author: JUSTICE WEBER JUSTICE HUNT,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ALLEN RAY “SPEEDY” MATT, Defendant and Appellant.
    No. 90-177.
    Submitted on briefs April 12, 1991.
    Decided June 26, 1991.
    249 Mont. 136.
    813 P.2d 52.

      Benjamin R. Anciaux, Poison, for defendant and appellant.
    Marc Racicot, Atty. Gen., Patricia J. Jordan, Asst. Atty. Gen., Helena, Larry Nistler, County Atty., And Robert S. Anderson, Deputy, Poison, for plaintiff and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

Defendant, Allen Ray “Speed/’ Matt, appeals from a conviction for felony assault in violation of § 45-5-202(2), MCA, following a jury trial in District Court in the Twentieth Judicial District, Lake County. We affirm.

We have revised the issues as follows:

1. Should this Court modify the Just Rule as established in State v. Just (1979), 184 Mont. 262, 602 P.2d 957, with regard to evidence of other crimes, wrongs or acts of the defendant?

2. Did the District Court err when it admitted testimony of other crimes, wrongs or acts of the defendant?

3. Was the evidence sufficient to support a verdict of guilty on the charge of felony assault?

On November 10,1988, the defendant went to the Flathead Irrigation Project office to try to get money for a windshield that he claimed had been damaged by one of their trucks. When he failed to get what he wanted, he threw a rock through an office window and broke it.

Later that day a tribal officer went to defendant’s house to talk to him about breaking the window. The defendant became verbally abusive, went into his house and refused to talk to the officer. The officer continued to talk to the defendant through defendant’s door, telling defendant that he would have to get a warrant if defendant continued to refuse to talk to him. Defendant came back out of the house and an altercation occurred. The officer then placed the defendant under arrest. The defendant continued to resist, both verbally and physically. During the altercation, the officer sprayed the defendant in the face with his cap-stun in an attempt to subdue him. The defendant wrestled away from the officer and crawled back into his house.

The officer left the porch to call for backup. The defendant came back out of the house swinging a long sickle-shaped knife and yelling, “I’ll kill you, you son of a bitch.” The officer approached defendant from the rear and attempted to disarm him. A wrestling match ensued. The officer managed to knock the knife away. When the officer got away and backed off, the defendant grabbed a club-like stick. The officer put his hand on his gun, which was still in its holster. Defendant yelled, “Go ahead, shoot me”, then went back into his house and out the back door. The officer sustained injuries during the altercations.

A short time later, the defendant was arrested and put into a police vehicle by other officers. Defendant repeatedly kicked the door in the vehicle until he had to be removed from the vehicle and subdued.

I.

Should this Court modify the Just Rule as established in State v. Just (1979), 184 Mont. 262, 602 P.2d 957, with regard to evidence of other crimes, wrongs or acts of the defendant?

At trial the State introduced evidence that the defendant had been involved three months earlier in an altercation with a deputy sheriff in Okanogan County, Washington. The deputy sheriff testified that he was on duty at a rodeo when the defendant entered the rodeo headquarters. Defendant had assaulted a woman and he was still trying to attack his victim. The deputy had to physically separate the defendant from his victim. The defendant pushed the deputy in the chest to get him out of the way so he could get to the victim. He shoved the deputy two more times during the struggle. Another officer then took the victim to another room. When the deputy had the defendant under control and sitting down, the defendant jumped up and pushed the deputy again, attempting to leave. The deputy had to grab the defendant and pull him down to the floor to attempt to handcuff him. The defendant continued to struggle. Eventually the deputy got the defendant into handcuffs and arrested him. The deputy described him as “crazed.”

Defendant contends the Washington incident was not similar to the crime for which he was on trial and that there was no connection between the events from which to infer a common scheme or plan. Therefore defendant contends that the Just Rule was not met. State v. Just (1979), 184 Mont. 262, 602 P.2d 957. The State contends that the evidence of the Washington altercation was relevant to show state of mind or intent of the defendant with regard to the assaulting of police officers. The State contends this was admissible under Rule 404(b), M.R.Evid.

In 1979, State v. Just established what has come to be called the Just Rule. Just analyzed the exceptions to the general rule of the incompetency of evidence of the commission of other crimes, pointing out that the exceptions which are the rule in Montana are of ancient lineage. Just then described the exceptions as set forth in the 1973 case of State v. Taylor (1973), 163 Mont. 106, 515 P.2d 695. The exceptions were specifically recognized in a number of cited Montana cases decided in the preceding 75 years, reaching back to State v. Peres (1903), 27 Mont. 358, 71 P. 162.

Just next made reference to both Rules 404(b) and 403, M.R.Evid. Because these are critical to the analysis, we now set them forth in full:

“Rule 404. Character evidence not admissible to prove conduct, exceptions; other crimes; character in issue.
“(b) Other crimes, wrongs, acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
“Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.”

Just then states there emerged a four element rule to determine the admissibility of evidence of other crimes, wrongs or acts in criminal prosecutions. The four elements as stated in Just were:

“(1) The similarity of crimes or acts;
“(2) Nearness in time;
“(3) Tendency to establish a common scheme, plan or system; and
“(4) The probative value of the evidence is not substantially outweighed by the prejudice to the defendant.”

Just applied the rule to the facts of that case and concluded that the evidence of the defendant’s other acts against the victim in question were properly admitted.

While the Just Rule was entirely appropriate to the factual situation in that case, it has led to contradictory results. The third element of the Just Rule provides that evidence may be admissible for the purpose of showing a common scheme, plan or system. We agree with that conclusion in that case. However, we emphasize that Rule 404(b) is not limited only to common scheme, plan or system. Rule 404(b) provides that evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Clearly Rule 404(b) provides for the admission of evidence for many purposes other than the common scheme, plan or system stated in Just. We point out that the “common scheme, plan or system” referred to in Just is listed as “plan” under Rule 404(b), according to McCormick on Evidence, 3rd Ed., § 190, pp. 558-564 (1984); 22 C. Wright and K. Graham, Federal Practice and Procedure, Evidence, § 5244, p. 499 (1978); and 23 CJS Criminal Law § 830 (1989).

While the four element rule of Just was proper under the facts of that case, and also was appropriate under the facts of State v. Jensen (1969), 153 Mont. 233, 455 P.2d 631, application of the Just Rule has resulted in an apparent narrowing of the purposes listed in Rule 404(b). As an example, State v. Brown (1990), 242 Mont. 506, 791 P.2d 1384, 47 St.Rep. 935, applied the third element of the Just Rule in reaching a conclusion that the prosecution failed to establish a common scheme, plan or system. In Brown, the State argued that the other crimes evidence was offered to prove defendant’s motive and intent. The court pointed out that the acts committed on previous dates, while similar in nature, does not necessarily prove that the acts tend to establish a common scheme, plan or system. The majority then concluded that the record demonstrated that the defendant’s acts lacked any common scheme or plan and were instead spontaneous acts dictated by his character and the situation at hand. While it was true that the evidence in Brown failed to establish a common scheme, plan or system, that conclusion did not address the dissent which pointed out that the evidence could be found admissible in order to establish the defendant’s opportunity, motive and intent under Rule 404(b).

We now recognize that the Just element described as common scheme, plan or system is to be classed as a “plan” under Rule 404(b). We further recognize that evidence of other crimes, wrongs or acts may be admissible for many other purposes, including those specifically listed in Rule 404(b), as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. We conclude that the rule as enunciated in Just should now be modified.

We therefore now adopt the following as the Modified Just Rule which sets forth the basis for the admission of evidence of other crimes, wrongs or acts as referred to and described in Rules 404(b) and 403, M.R. Evid.:

“(1) The other crimes, wrongs or acts must be similar.
“(2) The other crimes, wrongs or acts must not be remote in time.
“(3) The evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity with such character; but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
“(4) Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

The Modified Just Rule incorporates the various purposes described in Ride 404(b), and therefore eliminates the limitation that evidence is admissible only if it shows a common scheme, plan or system. In addition, the Modified Just Rule includes the additional limiting factors which are set forth in Rule 403.

While the foregoing holding modifies the Just Rule, we do not overrule the procedural protections required under Just. We do clarify those protections however by specifically holding that the following procedural protections shall apply as a part of the Modified Just Rule.

“(1) Evidence of other crimes, wrongs or acts may not be received ■unless there has been written notice to the defendant that such evidence is to be introduced. The notice to the defendant shall specify the evidence of other crimes, wrongs or acts to be admitted, and the specific Rule 404(b) purpose or purposes for which it is to be admitted.
“(2) At the time of the introduction of such evidence, the trial court shall explain to the jury the purpose of such evidence and shall admonish it to weigh the evidence only for such purposes.
“(3) In its final charge, the court shall instruct the jury in unequivocal terms that such evidence was received only for the limited purposes earlier stated and that the defendant is not being tried and may not be convicted for any offense except that charged, warning them that to convict for other offenses may result in unjust double punishment.”

