text:
    STATE OF MONTANA, Plaintiff, vs. OLLIE W. ARLINGTON, Defendant.
    NO. CDC 92-207
    DECISION
    Done in open Court this 13th day of October, 1994.
    SIGNED this 22nd day of November, 1994.
   On January 5, 1993, the defendant was sentenced to serve ten (10) years in the Montana State Prison for Aggravated Assault, a Felony. However, the execution of the last six (6) years is hereby suspended. It is ordered that the defendant serve four (4) years in the Montana State Prison for Aggravated Assault, a Felony. It is also ordered that the defendant is sentenced to serve two (2) years in the Montana State Prison for the use of a dangerous weapon while engaged in the commission of the aggravated assault. Said two (2) years is to run consecutively to the sentenced imposed for the Aggravated Assault, a Felony. The court intends by this sentence that the defendant shall serve six (6) years in the Montana State Prison and shall be on a suspended sentence for six (6) years following his release from the Montana State Prison. While on probation the defendant must follow the conditions as stated in the January 5,1993 judgment, plus the defendant must pay the mandatory $20.00 surcharge.

On October 13,1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Brant light, Attorney from Great Falls. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Brant Light, Attorney from Great Falls, for his assistance to the defendant and to this Court.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff vs. REBECCA ANN FOX, Defendant.
    NO. 2160
    DECISION
    DATED this 21st day of December, 1994.
   On April 5, 1994, the defendant was sentenced to the Montana State Prison, Women’s Correction Center, for a term of five (5) years for the offense of Theft, a Felony That defendant is credited with 21 days jail time credit on this sentence for the time she served from the date of her arrest to the date of her sentencing. That during defendant’s incarceration at the Women’s Correction Center she shall: a. Diligently apply herself to obtaining her GED. b. Complete an extensive chemical dependency program, and follow through with all recommendations thereof. Defendant will not be considered for parole until she has completed said chemical dependency program. After the defendant has been paroled from the Montana Women’s Correctional Center she shall be under the supervision and control of the Montana Department of Corrections for the remainder of this sentence, and she shall be subject to terms and conditions, as listed in the April 5,1994 Judgment.

On December 9,1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Jeffrey M. Sherlock, Members.

The Sentence Review Board wishes to thank Rebecca A. Fox for representing herself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. CELESTE ANNE WATSON, Defendant.
    NO. DC 93-228
    DECISION
    DATED this 21st day of December, 1994.
   On March 9, 1994, the defendant was sentenced to the Montana Department of Institutions, to be placed in a correctional facility for women, to be designated by the Department, for the term of Twenty (20) years for the offense of Mitigated Deliberate Homicide. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, from May 15,1993 through March 3,1994 for 292 days. It is further ordered that because the defendant, while engaged in the commission of the offense of Mitigated Deliberate Homicide, knowingly used a weapon, a knife; she is hereby sentenced to the term of five (5) years in a correctional facility for women, to be designated by the Department. This term of imprisonment shall be served consecutively with the term imposed for the commission of the crime of Mitigated Deliberate Homicide. IT IS FURTHER ORDERED that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for this conviction pursuant to statute 46-18-236, Montana Code Annotated. The Clerk of District Court is hereby ordered to deliver the said sum of Twenty Dollars ($20.00) to the Treasurer of this County. Now Therefore, it is ordered that the execution of THE LAST EIGHT (8) YEARS of said prison sentence this day imposed on said defendant, as hereinabove set forth, be, and the same hereby IS SUSPENDED, and said defendant is hereby placed on probation for THE LAST EIGHT (8) YEARS of said period of TWENTY (20) YEARS, and the Court retains jurisdiction of said defendant in the above-entitled cause (during the entire term of said imprisonment above-mentioned, and THE LAST EIGHT (8) YEARS of said prison sentence is suspended upon the conditions as stated in the March 9, 1994 sentencing order).

On December 9,1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to request a continuance.

After careful consideration, it is the unanimous decision of the Sentence Review Division that a continuance be granted.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Jeffrey M. Sherlock, Members.


text:
    STATE OF MONTANA, Plaintiff, vs. FAYE R. SLICE, Defendant.
    NO. 7581
    DECISION
    DATED this 21st day of December, 1994.
   On November 7,1994, the court found the defendant in violation of the conditions of her suspended sentences and the Court now having been fully advised as to the facts of the case, It is the judgment of the Court that ten (10) years of defendant’s thirty-five (35) year suspended sentence is hereby revoked and that the defendant be and she is hereby sentenced to a term of ten (10) years in the Women’s Correctional Facility at Billings, Montana plus other conditions as listed in the November 7,1994 Judgment. The defendant shall receive credit in the amount of seventy-seven (77) days jail time which she has previously served.

On December 9,1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court. The Sentence Review Division may only consider that which was presented before the sentencing court. If the pre-sentence investigation is incomplete or in error, then that matter needs to be addressed by post-conviction relief or taken to the parole board.

Hon. 6. Todd Baugh, Chairman, Hon. John Warner and Hon. Jeffrey M. Sherlock, Members

The Sentence Review Board wishes to thank Faye R. Slice for representing herself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. FAYE R. SLICE, Defendant.
    NO. DC 94-300
    DECISION
   On September 16, 1994, the defendant was committed to the Director of the Department of Corrections and Human Services to be placed in an appropriate community based program, facility or a State Correctional Institution, for custody, care and treatment for the term of five (5) years for the offense of Deceptive Practices (Felony). The defendant shall make restitution in the amount of four thousand six hundred sixty-six dollars and 84/100 ($4,666.84). Said restitution shall be made payable in monthly payments on a schedule to be supervised and regulated by the Adult Probation and Parole Field Services and to be made payable to the Clerk of Court, Billings, Montana. The defendant shall secure and maintain full-time, legitimate employment and defendant shall participate in educational or vocational training programs as directed by her Supervising Officer and shall not terminate such programs without prior approval from her supervising officer. The defendant shall not frequent any gambling establishment or shall she enter into any game of chance. The defendant is further notified that the law imposes upon her the duty to pay a supervisory fee of One Hundred Twenty dollars ($120.00) a year prorated at Ten Dollars ($10.00) a month for the number of months that she is hereunder Supervision. This fee is payable to the Clerk of Court. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for this conviction.

DATED this 21st day of December, 1994.

On December 9,1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court. The Sentence Review Division may only consider that which was presented before the sentencing court. If the pre-sentence investigation is incomplete or in error, then that matter needs to be addressed by post-conviction relief or taken to the parole board.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Jeffrey M. Sherlock, Members.


author: JUSTICE NELSON

text:
    S.E.A. TRUCKING, Petitioner and Appellant, v. THE STATE OF MONTANA, by and through the Department of Labor and the Board of Labor Appeals, and THE MONTANA DEPARTMENT OF LABOR AND INDUSTRY, Respondents and Respondents.
    No. 93-606.
    Submitted on Briefs August 25, 1994.
    Decided December 22, 1994.
    51 St.Rep. 1479.
    269 Mont. 108.
    887 P.2d 236.

      For Appellant: Patrick G. Frank and W. Carl Mendenhall, Worden, Thane & Haines, Missoula.
    For Respondent: Daniel B. McGregor, Montana Department of Labor & Industry, Helena.
    For Amicus State Compensation Mutual Insurance Fund: Stephen M. Frankino, Hughes, Kellner, Sullivan & Alke, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from a Fourth Judicial District Court, Missoula County, order on a petition for judicial review, affirming the Board of Labor Appeals’ decision that SEA’s base of operations has been in Missoula, Montana, since June of 1988, and hence, SEA should have been reporting its employees’ wages to the State of Montana for the purpose of unemployment insurance. We affirm.

The sole issue on appeal is whether the District Court correctly affirmed the Board of Labor Appeals’ decision that SEA’s base of operations was in Missoula, Montana, and therefore, the corporation should have been reporting its employees’ wages and paying unemployment insurance to the State of Montana.

FACTUAL AND PROCEDURAL BACKGROUND

SEA, a motor carrier, was incorporated in July of 1988 in the State of Wyoming. Robert Evers (Evers), of Casper, Wyoming, owned 51% of the corporation and Stan Spencer (Spencer), of Missoula, Montana, owned 49% of the corporation. SEA, a non-licensed carrier leased 20 over-the-road hauling trucks from Allstate, a Minnesota company, and then re-leased the trucks to Bitterroot International Systems, Inc. (Bitterroot), a motor carrier solely owned by Spencer. Bitterroot is a federally licensed motor carrier with its headquarters in Missoula, Montana. SEA leased exclusively to Bitterroot but Bitterroot had lease agreements with other individual carriers in addition to SEA.

