating her parental rights.

I.

Was there substantial evidence to support the District Court’s order terminating the parental rights of the mother?

The mother does not argue that she fully completed the February 19, 1992, court-approved plan by the date of the hearing. She contends that the District Court did not satisfy the statutory requirement that her conduct or condition causing her problems could not be rectified within a reasonable time. She argues that the court only gave her three months to complete the approved treatment plan.

Section 41-3-609, MCA, contains the criteria for terminating parental rights. The statute states in pertinent part:

(1) The court may order a termination of the parent-child legal relationship upon a finding that any of the following circumstances exist:
(c) the child is an adjudicated youth in need of care and both of the following exist:
(1) 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 mdikely to change within a reasonable time; or
(d) the parent has failed to successfully complete a treatment plan approved by the court within the time periods allowed for the child to be in foster care under 41-3-410 unless it orders other permanent legal custody under 41-3-410.
(2) In determining whether the conduct or condition of the parents is unlikely to change within a reasonable time, the court must enter a finding that continuation of the parent-child legal relationship will likely result in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care. In making such determinations, the court shall consider but is not limited to the following:
(d) excessive use of intoxicating liquor or of a narcotic or dangerous drug that affects the parent’s ability to care and provide for the child;
(g) any reasonable efforts by protective service agencies that have been unable to rehabilitate the parent.

The State must show by clear and convincing evidence that the statutory criteria for termination of parental rights has been met before the court can order the termination. Matter of S.B. (1986), 223 Mont. 36, 39, 724 P.2d 168, 170. We will not overturn a district court’s findings of fact supported by substantial evidence contained in the record. Matter ofS.B., 724 P.2d at 170.

Here, the mother had 13 months from the date she signed the first treatment plan until the termination of her parental rights to complete at least one of the treatment plans. In his report, the court-appointed counsel for N.R.M. stated that an additional two months would not aid in determining whether the mother could take adequate care of N.R.M. on a long term basis. Counsel expressed concern relating to the mother’s inconsistent statements about attending AA meetings. He stated that N.R.M. needs a stable home environment and that it was not in the child’s best interest to wait to see if the mother completed the treatment plan. He recommended termination of parental rights.

The court noted that the mother completed the in-patient treatment portion of the treatment plan, but recognized that it had come at such a late stage that there was insufficient time to decide whether she would maintain sobriety. The court also stressed the repeated efforts made by DFS to help and encourage the mother to comply with the treatment plan, and that despite those efforts, the mother did not respond in a sincere or timely manner. The court concluded that it was not a reasonable prospect that the mother would maintain sobriety for the benefit of N.R.M. or herself.

Finally, the mother did not comply with other elements of the treatment plan. At the time of the hearing, she lived with a person who was physically abusive to her and she still maintained relationships with chemical and alcohol abusers. With her arrest for possession of dangerous drugs, she failed to remain law abiding. Although her visitations with N.R.M. improved with time, they were interrupted occasionally when she spent time in jail. In addition, she failed to obtain a valid driver’s license, failed to successfully complete parenting classes, and failed to make weekly contacts with her social worker. The District Court found that given the abuse, neglect, and exposure to alcohol and drugs, as testified to by the maternal grandmother, the mother has dim prospects of providing a caring and stable home environment. We agree with the court that no evidence exists to show that the mother will succeed in accomplishing a plan in the future. We hold that the record contained substantial evidence for the District Court to terminate the parental rights of the mother.

II.

Did the District Court abuse its discretion when it denied the mother’s request to reopen the case to submit additional evidence?

The mother filed her motion for reconsideration on October 21, 1992. She filed her notice of appeal on November 25,1992, before the District Court issued an order regarding the motion to consider. We have previously stated that “[o]nce the plaintiff filed his notice of appeal all proceedings in the District Court were stayed and its jurisdiction removed.” Groundwater v. Wright (1979), 180 Mont. 27, 32, 588 P.2d 1003, 1005-06. Here, the District Court lost jurisdiction when the mother filed her appeal. As a result, the District Court did not issue a decision regarding the motion for reconsideration. Therefore, we will not discuss the issue.

