text:
    WILLIAM T. “BILL” HOWELL, and Jenson Howell, Plaintiffs and Appellants, v. GLACIER GENERAL ASSURANCE COMPANY and the State of Montana and its agent, the Montana Potato Improvement Association, Defendants and Respondents; MONTANA INSURANCE GUARANTEE ASSOCIATION, a non-profit association, Plaintiff in Intervention and Respondent, v. GRANGE INSURANCE ASSOCIATION, a corporation; and William T. “Bill” Howell and Jensen Howell, individuals, Defendants in Intervention and Appellants.
    No. 89-027.
    Submitted Sept. 25, 1989.
    Decided Dec. 27, 1989.
    Rehearing Denied Feb. 15, 1990.
    785 P.2d 1018.

      Jon R. Binney and Lon J. Dale argued, Milodragovich, Dale & Dye, Missoula, for plaintiffs and appellants.
    Robert Phillips argued, Snavely & Phillips, Randy J. Cox, argued, Boone, Karlberg & Haddon, Missoula, for defendants and respondents.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal by Bill and Jensen Howell (Howells) and Grange Insurance Association (Grange) from a grant of summary judgment in favor of respondent Montana Insurance Guarantee Association (MIGA), the State of Montana and the Montana Potato Improvement Association (MPIA). Also appealed is the District Court’s denial of appellants’ motion to stay pending completion of discovery and its granting of respondents’ motion for protective order. We affirm in part, reverse in part and remand for further proceedings.

Appellants present essentially two issues for review:

1. Did the court abuse its discretion in denying plaintiffs’ motion to stay ruling pending completion of discovery and in granting defendants’ motion for protective order?
2. Did the District Court err in granting summary judgment in favor of defendants State of Montana, Montana Potato Improvement Association and Plaintiff-in-Intervention, Montana Insurance Guarantee Association?

At all times material to this litigation, calendar years 1976-1977, the Howells were Montana seed potato producers. The State was an insured of Glacier General under a policy titled “municipality comprehensive liability policy.” MPIA is an agent of the State in seed certification matters. The policies insured the State against certain risks enumerated in policies ML101, effective July 1 — June 30, 1976 and ML102, effective July 1, 1976 — June 30, 1977. Grange insured Howells.

The instant action arose out of a Washington civil case wherein certain Washington potato farmers sought compensation for damages they incurred because they had purchased seed potatoes infected with ring rot. The Washington plaintiffs filed suit in 1979 in Washington against the Howells, certain Washington warehousemen and MPIA, who had certified the seed potatoes. Grange, under a reservation of rights, defended the Howells in the Washington litigation.

On March 20, 1981, judgment was entered in the Washington litigation. The judgment in excess of $485,000 ran directly against the warehousemen and MPIA jointly and severally. The Howells were found not negligent but they were ordered to indemnify one of the Washington warehousemen because of breach of warranty claims.

On September 17,1981, the Washington plaintiffs filed a complaint in Montana to enforce the judgment in Montana and on August 24, 1983, judgment was entered against MPIA and Howells.

During the time between September 1981 and October 1983 Grange and Howells tried to get MPIA and the State to pay some or all of the judgment but their efforts were unsuccessful.

In October 1983, the Washington plaintiffs assigned their judgments to the Howells with Grange furnishing the entire consideration for the assignment. Grange paid the consideration under a reservation of rights agreement. Then in December 1983, Howells and Grange initiated this action. During the pendency of this action, Glacier General was declared insolvent and MIGA was granted permission to intervene.

Discovery in this action spans several years. Appellants deposed Thomas Haggerty, claims manager of Glacier General, in December of 1985. Later, in January of 1987, appellants deposed John Maynard. After these depositions, appellants attempted to depose J. Michael Young, Dr. Sun and James McLean, defendants’ agents. Prior to the summary judgment motion counsel had tried to schedule these depositions but were unable to do so because of scheduling conflicts. Appellants filed notices of depositions for September 19 and 26, 1988. In the meantime respondents filed their motion for summary judgment.

Issue I

Did the court abuse its discretion in denying plaintiffs’ motion to stay ruling pending completion of discovery and in granting defendants’ motion for protective order?

Rule 56(f), M.R.Civ.P. is as follows:

“Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”

A review of the District Court’s order and opinion discloses that the district judge did read and consider plaintiffs’ arguments. However, the District Court, in its discretion, decided that the plaintiffs did not sufficiently establish how that proposed discovery could preclude summary judgment. A review of appellants’ motion and affidavit persuades us that the District Court did not abuse its discretion. Further, in light of our holding on Issue II, reopening discovery as outlined by appellants is unnecessary. We affirm the District Court.

Issue II

Did the District Court err in granting summary judgment in favor of defendants State of Montana and Montana Potato Improvement Association and Plaintiff-in-Intervention, Montana Insurance Guarantee Association?

The District Court found that respondents were entitled to summary judgment because this action is essentially a subrogation action and the Montana Insurance Guaranty Association Act (MIGAA) prohibits recovery from MIGA by insurance companies. We agree with the District Court as to MIGA, but disagree with the District Court’s holding as to MPIA and the State.

MIGA

MIGAA states in pertinent part as follows:

“33-10-102(2)(b) ‘Covered claim’ shall not include any amount due a reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise.”

The MIGAA clearly prohibits subrogation recoveries from MIGA by an insurance company. In the instant case, the District Court correctly found dispositive the fact that Grange purchased the judgments from the Washington plaintiffs. Since Grange owns the judgments, § 33-10-102(2)(b), MCA, bars appellants’ claim against MIGA.

Appellants contend that even though Grange paid for the judgments, Grange’s reservation of rights preserves the claim as Howells’. Thus, appellants argue that the Howells have a claim against MIGA which is not barred by § 33-10-102(2)(b), MCA. However, the reservation of rights issue only determines the party (Grange or Howells) who receives payment of the judgment. The insurance coverage dispute between Grange and Howells does not impact the liability of the State or MPIA nor does it alter the effect of Grange purchasing the judgments. We affirm the summary judgment in favor of MIGA.

The State and MPIA

The District Court’s opinion does not directly address why it granted summary judgment for the State and MPIA. Apparently the District Court concluded that since § 33-10-102(2)(b), MCA, barred recovery from MIGA, it somehow barred recovery from the State or MPIA as well because they are insureds of an insolvent insurer. However the District Court erred in granting summary judgment in favor of the State and MPIA.

The District Court’s opinion, in effect, nullifies the valid judgment that appellants hold against MPIA. Respondents correctly argue that MIGA affords limited protection to the insureds of insolvent insurers. However, that limited protection does not absolve tortfeasors from judgments against them because coincidentally their insurance carriers become insolvent. Regardless of the effect of the MIGAA on this litigation, appellants still hold a valid judgment against MPIA that remains unsatisfied and judgment should be entered against MPIA. As to the liability of the State of Montana, we remand to the District Court for further proceedings to determine the liability of the State of Montana. We therefore reverse the District Court’s award of summary judgment in favor of the State and MPIA and direct entry of summary judgment in favor of the appellants against MPIA. Affirmed as to MIGA, reversed as to the State and MPIA, and remanded for further proceedings consistent with this opinion.

