author: JUSTICE LEAPHART

text:
    JACKIE A. McGREGOR, Plaintiff and Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION, a/k/a AMTRAK, Defendant and Respondent.
    No. 96-200.
    Submitted on Briefs July 31, 1997.
    Rehearing Denied September 11, 1997.
    Decided August 12, 1997.
    54 St.Rep. 834. 943 P.2d 1269.
    284 Mont. 178.

      For Appellant: Chas. C. Dearden, Attorney at Law, Whitefish.
    For Respondent: Robert E. Sheridan; Garlington, Lohn & Robinson, Missoula.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Jackie McGregor, a ticket agent for Amtrak, filed this suit pursuant to the Federal Employer’s Liability Act, 45 U.S.C.A. §§ 51 et seq., seeking damages for injuries she received while unloading baggage. She appeals from a special jury verdict finding no negligence on the part of Amtrak. We affirm.

Issues Presented

1. Whether the verdict of no negligence is supported by the evidence.

2. Whether the court erred in excluding evidence comparing the baggage volume in Whitefish with the volume in Spokane and Seattle.

3. Whether the court erred in allowing Amtrak’s counsel to question McGregor about a separate ADA claim that was pending against Amtrak.

Discussion

McGregor began working as a ticket agent for Amtrak in 1983 and continued working as a lead ticket agent until her injury. As a ticket agent, her duties included the handling of baggage and express items weighing up to 75 lbs. per item. On January 4, 1994, McGregor was unloading baggage from the train to the baggage cart. The baggage was stacked in the doorway of the train car. She was in the process of taking bags down from the car and placing them on the cart when she took a “quite heavy” bag (estimated to be 65-70 lbs.) and placed it on the cart and injured her arm in the process.

1. Whether the verdict of no negligence is supported by the evidence. Our review of the sufficiency of the evidence to support a jury verdict is limited. Our standard of review in a jury case is set forth in Lee v. Kane (1995), 270 Mont. 505, 510-11, 893 P.2d 854, 857 (quoting Hansen v. Hansen (1992), 254 Mont. 152,157, 835 P.2d 748, 750-51) as follows:

“Our scope of review of jury verdicts is necessarily very limited. This Court will not reverse a jury verdict which is supported by substantial credible evidence. This Court has defined substantial credible evidence as evidence which a reasonable mind might accept as adequate to support a conclusion. The evidence may be inherently weak and conflicting, yet it may still be considered substantial. It is well established that if the evidence is conflicting, it is within the province of the jury to determine the weight and credibility to be afforded the evidence. Finally, upon reviewing a jury verdict to determine if substantial credible evidence exists to support the verdict, this Court must view the evidence in the light most favorable to the prevailing party.”

McGregor’s theory was that Amtrak was negligent in failing to adopt and implement rules and procedures for the safe performance of her work. Specifically, she argued that the weight limit and process used were unsafe; that despite awareness that its 75 lbs. per bag limit had caused injury to its employees, Amtrak continued to accept baggage up to 75 lbs. McGregor presented testimony from a number of Amtrak employees who testified that they had expressed concerns to their supervisors that the 75 lb. weight limit was too heavy. McGregor also relied on an interoffice memorandum issued on September 20, 1994, after her injury, which stated, in part,

Effective with the October 30, 1994 timetable change, we have reduced the maximum weight of checked baggage to 50 lbs. per item. Passengers may check a heavier suitcase or carton, not to exceed 75 lbs., upon payment of a $10.00 surcharge. The intent is to provide a financial incentive for passengers to keep their baggage light while still accommodating the occasional passenger who unavoidably has a heavier piece that does not exceed the existing Amtrak Express regular weight limit.
Amtrak Express maximum weights (regular express, 75 lbs.) are not being changed as it would make us uncompetitive with other shipping services. Most have a weight limit of 70-75 lbs. per piece. McGregor contends that Amtrak “essentially admitted that it [the

weight limit] was unsafe when it took steps to reduce the hazard by limiting checked baggage to 50 pounds, thereby reducing the volume of items over 50 pounds.” On appeal, she argues that the above facts prove more than “slight negligence,” which is all that is required in a FELA action, Rogers v. Missouri Pacific R. Co. (1957), 352 U.S. 500, 506, 77 S.Ct. 443,1 L.Ed.2d 493; and that the verdict of no negligence is not supported by the evidence and must be reversed.

Amtrak asserts that the verdict is supported by the following substantial evidence:

The District Court admitted safety rules entitled “Amtrak On-board and Station Services Safety Rules.” These rules provided specific direction to Amtrak employees on when to seek assistance in lifting objects that were unwieldy and/or heavy and how to use proper body mechanics when lifting the object. The rules provide that employees should avoid twisting or rotating the torso while lifting. In addition, Amtrak presented testimony that it provided video and training aids for station employees regarding the proper techniques for lifting.

As to the testimony presented by McGregor that other employees had expressed concerns regarding the 75 lb. limit, Amtrak countered this testimony with evidence that the 75 lb. limit is universally accepted in the transportation industry, including airline, bus and railroad. Amtrak’s Medical Director, Dr. McLean, testified that historically the entire railroad industry has had a weight limitation of 75 lbs. per bag.

As to McGregor’s contention that the September 20, 1994 memorandum is an admission by Amtrak that its weight limit of 75 lbs. was negligent, Amtrak points out that, even under the new policy of charging for bags over 50 lbs., it continued to accept bags weighing up to 75 lbs. Amtrak presented testimony that the main purpose of the change in billing policy was to generate revenue. The memorandum exhibit offered by McGregor clearly states that the maximum weight remained the same.

Amtrak Express maximum weights (regular express, 75 lbs.) are not being changed as it would make us uncompetitive with other shipping services. Most have a weight limit of 70-75 lbs. per piece. We conclude that, although there may have been conflicting evi-

dence on the question of negligence, there was, nonetheless, substantial evidence which a reasonable mind might accept as adequate to support a conclusion of no negligence on the part of Amtrak. Lee, 893 P.2d at 857. We affirm the District Court’s denial of McGregor’s motion for a new trial wherein she contended that there was insufficient evidence to support the verdict.

2. Whether the court erred in excluding evidence comparing the baggage volume in Whitefish with the volume in Spokane and Seattle.

Atrial court’s ruling on the admissibility of evidence will not be disturbed unless it was an abuse of discretion. Burlingham v. Mintz (1995), 270 Mont. 277, 279, 891 P.2d 527, 529. In order for an abuse of discretion as to an evidentiary ruling to be the basis for a new trial, the court’s error must be so significant that it materially affects the substantial rights of the appellant. Peschke v. Carroll College (1996), [280 Mont. 331], 929 P.2d 874, 881.

It was McGregor’s contention that Amtrak failed to provide sufficient help at the Whitefish station. McGregor’s evidence showed that Whitefish was staffed with five employees who had to cover two trains per day with a minimum of two employees working each train. In the period leading up to her injury, McGregor had worked nine out of ten days. McGregor sought to prove her theory of understaffing by introducing evidence that Whitefish handled more baggage than either Spokane or Seattle. Amtrak objected to this evidence on the basis that Spokane and Seattle were “heavy stations” and handled more trains per day than did Whitefish and thus there was no valid comparison. The court sustained the objection and excluded the evidence.

The jury was instructed that liability could attach if Amtrak failed “to provide sufficient manpower to complete the work in a reasonably safe manner.” McGregor contends that the court’s excluding of the evidence comparing Whitefish with Spokane and Seattle precluded her from showing that her injury was due to understaffing.

Amtrak contended that since Spokane and Seattle handle more trains than Whitefish, and since they, unlike Whitefish, handle palletized units, there was no valid comparison to be made between the baggage volume figures. In a pretrial discovery deposition, Amtrak’s Product Line Manager, Gary Erford, testified that baggage counts at Whitefish could not be compared with those at Spokane and Seattle since those two cities were classified as heavy stations handling palletized shipments. A large palletized shipment would be shown on the baggage reports as one unit, just as a single ski bag at Whitefish would be shown as one unit.

Furthermore, McGregor, on cross-examination, testified that there was a sufficient crew to perform the baggage handling function on the day she was injured.

Q. And it would be fair to say, would it not, that based upon the amount of baggage that was on board that train, and what was going to be put on the train, in other words, both loading and unloading, that four people was an adequate crew to handle this baggage that day?
A. Yes.
Q. You’re not saying that there was not a sufficient crew there to help you unload the bags that day, are you?
A. No, I’m not.

Given the differences between the Spokane and Seattle baggage statistics as compared to those of Whitefish and McGregor’s concession that the staffing was sufficient on the day in question, we hold that the District Court did not abuse its discretion in excluding the evidence of the baggage volume figures from Spokane and Seattle.

3. Whether the court erred in allowing Amtrak’s counsel to question McGregor about a separate ADA claim that was pending against Amtrak.

In response to a question on direct examination about her attempts to return to work, McGregor testified that: “After 30 years I just felt that they could do something to accommodate me.” Then, on cross-examination, over counsel’s objection as to relevancy, she was asked whether she had a lawsuit pending against Amtrak in U.S. District Court concerning her “accommodation.” McGregor replied that her counsel had filed such a lawsuit. The court denied McGregor’s motion for a mistrial and, at the close of the evidence, the court gave a curative instruction that, ‘You have heard testimony the Plaintiff has another lawsuit against Amtrak involving other issues. You are instructed not to consider the existence of that lawsuit in any way in your deliberations.” McGregor moved for a new trial arguing:

I am concerned that the jury, now being aware of the fact of the pendency of the other case, may somehow feel or determine it appropriate to reduce the award here figuring that the rest is going to be picked up there.
But there’s no way we can exclude the possibility that they may deem it appropriate to reduce the award here.

The court denied the motion.

