text:
    LEE McDONALD, Plaintiff, Cross-Defendant and Appellant, v. UNIREX, INC., Defendant, Cross-Claimant and Respondent, and Exeter Exploration Co., McAlester Fuel Company , and Western Crude Oil, Inc., Defendants.
    No. 85-119.
    Submitted on Briefs Dec. 3, 1985.
    Decided April 22, 1986.
    718 P.2d 316.
    Lee McDonald, pro se.

      Crowley, Haughey, Hanson, Toole & Dietrich, Norman Hanson, Billings, for Unirex.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The District Court for the Fourteenth Judicial District, Mussel-shell County, entered a partial final judgment that Mr. McDonald’s tax deed to a certain mineral reservation right of entry did not give him any interest in oil or gas or minerals under the land. Mr. McDonald appeals. We affirm.

The defendants hold a 45/562.24 interest in the mineral rights underlying certain real property in Musselshell County. Their mineral reservation right of entry was assessed and taxed by the county for the year 1975, under former Section 84-301, RCM (1947) (now repealed). The taxes were unpaid. Mr. McDonald obtained the tax deed to the right of entry, together with a certificate of title.

Mr. McDonald claims that his right of entry interest by virtue of the tax deed includes the oil and gas under the land and produced from the land. He brought this action to have title to the oil and gas under the land quieted in him and to recover for oil and gas that had been produced from the land. Defendant Unirex moved for partial summary judgment on the issue of whether the right of entry gave Mr. McDonald any interest in the underlying mineral rights. After submission of briefs and a hearing, the District Court issued a partial final judgment that it did not. The issue was properly certified under Rule 54(b), M.R.Civ.P.

Mr. McDonald’s position is that his mineral reservation right of entry includes a right to the underlying oil and gas because of the language in Section 15-6-131, MCA (1979), a revision of Section 84-301, RCM, which read in part:

“Class one property — description — taxable percentage. (1) Class one property includes:
“(a) the right of entry that is a property right reserved in land or received by mesne conveyance (exclusive of leasehold interests), devise, or succession to enter land whose surface title is held by another to explore, prospect, or dig for oil, gas, coal, or minerals; . . .”

He asserts that this section defined right of entry as including the right to explore, prospect, or dig for oil, gas, coal or minerals. He also contends that at the time mineral reservation rights of entry were first taxed in Montana, this state recognized the non-ownership or exclusive right theory with regard to minerals. He relies upon Northern Pac. Ry. Co. v. Musselshell County (1917), 54 Mont. 96, 169 P.53, to support this contention. Under the non-ownership theory, mineral rights are a servient estate to the right to enter and explore upon the land. Therefore, he maintains, his mineral reservation right of entry includes the minerals under and produced from the land. He acknowledges that Montana has since adopted the ownership-in-place theory in regard to minerals, but maintains that the theory recognized at the time mineral reservation rights of entry were first taxed must be used to determine the nature and extent of his right of entry.

Mr. McDonald’s argument based on Section 15-6-131, MCA (1979) is unpersuasive. That statute listed property rights which were taxable as class one property. It did not purport to define mineral reservation rights of entry. Authority contrary to Mr. McDonald’s position is found at Section 70-17-101(5), MCA, which categorizes as easements the right of taking “water, wood, minerals, and other things.” See also Cranston v. Musselshell County (1970), 156 Mont. 288, 292, 483 P.2d 289, 291, discussing the “right of entry easement.”

We do not find authority in the case Mr. McDonald cited, Northern Pacific, that the non-ownership theory as to minerals-in-place was ever accepted in Montana. It is true that in that case, this Court referred to minerals-in-place as personal rather than real property. Northern Pacific, 169 P. at 56. That classification, however, does not determine whether minerals can be owned in place. 1 Williams and Meyers, Oil and Gas Law Section 212 (1985). In Northern Pacific, 169 P. at 58, this Court also categorized a reservation of minerals-in-place as a corporeal hereditament and the right of entry as an incorporeal hereditament. That categorization is consistent with recognition of the ownership-in-place theory. 1 Williams and Meyers, Oil and Gas Law Section 209 (1985).

This Court has included in a list of “basic, well-established rules in the field of oil and gas conveyancing” the following: 1) Montana is an ownership-in-place state with regard to oil, gas, and other minerals; 2) title to the mineral interest in land may be separated from the rest of the fee simple title; 3) under a mineral deed conveyance, the grantee receives, among other incidents, the right to go upon the land and explore for and produce oil and gas. Stokes v. Tutvet (1958), 134 Mont. 250, 255, 328 P.2d 1096, 1099. Montana has consistently adhered to the ownership-in-place theory. 1 Williams and Meyers, Oil and Gas Law, Section 203.3 (1985).

We conclude that in Montana a mineral reservation right of entry is an easement, and conveys no interest in the underlying oil, gas, or minerals, or in oil, gas, or minerals produced from the land. The District Court is affirmed.

MR. JUSTICES HARRISON, MORRISON, SHEEHY and GULBRANDSON concur.


source: Caselaw Access Project

author: MR. JUSTICE HUNT MR. JUSTICE WEBER,

license: Public Domain

text:
    JAMES BARRETT, Plaintiff and Respondent, v. JOHANNES SOYLAND, and Western Energy Company, a corporation, Defendants and Appellants.
    No. 85-189.
    Submitted Dec. 6, 1985.
    Decided April 22, 1986.
    Rehearing denied May 16, 1986.
    717 P.2d 1090.

      Crowley, Haughey, Hanson, Toole & Dietrich, George C. Dalthorp argued, Billings, for defendants and appellants.
    Huntley & Eakin, Ira Eakin argued, Baker, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Respondent, James Barrett, brought an action in the Fallon County District Court against appellants for the wrongful death of his daughter. Process was never served on Soyland. Appellant, Western Energy Company (Western), made two motions for summary judgment, a motion to dismiss, and a motion for a directed verdict. All appellant’s motions were denied. The case was tried to a jury that awarded respondent $100,000 on January 10, 1985. Appellant appeals the denial of its motions.

We affirm.

The issue on appeal is whether Barrett’s ex-wife’s prosecution and settlement of her action for the daughter’s wrongful death is a bar to James’ prosecution of his action.

James and Sandra Barrett were married in 1963. Brenda Lee Barrett was born in 1966, the only child of the marriage. James and Sandra were divorced in 1969, and Sandra was awarded custody of Brenda. James continued to pay child support for, and maintained contact with Brenda up until the date of her death.

Sandra remarried and became Sandra Askin. She subsequently moved to Fallon County, Montana, with her husband and Brenda.

On April 22, 1975, nine-year-old Brenda was killed in an automobile accident involving a truck driven by Soyland, an employee of Western.

At the time of Brenda’s death, Section 93-2809, R.C.M. (1947) was in effect. That statute read:

“A father, or in case of his death or desertion of his family, the mother, may maintain an action for the injury or death of a minor child . . ., when such injury or death is caused by the wrongful act or neglect of another.”

Two weeks after the decedent’s death, effective May 6, 1975, the legislature amended the wrongful death statute to read:

“Either parent may maintain an action for the injury or death of a minor child . . . when such injury or death is caused by the wrongful act or neglect of another.”

On July 14, 1975, approximately 10 weeks after the new statute went into effect, Sandra filed a wrongful death action in the Fallon County District Court alleging that she was the natural mother and legal custodian of the deceased. On the morning of trial, Sandra settled her case for $35,000. She was appointed personal representative of the decedent’s estate, and the court ratified the settlement. Then Sandra, acting individually, as mother, as trustee for the heirs, and as personal representative of the estate, executed a release approved by the court settling all claims arising out of the injuries to and the death of the decedent. James did not participate in the action by Sandra, and did not share in any of the proceeds of the settlement. He was not notified of the pendency of the proceedings, or joined as a party, but was aware of the lawsuit prior to settlement.

On April 12, 1978, James filed a wrongful death action in the Fallon County District Court. Western filed two motions for summary judgment, a motion to dismiss, and a motion for a directed verdict on the theory that Montana permits but one cause of action for wrongful death and that action had already been brought and settled by Sandra, and that the unamended statute was unconstitutional. Western’s motions were denied, and after Western admitted liability, the issue of damages was tried to a jury. The jury awarded James $100,000.

Appellant correctly argues that normally there can be but one legitimate wrongful death action arising from a decedent’s death. State ex rel. Carroll v. District Court (1961), 139 Mont. 367, 364 P.2d 739. However, the situation in the present case merits a different result.

A cause of action for wrongful death accrues in the statutory designee at the moment of death. Thomas v. Cumberland Operating Co. (Okla. 1977), 569 P.2d 974; Matter of the Estate of Boyd (Wy. 1980), 606 P.2d 1243. At the moment of death, Section 93-2809, R.C.M. (1947) was in effect. That statute gave James a cause of action for Brenda’s death. This cause of action was not affected by the legislature’s subsequent enactment of Section 93-2809, R.C.M. (Supp. 1977) because the legislature did not make that amendment retroactive.

There is a presumption in Montana against retroactive application of statutes. Dunham v. South Side National Bank of Missoula (1976), 169 Mont. 466, 548 P.2d 1383. For a statute to be retroactively applied such an intent must be expressly so declared by the legislature. Section 1-2-109, MCA. Section 93-2809, R.C.M. (Supp. 1977) was not declared retroactive by the legislature. Therefore, James’ cause of action for Brenda’s death remained intact subject only to the three year statute of limitations applicable to torts. Section 27-2-204, MCA.

Although the constitutionality of the unamended statute is challenged, we need not address that issue for a resolution of this case. Western’s injury stems from the possibility of two wrongful death actions, not from the language of the unamended statute. Therefore, Western lacks standing to challenge the statute’s constitutionality. Western itself is not injured by the alleged under-inclusiveness of the unamended statute because Western could never be a member of even a broadened class of potential claimants. Because the amended statute was not made retroactive, there existed, for the three year statute of limitation period following its enactment, the possibility of two causes of action for wrongful death. Western is not injured by the unamended statute, but by the legislature’s decision not to make the amended statute retroactive.

