source: Caselaw Access Project

author: JUSTICE LEAPHART JUSTICE TRIEWEILER

license: Public Domain

text:
    IN RE THE CHILD SUPPORT OF PAMELA and PENNY MASON, SHEILA SMITH, formerly known as Sheila Mason, Petitioner and Respondent, v. GEORGE STEPHEN MASON, Respondent and Appellant.
    No. 98-043.
    Submitted on Briefs April 16, 1998.
    Decided August 6, 1998.
    1998 MT 192.
    55 St.Rep. 803.
    290 Mont. 253.
    964 P.2d 743.

      For Appellant: J. Stuart Bradshaw, Attorney at Law, Stevensville.
    For Respondent: Patricia A. Sanders; Sanders & Heller, Hamilton.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶ 1 George Stephen Mason (George) appeals from the decision of the Twenty-First Judicial District Court, Ravalli County, giving full faith and credit to a Utah default judgment awarding Sheila Smith (Sheila) past due child support. Sheila filed the Utah judgment in Montana seeking its enforcement. George, however, sought relief from the Utah judgment maintaining that the Utah court lacked personal jurisdiction over him and thus could not enter a valid default judgment. The District Court determined that the Utah judgment is entitled to full faith and credit in Montana. We affirm.

Factual and Procedural Background

¶2 This child support case is a bit unique in that the parties were divorced in 1959 and the children for whom Sheila seeks child support are now approximately 40 years old. To complicate matters further, the parties married in Utah, dissolved their marriage in Utah and raised the children in Utah. George moved to Montana in 1985 or 1986, nearly 10 years after the children reached majority. The crux of this case is that since the dissolution of the parties’ marriage in 1959, George has actively avoided his child support obligations and Sheila has diligently protected her rights.

¶3 The parties ended their marriage when the children were approximately two years old. George was ordered to pay $50 a month per child and $50 a month in maintenance. During the sixteen years that Sheila raised the children, she sought enforcement of George’s support obligations and with the exception of a few payments, George failed to meet those obligations. In 1970, a Utah court entered judgment in the amount of $11,705 for delinquencies accrued under the parties’ divorce decree.

¶4 In-1977, when both children reached majority, Sheila sought and obtained a final judgment in Utah as to past due child support obligations. George failed to appear in the 1977 matter and default judgment was entered against him. Thereafter, George sought to set aside the default judgment arguing that, in light of Utah Code Ann. § 78-12-22 (1953), which provides an eight-year statute of limitations on enforcement of judgments, the default judgment was not renewable. In other words, George argued that the 1970 judgment that Sheila obtained would expire in 1978 and could not be renewed by refiling the judgment. The lower court denied his motion to set aside the default judgment and let the 1970 judgment stand. George appealed the matter to the Supreme Court of Utah.

¶5 The Utah Supreme Court, at Mason v. Mason (Utah 1979), 597 P.2d 1322, determined that the lower court did not abuse its discretion in denying the motion to set aside because George failed to raise a valid defense. In addition, the court clarified that the 1970 judgment was renewable. The Utah Supreme Court explained that “the owner of the cause of action has already resorted to the court to preserve it; and unless [she] can bring another action on the judgment within the eight-year period, [she] has no way of preventing the loss of [her] justly adjudicated claim.” Mason, 597 P.2d at 1324. The court determined that Sheila was awarded a valid final judgment as to the past due amounts and ruled that the judgment was renewable, thus allowing Sheila an opportunity to preserve her judgment.

¶6 Thereafter, Sheila renewed her judgment in compliance with Utah law every eight years and the balance continued to accrue interest. Most recently, Sheila renewed her Utah judgment in 1993. At no time prior to the 1993 action to renew the judgment did George contend that the Utah courts lacked jurisdiction over him regarding his child support obligations. However, in response to Sheila’s 1993 renewal, George filed a motion to dismiss for lack of personal jurisdiction. George maintains that, because he no longer lives in Utah and no longer has “minimum contacts” with that state, the Utah court’s exercise of jurisdiction violates due process as not comporting with the fair play and substantial justice standard set forth by the United States Supreme Court in International Shoe Co. v. Washington (1945), 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. As a result, George asserts that the Utah court lacked jurisdiction to enforce the judgment against him.

¶7 Following extensive briefing by the parties, the Utah court denied George’s motion to dismiss for lack of personal jurisdiction. Thereafter, George failed to file any further appearances in the Utah court and a default judgment renewing the original judgment was entered against him for past due child support plus interest in the total amount of $48,740.

¶8 Upon successfully renewing her judgment in 1993, Sheila employed the services of a Montana child support enforcement agency which filed the Utah judgment in Montana. The agency, acting on Sheila’s behalf, sought enforcement of the Utah judgment against George in Montana and an order suspending George’s driver’s license. George sought relief from the default judgment asserting that the Utah judgment should not be given full faith and credit because the Utah court lacked personal jurisdiction over him when it entered the judgment. George requested that the Ravalli County District Court revisit the issue of whether the Utah court had personal jurisdiction over him. In addition, George asserted that suspension of his driver’s license would result in a hardship for him because his employment involved an extensive amount of driving.

¶9 Following a hearing, the District Court determined that because the Utah decision was not “modified or vacated by an appeal” it is entitled to full faith and credit. Additionally, the District Court determined that suspension of George’s driver’s license would result in a hardship for him and thus stayed the suspension pending payment by George of one-third of the total amount due within 30 days and regular payments thereafter in accordance with a fixed payment plan. ¶10 George appeals to this Court raising the issues of whether the District Court properly afforded the Utah judgment full faith and credit and whether the court abused its discretion in conditioning the stay of suspension of the driver’s license upon an immediate payment of one-third of the judgment.

Discussion

I

¶11 1) Did the District Court err in affording the Utah judgment full faith and credit?

¶12 The United States Constitution provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” U.S. Const., art. IV, § 1. The United States Supreme Court recently clarified that “[a] final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land.” Baker v. General Motors Corp. (1998),_U.S._, 118 S.Ct. 657, 664, 139 L.Ed.2d 580 (emphasis added). Thus, a final judgment rendered by a court of one state is entitled to full faith and credit in another state so long as the court rendering the decision had jurisdiction over the subject matter and the parties. George asserts that the Utah court lacked personal jurisdiction over him because he no longer has minimum contacts with Utah and thus the Utah decision is not entitled to full faith and credit in Montana. We disagree.

¶ 13 The standard of review of a district court’s conclusions of law is whether the court correctly interpreted the law. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-04. The District Court concluded that the Utah court had personal jurisdiction over George and thus the Utah judgment is entitled to full faith and credit. We review that decision to determine whether the District Court correctly interpreted the constitutional requirement of full faith and credit.

¶14 The District Court, in affording the Utah judgment full faith and credit, stated that “the issue of the Utah court’s personal jurisdiction over [George] was presented to that Court and the [Utah] Court made a judgment on the merits-that the Court did have personal jurisdiction over [George], That judgment... is entitled to full faith and credit in this Court and should not be re-litigated.” Thus, the District Court determined that George’s prior presentation of the jurisdiction issue in the Utah courts has res judicata effect in Montana and bars any subsequent litigation on that issue here. We conclude that the District Court correctly interpreted the constitutional requirement of full faith and credit.

¶15 In Underwriters National Assurance Co. v. North Carolina Life and Accident and Health Ins. Guar. Ass’n (1982), 455 U.S. 691, 102 S.Ct. 1357, 71 L.Ed.2d 558, the United States Supreme Court granted certiorari to decide whether a North Carolina court violated the Full Faith and Credit Clause by refusing to treat a prior Indiana court judgment as res judicata on the issue of jurisdiction. Underwriters, 455 U.S. at 694, 102 S.Ct. 1357. The North Carolina court, despite a clear ruling by the Indiana court that it was properly exercising jurisdiction, relitigated the jurisdiction issue and determined that Indiana did not have jurisdiction over the North Carolina matter. The Supreme Court held that “ ‘a judgment is entitled to full faith and credit — even as to questions of jurisdiction — when the second court’s inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment.’ ” Underwriters, 455 U.S. at 706, 102 S.Ct. 1357 (quoting Durfee v. Duke (1963), 375 U.S. 106, 111, 84 S.Ct. 242, 245, 11 L.Ed.2d 186). The Supreme Court determined that the North Carolina court failed to recognize its limited scope of review when determining whether a foreign court had jurisdiction to render a challenged judgment. The North Carolina court should have determined whether the Indiana court fully and fairly considered the question of jurisdiction. If the matter was fully considered and finally determined, that judgment was entitled to full faith and credit in North Carolina. Underwriters, 455 U.S. at 706-07, 102 S.Ct. 1357.