In July and August of 1990, because of a concern that proper unemployment insurance coverage was not being provided to SEA employees, SEA was audited by the Unemployment Insurance Division of the Department of Labor and Industry (DOI) of the State of Montana to determine whether drivers and their wages should be reported to the state of Wyoming, as SEA claims, or the state of Montana. On September 7, 1990, the Department determined that the wages of SEA’s drivers should have been reported in Montana under Bitterroot’s account because the DOLI had determined that SEA drivers were Montana workers employed by Bitterroot. SEA requested a redetermination of the decision, and on December 10, 1990, the initial determination was sustained.

SEA appealed this determination to the Department’s Hearing Examiner who heard the case on May 21, 1991, and on January 29, 1992, issued his decision reversing the initial determination that SEA’s drivers should have been reported as Bitterroot employees, but he sustained the determination that SEA should have been reporting their drivers’ wages to Montana, rather than Wyoming.

This decision was appealed to the Department’s Board of Labor Appeals (Board), and on March 30, 1992, the Board adopted the Hearing Examiner’s Findings and Conclusions. SEA sought judicial reviéw in the Fourth Judicial District Court of the Board’s decision. The District Court affirmed the decision of the Board in,an Opinion and Order on the Petition for Judicial Review on October 22, 1993. In affirming the Board’s affirmance of the Hearing Examiner’s Findings of Fact, the District Court particularly addressed and subsequently modified certain findings which SEA contended were either irrelevant or not supported by the evidence. These findings, as amended by the District Court, state:

4. SEArented a small administrative office/shop facility in Casper, Wyoming where Evers and his secretary worked. The firm also rented space from the Bitterroot International Systems Complex in Missoula. ... All trucks were dispatched ... in Missoula. SEA assigned a manager to the Missoula terminal to supervise ... the drivers.... The Missoula manager was able to conveniently confer with Spencer since their offices were located in the same building.
5. The terminal manager advertised job openings, interviewed and hired the drivers out of Missoula. Due to the geographical location of the Missoula terminal, nearly all of the drivers were Montana residents. According to the 1989 W-2 forms issued by SEA, 146 out of 160 drivers on the payroll were Montana residents with Montana drivers licenses.
6. SEA processed its payroll records in its Montana facility. ... While business files were kept at the Casper office, most, if not all, such data was a duplication of records compiled and maintained in the Missoula terminal.

SEA now requests that this Court review the decision of the Hearing Examiner and the subsequent reviews of that decision, including that of the District Court.

STANDARD OF REVIEW

The correct standard of review in the instant case is set out in § 39-51-2410(5) and (6), MCA, and provides:

(5) In any judicial proceeding under 39-51-2406 through 39-51-2410, the findings of the board as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive and the jurisdiction of said court shall be confined to questions of law. ...
(6) An appeal may be taken from the decision of the district court to the supreme court of Montana in the same manner, but not inconsistent with the provisions of this chapter, as is provided in civil cases. ...

We have stated that:

‘Supported by the evidence’ means supported by substantial evidence, which is ‘something more than a scintilla of evidence, but may be less than a preponderance of the evidence.’

Potter v. Dept. of Labor and Industry (1993), 258 Mont. 476, 479, 853 P.2d 1207, 1209. (Citation omitted.) Moreover, in Potter, we stated that “the District Court must limit its review of the Board’s findings to a consideration of whether they are supported by substantial evidence, and the same standard applies to this Court. With regard to questions of law, however, our task is to determine whether the agency’s interpretation of the law is correct.” Potter, 853 P.2d at 1209. (Citations omitted.)

Further, we have stated that:

“The court is not permitted to balance conflicting evidence in support of and in opposition to the [Board’s] findings of fact, nor to determine which is the more substantial evidence, nor to consider where the preponderance of evidence lies; for to do so would be to substitute the Court’s view of the evidence for that of the [Board,] and effectively nullify the conclusive character of the [Board’s] findings of fact as provided by statute.”
Thus, the reviewing court must decide whether substantial evidence supports the Board’s decision and not whether on the same evidence it would have arrived at the same conclusion.

Ward v. Johnson (1990), 242 Mont. 225, 228, 790 P.2d 483, 485. (Citations omitted.)

DISCUSSION ISSUES OF FACT

SEA argues that substantial evidence does not exist to support certain of the agency’s findings which supported the conclusion that SEA’s base of operations was in Montana. After a careful review of the transcript, we conclude that substantial evidence supports the Hearing Examiner’s Findings of Fact as amended by the District Court.

There was testimony presented to the effect that SEA had office space in Missoula, trucks were dispatched out of Missoula, and all drivers were supervised by the manager of SEA, Jhan Sorensen, who worked out of the Missoula office. Moreover, testimony was presented that it was the Missoula manager who maintained day-to-day contact and communication with the drivers from his Missoula office; he also prepared payroll in Missoula. Further, the majority of the SEA workforce were Montana residents.

Testimony also demonstrated that the interview process for the hiring of drivers was a job shared between Evers in Wyoming and Sorensen in Montana although the positions were advertised out of Missoula, and the final hiring of drivers was accomplished in Montana. All testing of drivers occurred solely in Montana through Bitterroot by virtue of its Interstate Commerce Commission license. Finally, there was testimony that 40% of the maintenance on trucks occurred in Montana, according to Allstate’s instructions. Although SEA argued that many activities were performed in Missoula because the agencies with which SEA contracts, Bitterroot and Allstate, required that these activities occur there, that does not change the fact that these activities did occur in Montana and they are activities basic to the operation of a trucking company. Clearly, substantial evidence supports the findings of fact at issue here. Furthermore, as stated above:

“The court is not permitted to balance conflicting evidence in support of and in opposition to the [Board’s] findings of fact, nor to determine which is the more substantial evidence, nor to consider where the preponderance of evidence lies; for to do so would be to substitute the Court’s view of the evidence for that of the [Board,] and effectively nullify the conclusive character of the [Board’s] findings of fact as provided by statute.”
Thus, the reviewing court must decide whether substantial evidence supports the Board’s decision and not whether on the same evidence it would have arrived at the same conclusion.

Ward, 790 P.2d at 485. (Citations omitted.)

We conclude that substantial evidence supports the Findings of Fact made by the Hearing Examiner and modified by the District Court. We hold that the District Court did not err in affirming the Hearing Examiner’s Findings of Fact which were challenged by the Appellant.

ISSUES OF LAW

The Findings of Fact also support the conclusion that SEA’s base of operations was in Missoula, Montana, from the inception of the corporation, and therefore, the employees’ wages should have been reported to the State of Montana’s Unemployment Insurance Division. Both parties agree that the statute to be applied in determining whether SEA employees’ wages should be reported to the State of Montana is § 39-51-203, MCA, and particularly subsection(2)(a)(ii)(A), which provides:

(2)(a) The term “employment” includes an individual’s entire service performed within or both within and without this state if:
(ii) the service is not localized in any state but some of the service is performed in this state and:
(A) the base of operations or, if there is no base of operations, then the place from which such service is directed or controlled, is in this state. ...

The portion of the statute which is at issue in the instant case is subsection (ii)(A), which premises the place of employment in Montana on a company’s “base of operations.” If SEA’s “base of operations” is in Montana, then the place of employment is in Montana, and the employees’ wages should be reported to and unemployment insurance premiums paid to the Unemployment Insurance Division in the State of Montana. In order to determine whether SEA employees’ wages should have been reported to Montana and not Wyoming, the company’s base of operations would have to be in Missoula, Montana.

The DOLI used the following definition of “base of operations” in its determination. “Base of operations,” which, as stated above, is the essential element at issue in the case, was defined as:

... the place of more or less permanent nature from which the employee starts his work and to which he customarily returns to perform the terms of his contract with his employer, to seek other employment or to apply for unemployment benefits.

The Department states that this definition was taken from a U.S. Department of Labor Unemployment Insurance Program Letter # 291, dated July 1, 1952, which purports to explain “employment for employers employing in several states.” The letter contains four tests for determining whether an employee is covered by Montana unemployment law, one of the tests being the “base of operations” test which is at issue here. We note that the letter also states that the tests apply to the employees, not the employer.

The District Court applied a definition for “base of operations,” from a Montana regulation, which is similar to the DOLI’s definition and provides:

[t]he term “base of operations” is the place of more or less permanent nature from which the employee starts his work and to which he customarily returns in order to receive instructions from the taxpayer or communications from his customers or other persons, to replenish stock or other materials, repair equipment, or to perform any other function necessary to exercise his trade or profession at some other point or points. ...