II.

Did the District Court err when it admitted testimony of other crimes, wrongs and acts of the defendant?

We now analyze the present case under the Modified Just Rule. The Washington incident involved assaults on a Washington deputy sheriff. The first occurred when the defendant attempted to get to a woman assault victim. The second occurred after the assault victim had been removed from the room and the defendant attempted to leave the building. We conclude that the Washington incidents were assaults on a peace officer and were similar in nature to the assault on the tribal peace officer in the present case, and therefore meet the requirements of element (1) of the Modified Just Rule.

The assaults involved in the Washington case occurred three months prior to the assault in the present case. We conclude that such assaults were not remote in time and meet the requirements of element (2) of the Modified Just Rule.

With regard to element (3) of the Modified Just Rule, the Washington incidents were offered by the State to prove intent which is a permissible purpose. In State v. Sadowski (1991), [247 Mont. 63,] 805 P.2d 537, 543, 48 St.Rep. 93, 97, this Court analyzed many of the problems which are relevant to proving intent under the Just Rule. As in the present case, in Sadowski the State presented one single prior incident as proof of intent. With regard to a single incident, as well as the question of intent, we stated:

‘We agree with the [State v.] Johns [301 Or. 535, 725 P.2d 312 (1986)] court that no categorical statement can be made one way or the other [in a case where there is only one prior similar instance of conduct], rather such decisions must be made on a case by case basis. Johns, 725 P.2d at 324. ‘A simple unremarkable single instance of prior conduct probably will not qualify, but a complex act requiring several steps, particularly premeditated, may well qualify.’ Johns, 725 P.2d at 324.
“Thus, the linchpin for determining whether a single instance of prior conduct is sufficient to prove intent is relevancy based on similarity. Here, because the defendant admits than he purposely and knowingly killed Rob Hare, the prior uncharged misconduct actually is relevant towards the reasonableness of Sadowski’s claim of self defense, i.e., whether he acted with criminal intent or in self defense.”

Sadowski, 805 P.2d at 543, 48 St.Rep. at 97.

This Court then discussed the similarity of the acts and reached the conclusion that the prior act was admissible as relevant regarding Sadowski’s intent. In Sadowski the defendant argued that he intended to use the gun only in self defense while the prosecution argued that it was an intentional act of homicide. Sadowski is a good illustration of admission of other acts to prove whether or not the intent involved was that of self defense or of assault or homicide.

In the present case we do not have an issue of intent for determination by the jury in a manner comparable to Sadowski. In comparing the assault incidents in our present case, we note that the primary focus of the initial assault on the Washington deputy sheriff was aimed at getting the deputy out of the way in order that the defendant could continue his assault on his female victim. His second assault may still have involved his aim of getting to the female victim or it may have involved his desire to get out of the building and escape arrest. In the present case, the triggering incident appears to have been the defendant’s emotional reaction which resulted in his breaking a window. The assaults which followed were the result of an attempt by the officer to discuss with defendant the breaking of the window. It is apparent that the emotional condition which was present at the time the defendant threw the rock continued to the meeting with the officer.

Our question then becomes whether the single instance of conduct in Washington is admissible to prove intent in the present case. The State argues that the Washington incident demonstrates that the defendant acted with the intent to assault a peace officer which increases the probability that the defendant acted with a similar intent in the present case. Thus the prior assaults tend to show that the defendant does not intend to submit to the authority of peace officers.

We conclude that in the Washington incident the defendant’s intent was to get at his female assault victim. The deputy sheriff just got in the way when he intervened. In the present incident the intent was aimed directly at the officer. We conclude that the intent to get at a female assault victim is not the same as the intent to resist the authority of a police officer. We therefore conclude that the evidence should not have been admitted to prove the defendant’s intent.

Analyzing element (4) of the Modified Just Rule, we note that the evidence was not needed to gain a conviction. The defendant verbalized his intent when he waved the sickle-shaped knife and yelled, “I’ll kill you, you son of a bitch.” The Washington incident was therefore a needless presentation of cumulative evidence of intent. In addition, we conclude that the probative value of the evidence is substantially outweighed by the possible confusion of the issues and misleading of the jury.

Applying all four elements of the Modified Just Rule, we conclude that the evidence here was not admissible in the present case under elements (3) and (4).

While we conclude that the admission of the evidence was improper, we also conclude that the admission of such evidence does not constitute grounds for reversal in this case. As analyzed in the next part, the evidence against the defendant was overwhelming. The admission of improper evidence is not grounds for reversal unless there is a reasonable possibility that the evidence may have contributed to the conviction. Brodniak v. State (1989), 239 Mont. 110, 779 P.2d 71. We hold that the admission of the other crimes evidence was harmless error in this case.

III.

Was the evidence sufficient to support a verdict of guilty on the charge of felony assault?

Defendant contends that the evidence is insufficient to support the conviction because (1) there was no evidence to show intent, (2) the officer’s fear of injury was not reasonable, (3) there was no evidence to show the defendant caused the officer’s injury, and (4) the officer committed a felony assault on the defendant, who was defending himself.

A conviction will not be set aside if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Krum (1989), 238 Mont. 359, 362, 777 P.2d 889, 891.

The elements of the crime of felony assault are defined in § 45-5-202(2), MCA, which reads:

“A person commits the offense of felony assault if he purposely or knowingly causes:

“(a) bodily injury to another with a weapon; [or]
“(b) reasonable apprehension of serious bodily injury in another by use of a weapon[.] ...”

The evidence showed that the defendant came out of his house carrying a lethal weapon and confronted the officer. Waving the sickle-shaped knife, he yelled, “I’ll kill you, you son of a bitch.” This evidence is sufficient to support a finding that the defendant acted purposely or knowingly which satisfies the intent element. The officer testified he sustained swelling and a laceration of his left wrist, requiring him to wear a brace for six weeks. The officer also testified that he thought he had “had it” when defendant had him pinned to the ground while defendant had the knife in his hand. The evidence is sufficient to support a finding that there was bodily injury to the officer with a weapon; or alternatively, that the officer had reasonable apprehension of serious bodily injury by defendant’s use of the knife.

The chain of events does not support defendant’s contention that he was merely defending himself. Defendant came out of his house and confronted the officer twice. The officer acted reasonably to effectuate a lawful arrest and defend himself.

The facts support the conclusion that any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime. We conclude the evidence was sufficient to support the conviction of felony assault.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, TRIEWEILER, McDONOUGH and GRAY concur.

JUSTICE HUNT,

dissenting:

I dissent. Today the majority, in its modification of the Just rule, is confusing the fundamental purpose of Rule 404(b) with the more mechanical admissibility requirements of Just. The change in our law leaves the accused with an almost insurmountable task in excluding evidence of bad character. I dissented similarly in State v. Sadowski, [247 Mont. 63,] 805 P.2d 537, 48 St.Rep. 93 (1991). The importance of maintaining the distinction between 404(b) and Just cannot be over-emphasized.

Onr criminal justice system is premised on the notion that the accused are innocent until proven guilty. Rule 404(b) is a crucial tool for the preservation of that premise. Rule 404(b) unequivocally states that evidence of other crimes, wrongs, or acts is not admissible as character evidence. The danger of prejudicing a defendant by admission of such evidence constitutes, as Justice Cardozo remarked, “a peril to the innocent.” People v. Zackowitz, 254 N.Y. 192, 194, 172 N.D. 466, 467 (1930). We are therefore charged, by the very foundation of our justice system, to closely scrutinize any procedure which may imperil the rights of the accused.

Rule 404(b), therefore, requires a high degree of relevancy in order to admit other crimes into evidence.

“The rule is that the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character.”

C. McCormick, McCormick’s Handbook of the Law of Evidence (2d ed. 1972), reprinted in J. Kaplan & J. Waltz, Evidence — Cases and Materials 370 (5th ed. 1984) (emphasis added). The list of “other purposes” in Rule 404(b) sets out elements that may be necessary for the prosecution’s case and that may, therefore, be relevant to prove a fact in issue, such as intent, identity, or absence of mistake. The presence of the list does not imply that any evidence of prior acts that tends to show any purpose on the list is by definition relevant. For example, if intent is not an issue, then evidence of other bad acts that demonstrate intent is irrelevant and therefore inadmissible.

The Just rule prescribes certain technical requirements for admissibility. The act must be similar, near in time, tending to establish a common scheme, plan, or system, and more probative than prejudicial. The majority encounters a problem with the third Just element. By seizing on the common scheme or plan element of Just and finding that it looks like the “plan” of 404(b), the majority assumes they are the same thing. It then substitutes Rule 404(b) for the common scheme element of Just, thus expanding the third Just element beyond all meaning.