¶16 Thus, when issues of jurisdiction have been determined by one court, the doctrine of res judicata precludes a second court from considering jurisdiction so long as the first court fully and fairly considered the issue. Moreover, that judgment as to jurisdiction is entitled to full faith and credit in the second court. Such an interpretation comports with the full faith and credit policy that courts of one state must give such force and effect to a foreign judgment as the judgment would have received in its own state. This Court, like the North Carolina court, has a limited scope of review because George presented his personal jurisdiction issue to the Utah court. The Utah court determined that it had personal jurisdiction over George. Thus, this Court must simply determine whether the Utah court fully and fairly considered the issue.

¶17 George moved to dismiss the 1993 Utah renewal action asserting that he no longer had minimum contacts with the State of Utah and thus the Utah court did not have personal jurisdiction over him. The record indicates that the Utah court received extensive briefing from the parties regarding the jurisdiction argument. The Utah court had evidence that George and Sheila were married in Utah, resided in Utah throughout their marital relationship, had two children in Utah and were subsequently divorced in Utah. Additionally, George was a Utah resident when the Utah court ordered him to pay child support and he was a resident in 1977, when the Utah court, upon the children reaching majority, issued a final judgement as to the total past due child support. The Utah court determined that, notwithstanding George’s subsequent departure from Utah in 1985 or 1986, it had sufficient evidence of George’s relationship with the state of Utah.

¶18 With respect to George’s “minimum contacts,” we recognize that in adopting the minimum contact test in International Shoe, the Court sought to ensure that the exercise of jurisdiction in a particular case would not offend “traditional notions of fair play and substantial justice.” International Shoe, 326 U.S. at 316, 66 S.Ct. 154. More specifically, the “fair play and substantial justice” standard imposed by the minimum contacts test is satisfied when a defendant should reasonably have anticipated being haled before the court in question. See Kulko v. Superior Court of California (1978), 436 U.S. 84, 97-98, 98 S.Ct. 1690, 1700, 56 L.Ed.2d 132 (quoting Shaffer v. Heitner (1977), 433 U.S. 186, 216, 97 S.Ct. 2569, 2586, 53 L.Ed.2d 683). In this case, we determine that George should have reasonably anticipated being haled before the Utah court to defend against the child support action. In particular, George stated during the hearing on his motion to dismiss that he was aware of at least five or six separate occasions on which Sheila renewed her judgment in Utah and that he had notice of those proceedings. While George stated that he did not defend in some of those actions, he was aware of their existence and aware that he could be haled into court in Utah as a result of his outstanding obligations. We reject George’s assertion that the Utah court’s exercise of jurisdiction did not comport with the due process requirements of fair play and substantial justice.

¶19 Moreover, the record reveals that the arguments made by the parties in Utah, namely George’s argument that he no longer has minimum contacts with that state, are identical to the arguments they make to this Court. George had his day in court to litigate the issue of whether the Utah court had personal jurisdiction over him. This Court, in accordance with the constitutional requirements of full faith and credit and the doctrine of res judicata, is barred from relitigating the issue of jurisdiction.

¶20 We determine that the Utah court fully and fairly considered the jurisdiction issue. As a result, this Court must give full faith and credit to the Utah court’s determination that it had personal jurisdiction over George as to Sheila’s 1993 action to renew her judgment for past due child support obligations. We further hold that the Utah default judgment is entitled to full faith and credit in this state.

II

¶21 2) Did the District Court abuse its discretion in conditioning the terms of the stay of suspension of driver’s license upon an immediate payment of one-third of the judgment?

¶22 Section 40-5-702, MCA, permits a support enforcement entity (including a district court), upon the petition of an obligee, to issue a notice of intent to suspend a license of an obligor. The enforcement agency in this case issued such a notice informing George of its intent to suspend his driver’s license as a result of the past due child support judgment. In response, George sought relief from the suspension pursuant to § 40-5-710, MCA, which allows an obligor to seek a stay of the suspension. Section 40-5-710, MCA, provides that, upon a showing of significant hardship by the obligor, the enforcement entity may stay suspension of a license.

¶23 The District Court held a hearing on the enforcement agency’s petition for an order to suspend George’s driver’s license. At the hearing, George presented evidence that his job as a self-employed hardware supplier requires an extensive amount of driving and thus argued that a suspension of his driver’s license would create a significant hardship for him. The District Court concluded that George had shown that a significant hardship would result if his license was suspended. As a result, the District Court issued a stay subject to the following conditions: 1) within 30 days of the date of its order, George provide proof of payment of one-third of the total obligation; 2) that George enter a fixed payment plan for paying the remainder of the obligation; and 3) pursuant to § 40-5-710(4), MCA, the stay would terminate upon George’s failure to abide by the above terms. George argues that the stay, as ordered by the District Court, is “essentially no stay at all.”

¶24 The granting of the stay and its terms are a matter of discretion for the district court. This Court will not overturn a discretionary ruling by a district court absent an abuse of discretion. May v. First Nat’l Pawn Brokers, Ltd. (1995), 270 Mont. 132, 134, 890 P.2d 386, 388. Section 40-5-710(4), MCA, provides that “[a] stay terminates upon ... failure by the obligor to abide by the terms and conditions of a payment plan...” The District Court, in setting the terms of the stay, noted that “continued judgments against [George] in Utah have gone ignored for far too long.” Therefore, the court issued the stay, but conditioned the stay upon a substantial commitment from George to pay under the terms of the payment plan. We conclude that the District Court did not abuse its discretion. Affirmed.

JUSTICES NELSON, HUNT and REGNIER concur.

JUSTICE TRIEWEILER

specially concurring.

¶25 I concur with the result of the majority opinion, although I do not agree with all that is said therein.

¶26 I concur that based on the U. S. Supreme Court’s decision in Underwriters National Assurance Co. v. North Carolina Life and Accident and Health Ins. Guarantee Association (1982), 455 U.S. 691, 102 S. Ct. 1357, 71 L. Ed. 2d 558, this Court is bound by the Utah Court’s decision that it had personal jurisdiction over George Stephen Mason when the enforcement action was commenced in 1993.

¶27 I do not necessarily agree with the decision of the Utah Court, nor do I agree with the inference in the majority opinion that the location where George and Sheila were married, where they resided during their marriage, where they gave birth to children, or where they were divorced (all of which occurred prior to 1985), had anything to do with whether George had sufficient contact with the state of Utah in 1993 to afford that state personal jurisdiction when the enforcement action was commenced.

¶28 Furthermore, I do not agree that the U. S. Supreme Court’s decisions in either Shaffer v. Heitner (1977), 433 U.S. 186, 97 S. Ct. 2569, 53 L. Ed. 2d 683, or Kulko v. Superior Court of California (1978), 436 U.S. 84, 98 S. Ct. 1690, 56 L. Ed. 2d 132, in any way support this Court’s conclusion that George had “minimum contact” with the state of Utah at the time that the 1993 action was commenced. The issue in Shaffer was whether the state of Maryland had personal jurisdiction over directors and officers of a corporation, even though they had never set foot in the state, simply because of their relationship to a corporation chartered in the state. The Supreme Court held that there was insufficient contact, and in the process, cited the following relevant language from one of its earlier cases:

“[The State] does not acquire ...jurisdiction by being the ‘center of gravity’ of the controversy, or the most convenient location for litigation. The issue is personal jurisdiction, not choice of law. It is resolved in this case by considering the acts of the [appellants].” Hanson v. Denckla, 357 U.S. 235, 254, 78 S.Ct. 1228, 2 L.Ed. 1283 (1958).

Shaffer, 433 U.S. at 215, 97 S. Ct. at 2585, 53 L. Ed. 2d at 705. Nothing from the Shaffer decision remotely supports the majority’s decision in this case.

¶29 The Kulko decision is even less supportive of the majority’s conclusions. The issue in Kulko was whether the State of California had personal jurisdiction to increase a nonresident father’s child support obligation. The mother in that case, who had petitioned the California court for relief, was a resident of California, as were the parties’ children. However, the father’s only connections to the state were two previous visits to the state, the fact that he and his former wife had been married in the state, the fact that at the time of the parties’ separation he had agreed to allow his children to spend summers with their mother in California, and the fact that he later consented to allow his daughter to live with her mother in California during the school year. The U.S. Supreme Court held that under these circumstances the California courts did not have personal jurisdiction over the children’s father. It stated: “[W]e believe that the California Supreme Court’s application of the minimum-contacts test in this case represents an unwarranted extension of International Shoe and would, if sustained, sanction a result that is neither fair, just, nor reasonable.” Kulko, 436 U.S. at 92, 98 S. Ct. at 1697, 56 L. Ed. 2d at 141.