Rule 42.26.202(7), ARM. Rule 42.26.202(7), ARM, is a Montana Department of Revenue regulation promulgated to implement the Multistate Tax Compact. The District Court correctly pointed out that § 15-1-601, Art. IV (14), MCA, ([part of] the Multistate Tax Compact) “uses the exact same language as § 39-51-203(2)(a) to define when compensation is considered paid in Montana.” The court also stated, correctly, that “[t]he Annotations to the Multistate Tax Compact state that Article IV is based on the Model Unemployment Compensation Act, upon which the Montana Unemployment Compensation Act is also based. [See Commission Notes for § 15-1-601, Article IV (14), MCA, Annotations at 30-31.] Thus the language of the Multistate Tax Compact and of § 39-51-203(2)(a) have the same source and the same meaning.” We agree that these sections of the Multistate Tax Compact and the pertinent section of the Montana Unemployment Compensation Act are the same and provide a sound justification for approving of the use of the particular definition of “base of operations” used by the DOLI and cited above. We therefore conclude that the definition of “base of operations” used by the DOLI is a proper and acceptable definition of the term, and we approve of its use.

We also agree that the test to determine the place of employment applies to the employee, not the employer. As stated above, the letter from the U.S. Department of Labor states that the “base of operations” test should be determined from the standpoint of the employee. Moreover, the Montana regulation cited above defines “base of operations” from the standpoint of the employee and case law from other jurisdictions concerning the same issue also focuses upon the employee in applying the base of operations test. See Walco Leasing v. Bilich (Minn. App. 1986), 383 N.W.2d 374; Iverson Const. v. Dept. of Emp. Services (Iowa 1989), 449 N.W.2d 356. There is substantial support for the Hearing Examiner’s determination that the “base of operations” test should focus on the employee, and we conclude that the Hearing Examiner and the Board placed the proper focus of the test on the employee, not the employer as suggested by SEA.

Walco, cited above, also provides guidance in determining the meaning of the term “base of operations” because it enumerates factors to be considered in determining whether a given location is a company’s base of operations. Walco states:

Factors such as the place of beginning the service for which compensation is being paid, place of resupply of materials needed in the service, if any, place of repair of the machinery used in the service, the source of orders or directions for the services rendered and the permanency of any of these places if they exist should be considered in determining if there is a base of operations and where it is located.

Walco, 383 N.W.2d at 377, citing Heller v. International Transport, Inc. (1971), 481 P.2d 602. In the instant case, drivers were dispatched out of Missoula and if they needed instructions, direction or information, they spoke to Sorensen, SEA’s manager. Moreover, payroll was prepared in Missoula and many repairs were made in Montana. Clearly, many activities basic to the operation of a trucking company and listed in Walco as determinative factors in determining the “base of operations” occurred in Montana.

Applying the “base of operations” definition used by the DOLI, and the Walco factors, we conclude that substantial evidence existed to support the conclusion that SEA’s base of operations was in Montana since 1988, and not in Wyoming. We hold that the District Court did not err in affirming the Board’s affirmance of the Hearing Examiner’s conclusion that SEA’s base of operations was in Missoula, Montana, and therefore, its employees’wages should have been reported to and unemployment insurance premiums paid to Montana, not Wyoming.

AFFIRMED.

JUSTICES HARRISON, TRIEWEILER, HUNT and WEBER concur.


author: JUSTICE GRAY JUSTICE HUNT,

text:
    IN RE THE MATTER OF KALFELL RANCH, INC., a Corporation. PRAIRIE COUNTY COOPERATIVE STATE GRAZING DISTRICT, Petitioner, Appellant and Cross-Respondent, v. KALFELL RANCH, INC., a Corporation, Respondent, Respondent and Cross-Appellant.
    No. 94-347.
    Submitted on Briefs October 28, 1994.
    Decided December 22, 1994.
    51 St.Rep. 1488.
    269 Mont. 117.
    887 P.2d 241.

      For Appellant: Thomas M. Monaghan; Lucas & Monaghan, Miles City.
    For Respondent: Lorraine A. Schneider; Simonton, Howe & Schneider, Glendive; Robert R. Throssell, Special Attorney General; Keller, Reynolds, Drake, Johnson & Gillespie, Helena, (for Montana Board of Natural Resources and Conservation)
   JUSTICE GRAY

delivered the Opinion of the Court.

The Prairie County Cooperative State Grazing District (District) appeals from a judgment entered by the Seventh Judicial District Court, Prairie County, affirming a decision by the Board of Natural Resources and Conservation (BNRC) which reversed, in part, a decision of the District. Kalfell Ranch, Inc. (Kalfell) cross-appeals from the court’s determination that the BNRC’s failure to address certain of its claims constituted an implied denial of the claims and the court’s affirmance of that denial on the merits. We affirm on both the appeal and the cross-appeal.

The District raises the following issue on appeal:

Is § 76-16-414, MCA, rather than § 76-16-403, MCA, applicable in this case?

Kalfell raises the following issue on cross-appeal:

Whether the District Court erred in determining that, by failing to address claims raised by Kalfell, the BNRC in effect denied them and in denying them on the merits?

FACTUAL AND PROCEDURAL BACKGROUND

The District is a cooperative state grazing district authorized and organized under Title 76, Chapter 16, of the Montana Code Annotated, known as the Montana Grass Conservation Act (Act). It was organized in the 1930s and has operated continuously since that time. The District includes lands owned by private entities (such as the Burlington Northern Railway or its subsidiaries); state lands (such as school trust lands); and federal lands under the jurisdiction of the Bureau of Land Management (BLM). Large portions of the lands within the District are controlled by the BLM, although leased to the District.

Kalfell, a ranch corporation, is a member of the District. Members receive grazing preferences under the provisions and procedures of the Act. Grazing preferences are rights to obtain grazing permits from a state grazing district; they are measured in animal unit months (AUMs). A permit is evidence of grazing privileges granted by such a district.

Originally, most of the livestock grazing within the District was done in common pastures. Over time, particularly in the 1950s and 1960s and in large part as a result of BLM actions in administering lands under its control, individual fenced units came into being on which District members grazed their livestock. Leases of federal lands were granted in the names of the permittee and the District. Leases of state lands ultimately were in the names of the permittees. Fencing agreements were executed between the various permittees and BLM. Thus, over the years, many of the lands within the District changed from common use to individual use; a limited number of common pastures remained. Some permittees had lands within their individual pasture which consisted primarily of federal lands; others had portions of federal, state and private lands.

The lands involved in this case were privately owned by Glacier Park Company (Glacier), a subsidiary of Burlington Northern Railway, and leased by the District. Twenty-six District permittees exercised grazing preferences on the Glacier lands. In 1989, Glacier decided to sell these lands and cancelled its leases with the District. The District elected not to purchase the lands. It asked Glacier to first offer the lands for sale to the permittees within whose fenced units the lands were located; if the permittee did not purchase it, the land should be offered next to a neighbor of the permittee and, finally, the land should be offered for sale to the general public.

Glacier acquiesced in the District’s request. Twenty-five of the twenty-six permittees exercising grazing preferences on the Glacier lands purchased the land within their respective fenced unit. Kalfell was unable to purchase the approximately six and one-half sections of Glacier land located within its pastures. Glacier subsequently sold that land to a neighbor of Kalfell.

Because of the District’s loss of the six and one-half sections of Glacier land on which 7,828 grazing preferences — out of a total of 124,890 — were exercised, the District could not provide the affected permittees with sufficient land upon which to exercise the entirety of their grazing preferences. As a result, the permittees could not exercise some of their grazing preferences; Kalfell was unable to use 966 of its grazing preferences or AUMs.

The District’s board of directors tendered monetary compensation to the twenty-six affected permittees, purportedly pursuant to § 76-16-414(2), MCA. The compensation per AUM was approximately $5.72, and the total compensation offered to each permittee varied, depending on the number of AUMs each could no longer use.

Twenty-five of the twenty-six affected permittees accepted the District’s offer of compensation. Kalfell, which was unable to use the second highest number of AUMs, did not accept the $5,526.97 tendered by the District’s board of directors.

Kalfell requested a hearing before the District. It contended that the loss of the Glacier lands must be shared by all members of the District and not borne solely by the twenty-six directly affected members. It argued that § 76-16-403, MCA, providing for a proportionate reduction of all members’ grazing privileges, was the applicable statute and that the District’s board of directors had erred in proceeding under § 76-16-414, MCA. It also alleged in pertinent part that the board of directors breached its fiduciary duty in failing to purchase the Glacier land, failed to enforce statutes and rules which prohibit competitive bidding, and failed to collect the value of, and compensate it for, improvements made to Glacier lands.

After a hearing in which testimony and exhibits were received, the District issued its Decision of Board on August 11, 1992. It determined that the board of directors had acted properly in applying § 76-16-414, MCA, and that the compensation offered to Kalfell was the appropriate remedy. It rejected Kalfell’s claims that the board of directors was obligated to purchase the Glacier (or substitute) land and to collect the value of, and compensate Kalfell for, improvements to the Glacier land. It indirectly addressed Kalfell’s claim that the board of directors failed to follow statutes and rules which prohibit competitive bidding by focusing on the undisputed fact that the transactions by which Glacier disposed of its lands were private sales over which the District had no control.