McGregor objected to the cross-examination about her pending claim in Federal Court on the basis that such testimony was irrelevant and would adversely affect the jury’s computation of damages. Since the jury found no negligence by Amtrak, it did not reach the issue of damages. Thus, the error, if any, was harmless and did not affect a substantial right of McGregor’s. See Peschke, 929 P.2d at 881.

Affirmed.

JUSTICES NELSON, REGNIER, TRIEWEILER and GRAY concur.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. PETER WILLIAM HARPER, Defendant and Appellant.
    No. 96-390.
    Submitted on Briefs July 17, 1997.
    Decided August 12, 1997.
    As Amended August 28, 1997.
    54 St.Rep. 837. 943 P.2d 1255.
    284 Mont. 185.

      For Appellant: Kenneth H. Gray, Helena.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Micheal Wellenstein, Assistant Attorney General, Helena; Mike McGrath, Cournty Attorney, Helena.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Ajury in the First Judicial District Court, Lewis and Clark County, found Peter William Harper guilty of two counts of possession of dangerous drugs and possession of drug paraphernalia. He appeals. We affirm.

Harper raises two issues on appeal:

1. Whether his conviction of possession of methamphetamine is illegal on grounds that the State failed to prove that he was in “knowing control” of the drug “for a sufficient time to be able to terminate control.”

2. Whether his sentence is illegal because the court failed to consider alternatives to imprisonment as required by § 46-18-201, MCA, and State v. Pence (1995), 273 Mont. 223, 902 P.2d 41.

At trial, the State presented evidence that from July 4 to July 6, 1995, Harper hosted his ex-brother-in-law, Andy Lopez, and Lopez’s companion, Debbie Curitan, at his home near Helena, Montana. Lopez and Curitan did not know anyone besides Harper in Helena. They came to Helena from Idaho to make a July 6 delivery to a buyer, at Harper’s home, of a large packet of methamphetamine with a value of between $50,000 and $75,000.

At about 4:15 p.m. on July 6,1995, Helena police officers searched Harper’s home. The lawfulness of the search has not been contested, and the fact that the search was a probation search was not disclosed to the jury.

When the officers arrived at Harper’s home, Harper, Lopez, and John Ferriter were sitting at the kitchen table and Curitan was standing nearby. The officers told Ferriter he could leave. When he stood up to go, Ferriter attempted to take three twenty dollar bills that were sitting on the table, but the officers did not allow him to do so.

In the bedroom which Harper identified as his, the officers found a hand scale of a type used to weigh drugs, a marijuana pipe, a bag of marijuana, and a wooden container with residue of sodium acetate, which is commonly used as an adulterant to methamphetamine. On top of Harper’s refrigerator, the officers found a silver spoon which Harper denied ever having seen before. In the living room, they found small baggies of a type commonly used to hold powder drugs.

The officers discussed bringing in a drug-sniffing dog to see if there was any contraband they had missed. Harper appeared to become nervous, with sweat trickling from his forehead. Soon thereafter, an officer discovered the large packet of methamphetamine in Harper’s freezer. When Harper was subsequently booked at the county jail, police discovered a bag of marijuana in his underwear.

At trial, Harper denied that he had known the purpose of Lopez and Curitan’s visit to Helena and denied knowledge of the methamphetamine in his freezer. He repudiated his previous statements to investigating officers, one of whom testified that Harper had admitted to having used marijuana, methamphetamine, and cocaine with Curitan and Lopez during their visit. Harper also repudiated his previous statements to the officer that he was aware of marijuana and other drugs in his house. Despite his previous admissions and despite the location in which it was discovered, Harper testified that the bag of marijuana in his underwear was not his.

Helena Police Officer Jungers testified at trial that Lopez had told him that when he first arrived at Harper’s house on July 4, he placed the large chunk of methamphetamine on Harper’s coffee table, in Harper’s presence, and weighed out six little baggies of the stuff. Jungers testified that Lopez told him Harper commented that the methamphetamine was “pretty stinky stuff,” and then volunteered to help find buyers for the six small baggies of it. At trial, Lopez denied his previous statements to Jungers, saying that they were “words put into my mouth.” Lopez testified that Harper had no knowledge of the methamphetamine.

The jury found Harper not guilty of possession with intent to sell methamphetamine, but guilty of the lesser included offense of possession of the dangerous drug. The jury also found Harper guilty of misdemeanor possession of marijuana and misdemeanor possession of drug paraphernalia — namely, a scale, a crushing spoon, baggies, and a pipe. Based in part on his prior convictions and probation status at the time of these offenses, Harper was designated a persistent felony offender and was given consecutive prison sentences totaling thirty-one years, with ten years suspended.

Issue 1

Is Harper’s conviction of possession of methamphetamine illegal on grounds that the State failed to prove that he was in “knowing control” of the drug “for a sufficient time to be able to terminate control?”

Criminal possession of dangerous drugs requires knowing control of the drugs for a sufficient time to be able to terminate control. Sections 45-2-101(57) and 45-9-102, MCA. Harper contends that there was insufficient evidence that he had knowing control of the methamphetamine to support his conviction of that charge.

Our standard of review of the sufficiency of the evidence is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Ahmed (1996), 278 Mont. 200, 212, 924 P.2d 679, 686. The credibility of witnesses and the weight to be given to their trial testimony are determined by the finder of fact, and if events are capable of different interpretations, the finder of fact determines which is the most reasonable. Ahmed, 924 P.2d at 686.

Under the above standards, it was the jury’s privilege to believe the testimony of Officer Jungers over that of Harper and Lopez. If the jury did so, it clearly could have found that Harper had knowing control of methamphetamine during the two days when he was aware of its presence in his home. Constructive possession or control may be imputed when contraband is found in a place immediately and exclusively accessible to the accused and subject to his dominion and control, which may be jointly shared with another person. State v. Neely (1993), 261 Mont. 369, 374, 862 P.2d 1109, 1112. Harper could have terminated his control of the methamphetamine at any point between July 4 and July 6 by telling Lopez to leave his home or at least to remove the drugs from his home. See Neely, 862 P.2d at 1112. We conclude that a rational trier of fact could have found the essential elements of the crime of possession of the dangerous drug methamphetamine beyond a reasonable doubt. We therefore hold that Harper’s conviction of possession of methamphetamine is supported by sufficient evidence.

Issue 2

Is Harper’s sentence illegal because the court failed to consider alternatives to imprisonment as required by § 46-18-201, MCA, and State v. Pence (1995), 273 Mont. 223, 902 P.2d 41?

Section 46-18-201(11), MCA, provides:

In sentencing a nonviolent felony offender, the court shall first consider alternatives to imprisonment of the offender in the state prison, including placement of the offender in a community corrections facility or program. In considering alternatives to imprisonment, the court shall examine the sentencing criteria contained in 46-18-225. If the offender is subsequently sentenced to the state prison or the women’s correctional system, the court shall state its reasons why alternatives to imprisonment were not selected, based on the criteria contained in 46-18-225.

In Pence, this Court vacated sentencing and remanded the case based upon the district court’s inadequate consideration and discussion in its judgment of the sentencing criteria set forth in § 46-18-225, MCA, as required under the above statute. On appeal, Harper contends the requirements of § 46-18-201(11), MCA, and Pence were not met here.

This issue was not raised before the District Court. This Court has previously refused to review whether a district court failed to consider alternatives to imprisonment when the issue has not been preserved below. See State v. Goulet (1996), 277 Mont. 308, 311-12, 921 P.2d 1245, 1247; State v. Nelson (1995), 274 Mont. 11, 19-20, 906 P.2d 663, 667-68. For the same reasons as those discussed in Goulet and Nelson, we decline to further consider this issue.

Affirmed.

JUSTICES GRAY, REGNIER, TRIEWEILER and HUNT concur.


author: JUSTICE GRAY

text:
    CLARENCE HERRON, Plaintiff and Appellant, v. COLUMBUS HOSPITAL, Defendant and Respondent.
    No. 96-588.
    Submitted on Briefs April 24, 1997.
    Decided August 14, 1997.
    54 St.Rep. 840. 943 P.2d 1272.
    284 Mont. 190.

      For Appellant: Jeff R. Lynch Lynch Law Firm, Great Falls.
    For Respondent: James R. Walsh; Smith, Walsh, Clarke & Gregoire, Great Falls.
   JUSTICE GRAY

delivered the Opinion of the Court.

Clarence Herron (Herron) appeals from the judgment entered by the Eighth Judicial District Court, Cascade County, on its order granting the motion for summary judgment filed by Columbus Hospital (Hospital). We affirm.

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

FACTUAL BACKGROUND

Herron filed a complaint against the Hospital alleging that he had been injured by a set of automatic doors while attempting to enter the main entrance of the North Central Montana Professional Building (Professional Building), which is owned by the Hospital. Herron further alleged that the Hospital had notice that these automatic doors were defective. In its answer, the Hospital denied having notice of any defect in the doors and also denied that Herron suffered any damages as the result of his alleged injury.

The Hospital subsequently moved for summary judgment on the basis that no evidence existed that it had either actual or constructive knowledge of any defective condition regarding the automatic doors at issue and, absent such knowledge, it could not be held liable for any injuries suffered by Herron. In support of its motion, the Hospital submitted the affidavit of its assistant plant engineering director, Walter C. Williams (Williams).

Herron opposed the Hospital’s motion, contending that genuine issues of material fact existed regarding whether the Hospital had actual or constructive knowledge that the doors at the main entrance to the Professional Building were defective. He filed the affidavit of Lyle Skinner (Skinner), an employee in the Hospital’s maintenance department, in support of his position.

The Hospital requested the District Court to delay ruling on its summary judgment motion until such time as it could depose Skinner. Following Skinner’s deposition, the Hospital renewed its motion, relying on Skinner’s deposition. The District Court heard oral arguments and, thereafter, granted the Hospital’s motion for summary judgment. Herron appeals.