CHIEF JUSTICE FRANK I. HASWELL, Retired, sitting for CHIEF JUSTICE TURNAGE, and JUSTICES SHEEHY, BARZ, HUNT, WEBER and McDONOUGH concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    DUANE BUETTNER, Plaintiff and Appellant, v. STATE OF MONTANA, Department Of Labor & Industry, et al., Defendants and Respondents.
    No. 89-199.
    Submitted on Briefs Oct. 13, 1989.
    Decided Dec. 28, 1989.
    Rehearing Denied Jan. 30, 1990.
    784 P.2d 906.
    Duane Buettner, Wolf Point, pro se.
    Scott W. Wilson, Billings, for defendants and respondents.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Appellant Buettner, pro se, appeals a decision of the District Court of the First Judicial District, Lewis and Clark County, wherein the District Court granted respondents’ motion to dismiss appellant’s complaint against the State because appellant failed to comply with § 2-9-301, MCA.

Appellant raises essentially one issue for review: Is the application of § 2-9-301, MCA, to this case unconstitutional because the cause of action arose prior to the effective date of the statute?

In late 1984, the State terminated appellant’s employment effective December 31, 1984. On November 11, 1987, appellant filed a tort action against the State. The State was served with the complaint in early October of 1988 and on October 31, 1988, the State filed its motion to dismiss. Relying on § 2-9-301, MCA, the District Court granted the State’s motion to dismiss appellant’s complaint.

Some time after briefs were filed on the motion to dismiss but prior to the District Court’s decision, appellant removed his counsel and has continued pro se.

Section 2-9-301, MCA, provides in pertinent part:

“(1) All claims against the state arising under the provisions of parts 1 through 3 of this chapter must be presented in writing to the department of administration.
“(2) A complaint based on a claim subject to the provisions of subsection (1) may not be filed in district court unless the claimant has first presented the claim to the department of administration and the department has finally denied the claim. The department must grant or deny the claim in writing sent by certified mail within 120 days after the claim is presented to the department. The failure of the department to make final disposition of a claim within 120 days after it is presented to the department must be considered a final denial of the claim for purposes of this subsection. Upon the department’s receipt of the claim, the statute of limitations on the claim is tolled for 120 days . . .”

The 1987 Legislature added subsection (2) of § 2-9-301, MCA, which became effective October 1, 1987. Appellant filed his complaint on November 17, 1987 without first presenting his claim to the department as required by § 2-9-301, MCA.

Appellant, through counsel, argued to the District Court that § 2-9-301, MCA, could not constitutionally be applied to a cause of action which arose prior to October 1, 1987. Because his cause of action arose in 1984, appellant contended that he did not have to comply with § 2-9-301, MCA.

In holding that § 2-9-301, MCA, could constitutionally be applied to causes of action which arose prior to October 1, 1987, the District Court reasoned that the mandatory initial filing with the department imposed by the statute was procedural. The filing requirement did not in any way alter or restrict appellant’s underlying cause of action. Thus, the District Court found that because the underlying cause of action was not impaired by the mandatory department evaluation, the statute could be applied to causes of action that arose prior to October 1, 1987. We agree.

The Legislature can impose procedural requirements on a plaintiff before a plaintiff can file a complaint in court as long as the procedures do not impair any of a plaintiff’s substantive rights. Appellant cites no authority to the contrary. Also, appellant fails to demonstrate how his substantive rights are impaired.

The right plaintiff acquired in late 1984 was the right to bring a tort claim against the State. Section 2-9-301, MCA, is a procedural statute which limits direct access to the courts for at most 120 days while the Department of Administration evaluates the claim. Moreover, Subsection (2) specifically provides that the statute of limitations for the claim is tolled for 120 days. Thus, a plaintiff is not penalized in terms of statute of limitation considerations by the mandatory review procedure. As appellant acknowledges the review procedure imposed by § 2-9-301, MCA, preserves a plaintiff’s right to file a tort claim in court against the State.

Although appellant’s argument is unclear, appellant appears to contend that even if § 2-9-301 can be applied the District Court had discretion to fashion some other remedy other than outright dismissal of the complaint. Outright dismissal of the complaint, appellant argues, was fundamentally unfair because the statute of limitations had run on the tort claim at the time of the dismissal order. However, once the District Court determined that the statute applied to appellant’s claim, it had no choice but to dismiss the complaint for failure to comply with § 2-9-301, MCA. It may be unfortunate for appellant that the statute of limitations had run on his tort claim, but it is not fundamentally unfair. Montana’s statutes of limitations apply equally to all plaintiffs who are subject to them.

However, while we must affirm the trial judge in granting summary judgment in this case, we call to the attention of the plaintiff who brought this case to us pro se, that under the provisions of § 27-2-407, MCA, he is allowed to bring a new action for the same cause after the expiration of the time so limited and within one year after such reversal or termination. Such action must be done in accordance with the provisions of § 2-9-301, MCA, and before March 16, 1990. If the appellant gives notice to the State pursuant to § 27-2-407, MCA, the running of the statute is tolled.

In summary, § 2-9-301, MCA, mandates a procedure whereby all tort claims against the State must be filed with and reviewed by the Department of Administration. Appellant failed to comply with the law. The District Court properly dismissed the complaint.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES McDONOUGH. SHEEHY, HUNT, BARZ and WEBER concur.


author: JUSTICE McDONOUGH JUSTICE WEBER,

text:
    ROSE CHRISTENSEN, Conservator of the Estate of Clarence B. Neidigh, a protected person, Plaintiff and Appellant, v. DOROTHY BRITTON, Joyce Lange, and Debbie McShane, Defendants and Respondents.
    No. 89-219.
    Submitted on Briefs Sept. 15, 1989.
    Decided Dec. 28, 1989.
    784 P.2d 908.

      JUSTICE WEBER filed dissenting opinion in which JUSTICE HUNT joined.
    Michael W. Cotter, Cotter & Cotter, Great Falls, for plaintiff and appellant.
    Dirk Larsen, Larsen & Neill, Great Falls, for defendants and respondents.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from an action to recover real and personal property that Clarence Neidigh gave to defendants Dorothy Britton, Joyce Lange and Debbie McShane (sometimes collectively referred to as “Defendants”). Rose Christensen, later appointed conservator of the estate of Clarence Neidigh, brought this action for damages and to set aside certain transfers on the grounds that Clarence Neidigh was incompetent and the transactions were a result of undue influence. The District Court of the Eighth Judicial District, sitting without a jury, found that the transactions between Clarence Neidigh, who was found to be competent, and the Defendants, were fair and regular. We reverse, remand and order the trial court to conduct a new trial to determine damages.