Kalfell appealed to the BNRC pursuant to § 76-16-109, MCA. Pursuant to that statute, the BNRC heard oral argument but neither requested nor received additional testimony or exhibits. The BNRC’s Opinion and Order reversed the District’s conclusion that § 76-16-414, MCA, was applicable. The BNRC concluded that, when the District was unable to meet the needs of those holding grazing preferences because of the sale of the Glacier lands, it was obligated by § 76-16-403, MCA, to proportionately reduce all grazing preferences. The BNRC rejected Kalfell’s claim that the District was required to purchase either the Glacier land or other grazing land sufficient to meet the assigned grazing preferences; it did not address Kalfell’s claims relating to competitive bidding and compensation for its improvements to the Glacier land.

The District petitioned, and Kalfell cross-petitioned, for judicial review of the BNRC’s Opinion and Order. The District Court upheld the BNRC’s conclusion that § 76-16-403, MCA, is applicable. It further determined that the Board’s failure to address Kalfell’s other claims constituted an implied denial of those issues, a denial with which the court agreed on the merits. Both parties appeal from the District Court’s judgment.

STANDARD OF REVIEW

Section 2-4-704, MCA, sets forth the statutory standards for judicial review of an administrative agency’s decision. We have interpreted those statutory standards to mean that an agency’s findings of fact are subject to review to determine whether they are clearly erroneous. GBN, Inc. v. Montana Dep’t of Revenue (1991), 249 Mont. 261, 264, 815 P.2d 595, 596 (citation omitted). An agency’s conclusions of law are reviewed to determine whether they are correct. GBN, Inc., 815 P.2d at 597.

We recently have clarified that, in multi-level proceedings and reviews under the Montana Administrative Procedure Act (MAPA), the “agency” decision to be scrutinized on judicial review is that of the agency which issued the initial decision. See Baldridge v. Board of Trustees (1994), 264 Mont. 199, 870 P.2d 711. Here, that agency decision is the District’s Decision of Board dated August 11, 1992.

Is § 76-16-414, MCA, rather than § 76-16-403, MCA, applicable in this case?

The District contends that its original decision that § 76-16-414(2), MCA, applies to the facts and circumstances of this case was correct as a matter of law and that the BNRC and the District Court erred in applying § 76-16-403, MCA. Section 76-16-414, MCA, provides in its entirety as follows:

76-16-414. Equalization of district assets. (1) Whenever a state district shall possess reserves, the values of which are greater than its liabilities, and the state district shall determine that a part of such reserves is in excess of its reasonable needs to operate the district, such state district may refund to the permittee members their proportionate share of such reserves as determined at the last annual accounting.
(2) Whenever a state district shall possess reserves and physical assets, the values of which are greater than its liabilities, and a permittee member shall lose his grazing preference, he shall be entitled to receive his proportionate share of the value of such excess from the state district, as determined by the annual accounting of the state district. The state district may set off the amount of any claim it may have against such former member.
(3) Whenever a new member shall receive a grazing preference, he shall, as a condition of receiving such preference, pay to the state district the value of the equitable interest in the physical assets and reserve fund which accrues to him by virtue of such membership. Such value shall be determined at the time of receiving such preference and upon the basis of the determination of value of such physical assets and reserves made at the last annual accounting.

Section 76-16-403, MCA, provides:

76-16-403. Procedure if reduction in grazing privileges necessary. If reductions in grazing privileges become necessary, operators with temporary permits will be reduced first on a proportionate basis. When the extent of reduction of privileges exceeds that of temporary permits, then the rights of operators with both dependent commensurate property and commensurate property shall be reduced together on a proportionate basis.

Our role in construing statutes is clear; we must “ascertain and declare what is in terms or in substance contained therein ...;” we may not insert what has been omitted or omit what has been inserted. Section 1-2-101, MCA; Curtis v. Dist. Court of 21st Jud. Dist. (Mont. 1994), 879 P.2d 1164, 1166, 51 St.Rep. 776, 778. The intent of the legislature is to be pursued and effectuated. Section 1-2-102, MCA; Curtis, 879 P.2d at 1166; Minervino v. University of Montana (1993), 258 Mont. 493, 496, 853 P.2d 1242, 1244. We look first to the plain meaning of the words used in the statute. Stansbury v. Lin (1993), 257 Mont. 245, 249, 848 P.2d 509, 511. If the legislative intent can be determined from the plain language of the words used, we may not go further and apply other means of interpretation. Curtis, 879 P.2d at 1166 (citation omitted). It is only when the intent cannot be determined from the language of the statute that we will examine the legislative history. State ex rel. Roberts v. Public Service Com’n (1990), 242 Mont. 242, 246, 790 P.2d 489, 492 (citations omitted).

The District contends that § 76-16-414(2), MCA, is the specific remedy provided by the Montana legislature for the situation which occurred upon the District’s loss of control of the Glacier lands. The District maintains that Kalfell ‘lost” its grazing preference and, therefore, was entitled to only a proportionate share of the District’s assets, as offered by the District, pursuant to § 76-16-414(2), MCA. It cites no statutory or case authority in support of its contention that preferences were ‘lost;” furthermore, the plain language of § 76-16-414, MCA, does not support the District’s position.

Kalfell did not ‘lose” any grazing preferences or permits via Glacier’s sale of the lands at issue here; it merely became unable to exercise its preferences because of the District’s loss of the Glacier lands. Grazing preferences — rights to obtain grazing permits — are statutory creations which are determined and distributed pursuant to statutory requirements. Sections 76-16-103(7) and 76-16-401, MCA. They can be transferred pursuant to statute. See, e.g., § 76-16-406, MCA. Grazing preferences also may be revoked pursuant to statute. Section 76-16-412, MCA. No statute provides for the evaporation, extinguishment, or loss of a grazing preference as a result of the loss of control of land by a grazing district. As a result, we reject the District’s underlying premise that Kalfell lost grazing preferences upon the sale of the Glacier lands.

Moreover, the District’s argument ignores the final sentence of § 76-16-414(2), MCA. The inclusion there of the term “such former member” clarifies that the remedy provided therein is available only when a member loses the entirety of its grazing preference(s) and, as a result, is no longer a member of the District. Notwithstanding the parties’ dispute over whether Kalfell actually ‘lost” any of its grazing preferences, it is undisputed that Kalfell did not lose the entirety of its grazing preferences and that it remains a permittee member of the District. We conclude that the language of § 76-16-414(2), MCA, is clear, unambiguous and plain in expressing the legislature’s intent; it permits of no additional interpretation by this Court. See Curtis, 879 P.2d at 1166.

In addition, reading subsection (2) in the context of the entirety of § 76-16-414, MCA, further clarifies that the legislature’s purpose in enacting the statute was, as its heading denotes, to equalize a district’s assets under three distinct scenarios. Subsection (1) provides the method of equalizing assets when a district determines it has reserves in excess of its reasonable needs; subsection (2) provides for equalization when a permittee member loses its grazing preference^) altogether and, as a result, becomes a former member; and subsection (3) provides for equalization when a new member receives a grazing preference. Section 76-16-414, MCA. None of those scenarios is before us here.

Nor can we accept the District’s argument that its, and members’, agreements with the BLM — by which BLM lands within the District were individually allotted and individual units were fenced— changed the fundamental nature of the grazing preferences assigned and managed by it pursuant to state law. In essence, the District contends that its involvement with federal agencies under the federal Taylor Grazing Act (43 U.S.C. §§ 315 et seq.) allows it to ignore or violate Montana statutes by ceding control of the District to the BLM. It is undisputed that the District was established pursuant to §§ 76-16-201 et seq., MCA. While the Act is intended to provide a means of cooperation with federal agencies involved with the Taylor Grazing Act, the District cannot exercise powers inconsistent with the Montana Act in doing so. See §§ 76-16-102 and 76-16-204(2)(f), MCA. We conclude that the District erred in concluding that § 76-16-414, MCA, is applicable to the facts before us.

Section 76-16-403, MCA, on the other hand, is clearly applicable here by its terms. There is no question but that the District’s loss of control over the Glacier lands impacted on assigned grazing preferences. Some 50,000 fewer acres were available on which members could exercise their grazing preferences and the District did not purchase or, apparently, lease new lands to enable members to fully exercise their preferences. Thus, the impact on members’ ability to exercise their grazing preferences resulted from the inadequacy of lands under the District’s control, not from the ‘loss” of any grazing preferences. Under such a circumstance, “reductions in grazing privileges become necessary,” as specifically contemplated in § 76-16-403, MCA. The statute provides for reducing grazing privileges on a proportionate basis. We conclude that the District erred in concluding that § 76-16-403, MCA, is not applicable here.