We affirm the decision of the District Court.

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


author: JUSTICE WEBER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ROBERT WAYNE EVANS, Defendant and Appellant.
    No. 93-054.
    Submitted on Briefs September 23, 1993.
    Decided November 16, 1993.
    50 St.Rep. 1431.
    261 Mont. 508.
    862 P.2d 417.

      For Defendant and Appellant: William F. Hooks, Appellate Defender Office, Helena.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Assistant; George Com, Ravalli County Attorney, Hamilton.
   JUSTICE WEBER

delivered the Opinion of the Court.

Defendant Robert Wayne Evans appeals the verdict from a jury of the Fourth Judicial District Court (now Twenty First Judicial District Court), Ravalli County, convicting him of obstructing justice, a felony. We affirm.

The sole issue for review is whether the District Court abused its discretion in refusing the jury’s request to rehear certain portions of trial testimony.

Robert Wayne Evans (Evans) was charged with obstructing justice after he falsely informed police officers that a woman by the name of Jackie Hager (Hager) was not at his residence. On the evening of January 14,1992, Evans and Hager had gone to a Hamilton bar and had spoken to a man named Claude Mackie at the bar. Claude Mackie had informed Hager that she was wanted by the police for writing bad checks and that a warrant had been issued for her arrest. Evans also learned that Hager was wanted by the police for writing bad checks.

Hager testified that she told Evans she feared she would be apprehended by the police. Evans testified that he informed Hager that he did not want to get involved; nonetheless, Evans and Hager left the bar together and Evans permitted Hager to spend the night at his residence.

On Januaiy 15,1992, the following morning, Detective Johnson of the Hamilton Police Department received information during the course of his investigation that Hager might be at Evans’ home. Together with Officer Birkeneder, Detective Johnson went to Evans’ home at approximately 8:30 a.m on January 15,1992.

Hager testified that when she heard the officers knocking on Evans’ door, she knew immediately that it was the police. Hager further testified that she ran to Evans’bedroom and asked him to tell the police that she was not there. When Evans answered the door, the officers informed him that they were looking for Hager in connection with some bad checks she had written and asked him to have Hager come to the door to speak with them.

Evans told the officers that Hager was not there. The officers repeated their request and Evans again denied that Hager was in the house. Detective Johnson asked Evans if the officers could look inside the house; Evans refused this request and told the officers to get a search warrant. The officers then advised Evans that he could be charged with obstructing justice if he was lying to them and asked one more time to have Hager come to the door. Evans restated that Hager was not there and closed the door.

Detective Johnson and Officer Birkeneder left Evans’ residence and drove a short distance down the road to a place where Detective Johnson could watch Evans’ residence unobserved. Officer Birkeneder then left and Detective Johnson called for assistance; Police Chief Auch arrived as Evans and another man got into a red pickup truck and traveled north. Detective Johnson and Police Chief Auch also traveled north and as they were passing Evans’ residence, they saw someone walking across the railroad tracks to the west of Evans’ residence. Detective Johnson intercepted this person, who turned out to be Hager wearing a large jacket over another jacket with her hair tucked up under a baseball cap.

Detective Johnson arrested Hager and she told him she had been at Evans’ home. Evans returned as the officers were placing Hager into the police car but continued to drive past his house. The officers then pursued Evans, stopped him and placed him under arrest. Evans told the officers that he had bed to them because he did not want to get involved. Detective Johnson later traced Hager’s footprints in the freshly-fallen snow from the place where he had intercepted her back to Evans’ residence. Other evidence indicated that Evans’ had planned to meet up with Hager at a Shop-N-Go store and to further assist her in evading the officers.

Did the District Court abuse its discretion in refusing the jury’s request to rehear certain portions of trial testimony?

During deliberations, the jury posed several questions to the District Court, including the following request:

Could we hear the direct testimony of Officer Johnson about what he told Evans “that Jackie was wanted” and Officer Johnson’s cross-examination response to the same question.