¶30 The only language in the Kulko decision relevant to the principle issue in this case is the following:

It cannot be disputed that California has substantial interests in protecting resident children and in facilitating child-support actions on behalf of those children. But these interests simply do not make California a “fair forum,” Shaffer v. Heitner, supra, 433 U.S. at 215, 97 S.Ct. at 2586, in which to require appellant, who derives no personal or commercial benefit from his child’s presence in California and who lacks any other relevant contact with the State, either to defend a child support suit or to suffer liability by default.

Kulko, 436 U.S. at 100-01, 98 S. Ct. at 1701, 56 L. Ed. 2d at 146-47.

¶31 There are no facts, no law, and no language in the Kulko decision which support the majority’s decision in this case, nor the Utah court’s decision based on the record before us.

¶32 The 1993 enforcement action upon which George’s current debt is based was a separate action for which a separate determination of minimum contacts had to be made. Whether or not George was present in Utah in some capacity seven years earlier is irrelevant. However, the decision of the Utah court was not appealed and is, therefore, final and binding.

¶33 Finally, I do not necessarily agree with the Supreme Court’s reasoning in Underwriters. It makes little sense to me that a court which may be without jurisdiction can, in fact, finally decide the issue of jurisdiction for the purpose of binding other courts by its judgment. However, I do agree that the decision controls the outcome of this case since it interpreted the uniquely federal guarantee of full faith and credit.

¶34 For these reasons, I specially concur with the majority opinion.


author: JUSTICE REGNIER JUSTICE LEAPHART,

text:
    JERRY McGILLEN, Plaintiff and Appellant, v. PLUM CREEK TIMBER COMPANY, Defendant and Respondent.
    No. 98-065.
    Submitted on Briefs April 30, 1998.
    Decided August 10, 1998.
    1998 MT 193.
    55 St.Rep. 808.
    290 Mont. 264.
    964 P.2d 18.

      For Appellant: Dean K. Knapton, Attorney at Law, Kalispell.
    For Respondent: Todd A. Hammer; Warden, Christiansen, Johnson & Berg, PLLP; Kalispell.
   JUSTICE REGNIER

delivered the opinion of the Court.

¶1 The plaintiff, Jerry McGillen, brought this action in the Eleventh Judicial District Court, Flathead County, alleging that he was wrongfully discharged by defendant Plum Creek Manufacturing, Inc. McGillen appeals from the jury’s verdict in favor of Plum Creek. We affirm.

¶2 We restate the issues on appeal as follows:

¶3 1. Did the District Court err when it denied McGillen’s motion for a new trial on the grounds of jury misconduct?

¶4 2. Did the District Court err by denying McGillen’s cross-motion for summary judgment?

¶5 3. Did the District Court abuse its discretion by not allowing witnesses to give opinions on whether the appellant’s conduct constituted a violation of company policy?

¶6 4. Did the District Court abuse its discretion in allowing evidence that the appellant was discharged for reasons other than the one set forth in the discharge letter?

FACTUAL AND PROCEDURAL BACKGROUND

¶7 Jerry McGillen worked at Plum Creek Manufacturing in Columbia Falls, Montana, for approximately fifteen years. Sometime in May 1995, McGillen placed an ad in the Mountain Trader, a weekly trade publication. The ad falsely stated that it was placed by John DeReu, McGillen’s work supervisor. The ad appeared in the May 26,1995, issue of the Mountain Trader and advertised the sale of a truck and indicated that interested persons should call late in the evening. The ad included DeReu’s name and telephone number. McGillen had no permission or authority from DeReu to place the ad.

¶8 Prior to the placement of the ad, DeReu had reported McGillen to Don Luce for sleeping on the job, and McGillen was suspended for that act. Luce is the plant manager at the Columbia Falls sawmill and is DeReu’s supervisor and boss.

¶9 At first, when confronted by his supervisors, McGillen denied any involvement with the ad. Later, he changed his position and admitted to placing the ad when Plum Creek hired an investigator.

¶ 10 After reviewing the incident, Plum Creek terminated McGillen on June 7,1995. Plum Creek found that McGillen had violated company policy. Specifically, Plum Creek found that McGillen’s activities in placing the ad violated a section of the company’s rules concerning intimidation. The Company Rules state, in pertinent part:

Violation of Company Rules will form the basis for immediate disciplinary action, which may include suspension or discharged [sic] depending on the severity of the offense.... Please be sure to review these rules with your supervisor when reporting to work.
1. Intimidation and/or molestation of any individual or group of employees.

These rules had been explained to McGillen before he placed the ad in the paper. In fact, he had signed a statement stating that he understood these rules on October 10, 1978, when he started his employment with Plum Creek.

¶11 The reasons for McGillen’s termination were given in a letter, dated June 7,1995, from Don Luce. The discharge letter states, in relevant part:

The ad you placed in the Mountain Trader, dated May 26,1995, in John DeReu’s name soliciting late evening phone calls was definitely harassment and is not only against company policy but is against the law.
Since you have admitted to the offense neither the DeReus or Plum Creek will file charges in this incident unless further harassment of any kind follows.
Due to the seriousness of the violation your employment at Plum Creek is being terminated as of today, June 7,1995.

¶12 On July 28,1995, McGillen filed suit in the Eleventh Judicial District Court, Flathead County, for wrongful discharge. Both parties moved for summary judgment. Plum Creek argued that because McGillen violated company policy, it had good cause to fire him and, therefore, was entitled to summary judgment. McGillen argued that if there were no questions of fact, he should be entitled to summary judgment because Plum Creek did not have a legitimate business reason to fire him. The District Court denied both motioiis, ruling that whether McGillen’s conduct violated Plum Creek’s rules and constituted good cause for discharge was a question of fact for a jury to decide. A jury trial resulted in a verdict that McGillen had not been wrongfully discharged. McGillen appeals from the judgment and from his pretrial and post-trial motions. We affirm.

ISSUE 1

¶13 Did the District Court err when it denied McGillen’s motion for a new trial on the grounds of jury misconduct?

¶14 Section 25-11-102, MCA, enumerates the grounds upon which a new trial may be granted:

The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:
(1) irregularity in the proceedings of the ... jury ... by which either party was prevented from having a fair trial;
(2) misconduct of the jury.

In this case, McGillen moved for a new trial on the grounds of jury misconduct pursuant to subsections (1) and (2) of the statute.

¶15 The decision to grant or deny a new trial is within the sound discretion of the trial judge and will not be disturbed absent a showing of manifest abuse of that discretion. Geiger v. Sherrodd, Inc. (1993), 262 Mont. 505, 508, 866 P.2d 1106, 1108; Henrichs v. Todd (1990), 245 Mont. 286, 291, 800 P.2d 710, 713. We will give considerable weight to the determination of the district court because it is in the best position to observe the jurors and determine the potential for prejudice when allegations of jury misconduct are raised, and the district court is properly vested with significant latitude when ruling on these matters. See State v. Gollehon (1993), 262 Mont. 293, 303, 864 P.2d 1257, 1263-64.

¶ 16 McGillen claims jury misconduct or irregularity in the proceedings because a juror shared information with the other jurors that he knew one of Plum Creek’s witnesses, Don Luce. The juror, James Trout, did not state in voir dire that he knew Luce. During the jury deliberations, the court received a note from Trout indicating “[t]he question has come up that I have met Mr. Luce on occasion during my career as a Banker in the Valley. Other jurors have stated that this results in an impairmant [sic] of my judgement in this matter.” Specifically, Trout told the other jurors that Luce was not intimidating.

¶ 17 McGillen made a motion for a mistrial. The court denied the motion. The court also did not allow his requests to interview the entire jury panel. However, the court did ask Trout if he could make a fair and impartial decision in this matter based strictly upon the evidence as presented during the trial, to which he answered, “Absolutely.” After the verdict was rendered, McGillen filed a post-trial motion for a new trial, again raising his complaints regarding possible jury misconduct. This motion was accompanied by affidavits of two jurors. On October 7, 1997, the District Court denied McGillen’s motion for a new trial.

¶ 18 On appeal, McGillen argues that the District Court should have granted him a new trial pursuant to § 25-11-102, MCA, on the grounds of jury misconduct by Trout in failing to acknowledge his relationship with Luce during voir dire. McGillen contends Trout became a witness, giving testimony about Luce, and that created an irregularity in the trial by bringing evidence into deliberations that was not presented at trial.