Therefore, we hold that James’ cause of action for Brenda’s wrongful death is legitimate, and the judgment of the District Court is affirmed.

MR. JUSTICES MORRISON, HARRISON and SHEEHY concur.

MR. JUSTICE WEBER,

dissenting:

I disagree with the majority conclusion that for three years after the enactment of the amended statute, two causes of action existed for the wrongful death of Brenda Barrett.

As amended after Brenda’s death, Section 27-1-512, MCA, provided that either parent may maintain an action for death of a minor child. The amendment did not significantly change the prior statute, Section 93-2809, R.C.M. (1947), which provided that a father or in case of his death or desertion, the mother, may maintain an action for the death of a minor child. The key point is that in the statute before and after amendment, a father or a mother may maintain an action, but there is provision for only one action for the death of a minor child.

This section is a companion of Section 27-1-513, MCA, which in substance provides that when the death of an adult is caused by the wrongful act or neglect of another, “his heirs or personal representatives” may maintain an action for damages. Section 27-1-513, MCA, has been construed in a number of Montana cases. In State ex rel Carroll v. District Court (1961), 139 Mont. 367, 364 P.2d 739, this Court concluded that the Section specifically provided but one action for a wrongful death. The reasoning of Carroll should be applied here.

Both statutes provide that certain persons “may maintain an action.” If there is but one cause of action under Carroll, clearly there is only one cause of action under Section 93-2809, R.C.M. (1947) and under Section 27-1-512, MCA. The majority speaks of the statute giving the father a cause of action for his daughter’s death. This suggests that the statute somehow vests in the father a right to retain any recovery in the action. Both Sections 27-1-512 and -513 specify the parties who may maintain an action involving injury or death, but neither attempts to specify the parties who are entitled to retain damages recovered.

The amendment to Section 27-1-512, MCA, was part of a legislative act which was adopted in order to eliminate discrimination on the basis of sex. No new rights were created on the part of either parent. Under the statute before as well as after amendment, either a father or a mother could maintain an action. The amendment eliminated a bias allowing the father to sue first and granting to the mother the right to sue only in case of the father’s death or desertion. I conclude that Section 27-1-512, MCA, is procedural in nature. Because the amendment was procedural only, the action filed by the mother after the amendment of the statute was proper. See 1A Sutherland Statutory Construction Section 22.36 (Sands ed. 1972). It constituted the single action which could be maintained for the death of the daughter.

The majority concludes that because the amended statute was not made retroactive, there existed the possibility of two causes of action for wrongful death. That ignores the provision of the statute which in substance states that a father or a mother may maintain an action for death of a minor child and further states that such action may be maintained against the person causing the death. Clearly the statute contemplates a single action even prior to amendment. In addition we have the Carroll interpretation of the companion statute. The majority also disregards other states such as California, Oklahoma, Alaska, and Arkansas, which have held that similar statutes permit only one action for a wrongful death. See Mayerhoff v. Kaiser Foundation Health Plan (1977), 71 Cal.App.3d 803, 138 Cal.Rptr. 319; Mitchell v. Mitchell (Alaska 1982), 655 P.2d 748; Wilson-Harris v. Southwest Telephone Co. (1943), 193 Okl. 194, 141 P.2d 986; Reed v. Blevins (1953), 222 Ark. 202, 258 S.W.2d 564, cert. denied, 347 U.S. 937, 74 S.Ct. 632, 98 L.Ed. 1087 (1954). Under the rationale of the majority, it can be argued that the revised statute gives to either parent a cause of action for a death of a minor, in the same manner that James Barrett was given a cause of action in the present case. If that is true, judgment entered in an action brought by either parent would not of necessity bar suit by the other parent. By analogy, the same argument could be made for overruling Carroll. As an example, if an action were brought under Section 27-1-513, MCA, by an heir of a deceased, and judgment were entered for such plaintiff heir, the cause of action would not necessarily bar recovery in a second action by other heirs who were not joined in the first action. Presumably each heir could argue he was given a cause of action by the statute so that more than one action could be brought for the death of an adult. Such results were not contemplated by the statutes.

I would reverse the District Court, holding there was one cause of action for the death of the minor child.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICE GULBRANDSON join in the dissent of MR. JUSTICE WEBER.


author: MR. JUSTICE HARRISON

text:
    GEORGE CLAYTON, an incompetent person by DOROTHY MURPHY, Guardian ad Litem, Plaintiff and Appellant, v. The ATLANTIC RICHFIELD COMPANY; and Butte, Anaconda and Pacific Railroad Co.; and Defendants A Through Z, Defendants and Respondents.
    No. 85-453.
    Submitted on Briefs Feb. 7, 1986.
    Decided April 22, 1986.
    717 P.2d 558.

      Edward Yelsa, Anaconda, for plaintiff and appellant.
    Poore, Roth & Robinson, James A. Poore, Jr., Butte, for defendants and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Second Judicial District of the State of Montana, for the County of Silver Bow. The appeal is from an order for summary judgment. We affirm.

The following facts are pertinent to this case.

The respondent (railroad) bought a right-of-way across property granted in 1892 to certain parties not essential to this lawsuit, on which were unpatented mining claims. The deeds were recorded in Silver Bow County, Montana. After obtaining the grants, the railroad constructed, operated, and maintained a railroad line which has been in the same geographical location from the date of construction to the present. The right-of-way was fenced fifty feet on either side of the center line of the railroad tracks, except where the tracks cross a bridge or a road. The ground between the fences has not been used for any purpose by anyone other than the railroad. The railroad has paid the taxes levied against the right-of-way during this entire period.

On September 13, 1954, appellant (Clayton) obtained a patent from the United States Government covering land which included the railroad’s right-of-way, but the patent did not refer in any way to the right-of-way. Clayton took no action with respect to the existence of, or use of, the right-of-way until shortly before filing this action in September 1983.

The tracks were used by at least one train per day and sometimes many trains per day going in each direction, not only from 1954 but prior to that time. Right-of-way employees and work crews worked freely back and forth over all parts of the right-of-way system during this period and made necessary repairs.

Clayton admits the railway roadbed existed in its present location continuously from the time of his getting a patent to the land until the present, and that the railroad maintained the right-of-way. He admits the railroad operated openly and obviously with at least one train per day each way from sometime prior to September, 1954, up to and including the present time. Neither Clayton, his wife, his guardian ad litem, nor any other person has tried to interfere with the use of the tracks by the railroad, nor have they interfered with the employees of the company when they were working within the right-of-way. Clayton admits the railroad company has preempted all use of the area occupied by its track, roadbeds, ties, signaling equipment and fences within the right-of-way and fifty feet on either side of the centerline, and that the right-of-way land has not been used in any way by him from September, 1954, until the present.

Clayton filed an action to quiet title, and a tort claim for trespass and damages. The railroad raised the defenses of adverse possession, prescription, laches, estoppel and the applicable statute of limitations. In addition, the railroad filed a counterclaim to quiet title to its right-of-way based upon (1) adverse possession; or (2) prescription, and requested the Court to decree that it owned an easement and right-of-way for railway purposes which extended 50 feet on either side of the center line of the railroad as it presently exists across appellant’s property.

Thereafter Clayton filed a reply alleging the railroad was barred by laches and the statute of limitations, for judgment on the pleadings, and for a partial summary judgment reserving only the question of damages. The railroad moved for summary judgment supported by pleadings, answers to interrogatories, admissions and affidavits wherein the file showed no genuine issue of material fact.

The District Court denied Clayton’s motions, granted the railroad’s motion, and entered judgment for the railroad. Clayton appeals.

Three issues are presented by Clayton:

(1) Was the District Court correct in denying Clayton’s motion for a judgment on the pleadings?

(2) Was the District Court correct in denying Clayton’s motion for summary judgment?

(3) Was the District Court correct in granting the railroad’s motion for summary judgment?

We affirm the holding of the District Court on all three issues.

A motion for judgment on the pleadings is provided for in Rule 12(c), M.R.Civ.P. The Ninth Circuit Court of Appeals recently announced the judicial standard of review applied to a Rule 12(c) motion. The movant must “clearly establish that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.” Doleman v. Meiji Mut. Life Ins. Co. (9th Cir. 1984), 727 F.2d 1480, 1482. A Rule 12(c) motion should be denied if the defendant’s answer raises a defense, which if proven, would defeat the plaintiffs claim. Austad v. U.S. (9th Cir. 1967), 386 F.2d 147, 149. The affirmative defenses raised by the railroad, if proven, would defeat Clayton’s claim.

This Court has said a Rule 12(c) motion is improper if the court must look to matters beyond the pleadings. Mathews v. Glacier General Assurance Co. (1979), 184 Mont. 368, 375, 603 P.2d 232, 236. If matters beyond the pleadings need be considered, “the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 . . .” Rule 12(c) M.R.Civ.P. The District Court in this case was requested to examine matters beyond the pleadings in order to resolve the controversy. Tax records, affidavits, records of the Butte-Silver Bow County Clerk and Recorder, answers to requests for admissions, and the results of requests for production of documents were required to reach a conclusion on plaintiffs motion. Consequently, a 12(c) motion for judgment on the pleadings is procedurally incorrect and was correctly denied.

Clayton next argues the District Court should have granted his motion for summary judgment. Summary judgment is proper only when there is no genuine issue of material fact and as a matter of law the movant is entitled to prevail. Cereck v. Albertson’s (1981), 195 Mont. 409, 411, 637 P.2d 509, 510. This rule imposes a strict standard on Clayton which he is unable to meet. Both counts in his complaint are barred by laches and the applicable statutes of limitations.