The District also argues that application of § 76-16-403, MCA, produces an impossible result. It asserts that, because of the change in grazing characteristics in the District from large, unfenced common pastures to individual units, it could not have apportioned the ‘loss” of the 7,828 grazing preferences resulting from the loss of control of the Glacier lands at the time the lands were sold and cannot now apportion the 966 preferences Kalfell is unable to exercise.

The means by which the District can, or must, comply with clearly applicable statutes is not an issue before us in this case. Boiled down to its essence, the District’s argument is that, because it did not seek amendments to the Act as grazing characteristics changed over the years, this Court should relieve it from a difficult situation by ignoring the rules of statutory construction regarding plain and unambiguous statutory language. Suffice it to say that we cannot alter the clear language of applicable statutes; only the legislature can do so.

Having concluded that the District erred as a matter of law in applying § 76-16-414(2), MCA, we hold that the BNRC and the District Court did not err in concluding that § 76-16-403, MCA, rather than § 76-16-414, MCA, applies in this case.

Did the District Court err in determining that, by failing to address claims raised by Kalfell, the BNRC in effect denied them and in denying them on the merits?

There is no question but that procedural requirements were not strictly met in this case by either the District or the BNRC. The District’s Decision of Board did not strictly comply with the requirements of § 2-4-623, MCA, which may stem from the District’s unfamiliarity with conducting proceedings under the MAPA. We caution the District — and other grazing districts which may conduct such proceedings — that our willingness to overlook nondispositive irregularities in the format and content of its Decision of Board in this case, partly because Kalfell did not raise the issue, should not be interpreted to mean that we will countenance such irregularities in future cases reaching us under the Grass Conservation Act. Like all entities and proceedings to which the MAPA applies, grazing districts will be held to applicable statutory requirements.

Similarly, the BNRC did not rule on all claims appealed to it by Kalfell; these omissions, like those of the District, are not dispositive here. We encourage the BNRC, however, to more carefully review the record before it in future cases in order to properly consider and resolve all issues.

As set forth above, the decision we must scrutinize on appeal to this Courtis the District’s Decision of Board. In discussing this issue, then, we review the District’s determinations a) rejecting Kalfell’s claim that its board of directors violated a fiduciary duty in failing to purchase the Glacier lands; b) indirectly rejecting Kalfell’s claim that its board of directors failed to enforce statutes and rules which prohibit competitive bidding; and c) rejecting Kalfell’s claim for reimbursement for improvements it made to Glacier land. Because these determinations are, in essence, conclusions of law based on a largely undisputed record, we review the District’s conclusions to ascertain whether they are correct. GBN, Inc., 815 P.2d at 597.

a. Duty to Purchase

Kalfell claims that the District’s board of directors had an affirmative duty to purchase the Glacier lands, or substitute land, in order to enable the District’s members to exercise their grazing preferences in full. It argues that § 76-16-102, MCA, which states that one of the purposes for establishing the Act under which the District was formed is to provide for the stabilization of the livestock industry, and § 76-16-305(2), MCA, authorizing the District to purchase lands — taken together — mandate a conclusion that the District’s board of directors abused its discretion and violated its fiduciary duty in failing to purchase the Glacier lands or other land in order to provide sufficient land under the District’s control on which members could exercise their grazing preferences in full. We disagree.

The legislature’s stated purposes in enacting the Grass Conservation Act are broad statements of guiding principles; they do not require a grazing district to take specific actions. See § 76-16-102, MCA. Section 76-16-305(2), MCA, provides that a grazing district may purchase or lease lands when necessary to comply with the purposes of the Act; the authorizing language clearly is discretionary. Nothing in the statutory framework under which the District operates requires it to purchase such lands.

In addition, as discussed above, § 76-16-403, MCA, clearly contemplates the situation which arose here and provides a method for remedying a loss of land which results in the inability of members to exercise their full grazing preferences. Kalfell, having asserted the correct interpretation of § 76-16-403, MCA, in countering the District’s position regarding applicability of § 76-16-414, MCA, cannot now be allowed to ignore the clear language of that statute and argue, inconsistently, that the District’s board had an obligation to purchase land rather than to proportionately reduce members’ grazing preferences. We hold that the District did not err in concluding that its board of directors was not required to purchase either the Glacier lands or substitute land.

We note that the BNRC did address this issue by stating in its Opinion that ‘Nothing in statute requires the District to purchase grazing land.” Thus, on this issue, the BNRC and the District Court correctly determined, as a matter of law, that the District’s rejection of this claim by Kalfell was not error,

b. Statutes and Rules Prohibiting Competitive Bidding

Kalfell claims that the District’s board of directors failed to enforce both § 76-16-412(2), MCA, and the terms and conditions contained in its grazing permits by not revoking the preferences of Fluss Ranch, Inc. (Fluss), Kalfell’s neighbor, based on its prohibited competitive bidding in purchasing the Glacier land within Kalfell’s individual unit. The District obliquely addressed this claim by focusing on the undisputed fact that the sale of Glacier’s land to Fluss was a private sale over which it had no control.

Section 76-14-412(2), MCA, authorizes a grazing district to revoke preferences if a permittee violates any of the district’s rules. The District’s rules, printed on the grazing permits issued to its members, prohibit a permittee from entering into competitive bidding “against the district or any member thereof for the lease of grazing lands in the district which are within any member’s allotment.” The rules also allow the permit to be cancelled for violation of any of the rules or regulations of the District.

Taken together, § 76-14-412, MCA, and the District’s rules allow revocation of preferences or cancellation of permits for rules violations by a permittee; neither requires it. Where the language of a statute is plain and unambiguous, we must give that language full effect. Curtis, 879 P.2d at 1166. Here, decisions to revoke preferences or cancel permits are entirely discretionary with the District.

Moreover, the rule prohibiting competitive bidding is inapplicable here as a matter of law. Insofar as is relevant here, the rule prohibits competitive bidding against another member for the lease of grazing lands in the District which are within the other member’s allotment. Here, the sale of the Glacier land was clearly not a ‘lease” of that land to which the rule would apply. We hold that the District was correct as a matter of law in rejecting this claim by Kalfell.

We note that the BNRC did not address this issue. Again, we encourage the BNRC to more carefully review the record and issues before it in its decision-making process. A full analysis of this issue by the BNRC could conceivably have prevented an appeal, saving the parties time and expense,

c. Improvements

Kalfell asserted at the District, the BNRC and the District Court that it was entitled to the value of improvements it made to the Glacier land and that the District was obligated, pursuant to § 76-16-410, MCA, to collect the value of such improvements from Fluss on its behalf. The District rejected this claim, concluding that the statute did not apply. The BNRC did not address this issue in considering Kalfell’s appeal from the District’s Decision of Board.

We note that Kalfell’s presentation of this issue appears to have shifted somewhat on appeal to this Court. Kalfell now appears to assert only that it was an abuse of discretion for the District not to recover the value of the improvements “for the benefit of the District.” We address the issue as it originally was raised at, and rejected by, the District.

Section 76-16-410, MCA, states that subsequent owners of land must compensate a grazing district for the value of range improvements constructed with the consent of the owner upon lands leased by the district. Kalfell’s argument that, pursuant to the statute, the District was obligated to collect the value of the improvements from Fluss and pay it over to Kalfell — or add it to Kalfell’s equity in the District — is totally unsupported by the language of the statute. The statute speaks only to compensation of the grazing district, not to any obligation of a district to collect those funds for payment to a previous lessee.

Furthermore, the statute addresses only improvements in which a grazing district itself is involved. Here, Kalfell’s own testimony was that the District was not involved in its decision to make the improvements and, indeed, that it had not made any agreement with Glacier as to ownership of the improvements in the event Glacier sold the land. We conclude that § 76-16-410, MCA, is not applicable to the facts before us and, therefore, that neither the District nor the District Court erred in rejecting Kalfell’s claim based on that statute.

Affirmed.

JUSTICES HARRISON, NELSON and WEBER concur.

JUSTICE HUNT,

specially concurring.