¶ 19 The District Court denied McGillen’s motion for a new trial for three reasons. First, the court stated that the information allegedly shared by Trout was not relevant to the issues before the jury. The central issue before the jury was whether McGillen’s conduct was intimidating to DeReu. The issue was not whether Luce was intimidating to McGillen. Second, the court found that the juror affidavits set forth internal, rather than external, influences on the jury and, therefore, are inadmissible pursuant to Rule 606(b), M.R.Evid. Third, the court noted that the jury took a vote prior to Trout’s comment which was 8-4 in favor of Plum Creek. When the verdict was announced, this vote was not changed as a result of the shared information. The court noted that the votes serve to rebut any contention that McGillen was prejudiced by Trout’s conduct as a member of the jury.

¶20 We agree with the District'Court that Trout’s admission during jury deliberations was an internal, rather than external, influence on the jury’s verdict. Rule 606(b), M.R.Evid., sets forth the limited circumstances when a court may receive an affidavit regarding a jury’s deliberations in order to impeach a verdict. Rule 606(b), M.R.Evid., states:

Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
However, as an exception to this subdivision, a juror may testify and an affidavit or evidence of any kind be received as to any matter or statement concerning only the following questions, whether occurring during the course of the jury’s deliberations or not: (1) whether extraneous prejudicial information was improperly brought to the jury’s attention; or (2) whether any outside influence was brought to bear upon any juror; or (3) whether any juror has been induced to assent to any general or special verdict, or finding on any question submitted to them by the court, by a resort to the determination of chance.

¶21 In Harry v. Elderkin (1981), 196 Mont. 1, 7-8, 637 P.2d 809,

813, we set forth when jury affidavits may be used to impeach a jury verdict. Harry states:

The cases on the use of juror affidavits fall into two major categories: 1) those involving external influence on the jury and 2) those involving internal influence on the jury. Where external influence is exerted on the jury or where extraneous prejudicial information is brought to the jury’s attention, juror affidavits can be the basis for overturning the judgment if either party was thereby deprived of a fair trial. On the other hand, juror affidavits may not be used to impeach the verdict based upon internal influences on the jury, such as a mistake of evidence or misapprehension of the law.

Harry, 196 Mont. at 7-8, 637 P.2d at 813 (citations omitted). Moreover, knowledge and information shared by one juror to another or others is not an extraneous influence. State v. Hage (1993), 258 Mont. 498, 508-09, 853 P.2d 1251, 1257.

¶22 McGillen’s contention regarding Trout’s comment about Luce does not fall within the three exceptions to Rule 606(b), M.R.Evid. It was merely a statement regarding Trout’s personal knowledge of one of the witnesses. The affidavits submitted by McGillen do not show that the jurors were influenced or prejudiced by Trout in reaching their decision. Thus, Trout’s comment was an internal influence and, therefore, cannot be used to impeach the jury verdict.

¶23 As stated above, a district court has wide latitude in determining whether jury misconduct occurred. In this case, the District Court conducted an inquiry to determine whether Trout could sit on the jury, despite having knowledge of one of Plum Creek’s witnesses, Don Luce. The court determined that Trout could sit as a fair and impartial juror.

¶24 We conclude that the District Court did not abuse its discretion when it ruled that McGillen could not impeach the jury verdict through affidavits because there were no external prejudicial influences on the jury. Accordingly, we hold that the court did not manifestly abuse its discretion in denying McGillen’s motion for a new trial.

ISSUE 2

¶25 Did the District Court err by denying McGillen’s cross-motion for summary judgment?

¶26 McGillen argues that the District Court erred by not ruling as a matter of law that his discharge was wrongful. The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

¶27 McGillen contends that his use of a lawful product cannot be a legitimate business reason for an employee discharge. In other words, he asserts that placing a fictitious ad in the Mountain Trader, on his own time outside of work, in the name of his supervisor, was merely a practical joke and could not be used as a reason for Plum Creek to discharge him. McGillen relies on § 39-2-903(5), MCA, which states, in part, that “[t]he legal use of a lawful product by an individual off the employer’s premises during nonworking hours is not a legitimate business reason.”

¶28 In the District Court, both parties moved for summary judgment. Plum Creek argued that because McGillen admitted that he had violated company policy, it had good cause to fire him and, thus, was entitled to summary judgment. In response, McGillen argued that although he had admitted to a violation of the company rules, there remained a question of fact as to whether the rule or policy was fair, job related, and in furtherance of a legitimate business purpose. McGillen further argued that there was also an issue of material fact regarding whether his conduct amounted to harassment or intimidation under the company rules. In conclusion, he stated if the court believed there were no issues of fact, then it should rule as a matter of law that his discharge was wrongful.

¶29 The District Court denied both parties’ motions for summary judgment. The court stated:

[McGillen] is correct that [Plum Creek] is bound by the reasons set forth in the [discharge] letter, and there seem to be issues of fact regarding whether the application of the rule prohibiting harassment or intimidation to [McGillen]’s conduct in this case constitutes ‘good cause’ within the meaning of the Wrongful Discharge from Employment Act. ... Granted that [McGillen] has acknowledged violating a company policy, and granted that the ‘fairness’ of the policy is not the issue, the Court cannot rule as a matter of law that the application of the company rule to the [McGillen]’s conduct constitutes ‘reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties ... or other legitimate business reason.’ Section 39-2-903(5), M.C.A.

(Citations omitted.)

¶30 The District Court did not specifically rule on McGillen’s argument that he should not have been discharged because his conduct involved the “legal use of a lawful product.” Instead, it ruled that there was a genuine issue of material fact as to whether his conduct constituted reasonable grounds for dismissal.

¶31 McGillen raised the issue again when the parties were settling jury instructions. He requested the court to instruct the jury that “[l]egal use of a lawful product by an individual off the employee’s premises during non-working hours is not a legitimate business reason.” The District Court rejected the argument again. The court noted that “lawful product,” as defined in § 39-2-313, MCA, means a product that is legally consumed, and includes food, beverages, and tobacco. The court found that the placing of a newspaper ad did not fall within the definition.

¶32 We agree with the District Court that it could not rule as a matter of law that McGillen’s conduct in placing a fictitious ad in his supervisor’s name was a legitimate use of a lawful product that would preclude Plum Creek from firing him. The purpose of § 39-2-903(5), MCA, is to protect an employee from discharge for the use of a legal product, such as alcohol or tobacco, off the employer’s premises.

¶33 We conclude that the District Court did not err in denying McGillen’s cross-motion for summary judgment. The court was correct in ruling that whether it was reasonable for Plum Creek to apply the rule prohibiting harassment or intimidation to McGillen’s conduct and fire him was an issue for the jury to decide.

ISSUE 3

¶34 Did the District Court abuse its discretion by not allowing witnesses to give opinions on whether the appellant’s conduct constituted a violation of company policy?

¶35 McGillen argues that the District Court abused its discretion by not allowing McGillen’s witnesses to testify about whether or not the firing was justified. We review evidentiary rulings by the district court to determine whether the district court abused its discretion. State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380. The district court has broad discretion to determine whether evidence is relevant and admissible, and absent a showing of abuse of discretion, the trial court’s determination will not be overturned. Passama, 261 Mont. at 341, 863 P.2d at 380.

¶36 The District Court granted Plum Creek’s motion in limine to prevent witnesses.from testifying and giving their personal opinions on matters which were ultimately legal issues in this case. Specifically, the court did not allow witnesses to give their opinions regarding whether they thought the firing was justified.

¶37 McGillen contends that he would have offered testimony from fellow employees as to whether his firing was justified. McGillen asserts that this testimony would have been relevant to prove that the company rules would not have been interpreted by employees to mean that they would have been fired for placing false advertisements. Also, he contends that this testimony would have been helpful to the jury in order to determine whether taking out a false advertisement would have been perceived as a violation of company policy.

¶38 The ultimate question before the jury was whether McGillen was wrongfully discharged by Plum Creek for violating its company rules. We determine that witnesses’ personal opinions about whether or not they thought McGillen’s conduct constituted a violation of company policy would be irrelevant under Rule 701, M.R.Evid. This was a matter for the jury to decide. It also serves no purpose because McGillen admitted in his deposition and at trial that he had violated the company’s rules. Thus, we conclude that the District Court did not abuse its discretion by precluding this type of testimony.

ISSUE 4

¶39 Did the District Court abuse its discretion in allowing evidence that the appellant was discharged for reasons other than the one set forth in the discharge letter?