The issue in this case is:

Whether the District Court erred in concluding that the various transactions between Clarence Neidigh and the Defendants were valid.

Clarence Neidigh (Lou) was born on January 15,-1900. In 1929, he married Marie and had two children, Rose and Dwight. Lou and Marie were married for 57 years. During this period of time, they enjoyed a very close and loving relationship. According to testimony, Lou and his wife were inseparable. They went everywhere together and he relied on her exclusively, for all of his needs. Marie died on September 14, 1986. Lou was extremely distraught over the loss of his wife. His neighbors described him as a “lost soul” during the months following the death.

The Defendants, Dorothy Britton, Debbie McShane and Joyce Lange, all knew Lou and Marie very well. Britton and McShane, who are daughters of Lange, grew up within a block of Lou. Consequently, they enjoyed a very close relationship with him for about 25 years before his wife died.

After Marie died, Britton began spending an inordinate amount of time with Lou. She helped him with his day to day activities, such as driving him to the store and fixing his meals. In October, approximately one month after Marie’s death, Britton contacted her family attorney. She asked him to prepare a power of attorney, giving her full control over all of Lou’s assets. She maintained that this was necessary, because Lou was unable to handle his business affairs due to his depression over his wife’s death and because his eyesight was very poor. Accordingly, on October 20, 1986, Britton took Lou to her attorney’s office and he signed a durable power of attorney giving her full and complete control over his property.

On February 4, 1987, Britton took Lou to see her attorney for a second time. The purpose of this visit was for Lou to make a new will. According to Britton’s testimony, Lou wanted to make a new will in order to leave the bulk of his estate to her, her mother and her sister. It was also decided that Lou would deed his house and all of its contents to Britton through an immediate transfer. Lou executed a warranty deed and conveyed his house and all of “the furniture, furnishings and equipment located therein” to Dorothy Brit-ton. The house was fully paid for and there was no consideration paid to Lou for the home or the furnishings.

A number of monetary transactions then took place between Lou and the Defendants, most of which were in 1987. They included a $5,000.00 loan to Joyce Lange, a $4,000.00 loan to Rudette Mat-tingly (Dorothy Britton’s sister), a $2,500.00 loan to Debbie McShane and a gift of a diamond ring, valued at $1,500, to Joyce Lange.

Most of these loans have never been repaid. Lange maintains, however, that she has repaid her $5,000.00 loan. She asserts that the loan was repaid by returning to Lou a gun collection which he had previously given to her. Each of these loans and their purported repayments were cash transactions. No promissory notes were ever drafted, nor did the Defendants keep records of any repayment. The loans were usually accomplished by Lou making out a check to “cash.” The Defendants would then drive him to the bank where he would cash the check and give them the money.

In October of 1987, Lou gave Britton his 1982 Ford LTD, which was valued at $3,800.00. Britton used the car for 13 days. She then sold the car back to Lou for $6,000.00. A receipt evidencing this sale was executed by both Lou and Britton.

During this period of time Lou met a young woman named Kim Stevens. Kim was 24 years old when she was introduced to Lou. Apparently Kim was a close friend of Defendant, Debbie McShane. Kim had three children and was, at this time, involved with a man by the name of Leland LaPier, who is currently incarcerated at the Montana State Prison.

A short time after they met, Lou and Kim were married on October 23, 1987. She moved herself and her three children into the home which Lou had previously deeded to Dorothy Britton. Debbie McShane also moved into the house with Kim and Lou.

Lou, no longer having any furniture and appliances in the house, bought furniture and appliances. He obtained many of the items that he needed by repurchasing some that he had given to Dorothy Britton. Among other things, he repurchased from her, his bed for $600.00 and his washer and dryer for $700.00.

In December of 1987, animosity began to develop between Lou and the Defendants. Britton’s testimony is that the animosity arose after Lou’s marriage to Kim. Eventually Britton asked Lou to leave the house. As a result Lou was forced to leave the home that he had occupied for over thirty years. He was not allowed to take any of his personal possessions because, as stated earlier, these had been conveyed to Britton. Following Lou’s departure Britton began renting the house to her sister, Debbie McShane, for $342.00 a month.

Lou’s son, Dwight, died in January of 1988. At the funeral Lou’s daughter, Rose, discovered that he was out of money and was no longer in possession of his home or his belongings. Consequently, she moved him into her home in Helena. In February, after she was appointed conservator of her father’s estate, she cashed out his bank account. He had only $800.00 left.

When Lou’s wife died, his checking account contained between $45,000 and $50,000. He also had an income of approximately $1,500.00 a month which was obtained through retirement benefits and stock dividends. The total depletion of his cash assets between September of 1986 and February of 1988 was in an amount between $69,000 and $74,000. Additionally, he lost his home and virtually all of his personal possessions.

Lou’s marriage to Kim was annulled in June of 1988. In the stipulation to annul the marriage, Kim stated her belief that “other parties set up and fraudulently induced the marriage relationship.” Following the annulment Kim returned all of Lou’s property that was in her possession.

Rose Christensen, as Conservator of the Estate of Lou Neidigh, brought this action to recover the property given to Dorothy Brit-ton, Joyce Lange and Debbie McShane. After a bench trial, the District Court held that the various gifts and transactions between Lou and the Defendants were valid. The court further concluded that the Defendants did not exercise undue influence over Lou and Lou was competent at the time of the transactions. Judgment was therefore entered in their favor. From this judgment, the plaintiff appeals.

The plaintiff advances two theories, either of which if proven would operate to invalidate the transfers of property by Lou Neidigh to the Defendants. She maintains that either Lou lacked the capacity necessary to make a valid gift or, in the alternative, that the gifts were obtained through the use of undue influence. The evidence does not support her claim that Lou lacked the capacity to make a valid gift. In fact Lou’s doctor testified to his belief that Lou did have the mental capacity to understand and manage his financial affairs at the time the transfers were made. We, therefore, will examine the appellant’s claim that the gifts were obtained through the use of undue influence.

Proof of undue influence does not depend upon a showing of mental incapacity on the part of the donor. In re Estate of Aageson (1985), 217 Mont. 78, 702 P.2d 338. Undue influence is never presumed and must be proven like any other fact. Adams v. Allen (1984), 209 Mont. 149, 679 P.2d 1232. Therefore, we must review the evidence to determine whether the plaintiff has carried her burden of proving that the gifts were a product of the Defendants’ use of undue influence.

In Montana, the question of whether undue influence was exercised on a donor making a gift is determined by the same criteria used in deciding whether undue influence was exercised on a testator making a will. Cameron v. Cameron (1978), 179 Mont. 219, 587 P.2d 939. These criteria, as set out in Montana case law, are:

“(1) Confidential relationship of the person attempting to influence the testator;
“(2) The physical condition of the testator as it affects his ability to withstand influence;
“(3) The mental condition of the testator as it affects his ability to withstand the influence;
“(4) The unnaturalness of the disposition as it relates to showing an unbalanced mind or a mind easily susceptible to undue influence, and
“(5) The demands and importunities as they may affect the particular donor taking into consideration the time, the place, and all the surrounding circumstances.”