STANDARD OF REVIEW

Our standard in reviewing a district court’s summary judgment ruling is de novo; we use the same Rule 56 M.R.Civ.P., criteria as the district court. Clark v. Eagle Systems, Inc. (1996), 279 Mont. 279, 282, 927 P.2d 995, 997 (citations omitted). Rule 56(c), M.R.Civ.P., provides that

[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The party seeking summary judgment must establish both the absence of any genuine issue of material fact which would allow the nonmoving party to recover and entitlement to judgment as a matter of law. Clark, 927 P.2d at 997-98 (citations omitted). If the party seeking summary judgment meets this initial burden, the nonmoving party must come forward with substantial and material evidence raising a genuine issue of material fact. Clark, 927 P.2d at 998 (citation omitted). “[A]ll reasonable inferences thatmightbe drawn from the offered evidence should be drawn in favor of the party who opposed summary judgment.” Clark, 927 P.2d at 998 (citations omitted).

DISCUSSION

Did the District Court err in granting the Hospital’s motion for summary judgment?

Herron’s complaint alleged a cause of action based on premises liability. In Montana, a property owner may be held liable for injuries sustained on its premises if it knew or should have known of the dangerous or defective condition on the premises which caused the injuries and failed to provide warning of the condition. Buskirk v. Nelson (1991), 250 Mont. 92, 96, 818 P.2d 375, 378.

Herron argues that the Hospital failed to satisfy its initial burden of establishing the lack of genuine issues of material fact and, in addition, that he presented evidence to the District Court which clearly raised a disputed issue of fact. Specifically, Herron contends that the Williams affidavit did not establish that the automatic doors at issue did not constitute a dangerous or defective condition and that Skinner’s affidavit established that at least one Hospital employee knew or believed that the doors were defective, thus imputing at least constructive notice of the defective condition of the doors to the Hospital.

At the outset, we note that Herron’s argument that Williams’ affidavit did not establish that the doors at issue were not dangerous or defective misstates the basis of the Hospital’s motion for summary judgment and the District Court’s ruling. In its motion, the Hospital addressed the “knowledge” allegation in Herron’s complaint by asserting that it did not have knowledge that the doors at issue were defective; it did not contend that the doors were not defective. The District Court granted summary judgment on the basis that no genuine issues of material fact existed with regard to any knowledge by the Hospital that the main entrance doors to the Professional Building were in a defective condition. Thus, we must determine whether a genuine issue of material fact exists on the record before us regarding the Hospital’s knowledge of the defective condition of the automatic doors at the main entrance to the Professional Building.

The Hospital submitted Williams’ affidavit to establish that no material factual issues existed regarding any knowledge by it that the automatic doors at the main entrance of the Professional Building were defective. Williams stated that he had been employed as assistant plant engineering director for the Hospital for eight and one-half years; that the main entrance to the Professional Building was equipped with two sets of Horton automatic doors; that, to the best of his knowledge, no complaints had ever been made regarding these doors; and that no work orders existed for any work ever done to these doors. Williams also stated that the Horton automatic doors had been installed in February of 1990, and were checked approximately every 90 days, and that no defects had been discovered prior to the date of Herron’s alleged injury. Williams’ affidavit clearly satisfied the Hospital’s initial burden of establishing the absence of genuine issues of material fact regarding its lack of knowledge that the Professional Building doors were defective.

The Hospital having satisfied its burden as the party moving for summary judgment, Herron was required to come forward with evidence, by way of affidavits or other sworn testimony, which raised genuine issues of material fact. See HKM Assoc. v. Northwest Pipe Fittings, Inc. (1995), 272 Mont. 187, 193, 900 P.2d 302, 305-306. Herron submitted Skinner’s affidavit and, in response thereto and in further support of its motion, the Hospital submitted portions of Skinner’s later deposition which were inconsistent with his affidavit. We consider both together in determining whether Herron raised a genuine issue of material fact regarding the Hospital’s knowledge of a dangerous or defective condition in the Horton doors at the main entrance to the Professional Building.

Skinner’s affidavit states that he was frequently called to respond to work orders or complaints regarding the automatic doors at the Professional Building. In his deposition, however, Skinner testified that the only automatic door systems he worked on at the Hospital were Stanley mechanisms on doors located in a different Hospital building and that he had never had occasion to work on the Horton doors at the Professional Building. Skinner’s deposition testimony clearly contradicts his affidavit in these regards.

Skinner also states in his affidavit that, on many occasions prior to the date of Herron’s alleged injury, he had advised Williams of complaints regarding the automatic doors at the Professional Building. Skinner testified in his deposition, however, that, although he had discussed problems regarding Stanley mechanisms on doors in another Hospital building with Williams, he and Williams had never discussed problems with the Horton automatic doors at the main entrance to the Professional Building or any other Horton automatic doors. Skinner further testified that he had never discussed problems with the Horton automatic doors with anyone else at the Hospital. Again, Skinner’s deposition testimony negates the statements in his affidavit.

When statements in an affidavit submitted pursuant to Rule 56(e), M.R.Civ.P., are repudiated in a later deposition, the affidavit statements do not raise a genuine issue of material fact. In Matter of Estate of Michael (1994), 264 Mont. 261, 266, 871 P.2d 272, 274. Because Skinner’s deposition testimony clearly contradicts the portions of his earlier affidavit discussed above, those affidavit statements do not raise a genuine issue of material fact.

Only two portions of Skinner’s affidavit remain which might establish the existence of a genuine issue of material fact regarding the Hospital’s knowledge and preclude summary judgment. Skinner states that

[biased upon a variety of factors including normal use, and the effect of wind conditions on the operation of the automatic doors at the Columbus Professional Building, I became aware, as I believe my supervisors were, that the automatic doors would frequently malfunction and open and close at irregular times, as well as close suddenly and unexpectedly.

He further states that he believes most, if not all, of the Hospital’s maintenance personnel were aware that the automatic doors used by the Hospital, including the doors in the Professional Building, occasionally malfunctioned. In his deposition, however, Skinner testified that those affidavit statements were based on his experience with the automatic doors at the Hospital on which he did work. The doors on which he worked utilized Stanley opening mechanisms rather than Horton mechanisms.

Herron’s complaint alleged that the Hospital had notice that the doors which allegedly injured him — that is, the doors at the main entrance to the Professional Building which utilized Horton opening mechanisms — were defective. Because Skinner had no experience with, and never worked on, the Horton door mechanism, his statement that he was aware that the automatic doors would frequently malfunction is not based on personal knowledge.

An affidavit submitted in a summary judgment proceeding must be based on the affiant’s personal knowledge of the facts set forth. Rule 56(e), M.R.Civ.P. If an affidavit does not comply with the requirements of Rule 56(e), it does not raise a genuine issue of material fact as a matter of law. Cooper v. Sisters of Charity (1994), 265 Mont. 205, 208, 875 P.2d 352, 354. Comparing Skinner’s affidavit with his deposition testimony, we conclude that the affidavit was not sufficient to raise genuine issues of material fact because it was not based on personal knowledge of the condition of the specific doors which allegedly injured Herron.

In addition, insofar as Skinner’s statement purports to relate to the Horton doors at the main entrance to the Professional Building, the statement is entirely speculative, as is his affidavit statement that he “believed” his supervisors and other maintenance personnel were aware of the malfunction of the automatic doors at issue. Speculative statements are not sufficient to establish the existence of a genuine issue of material fact precluding summary judgment. HKMAssoc., 900 P.2d at 306.

We conclude that Skinner’s affidavit does not establish the existence of a genuine issue of material fact regarding the Hospital’s actual or constructive knowledge that the automatic doors at the main entrance to the Professional Building were defective. Because Herron provided no other evidence or testimony, we further conclude that Herron did not meet his burden of establishing that a genuine issue of material fact exists.

As set forth above, a claim based on premises liability requires proof that the property owner had actual or constructive knowledge, or should have known, of the dangerous or defective condition which caused the plaintiff’s injury. See Buskirk, 818 P.2d at 378. In this case, Herron alleged that the Hospital knew that the automatic doors at issue were defective. Since the Hospital established that no genuine issue of material fact existed regarding its lack of knowledge of the defective condition of the automatic doors at issue, we conclude that the Hospital is entitled to summary judgment as a matter of law.

We hold that the District Court did not err in granting the Hospital’s motion for summary judgment.

Affirmed.

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


author: JUSTICE REGNIER

text:
    IN RE MATTER OF KATHLEEN J. KLOS, A Protected Person.
    No. 96-725.
    Submitted on Briefs April 24, 1997.
    Decided August 14, 1997.
    54 St.Rep. 843. 943 P.2d 1277.
    284 Mont. 197.

      For Appellant: Alan Freed, Jr.; Attorney at Law; Montana Advocacy Program, Inc.; Helena.
    For Respondent: Loren J. O’Toole II; O’Toole & O’Toole; Plentywood.
   JUSTICE REGNIER

delivered the Opinion of the Court.

By oral order entered on August 20, 1996, the Fifteenth Judicial District Court, Daniels Comity, granted temporary guardianship of Kathleen J. Klos to Marie Fossen and Sylvia H. Paulson. We reverse and remand to the District Court.

The issues on appeal are:

1. Is an order granting temporary guardianship pursuant to § 72-5-317, MCA, a final appealable order for review by this Court?

2. Did the District Court’s order granting temporary emergency guardianship comply with the provisions of § 72-5-317, MCA?

3. Did the District Court’s order granting temporary emergency guardianship violate Kathleen Klos’ procedural due process rights under the Montana Constitution?

FACTUAL BACKGROUND

Kathleen J. Klos is a 57-year-old woman with mild retardation who has lived most of her life without the need of a guardian. One of the appellees, Sylvia Paulson, is Klos’ cousin and has been her conservator since October 21, 1982. In 1992, Paulson successfully petitioned the Fifteenth Judicial District Court, Sheridan County, to seal the records of annual accountings made in the conservatorship. On November 29, 1994, after investigating charges that Paulson interfered with Klos’ access and need for medication, the Department of Family Services (DFS) filed medical neglect charges against Paulson. On February 27, 1995, after further investigation and review, the DFS changed its findings from medical neglect to substantiated medical abuse against Paulson for interfering with Klos’ medical needs.