The District Court refused this request, relying on State v. Harris (1991), 247 Mont. 405, 808 P.2d 453.

The decision to grant or refuse a jury’s request to replay testimony is within the sound discretion of the district court. Section 46-16-503(2), MCA. In exercising its discretion, the district court should avoid giving undue emphasis to particular testimony. Harris, 808 P.2d at 459.

Evans claims that the District Court abused its discretion in refusing the request to rehear portions of Detective Johnson’s testimony, according to the holding in Harris. In Harris, we held that the district court abused its discretion by allowing the jury to rehear the entire testimony of a witness. Evans contends that the jury’s request was for testimony critical to the State’s case and was not a request for the entire testimony of Detective Johnson; therefore, he argues that the jury’s request should have been granted.

Evans likens the jury’s request to a request for a limited response which is permitted under the holding in Harris. Evans claims the request would have garnered the following testimony to be reheard:

[Prosecutor]: All right. So you got to Mr. Evans’ house and you were walking up to the door, and what happened then:
[Detective Johnson]: Well, I rang the doorbell probably a couple times. After a short period of time, Bob Evans came to the door, and I introduced myself to him, and I pointed out to him that I was looking for Jackie Hager in regards to some bad checks that she had written.
[Prosecutor]: What did you tell him about that?
[Detective Johnson]: That’s just what I told him. That I needed to talk to her, and I asked him to have her come to the door so I could talk to her.

This question was not asked again on cross-examination. The question on cross-examination was as follows:

[Mr. Shockley]: ... When you were conversing with Mr. Evans on the 15th of January, you didn’t tell him that Miss Hager was wanted for a felony did you?
[Detective Johnson]: No, I didn’t.

Evans points out that the State had to prove that at the time the police came to the front door, Evans knew that Hager was “liable to be arrested, charged, convicted, or punished for a public offense.” According to Evans, the request by the jury is specific and critical to that element of proof in that it demonstrated that Evans did not know Hager was an “offender” about to be arrested by the police because the officers did not show him an arrest warrant nor did they specifically state that they were going to arrest Hager.

Section 45-7-303, MCA, provides in pertinent part:

45-7-303. Obstructing justice. (1) For the purpose of this section “an offender” means a person who has been or is liable to be arrested, charged, convicted, or punished for a public offense.
(2) A person commits the offense of obstructing justice if, knowing a person is an offender, he purposely:
(a) harbors or conceals an offender;...

The legislative enactment of § 46-16-503(2), MCA, changed the common law rule that permitted the trial court no discretion to read a transcript of a witness’s testimony or submit testimonial materials to the jury for unsupervised review during jury deliberations. Harris, 808 P.2d at 459. The common law rule was intended to prevent undue emphasis of materials submitted to the jury over all other evidence in the case and still applies in most cases. We stated:

The kind of request contemplated by § 46-16-503(2), MCA, includes an inquiry concerning a witness’s testimony as to the width of a street, the height of an object, distance, time or some other limited request, but not the entire testimony of the witness.

Harris, 808 P.2d at 460.

In Harris, we quoted with approval the comments of the Wyoming Supreme Court in Chambers v. State (Wyo. 1986), 726 P.2d 1269, 1276, to emphasize that the common law rule would continue to apply in most cases. Although the statute now allows the trial court some discretion in these matters, it still requires the court to discover the exact nature of the jury’s difficulty, isolate the particular testimony which can solve the difficulty and then weigh the probative value of the testimony against the danger of undue emphasis. Harris, 808 P.2d at 460. Subsequently, in State v. Mayes (1992), 251 Mont. 358, 374, 825 P.2d 1196, 1206, we emphasized that under the ruling in Harris, the court must avoid undue emphasis on the testimony of certain witnesses. We concluded that replaying the entire testimony of two witnesses unduly emphasized the testimony of the victims “to the exclusion of the testimony of other witnesses.” Mayes, 825 P.2d at 1206.