I concur in the result of the majority opinion, but not in all that is said therein.


author: JUSTICE TRIEWEILER

text:
    COUNTRY ESTATES HOMEOWNERS ASSOCIATION, a Montana corporation, Petitioner and Respondent, v. GEORGE W. McMILLAN, ELOISE F. McMILLAN, and VANCE A. McMILLAN, Respondents and Appellants.
    No. 94-357.
    Submitted on Briefs December 8, 1994.
    Decided December 22, 1994.
    51 St.Rep. 1494.
    269 Mont. 131.
    887 P.2d 249.
    For Appellants: Richard R. Buley, Tipp & Buley, Missoula.
    For Respondent: E. Eugene Atherton, Attorney at Law, Kalispell.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Petitioner Country Estates Homeowners Association filed a petition for a writ of mandate on June 8, 1993, in the District Court for the Eleventh Judicial District in Flathead County. They requested that George, Eloise, and Vance McMillan (the McMillans), be ordered to comply with the restrictive covenants attached to real property owned by the McMillans, and that the McMillans be ordered to pay reasonable attorney fees. On December 1, 1993, the District Court held a hearing to consider the motion. On February 14, 1994, the District Court issued its final judgment and order in which it stated that the matter would be treated as one for injunctive relief, and in which it enjoined the McMillans from further violations of the restrictive covenants, and ordered them to remove the offending structure within 60 days, or complete construction within 60 days and landscape their lot. On February 24,1994, the McMillans filed a motion for a new trial or to amend the judgment. The court did not rule on the motion within 45 days, and as a result, it was deemed denied, pursuant to Rule 59(d), M.R.Civ.P. The McMillans appeal. We vacate the judgment of the District Court and remand for further proceedings.

The issue on appeal is:

Did the District Court err when it treated this matter as one for injunctive relief, rather than for a writ of mandate, without prior notice to the respondents?

FACTUAL BACKGROUND

The McMillans own Lot 2 of Country Estates Unit No. 1, which is subject to restrictive covenants that provide, in part, at paragraph 1(c), that “[a]ll construction shall be complete within one year from the date construction begins.” The covenants also provide, at paragraph 1(d), that “[a] 11 lots shall be landscaped to the paved street.”

On June 8, 1993, Country Estates filed a petition for a writ of mandate in which they requested that the McMillans be forced to comply with the restrictive covenants which attached to their property, and also requested attorney fees incurred in this matter. In her affidavit filed in support of the petition, Wendy Madison, the secretary of Country Estates, alleged that the McMillans have partially built a structure on their property, but have failed to complete it. Madison alleged that the McMillans have violated provisions of the restrictive covenants which require that all construction be completed within one year from when it is undertaken, and that all lots be landscaped to the paved street. In her affidavit, Madison stated that the McMillans’ structure has been incomplete for over ten years, and that they have not compléted any landscaping.

On December 1, 1993, the District Court held a hearing pursuant to Country Estates’ petition. Madison, and Janice Stout, a resident of Country Estates, testified.

Stout testified that the restrictive covenants which attach to properties in Country Estates were signed on October 18, 1979, prior to the date the McMillans purchased their property. She also testified that the McMillans started construction on their residence over four years ago and that neither the house nor the landscaping had been completed.

The McMillans presented no evidence at this hearing, but argued that a writ of mandate was not an appropriate remedy, based on the facts alleged — particularly the private nature of the dispute.

At the conclusion of the hearing, the District Court stated that although the requirements of the restrictive covenants had not been satisfied, it was concerned about whether a writ of mandate was the appropriate remedy. The court invited the parties to file briefs in connection with that question.

On February 14,1994, the District Court signed its final judgment in which it ordered that Country Estates’ pleadings be amended to state a claim for injunctive relief. The District Court further ordered that the McMillans were enjoined from further violations of the restrictive covenants and were ordered to complete construction of, or remove, the offending structure within 60 days, and landscape their lot on or before July 1, 1994. The District Court also awarded attorney fees and costs to Country Estates.

On February 24,1994, the McMillans filed a motion for a new trial or to amend the judgment. The motion was not ruled on within 45 days, and therefore, was deemed denied under Rule 59(d), M.R.Civ.P.

DISCUSSION

Did the District Court err when it treated this matter as one for injunctive relief, rather than for a writ of mandate, without prior notice to the respondents?

The standard of review of discretionary court rulings is whether the district court abused its discretion. Montana Rail Link v. Byard (1993), 260 Mont. 331, 337, 860 P.2d 121, 125.

We have held that “due process requires a reasonable notice as to give everyone interested their opportunity to be heard.” Shaw v. City of Kalispell (1959), 135 Mont. 284, 293, 340 P.2d 523, 528. In this case, the McMillans were given notice of a hearing to consider a petition for a writ of mandate. They were not given prior notice of a claim for injunctive relief.

“[Liberal construction and amendment of pleadings does not grant counsel carte blanche to advance new theories on an unsuspecting opponent.” McJunkin v. Kaufman and Broad Home Systems, Inc. (1987), 229 Mont. 432, 437, 748 P.2d 910, 913. In McJunkin, we cited Brothers v. Surplus Tractor Parts Corp. (1973), 161 Mont. 412, 417, 506 P.2d 1362, 1365, for the proposition that “ ‘[i]t is generally accepted that the appellant cannot recover beyond the case stated by him in his complaint. ... This Court believes that fair notice to the other party remains essential ....’ ” McJunkin, 748 P.2d at 913. We have also held that “ ‘pleadings will not be deemed amended to conform to the evidence because of “implied consent” where the circumstances were such that the other party was not put on notice that a new issue was being raised.’ ” In re Custody of C.J.K. (1993), 258 Mont. 525, 528, 855 P.2d 90, 91 (citing Gallatin Trust and Savings Bank v. Darrah (1968), 152 Mont. 256, 261-62, 448 P.2d 734, 737).

In this case, an entirely new and dissimilar theory formed the basis of the District Court’s judgment without prior notice to the McMillans. We conclude that the District Court abused its discretion by treating petitioner’s claim as one for injunctive relief under these circumstances.

The judgment of the District Court is vacated and this matter is remanded for a hearing after proper notice is given to the McMillans regarding the nature of the relief being sought.

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


author: JUSTICE WEBER JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DALE MANTZ, Defendant and Appellant.
    No. 94-250.
    Submitted on Briefs October 28, 1994.
    Decided December 23, 1994.
    51 St.Rep. 1527.
    269 Mont. 135.
    887 P.2d 251.

      For Appellant: John M. Kauffman, Gallatin County Public Defender, Bozeman.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General; Michael Salvagni, Gallatin County Attorney, Bozeman; Susan Wordal, Bozeman City Prosecutor, Bozeman.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from the Eighteenth Judicial District Court’s denial of a motion to dismiss the charges against Mantz because of a lack of speedy trial. We affirm.

The only issue on appeal is did the District Court err when it denied appellant’s motion to dismiss the charges filed against him for lack of a speedy trial?

In July of 1992, Dale Mantz (Mantz) was charged by complaint in Gallatin County City Court with one count of misdemeanor assault pursuant to § 45-5-201, MCA. The charge springs from an incident in which Mantz, a light bulb vendor, attacked the manager of JB’s Big Boy restaurant in Bozeman, Montana. A jury trial was held on January 20, 1993 at which Mantz was found guilty of misdemeanor assault.

Mantz appealed his action to the District Court on January 22, 1993 seeking a new trial. On December 7, 1993, prior to the District Court trial, Mantz filed a motion to dismiss for lack of a speedy trial. The court denied the motion and heard the matter on December 13, 1993. After a bench trial, the court found him guilty of misdemeanor assault.

On April 8, 1994, the court sentenced Mantz to three months in the Gallatin County Detention Center with all but 48 hours suspended, and ordered him to pay a fine and court costs as a condition of his suspended sentence. On April 18, 1994, Mantz filed a pro se appeal to this Court. He also filed a Motion for Reduced Sentence which was denied by the District Court on April 28,1994.

Did the District Court err when it denied appellant’s motion to dismiss the charges filed against him for lack of a speedy trial?

Mantz argues that § 46-13-401(2), MCA, states that a defendant cannot be brought to trial after six months on a misdemeanor charge. He argues that he waited almost a year for his trial and the court should have dismissed his case for lack of a speedy trial. Mantz also contends that the court cannot deviate from the statutorily required six month limit because to do so would violate the separation of powers between the judicial and the legislative or executive branches. The State argues that the six-month rule does not govern speedy trial issues in cases which are appealed from justice court to district court.

The District Court concluded that defendant had caused bodily injury to the manager by assaulting him and sentenced him to three months in the Gallatin County Detention Center, with all but 48 hours suspended and ordered him to pay costs and fines.

Because the basis of the motion to dismiss is based upon a legal interpretation made by the District Court, we will review the court’s legal conclusions as to whether the court was correct in its interpretation of the law. Doting v. Trunk (1993), 259 Mont. 343, 856 P.2d 536. The statute at issue is § 46-13-401(2), MCA:

(2) After the entry of a plea upon a misdemeanor charge, the court, unless good cause to the contrary is shown, shall order the prosecution to be dismissed, with prejudice, if a defendant whose trial has not been postponed upon the defendant’s motion is not brought to trial within 6 months.

While Mantz argues that this statute required the District Court in this matter to grant his motion to dismiss because it took almost a year to bring the case to trial at the District Court, we have already interpreted this statute as inapplicable to those situations in which the case comes from justice court to a trial de novo in district court.