Paulson and Marie Fossen, Klos’ sister, petitioned the Fifteenth Judicial District Court, Daniels County, to be appointed temporary guardians of Klos pending a petition and hearing for limited permanent guardianship. Despite the findings that Paulson had committed medical neglect against Klos, the District Court awarded temporary guardianship for a six-month period to Paulson and Fossen on December 7, 1994. The temporary guardianship lapsed by statute and, although a petition for permanent guardianship was filed, no hearing on the petition for permanent guardianship was ever held.

After being contacted by a DFS caseworker with concerns about the treatment of Klos by her guardians, an attorney for the Montana Advocacy Project, a nonprofit legal services organization that represents individuals with disabilities in Montana, agreed to provide legal representation to Klos in June 1996. On August 16, 1996, appellees, Paulson and Fossen, again filed a petition for permanent guardianship of Klos in the Fifteenth Judicial District Court, Daniels County. Neither Klos nor her attorney of record were served notice of this petition. On August 20,1996, appellees’attorney made an oral motion for temporary guardianship. The District Court verbally granted appellees’ oral motion without issuing a written order or findings of fact and conclusions of law. In fact, the only record of that proceeding is a minute entry from August 20,1996, written by the clerk of court. The minute entry, in its entirety, reads:

Kathleen Klos, Marie Fossen and Sylvia Paulson were Present in Court along with counsel, Loren J. O’Toole II. They were duly sworn in and testified. The Court made a finding that Marie Fossen and Sylvia Harrington Paulson will be Temporary Guardians and a date will be set for full hearing. It was determined that there was no need for appointment of visitors, appointment of Doctors, etc. as this has been already done in a previous case.

Although the attorney for appellees knew that Klos was represented by an attorney, he gave no notice of his clients’ intention to seek temporary guardianship of Klos or that it had been granted.

On September 4,1996, Klos filed a motion to set aside the order of temporary guardianship and requested a stay of execution of the order. The District Court never ruled on the motion or the request for a stay. After the sixty-day period specified in Rule 59(g), M.R.Civ.P., passed and Klos’ motion was deemed denied, she filed this appeal.

ISSUE 1

Is an order granting temporary guardianship pursuant to § 72-5-317, MCA, a final appealable order for review by this Court?

Appellees assert that an order awarding temporary guardianship is an interlocutory order and not a final order or judgment for the purposes of Rule 59(g), M.R.Civ.P. Appellees contend that Rule 1(b)(3), M.R.App.P, only contemplates an appeal from a judgment or an order granting or refusing to grant a guardianship. They rely on Rule 1(b)(3), M.R.App.P., for the proposition that an appeal to this Court cannot be based on an order granting temporary guardianship, which they characterize as an interlocutory order.

Klos counters that the order granting temporary guardianship to Fossen and Paulson and the order refusing to revoke the temporary guardianship are appealable orders under Rule 1(b)(3), M.RApp.P. Klos argues that if the granting of a temporary guardianship is an unappealable interlocutory order, aggrieved parties would have no recourse to challenge the infringement of their personal liberty and freedom of action which necessarily results from such orders.

Rule 1(b)(3), M.RApp.P, states that in civil cases a party may appeal, from, “a judgment or order granting or refusing to grant, revoking or refusing to revoke, letters testamentary, or of administration, or of guardianship.” The rule defines an appealable order as an “order granting or refusing to grant, revoking or refusing to revoke ... guardianship.” Rule 1(b)(3), M.RApp.P., does not differentiate between a permanent guardianship and a temporary guardianship. Thus, a district court order granting either a permanent or a temporary guardianship is appealable.

Furthermore, Klos contends that a proceeding for temporary guardianship is a “special proceeding,” which qualifies as an appeal-able final order under Rule 1(b)(1), M.R.App.P. Rule 1(b)(1), M.RApp.P, states that:

(b) In civil cases a party aggrieved may appeal from a judgment or order except when expressly made final by law, in the following cases:
(1) From a final judgment entered in an action or special proceeding commenced in a district court, or brought into a district court from another court or administrative body.

Section 27-1-102(2), MCA, defines a special proceeding as:

(2) An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. Every other remedy is a special proceeding.

A proceeding for a temporary guardianship is a proceeding separate and apart from a permanent guardianship proceeding. In fact, it appears under its own statutory heading at § 72-5-317, MCA. We therefore conclude that a temporary guardianship proceeding qualifies as a special proceeding under § 27-1-102(2), MCA.

In summary we hold that a district court’s order granting temporary guardianship under § 72-5-317, MCA, is a final order that is appealable under Rule 1(b)(3), M.R.App.R We also hold that a proceeding for temporary guardianship is a special proceeding as defined in § 27-1-102(2), MCA, and appealable under Rule 1(b)(1), M.R.App.P. Thus, the District Court’s oral order granting temporary guardianship of Klos to Fossen and Paulson is an appealable final order, reviewable by this Court.

Appellees argue that Klos failed to comply with Rule 9, M.R.App.P., by not providing this Court with a transcript of the testimony from the August 20, 1996, hearing. Moreover, appellees contend that Klos failed to give notice that the transcript would not be provided pursuant to Rule 9(b), M.R.App.P. Under Rule 9(b), M.R.App.P., if the appellant determines that the entire transcript is not necessary, the appellant must notify the respondent of the parts of the transcript which the appellant determines to be unnecessary, along with a statement of issues which appellant intends to present on appeal.

We are not persuaded by appellees’ argument. As Klos points out, no transcript has been filed with this Court because there was no record made of the proceeding held on August 20, 1996. The only evidence of that proceeding is the minute entry made by the District Court’s clerk of court. Furthermore, Klos notified the Clerk of the Supreme Court by letter that no transcript was made of this proceeding and, thus, none would be filed with the appeal. This Court concludes that Klos has substantially complied with the requirements of Rule 9, M.R.App.R, in her attempt to provide a record for her appeal.

We further observe that the temporary guardianship at issue here expired by operation of law on February 20,1997. At first glance, one may question whether the expiration of the guardianship rendered the matter moot. This Court concludes, however, that this is precisely the type of matter that is capable of repetition yet evading review. See Roe v. Wade (1973), 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147; Butte-Silver Bow Local Gov’t v. Olsen (1987), 228 Mont. 77, 743 P.2d 564. Here, the appellees have twice been awarded temporary guardianship of Klos for a total of one year without a hearing. A temporary guardianship is limited by statute to six months. Section 72-5-317(2), MCA. Thus, any temporary guardianship being challenged likely will have lapsed by the time appellate review can be reasonably conducted. This Court, therefore, determines that because of the likelihood that a person put under a temporary guardianship would not be able to complete appellate review within the six-month term of temporary guardianship, and because these cases are capable of repetition, yet evade review, an appeal of a temporary guardianship cannot be denied as moot after it has lapsed by operation of law. See In re N.B. (1980), 190 Mont. 319, 322-23, 620 P.2d 1228, 1230-31.

ISSUE 2

Did the District Court’s order granting temporary emergency guardianship comply with the provisions of § 72-5-317, MCA?

Klos argues that the imposition of a temporary guardianship violated the statutory requirements of the guardianship statutes. First, Klos cites the failure of the District Court to provide a written record setting forth its findings for the granting of a temporary guardianship to Paulson and Fossen. Second, Klos contends that she and her attorney were not served notice that a hearing would be held regarding the temporary guardianship proceeding on August 20, 1996.

Section 72-5-317(1) and (2), MCA, provide:

Temporary guardians. (1) If an incapacitated person has no guardian and an emergency exists, the court may exercise the power of a guardian pending notice and hearing.
(2) If an appointed guardian is not effectively performing his duties or if there is no appointed guardian and the court further finds that the welfare of the incapacitated person requires immediate action, it may, with or without notice, appoint a temporary guardian for the incapacitated person for a specified period not to exceed 6 months. The court may appoint either a full or a limited temporary guardian, depending on the needs and circumstances of the incapacitated person. The court may not invest a temporary guardian with more powers than are required by the circumstances necessitating the appointment. The order of appointment of a temporary guardian shall state whether a full or limited temporary guardianship is being created and, in the case of a limited temporary guardian, the specific powers and duties of the limited temporary guardian.

In this case, the District Court did not prepare a record in granting the temporary guardianship. The minute entry, which serves as the “record” in this case, states that the District Court “made a finding that Marie Fossen and Sylvia Paulson will be Temporary Guardians and a date will be set for full hearing.” The District Court entered no written order of temporary guardianship, thus there is no finding or conclusion from the proceeding stating whether a full or limited temporary guardianship was granted. Nothing defines the scope of the powers that the guardians may exercise in handling Klos’ affairs. The failure of the District Court to make such a finding violates the plain language of § 72-5-317(2), MCA, and gives this Court no guidance for review of the verbal order granting temporary guardianship over Klos.

Klos and her attorney were never served notice of the temporary guardianship proceeding. Paulson and Fossen’s attorney had actual notice that Klos was represented by an attorney since February 1996. Furthermore, Klos’ attorney notified Paulson and Fossen’s attorney by letters written on July 22, 1996, and August 19, 1996, that he was the attorney of record for Klos and expected timely copies of any papers filed affecting the legal or civil rights of Klos. However, Klos and her attorney were never served notice of the August 20, 1996, hearing. The attorney for Fossen and Paulson sought and obtained a temporary guardianship order from the District Court ex parte without giving any notice to Klos or her attorney, either prior to or subsequent to the proceeding.

Section 72-5-317(2), MCA, does allow a district court the discretion to grant a temporary guardianship without prior notice, but this discretion is to be exercised only in emergency situations where “the court further finds that the welfare of the incapacitated person requires immediate action.” In this case, if emergency circumstances did exist, the District Court never made such a finding. Without a finding of emergency circumstances, Klos and her attorney should have been properly served notice of the hearing for temporary guardianship under Rules 5(a) and 5(b), M.R.Civ.P.