Laches exists “where there has been an unexplained delay of such duration or character as to render the enforcement of an asserted right inequitable.” Brabender v. Kit Manufacturing Co. (1977), 174 Mont. 63, 67-68, 568 P.2d 547, 549. A person can be charged with laches where “he was either actually or presumptively aware of his rights.” Hereford v. Hereford (1979), 183 Mont. 104, 108-109, 598 P.2d 600, 602. Here both Clayton and others were actually and presumptively aware of their rights and the alleged invasion of those rights by the railroad.

Clayton had actual and constructive notice of the railroad’s claim to the right-of-way beginning at and prior to the time that he received his patent. The presence and continued use of the right-of-way by the railroad was more than adequate notice to cause any reasonable person to make an inquiry whether there were conflicting claims to the land in question. The mining locations and deeds were a matter of public record and were available to Clayton.

“When there appears possession of land by persons other than the record holder, which possession is inconsistent with the record title, there is a duty of inquiry imposed upon a purchaser of that land.” Rase v. Castle Mountain Ranch, Inc. (Mont. 1981), 631 P.2d 680, 685, 38 St.Rep. 992, 998. Here the appellant idly sat by for 29 years before asserting his claim of title. Such conduct is not condoned by this Court and has not been in the past.

It is now too late for Clayton to attempt to disturb the railroad title and possession. See Brabender v. Kit Manufacturing Co. supra; Richardson v. Richland County (Mont. 1985), [219 Mont. 48,] 711 P.2d 777, 42 St. Rep. 1834; Anderson v. Richland County (Mont. 1985), [219 Mont. 60,] 711 P.2d 784, 42 St. Rep. 1843.

All applicable statutes of limitations commenced to run when Clayton accrued an enforceable right. Pope v. Keefer (1979), 180 Mont. 454, 464, 591 P.2d 206, 212. Accepting Clayton’s position that exclusive title was bestowed upon him by the United States patent September 13, 1954, this enforceable claim accrued on that date. Section 27-2-207, MCA, requires that any action for injury to or waste or trespass “on real or personal property” must be brought within two years.

If Clayton now contends the railroad’s occupation of the right-of-way caused personal injury, a cause of action for personal injury was barred in 1957 by the three-year statute of limitations provided for in Section 27-2-204(1), MCA.

The quiet title action is barred by Section 70-19-401, MCA, because Clayton was not “seized or possessed of the property in question within five years before the commencement of the action.” It was well established that the railroad’s possession of the property in question has been exclusive and continuous since 1954. Possession is self-defining, and the term “seisin” means possession. Northern Pacific R. Co. v. Cannon (1891), 46 F. 224, 234. “Seisin” means a claim of title accompanied with possession. Webb v. Wheeler (Neb. 1908), 114 N.W. 636.

Application of Section 70-19-404, MCA, clearly destroys any presumption that the railroad’s title was subordinate to Clayton’s. When property is held and possessed adversely for five years to one with legal title before commencement of an action, the one holding adversely is no longer subordinate.

Clayton waited 29 years to bring this action and by virtue of his own admissions, answers to interrogatories, and pleadings in this case, his motion for a partial summary judgment was correctly denied by the District Court.

As to the railroad’s motion for summary judgment, the same rule applies. The railroad must show it has title to the right-of-way by adverse possession and/or prescription.

Section 70-19-407, MCA, provides in part that where a person such as the railroad enters into possession of property (the right-of-way) and bases its right upon a written instrument, then, if the person has been in continual occupation and possession of the property described in the written instrument for five years, the described property “is deemed to have been held adversely.” For purposes of Section 70-19-407, occupancy is deemed to be adverse, where it has been “improved,” Section 70-19-408(1) (a), MCA, or “where it has been protected by a substantial enclosure,” Section 70-19-408(1) (b), MCA. There is no dispute that the property has been enclosed by a fence and has been improved, i.e., maintained, since 1954.

When adverse possession is not based on a written instrument, the fact that the land is within a substantial enclosure is sufficient to establish adverse possession. Thibault v. Flynn (1958), 133 Mont. 461, 466, 325 P.2d 914, 917. See also, Dillon v. Antler Land Company (D. Mont. 1972), 341 F. Supp. 734, 742-743. Even if the 1892 deeds were void, the right-of-way was and is enclosed by a fence and the requirements of the statute have been satisfied. Dillon, supra, at 743. Castles v. Lawrence (Mont. 1983), [203 Mont. 421,] 662 P.2d 589, 590, 40 St.Rep. 545, 547, and Swecker v. Dorn (1979), 181 Mont. 436, 441, 593 P.2d 1055, 1058.

Regardless of whether or not the railroad predicates its ownership of the easement upon an instrument in writing, it nevertheless has acquired a prescriptive easement. Payment of taxes is not required to establish a prescriptive easement. Mountain View Cemetery v. Granger (1978), 175 Mont. 351, 574 P.2d 254; Kostbade v. Metier (1967), 150 Mont. 139, 432 P.2d 382; Scott v. Weinheimer (1962), 140 Mont. 554, 374 P.2d 91.

Clearly, the railroad has met its burden. Once this burden is met, the party opposing summary judgment must come forward with substantial evidence raising a factual issue. Farmers Insurance Ex change v. Janzer (Mont. 1985), [215 Mont. 260,] 697 P.2d 460, 462, 42 St.Rep. 337, 339. Clayton simply is unable to do so.

Having satisfied all statutory and common law requirements to establish its title, the railroad’s motion for summary judgment was properly granted and we affirm the District Court’s decision.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES SHEEHY, HUNT and GULBRANDSON concur.


author: MR. JUSTICE WEBER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. STEVEN WADE ELLIOTT, Defendant and Appellant.
    No. 85-432.
    Submitted on Briefs Jan. 30, 1986.
    Decided April 24, 1986.
    717 P.2d 572.

      Knuchel & McGregor, Daniel B. McGregor, Livingston, for defendant and appellant.
    Mike Greely, Atty. Gen., James M. Scheier, Asst. Atty. Gen., Helena, G. Thomas Biglen, Co. Atty., Big Timber, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Defendant Mr. Elliott appeals his conviction of deliberate homicide in the District Court for Sweet Grass County, Montana. He was sentenced to a term of 100 years. We affirm.

The issues are:

1. Was Mr. Elliott’s right of due process violated at his sentencing hearing because matters not included in the presentence investigation report were considered?

2. Was Instruction No. 11 properly given?

3. Was Mr. Elliott denied effective assistance of counsel because his attorney: 1) failed to investigate and call witnesses, and 2) secured a waiver of speedy trial without informing Mr. Elliott of the consequences of the waiver?

In July 1976, the body of 86-year-old William Feldt was found sitting in a chair in his home in Big Timber, Montana. There were no signs of struggle in the house, and no visible injuries on the body. The coroner estimated that Mr. Feldt had been dead for about two days, and determined that he had died of natural causes. Because of the amount of time since death, the body was not embalmed, but was instead buried in a special air-space and water-tight container inside a casket.

In May 1983, defendant, then 22 years old and incarcerated in the Lewis and Clark County Jail, contacted law enforcement authorities and gave a confession in which he said he had killed Mr. Feldt. He said he had been a paperboy in Big Timber, and that Mr. Feldt, a neighbor, had been one of his customers. He went into Mr. Feldt’s house to collect for the paper and when Mr. Feldt paid him, he noticed a large amount of money in Mr. Feldt’s wallet. Defendant turned as if to leave, but remained in the house and hid in the kitchen for about 15 minutes. When he saw that Mr. Feldt had his back turned, defendant walked up behind him and stabbed him in the back with a knife. The old man fell into a chair, the knife still in his back. Defendant sat down in a chair across the room “to wait till he was dead,” then walked over to the victim with another knife and cut his throat. Noticing that Mr. Feldt’s eyes were still open, defendant poured a bottle of rubbing alcohol over his head to see if his eyes would blink. He then took Mr. Feldt’s wallet, which had about $240 in it, withdrew the knife from the victim’s back, and left. He later buried the wallet and threw the knives in the dump. Defendant Mr. Elliott repeated his confession in writing and for the Department of Justice, with minor variations on where he disposed of the wallet and the knives.

Mr. Feldt’s body was exhumed for examination. At trial, a pathologist testified that he had found evidence of the wounds Mr. Elliott had described, and that Mr. Feldt had died from internal loss of blood caused by the stab wound to his back. Other details of Mr. Elliott’s confessions were also corroborated.

At trial, Mr. Elliott recanted his confessions. He testified that he had seen a 12-year old acquaintance walk out of Mr. Feldt’s house holding a wallet and some money. Mr. Elliott testified that the acquaintance told him to keep quiet, and gave him half the money. At the time of trial, this acquaintance was deceased. Mr. Elliott testified that he had given the confessions falsely, and that at the time he gave them he was so depressed that he wanted to die.

I

Was Mr. Elliott’s right of due process violated at his sentencing hearing because matters not included in the presentence investigation report were considered?

The presentence investigation report submitted to the District Court showed that Mr. Elliott had parole revoked in April 1983 for “parole violation — concealed weapon.” At the sentencing hearing, the District Court, over Mr. Elliott’s objection, received into evidence a written report and additional testimony by defendant’s former parole officer about the reasons that parole was revoked. Mr. Elliott contends that this constituted consideration of other violations or criminal activity and was error under State v. Stewart (1977), 175 Mont. 286, 573 P.2d 1138.

In Stewart, the district judge personally interviewed several witnesses after trial. No record was made of the interviews and no notice was given that the interviews would be conducted. This Court held that the judge had improperly acted as a fact-gatherer and had infringed upon the defendant’s due process right to confront his accusers. Stewart, 573 P.2d at 1148.