Cameron, 587 P.2d at 945, see also § 28-2-407, MCA.

To prove an assertion of undue influence one must satisfy each of these criteria. We therefore apply the evidence to each of the five points.

There was a close confidential relationship between Lou Neidigh and Dorothy Britton. Before the death of Lou’s wife, Brit-ton had known Lou for approximately 25 years. According to her testimony, she thought of Lou as a “grandfather.” Within five weeks after Lou’s wife died, however, this relationship began to change. Britton then took on the added responsibility of controlling and managing Lou’s financial affairs by obtaining power of attorney over his entire estate. This blanket power of attorney, which was obtained through Britton’s lawyer, imposed upon her a fiduciary duty to act in the utmost good faith when dealing with Lou’s financial affairs. This fiduciary duty, together with her long personal relationship with him, demonstrates that Britton had a confidential relationship with Lou Neidigh.

Due to Lou’s advanced years, his physical condition was deteriorating at the time he engaged in the transactions on review. Testimony revealed that his sight had deteriorated to the point of near blindness. In order to read, he needed a magnifying glass. This poor eyesight required him to become dependent upon others to write his checks and review his bank records. This dependency, in turn, made him susceptible to overreaching influence asserted by the Defendants.

Lou was also in a precarious mental state during the time the gifts and the loans were made to the Defendants. As we have previously mentioned, Marie Neidigh, Lou’s wife, died on September 14, 1986. Lou took the death very hard. Witnesses at trial described him as a “lost soul” and testified that he would often cry in front of them. As can be expected, after the loss of a longtime spouse, Lou was sad, dependent, confused and lonely.

His dispositions were unnatural and indicate that he was in a weakened emotional state and was therefore easily susceptible to undue influence. Very shortly after Marie’s death, Lou gave Joyce Lange Marie’s wedding rings. Following this gift a number of other unnatural transactions occurred between Lou and the Defendants. He gave his house and all of its contents to Dorothy Britton. In making this transaction, he did not even reserve to himself a life estate which would insure that he had a place to live. Additionally, a number of loans were made to the Defendants. These loans and their repayment were all purported to be in cash. No records were kept of their repayment and no promissory notes were ever signed by the Defendants. The sum of these loans approximated at least $12,000.00.

In addition to conveying all of the property contained in his house to Britton, Lou also gave her his only car. Thirteen days after this gift was made, Britton sold the car back to Lou for $6,000.00, which was $2,200.00 more than its fair market value. When Lou asked that other items of his personal property be returned, Britton sold them to him. For instance, she sold him his washer and dryer for $700.00, his snowblower for $100.00, and his bedroom furniture for $600.00.

In December of 1987, after her relationship with Lou began to deteriorate, Dorothy Britton forced Lou to leave the house that he owned for over 30 years. When he left, he was not allowed to take any of his personal effects. Shortly after his departure, Britton rented the house to her sister for $342.00 a month.

The only conclusion that can he drawn from these transactions is that they were unnatural and were the product of an unbalanced mind or one that was easily susceptible to influence. We point out that in addition to losing his home and most of his personal property, Lou’s monetary loss approximated somewhere between $69,000 — $74,000. The Defendants, therefore, gained over $100,000 through their dealings with Lou.

As a final consideration in our examination of undue influence, we must look at the demands made by the Defendants as they may have affected Lou. Due to his weakened physical and emotional state, Lou was highly susceptible to influence exerted by the Defendants. Moreover, the manner in which the various transactions took place is highly suspect.

Dorothy Britton took Lou to her attorney on two occasions. On the first occasion she obtained blanket power of attorney over his entire estate. On the second occasion, she obtained a warranty deed to his house and all of its contents. The appointments for both of these meetings were made by Dorothy Britton. She accompanied Lou to these meetings and sat in with Lou while he spoke with the attorney. This afforded her a unique opportunity to influence the disposition of Lou’s property.

We also note that the power of attorney, conferred upon Britton the duty to act in the utmost good faith in any financial dealings with Lou. This fiduciary duty was breached in a number of ways. In support of this conclusion we make reference to the facts that Brit-ton allowed Lou to make improvident loans to her family members and that after obtaining title to his property she embarked on a course of selling it back to him.

The five criteria necessary to support the conclusion of undue influence have been met and the burden now shifts to the Defendants to prove that the transactions were fair and voluntary. 29 Am.Jur. 2d, Evidence § 128. Defendants advance a number of arguments in support of their position that the transactions were valid. We find little merit to any of these arguments.

When Britton brought Lou to her attorney to make a new will, she obtained a statement from his doctor which stated that Lou was competent. We have no argument with this assertion. However, we point out that the fact that Lou was competent has no bearing on his susceptibility to undue influence. One does not need to be incompetent in order to be subject to overreaching influence. In re Estate of Aageson (1985), 217 Mont. 78, 702 P.2d 338. We note that this same doctor testified that the dispositions made by Lou were not natural.

The Defendants also presented testimony which indicated that Lou’s children knew that he was going to give his house to Dorothy Britton. The testimony on this issue is conflicting, but at least one witness for the defense testified that Lou told his children of his desire to make this gift at a Christmas party in 1986. Assuming this testimony is true, we do not find that it has any relevance to the issue of undue influence. Even though Lou’s children may have known of Lou’s intent, there is no evidence that they knew it was done and that he may later be forced to leave his house. Nor is there any evidence that they knew of the extensive drain on his financial resources.

Finally, the Defendants presented evidence of their close relationship with Lou Neidigh. Dorothy Britton testified that Lou was “like a grandfather” to her. Another witness testified that Lou stated that Britton was more of a daughter to him than his own. This close relationship, it is maintained, indicates that the gifts were made as a result of Lou’s desire to show his love for the Defendants and were not, therefore, a product of undue influence. Britton’s actions, however, speak louder than any of this testimony. As a matter of common human experience, we find it hard to comprehend how one could at the same time think of another person as a “grandfather” and then evict him from his own house.

Britton maintains that Lou’s removal from the house and the subsequent sales of property to him resulted from her desire to protect the assets after his marriage to Kim Stevens. In view of the overall actions of Britton, we reject this argument. Lou married Kim on October 23, 1987. By this time Britton had obtained ownership of his house, his car and other possessions. His monetary worth had decreased by over $20,000.00. We also point out that upon the filing of this lawsuit, only one Defendant returned Lou’s property. That defendant was Kim Stevens.

The facts of this case paint a vivid picture of unfair advantage and undue influence over an elderly and depressed man. We are, therefore, obligated to reverse. We do not take lightly the fact that we are reversing the findings of a court sitting without a jury. However, as we have stated on many occasions, the findings of a court sitting without a jury must be based upon substantial evidence. Cameron v. Cameron (1978), 179 Mont. 219, 587 P.2d 939.