By replacing the narrow common scheme element of Just with the 404(b) list, we have fallen into the trap warned about by McCormick:

“And so here there is danger that if the judges, trial and appellate, content themselves with merely determining whether the particular evidence of other crimes does or does not fit in one of the approved classes, they may lose sight of the underlying policy of protecting the accused against unfair prejudice. The policy may evaporate through the interstices of the classification.”

Reprinted in Evidence — Cases and Materials at 375.

The policy of protecting the accused against unfair prejudice is sadly evaporating in the State of Montana. The majority admits that evaporation by stating that it is “ehminating the limitation that evidence is admissible only if it shows a common scheme, plan or system.” As I stated in Sadowski, we may as well just come out and say that other acts are admissible. Today, over the federal rule, state rule, and caveats of scholars, we have seen fit to further erode the presumption of innocence and, indeed, “imperil the innocent.”

I agree with the majority that the evidence is not admissible in this case, but do not agree that it was harmless error.

I would reverse.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    GARDNER C. WAITE, Plaintiff and Respondent, v. DAVID ANDREASSI and JEFFERSON Z. AMACKER, Defendants and Appellants.
    No. 91-055.
    Submitted on briefs May 10, 1991.
    Decided July 2, 1991.
    249 Mont. 149.
    813 P.2d 987.
    Stephen M. Barrett, Kirwan & Barrett, Bozeman, for defendant and appellant Jefferson Z. Amacker.
    H. A. Bolinger, Bolinger & Quist, Bozeman, for plaintiff and respondent.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

Jefferson Amacker appeals from the order of the District Court of the Eighteenth Judicial District in Gallatin County, granting summary judgment to the plaintiff. We affirm the District Court.

The sole issue is whether the District Court erred when it concluded, as a matter of law, that the parties’ subordination agreement did not constitute a novation which extinguished the original agreement between the parties.

In October 1984, David Andreassi and Jefferson Amacker purchased property in Manhattan, Montana from Gardner C. Waite. Andreassi and Amacker paid $5000 down and secured payment of the balance of $50,000 by executing and delivering a trust indenture note. The borrowers desired to remodel the property and sought a loan of $105,000 from American Federal Savings & Loan Association of Bozeman. American Federal informed the borrowers that it would not make the loan unless it had a first mortgage on the property. The borrowers persuaded Waite to subordinate his claims to that of American Federal, and a subordination agreement was executed by the parties.

The borrowers subsequently defaulted in their payments, and American Federal enforced the default provision of their note and sold the property. Waite then sued on the original promissory note. Default judgment was entered against Andreassi for failure to appear. Amacker answered, asserting affirmative defenses of accord and satisfaction and election of remedies. Motion for summary judgment was made by Waite. In his brief in opposition to summary judgment, Amacker abandoned his accord and satisfaction defense in favor of a novation defense. He did not amend his answer to reflect that change.

The District Court ruled that Amacker’s novation defense failed to meet both the statutory and common law criteria for novation, and that he had not amended his answer to plead novation as an affirmative defense. In addition, the court found that there was no new consideration for a novation, or an extinguishment of Waite’s right to sue on the note. The corut granted Waite’s motion for summary judgment, and found Amacker and Andreassi jointly and severally hable for principal, interest, costs, and attorney fees. Amacker appeals from that judgment.

Amacker contends that the subordination agreement executed by the parties constituted a novation of the original promissory note. He states that the language contained within the subordination agreement clearly sets out the options available to Waite, and that Waite did not pursue them. The provision of the subordination agreement relied upon by the defendant reads in pertinent part:

“4. COLLECTION OF THE CREDITOR’S CLAIMS. Borrowers shall have the right, at any time, to pay all or part of the debt owed by them to Creditor provided that American Federal Savings and Loan consents, in writing, to such payment. On or after April 1,1988, Creditor shall have the right, upon ninety (90) days notice to Borrowers, to demand payment in full of Borrowers’ debt to Creditor and, in the event such payment is not made, to (1) assume Borrowers’ existing indebtedness to American Federal Savings and Loan or, in the alternative, to (2) pay the debt owed by Borrowers to American Federal Savings and Loan; provided that, in either event, Borrowers shall have no further interest in the above-described real property and Borrowers’ interest shall vest in Creditor.”

Anovation is the substitution of a new obligation between the same parties with intent to extinguish the old obligation. Section 28-1-1502(1), MCA. The subordination agreement executed by the parties does not disclose any intent by the parties to extinguish the old obligation. In fact, other terms in the contract make it clear that the parties’ intent was to the contrary. Paragraph 13 provided as follows:

“13. PAYMENT OF DEBT OWED CREDITOR. Creditor and Borrowers agree that the debt owed Creditor by Borrowers shall be due and payable on April 1, 1988, or any time thereafter, as provided in paragraph 4, but, in no event, shall payment in full be made later than one year after all claims of American Federal Savings & Loan are paid in full.”

Paragraph 13 preserves defendants’ obligation to pay the balance due under the original note, even after American Federal was paid in full.

As we stated in Harrison et al. v. Fregger et al., 88 Mont. 448, 454, 294 P. 372, 373 (1930):

“In order to effect a novation there must be a clear and definite intention on the part of all concerned that such is the purpose of the agreement, for it is a well-settled principle that novation is never to be presumed * * * ; the point in every case, then, is, did the parties intend by their arrangement to extinguish the old debt or obligation and rely entirely on the new, or did they intend to keep the old alive and merely accept the new as further security, and this question of intention must be decided from all of the circumstances.”

The defendant contends that since the parties submitted conflicting affidavits regarding what they intended by the subordination agreement, there was an issue of fact which should have been decided by a jury. However, § 28-3-303, MCA, provides in relevant part that “[w]hen a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone if possible. ...”

In this case, it was possible for the District Court to determine the intention of the parties from the terms of the subordination agreement itself. A review of that agreement reveals no genuine issue of material fact, and accordingly, Waite was entitled to a judgment as a matter of law.

We affirm the judgment of the District Court.

JUSTICES HARRISON, GRAY, McDONOUGH and WEBER concur.


text:
    MICHELE COSNER, Plaintiff and Appellant, v. TODD NAPIER, d/b/a Flathead Transmission Specialist, Defendant and Respondent.
    No. 91-075.
    Submitted on briefs June 18, 1991.
    Decided July 2, 1991.
    249 Mont. 153.
    813 P.2d 989.
    David L. Astle, Astle & Astle, Kalispell, for plaintiff and appellant.
    Daniel W. Hileman, Murray & Kaufman, P.C., Kalispell, for defendant and respondent.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

Michele Cosner appeals from the judgment of the District Court for the Eleventh Judicial District in Flathead County, denying appellant’s motion for new trial. We affirm the District Court.

The sole issue for our determination is whether the plaintiff’s failure to object at trial to the defendant’s reference to liability insurance precludes a post-trial motion for a new trial.

The plaintiff was injured at the defendant’s place of business when she tripped on an uneven cargo bay entrance. The plaintiff dropped an automobile transmission she was carrying and sustained injuries to her ankle.

Prior to trial, the defendant moved in limine to exclude any testimony or evidence concerning the existence of insurance coverage on behalf of the defendant. That motion was granted.

However, during his own examination, the defendant gave the following testimony:

“Q: Did you talk to her [plaintiff] about what happened?
“A: Kind of. I didn’t really get into it too much. But I don’t remember if I asked her, you know, what happened or — I think I asked — Maybe I did ask what happened or how she was. And I think I offered — told her, ‘Do you want my insurance man’s phone number?’ She just kind of almost laughed and said, ‘Just one of those things; don’t worry about it. I tripped.’ ”

On appeal, the plaintiff contends that the mention of insurance was in violation of Rule 411, M.R.Evid., that it unfairly prejudiced her case, and that the judgment should be vacated and a new trial granted. However, the record shows that the plaintiff made no objection to the above statement regarding insurance, nor to statements made by defense counsel in closing which the plaintiff claims inferred the existence of insurance.

This Court has consistently held that parties must make their objections known to the trial court at the time the objectionable conduct or evidence is introduced in order to preserve the issue for purposes of appeal. Beil v. Mayer, 242 Mont. 204, 789 P.2d 1229 (1990); Zimmerman v. Bozeman Production Credit Assn., 233 Mont. 156, 759 P.2d 166 (1988). A timely objection is also required by Rule 103, M.R.Evid.