¶40 McGillen claims that the District Court erred by not granting his motion to limit testimony to the fictitious ad, the sole reason given in the letter of discharge, and allowing testimony regarding an earlier incident in which Plum Creek suspended McGillen for sleeping on the job. As stated above, we review evidentiary rulings by the district court to determine whether the district court abused its discretion. Passama, 261 Mont. at 341, 863 P.2d at 380.

¶41 McGillen made a motion in limine to prohibit references to other reasons for the discharge which are not contained in the June 7, 1995, letter. Specifically, McGillen wanted to prohibit any testimony involving when he was disciplined by Plum Creek for sleeping on the job, and whether he had ever lied about placing the fictitious ad. Plum Creek responded that evidence of the sleeping incident was necessary for the jury to put the stated reason for the discharge in context. ¶42 The District Court granted McGillen’s motion in limine in part and denied it in part. The court ruled that:

The stated reason for the discharge was harassment in violation of the law and company policy. Clearly, under Galbreath v. Golden Sunlight Mines, 270 Mont. 19, 890 P.2d 382 (1995), [Plum Creek] cannot offer evidence suggesting that [McGillen] was discharged for other reasons. However, reference to the incident in which [McGillen] was apparently disciplined for sleeping on the job, which apparently immediately preceded the placing of the ad for which he was discharged, is necessary for the jury to assess the stated reason for the discharge.

However, McGillen argues that the District Court did not follow Galbreath v. Golden Sunlight Mines, Inc. (1995), 270 Mont. 19, 890 P.2d 386, because Plum Creek presented reasons for his discharge beyond the reason given in the letter of discharge.

¶43 A review of the trial transcript shows that Plum Creek offered testimony that McGillen was fired for placing the fictitious ad. Any testimony offered regarding McGillen being suspended for the sleeping on the job incident was included with testimony that it was not the reason for his discharge. In fact, the only reason that Plum Creek offered for McGillen’s discharge at trial was the placing of the fictitious ad.

¶44 Furthermore, the District Court gave the jury Instruction No. 9 which stated:

In a wrongful discharge action the only reason for discharge that can be considered is the reason set forth in the discharge letter. Evidence of lying by the Plaintiff is not justification for the discharge, but may be considered by you for other purposes.

McGillen did not object to this instruction before the case was given to the jury.

¶45 We determine that the District Court properly limited testimony regarding the reasons for McGillen’s discharge to those stated in the discharge letter. Any testimony offered with respect to McGillen being disciplined for sleeping on the job was relevant and, therefore, admissible, to tell the jury a possible motive for McGillen placing the ad in the first place. We conclude that the District Court did not abuse its discretion in allowing any evidence or testimony that McGillen was discharged for reasons other than the one set forth in the discharge letter.

¶46 Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT and NELSON concur.

JUSTICE LEAPHART,

specially concurring.

¶47 I concur with the Court’s resolution of Issues 2, 3 and 4 and I specially concur as to Issue 1 which addresses the District Court’s denial of McGillen’s motion for a new trial on the grounds of jury misconduct. McGillen claims jury misconduct or irregularity in the proceedings because juror Trout shared information with other jurors that he knew one of Plum Creek’s witnesses, Don Luce. Specifically, juror Trout told the other jurors that Luce was not intimidating.

¶48 For the reasons set forth in my specially concurring opinion in State v. Kelman (1996), 276 Mont. 253, 263, 915 P.2d 854, 860, I do not agree with the Court’s conclusion that Trout’s sharing of this information was an internal rather than an external influence on the jury’s verdict. However, since the issue before the jury was whether McGillen’s conduct was intimidating, not whether Luce was intimidating to McGillen, the external influence, if any, was not relevant to the jury’s deliberations. Furthermore, as noted by the Court, the affidavits submitted by McGillen do not show that the jurors were influenced or prejudiced by Trout in reaching their decision. Accordingly, I would hold that any error resulting from the jury misconduct was harmless.


author: JUSTICE NELSON

text:
    WILLIAM B. SCHMIDT, Plaintiff and Appellant, v. WASHINGTON CONTRACTORS GROUP, INC. and ALPINE CONSTRUCTION, INC., Defendants and Respondents.
    No. 97-444.
    Submitted on Briefs February 2, 1998.
    Decided August 11, 1998.
    1998 MT 194.
    55 St.Rep. 814.
    290 Mont. 276.
    964 P.2d 34.

      For Appellant: F. R. Randy Harrison; Harrison Law Office, Missoula.
    For Respondents: Paul C. Meismer; Carey, Meismer & McKeon, Missoula (for Washington Contractors Group, Inc.); Lynn M. Grant; Quane, Smith, Howard & Hull, Missoula (for Alpine Construction, Inc.).
   JUSTICE NELSON

delivered the Opinion of the Court.

¶1 Plaintiff William Schmidt (Schmidt) was injured during a single vehicle motorcycle accident that occurred on an Interstate 90 ramp under construction at the DeSmet Interchange near Missoula, Montana. Schmidt filed a complaint in negligence in the Fourth Judicial District Court, Missoula County, against Defendant Washington Contractors Group, Inc. (Washington), the general contractor for the “DeSmet Interchange Project,” and Defendant Alpine Construction, Inc. (Alpine), the subcontractor hired to control traffic during the construction project. The District Court subsequently entered an opinion and order granting summary judgment in favor of Defendants Washington and Alpine. From this opinion and order, Schmidt appeals. We reverse and remand for further proceedings consistent with this Opinion.

¶2 The sole issue raised on appeal is whether the District Court erred by granting Washington and Alpine summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Highway 93 and Interstate 90 intersect near Missoula, Montana, at a location called the DeSmet Interchange. The Montana Department of Transportation contracted with Washington to work as the general contractor for the DeSmet Interchange Project (the Project). As the general contractor, Washington was responsible for improving the overpass, on-ramps and off-ramps at the DeSmet Interchange during the spring and summer of 1995. Alpine, hired as subcontractor on the Project, was responsible for controlling traffic during the construction project which included posting signs. On August 21,1995, Schmidt was injured when he crashed his motorcycle while descending a temporary entrance ramp to Interstate 90 at the DeSmet Interchange. While the top-half of this temporary ramp was paved, the bottom-half was only graveled. Additionally, where the ramp interfaced with Interstate 90, an elevation difference of approximately six to eight inches existed and the ramp was repaired almost daily due to wear and tear. Schmidt’s accident occurred at the bottom of the temporary ramp where the graveled portion interfaced with the paved interstate and the elevation differential existed.

¶4 On May 30,1996, Schmidt filed a complaint against both Washington and Alpine for personal injuries resulting from his accident and requested a jury trial in the Fourth Judicial District Court, Missoula County. Schmidt alleged that Alpine was negligent in failing to adequately warn motorists of the elevation differential on the ramp and that Washington was negligent in failing to eliminate or mitigate the danger posed by the elevation differential. Additionally, Schmidt alleged that pursuant to agency law, Washington, as principal to its agent, Alpine, was responsible for Alpine’s negligence. Schmidt sought compensatory damages for his personal injuries and punitive damages for Washington’s and Alpine’s alleged gross negligence. The parties engaged in discovery resulting in a number of affidavits, depositions and answers to interrogatories.

¶5 Prior to trial, Washington and Alpine each filed a motion in limine to exclude evidence of motorcycle accidents on the ramp other than Schmidt’s and a motion for summary judgment on Schmidt’s entire claim. Additionally, Washington filed a motion for partial summary judgment on the issue of punitive damages. On June 10, 1997, after briefing and oral argument, the District Court entered an opinion and order granting Washington and Alpine summary judgment, vacating the jury trial and dismissing Schmidt’s complaint with prejudice. Explaining that the grant of summary judgment was dispositive, the court declined to address the remaining pending motions. From this opinion and order, Schmidt appeals.

STANDARD OF REVIEW

¶6 Under Rule 56(c), M.R.Civ.P, summary judgment is proper only when the pleadings, depositions, answers to interrogatories, affidavits and admissions on file show no genuine issues of material fact exist and when the moving party is entitled to judgment as a matter of law. Four elements comprise a negligence cause of action: (1) duty; (2) breach of duty; (3) causation; and (4) damages. Wiley v. City of Glendive (1995), 272 Mont. 213, 217, 900 P.2d 310, 312. Because issues of negligence ordinarily involve questions of fact, they are generally not susceptible to summary judgment and are properly left for a determination by the trier of fact at trial. Kolar v. Bergo (1996), 280 Mont. 262, 266, 929 P.2d 867, 869. Therefore, only when reasonable minds could not differ may questions of fact be determined as a matter of law. Wiley, 272 Mont. at 216, 900 P.2d at 312.