Substantial evidence is defined as that evidence that a reasonable mind might accept as adequate to support a conclusion. Blacks Law Dictionary 1281 (5th ed. 1979). Although it may be based upon weak and conflicting evidence, in order to rise to the level of substantial evidence it must be greater than trifling or frivolous. If a lower court’s findings are not based upon substantial evidence and there is a clear preponderance of evidence against them, we must reverse. Taylor v. Pretranek (1977), 173 Mont. 433, 568 P.2d 120.

The evidence in this case, taken as a whole, of undue influence is overwhelming. Three women, within a time period of fifteen months, stripped Lou Neidigh of his house, his car, virtually all of his personal belongings, and over $40,000 in savings. The Defendants’ evidence, in essence, is that these were gifts, freely given, as a result of Mr. Neidigh’s love and affection. The extent of the gifts and the Defendants’ course of conduct, however, belies these contentions and does not, therefore, rise to the level of substantial evidence. There is a clear preponderance of evidence against the findings of the trial court. As a result, we must reverse, remand and order further consideration consistent with this opinion.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, BARZ and SHEEHY concur.

JUSTICE WEBER,

dissenting:

In reversing the District Court, this Court has become the finder of fact, which is appropriate only in limited circumstances which do not apply here. Rule 52(a), M.R.Civ.P., states that a district court’s findings of fact shall not be set aside unless “clearly erroneous,” and that “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” In Parker v. Elder (Mont. 1988), [233 Mont. 75,] 758 P.2d 292, 293, 45 St.Rep. 1305, 1307, this Court pointed out that if substantial credible evidence supports the findings, they are not clearly erroneous.

The majority concluded there were inequities in the transfers by an elderly man and have set aside the District Court’s findings. The majority analyzes the evidence and sets forth its own findings of fact. The majority opinion does not analyze the findings of fact and the supporting evidence as determined by the District Court.

The District Court pointed out that the plaintiff called five witnesses and the defendants called six witnesses. With regard to the transfer of the house, the District Court found:

“8. On February 4, 1987, Dorothy took Clarence to Robert Clary’s law office where Clarence told Robert Clary that [he] wanted to prepare his Last Will and Testament. He told Robert F. Clary, Jr. that he wanted to leave his house, his automobile and the contents of the house to Dorothy Britton. After some discussion, Clarence B. Neidigh decided that because his own children, Dwight Neidigh and Rose Christensen, might contest such a provision in his will, he instructed Robert F. Clary, Jr. to prepare a deed of the house and its contents to Dorothy Britton as he wished to make to her an immediate gift of this property to avoid any future will contests ...” With further regard to the transfer of the house, the District Court found:
“9. Following the transfer of the house to Dorothy, Clarence continued to live in the house until November or December 1987 when he moved to another house he had purchased. In connection with the deed of the house to Dorothy, there was an oral understanding between Clarence and Dorothy that Clarence could stay in the house as long as he wanted to so long as he paid the taxes and maintenance on the house . . .”

With regard to the issue of duress and undue influence, the final finding of fact by the District Court was:

“19. Although Clarence now wants his property to him the court finds that the evidence presented does not establish that Clarence’s decisions with respect to his financial affairs and property interests were made under duress or undue influence. The evidence preponderates in favor of finding that Clarence made his own decisions and knew what he was doing at those times. His property disposition decisions may have been unwise. Clarence himself did not testify that he was coerced or under undue influence from anyone when he made the gifts of his property and when he married Kim Stevens.” (Emphasis supplied.)

The District Court then made the following conclusions of law which have elements of factual findings in them;

“2. Clarence B. Neidigh made a valid gift by deed of his house together with the furniture, furnishings and equipment located therein to Dorothy Britton on February 10, 1987 . . .
“3. The various transactions between Clarence B. Neidigh and Dorothy Britton whereby she sold to him a 1982 Ford, household furnishings and guns were fair and regular.
“5. The loans made by Clarence B. Neidigh to Dorothy Britton and Joyce Langie [sic] have been repaid in full and there remains no balance due to Clarence B. Neidigh on thse [sic] loans.
“6. There is no evidence that the gift made by deed from Clarence B. Neidigh to Dorothy Britton was obtained through duress or undue influence.” (Emphasis supplied.)

While the record does contain substantial evidence in support of the findings set forth in the majority opinion, the record also contains substantial evidence to support the findings of the District Court. It is interesting to note that the district judge specifically found that a reason for the transfer of the real property was to prevent will contests and an attempt to obtain the property by his children. The record demonstrates that it is Rose Christensen, one of those two children who has acted as the plaintiff.

I conclude there is substantial credible evidence to support the findings of the District Court, and this should be the end of the inquiry. I would affirm the District Court.

JUSTICE HUNT joins in the foregoing dissent of JUSTICE WEBER.


author: JUSTICE HUNT

text:
    LINDA TREUTEL and Terry Treutel, Plaintiffs and Appellants, v. FRANCES JACOBS, Defendant and Respondent.
    No. 89-420.
    Submitted on Briefs Nov. 21, 1989.
    Decided Dec. 28, 1989.
    Rehearing Denied Jan. 29, 1990.
    784 P.2d 915.
    Kim L. Ritter, Milodragovich, Dale & Dye, Missoula, for plaintiffs and appellants.
    Shelton C. Williams, Williams Law Firm, Missoula, for defendant and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Linda and Terry Treutel, plaintiffs and appellants, appeal from a summary judgment entered by the District Court of the Fourth Judicial District, Ravalli County, in favor of Frances Jacobs, defendant and respondent. We affirm.

The sole issue raised on appeal is whether the District Court properly granted defendant’s motion for summary judgment based on plaintiff’s failure to state a claim on a legally recognizable theory upon which relief could be granted.

In 1987, Linda Treutel and her family resided on property in Ravalli County held in trust. The property was formerly owned by Treutel’s parents. The beneficiaries of the trust were Linda, her two siblings and her mother, Frances Jacobs. Mr. Jacobs, as trustee, procured a comprehensive personal liability insurance policy issued by Farmers Insurance Group on the property which remained in effect from April 3, 1987 to April 3, 1988.

On April 5, 1987, Linda and her husband were repairing a fence on the property with a pair of pliers. A piece of metal chipped off the pliers injuring Linda’s right eye. At the time of the accident, Jacobs was living in Alaska and was unaware that the fence was broken or that the Treutels intended to fix it.

Linda submitted a claim to Farmers for her medical expenses and lost income. Farmers paid out $7,024.30 on her claim. Linda’s attorney contacted Farmers’ claims adjuster, Gougler, who informed the attorney that coverage existed for the accident. Gougler then sent Linda’s attorney a memo confirming the conversation and stating, “We will look forward to discussing settlement possibilities at your earliest convenience.”