In Reno v. Erickstein, 209 Mont. 36, 679 P.2d 1204 (1984), under circumstances similar to those in this case, we held that the failure of plaintiff’s counsel to make objections at the time references were made by defense counsel regarding defendant’s supposed lack of insurance coverage, in violation of defendant’s own motion in limine, precluded review of the issue on appeal.

In Rasmussen v. Sibert, 153 Mont. 286, 295, 456 P.2d 835, 840, the Court stated:

“[Defendant's failure to object or request corrective action constituted a waiver of objection on this issue. It cannot be urged for this first time upon motion for a new trial following an adverse jury verdict. To hold otherwise would not only put the trial court in error on an issue which had not been presented to it for ruling, but would permit a litigant to submit his case to the jury for a possible verdict in his favor, and in the event he was unsuccessful, would permit him another determination by another jury.” (Citations omitted.)

We conclude that the lower court properly denied the plaintiff’s motion for a new trial, and the judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, McDONOUGH and GRAY concur.


author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. LOREN ROBERT BAKER, Defendant and Appellant.
    No. 90-550.
    Submitted on briefs April 4, 1991.
    Decided July 26, 1991.
    249 Mont. 156.
    815 P.2d 587.

      Dennis G. Loveless, Helena, for defendant and appellant.
    Marc Racicot, Atty. Gen., Patricia J. Jordan, Asst. Atty. Gen., Mike McGrath, Lewis and Clark Co. Atty., Carolyn Clemens, Dep. Co. Atty., Helena, for plaintiff and respondent.
   JUSTICE HUNT

delivered the opinion of the Court.

The defendant, Loren Robert Baker, was convicted by a jury in the First Judicial District, Lewis and Clark County, of robbery, reckless driving, and carrying a concealed weapon. He appeals from that verdict. We affirm.

The issues raised on appeal are:

1. Did the trial court err when it allowed the State to offer testimony of prior crimes and alleged acts of the defendant?

2. Did the trial court err when it limited the testimony of the defendant’s expert witness?

3. Did the trial court err in permitting the reading of an Information of a previously charged offense?

On the evening of December 9, 1989, Baker had several drinks at a local bar. Around midnight, when the bartender informed him he would be closing soon, Baker went to the liquor store, which was connected to the bar, and pm-chased a bottle of whiskey. Baker testified that he was on his way out the door when two patrons physically thrust him out the door, threw him on the ground, and began searching him. Baker testified that he hit his head when he was thrown to the ground. The patrons testified that they thought Baker was stealing an additional bottle of whiskey, and that the bartender thought so too. They grabbed Baker and tried to get the bottle away from him.

Baker testified that he did not remember the following incidents to which one patron testified: Baker, while on the ground outside of the bar, pulled a .22 caliber pistol out of his belt or his fanny pack. One patron held Baker while the bartender took the gun away from him. When the patron let him up, Baker went to his car and retrieved another gun. The patrons and the bartender locked themselves in the bar and called the police. Baker shot through the door, striking a customer. He then drove away.

A police officer testified that several police cars began following Baker with lights and sirens on. Baker went off the road. The police surrounded the car, Baker got out, the police retrieved a gun from the car, and Baker was taken into custody.

Baker was charged with robbery (or in the alternative, criminal endangerment), reckless driving, and carrying a concealed weapon. Baker filed notices that he intended to rely on the defenses of justifiable use of force and mental disease or defect. The State filed notice that if Baker or his witnesses testified as to Baker’s passive nature, it would introduce evidence of his previous incidents of violence against peace officers and other persons pursuant to State v. Just, 184 Mont. 262, 602 P.2d 957 (1979). The State filed a supplemental notice stating it would include an incident from January 1988 when Baker was caught stealing while intoxicated at a grocery store.

At trial, Baker’s aikido (a martial ait) instructor testified that Baker had a good understanding of the nonviolent, nonaggressive nature of the aikido practice. The State cross-examined regarding his tendency toward passivity. Baker’s clinical psychologist testified that Baker was a passive individual who avoided conflict and saw himself as a victim. The psychologist stated that Baker had informed him of three prior encounters with the legal system. On cross-examination, the State inquired into the psychologist’s knowledge of Baker’s prior acts of violence. Baker then testified as to his own version of the prior acts. The State produced testimony on rebuttal of those prior acts. Baker now contests the cross-examination of the aikido instructor and the State’s testimony on rebuttal.

Did the trial court err when it allowed the State to offer testimony of prior crimes and alleged acts of the defendant?

After Baker’s aikido instructor testified as to Baker’s training, the State cross-examined as follows:

“Q. As I get your testimony, it is either expressed or by implication that Mr. Baker here is a gentle individual who is nonaggressive?
“A. That is correct.
“Q. Okay. And that is the idea you are trying to get across to the jury is this is a nonaggressive docile sort of guy who wouldn’t do anything to hurt anybody unless it is absolutely necessary?
“A. That is correct.”

Baker did not object to this cross-examination at the time, but later objected that he had not brought out evidence of his nonaggressive nature on direct exam, so it was improper to do so on cross-examination. The court disagreed, finding that Baker had indeed put his character in issue. The State subsequently introduced testimony on rebuttal of prior aggressive acts to refute the claim of nonaggressiveness, including incidents of being intoxicated and attempting to use weapons and attempting to steal. On appeal, Baker claims that the evidence relating to the prior aggressive acts is inadmissible because it does not conform to Rule 404(b), M.R.Evid., and State v. Just, 184 Mont. 262, 602 P.2d 957 (1979). However, we find Rule 404(a)(1), M.R.Evid., not Rule 404(b), M.R.Evid., and Just, to be the applicable law.

Rule 404(a)(1), M.R.Evid., permits character testimony on rebuttal if the opposing party has put character in issue. Rule 404(a)(1), M.R.Evid., states:

“(a) Character evidence generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except: “(1) Character of the accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same(Emphasis added).

Baker’s focus on Rule 404(b), M.R.Evid., and Just is misplaced. The purpose of the aikido instructor’s testimony was to show Baker’s propensity to behave in a certain manner, or in other words, to show a pertinent trait of his character. Character having been put in issue, it was properly rebutted by the prosecution under Rule 404(a)(1), M.R.Evid.

Did the trial court err when it limited the testimony of the defendant’s expert witness?

Baker attempted to use a clinical psychologist to testify as to the symptoms a concussion could produce. The court restricted the psychologist’s testimony to the actual mental condition of Baker, and did not permit him to testify as to the cause of it. The court found that the psychologist was not qualified to give an opinion regarding the relationship of a blow to the head to a disruption of mental faculties. Baker submits that this restriction deprived him of a fair trial.

The determination that a witness is an expert is largely within the discretion of the trial judge and should not be overturned in the absence of an abuse of discretion. State v. Martin, 226 Mont. 463, 736 P.2d 477 (1987). The defense made no attempt to qualify the psychologist as a medical expert, so we find no abuse of discretion in the District Court’s determination that a psychologist may not have the expertise to testify on a medical subject.

Did the District Court err in permitting the reading of an Information of a previously charged offense?

On direct examination, Baker testified as to his version of a previous assault charge. On cross-examination, the State read the Information relating to the charge in order to clarify a fact. Baker objected, presumably on relevancy grounds, but the court permitted it. Baker now argues that the reading denied him a fair trial by poisoning the minds of the jurors.

Baker himself testified as to the incident on direct examination. The reading of the Information was, therefore, relevant and properly within the scope of cross-examination and did not prejudice Baker’s case to the jury.

Affirmed.

JUSTICES McDONOUGH, HARRISON, GRAY and WEBER concur.


author: JUSTICE HARRISON JUSTICE GRAY

text:
    HAROLD MILDENBERGER and MARILYN MILDENBERGER, husband and wife, Plaintiffs and Respondents, v. JOSEPH GALBRAITH and DENISE GALBRAITH, husband and wife, Defendants and Appellants.
    No. 90-397.
    Submitted May 14, 1991.
    Decided July 1, 1991.
    249 Mont. 161.
    815 P.2d 130.

      David L. Pengelly, Knight, Maclay & Masar, Missoula, for defendants and appellants.
    John D. Greef, Hamilton, for plaintiffs and respondent.
    Marc Racicot, Atty. Gen., Harley R. Harris, Asst. Atty. Gen., Tim D. Hall, Legal Counsel, Dept, of Natural Resources, Helena, for amicus curiae.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Appellants, Joseph and Denise Galbraith appeal from the judgment of the District Court of the Fourth Judicial District, Ravalli County, Montana, holding that Harold and Marilyn Mildenberger have a prescriptive easement in the water ditch on appellants’ property and a stockwater right with a priority date of September 1, 1927, for water arising on lands currently owned by a third party. We affirm in part and reverse in part.