In Harris, we also provided guidance for the district courts of Montana in dealing with requests from the jury for witness testimony; we supplied the following response to be used by the courts in responding to such requests:

It would be error for me to furnish, you with a transcript of any particular witness for the reason that in rendering your verdict, you should not give any undue emphasis to the testimony of any one witness to the exclusion of all others. Instead, you should consider all of the evidence as a whole in rendering your verdict. However, if you have some particular reason or point that you are trying to resolve that relates to the evidence of this witness, you may submit that question to me in written form, and I will give it consideration. (Emphasis added.)

Harris, 808 P.2d at 460.

The request in this case is not a request which relates to the evidence of a single witness; instead, it is a request to rehear testimony on a critical point of proof for which several witnesses provided testimony, including Detective Johnson. It is not the sort of limited request contemplated by § 46-16-503(2), MCA, as it would tend to emphasize the testimony of one witness where several other witnesses have testified on that same point. We conclude that the testimony requested by the jury in this case was testimony that could have placed undue emphasis on the answers given by Detective Johnson which related to a critical element of the State’s case.

We hold the District Court did not abuse its discretion when it refused the jury’s request to rehear certain portions of the trial testimony given by Detective Johnson.

Affirmed.

JUSTICES HARRISON, TRIEWEILER, HUNT and NELSON concur.


text:
    JOHN E. (JACK) TAYLOR, Contestant and Appellant, v. ELYSE “LEE” MATEJOVSKY, Contestee and Respondent.
    No. 93-181.
    Submitted on Briefs August 12, 1993.
    Decided November 16, 1993.
    50 St.Rep. 1434.
    261 Mont. 514.
    863 P.2d 1022.

      For Contestant and Appellant: Amie A. Hove, Circle.
    For Contestee and Respondent: Laura Christoffersen, Christoffersen & Knierim, Wolf Point.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

John E. Taylor filed a petition in the District Court for the Fifteenth Judicial District in Roosevelt County pursuant to § 13-36-101(2), MCA, to contest the election of Elyse Matejovsky to the County Commission from District 2 in Roosevelt County. The District Court dismissed his petition. Taylor appeals the order of the District Court.

We reverse and remand with instructions.

The following issues are raised on appeal:

1. Did the District Court err when it denied Taylor’s motion for substitution of the District Court Judge?

2. Did the District Court err when it refused to allow Taylor to present evidence through the testimony of witnesses, other than the contestant and contestee, at the hearing on Taylor’s petition?

3. Did the District Court err when it dismissed Taylor’s petition contesting the election of the District 2 Roosevelt County Commissioner?

Elyse Matejovsky was elected to the County Commission from District 2 in Roosevelt County in November 1992. On January 29, 1993, Taylor, Matejovsky’s opponent in the Commission race, filed a petition contesting her election pursuant to § 13-36-101(2), MCA. The petition alleged that Matejovsky was not qualified to file for the office of County Commissioner in District 2 because she was not a resident of that district at the time she filed for the primaiy election. Matejovsky was served with notice on Februaiy 2, 1993, and was summoned to appear at a hearing scheduled for Februaiy 5.

On Februaiy 2, Taylor moved for a substitution of the District Court Judge pursuant to § 3-1-804, MCA. At the Februaiy 5 hearing, Taylor’s motion for substitution of judge was denied for the reason that it had not been timely filed. The court offered the following rationale for its determination that the motion was untimely:

Okay, I will take judicial notice of the statute that says that an affidavit of disqualification is — if it’s not filed timely, is — has no effect, and I’m relying on this not being filed timely. This matter, I believe, the record reflects that the petition in this matter was drafted — or filed — drafted the 10th of November of’92 — filed the 29th of January of’93, served the 5th of Februaiy, ’93, and the substitution was filed the 2nd and served the 3rd, so I find that that’s not timely, and you can proceed.

During the hearing, it was established that Matejovsky filed for the primary election on March 12, 1992. It was undisputed that § 7-4-2104(2), MCA, and the certificate establishing the existingplan of government for Roosevelt County, require a candidate, at the time of filing for the primary election, to be a resident of the district from which he or she seeks election.