This Court holds that the lack of a record and the failure to serve notice to Klos and her attorney did not comply with the statutory requirements of § 72-5-317, MCA. There are no facts nor findings to indicate that an emergency existed with respect to Klos of the nature that would necessitate the appointment of temporary guardians without giving notice to Klos and her attorney.

ISSUE 3

Did the District Court’s order granting temporary emergency guardianship violate Kathleen Klos’ procedural due process rights under the Montana Constitution?

Klos argues that her right to liberty has been deprived by the action of the District Court. Article 2, Section 17, of the Montana Constitution, states that “no person shall be deprived of life, liberty or property without due process of law.” Under § 72-5-317, MCA, a district court is permitted to grant a temporary guardianship without notice and hearing; however, the statute requires an emergency condition to exist which would make such requirements unreasonable. As stated above, no evidence of an emergency existed, thus the normal notice requirements of § 72-5-317, MCA, applied.

Although this Court has never specifically addressed due process requirements under the guardianship statute, we have often held that no one should be relieved of life, liberty, or property without notice and an opportunity to be heard. The fundamental requirements for due process are “notice and opportunity for hearing appropriate to the nature of the case.” In re Adoption of K.L.J.K. (1986), 224 Mont. 418, 421, 730 P.2d 1135, 1137 (citing Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865). In Ball v. Gee (1990), 243 Mont. 406, 411, 795 P.2d 82, 85, this Court stated:

The Fourteenth Amendment to the United States Constitution and Article II, Sec. 17, of the Montana Constitution provide that no person shall be deprived of property without due process of law. For over a century, the United States Supreme Court has consistently held that before a citizen can be deprived of property, procedural due process guarantees that person a right to be notified and a right to be heard.

In this case, Klos was not given notice and an opportunity for a hearing appropriate for a temporary guardianship proceeding pursuant to § 72-5-317, MCA. First, the District Court considered an oral motion and awarded temporary guardianship of Klos to Fossen and Paulson without giving notice of the proceeding to Klos and her attorney. After the hearing, Klos’ attorney filed a motion to set aside the order and requested a stay of the order; however, the District Court made no ruling on the motion and request. Klos was denied procedural due process when she and her attorney were not provided notice of the hearing, thereby precluding their opportunity to object to the proceeding. As a result, Klos’ liberty interests were certainly impaired.

In conclusion, we hold that a district court’s order granting a temporary guardianship under § 72-5-317, MCA, is a final appealable order under Rule 1(b)(3), M.R.App.P. Furthermore, this Court holds that the lack of any findings or a record by the District Court, and the failure to serve notice to Klos and her attorney, violated Klos’ rights under § 72-5-317, MCA, and under Article 2, Section 17, of the Montana Constitution. In any future guardianship actions regarding Klos in the District Court, notice must be provided to her and her attorney, and a record of any proceeding should be prepared, including the District Court’s findings of fact and conclusions of law. We reverse and remand to the District Court for further proceedings consistent with this opinion.

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


author: JUSTICE NELSON

text:
    NANCY LURIE, Plaintiff/Respondent, v. SHERIFF OF GALLATIN COUNTY, WILLIAM SLAUGHTER, and GALLATIN COUNTY DEPUTY SHERIFF, ROBERT CHESTNUT, Defendants/Respondents, and ROBERT J. BLACKWELL, Intervenor/Defendant/Appellant.
    No. 97-132.
    Submitted on Briefs July 23, 1997.
    Decided August 14, 1997.
    54 St.Rep. 847. 944 P.2d 205.
    284 Mont. 207.
    Appeal from the District Court of Gallatin County.
    Eighteenth Judicial District.
    Honorable Larry W. Moran, Judge.
    See C.J.S. Constitutional Law § 1170.

      For Appellant: Philip F. Walsh, Walsh & McKenna, Bozeman.
    For PlaintiffTRespondent: Charles F. Angel, Angel Law Firm, Bozeman.
    For Defendants/Respondents: Martin D. Lambert, Gallatin County Attorney, Bozeman.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal by Robert J. Blackwell, Intervenor/Defendant/Appellant, from the District Court’s December 18, 1996 Findings of Fact and Conclusions of Law and Order and from its December 24, 1996 Judgment in favor of Nancy Lurie, PlaintiffTRespondent, on her complaint for claim and delivery and conversion which she filed against the Sheriff of Gallatin County and his deputy. We reverse and remand for further proceedings consistent with this opinion.

Issues

Robert J. Blackwell raises two issues on appeal:

1. Whether the District Court erred in issuing a judgment on the merits of the case.

2. Whether the District Court erred in ruling that the property should be returned to Nancy Lurie because she allegedly held the property in tenancy by the entirety with her husband.

Since we reverse and remand on the first issue, we decline to address the second.

Background

Because of the importance of the procedural posture of this case to our decision, we set forth the background of this matter in some detail.

Nancy Lurie (Nancy) is a resident of Bozeman, Gallatin County, Montana. Robert J. Blackwell (Blackwell) is the Liquidating Trustee for the Popkin & Stern Liquidating Trust. In October 1994, judgment was entered in favor of Blackwell and against Nancy’s husband, Ronald Lurie, in the United States Bankruptcy Court, Eastern District of Missouri, Eastern Division, Case No. 92-42218-293. On November 9,1994, this judgment was filed as a foreign judgment in the Montana Eighteenth Judicial District Court, Gallatin County, as Cause No. DV 94-770. A writ of execution was then issued against Ronald Lurie on this judgment. On November 23, 1994, the Sheriff served the writ on Nancy and took possession of certain itemized personal property (the property) from Nancy’s residence in Bozeman. Nancy, claiming ownership of the property, filed suit against the Sheriff and his deputy (collectively referred to herein as the Sheriff), on May 20, 1996, as Cause No. 96-179, alleging causes of action for claim and delivery and for conversion.

At the time of filing her complaint, Nancy also filed a petition for temporary restraining order (TRO) requesting the District Court to

issue a Temporary Restraining Order preventing the Sheriff from holding the Sale on said personal property May 28, 1996; that the Court issue its Order to Show Cause setting a hearing as soon as practicable to determine whether a preliminary Injunction should be issued preventing the sale or disposal of said personal property pending outcome of the litigation filed herein.

Although the TRO is not actually included in the record before us in this appeal, it appears from a minute entry in the court file dated May 30,1996, that on the date Nancy filed her complaint and petition, the District Court issued the requested TRO and an Order to Show Cause. Moreover, and again while the actual supporting documentation is not in the record, the May 30, 1996 minute entry indicates that Blackwell (though not a party to Nancy’s suit) and the Sheriff were served with the TRO and show-cause order and, pursuant thereto, appeared before the District Court by counsel at a show-cause hearing on May 30, 1996.

The transcript of this proceeding indicates that the purpose of the hearing was to allow the Sheriff to show cause why a TRO should not remain in effect “pending a determination on the merits of who owns [the] property that is subject to the sheriff’s sale.”Infact, at the outset of the hearing, Nancy’s counsel acknowledged that her position was that “the matter should be held in abeyance until there has been a determination of who owns this property.” While the court thereafter engaged counsel in a general discussion related to the effect of the underlying bankruptcy, the subject property being allegedly owned by Nancy and by her husband as tenants by the entirety and the choice of law issues, no testimony or evidence was offered or received on the merits of the allegations in Nancy’s complaint regarding her acquisition or ownership of the property. The show-cause hearing closed with the Sheriff agreeing to hold the property without public sale pending further proceedings, with the court ordering further briefs from the parties on their respective positions as to the issues mentioned above, with the court continuing the TRO and with the court refusing to entertain Blackwell’s objection to the continuance of the TRO on the basis that, since he was not a party, he lacked standing to object.

On June 13,1996, the Sheriff filed his answer to Nancy’s complaint pleading insufficient knowledge, and therefore a denial, as to her substantive factual allegations concerning her acquisition and ownership of the property and her legal conclusions and seeking guidance from the court as to how to dispose of the property. On July 9, 1996, Blackwell filed his motion to intervene to which was attached his proposed answer and his objection to the TRO or preliminary injunction. At the same time he also filed a supporting brief on the matter of intervention. On July 12, 1996, Nancy filed her response to Blackwell’s motion to intervene. In this response she agreed that Blackwell should be allowed to intervene. Additionally, she offered comment on Blackwell’s proposed answer, noting that since he had stated in this document that he was without sufficient information to admit or deny Nancy’s verified claims as to her acquisition and ownership of the property, there were no facts before the court to rebut her allegations in that respect. Nancy concluded her response with a request that the court grant her the relief which she requested in her brief filed that same date in accordance with the court’s direction at the May 30,1996 show-cause hearing.

In this brief, Nancy set out her legal position on the issues discussed at the hearing — i.e., the nature of her ownership interest in the property and whether the property could be levied upon to satisfy the judgment against her husband. Nancy argued that the property was acquired by her and her husband as tenants by the entirety in Missouri, that removal of the property to Montana did not change the nature of that ownership, and that the property was not subject to execution. Consistent with her comment on Blackwell’s proposed answer, Nancy took the position in her brief that since the Sheriff’s answer had pled insufficient information to admit or deny her verified and sworn claims as to her acquisition and ownership of the property that her factual allegations and legal conclusions were, therefore “undisputed and uncontroverted” and that she was entitled to the return of the property. She concluded her brief with a request that the court allow oral argument in support of her position.