There are two issues presented for review:

1. Did the District Court err in finding that the Mildenbergers have an existing water right with a 1927 priority date?

2. Did the District Court err in finding that the Mildenbergers have a prescriptive easement in the water ditch on the Galbraiths’property?

The Mildenbergers and the Galbraiths are adjacent landowners in Ravalli County. The Galbraiths own real property in Sections 5, 8, and 9, of Township 5 North, Range 20 West, P.M.M., Ravalli County. The Mildenbergers own real property north of the Galbraiths’ property, also in Section 5. Letters A through I, illustrated on the following map, will be points referred to throughout this opinion.

Several naturally occurring springs are located on the west half of Section 9 (point A) from where the water in question surfaces. The property is currently owned by Ron and Janet Trulock, who are not parties in this litigation. Water arising from the springs flows in a northwesterly direction in an open channel passing onto the Galbraiths’ property at point B. The water continues to flow northward in the ditch system on the Galbraiths’ property past points C and F to point H where the water enters the Hedge Canal and finally flows on to the Mildenbergers’ property at point I.

In addition to the springs at point A on the Trulock property, there are also springs located on the Newman-Kem property at Point E. The water arising from these springs flows northward and merges with the disputed ditch at point F. The portion of the ditch that gave rise to this litigation lies between points C and F.

The ditch system in question was developed by the Galbraiths’ predecessor, Marcus Daly, for irrigation purposes, sometime prior to 1927. Water flowed through the ditch year-around and was used by the Galbraiths’ predecessors for irrigation during the summer months and stockwater during the winter months. Since approximately 1927, the Mildenbergers and their predecessors have used the water entering their property in the Hedge Canal for stockwater.

In the 1930’s, some of the springs on Section 9 (point A) were developed by the State Fish and Game Department in order to convey the water to a fish hatchery (shown on map). Spring water diverted to the fish hatchery bypasses the ditch system and the Hedge Canal, and consequently, is never available for use on the Mildenberger property.

The testimony indicated that the first development of the springs located on Section 9 that resulted in developed spring water flowing through the ditch on the Galbraiths’ property, did not occur until the mid-1960’s.

The Mildenbergers owned the property in Section 5 (north of the Galbraiths’ property at point I) from March, 1962, until April, 1964. They reacquired it in October, 1973, and have owned it since that time. The property was owned by Dr. Jack Mahoney from April, 1964, to October, 1973. Dr. Mahoney also owned the current Trulock property in Section 9 (point A) during approximately the same time period. Dr. Mahoney sold the property in Section 9 in April, 1973, to the Mildenbergers, who then conveyed the property to Larry McCrossin in August, 1973. Ron and Janet Trulock are the current owners of this property.

The testimony shows that during his ownership of the property, Dr. Mahoney used a dragline to develop and clear the channel from the spring at point A to the edge of the Galbraiths’ property at point B. He also enlarged an existing pond and drained water off this land through the pond into the channel. The testimony also shows that Dr. Mahoney’s purposes in developing these springs were to benefit the land in Section 9 and provide stockwater for his land in Section 5; the same parcel currently owned by the Mildenbergers.

Larry McCrossin testified that he had further developed the springs in Section 9 and had filed water rights on the water from these developed springs during his ownership of the property between 1973 and 1980.

In the fall of 1988, the Galbraiths retained the services of a local attorney to examine the State water right records and determine whether there were any claimed water rights in the portion of the ditch between points C and F. There were no water rights on record and, once advised by counsel of this fact, the Galbraiths proceeded to fill in the ditch between points C and F, and divert the flow of water to point D. Galbraith testified that as part of his plan to improve the property, he wished to clean up and fill in the ditch between points C and F. On December 8,1988, due to the Galbraiths’ efforts in improving their property, the northward flow of water from point C had completely stopped. The Mildenbergers demanded that the Galbraiths reopen the ditch and when they refused to do so, this litigation ensued.

A non-jury trial was held on March 26, 1990, and judgment was entered in favor of the Mildenbergers, finding they have a prescriptive easement in the disputed irrigation ditch on the Galbraiths’ property, and a stockwater right in the amount of 200 miner’s inches with a priority date of September 1, 1927, to groundwater arising on land currently owned by Ron and Janet Trulock. The District Court held that the Mildenbergers were exempt from the statutory filing requirements of the Montana Water Use Act and awarded the Mildenbergers damages in the sum of $100, their reasonable attorney’s fees, and court costs. The Galbraiths appeal.

The first issue is whether the District Court erred in finding that the Mildenbergers have an existing water right in the amount of 200 miner’s inches with a 1927 priority date.

Without getting into the merits of this issue, it will suffice to say that the District Court “may grant injunctive or other relief which is necessary and appropriate to preserve property rights or the status quo pending the issuance of the final decree. Section 85-2-406(2), MCA. The District Court lacks the jurisdiction to issue a final decree with regard to the water right.

The jurisdiction to interpret and determine existing water rights rests exclusively with the water courts. Section 3-7-501, MCA.

The question then becomes whether the District Court’s judgment was “necessary and appropriate” as required in § 85-2-406(2), MCA. A review of the record indicates an absence of any evidence to support the District Court’s determination that the Mildenbergers had a water right in the amount of 200 miner’s inches. Such a final adjudication of a water right is the function of the water court, and not the District Court.

The judgment with respect to the Mildenbergers’ water right in the amount of 200 miner’s inches is therefore vacated.

The second issue on appeal is whether the District Court erred in finding that the Mildenbergers have a right by prescriptive easement in the ditch on the Galbraiths’ property.

This Court has previously held that ditch rights and water rights are separate and distinct property rights. Connolly v. Harrel (1936), 102 Mont. 295, 57 P.2d 781. Therefore, our determination of whether or not a ditch right exists is entirely bifurcated from the water right issue.

In order to establish a prescriptive easement a party must show open and notorious, exclusive, adverse, continuous and uninterrupted use of the easement for the statutory period of five years. Morrison v. Higbee (1983), 204 Mont. 515, 668 P.2d 1025. The Galbraiths argue that the Mildenbergers have failed to present any evidence of an adverse, open and notorious use of the ditch in question.

It is the Galbraiths’ contention that the Mildenbergers merely made use of the unconsumed water that entered upon their property via the Hedge Canal after flowing through the Galbraiths’ ditch. They argue that such use does not amount to open and notorious use, nor has there been any other actions by the Mildenbergers that can be construed as adverse or hostile. We disagree.

To be adverse, the use of a claimed right must be hostile and not permissive. Ewan v. Stenberg (1975), 168 Mont. 63, 541 P.2d 60. Testimony at trial clearly established the fact that neither the Mildenbergers nor their predecessors ever asked permission of anyone to use the ditch. In the mid-1960’s, the Mildenbergers’ predecessor in interest, Dr. Mahoney, increased the flow of water through the ditch for the express purpose of increasing the use of water on the property currently owned by the Mildenbergers. At no time did he seek permission to run his water through the ditch.

Adverse use may be presumed whenever there has been unexplained use of the alleged easement for the five-year statutory period. This presumption may be overcome by evidence that the use was permissive. Keebler v. Harding (Mont. 1991), [247 Mont. 518,] 807 P.2d 1354, 1357, 48 St.Rep. 282, 283. The Galbraiths have failed to produce any evidence to show a permissive use of the ditch. In fact, Berna Martinson, the Galbraiths’ predecessor in interest, testified at trial that the Mildenbergers’ use was never permissive.

The Galbraiths argue that the Mildenbergers also failed to establish an open and notorious use. It has long been established that an open and notorious possession is such that it will give the owner of the property right “either actual knowledge of the hostile claim, or [be] of such a character as to raise a presumption of notice, or [be] so patent that the owner could not be deceived.” Collins v. Thode (1918), 54 Mont. 405, 411-412, 170 P. 940, 941.

The undisputed testimony of Berna Martinson establishes sufficient evidence that the servient estate owner had knowledge of the Mildenbergers’ claim in the ditch:

“[Historically [the ditch] had always rim that way and everybody respected the fact that’s where the water goes, ... we always knew that that’s where the water went, and we respected that rights.”

The Galbraiths argue that the Mildenbergers never physically entered on the property, and therefore have not made any asserted right hostile to the interests of the Galbraiths. However, physical presence is merely evidence used to show knowledge on the part of the servient estate owner. There is other sufficient evidence in the record to support a finding of knowledge on the part of the Galbraiths or their predecessors.

The District Court’s findings will not be set aside when based upon substantial credible evidence. Downing v. Grover (1989), 237 Mont. 172, 772 P.2d 850. The record indicates substantial evidence exists to support the finding of a prescriptive easement.

We vacate the District Court’s finding of a water right in the amount of 200 miner’s inches, and affirm its finding of an easement by prescription.