¶7 The initial burden is on the moving party to demonstrate “a complete absence of any genuine issue as to all facts considered material in light of the substantive principles that entitle the moving party to judgment as a matter of law and all reasonable inferences are to be drawn in favor of the party opposing summary judgment.” Kolar, 280 Mont. at 266, 929 P.2d at 869. Once the moving party meets this burden, the burden shifts to the non-moving party to establish otherwise. Wiley, 272 Mont. at 216, 900 P.2d at 312. We review a district court’s grant of summary judgment de novo, using the same criteria and evaluation as did the district court pursuant to Rule 56(c), M.R.Civ.P. Wiley, 272 Mont. at 216, 900 P.2d at 312.

DISCUSSION

¶8 Did the District Court err by granting Washington and Alpine summary judgment?

¶9 The District Court granted Washington and Alpine summary judgment stating that “[significant uncontrovert'ed evidence supports the theory that neither Defendant breached its standard of care.” The court explained:

Summary judgment in favor of both Washington and Alpine is appropriate. Both Defendants have brought forth credible evidence that they met the applicable standard of care and that if they had a duty to warn, they met that duty. Schmidt cannot bring forth any material evidence in response because he has neither a highway [accident] reconstruction expert or a signage expert.

Additionally, the court also explained that Schmidt failed to introduce evidence disputing the location of warning signs on the temporary ramp as indicated by Alpine’s affidavit and logs.

¶ 10 Schmidt argues that several genuine issues of material fact exist, and, therefore, the District Court erred in granting Washington and Alpine summary judgment. First, Schmidt argues that a material question of fact exists regarding the placement of a “BUMP” warning sign as well as the placement of other traffic signs on the temporary ramp at the time of his accident, and, therefore, whether he was given adequate warning of the danger posed by the elevation differential. Schmidt asserts that Robert Johnson, a witness who worked as the project supervisor for the Montana Department of Transportation, executed two inconsistent affidavits concerning the location of a “BUMP” sign on the ramp. Additionally, he contends that Alpine’s discovery responses concerning the permanency of the “BUMP” sign were inconsistent with its own sign log book. Furthermore, Schmidt maintains that Alpine’s description of the placement of other traffic signs on the ramp differs from Johnson’s sketch depicting the placement of traffic signs on the ramp which he made while observing the accident site on August 22, 1995, the day after Schmidt’s accident.

¶11 Second, Schmidt argues that a material question of fact exists concerning whether Washington had notice of the unreasonably dangerous condition of the temporary ramp, and, consequently, whether Washington failed to properly maintain the ramp. Schmidt contends that evidence of three motorcycle accidents, other than his own, within a 72-hour period, raises a genuine issue of fact concerning Washington’s knowledge of the unreasonably dangerous condition of the temporary ramp. Furthermore, Schmidt asserts his lack of an accident reconstruction expert is harmless given that his two expert witnesses in motorcycle dynamics were prepared to testify as to the unique problems encountered by motorcycles crossing raised surfaces. Finally, he maintains that he did not need a signage expert to explain common sense ways of preventing accidents.

¶12 Washington and Alpine respond that the District Court properly granted summary judgment in their favor because no genuine issues of material fact exist and they were entitled to summary judgment as a matter of law. First, Alpine argues that no factual dispute exists concerning the placement of the “BUMP” warning sign because Johnson’s second affidavit clarified his first affidavit. Furthermore, Alpine contends that even if the discrepancy raises a factual issue, it is immaterial. Alpine explains that due to Schmidt’s slow speed on the temporary ramp, even if the “BUMP” sign was placed only 200 feet from the interstate, as Johnson estimated in his first affidavit, this placement still satisfied the guidelines set forth in the Manual of Uniform Traffic Control Devices (MUTCD) and thereby satisfied its duty. Moreover, Alpine argues that the inconsistences between its discovery responses and its log book concerning whether the “BUMP” sign was permanent or temporary are immaterial to the question of the sign’s location on the ramp.

¶13 Relying on Wiley, Washington and Alpine also argue that summary judgment was proper because Schmidt failed to retain a highway signage expert or an expert in highway maintenance or construction to define their duty and testily as to its breach. Finally, conceding that they controlled the construction site and knew of the elevation differential on the ramp, Washington and Alpine argue that evidence of the other motorcycle accidents on the ramp is inadmissible because Schmidt offered it only to prove their negligence.

¶14 At the outset, we note that the parties analyze this negligence action, in part, by examining the duty of landowners. In their motions for summary judgment, Washington and Alpine argued that they were entitled to summary judgment under premises liability law. However, Schmidt responded that Washington and Alpine did not have a duty of a land owner or occupier, but rather had a duty to keep the roadway in a reasonably safe condition as set forth in Hatch v. State Dept. of Highways (1994), 269 Mont. 188, 887 P.2d 729. The District Court adopted Washington’s and Alpine’s argument that each had satisfied its duty of care and granted summary judgment in their favor. On appeal, Schmidt again argued that Washington and Alpine failed to keep the roadway in a reasonably safe condition while Washington and Alpine maintained that each had satisfied its duty of care under premises liability law. Thereafter, Washington and Alpine filed supplemental briefs reasserting that each had acted with due care under premises liability law as clarified in Richardson v. Corvallis Pub. School Dist. No. 1 (1997), 286 Mont. 309, 950 P.2d 748. Schmidt replied that, even under Richardson, Washington and Alpine had breached their duty of care.

¶15 Contrary to the parties’ arguments and the decision of the District Court, we point out that both Washington and Alpine had a duty of ordinary care in maintaining the road construction site in a reasonably safe condition. This duty is not one of a possessor of the premises as set forth in Richardson, and, consequently, Richardson is not dispositive. Rather, Washington and Alpine had a duty of acting as a reasonable, prudent person would under the circumstances. See Workman v. McIntrye Constr Co. (1980), 190 Mont. 5, 14, 617 P.2d 1281, 1286 (explaining that following directions and instructions given by the State, including the guidelines of the MUTCD, does not relieve a contractor from acting as a reasonable, prudent person under the circumstances).

¶16 In this regard, to determine whether Washington and Alpine acted with due care under the circumstances, the MUTCD is one factor, among many, to consider in this case. The State Highway Commission adopted the MUTCD in 1971. Brockie v. Omo Constr. Inc. (1992), 255 Mont. 495, 500-01, 844 P.2d 61, 65. Consequently, the MUTCD has “the force of law” and evidence of a violation of the MUTCD is admissible to show negligence. See Lynch v. Reed (1997), 284 Mont. 321, 328-29, 944 P.2d 218, 222-23 (interpreting the rule for admissibility of industry standards and codes as established in Rankle v. Burlington Northern (1980), 188 Mont. 286, 613 P.2d 982). See also Workman, 190 Mont. at 21, 617 P.2d at 1290 (the MUTCD is promulgated by the Montana Highway Department and may be considered a standard or norm to be used for traffic control devices) (quoting Runkle, 188 Mont. 286, 613 P.2d 982).

¶ 17 However, evidence of compliance with the MUTCD does not necessarily establish due care because the MUTCD, like any other national industry standard or code, is only a minimum standard. See Martel v. Montana Power Co. (1988), 231 Mont. 96, 104, 752 P.2d 140, 145 (explaining that defendant’s compliance with the National Electrical Safety Code did not establish due care). As we explained in Martel, “[i]f the circumstances are such that a danger exists beyond the minimum which this [standard or norm] was designed to meet, then the jury may be informed that a defendant is negligent for not doing more.” Martel, 231 Mont. at 104, 752 P.2d at 145. In the case at bar, questions of fact remain as to whether Washington and Alpine complied with the MUTCD, and even if they did, whether mere compliance with the MUTCD equated with the exercise of due care, given the condition of the temporary ramp.

¶ 18 First, Schmidt argues that a material question of fact exists concerning the placement of the “BUMP” warning sign on the ramp, and, therefore, whether he was given adequate warning of the danger posed by the elevation differential. Schmidt points out that Johnson submitted two conflicting affidavits concerning the location of the “BUMP” warning sign on the temporary ramp. Johnson looked at the accident site on August 22, 1995, the day after Schmidt’s accident, and prepared a sketch of the ramp, not drawn to scale, which indicated the location of orange construction barrels on either side of the ramp, certain traffic signs and various potholes. In Johnson’s first affidavit, dated May 20, 1997, he stated that the “BUMP” sign was placed 200-300 feet before the ramp interfaced with the interstate; however, in his second affidavit, dated June 3, 1997, Johnson stated the “BUMP” sign was placed 500-600 feet before the ramp interfaced with the interstate.