Mr. Elliott’s effort to apply the holding in Stewart to the facts of this case fails. The additional information in this case was not obtained from the sentencing judge’s independent investigation, but from the person who prepared the presentence investigation report. There is no due process right for a defendant to have advance notice of all facts that make up a sentencing recommendation. State v. Pearson (Mont. 1985), [217 Mont. 363,] 704 P.2d 1056, 1060, 42 St.Rep. 1253, 1257. Mr. Elliott was represented by counsel at the sentencing hearing, had the opportunity to cross-examine the witness regarding the new material, had the opportunity to rebut the new material, and could have called for a continuance in order to call his own rebuttal witnesses. This situation, unlike the one in Stewart, does not present a due process violation.

II

Was Instruction No. 11 properly given?

The court instructed the jury that:

“Neither the prosecution nor the defense is required to call as witness all persons who are shown to have been present at any of the events involved in the evidence, or who may appear to have some knowledge of the matters in question in this trial; nor is the prosecution or defense required to produce as exhibits all objects or documents that have been referred to in the testimony, or the existence of which may have been suggested by the evidence.
“The jury will always bear in mind that the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence and no adverse inferences may be drawn from his failure to do so.”

Mr. Elliott objects to this instruction, arguing that it appears to lessen the burden of proof required of the State.

The State argues that the effect of this instruction is to aid the jury in evaluating the evidence on the basis of what is before them, not on the basis of what has not been brought before them. California has approved the use of this type of instruction for a number of years. See People v. Reingold (1948), 87 Cal.App.2d 382, 197 P.2d 175, 191. The jury was also instructed separately on the burden of proof in a criminal case. We conclude that giving instruction No. 11 did not in any way affect the State’s burden of proof. We hold that giving instruction No. 11 was not error.

Ill

Was Mr. Elliott denied effective assistance of counsel because his attorney 1) failed to investigate and call witnesses, and 2) secured a waiver of speedy trial without informing Mr. Elliott of the consequences of the waiver?

We have recently adopted a two-fold test for determining whether effective assistance of counsel was denied. State v. Robbins (Mont. 1985), [218 Mont. 107,] 708 P.2d 227, 232, 42 St.Rep. 1440, 1444, citing Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674. First, the defendant must show that counsel’s performance was deficient. This Court has used the “reasonably effective assistance” test of whether a defendant’s counsel acted within the range of competence demanded of attorneys in criminal cases. State v. Rose (1980), 187 Mont. 74, 86, 608 P.2d 1074, 1081. Second, the defendant must show that the deficient performance prejudiced him so seriously as to deprive him of a fair trial.

Defendant argues that he was denied effective assistance of counsel because his attorney failed to call as witnesses certain persons listed in the pretrial order. He alleges in his brief that his attorney failed to even contact these persons. Attached to his brief are his affidavit to that effect and another affidavit that defendant was on drugs when he made his confessions. We do not consider the affidavits because they are outside the record. State v. Dess (Mont. 1984), [207 Mont. 396,] 674 P.2d 501, 502, 41 St.Rep. 31, 33. The decision to call or not call witnesses is a matter of trial tactics, which are normally not grounds for a determination that counsel’s performance was deficient. State v. Lopez (1980), 185 Mont. 187, 191, 605 P.2d 178, 180-1. The record fails to substantiate defendant’s allegations that the witnesses not called could have presented evidence which would weaken his confessions and the corroborating evidence against him.

Mr. Elliott’s argument that he was uninformed of the consequences of his waiver of speedy trial is contradicted by the record. The record shows that the District Court judge explained to Mr. Elliott his right of speedy trial at the time the waiver was made, and that Mr. Elliott agreed to waive the right. Mr. Elliott later wrote to his attorney, asking that the waiver be rescinded. No such action was taken, but at the next hearing on motions in this matter, the District Court asked Mr. Elliott if he was satisfied with his counsel’s performance, and he said that he was. We conclude that there is no evidence that counsel’s performance was deficient in securing the waiver of speedy trial.

Affirmed.

MR. JUSTICES HARRISON, MORRISON, SHEEHY and GULBRANDSON concur.


author: MR. JUSTICE GULBRANDSON

text:
    In the MATTER OF C.P., Youth in Need of Care.
    No. 85-440.
    Submitted on Briefs Jan. 23, 1986.
    Decided April 24, 1986.
    717 P.2d 1093.
    Cascade Law Clinic, Paula Jampsa, Great Falls, for appellant.
    Mike Greely, Atty. Gen., Dorothy McCarter, Asst. Atty. Gen., Helena, Patrick L. Paul, Co. Atty., Great Falls, Barbara Bell, Deputy Co. Atty., for respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Appellant, C.P.’s mother, appeals from a Cascade County Youth Court order awarding permanent custody of C.P. to Social Rehabilitation Services (SRS). She contends that this final order should have included a provision for an “open” adoption under an agreement between appellant, SRS and the county attorney. We affirm.

In May 1983, the Cascade County Attorney’s Office filed a petition for temporary custody and temporary investigative authority alleging C.P. was abused, neglected and dependent within the meaning of Section 41-3-101 and -102, MCA. The supporting affidavit alleged that appellant sexually abused C.P. The District Court granted the temporary custody request and ordered that visitation between appellant and C.P. was to be supervised, that both appellant and C.P. should receive psychological evaluations and that they complete any treatment recommended as a result of the evaluations.

On the basis of the evaluations, the county attorney’s office filed for temporary custody of C.P. for one year with SRS and requested a treatment plan for appellant. In November 1983, after a hearing, the District Court concluded that (1) C.P. should continue to reside in foster care with his aunt, appellant’s sister, and he was doing well in psychotherapy, (2) appellant continued to deny any sexual abuse of her son by herself, (3) psychological evaluations and counseling of C.P. revealed that he was hypersexual and had been sexually abused, and (4) in the opinion of the psychologist, appellant committed the sexual abuse.

About two and one-half months later, appellant asked the District Court to modify this order and allow C.P. to return to her custody. She argued that she and C.P. had made progress in counseling and continued separation would only further weaken their relationship. After two hearings, the District Court denied this request. SRS continued to have legal custody, C.P.’s aunt continued to have physical custody, and visitation between C.P. and appellant continued to be supervised.

About six months later, in September 1984, the county attorney’s office filed for permanent custody to be awarded to SRS with the right to consent to an adoption of C.P. The petition alleged appellant failed to complete her court ordered treatment plan, did not maintain contact with her social worker and that the conditions making her an unfit parent were unlikely to change within a reasonable amount of time. The hearing on this petition began on January 21, 1985 and was continued to and completed on February 7, 1985. Appellant, C.P. and C.P.’s father were present and represented by counsel during the proceedings. The District Court found that appellant (1) lacked a stable home environment, (2) lacked a stable job situation, (3) denied any involvement in the sexual abuse of her son, (4) made no gains in her parenting skills, (5) refused to release medical information needed to set up a treatment plan for herself, and (6) failed to complete her treatment plan and her alcohol abuse program. The District Court also noted C.P.’s father had not contacted C.P. for three years and paid no child support although, at times, he was capable of doing so. The order, filed July 2, 1985, terminated the appellant’s and the father’s paternal rights and awarded permanent custody to SRS with the right to consent to C.P.’s adoption by the aunt who was his foster mother.

Prior to the entry of this final order, appellant’s attorney, the social worker and a representative of the Cascade County Attorney’s Office discussed including visitation rights for appellant in the order in the event SRS placed C.P. for adoption. The date or dates of discussion are not clear and the record contains no indication that the parties informed the District Court of the discussions or reached any agreement on this issue.

On appeal, appellant presents one issue: Whether the final order for permanent custody should have included a provision for an “open” adoption allowing her to have visitation rights with C.P.

The findings of a district court in an abuse and neglect case enjoy a presumption of correctness and “will not be disturbed unless there is a mistake of law or a finding of fact not supported by credible evidence that would amount to a clear abuse of discretion ...” (Citation omitted.) In Re Gore (1977), 174 Mont. 321, 325, 570 P.2d 1110, 1112. When a district court considers terminating parental rights, it must find clear and convincing evidence of abuse before such rights can be terminated. In Re T.J.D. (Mont. 1980), 615 P.2d 212, 213, 37 St.Rep. 1385, 1386. Appellant here does not contend that the District Court erred in terminating her parental rights, only that she should have retained visitation rights if SRS places the child for adoption.

Montana statutes governing termination of parental rights are clear and explicit. Section 41-3-611, MCA, states:

“(1) An order for the termination of the parent-child legal relationship divests the child and the parents of all legal rights, powers, immunities, duties and obligations with respect to each other as provided in Title 40, Chapter 6, part 2, except the right of the child to inherit from the parent.
“(3) After the termination of a parent-child legal relationship, the former parent is neither entitled to any notice of proceedings for the adoption of the child nor has any right to object to the adoption or to participate in any other placement proceedings held pursuant to 41-3-609.” [Emphasis added.]

Section 40-8-125, MCA, states:

“(1) After the final decree of adoption is entered, the relation of parent and child and all the rights, duties, and other legal consequences of the natural relation of child and parent shall thereafter exist between such adopted child and the adoptive parents. . .
“(2) After a final decree of adoption is entered, the natural parents ... of the adopted child . . . shall be relieved of all parental responsibilities for said child and have no rights over such adopted child . . .” [Emphasis added.]

This language is clear. When parental rights are terminated, the natural parent no longer has any rights over the child. This includes visitation rights. Appellant cites no authority to support her contention and this Court finds none.

Even if the statutes provided for such a retention of visitation rights, the record in this case contains no evidence to support such a finding. No one presented an agreement on such visitation to the District Court and no one testified concerning whether an “open” adoption would serve the physical, mental and emotional needs of C.P. There is no question that appellant disputed SRS obtaining permanent custody. Thus, there is no question of whether she agreed to their custody in exchange for visitation rights. The record contains no facts which would support the District Court’s inclusion of visitation rights for appellant in the event C.P. is adopted.