CHIEF JUSTICE TURNAGE and JUSTICES HUNT, TRIEWEILER, McDONOUGH and WEBER concur.

JUSTICE GRAY

specially concurring.

I concur in that portion of the majority opinion addressing the water right. I concur in the result reached by the maj ority with regard to the prescriptive easement in the ditch.

My analysis of certain testimony differs somewhat from that of the majority. The majority characterizes the testimony of Berna Martin-son, a predecessor of the Galbraiths, as showing that “the Mildenbergers’ use was never permissive.” I read Ms. Martinson’s testimony differently. It does not appear to me that either her testimony or any other testimony or evidence establishes whether the use was permissive or nonpermissive at its inception. Indeed, Ms. Martinson’s recollections regarding the ditch begin more than twenty-five years after the initial use of the ditch by the Mildenbergers’ predecessors.

Ms. Martinson’s testimony does suffice to meet the “adverse” showing required, however. She testified that the “rights” of the Mildenbergers’ predecessors to use the ditch were recognized at least as early as the mid-1950s, the time of her earliest firm recollection of the ditch. As this Court has stated:

“To be adverse, the use [of the alleged easement] must be exercised under a claim of right and not as a mere privilege or license revocable at the pleasure of the owner ... ; such claim [of right] must be known to, and acquiesced in by, the owner. ...”

Taylor v. Petranek (1977), 173 Mont. 433, 437, 568 P.2d 120, 122. Thus, while we do not have a single distinct and positive assertion of a claim of right to use the ditch, Ms. Martinson’s testimony indicates that a claim of right was known to exist, and acquiesced in, at least as early as 1955. This testimony provides sufficient evidence to support the District Court’s finding that the use of the ditch was “adverse.”


text:
    In re the MARRIAGE OF JOAN WERSLAND, Petitioner/Respondent and Cross-Appellant, and KENNY WERSLAND, Respondent/Appellant.
    No. 90-502.
    Submitted on briefs March 28, 1991.
    Decided July 2, 1991.
    249 Mont. 169.
    814 P.2d 991.

      Diane E. Savage, Habedank, Cumming, Best & Savage, Sidney, for respondent/appellant.
    Richard A. Simonton, Simonton, Howe & Schneider, Glendive, for petitioner/respondent and cross-appellant.
   JUSTICE HUNT

delivered the opinion of the Court.

Kenny Wersland appeals from a decree of dissolution entered in the Seventh Judicial District Court, Richland County, and the subsequent order amending that decree. Joan Wersland cross-appeals.

We affirm.

The following questions are presented on appeal:

1. Did the trial court err by imputing income to Kenny in the determination of his child support obligation?

2. Did the trial court err in failing to deduct income taxes from Kenny’s imputed income in the determination of his child support obligation?

3. Did the trial court abuse its discretion when it retroactively reduced Kenny’s child support obligation in the final decree?

4. Was the property division equitable?

5. Is Joan entitled to attorney’s fees and costs on appeal?

The parties to this dissolution, Kenny and Joan Wersland, separated in September 1987. At the time of separation, Joan was employed as a secretary with the local school system, and Kenny worked as a contractor. They have three children, currently ages 16, 12, and 7.

During the pendency of the dissolution, Joan petitioned the court for a temporary order regarding custody, child support, maintenance, and attorney’s fees. On February 8, 1989, the court issued a temporary order designating joint custody of the children, with primary residence of the two youngest with the mother and the oldest with the father. Kenny was ordered to pay Joan $400 per month child support, retroactive to January 1, 1989, and $400 attorney’s fees.

The matter was tried, and on January 11, 1990, the court issued findings, conclusions and a decree which, among other things, reduced Kenny’s child support obligation from $400 per month to $316 per month, retroactive to January 1,1989. Both Joan and Kenny moved to alter or amend the decree. On August 1, 1990, the court issued an amended decree. Both parties appeal.

I.

Did the trial court err by imputing income to Kenny in the determination of his child support obligation?

The court found, in its final decree, that because Kenny’s earning capacity exceeded the demonstrated net income of his construction business by $6085, that amount should be imputed to him for the purposes of determining child support. The court made this determination on the basis of the standard wage for carpenters in the area. Kenny maintains that because no evidence was presented that indicated that carpentry work could be found in the Sidney area at the time, it was error to impute income to him.

The Uniform District Court Rule on Child Support Guidelines, 227 Mont. 1 (1987), (hereafter Guidelines) states:

“In cases where the obligor parent is not working or is not working at full earning capacity, the reasons for such a hmitation on earnings should be examined. If the reason is a matter of choice, the local job market should be reviewed to determine what a person with the obligor parent’s trade skills and capabilities could earn. Those typical earnings can then be imputed to the obligor parent for use in this guide.”

We have stated that, using actual earnings as a guideline, it is incumbent on the district courts to realistically assess parents’ earning power and determine child support accordingly. In re the Marriage of Gebhardt, 240 Mont. 165, 172, 783 P.2d 400, 404 (1989). However, courts are also “obliged to consider the employment opportunities available in the local job market for unemployed and under-employed parents.” Gebhardt, 240 Mont. at 172, 783 P.2d at 404. Here, the court assessed Kenny’s actual earnings, which have been substantial at times, heard testimony regarding the local job market, which currently is poor, and arrived at a sum to impute. Having considered the factors required by the Guidelines for imputed income, and finding adequate testimony in the record to support its decision, we determine that the trial court did not err.

II.

Did the trial court err in failing to deduct income taxes from Kenny’s imputed income in the determination of his child support obligation?

Kenny maintains that the court should have deducted income tax from the additional amount of earnings imputed to him, thus lowering his child support payments by $16.28 per month. This interpretation of the way to properly calculate child support misconstrues the child support statutes and the Guidelines.

Sections 40-4-204 and 40-6-116, MCA, contain broad standards for the determination of child support. Without reproducing them in their entirety here, the statutes do little more than offer guidance to those involved in the support determination. The Guidelines, however, contain a suggested procedure for predictable and equitable calculation which “calculates child support as a share of each parent’s income estimated to have been spent on the child if the parents and child were living in an intact household.” Guidelines, 227 Mont. at 4.

Pursuant to the Guidelines, we stated in In re the Marriage of Mitchell, 229 Mont. 242, 247, 746 P.2d 598, 601 (1987):

‘When analyzing income under the Guidelines, it is the disposable income of the parent, and not their income tax returns alone, which need be considered by the court. (Emphasis added).”

Kenny is attempting to lower his support payments simply by reducing his income for tax purposes. As we indicated in Mitchell, and subsequently in In re the Marriage of Gray, 242 Mont. 69, 788 P.2d 909 (1990), and in In re the Marriage of Stewart, 243 Mont. 180, 793 P.2d 813 (1990), losses allowable for income tax deduction are not necessarily to be used to calculate child support. Mitchell, 229 Mont. at 247, 746 P.2d at 602. The District Court did not abuse its discretion in failing to deduct income taxes from Kenny’s imputed income.

III.

Did the trial court abuse its discretion when it retroactively reduced Kenny’s child support obligation in the final decree?

Section 40-4-208(1), MCA, states:

“Except as otherwise provided in 40-4-201(6) a decree may be modified by a court as to maintenance or support only as to installments accruing subsequent to actual notice to the parties of the motion for modification.”

Joan claims that the District Court was in error when it ordered that child support payments be reduced retroactively from $400 per month to $316 per month. She relies on In re the Marriage of Rolfe, 216 Mont. 39, 699 P.2d 79 (1984), where we reversed a District Court decision that retroactively modified child support payments. In Rolfe we stated that, pursuant to § 40-4-208(1), MCA:

“The District Court did not have the power on March 2, 1984 to modify payments resulting from a July 9, 1983 order.”

Rolfe, 216 Mont. at 49, 699 P.2d at 85.

The distinction in the facts before us is that here the court was revising a temporary order, not modifying a decree as specified in § 40-4-208(1), MCA. We have recently recognized the authority of the district courts to revise temporary orders. In re the Marriage of Revious, 226 Mont. 304, 735 P.2d 301 (1987). In Revious, the District Court dissolved the marriage by decree but reserved judgment on the issue of child support, instead issuing a temporary order of child support until a hearing could be held. The final judgment, issued almost two years later, revised the child support and made it retroactive to the time of the date of dissolution. On appeal, this Court stated that:

“It was clearly within the District Court’s authority to make the maintenance and child support awards retroactive. The temporary order of child support issued in July of 1984 did not prejudice the rights of the parties or the children adjudicated at the later hearings. Section 40-4-121(7)(a), MCA. It was well within the District Court’s power, after hearing on the matter of child support and maintenance, to make the order retroactive.

Revious, 226 Mont. at 312, 735 P.2d at 306.