On August 21, 1996, the court granted Blackwell’s motion to intervene and also granted him 20 days to farther plead and to file a response brief regarding the issues raised at the May 30, 1996 show-cause hearing. On September 10,1996, Blackwell filed his brief in opposition to Nancy’s complaint and petition for TRO. In that document, Blackwell addressed the issues discussed at the May 30, 1996 hearing, attaching various copies of the underlying bankruptcy proceedings. Specifically, Blackwell argued that the property was governed by Montana law, that Montana did not recognize tenancy by the entirety and that the Montana Uniform Enforcement of Foreign Judgments Act did not mandate recognition of every foreign statute. Blackwell concluded that Nancy’s legal position was not supported and that the TRO was not properly issued and should be dissolved. Blackwell’s brief was supplemented three days later, on September 13, 1996, with certified copies of the bankruptcy documents that he had attached to his September 10, 1996 brief.

On September 17, 1996, Nancy filed her reply brief declining to analyze Blackwell’s arguments, noting that in her opening brief she had requested that she be allowed to present oral argument in support of her position and to comment on the matters contained in Blackwell’s filings, and, again, observing that “[t]he only facts before the Court are those contained in the Verified Complaint filed herein and in the affidavits by Plaintiff.” Nancy also reiterated her position that since she claimed ownership of the property as a tenant by the entirety, the property was not subject to execution sale.

On December 18, 1996, the District Court entered its Findings of Fact and Conclusions of Law and Order. The court noted that the “Defendants” (it is not clear whether this reference is simply to the Sheriff or to the Sheriff and Blackwell) pleaded insufficient information to admit or deny Nancy’s sworn allegations and therefore denied the same but had not filed any affidavits to contradict her pleadings. The court acknowledged the parties’briefs and that no testimony had been taken. The court then went on to find, among other things, as “undisputed” facts that many items of the property in question were acquired by Nancy and her husband while domiciled in Missouri, that many items of such property were acquired with separate funds of Nancy, that when Nancy moved to Montana she brought with her from Missouri the property seized by the Sheriff, and that some of the property seized by the Sheriff had previously been given to Nancy’s sons. After discussing various legal authorities, the court then concluded that based on the “undisputed” facts and Blackwell’s and the Sheriff’s failure to “disprove” Nancy’s assertions in her verified complaint regarding her acquisition of the property, the law supported a ruling in her favor. The court then quashed the writ of execution, enjoined the Sheriff from holding the execution sale and ordered the return of all property seized by the Sheriff to Nancy without liability for storage costs.

On December 23,1996, Blackwell moved for rescission or a stay of the court’s order arguing that the court had exceeded its authority by ruling on the merits of Nancy’s complaint when the only motion and issue before the court involved a request by Nancy for an injunction preventing sale of the property pending trial. The following day, December 24,1996, the court entered judgment in favor of Nancy in accordance with its Findings, Conclusions and Order without addressing Blackwell’s motion for rescission or stay. This appeal followed.

Discussion

Whether the District Court erred in issuing a judgment on the merits of the case.

Blackwell argues on appeal that the District Court manifestly exceeded its authority in issuing its December 18, 1996 Findings of Fact and Conclusions of Law and Order and its December 24, 1996 Judgment disposing of Nancy’s complaint on the merits when the only motion or application pending before the court was her request for a preliminary injunction prohibiting the Sheriff from selling the property pending trial on the allegations in her complaint. Blackwell maintains that a trial court can reach the ultimate issues in a case by only one of two methods — a motion for summary judgment or a motion for judgment on the pleadings, neither of which was filed by Nancy; or by a trial on the merits, which was not had in the case at bar.

Nancy contends that the trial court did not err in reaching the merits because the court’s decision was based on the sworn facts set out in her verified complaint and affidavit which were uncontroverted by the Sheriff or Blackwell and were, therefore, “undisputed.” Nancy maintains that “[i]n essence, the Court was presented with an agreed case and entered its order in accordance with the agreed upon facts.” We disagree.

At the outset, we observe that, with the qualifications previously mentioned, the only substantive documents in the District Court file are the pleadings, Nancy’s petition for TRO and supporting affidavit, the various briefs discussed above, the court’s decision and judgment from which this appeal is taken and Blackwell’s objections thereto. No motion for summary judgment or motion for judgment on the pleadings was filed by Nancy, no discovery was conducted by either party, and there has never been an evidentiary hearing or trial on the matter of Nancy’s acquisition and ownership of the property.

Nancy and the court take the position that the sworn allegations in her complaint and affidavit as to her acquisition and ownership of the property were undisputed and uncontroverted by either Blackwell or the Sheriff and that, therefore, the court properly disposed of the case on the merits. Unfortunately, the latter erroneous conclusion flows from the former mistaken premise. As to the substantive allegations in Nancy’s complaint that she owned the property with her husband as tenants by the entirety having acquired the property in Missouri and that she acquired many items of the property with her separate funds, both the Sheriff and Blackwell pleaded that they were without sufficient information to admit or deny such allegations and that, therefore, they denied the same. Moreover, in his answer at paragraph IX, Blackwell additionally asserted that he denied each and every allegation in Nancy’s complaint not specifically admitted.

Under Rule 8(b), M.R.Civ.R, the legal effect of pleading insufficient information to admit or deny an asserted claim is a denial of the averment. Accordingly, Nancy’s and the court’s conclusions that Nancy’s claims as to her acquisition and ownership of the property were undisputed and uncontroverted were erroneous as a matter of law. The Sheriff effectively denied such allegations in his answer and Blackwell denied such allegations both effectively and unequivocally in his. Nancy’s claims in this regard were both disputed and controverted, and without further development of the factual basis for her allegations as to her acquisition and ownership of the property by discovery, by trial or by a properly noticed and supported motion for summary judgment, the court was in no position to rule on the merits of these issues. Contrary to Nancy’s argument, this case was not submitted to the court on agreed facts. Indeed, her factual allegations as to her acquisition and ownership were very much disputed having been placed at issue by the Sheriff’s and Blackwell’s answers.

Moreover, it is clear from Nancy’s petition for TRO and from the statements of counsel at the show-cause hearing, that the only matter at issue there was whether the Sheriff should be enjoined from selling the property at execution sale pending resolution of the issue of the ownership of the property. This purpose was effectively accomplished when the Sheriff agreed not to dispose of the property pending further order of the court and when the court continued the injunctive relief initially granted via the TRO. Regardless of what facts concerning Nancy’s acquisition and ownership of the property were at issue and regardless of the legal questions raised by the court and briefed by counsel concerning the effect of the underlying bankruptcy proceedings, choice of law, and ownership by tenancy by the entirety, the only matter properly before the court was Nancy’s request for preliminary injunctive relief.

In Knudson v. McDunn (1995), 271 Mont. 61, 894 P.2d 295, we held that it is not the province of the district court to determine in proceedings for temporary or preliminary injunctive relief matters that may arise during the trial on the merits.

During a show cause hearing on a preliminary injunction, the district court should restrict itself to determining whether the applicant has made a sufficient case to warrant preserving a right in status quo until a trial on the merits can be had.

Knudson, 894 P.2d at 298 (citing Porter v. K. & S. Partnership (1981), 192 Mont. 175, 183, 627 P.2d 836, 840). In Porter, we stated:

In granting temporary relief by injunction, courts of equity should in no maimer anticipate the ultimate determination of the questions of right involved. Rather, the court should decide merely whether a sufficient case has been made out to warrant the preservation of the property or rights in status quo until trial, without expressing a final opinion as to such rights. ... Findings and conclusions directed toward the resolution of the ultimate issues are properly reserved for final trial on the merits.

Porter, 627 P.2d at 840.

Similarly, in the case at bar, we hold that, as a matter of law, the District Court erred by going beyond the petition and matter before it — i.e., that of preserving the status quo and preventing the execution sale of the property via preliminary injunctive proceedings — and by, instead, anticipating the ultimate issues to be resolved at trial and by disposing of the case on the merits. In doing so, the court negated Nancy’s burden of proving her allegations concerning acquisition and ownership by a preponderance of the evidence, and, without notice, effectively precluded discovery, deprived Blackwell and the Sheriff of their opportunity to disprove Nancy’s allegations concerning her acquisition and ownership of the property and, thus, denied their right to procedural due process in violation of Article II, Section 17 of Montana’s Constitution.

The District Court’s December 18, 1996 Findings of Fact and Conclusions of Law and Order and its December 24,1996, Judgment are reversed and this case is remanded for further proceedings consistent with this opinion.

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

      . We did not locate in the record on appeal any actual signed answer filed by Blackwell, although both Blackwell and Nancy appear to proceed on appeal on the premise that the proposed answer was actually filed. We do note that beginning with document number 4 in the record, those document numbers do not correspond with the numbers on the clerk of court’s docket sheet. Given that the TRO and Order to Show Cause and possibly other related documents were also apparently not included in the district court file on appeal (they are simply referred to in the May 30, 1996 minute entry) and because Nancy has not raised in her response brief any failure of Blackwell to actually file an answer, we will proceed on the assumption that, for purposes of this appeal, Blackwell’s proposed answer was at some point filed. If that turns out not to be the case, we leave it to the District Court on remand to consider the significance of this, if any, as part of the further proceedings ordered herein.

      . In separate proceedings, the trial court’s order and judgment in favor of Nancy have been stayed by this Court pending appeal.


author:
JUSTICE REGNIER JUSTICE TRIEWEILER
      JUSTICE LEAPHART,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RICHARD ARNOLD SAVARIA, Defendant and Appellant.
    No. 96-207.
    Submitted on Briefs March 6, 1997.
    Decided August 19, 1997.
    54 St.Rep. 852. 945 P.2d 24.
    284 Mont. 216.

      For Appellant: William F. Hooks, Appellate Defender, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General; Helena; Robert L. “Dusty” Deschamps HI, Missoula County Attorney; Missoula.
   JUSTICE REGNIER

delivered the Opinion of the Court.