Settlement negotiations subsequently failed, and on October 22, 1988, Linda filed a complaint alleging injury as a result of the accident that occurred on the trust property. The Treutels alleged damages for Linda’s future medical expenses, pain and suffering, loss of customary way of life, cost of suit and other relief deemed just and proper and for Terry’s loss of consortium. The complaint did not allege negligence nor wrongdoing on the part of Jacobs.

Linda filed a motion for partial summary judgment on February 24, 1989. Jacobs then filed a brief in opposition to plaintiff’s motion for summary judgment and a motion for summary judgment on March 20, 1989. A hearing on the motions was held on June 7, 1989. On June 19, 1989, the District Court entered its order and judgment denying Linda’s motion and granting Jacobs’ motion. From the order, Linda appeals.

The court granted Jacobs’ motion for summary judgment based on its finding that Linda failed to state a legally recognizable claim upon which relief could be granted. Rule 8(a), M.R.Civ.P., provides in part:

“A pleading which sets forth a claim for relief, . . . shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief; and (2) a demand for judgment for the relief to which he deems himself entitled.” (Emphasis added.)

While Linda’s complaint sets forth the facts pertaining to the day of the accident and demands relief therefore, it does not allege that Jacobs was negligent in any manner nor does it allege that Jacobs breached any legal duty owed to Linda. While this Court has long recognized that a complaint is to be construed in the light most favorable to the plaintiff, Fraunhofer v. Price (1979), 182 Mont. 7, 594 P.2d 324, we cannot say that Linda’s complaint, even when viewed favorably to her position, set forth a claim upon which relief can be granted. As we stated in Rambur v. Diehl Lumber Co. (1963), 142 Mont. 175, 179, 382 P.2d 552, 554:

“. . .a complaint must state something more than facts which, at most, would breed only a suspicion that plaintiffs have a right to relief. Liberality does not go so far as to excuse omission of that which is material and necessary in order to entitle relief.”

Jacobs’ policy reads in pertinent part:

“We shall pay all damages from an occurrence which an insured is legally liable to pay because of bodily injury or property damage covered by this policy.” (Emphasis added.)

Here, Linda does not claim that Jacobs breached any legal duty owed to her nor was negligent in any manner. Thus, under the terms of the policy, Jacobs is not legally liable for her accident. Jacobs’ insurance company is under no obligation to pay for that which she, herself, is not liable.

Nonetheless, Linda claims that Farmers, through its adjuster, Gougler, admitted liability and are now bound by the admission. While it is true that during a telephone conversation, Gougler told Linda’s attorney that Linda’s accident was covered and then sent a memo confirming the conversation, the statement and memo were not admissible as evidence to prove liability.

It is clear from the language of the memo that the statements were made as part of a settlement negotiation process. It read in part,

“We will look forward to discussing settlement possibilities at your earliest convenience.” (Emphasis added.) Rule 408, M.R.Evid., provides in that, “Evidence of conduct or statements made in compromise negotiations is . . . not admissible.” Further, under § 33-15-504(3), MCA, an insurer does not waive policy provisions nor defenses by engaging in settlement negotiations.

As evidence, the statement and memo are inadmissible as a matter of law. As we stated in Cereck v. Albertson’s, Inc. (1981), 195 Mont. 409, 637 P.2d 509, a party moving for summary judgment must prove that he is entitled to summary judgment as a matter of law by demonstrating an absence of any genuine issue of material fact. Discarding the inadmissible evidence, there remains no genuine issue of material fact in this case. The District Court properly granted Jacobs’ summary judgment.

Affirmed.

JUSTICES WEBER, SHEEHY, McDONOUGH and BARZ concur.


text:
    In re the MARRIAGE OF LORETTA LAEL WROOT, Petitioner and Respondent, and VANCE WAYNE WROOT, Respondent and Appellant.
    No. 89-472.
    Submitted on Briefs Dec. 7, 1989.
    Decided Dec. 28, 1989.
    Rehearing Denied Jan. 18, 1989.
    784 P.2d 904.
    Craig W. Holt, Billings, Alan J. Lerner, Kalispell, for respondent and appellant.
    Linda L. Harris; Harris & Ventrell, Billings, for petitioner and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Vance W. Wroot appeals a decision of the Thirteenth Judicial District, Yellowstone County, Montana, awarding Loretta L. Wroot $4,439 in child support arrearage. We affirm.

Appellant raises essentially three issues for review:

1. Did the District Court err in not crediting health care payments made by appellant for his minor children against his child support obligation?
2. Did the District Court err in computing the amount of child support due respondent?
3. Did the District Court err in awarding attorney’s fees to respondent?

The parties’ marriage was dissolved on May 27,1981 on which date the District Court entered its Final Decree. The Final Decree was amended on August 24, 1981. The Amended Final Decree required the appellant to pay child support in the amount of $125 per month per minor unemancipated child of the parties’ marriage, subject to abatement for all times the children visited with appellant. At the time of the Amended Final Decree there were three minor children, Dawn, Theresa and Leah.

On July 3, 1982, prior to reaching her eighteenth birthday, Dawn married, terminating appellant’s child support obligation for her. Theresa’s eighteenth birthday came on June 22, 1987. Leah still resides with respondent and will be eighteen years of age on April 24, 1990.

Since August of 1985, with respondent’s consent, Theresa has lived with either appellant or her older sisters. Respondent consented to allowing appellant to pay the $125 per month child support payment to Theresa and her older sisters when Theresa lived with them. The parties agreed no child support was due for Theresa when Theresa resided with appellant.

The Amended Decree provided that appellant was to maintain his minor children on his work-related health insurance policies or on a similar policy. Respondent was to pay all other medical, dental, hospital and optical expenses of the minor children which were not paid by appellant’s insurance. However, appellant paid certain health care costs of the minor children that were not covered by his insurance. Appellant testified that the parties had an agreement whereby respondent would reimburse appellant for these costs. Respondent testified that no such agreement existed.

It is undisputed that appellant has not paid any child support for Leah since March, 1986, except for $250 in 1987. While living in Colorado, respondent initiated an action to collect back child support with the Colorado State Child Support Enforcement Bureau. That action resulted in appellant executing a holdback agreement whereby First Montana Title held in escrow for satisfaction of the child support judgment, monies due appellant from a real estate transaction. The District Court granted appellant’s request for a preliminary injunction preventing the reserved funds from being distributed to respondent through the Colorado and Montana Child Support Enforcement Bureaus. The District Court ordered that the Montana Child Support Enforcement Bureau should hold the funds pending a hearing. The decision from that hearing forms the basis of this appeal.

I.

Did the District Court err in not crediting health care payments made by appellant for his minor children against his child support obligation?

Appellant cites us two cases, In re the Marriage of Good (1984), 213 Mont. 269, 691 P.2d 1337, and Haaby v. Haaby (1974), 165 Mont. 475, 529 P.2d 1387, where parents owing child support were given credit against that obligation because the parents had paid expenses they were not required to pay. However, all of the cases cited by appellant can be distinguished from the instant case. Those decisions to credit other payments against the child support obligation were predicated upon a finding that the parties had reached an agreement to credit such payments against the child support obligation.