Section 40-4-121(7)(a), MCA, referred to in the above citation, states:

“(7) A temporary order or temporary injunction:
“(a) does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceeding. ...”

The facts of Revious are more analogous to the facts before us than are those of Rolfe. We therefore conclude that the District Court acted within its discretion when it ordered retroactive revision of the temporary support order.

IV.

Was the property division equitable?

We have repeatedly held that the property division must be equitable. In re the Marriage of Snell, 205 Mont. 359, 668 P.2d 238 (1983); In re the Marriage of Fitzmorris, 229 Mont. 96, 745 P.2d 353 (1987); In re the Marriage of Jones, 229 Mont. 128, 745 P.2d 350 (1987). We will not disturb a district court’s judgment that is based on substantial credible evidence, unless a clear abuse of discretion is shown. In re the Marriage of Stewart, 232 Mont. 40, 42, 757 P.2d 765, 767 (1988). Here, the District Court has heard testimony on the temporary order, the permanent order, and the motion to amend. Our review of the record indicates the trial court has equitably divided the property, even to the extent of amending the decree to satisfy the parties. We find no abuse of discretion.

V.

Is Joan entitled to attorney’s fees and costs on appeal?

The District Court originally awarded Joan $400 in fees. Joan now requests an additional award of attorney fees and costs on appeal under Rule 32, M.R.App.P, Rule 33, M.R.App.P, and § 40-4-110, MCA.

Rule 32, M.R.App.P., allows damages for appeals taken without merit. However, damages are not warranted when a reasonable ground for appeal exists. Tope v. Taylor, 235 Mont. 124, 132, 768 P.2d 845, 850 (1988). Here, Kenny raised meritorious questions regarding imputed income and tax liability, and is therefore not liable for damages under Rule 32, M.R.App.P.

Similarly, he is not liable under Rule 33, M.R.App.P., which provides for attorney fees if the fees are based on a contract or on a specific statute. Schneider v. Minnesota Mutual Life, [247 Mont. 334,] 806 P.2d 1032, 1037, 48 St.Rep. 224, 227 (1991). Here, no contract exists and the only possible applicable statute, § 40-4-110, MCA, states:

“The court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under chapters 1 and 4 of this title and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. (Emphasis added.)” Section 40-4-110, MCA.

The discretionary nature of § 40-4-110, MCA, does not mandate the court to award costs and fees. We decline to do so here.

Affirmed.

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


author: JUSTICE GRAY JUSTICE TRIEWEILER,

text:
    JAMES DeMERS and Doris DeMers; Philip J. Poston and Shirley M. Poston; Edward J. Smosma, Thelma Ruth Smosma; Clyde I. Laufer and Alta Laufer, Plaintiffs and Appellants, v. RONCOR, INCORPORATED, Defendant and Respondent.
    No. 90-527.
    Submitted on briefs April 25, 1991.
    Decided July 2, 1991.
    249 Mont. 176.
    814 P.2d 999.

      James T. Harrison, Jr., Harrison, Loendorf & Poston, P.C., Helena, for plaintiffs and appellants.

      William P. Driscoll and Ward A. Shanahan, Gough, Shanahan, Johnson & Waterman, Helena, for defendant and respondent.
   JUSTICE GRAY

delivered the Opinion of the Court.

The appellants, owners of lots in a subdivision known as Sapphire Village, appeal from the Opinion and Order of the District Court of the Tenth Judicial District, Judith Basin County, granting the respondent’s motion to dismiss. We affirm.

The appellants raise three issues on appeal:

1. Whether the respondent is judicially estopped from barring the appellants access to hand mine on respondent’s sapphire mining claims.

2. Whether the issues in a prior federal court case were identical to the issues raised in the case at bar, such that this litigation is barred by res judicata.

3. Whether the interests of justice allow res judicata to be applied under the circumstances of this case.

The appellants are lot owners in Sapphire Village, a subdivision outside Utica, Montana. The respondent, a California corporation, is the owner of the ‘Yogo Sapphire” bearing dike west of Sapphire Village. The ‘Yogo Dike” is a geological formation containing deposits of sapphire-bearing ore. Sometime in 1968, the respondent’s predecessor in interest, Sapphire Village, Inc., subdivided the real property it owned adjacent to the Yogo Dike into lots ranging from 10,000 square feet to approximately one-third of an acre. The appellants purchased these lots during the 1969 through 1981 time period from Sapphire Village, Inc. or its successor in interest, Roncor, Inc., the respondent herein.

Prior to the sale of the lots, Sapphire Village, Inc., filed a public ‘Declaration of Restrictive Covenants, Reservations, Restrictions, and Grant of Mining Permit” and recorded the same in Judith Basin County, Montana. The Declaration stated that the covenants were to run with the land; the appellants purchased their respective lots subject to these covenants. The Grant of Mining Permit provided that each of the lot owners had the right to “hand dig” for sapphires in designated areas on five specified patented lode mining claims on the Yogo Dike. These five claims were all located in Section 23.

On April 1,1980, Sapphire Village, Inc., which had since merged into the corporate entity of Sapphire International Corporation, conveyed its interest in the tinning claims it owned on the Yogo Dike to a Colorado company known as Intergem. Commencing in 1982, Inter-gem engaged in extensive mining activities which included strip mining of the five mining claims that were the subject of the Grant of Mining Permit.

In August, 1988, the appellants brought a class action suit for damages, contending that Roncor had breached the terms of the Declaration and Grant of Mining Permit when it conveyed to Inter-gem the right to commercially mine the Yogo Dike. The suit was tried to a jury in February, 1990, in federal district court. The major issue presented was whether or not Roncor had breached the terms of the Declaration and Grant of Mining Permit. The appellants contended that the Grant of Mining Permit gave them an exclusive right to mine. Roncor, however, maintained that the appellants held only a non-exclusive right to mine and that there existed an independent right to commercially mine the claims which was expressly reserved to Sapphire Village, Inc. and its successors in interest. The jury returned a verdict in favor of the appellants and awarded damages for the loss of the mining rights. Judgment was entered accordingly.

During that trial, Ronald Kunisaki, president of Roncor, gave certain testimony that the appellants contend produced a new cause of action. The appellants filed their complaint in this matter on June 8, 1990, seeking damages for interference with certain hand digging mining rights and an injunction to prevent future interference with these rights. The District Court issued its Opinion and Order on August 23, 1990, in which it granted the respondent’s motion to dismiss the complaint. The District Court held that the appellants had already been awarded damages for the “total defeat” of their digging rights and that this action was barred by res judicata. The appellants appeal.

The first issue raised by the appellants on appeal is whether the respondent is judicially estopped from barring access by the appellants to hand mine on the respondent’s mining claims.

During the prior federal trial between these parties, Ronald Kunisaki testified that, although the covenant attached to the five claims located in Section 23, it was his view that Roncor could in its discretion designate other areas as substitutions for the Section 23 claims. A portion of his testimony was as follows:

“Q: [By Mr. Harrison] ... Have you transferred any permanent rights to hand diggers to dig anywhere except in Section 23?
“A: [By Mr. Kunisaki] Yes, by virtue of the covenants.
“Q: And can you tell me from the covenants, then, and from your testimony, where that permanent right allows them to dig?
“A: The covenants, as I interpret them, give them the permanent right to hand dig on designated areas, so they do have a permanent right to dig on those designated areas.
“Q: And the, your interpretation of that is that you can tell them anywhere within the mine?
“A: Correct.”

The appellants contend that this testimony demonstrates that the respondent’s position during the federal trial was that the appellants’ hand mining rights were permanent and mine-wide. They argue that, under the principle of judicial estoppel, the respondent is now prevented from treating the appellants’ mining rights as anything but permanent and mine-wide.

Following the close of the federal trial, the respondent advised all members of the plaintiff class by letter that any mining rights they had previously owned by way of the Grant of Mining Permit were canceled and had reverted to Roncor, Inc. The appellants argue that the respondent is judicially estopped from changing its position held at trial and cannot now cancel the appellants’ mine-wide mining rights. The only mining rights they should lose, the appellants argue, are the five claims in Section 23.

Judicial estoppel is generally defined as the ride that a party is bound by his or her judicial declarations and may not contradict them in a subsequent action or proceeding. 28 Am.Jur.2d., Estoppel and Waiver, § 71, pgs. 700-701, (1966). The elements required to support judicial estoppel are as follows: (1) The party being estopped must have knowledge of the facts at the time the original position is taken; (2) the party must have succeeded in maintaining the original position; (3) the position presently taken must be actually inconsistent with the original position; and (4) the original position must have misled the adverse party so that allowing the estopped party to change its position would injuriously affect the adverse party. Colwell v. City of Great Falls (1945), 117 Mont. 126, 157 P.2d 1013 (overruled on other grounds). The rule of judicial estoppel does not apply to a change of position regarding matters of law, nor does it apply where the knowledge or means of knowledge of both parties is equal. Colwell, 117 Mont. at 139, 157 P.2d at 1019.