Appellant has new counsel representing her on appeal. This counsel appended a letter written by appellant’s prior counsel to the deputy county attorney involved in the discussion. The letter is not part of the record and it will not be considered on appeal. We hold that the final order for permanent custody correctly contained no provision for an “open” adoption.

The order of the District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and MORRISON concur.


author: MR. JUSTICE WEBER MR. JUSTICE MORRISON,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CARL ROGER LUNDBLADE, Defendant and Appellant.
    No. 85-482.
    Submitted on Briefs Jan. 9, 1986.
    Decided April 25, 1986.
    717 P.2d 575.

      Moses Law Firm, Jay F. Lansing, Billings, for defendant and appellant.
    Mike Greely, Atty. Gen., Robert F.W. Smith, Asst. Atty. Gen., Helena, John S. Forsyth, Co. Atty., Forsyth, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a conviction of sexual intercourse without consent, after a jury trial. We modify the judgment of the District Court for Rosebud County.

Defendant raises several issues on appeal, but we find the following issue dispositive:

Was the evidence before the jury sufficient to sustain defendant’s conviction of sexual intercourse without consent?

Defendant and the victim, and their respective families, were acquaintances. At the time of the incident, the victim’s husband was hospitalized. Defendant testified that he and another man went to the victim’s trailer sometime between 10 p.m. and midnight to find out how the victim’s husband was doing and ask the victim if she wanted some firewood. The victim was in a bedroom with two of her sleeping children when the visitors arrived. Defendant maintains that she invited him in, and that he and the victim engaged in consensual sexual acts in the bedroom until she became aware of the other man’s presence, at which time she became hysterical. The victim contends that she awoke to find defendant performing oral sex on her, and that after a struggle, he left and she went to the police.

Defendant was first tried before a jury on this charge in May 1984. His conviction was overturned by this Court. State v. Lundblade (Mont. 1984), [213 Mont. 420,] 691 P.2d 831, 41 St.Rep. 2208. The grounds for that reversal were that his counsel had not had adequate time to prepare for trial. A different district judge presided over his second trial in April 1985. This trial was also held before a jury. The defendant was reconvicted at his second trial, and was sentenced to a term of ten years at the Montana State Prison with three years suspended.

Defendant was charged under Section 45-5-503, MCA, sexual intercourse without consent. The statute provides that “A person who knowingly has sexual intercourse without consent with a person of the opposite sex commits the offense of sexual intercourse without consent.” Sexual intercourse is defined at Section 45-2-101(61), MCA, for purposes of this case as:

“. . . penetration of the vulva ... of one person by any body member of another person, . . . Any penetration, however slight, is sufficient.”

Defendant argues that the elements of (1) lack of consent and (2) penetration, were not proven. He moved the court for a directed verdict both at the close of the State’s case and at the close of trial. The court denied both motions.

Our standard of review on this issue is whether the evidence, viewed in the light most favorable to the prosecution, is sufficient to permit any rational trier of fact to find that the elements of the offense were established beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, State v. Rodriguez (Mont. 1981), 628 P.2d 280, 283, 38 St.Rep. 578F, 5781. “This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.

The victim testified that she was sound asleep and did not consent to sexual acts with defendant. Although the defendant presented testimony which contradicted this part of the victim’s testimony, we conclude that a rational trier of fact could properly resolve the conflicting testimony to find that the element of lack of consent was proven beyond a reasonable doubt. We therefore hold that there was sufficient evidence of lack of consent to support the jury’s verdict.

The evidence as to penetration, however, does not meet this standard. The only evidence which might be construed to prove penetration is the victim’s testimony that when she awoke, the defendant was “performing oral sex on me” and that “I was laying down and he had his arms over my legs and his head between my legs.” She was not asked to explain exactly what she meant by these statements. While we recognize that this is a delicate subject, that does not eliminate the requirement that the State prove each element of its case beyond a reasonable doubt. Our review of the victim’s testimony in the light most favorable to the prosecution does not permit a conclusion that penetration of the vulva, no matter how slight, was established beyond a reasonable doubt. Because proof of penetration is a statutory requirement, we must conclude that the prosecution failed to prove a critical element of the offense of sexual intercourse without consent. We are therefore required to reverse defendant’s conviction of sexual intercourse without consent. Unfortunately this establishes that the State failed to carefully examine and prove each required element of the criminal offense charged. If in fact there was no evidence of penetration available, then a lesser offense should have been charged. On the other hand, if there was evidence of penetration, it was required to be presented in order to establish the charged crime.

We must conclude that it would be improper to remand the case for retrial on the charge of sexual intercourse without consent. The State had its opportunity to prove its case and has failed to do so. Under that circumstance, it would be a violation of the constitutional protection against double jeopardy if we remanded for new trial on the same charge. State v. Furlong (Mont. 1984), [213 Mont. 251,] 690 P.2d 986, 990, 41 St.Rep. 2096, 2101.

Because of our reversal of the conviction on the charge of sexual intercourse without consent, it is not necessary that we consider the issues of the district court’s refusal to give the Smith instruction or alleged due process violations in the sentence imposed.

Section 46-20-703, MCA, sets out the actions we may take on review of a criminal appeal. Subsection (3) provides that we may “reduce the offense of which the appellant was convicted to a lesser included offense.” Although defendant was not charged with sexual assault, the jury was instructed on sexual assault as a lesser included offense to sexual intercourse without consent. Neither side objected to this instruction. The elements of sexual assault, as set forth at Section 45-5-502, MCA, are 1) knowingly or purposefully subjecting another 2) not one’s spouse to 3) sexual contact 4) without consent. Sexual contact is defined at Section 45-2-101(60), MCA, as “any touching of the sexual or other intimate parts of the person of another for the purpose of arousing or gratifying the sexual desire of either party.” The record contains evidence establishing all of the elements of sexual assault. It was undisputedly established at trial that defendant’s acts were done knowingly. That defendant and the victim were not married to each other is established by the testimony of both. The element of sexual contact is established by the victim’s testimony that defendant had his arms over her legs and his head between her legs and that he was performing oral sex on her. The ‘without consent’ element is discussed above. Defendant’s own testimony establishes that the purpose of the acts was arousal or gratification of sexual desire. We therefore modify the judgment by reducing the offense of which defendant is guilty to sexual assault.

This cause is remanded to the district court for the entry of a judgment finding the defendant guilty of the crime of sexual assault and for resentencing following the entry of judgment.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES SHEEHY and HUNT concur.

MR. JUSTICE MORRISON,

dissenting:

I respectfully dissent to that portion of the majority opinion which allows entry of judgment finding defendant guilty of sexual assault without benefit of a jury trial.

This defendant has been twice convicted of sexual intercourse without consent. There is absolutely no evidence of penetration. The District Court should have directed a verdict in favor of the defendant at the conclusion of the state’s case.

Following the state’s rest, the county attorney, in arguing against a directed verdict in favor of defendant, said:

“She used the words sexual assault, but she did testify on the witness stand that there was penetration in response to my question that he was licking her in the vaginal area, and that she was awakened and it’s a matter of record. The testimony is that there was contact between his tongue and her genital area.”

This argument was not supported by the record. In fact, the state’s chief witness testified as follows:

“Answer: Well, I was sleeping and all of a sudden there was this man between my legs and — you know, performing oral sex on me, and I said, ‘who is it’, and he said, ‘it’s me’, and then I said, ‘well, what do you think you’re doing’, you know, and I was — I was really — I was really shocked and hurt and scared and he was saying things to me like, ‘oh, lie down, you’ll enjoy this’, and this kind of crap, and then —
“THE COURT: Can you speak up please, so we can all hear you.
“A. He was then — he was pulling down my panties and I was — I had been — I was laying — I had been laying down, and I was sitting up and pulling my panties up and I started cussing at him and that sort of stuff, and I told him that he was really disgusting and — and he said — he said, ‘you don’t understand Mary, I love you’, and I just started cussing at him some more, and then he said, ‘well, I only came over here to check if you needed some firewood and to find out how Joe was doing.’ ”

The witness gave no other testimony with respect to sexual intercourse or sexual assault.

The county attorney failed to ask any question of the witness which would indicate contact between the defendant’s tongue and the witness’s vaginal area. The only evidence given by the witness was that defendant was performing oral sex on her but she gave absolutely no testimony about what this meant. In absence of some explanation that would have to be a very well defined and understood meaning for the term. There is not.

I note in passing that the testimony of defendant and Steve Knight appears more credible than that of the state’s witness. However, the jury apparently chose to believe the state’s case and the weight of the testimony necessarily resides with the jury.

Nevertheless, I agree with the majority opinion that there is absolutely no evidence to take this case to the jury on the crime charged. The crime of sexual assault was not charged against the defendant but with the consent of defendant’s counsel, the court instructed the jury on sexual assault. Apparently, defense counsel mistakenly thought that sexual assault was a lesser included offense. It is not.

The majority opinion correctly notes that the elements of sexual assault include “touching of the sexual or other intimate parts of the person of another for the purpose of arousing or gratifying the sexual desire of either party.” This is an element not required for conviction of the crime charged. Sexual intercourse without consent simply requires proof of knowledge or purpose, “penetration of the vulva”, and lack of consent. There are no other elements. Therefore, sexual assault is clearly not a lesser included offense.

In view of the fact that defense counsel encouraged the court to give an instruction on sexual assault, defense counsel could not now object to the giving of the instruction. The weakness with the majority’s position is that the jury, in convicting defendant of sexual intercourse without consent, did not find the necessary elements for a conviction of sexual assault. The majority seems to gloss this over by finding that the necessary gratification is present in the defendant’s testimony. However, the jury apparently chose not to believe any of the defendant’s testimony but rather chose to believe that of the state’s witness.