In the instant case, the District Court found no similar agreement existed. The District Court specifically found that no express or implied agreement existed between the parties that respondent was to reimburse appellant for the health related costs that were respondent’s obligation under the Amended Decree. The District Court heard conflicting testimony on this factual issue and, as trier of fact, resolved the conflict in respondent’s favor. Substantial evidence supports this finding and we will not disturb it.

II.

Did the District Court err in computing the amount of child support due respondent?

Appellant contends that the District Court neither credited appellant with the correct amount of child support he has paid nor calculated his total support obligation correctly. At the hearing, respondent testified that she was claiming child support arrearage for Leah. Upon review, we note undisputed testimony that appellant had not paid any child support for Leah since March of 1986 except for $250 in 1987. Thus, appellant owed respondent 36 months of child support at $125 per month which totals $4,500. The District Court awarded $4,439. We find no reversible error.

III.

Did the District Court err in awarding attorney’s fees to respondent?

Appellant argues that respondent should not be awarded attorney’s fees because she initiated her claim for child support arrearage under false pretext. While an error did exist in the initial claim, the record discloses that respondent corrected the error when she discovered it.

The Amended Final Decree provided in part,

“10. Future Attorney’s Fees: Should any action be commenced to enforce . . . any provision contained herein, the court, as a cost of suit, shall award a reasonable attorney’s fee to the successful party.” (Emphasis added.)

Because respondent had to begin an action to collect back child support, under the clear terms of the Amended Final Decree, she was entitled to attorney’s fees.

In light of our decisions above, we find it unnecessary to discuss the procedural issue raised by appellant.

Affirmed.

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


author: DELIVERING JUSTICE: Mr. Vainio,

text:
    In the MATTER OF KEVIN E. VAINIO, an attorney and COUNSELOR AT LAW, RESPONDENT.
    No. 88-481.
    Decided Dec. 14, 1989.
    787 P.2d 744.
   DELIVERING JUSTICE: Mr. Vainio,

this public censure is being delivered today in accordance with the Order of October 17, 1989, issued out of this Court and served upon you. These proceedings are founded on a complaint charging you with various violations of the Rules of Professional Ethics which apply to attorneys licensed to practice in the State of Montana. After a hearing at which you were personally present and represented by counsel, the Commission on Practice issued its findings, conclusions, and recommendations dated July 27, 1989, which were filed in this Court on July 31, 1989. The Commission recommended that you be suspended from the practice of law for 30 days, that you be publicly censured, and that you pay all costs of the proceeding before the Commission on Practice as a condition to reinstatement in the practice of law. By order dated October 17, 1989, this Court concluded that you should be suspended from practice commencing December 14, 1989, through January 13, 1990, and that you are to file proof of payment of all costs of the proceeding before the Commission on Practice and an affidavit that you have fully complied with all of the requirements of the suspension order before resuming practice. You were given notice by the October 17, 1989, order of this Court to prepare your practice and your clients for your suspension from practice, pursuant to Rule 21, Supreme Court of the State of Montana Rules for Lawyer Disciplinary Enforcement. I will now read the conclusions of the Commission on Practice, whose findings and conclusions are incorporated herein by this reference.

CONCLUSIONS OF LAW

“1. Allegations contained in Count One were proved by clear and convincing evidence that Mr. Vainio refused to disperse when requested by a police officer in violation of § 45-8-102, MCA, resisting arrest in violation of § 45-7-301, MCA, and when subsequently charged with the crimes in the City Court of Bozeman, Montana, Mr. Vainio, through his counsel, entered a plea of guilty to the crime of failure to disperse and the crime of resisting arrest. Under § 37-61-301, MCA, the record of conviction of a misdemeanor involving moral turpitude is conclusive evidence of cause for removal or of suspension of Mr. Vainio. An aggravated case of resisting arrest is a crime involving moral turpitude. Mr. Vainio had to be physically restrained by three police officers in order to effect the arrest.
“The conduct described in Count One, constitutes a violation of the Rules of Professional Conduct adopted by the Montana Supreme Court on June 6,1985, specifically Rule 8.4(b) and (d) in that it constitutes a criminal act that reflects adversely on his fitness as a lawyer as well as conduct prejudicial to the administration of justice.
“2. The allegations contained in Count Two were proved by clear and competent evidence that Mr. Vainio obstructed a police officer in carrying out his duties and thereafter his plea of guilty to the crime charged constitutes conduct which is prejudicial to the administration of justice and a criminal act which reflects adversely on his fitness as a lawyer.
“3. The allegations contained in Count Three were proved by clear and competent evidence that Mr. Vainio obstructed a peace officer when he knowingly obstructed and hindered the enforcement of the criminal law. Such conduct is in violation of Rule 8.4(b) and (d).
“4. Intoxication is not a defense in any disciplinary action before the Commission on Practice, nor will it be considered by the Commission for purposes of mitigating any disciplines recommended by the Commission to the Supreme Court.”

The Supreme Court of the State of Montana unanimously concludes and orders as follows:

1. That you are hereby suspended from the practice of law as an attorney and counselor in the State of Montana, including all tribunals and other bodies of this State, commencing today, December 14, 1989, and continuing through January 13, 1990.
2. That the costs of your proceedings before the Commission on Practice are determined to be a total of $3,530.16, as appears from the attached summary furnished by the Commission on Practice. You have been sent a copy of this statement by certified mail.
3. When you have completed the period of suspension from practice on January 13, 1990, you shall file with this Court proof of payment of such $3,530.16, and also an affidavit stating that you have fully complied with all of the requirements of the suspension order, and you shall serve a copy of the same upon the secretary of the Commission on Practice, in accordance with Rule 20, Rules for Lawyer Disciplinary Enforcement. In addition, you shall see that personal service is made of copies of those papers upon the Chief Justice or Acting Chief Justice of this Court prior to resuming the practice of law. This Court will then issue its Order authorizing you to again practice as an attorney and counselor in the State of Montana.
4. Copies of these Proceedings in Public Censure and Order shall be delivered to you, Mr. Vainio; to your counsel, Peter Michael Meloy; to Gregory O. Morgan, as special prosecutor; to the chairman of the Commission on Practice; to George Bousliman, Executive Director of the State Bar of Montana; to each of the District Judges of the State of Montana; and to each of the United States District Judges for the District of Montana.

DATED this 14th day of December, 1989.

s/J.A. Turnage, Chief Justice

s/John Conway Harrison, Justice

s/Diane G. Barz, Justice

s/William E. Hunt, Sr., Justice

s/R.C. McDonough, Justice

s/John C. Sheehy, Justice

s/Fred J. Weber, Justice

APPENDIX

CERTIFICATION OF STATEMENT OF COMMISSION ON PRACTICE COSTS

**********

IN THE MATTER OF: ) ) KEVIN E. VAINIO, ) Cause No. 88-481 Attorney at Law. )

**********

ASSESSED COSTS: $3,530.16

**********

I HEREBY CERTIFY, that Pat Chenovick, Budget and Financial Officer of the Supreme Court has prepared an appropriate statement . of Commission on Practice costs that incurred as a result of the Vainio matter.