On November 7, 1994, Richard Arnold Savaria was sentenced by the Fourth Judicial District Court, Missoula County, to a term often years in the Montana State Prison for each of the charged seven counts of felony theft. Savaria appealed. This Court affirmed his conviction, but reversed the District Court’s sentence and remanded the case to the District Court for resentencing pursuant to §§ 46-18-201(10) and -225, MCA. State v. Savaria (1995), 274 Mont. 197, 906 P.2d 215. On remand for resentencing, the District Court ordered that Savaria be committed to the Department of Corrections for a term of ten years on Count I. The District Court further sentenced Savaria to a term of ten years in the Montana State Prison on each of the remaining six counts, with the sentence on these counts suspended subject to certain terms and conditions. The sentences are to be served consecutively. Savaria appeals from this judgment. Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

The issues on appeal are:

1. Did the District Court err in treating the “Affidavit — In Support of Motion to Vacate Set Aside Sentence” as a petition for post-conviction relief, and in entering an order on that basis?

2. Did the District Court deny Savaria his constitutional right to the assistance of counsel on direct appeal?

3. Did the District Court err in imposing consecutive sentences in violation of the protection against multiple punishments afforded by state and federal constitutional provisions?

4. Did the District Court lack statutory authority to “reserve” the right to attach conditions to Savaria’s suspended sentence?

FACTUAL BACKGROUND

On June 30,1994, Savaria was charged by information filed in the Fourth Judicial District Court, Missoula County, with seven counts of felony theft pursuant to § 45-6-301(2)(a), MCA. The alleged offenses arose from Savaria’s issuance of checks to retail merchants on a nonexistent checking account during a five-day period in April 1994. The information provided:

COUNTI

On or about April 19, 1994, the above-named Defendant [Savaria] purposely or knowingly obtained by deception control over property, jewelry property of Gold Rush Jewelry in South-gate Mall, with the purpose to deprive the owner of the property. The value of the property is in excess of $500.

COUNT II

On or about April 19, 1994, the above-named Defendant purposely or knowingly obtained by deception control over property, clothing and stereo property of Sears in Southgate Mall, with the purpose to deprive the owner of the property. The value of the property is in excess of $500 and the theft was part of a common scheme.

COUNT III

On or about April 18 and 19,1994, the above-named Defendant purposely or knowingly obtained by deception control over property, food and other items property of Costco, with the purpose to deprive the owner of the property. The value of the property is in excess of $500 and the theft was part of a common scheme.

COUNT IV

On or about April 16 to 18, 1994, the above-named Defendant purposely or knowingly obtained by deception control over property, jewelry, watches and sports equipment property of Bob Wards, with the purpose to deprive the owner of the property. The value of the property is in excess of $500 and the theft was part of a common scheme.

COUNTV

On or about April 18, 1994, the above-named Defendant purposely or knowingly obtained by deception control over property, cassette player, tuner, speakers and other stereo equipment, property of Stereo Plus, with the purpose to deprive the owner of the property. The value of the property is in excess of $500 and the theft was part of a common scheme.

COUNT VI

On or about April 16 and 18,1994, the above-named Defendant purposely or knowingly obtained by deception control over property, automobile parts, property of Champion Auto, with the purpose to deprive the owner of the property. The value of the property is in excess of $500 and the theft was part of a common scheme.

COUNT VII

On or about April 15 through 19,1994, the above-named Defendant purposely or knowingly obtained by deception control over property, clothing and other property of Maurice’s, the Altogether, Traditions, Western Sportsman, and Western Outfitters in Southgate Mall; shoes, clothing, purse and backpack, property of Ogg Shoes on North Higgins and Southgate Mall; and household items, property of Ace Hardware and Ernst with the purpose to deprive the owner of the property. The value of the property is in excess of $500 and the theft was part of a common scheme.

On August 10, 1994, Savaria entered a plea of guilty to all seven charges of felony theft as alleged in the information. Prior to sentencing, Savaria’s counsel filed a sentencing memorandum in which she argued that the prosecutor divided the checks arbitrarily in the information and charged Savaria with seven counts of common scheme when only one common scheme actually occurred. Savaria’s counsel stated that she did not object to this action at the plea hearing because she believed the District Court would rule that it was a matter of prosecutorial discretion and that the common scheme issue should more appropriately be addressed at sentencing since Savaria pled guilty to all seven counts. In the memorandum, Savaria’s counsel urged the court to impose seven concurrent sentences, rather than seven consecutive sentences.

The District Court sentenced Savaria to ten years at the Montana State Prison on each count, and ordered that the sentences run consecutively. The court’s judgment suspended the sentences imposed on Counts II through VII upon certain conditions, including the requirement that Savaria pay a total of $16,976.20 in restitution. Savaria appealed this judgment, challenging the failure of the District Court to state why alternatives to imprisonment were not selected pursuant to § 46-18-201(10), MCA. The State filed a notice of concession, and this Court affirmed Savaria’s conviction and remanded for resentencing. Savaria, 274 Mont. 197, 906 P.2d 215.

On January 24, 1996, Savaria was resentenced by the District Court. At the sentencing hearing, Savaria’s counsel deferred to Savaria who argued that the thefts were committed as part of one common scheme and, therefore, he should not be sentenced on each charge. Savaria argued that if the District Court sentenced him on each count individually with the sentences to run consecutively, it would constitute multiple punishments in violation of the prohibition against double jeopardy.

The District Court rejected Savaria’s argument, stating that each count was itself a felony theft, as the property taken in each count exceeded $500. The District Court stated:

Let’s ignore the common scheme. If you steal property in Montana that is valued at over five hundred dollars, it is a felony. That is the definition of felony theft, and the State has alleged that in each of these counts.
It has also alleged common scheme, which would make it a felony. Either one of those would make it a felony if they were charged in the alternative.
I agree with you that if you were being sentenced under the common scheme of things, that all sentences should run concurrent.

The court then sentenced Savaria to a term of ten years with the Department of Corrections on Count I, and to terms of ten years imprisonment in the Montana State Prison each on Counts II through VII, to rim consecutively to each other and to the term in Count I. The terms were suspended on a number of conditions.

On February 13, 1996, Savaria filed a pro se document entitled “Affidavit — In Support of Motion to Vacate Set Aside Sentence” in which he again presented his double jeopardy argument. Savaria specifically requested that the court resentence him “to no more than the maximum sentence allowed by law under the charge of theft as specified in Section 45-6-301 M.C.A. of which is ten (10) years; for one common scheme.” The State responded to this document by stating that it was not an affidavit, but should be treated as a petition for post-conviction relief, as it viewed this to be Savaxia’s only avenue for relief. The State asked the District Court to treat the document as a petition for post-conviction relief and asked the court to dismiss it for failure to state a claim for relief.

On April 8,1996, the District Court issued an order in response to Savaria’s affidavit, noting that Savaria’s notice of appeal filed on March 15, 1996, divested the court of jurisdiction to rule on any pending motions. The court concluded, however, that it had jurisdiction to entertain a petition for post-conviction relief, as it was a civil proceeding independent of the underlying criminal matter. The District Court then denied Savaria’s petition for post-conviction relief. Savaria appeals.

ISSUE 1

Did the District Court err in treating the “Affidavit — In Support of Motion to Vacate Set Aside Sentence” as a petition for post-conviction relief, and in entering an order on that basis?

Savaria raises this issue in an effort to have this Court treat this matter as a direct appeal of his sentence, rather than an appeal from the denial of his petition for post-conviction relief. The State submits it is willing to concede that the present appeal should be considered a direct appeal of his sentence, rather than an appeal from a denial of his post-conviction petition. Therefore, we do not need to further address this issue.

ISSUE 2

Did the District Court deny Savaria his constitutional right to the assistance of counsel on direct appeal?

Savaria argues that the District Court did not adequately protect his Sixth Amendment right to appellate counsel when it referred the matter to the Missoula Public Defender to determine whether any appealable issues existed. Savaria is currently represented by the Appellate Defender, making this issue moot. We therefore decline to address this issue.

ISSUE 3

Did the District Court err in imposing consecutive sentences in violation of the protection against multiple punishments afforded by state and federal constitutional provisions?

The constitutional prohibition against double jeopardy is found in the Fifth Amendment and is made applicable to the states through the Fourteenth Amendment. Article II, Section 25, of the Montana Constitution, provides the same protection. The provision against double j eopardy protects defendants from both multiple punishments imposed at a single prosecution for the same offense, and for multiple prosecutions for offenses arising out of the same transaction. State v. Palmer (1983), 207 Mont. 152, 158, 673 P.2d 1234, 1237. This Court has consistently applied the tests set forth in Blockburger v. United States (1932), 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306, when examining issues of double jeopardy.

Blockburger addresses the two situations in which double jeopardy violations may occur. The first test enunciated in Blockburger is known as the “elements test” and provides that:

A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

Blockburger, 284 U.S. at 304, 52 S. Ct. at 182. The second test set forth in Blockburger dealt with the issue of multiple violations of the same statutory provision:

Each of several successive sales constitute a distinct offense, however closely they may follow each other ... when the impulse is single, but one indictment lies, no matter how long the action may continue. If successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie.

Blockburger, 284 U.S. at 302, 52 S. Ct. at 181.

The second Blockburger test dealing with multiple violations of the same statutory provision is the test which Savaria contends applies to his conviction and sentencing. Savaria argues that the court erred when it imposed multiple punishments because he committed only one violation of the statutory provision for felony theft, a common scheme. He argues that he engaged in only one common scheme. The State asserts that each incident of theft constituted a separate and ■unique common scheme and, therefore, the District Court properly sentenced Savaria for multiple violations of the same statutory provision.

In State v. Crowder (1991), 248 Mont. 169, 810 P.2d 299, this Court addressed the issue of multiple violations of the same statutory offense. In Crowder, the defendant was charged with two violations of “possession of dangerous drugs.” This Court was presented with the question of whether Crowder’s possession of drugs on his person and possession of drugs on his property constituted two separate acts of possession. In that case, Crowder asserted that the principles of fundamental fairness required that he be charged only once for conduct which amounted to the same transaction. In Crowder, we looked to the second test set forth in Blockburger and upheld the conviction. We stated that in order to determine the “allowable unit of prosecution” courts must look to the legislative intent since discretion is with the Legislature to impose punishments subject only to constitutional limitations. Crowder, 810 P.2d at 305. We held that the Legislature intended to punish each separate possession of dangerous drugs and concluded that the district court did not err in failing to join the separate counts of possession on the person and possession on the premises.