¶19 In his second affidavit, Johnson explained that at the time he prepared his first affidavit, his estimate of the distances “were guesses based upon my general recollections of the situation nearly two years ago ...” Johnson further explained that after reviewing a number of documents pertaining to the project, including construction plans, as-built plans, his construction diary notes, copies of Washington’s project foreman’s daily diaries, and copies of Alpine’s traffic control notes, he believed “a more accurate distance is 500-600 feet from the ‘BUMP’ sign to the interface with Interstate 90[.]” The District Court, in a footnote to its June 10,1997 summary judgment order, ruled that “[t]o the extent that a jury issue may have existed on this point [the location of the ‘BUMP’ sign], it no longer exists as a result of the second Johnson affidavit.” We disagree.

¶20 [10] Johnson’s affidavits directly contradict each other concerning the placement of the “BUMP” warning sign on the temporary ramp. Where the “BUMP” sign was placed on the ramp and whether this placement complied with the guidelines of the MUTCD are both questions of material fact that contribute to the resolution of this case. See Bossard v. Johnson (1994), 265 Mont. 272, 278, 876 P.2d 627, 630. Generally, ambiguities and even conflicts in a deponent’s testimony are matters for the jury to sort out. Wood v. Old Trapper Taxi (1997), 286 Mont. 18, 30, 952 P.2d 1375, 1383 (citations omitted). Consequently, we hold that the District Court erred in finding that no material questions of fact remained concerning the placement of the “BUMP” sign on the ramp.

¶21 Likewise, we agree with Schmidt that the inconsistencies in Alpine’s discovery responses with both its own sign log book as well as with Johnson’s August 22,1995 sketch of the ramp also support his argument that a genuine issue of material fact exists concerning whether he was adequately warned of the danger on the ramp in compliance with the MUTCD. Furthermore, and more importantly, we agree with Schmidt that a question of fact exists as to whether mere compliance with the MUTCD would be sufficient under the circumstances of this case to satisfy Washington’s and Alpine’s duty of ordinary care.

¶22 Washington and Alpine argue that our decision in Wiley established that expert testimony is required to avoid summary judgment in actions involving highway construction negligence claims. Relying on Wiley, Washington and Alpine argue that Schmidt is unable to satisfy his burden of raising a genuine issue of material fact as to this issue because he did not call a signage expert to testify as to their duty and what constitutes a breach of that duty. Additionally, Washington and Alpine argue that evidence of other motorcycle accidents is inadmissible because Schmidt only offered this evidence as proof of their negligence. Again, we disagree.

¶23 In Wiley, a pedestrian and her husband filed a negligence action against the Montana Department of Transportation and the City of Glendive to recover for injuries the pedestrian sustained when she slipped on a metal pullbox cover on a sidewalk in Glendive. After extensive discovery, defendants moved for summary judgment and supported their motion with affidavits of five experts. Plaintiffs opposed summary judgment, relying on their own expert’s deposition testimony to raise genuine issues of material fact concerning defendants’ negligence. Wiley, 272 Mont. at 215-16, 900 P.2d at 311-12. The district court granted defendants summary judgment and plaintiffs appealed. On appeal, plaintiffs argued that summary judgment was improper because factual issues remained concerning the dangerous, defective, and unsafe condition of the pullbox cover. Wiley, 272 Mont. at 216, 900 P.2d at 312. We affirmed the district court concluding that plaintiffs failed to raise any genuine issues of material fact because their expert acknowledged that he was unable to state an opinion concerning the alleged factual issues pertaining to the condition of the pullbox cover, and, therefore, “his testimony failed to establish either a standard of care or a breach of any standard of care.” Wiley, 272 Mont. at 218, 900 P.2d at 313-14.

¶24 Unlike in Wiley, Schmidt’s failure to produce a signage expert is not fatal in this case because the issue of Washington’s and Alpine’s negligence is not centered solely on whether Schmidt was warned of the “bump” where the gravel portion of the ramp interfaced with the paved interstate, in compliance with the MUTCD. Rather, the issue in this case turns on whether the 6- to 8-inch height differential between the gravel and the concrete lip was unreasonably dangerous in and of itself. In other words, the essential issue is whether Washington and Alpine knew or should have known that a 6- to 8-inch difference in height between the gravel and the concrete lip on the temporary ramp was unreasonably dangerous to motorcyclists and whether remedial measures should have been taken to eliminate or mitigate the danger.

¶25 In this regard, although Schmidt also did not list an accident reconstruction expert or a construction expert, as Washington and Alpine argue he should, Schmidt did list two motorcycle expert witnesses who were prepared to testify that the height differential was unreasonably dangerous to motorcyclists. Additionally, Schmidt submitted evidence of three other motorcycle accidents that occurred on the temporary ramp where the height differential existed within 72 hours of his own accident. Such testimony and evidence was sufficient to raise a genuine issue of material fact regarding whether Washington and Alpine were on “notice” of an unreasonably dangerous condition that required remediation and possibly warnings over and above those required by the MUTCD. Evidence of these other accidents, although inadmissible to prove negligence, was admissible to show the existence of a danger or defect and notice thereof. See Runkle, 188 Mont. at 292, 613 P.2d at 986.

¶26 Based on the foregoing, we conclude that reasonable minds could differ as to whether Washington and Alpine breached their duty of ordinary care thereby causing Schmidt’s motorcycle accident and subsequent damages. Therefore, because genuine issues of material fact exist, summary judgment is precluded in this case. Consequently, we hold that the District Court erred by granting Washington and Alpine summary judgment. Accordingly, we reverse and remand to the District Court for further proceedings consistent with this Opinion.

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


author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. THOMAS JOHN DOYLE, Defendant and Appellant.
    No. 97-574.
    Submitted on Briefs April 9, 1998.
    Decided August 11, 1998.
    1998 MT 195.
    55 St.Rep. 819.
    290 Mont. 287.
    963 P.2d 1255.

      For Appellant: Lucas J. Foust, Assistant Public Defender, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Micheál S. Wellenstein, Ass’t Attorney General, Helena; Mike McGrath, Lewis and Clark County Attorney, Lisa Leckie, Deputy Lewis and Clark County Attorney, Helena.
   JUSTICE HUNT

delivered the Opinion of the Court.

¶1 On March 11,1996, Thomas John Doyle (Appellant) was charged by information in the First Judicial District Court, Lewis and Clark County, with criminal production of dangerous drugs, a felony, in violation of § 45-9-110, MCA. On June 4,1996, Appellant filed a motion to suppress evidence obtained in a search of his residence. On March 6,1997, the District Court issued its Findings of Fact, Conclusions of Law, and Order denying Appellant’s motion to suppress, after which Appellant entered a plea of guilty on the condition that he be allowed to appeal the court’s adverse ruling. This appeal followed. We affirm the order of the District Court.

¶2 The sole issue on appeal is whether the District Court erred in denying Appellant’s motion to suppress evidence found in plain view by a police officer during a search of his residence.

BACKGROUND

¶3 On February 27, 1996, at approximately 6:30 a.m., the Helena Police Department received an anonymous call made by a woman who reported being in Appellant’s residence and seeing blood in his refrigerator and bloody clothes on the floor. Officers Peter Rehman (Officer Rehman) and Richard Drysdale (Officer Drysdale) were dispatched to investigate the complaint and arrived at Appellant’s residence at about 7:00 a.m. Officer Rehman knocked on Appellant’s outside storm porch entry door, but no one answered. Officer Drysdale looked through a window next to the door and saw Appellant sleeping on the couch. After repeatedly knocking on the exterior door, Officer Rehman noticed an interior door through the storm porch leading to Appellant’s residence. Officer Rehman entered the storm porch, knocked on the interior door, and Appellant answered the door.

¶4 Officers Rehman and Drysdale testified that when Appellant opened the door, they identified themselves and informed Appellant of the complaint they had received about blood in his refrigerator and bloody clothes on his floor. Both officers were standing side by side in the doorway during this conversation. Officer Drysdale testified there was nothing obstructing Appellant’s view of him in the doorway and that he was easily visible. Officer Rehman asked Appellant whether he and Officer Drysdale could step inside, inspect the refrigerator, and check the house for other people. Appellant allowed the officers to enter his home.