In State v. Sunford (1990), 244 Mont. 411, 796 P.2d 1084, we stated:

The six month rule contained in § 46-13-201(2), MCA (1989) [now renumbered as § 46-13-401(2), MCA (1991)] does not apply in circumstances where the defendant is tried injustice court and judgment is appealed for trial de novo in district court. ... A trial de novo is a ‘new trial,’ one which does not strictly speaking, arise out of entry of plea upon a complaint but arises out of an appeal. ... Once an action is appealed from justice to district court, it is treated as if it were a new trial. Questions regarding speedy trial in cases concerning new trials are analyzed under the constitutional standards of Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101.

Sunford, 244 Mont, at 415-416, 796 P.2d at 1086-1087.

The Barker v. Wingo test involves: (1) the length of the delay; (2) the reason for the delay; (3) the assertion of the right to speedy trial by the defendant; and (4) the prejudice to the defense. Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. The record contains a transcript of the proceedings held by the court, just prior to the trial, in which the court heard arguments from both counsel concerning the above elements and their bearing on the case.

The court specifically determined that the State had not intended by its actions to delay the trial. The record shows that the State actually sought a speedy resolution of the trial. The trial took 320 days from appeal to trial because the court itself had scheduling difficulties.

Further, the court determined that the Barker criteria were met and Mantz had objected in timely fashion on December 7, 1993. The trial was scheduled for December 13, 1993.

The court determined that its decision to dismiss or not dismiss hinged on whether Mantz had been prejudiced by this time and whether his constitutional rights had been violated. Mantz argued that he lost business because of the incident. Mant;z also argued that he has high blood pressure and that the anticipation of the proceedings caused him high anxiety and, hence, medical problems.

Here, the court considered these arguments and determined that Mantz lost business because of the incident itself, not the length of the delay for trial. Also, the court determined that Mantz had provided no medical evidence that the length of delay had caused him any medical problems. Therefore, the court did not dismiss the case because it determined that according to the Barker criteria, no lack of a speedy trial occurred here.

We conclude that the District Court correctly considered the Barker v. Wingo elements because this was an appeal from a justice court which resulted in a trial de novo in district court. The six-month rule from § 46-13-401(2), MCA (1991), applies to the initial trial in justice court.

We hold that the District Court did not err when it denied appellant’s motion to dismiss the charges filed against him for lack of a speedy trial.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICE NELSON concur.

JUSTICE TRIEWEILER

specially concurring.

I concur with the result of the majority opinion. I do not agree with the legal reasoning given for the majority opinion.

Section 46-13-401(2), MCA, requires that people charged with misdemeanors be brought to trial within six months. It does not make a distinction between pretrial delay injustice court and pretrial delay in district court. That fictional distinction was created by this Court in State v. Sunford (1990), 244 Mont. 411, 796 P.2d 1084, by sheer judicial legislation. Therefore, I decline to follow that decision.

However, I conclude that the result must necessarily be the same as that arrived at by the majority. Section 46-20-104(2), MCA, prohibits this Court from reviewing a district court’s error unless there was a timely and appropriate objection in the district court. In this case, the defendant did not raise the applicability of § 46-13-401(2), MCA, in the District Court. Therefore, he waived the right to raise that argument on appeal.

For these reasons, I specially concur with the result of the majority opinion.

JUSTICE HUNT joins in the foregoing concurring opinion.


author: CHIEF JUSTICE TURNAGE JUSTICE TRIEWEILER

text:
    MONTE PERRYMAN, Petitioner and Appellant, v. STATE COMPENSATION MUTUAL INSURANCE FUND/BLUE RANGE MINING CO., Respondent/Employer and Respondent.
    No. 94-011.
    Submitted on Briefs November 21, 1994.
    Decided December 23, 1994.
    51 St.Rep. 1523.
    269 Mont. 140.
    887 P.2d 254.

      For Appellant: Torger S. Oaas, Lewistown.
    For Respondent: Charles G. Adams, Helena.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Monte Perryman appeals the decision of the Workers’ Compensation Court denying his claim for wage supplement benefits. We affirm.

We rephrase the issue as whether the Workers’ Compensation Court erred in denying Perryman’s claim for wage supplement benefits.

In September 1990 Perryman was injured while working on an underground mining project near Lewistown, Montana. A rock fell and struck him on the back, resulting in a herniated disc. Perryman’s employer, Blue Range Mining Co., was covered under the State Compensation Insurance Fund (State Fund). Perryman filed a workers’ compensation claim. State Fund accepted liability for Perryman’s claim, and paid various compensation and medical benefits.

Following Perryman’s surgery and rehabilitation, an Employability Assessment was performed. Based on medical testimony and Perryman’s previous vocational experience, the assessment found Perryman capable of working as a heavy equipment operator. The Department of Labor then formed a Rehabilitation Panel pursuant to §§ 39-71-1016 and -1017, MCA (1989). The Panel concurred with the Employability Assessment, finding that the first appropriate option for Perryman was to “return to a related occupation suited to the claimant’s education and marketable skills” pursuant to § 39-71-1012(2)(c), MCA (1989). Perryman did not contest the Panel’s findings. On April 13, 1993, the Department of Labor issued an Order affirming the recommendations of the Rehabilitation Panel. Perry-man did not appeal this order. Both parties agreed that heavy equipment operation was within Perryman’s post-injury capabilities.

Perryman has held several post-injury occupations, with wages ranging from $4.50 per hour to $10.00 per hour. At the time of this petition, Perryman was employed as a truck driver with Casino Creek Concrete Co. earning approximately $8.00 per hour.

Betty Cross, a vocational rehabilitation counselor, testified as a witness on behalf of State Fund. Cross’s research revealed that a heavy equipment operator in Montana earns between $10.00 and $18.00 per hour. Cross testified that based on Perryman’s previous work experience he was capable of earning between $12.00 and $16.00 per hour.

At the time of his injury, Perryman was earning $12.00 per hour at Blue Range Mining Co. However, Perryman did not consistently work 40 hours per week during his employment with Blue Range. Had he consistently worked 40 hour weeks, his average pay would have been $480 per week. Due to his reduced working hours, the Workers’ Compensation Court calculated his actual average earnings to be $388.61 per week during the entire period he worked at Blue Range and $393.75 per week during his final four pay periods.

The Workers’ Compensation Court found that while Perryman only earned $8.00 per hour at the time of his petition, he had failed to show that he had been diligent in attempting to procure higher paying employment. The court found that since Perryman was capable of earning as much or more than he actually earned at the time of his injury, he was not entitled to wage supplement benefits under § 39-71-703, MCA (1989).

Did the Workers’ Compensation Corut err in denying Perryman’s claim for wage supplement benefits?

We review the findings of the Workers’ Compensation Court to determine if they are supported by substantial credible evidence. Buckentin v. State Compensation Insurance Fund (1994), [265 Mont. 518], 878 P.2d 262, 263.

We review the Workers’ Compensation Courtis interpretation of the law to determine if its interpretation is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

The law in effect at the time of the claimant’s injury controls. Buckman v. Montana Deaconess Hospital (1986), 224 Mont. 318, 730 P.2d 380. Since Perryman was injured in September of1990, the 1989 version of the Montana Code applies.

Perryman claims that the Workers’ Compensation Court misinterpreted §§ 39-71-123 and -703, MCA (1989). He argues that this misinterpretation resulted in assigning him an artificially low preinjury wage and an artificially high post-injury wage, thus unfairly denying him a wage supplement claim.

Perryman first argues that the Workers’ Compensation Court misinterpreted § 39-71-703, MCA (1989). Section 39-71-703(l)(b)(i), MCA (1989), reads:

(b) The following procedure must be followed for a wage supplement:
(i) A worker must be compensated in weekly benefits equal to 66 2/3% of the difference between the worker’s actual wages received at the time of the injury and the wages the worker is qualified to earn in the worker’s job pool.... [Emphasis added.]

Perryman claims that the term “actual wages” should be interpreted as the claimant’s dollar per hour wage extrapolated over a 40 hour work week. He insists the Workers’ Compensation Court erred by applying § 39-71-123, MCA (1989), in calculating his pre-injury wages. Perryman claims that while the wage calculation method set out in § 39-71-123, MCA (1989), has been used for calculating pre-injury wages in other types of workers’ compensation claims, this Court has never approved its use in a wage supplement claim.

Section 39-71-123(3), MCA (1989), states:

For compensation benefit purposes, the average actual earnings for the four pay periods immediately preceding the injury are the employee’s wages, except if:
(a) the term of employment for the same employer is less than four pay periods, in which case the employee’s wages are the hourly rate times the number of hours in a week for which the employee was hired to work; or
(b) for good cause shown by the claimant, the use of the four pay periods does not accurately reflect the claimant’s employment history with the employer, in which case the insurer may use additional pay periods. [Emphasis added.]