I know of no case supporting an appellate court entering judgment of conviction in the absence of a jury finding the essential elements of the crime. Had the jury improperly convicted defendant of sexual intercourse without consent the appellate court could enter a judgment of conviction on a lesser included offense. The appellate court could enter such a judgment because the elements of the lesser included offense would all have been found by the jury in finding defendant guilty of the more serious offense. That cannot be done in this case because the elements for proving sexual assault are different than for proving sexual intercourse without consent.

I am at a loss to understand the county attorney charging sexual intercourse without consent where there was absolutely no evidence of penetration. If this case was to be prosecuted it should have been prosecuted as a case of sexual assault.

This Court should dismiss the charge of sexual intercourse without consent. Jeopardy has attached. The defendant should be released.


author: MR. CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DONALD RAY SAGE, Defendant and Appellant.
    No. 83-492.
    Submitted on Briefs Jan. 30, 1986.
    Decided April 29, 1986.
    717 P.2d 1096.

      C.F. Mackay, Public Defender, Anaconda, for defendant and appellant.
    Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Helena, J. Allen Bradshaw, Co. Atty., Philipsburg, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Donald Sage was charged with the offense of deliberate homicide for the killing of Clyde Gregory. After trial before a jury in the District Court of the Third Judicial District, Sage was convicted of mitigated deliberate homicide. We affirm that conviction.

Donald Sage and his wife operated the Club House Cafe under a lease held by Robert DeRosia. After investing time and money into the business, Sage received notification on October 6, 1981, that his lease was being cancelled. Sage was upset by the termination, and on the evening of October 7 he began having a few drinks with friends at various bars. Around eleven o’clock that evening, a few friends of his came over to his house. Sage continued to drink and also took a dose of L.S.D. Sometime later they decided to go to the Thirsty Dog Saloon in Philipsburg, Montana. Before leaving, however, Sage took out his .22 caliber pistol. He said that he wanted to shoot out the windows at DeRosia’s business to get back at him for canceling his lease.

Sage entered the Thirsty Dog Saloon at approximately 12:30 a.m. on October 8, 1981 wearing his pistol in a holster on his right hip. His friends were seated at various places in the Saloon but he went to the far end of the bar. Clyde Gregory, the bartender, was the only other person at that end of the bar. A short time later, a gunshot was heard by everyone in the Saloon, and all eyes immediately turned toward Sage. Several witnesses testified that they saw Sage holding his pistol in both hands with arms extended pointed directly at Gregory. Then, Sage slowly withdrew the gun, put it back in its holster, and walked out the back door. Gregory was killed instantly.

Sage maintains that he was handing the gun to Gregory, and as he was doing so it slipped out of his hands and accidentally discharged. The only other witness who tends to corroborate this version of the shooting is Sage’s wife, although she did not see the actual firing of the shot.

Appellant asserts that there are four errors which require reversal of the conviction:

(1) The prosecution was allowed to introduce rebuttal testimony to an affirmative defense without furnishing appellant with the statutorily required notice.

(2) The prosecutor’s pretrial conduct was improper and prejudiced appellant’s case.

(3) Appellant did not have the necessary state of mind to commit the offense.

(4) The verdict was not supported by substantial credible evidence. We will discuss these issues in the order presented.

I

The prosecution offered the testimony of witnesses Martha Dietz and Candace Leistiko for the purpose of rebutting appellant’s contention that he did not have the necessary state of mind required for the offense of deliberate homicide. However, the prosecution did not notify appellant that it intended to use those witnesses’ testimony for such a rebuttal. Appellant contends that this failure is a violation of Section 46-15-301(3), MCA, (1983). [Although in effect at the time of trial, this statute has recently been repealed and replaced by Sections 46-15-322, 46-15-323, MCA.] Section 46-15-301, MCA, (1983) provided in part:

“(2) For purpose of notice only and to prevent surprise, the defendant shall furnish to the prosecution and file with the clerk of the court, at the time of entering his plea of not guilty or within 10 days thereafter or at such later time as the court may for good cause permit:
“(a) a statement of intention to interpose the defense of justifiable use of force (formerly self-defense), entrapment, compulsion, or alibi or the defense that the defendant did not have a particular state of mind that is an essential element of the offense charged; and
“(b) if the defendant intends to interpose any of these defenses, he shall also furnish to the prosecution and file with the clerk of the court the names and addresses of all witnesses other than the defendant to be called by the defense in support thereof. Prior to trial the defendant may, upon motion and showing of good cause, add to the list of witnesses the names of any additional witnesses. After the trial commences, no witnesses may be called by the defendant in support of these defenses unless the name of the witness is included on the list, except upon good cause shown. This subsection does not apply to rebuttal witnesses.
“(3) For the purpose of notice only and to prevent surprise, the prosecution shall furnish to the defendant and file with the clerk of the court no later than 5 days before trial or at such later time as the court may for good cause permit a list of witnesses the prosecution intends to call as rebuttal witnesses to the defenses of justifiable use of force, entrapment, compulsion, alibi, or the defense that the defendant did not have a particular state of mind that is an essential element of the offense charged.”

At no time before the trial began did appellant give any notice to the prosecution that he intended to interpose the affirmative defense of lack of a particular state of mind to commit the offense charged. Furthermore, appellant did not provide the prosecution with a list of the witnesses he intended to call in support of this defense. The prosecution’s burden of providing statutory notice of rebuttal witnesses does not arise until the defendant has given notice that he intends to interpose an affirmative defense. Unless the prosecution is made aware of what defense the defendant intends to use, it cannot possibly furnish a list of witnesses intended to rebut that defense. The requirements of the statute are reciprocal — once defendant gives full notice of intent to claim a particular affirmative defense, the prosecution must furnish the defendant with a list of witnesses it intends to call in rebuttal to that defense.

State v. Madera (Mont. 1983), [206 Mont. 140,] 670 P.2d 552, 40 St. Rep. 1558, supports this conclusion. There, the defendant did inform the State that he intended to use an alibi as a defense, but he did not inform the State of the nature or circumstances of the alibi. At trial, the prosecution presented witnesses to rebut the defense of alibi without furnishing their names to the defendant in advance. The defendant contended that this was improper rebuttal testimony. The Court held that because defendant did not provide the State with the substance of the alibi testimony, the State was not required to give notice of its rebuttal witnesses before it knew what defendant’s alibi witnesses were going to testify to.

At least in Madera the State knew that defendant intended to claim the defense of alibi. Here the State had no notice that appellant intended to claim any affirmative defense. Under these circumstances the State may call witnesses to rebut the affirmative defense offered at trial without furnishing defendant with a list of those rebuttal witnesses. It would be illogical to hold that the prosecution should have furnished appellant with a list of witnesses intended to rebut the affirmative defense offered when the prosecution did not even know about this defense until trial began.

A further reason for finding no error on this claim is that appellant was not surprised by the witnesses offered to rebut the defense asserted. The stated purpose of Section 46-15-301(3), MCA, (1983) is for notice only and to prevent surprise. The witnesses objected to by appellant were listed by the prosecution in either the information or the notice of additional State witnesses, which appellant had access to some three months before trail began. He had ample opportunity to interview these witnesses and learn the substance of what they knew. We find that appellant had sufficient notice of the witnesses offered in rebuttal and had no reason to be surprised by their testimony. The use of these witnesses’ testimony was not improper.

II

It appears that sometime before the trial began, the prosecutor met with his witnesses at the Thirsty Dog Saloon for the purpose of going over what they saw on the night of the shooting. Appellant was not notified of and did not appear at this meeting. He contends that this was a violation of his right to due process of law; however, he does not cite any Montana nor any federal authority to support this proposition.

One of the very few United States Supreme Court cases to consider this issue, albeit on a related topic, is Snyder v. Massachusetts (1934), 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674. In that case a view of the scene of the crime was had by the jury during trial, but the defendant was not allowed to be present although his attorney did attend the view. Defendant claimed that this denial was a violation of due process of law. The Court held:

“Nowhere in the decisions of this court is there a dictum, and still less a ruling, that the Fourteenth Amendment assures the privilege of presence when presence would be useless, or the benefit but a shadow . . . The underlying principle gains point and precision from the distinction everywhere drawn between proceedings at the trial and those before and after .... So far as the Fourteenth Amendment is concerned, the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.”

Snyder, 291 U.S. at 106-108, 54 S.Ct. at 332-333. The Court found that there was no due process violation even though it was the jury that attended the view.

Thus, in order to find that appellant was deprived of due process of law, it must be determined whether appellant was denied a full and fair hearing by the prosecutor meeting with the witnesses at the scene of the shooting.

First, we note that after the meeting, appellant had full opportunity to interview these witnesses and could have conducted a view of his own if he so desired. Moreover, any inconsistencies in the witnesses’ testimony or collusion among the witnesses could have been brought out at trial. Furthermore, there is no Montana or federal constitutional provision which grants to a defendant the right to attend a pre-trial conference of the prosecution and State’s witnesses.

Therefore, we hold that appellant was not denied a full and fair hearing by the pre-trial meeting of witnesses and the prosecutor. There is no evidence of any collusion or improper conduct at this meeting. The presence of appellant at this meeting would have had no reasonably substantial relation to his opportunity to defend against the charge asserted. Any prejudice alleged to have resulted is pure speculation. We cannot find a constitutional violation on a basis so feeble.

Ill

Appellant contends next that he did not have the necessary state of mind required to commit the offense. He bases this contention on two grounds: (1) the gun discharged by accident, and (2) he was so intoxicated that he was not aware of his conduct and did not know what he was doing.

In order to be convicted of mitigated deliberate homicide the State must prove that a person has “purposely or knowingly” caused the death of another. Section 45-5-102, MCA, Section 45-5-103, MCA. Knowingly is defined in Section 45-2-101 (33), MCA as:

“(33) Knowingly — a person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware of his conduct or that the circumstance exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offense when he is aware that it is highly probable that such result will be caused by his conduct . .