¶5 Appellant’s house was very small and the entry door immediately led into a joint living room and efficiency kitchen. The only other rooms in the house included a bedroom and a bathroom. Officer Rehman explained that the cursory check of the rooms was for safety reasons, to make sure a weapon was not drawn on them. Officer Rehman checked the rooms and ascertained that there were no other people in the house with Appellant. This took less than a minute. Officer Rehman then opened the refrigerator and saw what appeared to be blood from a large piece of meat. He did not see bloody clothes. Officer Rehman testified that although the blood in the refrigerator was messy, there was no cause for concern.

¶6 Officers Rehman and Drysdale testified that while Officer Rehman was checking the rooms, Officer Drysdale and Appellant remained standing next to each other in the joint living room and kitchen area. Later, Appellant moved to follow Officer Rehman to the refrigerator. As Officer Drysdale was standing in the living room, he observed, approximately four to five feet away from him, a tray on the coffee table containing the following items: two pipes, two small knives, a pill container, a film container, and a green leafy substance. Officer Drysdale, who has 22 years of law enforcement experience, testified that it was obvious to him that the items he saw on the coffee table were drug paraphernalia.

¶7 Officer Drysdale looked around the room and next observed a grouping of plants, some of which were marijuana, on a plant stand by the living room window about eight feet away. Officer Drysdale testified that, based on his training and experience, he could identify a marijuana plant. He testified that he believed the plants to be marijuana because of the distinctive finger-like leaves. He stated that although he was reasonably sure the plants were marijuana, he walked a few feet and shined his flashlight on the plants to confirm his suspicions. After identifying the plants as marijuana, Officer Drysdale told Officer Rehman what he had observed and called a Drug Task Force officer, as required whenever an officer discovers drugs. The officers seized the marijuana plants and drug paraphernalia and arrested Appellant for committing several drug-related offenses.

¶8 Appellant testified to a different set of facts concerning the timing and circumstances of Officer Drysdale’s presence. Appellant testified that when he heard knocking and opened the door, only Officer Rehman was standing in the doorway. Appellant testified that he did not see another officer and that Officer Rehman did not indicate he was with another officer. Appellant testified he was not aware of Officer Drysdale’s presence until he saw Officer Drysdale and another young officer enter his house, after Officer Rehman had inspected the refrigerator. Appellant testified that Officer Drysdale and the third officer searched his house and that Officer Drysdale found the marijuana plants. Appellant stated that either Officer Rehman, Officer Drysdale, or the third officer told him they were going to call the Drug Task Force officer.

DISCUSSION

¶9 Did the District Court err in denying Appellant’s motion to suppress evidence found in plain view by a police officer during a search of his residence?

¶10 This Court reviews a district court’s denial of a motion to suppress to determine whether the district court’s findings of fact are clearly erroneous. State v. Cassell (1996), 280 Mont. 397, 400, 932 P.2d 478, 479. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the trial court misapprehended the effect of the evidence, or if this Court is left with a definite and firm conviction that the district court made a mistake. Cassell, 280 Mont. at 400, 932 P.2d at 479. We review a district court’s conclusions of law de novo to ensure that the court’s interpretation of the law was correct. State v. Hardy (1996), 278 Mont. 516, 519, 926 P.2d 700, 702.

¶11 The Fourth and Fourteenth Amendments to the United States Constitution, and Article II, Section 11 of the Montana Constitution protect against unreasonable searches and seizures. State v. Loh (1996), 275 Mont. 460, 467-68, 914 P.2d 592, 597. Warrantless searches and seizures are per se unreasonable subject to only a few carefully drawn exceptions. Loh, 275 Mont. at 468, 914 P.2d at 597. One of these exceptions is the plain view doctrine which allows police officers, under certain circumstances, to seize evidence in plain view without a warrant. Loh, 275 Mont. at 468, 914 P.2d at 597. In Loh, we adopted the United States Supreme Court’s three-part criteria enabling a police officer to seize evidence pursuant to the plain view doctrine. First, “the officer must be lawfully at the place from which he could plainly view the evidence. In other words, his initial entry onto or intrusion into the place where he views the evidence must not have been in violation of the Fourth Amendment or in violation of Article II, section 11 of Montana’s Constitution.” Second, “the item must be in plain view and its incriminating character be ‘immediately apparent.’ ” Third, the officer “must also have a lawful right of access to the object itself.”Loh, 275 Mont. at 473, 914 P.2d at 600 (citing Horton v. California (1990), 496 U.S. 128, 136-37, 110 S.Ct. 2301, 2307-08, 110 L.Ed.2d 112).

¶ 12 In the instant case, Appellant disputes only the first criterion of the plain view doctrine. Appellant argues that Officer Drysdale was not lawfully in Appellant’s home when he observed the marijuana plants and drug paraphernalia because Officer Drysdale was beyond the scope of Appellant’s consent. Appellant argues that when a person consents to a search of his home, the consent is limited to only those officers of which the person is aware. Appellant argues that his consent to allow Officer Rehman to enter his home extended only to Officer Rehman because he did not see Officer Drysdale and was otherwise unaware of Officer Drysdale’s presence.

¶13 The State maintains that Appellant’s argument should be rejected based on both the facts and the law. First, the State argues that Appellant’s position is wholly dependent on his version of the facts which the District Court, as the finder of fact, was entitled to reject. State v. Brogan (1993), 261 Mont. 79, 87, 862 P.2d 19, 24. Second, the State cites several federal circuit court cases holding that consent to search cannot be qualified to a certain number of officers. United States v. Rubio (9th Cir. 1983), 727 F.2d 786, 796-97 (stating that once valid consent has been given, any expectation of privacy has been lost and the entry of additional officers does not further diminish the consenter’s expectation of privacy); accord United States v. Betts (7th Cir. 1994), 16 F.3d 748, 755; Wildauer v. Frederick County (4th Cir. 1993), 993 F.2d 369, 372.

¶14 We hold that substantial evidence exists to support the District Court’s finding that Appellant voluntarily consented to Officer Drysdale entering and searching his house. Because our holding is based entirely on the facts of this case, we need not reach the legal issue of whether consent can be qualified to a certain number of officers.

¶ 15 As previously stated, in order to meet the third criterion of the plain view doctrine, the State was required to prove that Officer Drys-dale was lawfully in Appellant’s home when he viewed Appellant’s contraband. Loh, 275 Mont. at 473, 914 P.2d at 600. It is undisputed that Officer Drysdale did not have a warrant to enter Appellant’s home. Thus, only if Officer Drysdale entered Appellant’s home pursuant to one of the recognized exceptions to the warrant requirement was he lawfully in Appellant’s home. Loh, 275 Mont. at 473, 914 P.2d at 600.

¶ 16 One recognized exception to the warrant requirement is that a search is legal if it is conducted pursuant to consent that is voluntarily given. State v. Rushton (1994), 264 Mont. 248, 257, 870 P.2d 1355, 1361. The State has the burden of showing a defendant voluntarily consented to an officer entering his house. Rushton, 264 Mont. at 257, 870 P.2d at 1361. This Court has adopted the “totality of circumstances” test used by the United States Supreme Court to determine whether consent is voluntary. Rushton, 264 Mont. at 258, 870 P.2d at 1361.

¶17 The totality of circumstances indicate that Appellant voluntarily consented to Officer Drysdale entering his house. The record contradicts Appellant’s claim that he was unaware of Officer Drys-dale’s presence and that he did not knowingly consent to Officer Drys-dale’s entry. Officers Rehman and Drysdale testified that they both were standing in the doorway when Appellant answered the door. Officer Drysdale testified that there was nothing obstructing Appellant’s view of him in the doorway and that he was clearly visible. Officers Rehman and Drysdale testified that Appellant let both of them in the house. Both officers testified that while Officer Rehman was checking the rooms, Appellant was with Officer Drysdale in the joint living room and kitchen area.

¶ 18 The weight of evidence and the credibility of witnesses are exclusively within the province of the trier of fact. State v. Ahmed (1996), 278 Mont. 200, 212, 924 P.2d 679, 686. If the evidence conflicts, the trier of fact determines which shall prevail. Ahmed, 278 Mont. at 212, 924 P.2d at 686. The District Court heard all the evidence presented and chose to believe the State’s version of the events. We wifi not disturb the District Court’s factual and credibility determinations on appeal. Ahmed, 278 Mont. at 212, 924 P.2d at 686.

¶19 We hold that the District Court’s finding that Appellant consented to Officer Drysdale entering his house was supported by substantial evidence and, therefore, was not clearly erroneous. We hold that because Officer Drysdale was lawfully in the house when he observed the marijuana plants and drug paraphernalia, the District Court properly denied Appellant’s motion to suppress.

¶20 Affirmed.

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