A wage supplement claim, like any other workers’ compensation claim, is a claim for a type of compensation benefits. Since Perryman seeks a form of compensation benefits, § 39-71-123(3), MCA (1989), mandates the use of the four pay period average for calculating his pre-injury wages unless one of the enumerated exceptions is met. Perryman’s requested method of calculating his wages is in essence the method provided for in § 39-71-123(3)(a), MCA (1989). However, multiplying a worker’s hourly rate by his or her scheduled working hours is only permitted when the worker has been employed at a job for less than four pay periods. Perryman had worked for Blue Range in excess of four pay periods; therefore this method is not available to him.

The other exception to the last four pay period method provided by § 39-71-123, MCA (1989), is if this method “does not accurately reflect the claimant’s employment history with the employer.” If the four pay period method does not provide an accurate reflection of the employee’s wages, additional pay periods can be used. Section 39-71-123(3)(b), MCA (1989). Calculating Perryman’s average weekly wages utilizing all his pre-injury pay periods at Blue Range, the Workers’ Compensation Court determined his wages to be $388.61 per week. This amounts to approximately five dollars per week less than his average weekly wages during his last four pay periods. Looking at either his entire employment history with Blue Range or his last four pay periods prior to his injury, Perryman worked, on an average, less than 40 hours per week. Thus, the last four pay period method provided in § 39-71-123, MCA (1989), is the appropriate method for calculating Perryman’s pre-injury wages.

We conclude that the § 39-71-123, MCA (1989), was the proper method of determining Perryman’s pre-injury wages for his wage supplement claim and that the Workers’ Compensation Court properly applied § 39-71-123, MCA (1989), in determining his pre-injury wages.

Perryman also claims that the Workers’ Compensation Court assigned him an artificially high post-injury wage, thus further frustrating his wage supplement claim. He argues that the Workers’ Compensation Court should take into account all his qualified post-injury employment in calculating his post-injury income. Perryman claims the court erred by relying on State Fund’s witness, who testified that he was qualified and able to earn between $12.00 and $16.00 per hour as a heavy equipment operator. Perryman claims that the court should consider his actual post-injury earnings rather than relying on his earning capacity as alleged by State Fund.

As previously stated, § 39-71-703(l)(b)(i), MCA (1989), governs wage supplement benefits. This section states:

(b) The following procedure must be followed for a wage supplement:
(i) A worker must be compensated in weekly benefits equal to 66 2/3% of the difference between the worker’s actual wages received at the time of the injury and the wages the worker is qualified to earn in the worker’s job pool.... [Emphasis added.]

This section clearly indicates that the wages a worker is qualified to earn, not what he actually earns, will be used to calculate wage supplement benefits.

The Employability Assessment Report on Perryman indicated that he was qualified and physically capable of working as a heavy equipment operator. Perryman likewise admitted at trial that working as a heavy equipment operator was within his post-injury capabilities. State Fund presented evidence that Perryman was qualified and able to earn between $12.00 and $16.00 per hour as a heavy equipment operator. State Fund’s witness, Cross, justified the $12.00 to $16.00 per hour figure based on extensive statewide employment data, availability of jobs in this field, and Perryman’s previous experience and training as a heavy equipment operator. The Workers’ Compensation Court found Cross to be a qualified and credible witness.

The Workers’ Compensation Court did not, contrary to Perryman’s assertion, assign him the “highest possible” post-injury wage. The evidence established that a heavy equipment operator in Montana could earn approximately $10.00 to $18.00 per hour, depending on his or her training and experience. Cross opined that, based on Perryman’s previous training and experience, he was capable of earning between $12.00 and $16.00 per hour.

Also, the Workers’ Compensation Court did take into consideration Perryman’s actual post-injury wages in qualified employment. However, the court was not persuaded by this evidence, stating in its findings of fact:

In reaching its determination, the Court has considered the fact that petitioner is presently earning only $8.00 an hour. However, it does not give great weight to that fact. Since his injury, petitioner has held higher paying jobs. He did not present evidence of a diligent job search for higher paying jobs ....

The court properly considered both Perryman’s actual post-injury earnings and his potential post-injury earnings.

The Workers’ Compensation Court found State Fund’s witness to be credible while it found Perryman to be less credible. We will defer judging the credibility and weight of conflicting evidence to the Workers’ Compensation Court. Kuenning v. Big Sky of Montana (1988), 231 Mont. 1, 5, 750 P.2d 1091, 1094. We will not substitute our judgment for that of the trial court. Estate of Alcorn (1994), 263 Mont. 353, 360, 868 P.2d 629, 633.

The Workers’ Compensation Court found that Perryman did not lose a $12.00 per hour, 40 hour per week job due to his injury. His average weekly earnings at the time of his injury were not $480.00 per week, but were rather $393.75 per week. The latter amount is the proper pre-injury baseline by which Perryman’s claim for wage supplement benefits must be calculated. Since the Workers’ Compensation Court found that Perryman is capable of earning as much if not more as he was earning at the time of his injury, he is not entitled to wage supplement benefits under § 39-71-703, MCA (1989).

We conclude that the Workers’ Compensation Court’s findings of fact were supported by substantial credible evidence and that its interpretation of §§ 39-71-123 and -703, MCA (1989), were correct. We hold that the court did not err in denying Perryman’s claim for wage supplement benefits.

We affirm the decision of the Workers’ Compensation Court.

JUSTICES GRAY and NELSON concur.

JUSTICE TRIEWEILER

specially concurring.

I concur that based on the law we are asked to construe, there was sufficient evidence to support the Workers’ Compensation Court’s denial of benefits in this case. However, that law is a model of anti-worker bias. The disability statute which pertains to Perryman’s claim was described as follows shortly after its enactment:

In other words, a worker’s partial disability benefits under the new benefit provision are now determined by comparing what the worker actually earned at the time of his injury to some wage that he might theoretically be capable of earning subsequent to his injury. The new law thus uses the most conservative possible standard for pre-injury earning capacity and the most liberal possible standard for post-injury earning capacity. It makes no difference if the worker had been capable of working in heavy industry at $12 an hour and was injured during a temporary lay-off while pumping gas for $3.35 an hour. The fact that the worker is now physically incapable of returning to his former occupation will have no bearing on the rate at which he is paid partial disability benefits.
To make matters even more unfair, the reduced actual earnings at the time of his injury will be compared to some theoretical earnings in the worker’s “job pool” after his injury. It makes no difference that the job is unavailable, that the employer would not hire the worker, or that the job is 500 miles away on the other side of Montana. In determining the pre-injury standard, actual earnings are all that count. However, in determining the post-injury standard against which pre-injury earnings must be compared, the computer and the vocational consultant’s imagination are the only limits.
Such a scheme is arbitrary, irrational and, by design, unfair to the worker who has forfeited common-law rights to compensation for what now appears, at best, to be an illusory system of income protection.
What sense does it make to limit a worker’s pre-injury earning capacity to his actual earnings at the time of his injury, but base his post-injury earning capacity on a “job pool” which may have no practical relevance to what he is actually able to earn? In the worst case scenario, the worker’s actual earnings at the time of his injury may be atypically low and unrepresentative of what he was actually capable of earning, and his “job pool” may represent no real opportunities for employment. That worker may find himself unable to continue in employment that would previously have paid $30,000 to $40,000 a year, with no realistic alternatives in the present job market, and no disability benefits under Montana’s current workers’ compensation system. That worker has received nothing of value in exchange for the forfeiture of his common law and constitutional rights to legal redress. If this is the price of improving Montana’s economic climate, then the price is too high.

Terry N. Trieweiler, The New Workers’ Compensation Act — Something for all Montanans to he Ashamed of, 50 Mont. L. Rev. 83, 91-93 (1989) (footnote omitted).

Section 39-71-703, MCA (1987), is the result of a concerted effort by recent legislatures to skew the Workers’ Compensation Act completely in favor of employers and their insurers, and against those crippled and disabled workers for whose benefit and protection the Act was originally created. It is an example of government by business interest groups at its worst.

It is a reminder that what was once a progressive act for the protection of disabled workers and their families has been reduced to nothing more than a shield against liability for their employers.

Nevertheless, there is no constitutional requirement that the legislature act wisely, fairly, or compassionately. And, so long as the Legislature acts within its constitutional constraints, this Court has no authority to overrule its enactments.

Therefore, I conclude that based on the statutory law with which the Court is presented, the majority has arrived at the correct conclusion, and I reluctantly concur in that conclusion. However, it is with a good deal of regret that I acknowledge this sorry state of affairs for injured workers in Montana.

JUSTICE HUNT joins in the foregoing concurring opinion.