In the case at bar, the appellants allege that Kunisaki’s testimony served to define the appellants’ mining rights as including claims other than those provided for in the Grant of Mining Permit. However, the testimony in question constituted only Kunisaki’s own interpretation of the terms of the Declaration and Grant of Mining Permit. The true legal interpretation of the Grant of Mining Permit is unchanged and remains as stated: the five claims in Section 23. Kunisaki’s testimony did not create any new or additional rights to which the appellants are entitled.

Kunisaki’s testimony amounted to an attempt to persuade the jury to interpret the written instrument in such a way that would likely benefit Roncor in the lawsuit. The jury returned a verdict in favor of the appellants, indicating that it was unpersuaded by Kunisaki’s interpretation of the instrument.

As the United States Supreme Court stated in Sturm v. Boker (1893), 150 U.S. 312, 336, 14 S.Ct. 99, 107, 37 L.Ed. 1093, 1102, where a position taken in a judicial proceeding is found to be the expression of an opinion as to the law of a contract, and not a declaration or admission of a fact, a party is not estopped from subsequently taking a different position as to the true interpretation of the written instrument. The District Court correctly found that Kunisaki’s testimony merely offered an interpretation of the written instrument and created no additional mining rights for the appellants. Kunisaki’s change of position regarded a matter of law and, consequently, judicial estoppel does not apply.

Even if we were to assume Kunisaki’s testimony amounted to a factual declaration, the elements of judicial estoppel as set forth above have not been met. Roncor failed to maintain its original position and, although acquiring a judgment in its favor is not always necessary to satisfy this element, the party against whom the estoppel is sought must have at least been successful in arguing its original position against the party asserting the estoppel. The appellants contend that Roncor was in fact successful in this regard. It is the appellants’ position that Kunisaki’s testimony influenced the jury to award less damages than it would otherwise have awarded. This argument, however, is merely speculative conjecture as to the jury’s inner thought process and is factually unsupported.

Moreover, the appellants have failed to demonstrate in what manner, if any, they have been misled by Kunisaki’s testimony. In any event, allowing Roncor to take the position that all appellants’ mining rights have been terminated does not injuriously affect the appellants, because the appellants already have been compensated for their loss.

The District Court is correct in its conclusion that judicial estoppel is not applicable to the facts of this case.

The remaining two issues concern the principles of res judicata and will be discussed together.

The appellants argue that res judicata cannot be applied in this case for two reasons. First, they contend that all the necessary elements are not present. Second, they argue that even if the respondent has satisfied all the elements, res judicata should not be applied for reasons of fundamental justice.

The four element test we apply in determining whether or not a second action is barred by res judicata is as follows: the parties or their privies must be the same; the subject matter of the action must be the same; the issues must be the same; and the capacities of the persons must be the same in reference to the subject matter and to the issues between them. Baertsch v. County of Lewis and Clark (1986), 223 Mont. 206 at 209-210, 727 P.2d 504 at 506. The only element in dispute is whether the prior federal action involved the same issues as are presented in the case at bar.

The appellants argue that the issue presented to the jury in the federal case was the question of damages due the appellants as a result of the loss of the one mile portion of mining rights on Section 23; in other words, the loss is characterized as a partial loss. They contend that the issue now before the Court concerns the remaining mining rights referred to in Kunisaki’s earlier testimony; now characterized as a complete loss. This distinction is entirely hypothetical. The Grant of Mining Permit provided the appellants with mining rights on the one mile portion of Section 23 and nothing more. The “additional rights” purportedly created by Kunisaki’s testimony which the appellants now attempt to litigate are nonexistent. Notwithstanding the “partial loss/complete loss” distinction the appellants attempt to make above, we find the issue presented in the federal case to be identical with the one presented at bar.

The appellants attempt to create rights that never existed under the Grant of Mining Permit and then litigate those nonexistent rights. As we have previously stated, Kunisaki’s testimony did not amount to the creation of additional mining rights. The only mining rights that have ever existed are those on Section 23, and they were the subject of the prior federal action. The mining rights at issue in the federal action that the appellants attempt to characterize as a partial loss, were in fact a complete loss. Therefore, the “complete loss of mining rights” issue they are attempting to litigate in this case does not exist and the “partial loss” (which was actually the complete loss) has been disposed of in the federal action.

The appellants argue that this Court, for reasons of fundamental justice, should not apply res judicata even if identical issues are involved in the first and second actions. It is their contention that it would be “a grave injustice” to prevent the appellants from seeking relief for the loss of all mining rights. Again the appellants are assuming that they have mining rights in addition to those provided in the Grant of Mining Permit. This is not the case. There is no injustice in preventing the appellants from seeking damages for the loss of rights they never had.

We hold that judicial estoppel is not proper under the facts of this case and, as such, this case is barred by res judicata.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON and McDonough concur.

JUSTICE TRIEWEILER,

dissenting:

I concur with that part of the majority’s opinion which concludes that the principle of judicial estoppel is not applicable to the defendant’s conduct.

I dissent from that portion of the majority’s opinion which concludes that the present action by the plaintiffs is barred by res judicata.

As has been correctly pointed out in the majority opinion, before res judicata bars a second action the subject matter and the issues must be found to be the same as in a prior action. However, in this case, neither the subject matter nor the issues were the same.

In the action filed by the plaintiffs in August 1988, they sought damages for interference -with their hand mining rights located in Section 23 of the Yogo Mine. The entire basis for their claim was the following allegation:

“The transfer of ownership of the mining claims to Intergem, Inc., by the defendant for the purpose of commercially mining the Yogo Sapphire-bearing dike, and the subsequent commercial mining of the Yogo Sapphire-bearing dike, totally defeated the right and privilege that Plaintiffs had to hand dig in the aforesaid mining claims, namely, the Clayberg, Gunn, Hoover, Baker, and Snowdrift, located in Section 23.”

The only section for which damages were sought in the prior action was described as follows in the prayer for relief filed in that case:

“WHEREFORE, Plaintiffs request for themselves and all members of the class that the Court:
“2. Adjudicate and declare the rights of the class members to damages for loss of hand digging rights in the Yogo Sapphire ditch in Section 23, as set forth in this complaint ....”

In their original suit, plaintiffs sought no damages for loss of mining rights in any other section of the Yogo Mine.

In the complaint which commenced this action, plaintiffs sought a declaratory judgment determining their mining rights in the other sections of the Yogo Mine. Their complaint specifically alleged as follows:

“13. That this suit is brought to obtain declaratory judgment under the Uniform Declaratory Judgments Act (§§ 27-8-101, et seq., MCA) to declare and adjudge the following:
“(a) that the hand digging rights of the Plaintiffs herein are applicable under the provisions of the covenants to all six sections of the Yogo Mine. ...”

Furthermore, the prayer for relief in this action sought entirely different relief than was sought in the prior action. It sought the following relief:

‘WHEREFORE, Plaintiffs pray for the following relief:
“2. For a declaratory judgment finding and determining that Plaintiffs’ hand digging rights, subject to the terms of the covenants, are mine-wide throughout the Yogo mine, and applicable to all six sections of the Yogo mine. ...”

Since plaintiffs’ first cause of action sought damages for interference -with their mining rights in only Section 23, and since plaintiffs’ second cause of action sought a determination of their hand mining rights in all other sections of the Yogo Mine, neither the subject matter nor the issues to be resolved by the court were identical. Therefore, this was not an appropriate situation for the application of the doctrine of res judicata.

The majority opinion, while affirming the District Court on the basis of res judicata, concludes that it makes no difference that plaintiffs’ second claim claims different mining rights than those claimed in the first action. The majority concludes, as a matter of law, based on its interpretation of the covenants between the parties, that plaintiffs did not have any mining rights in any section other than Section 23. However, that issue was never decided by the District Court; and, the plaintiffs have never had the opportunity to present evidence in support of their claim to rights outside Section 23 because their claim was summarily dismissed, based on the principle of res judicata.

The majority has simply made a factual finding based upon its review of the record without ever giving the plaintiffs an opportunity to supplement the record during an evidentiary hearing. That is not the function of this Court. Therefore, I dissent from the majority opinion. I would reverse the District Court’s grant of summary judgment (although it was not denominated as such), and remand this case to the trial court for further proceedings to determine the merits of plaintiffs’ claim that they have mining rights in other sections of the Yogo Mine.

       In 1986, Sapphire International Corporation changed its corporate name to Roncor, Inc.