Matejovsky admitted that, at the time of her entry into the commissioner race, she was “sleeping and eating” at a location outside of Commissioner District 2. However, Matejovsky claimed that her permanent residence was the family farm, which was located within District 2, and that her move from the farm had only been a temporary arrangement after her husband’s death. It was her assertion that she never intended to change her permanent residence from the family farm despite the fact that she had not been living at the farm since the fall of 1990.

Only Matejovsky and Taylor were allowed to offer testimony at the hearing. The court did not allow Taylor to offer testimony from additional witnesses based on its determination that § 13-36-207, MCA, permitted testimony from only the parties to the action, unless otherwise ordered by the court.

On March 11,1993, the court issued its findings of fact, conclusions of law, and order dismissing Taylor’s petition contesting the election. The court found that the purposes for which Matejovsky left her residence in Commissioner District 2 were “temporary or special” and concluded, based on the evidence presented by the parties, that there had been no union of act and intent as required for a change of residence under § 1-1-215(6), MCA. Therefore, it concluded that Matejovsky was a proper candidate for election as commissioner to District 2 and dismissed Taylor’s petition for ouster. Pursuant to § 13-36-205, MCA, Taylor was ordered to reimburse Matejovsky, as the prevailing party, for costs, disbursements, and reasonable attorney fees incurred in defense of this action. From this order, Taylor appeals.

I.

Did the District Court err when it denied Taylor’s motion for substitution of the District Court Judge?

Montana law entitles each adverse party in a civil or criminal case to one substitution of a district court judge. Section 3-1-804, MCA. Once a timely motion has been filed, the substituted judge is without jurisdiction to act on the merits of the cause or to decide legal issues therein. Section 3-l-804(l)(a), MCA. Section 3-l-804(l)(c), MCA, clarifies that when a judge is assigned to a cause for 20 consecutive days after service of summons and no motion for substitution has been filed, the right to move for substitution is deemed waived. The judge for whom substitution is sought has jurisdiction to determine timeliness, and any motion for substitution which is not timely filed is void. Section 3-l-804(l)(e), MCA.

In this instance, the court’s rationale in denying the motion for substitution offers little explanation of its determination of untimeliness. The reference to an “affidavit of disqualification” suggests the court considered § 3-1-805, MCA, which provides for disqualification for cause, and requires an affidavit be filed at least 30 days prior to the date set for hearing. However, Taylor’s motion was not filed pursuant to this statute. Taylor’s motion was an exercise of the right to substitution of judge as provided for under § 3-1-804, MCA. The record demonstrates that Matejovsky was served with notice of Taylor’s petition on Februaiy 2, and the motion for substitution was made on that same date. Clearly, the motion for substitution of judge was made prior to the expiration of 20 days after service of the summons. Thus, Taylor’s motion was filed within the only time period provided by statute.

Matejovsky contends, however, that the court properly denied Taylor’s motion because of the requirements set forth in the statute addressing election contests. She claims that the court is given unlimited discretion in determining when a motion for substitution of judge is untimely, and in this instance, Taylor’s motion was unreasonable because it requested a substitution three days before a hearing which, by statute, had to be held on or before Februaiy 5, 1993. Matejovsky asserts that a substitution of judge would have necessarily delayed the hearing date past the time required in § 13-36-206, MCA.

The statute governing contests of elections provides for a prompt resolution of the dispute and requires a court to give a contest petition precedence over other pending cases. Section 13-36-206, MCA. Specifically, the statute sets forth the following procedural requirements:

Notice of filing — prompt hearing. On the filing of any such petition, the clerk shall immediately notify the judge of the court and issue a citation to the person whose nomination or office is contested, citing him to appear and answer not less than 3 or more than 7 days after the date of filing the petition. The court shall hear said cause, and every such contest shall take precedence over all other business on the court docket and shall be tried and disposed of with all convenient dispatch.