Thus, it was sufficient for the conviction if the State proved that appellant knowingly caused the death of Gregory. The State was not required to show that appellant acted purposely.

As to appellant’s contention that the gun went off by accident and he was not aware the decedent would be killed by such accident, the evidence was overwhelming that the shooting was not an accident. All of the witnesses, except appellant and his wife, testified that appellant had the gun in both hands, arms extended, pointed toward Gregory immediately after the shot was fired. Only appellant testified that he dropped the gun on the bar which caused it to discharge. Thus, this contention is wholly without merit.

The assertion that appellant was too intoxicated to entertain the necessary criminal state of mind raises a more serious issue. The relevant statute is Section 45-2-203, MCA, which provides:

“A person who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition is involuntarily produced and deprives him of his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. An intoxicated or drugged condition may be taken into consideration in determining the existence of a mental state which is an element of the offense.” (Emphasis added.)

There is no question that appellant’s intoxicated condition was voluntarily produced. However, his intoxication may still be taken into consideration in determining whether he was aware of the high probability that Clyde Gregory would die as a result of his pulling the trigger of a gun pointed at Gregory’s chest.

It is well settled that a jury may infer the requisite mental state from what a “defendant does and says and from all the facts and circumstances involved.” State v. Pierce (1982), 199 Mont. 57, 63, 647 P.2d 847, 851; State v. Welling (1982), 199 Mont. 135, 647 P.2d 852; Section 45-2-103, MCA. Appellant contends that he was not aware of what he was doing because of his intoxicated condition. The evidence points to the contrary.

Several witnesses testified that immediately after the shot was fired, they turned to see appellant holding the pistol with his arms extended pointed directly at Gregory. He then slowly put the gun back into its holster and walked out the back door. One witness even testified that he saw appellant blow smoke out of the end of the barrel before putting the gun back into its holster. Soon after the shooting, appellant told Sheriff Cragun: “I did it. Just lock me up for life.” When asked by a friend of his why he shot Clyde, appellant replied: “Why not, I’ve lost everything else.”

We find that there was substantial evidence from which the jury could conclude that appellant knowingly caused the death of Clyde Gregory. The jury’s verdict declared that appellant was aware of the high probability that the decedent would be killed as a result of appellant pointing a pistol toward him and pulling the trigger. Where there is sufficient credible evidence to support the jury’s findings, we will not make an independent determination of the effect of voluntary intoxication on a defendant’s state of mind to commit the offense. State v. Hardy (1980), 185 Mont. 130, 604 P.2d 792. Furthermore, it appears that the jury did take appellant’s intoxication into consideration since it found him guilty of mitigated deliberate homicide rather than the greater offense of deliberate homicide.

IV

Finally, appellant contends that there was insufficient evidence to support the conviction. He bases this contention largely on the fact that no one saw him pull the trigger and the State did not prove any motive for the killing. If these two circumstances were necessary in order to sustain a conviction, the burden of proof on the State would be almost insurmountable, and many obvious criminals would go free. The sole requirement necessary to support a conviction of deliberate homicide is that the State prove that a defendant purposely or knowingly caused the death of another.

The standard of review for questions involving sufficiency of the evidence to support a conviction is: (1) questions of fact must be determined solely by the jury, and (2) once a certain legal minimum of evidence has been presented, this Court will not make an independent determination of guilt and substitute its judgment for that of the jury. State v. Lemmon (Mont. 1984), [214 Mont. 121,] 692 P.2d 455, 41 St.Rep. 2359; State v. Martinez (Mont. 1980), 188 Mont. 271, 613 P.2d 974, 37 St.Rep. 982. We find that the evidence presented at trial went far beyond the legal minimum required, and appellant’s contention is without merit.

Affirmed.

MR. JUSTICES HARRISON, MORRISON, GULBRANDSON, WEBER, SHEEHY and HUNT concur.


text:
    HENRY CANTRELL and Lillian Cantrell, Plaintiffs and Appellants, v. MARK HENDERSON and Cardinal Drilling, a corporation, Defendants and Respondents.
    No. 85-247.
    Submitted on Briefs Dec. 20, 1985.
    Decided April 29, 1986.
    718 P.2d 318.

      Huntley & Eakin, Gene Huntley, Baker, for plaintiffs and appellants.
    Alexander & Baucus, Gary M. Zadick, Great Falls, for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiffs sued in the Tenth Judicial District Court for Fergus County claiming damages for personal injuries suffered in a motor vehicle accident. Following plaintiffs’ motion to dismiss the defendant Mark Henderson, he was dismissed with prejudice. Cardinal Drilling then moved for summary judgment on the grounds that its employee Mr. Henderson had been dismissed with prejudice. That motion was granted. Plaintiffs appeal. We affirm the District Court in part and reverse in part.

The issues on appeal:

1. Did the District Court err in dismissing defendant Mr. Henderson with prejudice?

2. Should the District Court’s dismissal of Cardinal Drilling be reversed?

3. Did the District Court err in refusing to permit discovery of earlier statements óf Mark Henderson taken by defendant’s insurance company?

The agreed facts are that at about 10:00 a.m. on December 11, 1981, Mark Henderson, while in the course and scope of his employment for Cardinal Drilling, was driving a Cardinal Drilling truck south on U.S. 191 in Fergus County, Montana. The plaintiffs were driving north on the same highway with Mrs. Cantrell at the wheel. As the vehicles approached each other, apparently Mr. Henderson dozed and his truck started to drift across the center line. Either because the Cantrell automobile was struck or because of the swerve by Mrs. Cantrell to avoid being struck, the Cantrell vehicle went off the highway and turned over, injuring both Mr. and Mrs. Cantrell. Cardinal Drilling maintains that its truck did not get closer than three to five feet from the Cantrells.

The Cantrells sued Mark Henderson and Cardinal Drilling. Mr. Henderson and Cardinal Drilling answered, denying the allegations of negligence and alleging contributory negligence on the part of the Cantrells. The plaintiffs filed an amended complaint stating a claim for punitive damages. A trial date of December 17, 1984 had been fixed.

On October 25, 1984 the plaintiffs moved the court to dismiss the action against the defendant Mark Henderson. On November 7, 1984 Cardinal Drilling responded to the motion to dismiss and stated that it had no objection to Mark Henderson being dismissed from the case “on the condition that such dismissal be with prejudice.” By order dated November 9, 1984 the District Court dismissed the action as to defendant Mark Henderson, with prejudice.

On March 7, 1985 Cardinal Drilling filed a motion for summary judgment. After a hearing, the District Court entered its order granting judgment to defendant Cardinal Drilling with costs. Plaintiffs appeal that judgment. As a part of that appeal, plaintiffs appeal an order dated October 15, 1984 which denied the plaintiffs’ motion to compel production.

I

Did the District Court err in dismissing Mr. Henderson with prejudice?

Plaintiffs contend that the District Court should have disregarded the request for a dismissal with prejudice by Cardinal Drilling, and granted the motion for dismissal without prejudice. Dismissal of a party is governed by Rule 41, M.R.Civ.P. The portion of the rule which is applicable where the defendants have answered is Rule 41(a)(2), M.R.Civ.P., which states in part:

“(2) By order of court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper .... Unless otherwise specified in the order a dismissal under this paragraph is without prejudice.”

From the wording of the rule, it is clear that a district court has authority to condition a dismissal upon such terms and conditions as it deems proper, and that the court also has the power to dismiss with prejudice or without prejudice, subject to the provision that the dismissal is without prejudice unless otherwise stated. It was appropriate for Cardinal Drilling to file its motion in response to plaintiffs’ motion to dismiss, and for it to request a dismissal with prejudice. Plaintiffs have not proven facts requiring a limitation upon the discretion granted to the District Court with regard to dismissal. We conclude that the District Court acted within its discretion when it entered an order of dismissal. We will discuss further the prejudice aspect of the dismissal.

Plaintiffs argue that the question is controlled by the case of Petritz v. Albertson’s, Inc. (1980), 187 Mont. 102, 608 P.2d 1089. Plaintiffs seek to apply the conclusion in Petritz that even though the plaintiff might have obtained some tactical advantage, the Court would not bar a dismissal. That does not apply here. The District Court in this case did not bar a dismissal; it granted dismissal with prejudice.

Cardinal Drilling argues that the issue is no longer worthy of consideration because the statute of limitations has run so far as the Henderson claim is concerned. We do not find that argument persuasive. The sole reason for dismissal of Cardinal Drilling is that Mr. Henderson had been dismissed with prejudice. Cardinal Drilling also argues that this issue was not timely raised. The dismissal of Mr. Henderson was interlocutory in nature, and this issue was briefed and argued before the District Court.

We conclude that where the plaintiffs moved for dismissal without specifying whether dismissal should be with or without prejudice, that issue was left to the discretion of the trial court in accordance with the provisions of Rule 41(a)(2), M.R.Civ.P. See 9 Wright and Miller, Federal Practice and Procedure, Section 2367, at 184. We hold that the District Court did not err in dismissing Mr. Henderson with prejudice.

II

Should the District Court’s dismissal of Cardinal Drilling be reversed?

The District Court concluded that State ex rel. City of Havre v. District Court (1980), 187 Mont. 181, 609 P.2d 275, 37 St.Rep. 552, applies and controls the present case. It held that the plaintiffs’ motion to dismiss defendant Mark Henderson and the granting of that motion with prejudice was equivalent to the stipulation between the parties in City of Havre. The District Court therefore granted Cardinal Drilling’s motion to dismiss.

City of Havre arose in connection with the shooting of a fleeing burglar by a Havre police officer. That officer was named as a defendant along with the City of Havre and County of Hill. The plaintiff and the police officer stipulated to dismissal of the police officer with prejudice and the trial court so ordered. Thereafter, the police officer’s employers, City of Havre and County of Hill, moved for summary judgment on the basis that the release of their employee operated as a judgment on the merits. This Court held that a stipulation to dismiss a defendant employee with prejudice was “tantamount to a judgment on the merits,” and that, accordingly, such a dismissal exonerated the defendant employers. The Court held that it would not look behind the words “with prejudice.”