In Stilson v. State (1996), 278 Mont. 20, 924 P.2d 238, we applied the determination of allowable unit of prosecution to the question of whether the Legislature intended that a defendant could be punished for more than one common scheme. In Stilson, the defendant was charged under the same statute of issuing a bad check, a felony, common scheme, in three separate cases in three counties and was convicted in each case of that offense. We concluded that, under the facts, the multiple punishments were not barred by double jeopardy protections, even though there was no express legislative intent:

While we agree with Stilson that the Code does not provide for multiple common schemes, we conclude that neither has the legislature foreclosed such a possibility. Under the appropriate facts and circumstances, we conclude that double jeopardy protections do not necessarily prevent a defendant who has been convicted of a common scheme in one county from being convicted of another common scheme in a different county.

Stilson, 924 P.2d at 241. We further explained that the “evidence required for the State to prove the offense in each county was different and specific to each county and the series of acts or transactions in each county were different from those in the other jurisdictions.” Stilson, 924 P.2d at 241.

Aprosecutor’s supervision of criminal actions is complete and is ‘limited only by such restrictions as the law imposes.” State ex rel. Fletcher v. District Court (1993), 260 Mont. 410, 414, 859 P.2d 992, 995. When the facts support a possible charge of more than one crime, the crime to be charged is a matter of prosecutorial discretion. State v. Smaage (1996), 276 Mont. 94, 98, 915 P.2d 192, 194-95; Fletcher, 859 P.2d at 995.

Common scheme is defined by § 45-2-101(7), MCA, as “a series of acts or omissions motivated by a purpose to accomplish a single criminal objective or by a common purpose or plan that results in the repeated commission of the same offense or that affects the same person or the same persons or the property of the same person or persons.” Here, the prosecutor exercised her discretion by charging Savaria with individual common schemes. These common schemes are each supported by separate and distinct evidence. Counts II through VI of the information were individual common schemes, as they each consisted of a series of acts, motivated by a common purpose or plan, that affected the property of the same person or persons. Each count was specifically related to the acts which occurred in the individual stores set forth in each of these charges. The prosecutor had the discretion to charge each of these counts as individual felony theft, a common scheme. The prosecutor could have also charged these counts as felony theft under § 45-6-301(8), MCA, without charging common scheme. This subsection provides: “Amounts involved in thefts committed pursuant to a common scheme or the same transaction, whether from the same person or several persons, may be aggregated in determining the value of the property.” Section 45-6-301(8), MCA (emphasis added). The amounts involved in each count could have been aggregated if they were involved in the same transaction and charged as individual counts of felony theft; however, the prosecutor chose to exercise her discretion by charging Counts II through VI each as a felony theft, a common scheme. This does not violate the provision against double jeopardy because each count was an individual common scheme dependent on different evidence specific to each store.

Count VII of the information grouped the thefts from several stores into one charge of felony theft, a common scheme. Again, the prosecutor was within her discretion to charge in this manner. The acts committed by Savaria in this count were committed with a common purpose or plan and resulted in the repeated commission of the same offense. The evidence required to prove this charge is separate and distinct from the evidence required to prove the other charges.

The prosecutor had the discretion to charge separate common schemes, as she did, and was not limited by any restrictions within the law to only charge all the offenses committed as being a part of a single common scheme. The District Court, therefore, did not err in imposing consecutive sentences on the separate charges because they were not in violation of the protections afforded by the Montana and the United States Constitutions against multiple punishments.

ISSUE 4

Did the District Court lack statutory authority to “reserve” the right to attach conditions to Savaria’s suspended sentence?

The District Court, in its sentencing order, stated that it retains jurisdiction and the right to impose additional conditions. Savaria alleges that this condition violates our holding in State v. Wilson (1996), 279 Mont. 34, 926 P.2d 712. In Wilson we stated:

A district court may not sentence a defendant to a term of imprisonment and reserve the right to impose additional restrictions during the defendant’s probation. Conditions of a defendant’s probation should be imposed at sentencing. If a court finds, after a hearing, that a defendant has violated the terms and conditions of a suspended sentence, the court may continue the suspended sentence with modified or additional terms and conditions. Section 46-18-203(7), MCA.

Wilson, 926 P.2d at 717.

Although Wilson was decided after the District Court resentenced Savaria, the State concedes, and we agree, that it is nonetheless applicable. Therefore, this probation condition shall be stricken from the District Court’s judgment issued on January 31, 1996.

Affirmed in part, reversed in part, and remanded to the District Court for proceedings consistent with this opinion.

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

JUSTICE TRIEWEILER

specially concurring.

I concur with the majority’s opinion as it relates to Issues 1, 2, and 4. I specially concur with the result of the majority’s opinion as it relates to Issue 3; however, I do not agree with the reasons given for that result. Neither do I agree with the majority’s reliance on this Court’s unfounded decisions in State v. Crowder (1991), 248 Mont. 169, 810 P.2d 299, and Stilson v. State (1996), 278 Mont. 20, 924 P.2d 238. On the issue of the adequacy with which separate claims of common scheme have been alleged, I agree with Justice Leaphart’s analysis.

I concur with the majority’s conclusion that Savaria’s sentence did not violate the prohibition against multiple punishments for the same crime for the reasons given by the District Court when it imposed Savaria’s sentence. Savaria was punished for multiple offenses without regard to any common scheme. Each count of the State’s information alleged a separate theft by Savaria of property with a combined value in excess of $500. Savaria pled guilty to all seven counts of felony theft. Whether or not each count was the result of a separate common scheme is irrelevant. Section 45-6-301(7)(b), MCA, provides that a person convicted of theft of property exceeding $500 in value may be punished by a term of ten years in prison. Section 45-6-301(8), MCA, provides that amounts involved in thefts committed pursuant to a common scheme may be aggregated, but also that amounts involved in thefts committed during the same transaction may be aggregated for purposes of determining the value of the property stolen. Therefore, whether the aggregate amount alleged in each count was the result of a common scheme, or the cumulative total of various items taken in the same transaction, makes no difference. Savaria pled guilty to seven separate incidents of theft involving items with a combined value in excess of $500. For that reason, the District Court did not err when it sentenced him separately to the maximum term allowable for each conviction.

For these reasons, I concur with the result of the majority opinion although I do not agree with all that is said therein.

JUSTICE LEAPHART,

dissenting.

I concur as to Issues number one, two and four. I dissent as to Issue number three. In each of Counts II through VI the State charges Savaria with theft as part of a “common scheme.” Savaria contends that none of these five counts allege a separate, stand alone “common scheme” because none of the counts alleges a separate “series of acts,” which is a sine qua non of a common scheme. Section 45-2-101(7), MCA. Therefore, in order to constitute a “common scheme,” each count must be analyzed in reference to the other counts. That is, the allegations in the various counts, when read together, allege a “series of acts” which constitute one all-encompassing common scheme as opposed to five separate common schemes.

Savaria’s theory is best understood when one looks at Counts II and V. In neither count is there an allegation that Savaria engaged in a series of acts. Rather, each count alleges that Savaria obtained property from one business on one particular day. Although the Information does not say one way or the other, we must assume that the property was obtained with one check in each of the two stores. Tendering one bad check in one store in one day does not constitute a “series of acts” which is a prerequisite to a common scheme under § 45-2-101(7), MCA. Thus, when the State alleges “common scheme” in Counts II and V, it has not alleged separate, stand alone “common schemes.” Both logic and semantics dictate that Counts II and V must rely upon other counts in the Information in order to satisfy the “series of acts” element of a “common scheme.” Clearly, the charging document envisions one, not two common schemes in Counts II and V.

Savaria is entitled to assume that the State used the term “common scheme” consistently throughout the Information. Since Counts II and V clearly charge one interrelated common scheme, it is only logical that Counts III, IV and VI, which also fail to allege any series of acts, employ the term “common scheme” in the same broad sense.

The double jeopardy protections of the Fifth Amendment to the United States Constitution and Article II, Section 25 of the Montana Constitution, prohibit imposition of multiple punishments in a single prosecution for the same offense. See State v. Palmer (1983), 207 Mont. 152, 158, 673 P.2d 1234, 1237.

This Court concludes that the prosecutor had the discretion to charge separate common schemes and that each count “was an individual common scheme dependent on different evidence specific to each store.” Although I agree that, given the right allegations, a prosecutor can charge separate common schemes, I do not agree that the allegations in Counts II through VI of this Information charge separate common schemes. The counts do not each allege “different evidence” constituting a separate “series of acts.” On the contrary, in none of the five counts does the State specifically allege the number of checks written in any one business establishment. Furthermore, in contrast to Count VII, none of these counts involves more than one merchant.

The Information charges Savaria with committing various acts, specified in five interrelated counts. At sentencing, the court purported to circumvent the common scheme conundrum when it stated:

What I want understood is you’re not being sentenced under the common scheme. You’re being sentenced because each of the eight counts constitutes a felony. I have seven counts, excuse me, in that you took property valued at more than five hundred dollars.

I would agree with the court’s approach if the State had charged felony theft of $500 or theft by common scheme in the alternative. However, it did not do so. Rather, each count of the Information charged Savaria with “common scheme” involving more than $500. These acts constitute one common scheme. The court does not have leeway to redraft the Information, ignore the charge of common scheme and sentence on the basis of separate felony thefts. Accordingly, I conclude that, in sentencing Savaria separately to ten years on each of the five interrelated “common scheme” counts, the court subjected Savaria to multiple punishments for the same conduct, i.e., the same “common scheme.” I would reverse and remand for resentencing.