Section 13-36-206, MCA. Matejovsky argues that this section imposes a mandatory requirement that a court conduct a hearing no later than seven days after a contest petition is filed. In this instance, that date was February 5,1993.

However, a court’s function, when construing a statute, is to ascertain what it contains, “not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA; Gaub v. Milbank Ins. Co. (1986), 220 Mont. 424, 715 P.2d 443. The statute states that the person whose nomination is contested must “appear and answer” within the specified time frame. We construe this to mean that the contestee must make an appearance and answer the petition, but not that the court must necessarily conduct a hearing within this time period. As specified in the next sentence, the court is to conduct a hearing on a priority basis, but there is no stated requirement that the hearing be held prior to the expiration of seven days. This Court will not insert such a requirement where it has been omitted by the Legislature.

Furthermore, § 13-36-208, MCA, offers additional insight regarding the procedure involved in election contests. This section clarifies that “[p]roceedin^ under this title shall be advanced on the docket upon request of either party for speedy trial, but the court may postpone or continue the trial if necessary ....” It is clear from this section that, although these disputes are to be resolved as promptly as possible, there is some discretion regarding postponements or continuances where necessary.

We believe that this construction of the statute in question operates to give effect to the election contest statute in its entirety, and harmonizes this statute with the provisions providing for a substitution of judge. An interpretation which mandates a prompt hearing, but not necessarily within seven days, will not deprive a party of the statutory right to a substitution of a judge even in matters such as this which are to receive expedited attention.

Based on this interpretation, we conclude that Taylor’s motion for substitution of judge was made within the time allowed and the granting of the motion would not have had the effect of causing a violation of the election contest statute. Therefore, we hold that the motion was timely and that the court erred by not allowing Taylor to exercise this statutory right to substitution of the District Court Judge.

Pursuant to § 3-l-804(l)(a), MCA, once the motion for substitution of judge was timely filed, Judge Sorte was without jurisdiction to act on the merits of Thylor’s petition. Accordingly, the order dismissing the petition contesting the election is vacated and this matter remanded for a new hearing after a substitution of judge.

Because the court’s order is vacated, we do not need to address the question of whether the court erred when it dismissed the petition on its merits. However, for the guidance of the District Court on remand, we will address the question of whether it was proper to exclude the testimony of other witnesses during the hearing on Taylor’s petition.

II.

Did the District Court err when it refused to allow Taylor to present evidence through the testimony of witnesses, other than the contestant and contestee, at the hearing on Taylor’s petition?

The court based its decision to allow testimony only from Taylor and Matejovsky on § 13-36-207, MCA, which provides in relevant part:

The petitioner (contestant) and the contestee may appear and produce evidence at the hearing, but no person other than the petitioner and contestee may be made a party to the proceedings ... and no person other than the parties and their attorneys may be heard thereon except by order of the court.

Matejovsky asserts that this section clearly states that no person other than the parties may appear and present testimony or evidence unless the court so orders. Therefore, she believes it was within the court’s discretion to permit only the parties to testify.

However, Taylor contends that the court, when it disallowed his offer of testimony from other witnesses, ignored the general definition of evidence as stated in § 26-1-101(2), MCA:

“Evidence” is the means of ascertaining in a judicial proceeding the truth respecting a question of fact, including but not limited to witness testimony, writings, physical objects, or other things presented to the senses. [Emphasis added].

A statute must be construed in a way that gives effect to all of its provisions. Section 1-2-101, MCA. After considering the statute as a whole, we agree with Taylor’s interpretation of the statute. The statute clearly allows the contestant and contestee to produce evidence at the hearing, and we conclude this encompasses witness testimony in addition to tangible forms of evidence, such as writings, so long as it is proffered by one of the parties. Such a construction gives effect to the statute as a whole and harmonizes this statute with the general rules of evidence. It is within the court’s discretion to determine the admissibility of such testimony under the general rules of evidence, but it is not a a be rejected on the basis that the statute permits only the parties the action to testify.

The order of the District Court is vacated and we remand for a new hearing on the merits of the petition after a substitution of judge.

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