One month before the City of Havre case was decided, this Court ruled on the parallel issue of dismissal of one of several joint tortfeasors. Kussler v. Burlington Northern, Inc. (1980), 186 Mont. 82, 606 P.2d 520. In that case the Court held that a release of one joint tortfeasor “with prejudice” does not release all of the joint tortfeasors, unless the document intends to do so, or the payment is full compensation, or the release expressly so provides. Kussler, 606 P.2d at 524. That decision was supported by an examination of the reasoning of other jurisdictions and the Restatement (Second) of Torts. The Court adopted the view that the common law rule to the contrary “is a trap for the unwary, it stifles the desire of the victim to compromise, and it leads to results not intended by the parties.” Kussler, 606 P.2d at 524.

This Court later distinguished the facts in City of Havre from a case involving substitution of the proper party for parties misjoined. White v. Lobdell (1982), 196 Mont. 156, 638 P.2d 1057, 39 St.Rep. 1. In White, the defendant realty company was first incorrectly identified in the complaint as a partnership. The members of the partnership were subsequently dismissed with prejudice, and the corporation was substituted as a party. The District Court applied City of Havre and concluded that dismissal of the individuals was, in effect, dismissal of the corporation, since the corporation could only be liable through the acts of its agents or employees. This Court reversed, holding that City of Havre was not applicable, and that what had occurred was “not a substantive dismissal with prejudice of an agent or employee, but rather the substitution of a proper party before the court.” White, 638 P.2d at 1060.

We now reexamine the issue of whether a dismissal with prejudice of a defendant employee exonerates the defendant employer. There is a split of authority on this issue, as this Court noted in City of Havre, 609 P.2d at 277. We conclude that the better rule is that dismissal of a defendant “with prejudice” does not release other defendants who may be liable under a theory of respondeat superior, unless the document intends to do so, or the payment is full compensation, or the release expressly so provides. This is consistent with Kussler and White and reflects the tactical reality of dismissals of less than all defendants in multi-party tort litigation. It also reflects the inappropriateness in modern practice of an interpretation which finally disposes of substantive issues based on a technical misstep by counsel. To the extent that it is inconsistent with this rule, we expressly overrule our holding in City of Havre. We do this not without considering and weighing the importance of stare decisis and the central role of precedent in our system of legal justice. For reasons of fairness fully discussed in our opinion in Kussler, 606 P.2d at 524, the force of this ruling shall apply only to this case and to judgments of dismissal entered after the date of this decision.

Applying the rule to the present case, it appears from the position taken by counsel for Cardinal Drilling that the purpose of dismissing Mark Henderson “with prejudice” was to protect him from further litigation. The defendant’s response to plaintiffs’ motion to dismiss, which was the basis for granting the motion to dismiss with prejudice, stated:

“On October 25,1984, Plaintiffs moved to dismiss Defendant Mark Henderson. Rule 41(a)(2), M.R.Civ.P., controls a motion to dismiss in the absence of a stipulation from all parties. The Court is to grant such a motion only ‘upon such terms and conditions as the Court deems proper.’ Defendants have no objection to Mark Henderson being dismissed from this case on the condition that such dismissal be with prejudice. Defendants assume that this is Plaintiffs’ intent. It would be unjust and improper for a dismissal to be without prejudice so that Mr. Henderson could be sued again at some later time. Therefore, Defendants simply request that the Order of Dismissal clearly specify that it is with prejudice.”

We conclude that the dismissal of Mark Henderson “with prejudice” was not intended to adjudicate the merits of this matter. None of the circumstances set forth in Kussler which would make his release apply also to Cardinal Drilling has been shown. We hold that his dismissal is not dispositive of the plaintiffs’ claim against Cardinal Drilling.

We reverse the District Court’s order dismissing defendant Cardinal Drilling.

Ill

Did the District Court err in refusing to permit discovery of an earlier statement of Mark Henderson taken by defendant’s insurance company?

Rule 26(b), M.R.Civ.P. sets the scope and limitations of discovery. It provides that “[pjarties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action ...” This rule is limited by the ‘work product exception’ in subsection (3) so that

“. . . a party may obtain discovery of documents and tangible things otherwise discoverable . . . and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means

The District Court relied upon Kuiper v. Dist. Court of Eighth Judicial Dist. (Mont. 1981), 632 P.2d 694, 38 St.Rep. 1288, in applying this rule. In Kuiper, this Court concluded that various correspondence and memoranda to and from a corporation’s in-house legal counsel were not discoverable under the work product exception, although the documents were prepared prior to initiation of the lawsuit. This Court said that “work product protection must be afforded from the time the claim file is opened.” Kuiper, 632 P.2d at 701. Applying that rule to the present case, the District Court concluded that Mr. Henderson’s statement to defendant’s insurance company was prepared in anticipation of litigation, because the insurance company claim file had been open when the statement was made.

Rule 26(b)(3), M.R.Civ.P., is identical to the federal rule. Unfortunately, there is no coherent position in the federal courts as to the applicability of this rule to statements of a party made to an insurance agent or adjuster. We have not been referred to a single state appellate court which has squarely ruled on this issue.

The record shows that Mr. Henderson’s statement was given to defendant’s insurance company before the complaint was filed. There is no indication that an attorney had been hired or that the statement was made at the request of an attorney. We conclude that the holding in Kuiper does not extend to this situation. An insurance company claim file is not the same as an attorney’s claim file, for purposes of the work product rule. We hold that Mr. Henderson’s statement to defendant’s insurer was not made “in anticipation of litigation” under Rule 26(b)(3). Therefore the District Court’s order denying plaintiffs’ motion to compel discovery of Mr. Henderson’s statement to the insurance company is reversed.

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

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, MORRISON, SHEEHY, HUNT and GULBRANDSON concur.


text:
    STREICH & ASSOCIATES, INC., a corporation, Plaintiff and Respondent, v. ST. PAUL MERCURY INSURANCE COMPANY, a corporation, and Robert C. Masters, Defendants and Appellants.
    No. 85-490.
    Submitted on Briefs Jan. 16, 1986.
    Decided April 29, 1986.
    717 P.2d 1101.
    Alexander & Baucus, Neil Ugrin, Great Falls, for defendants and appellants.

      Terry N. Trieweiler, Whitefish, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

This is an appeal from the Flathead County District Court’s denial of a motion for change of venue. We affirm.

We note at the outset that although the new venue provisions in the Montana Code were not in effect when the District Court handled this matter, they apply to this appeal. See Weiss v. State (Mont. 1986), [219 Mont. 447,] 712 P.2d 1315, 43 St.Rep. 82. The current Section 25-2-122, MCA, provides that proper venue for a tort action is where defendant resides, or where the tort was committed.

In this case, we are asked to determine where an alleged insurer bad faith tort was committed. If the alleged tort was not committed in Flathead County, then plaintiff filed the action in an improper county under Section 25-2-122, MCA, and defendants are entitled to removal. See Bradley v. Valmont Industries, Inc. (Mont. 1985), [216 Mont. 429,] 701 P.2d 997, 42 St.Rep. 925.

Plaintiff filed its complaint in the District Court for Flathead County, Montana, claiming the defendants violated Montana’s Unfair Trade Practices Act, Section 33-18-201, MCA. The complaint alleges that plaintiff’s potato crop was damaged by potting soil purchased from Martin’s Peat, Inc. Both the plaintiff’s farm and Martin’s Peat, Inc., are in Flathead County.

Martin’s Peat is insured by defendant, St. Paul Mercury Insurance Company. The insurance company has its principal place of business in St. Paul, Minnesota. Defendant, Masters, is a claims representative for the insurance company. Masters resides and maintains his office in Great Falls, Cascade County, Montana. An affidavit of Masters was filed at the District Court stating that all work and decisions on plaintiff’s claim were accomplished in Great Falls. The affidavit also attests that Masters is quadriplegic and that he performs nearly all of his work for the insurance company in Great Falls.

Defendants filed a motion requesting that venue be changed to Cascade County. The District Court denied that motion and a subsequent motion by defendants to vacate, amend, alter or revise the denial. Defendants now appeal the District Court’s refusal to change venue.

We note that the insurance company and its claims representative are separate defendants. Section 25-2-117, MCA, is therefore applicable. That statute provides that “a county that is a proper place of trial for any defendant is proper for all defendants.” In this case, venue in Flathead County was proper for the insurance company.

The basis of plaintiff’s complaint is that defendants violated Montana’s Unfair Trade Practices Act by: (1) failing to act reasonably promptly with respect to plaintiffs claim of damage to his potato crop; (2) failing to adopt and implement reasonable standards for the prompt investigation of plaintiffs claim; and (3) failing to attempt in good faith to effectuate prompt, fair and equitable settlement of plaintiff’s claim even though liability was reasonably clear. See Section 33-18-201, MCA. Defendants allege that these omissions were committed, if at all, in Cascade County where the claim was reviewed and decisions on handling the claim were made. We disagree.

Plaintiff’s action is founded on Section 33-18-201, MCA. The insurer’s duties under that statute include investigation and negotiation. These duties could only have realistically been performed in Flathead County. Therefore, the duty could only be breached in Flathead County.

“For the purposes of venue, a tort is committed where there is a concurrence of breach of obligation and the occasion of damages.” Whalen v. Snell (Mont. 1983), [205 Mont. 299,] 667 P.2d 436, 40 St.Rep. 1283, 1285. Here, the breach, if any, of the insurer’s obligation and the damages occurred in Flathead County. Venue was, therefore, proper in Flathead County.

We affirm.

MR. JUSTICES HARRISON, SHEEHY, MORRISON, WEBER, GULBRANDSON and HUNT concur.