I HEREBY CERTIFY, that on November 21, 1989, I hand delivered a copy of the costs to the Hon. J.A. Turnage, Chief Justice of the Montana Supreme Court, in accordance with the Supreme Court Order dated October 17, 1989.

I HEREBY CERTIFY, that on November 21, 1989, I mailed by certified mail, a true copy of the Commission costs to Kevin E. Vainio, Attorney at Law, 27 West Park Street, Butte, MT 59701, true copy attached hereto.

DATED THIS 21st day of November, 1989.

BY: “Hosier) jjlieitcrzA._ KAREN SEDLOCK, ADMIN. SECR. COMMISSION ON PRACTICE

October 30, 1989

Karen Sedlock Executive Secretary Commission on Practice 215 Sanders, Room 317 Helena, MT. 59620

Dear Karen,

Per your request in regards to the costs associated to COP case Number 935, Kevin E. Vainio, I am detailing the costs that I can identify.

lone T. Daniels........Transcript of hearing $ 871.70

Gregory Morgan.......Investigation ....... 1,242.02

Cost of May hearing....................... 1,163.88

Printing cost of deposition................. 252.56

Total...... $3,530.16

If I can be of further assistance in this matter, please call.

Sincerely,

Patrick A. Chenovick Finance/Budget/Training Officer Montana Supreme Court


text:
    In re the PETITION OF DANNY L. MARTIN.
    No. 89-395.
    Decided Dec. 19, 1989.
    787 P.2d 746.
   ORDER

Petitioner Danny L. Martin was convicted of burglary, theft, and criminal mischief in the District Court for the Fifth Judicial District, Beaverhead County, in December 1985. On July 24, 1989, he filed this petition for post-conviction relief from that judgment. The Attorney General, on behalf of the State of Montana, has filed a response to the petition and Martin has filed a reply to the State’s response.

Martin initially requests that an attorney be appointed to represent him in this matter. There is no constitutional requirement that counsel be appointed in a post-conviction relief procedure, which is civil in nature. Pennsylvania v. Finley (1987), 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539. The Court has determined that the matters raised in this petition can be considered by examining the District Court record and the record on appeal. Martin’s motion that counsel be appointed to represent him is denied.

Martin raises the following claims:

1) That he has newly discovered evidence regarding the fingerprint used at trial;
2) That the District Judge was guilty of judicial misconduct during Martin’s trial;
3) That the County Attorney was guilty of prosecutorial misconduct during Martin’s trial;
4) That Martin received ineffective assistance of counsel at trial; and
5) That Martin received ineffective assistance of counsel on appeal. We will discuss these claims in the order in which they were raised.

I

Newly Discovered Evidence

At trial, the State presented expert testimony that a fingerprint found at the scene of the crime was Martin’s. Martin presented his own expert, who testified that the fingerprint did not match Martin’s. Martin now submits affidavits of two new fingerprint experts who also state that the print from the crime scene does not match Martin’s. He moves for an evidentiary hearing on this issue.

The issue of the validity of the State’s fingerprint evidence was well brought out at trial. It was also an issue presented on appeal.

See State v. Martin (1987), 226 Mont. 463, 465-66, 736 P.2d 477, 478-79. We hold that the affidavits and argument now submitted by Martin are merely cumulative and do not entitle him to post-conviction relief. We deny his motion for an evidentiary hearing on this issue.

II and III

Judicial and Prosecutorial Misconduct

Martin claims that several comments made at trial by the judge and by the county attorney amounted to misconduct on their parts. Some of the judge’s comments were addressed on direct appeal, where this Court held that they did not constitute reversible error. Martin, 736 P.2d at 479-80. As the State points out in its brief, those claims are barred from further consideration in post-conviction proceedings. McKenzie v. Osborne (1981), 195 Mont. 26, 32-34, 640 P.2d 368, 372-73.

As to those judicial and prosecutorial comments not raised on direct appeal, § 46-21-105, MCA, governs:

“What grounds for relief waived if not raised. All grounds for relief claimed by a petitioner under this chapter must be raised in his original or amended petition. Any grounds not so raised are waived unless the court on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition. When a petitioner has been afforded a direct appeal of his conviction, grounds for relief that could reasonably have been raised on direct appeal may not be raised in his original or amended petition. [Emphasis supplied.]”

We hold that the claims of prosecutorial and judicial misconduct which were not raised on direct appeal are procedurally barred in this petition.

IV

Ineffective Assistance of Counsel at Trial

This claim is based on defense counsel’s failure to 1) send the fingerprint evidence to the Montana Crime Lab for analysis, 2) file a motion to dismiss for insufficient evidence, 3) file a motion to suppress, and 4) object at trial to the comments of the judge and the county attorney which are now raised in the judicial and prosecutorial misconduct claims.

The Court has reexamined the trial court record in this case in light of the above claims. We note that counsel procured an independent expert to examine and analyze the fingerprint evidence used by the State; that he made a motion for directed verdict at the close of the State’s evidence; and that the gist of the case for the defense was the unreliability of the State’s fingerprint evidence. Defense counsel’s affidavit submitted in relation to this petition states that, as a tactical matter, he chose not to object to the comments of the judge and the prosecutor about which Martin now complains. Because the most egregious of the remarks were raised on appeal, and were not found as grounds for reversal, we see no deficiency in trial counsel’s choice not to object. After reviewing the record, we conclude that trial counsel’s performance was not deficient and prejudicial, as required under Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed 2d 674, to support a claim of ineffective assistance of counsel.

V

Ineffective Assistance of Appellate Counsel

Martin alleges that his counsel on appeal gave him ineffective assistance because she failed to raise all legitimate legal issues relating to judicial misconduct and ineffective assistance of trial counsel. He also states that she failed to use a written statement from one of the experts cited under Issue I, above, that Martin’s fingerprint did not match the one found at the crime scene.

It is not necessary that appellate counsel raise every colorable issue on appeal. Jones v. Barnes (1983), 463 U.S. 745, 750-54, 103 S.Ct. 3308, 3312-14, 77 L.Ed.2d 987, 992-95. The Court has reviewed the record and concludes that Martin’s appellate counsel raised those issues most worthy of review and argued them well. The allegation of ineffective assistance of counsel on appeal is not supported in the record.

VI

Having considered the issues raised in Martin’s petition for post-conviction relief and the response thereto and concluding that none of the issues raised have merit, this court hereby ORDERS that the petition is dismissed as a matter of law for failure to state a claim for relief.

DATED this 19th day of December, 1989.

s/J.A. Turnage, Chief Justice

s/John Conway Harrison, Justice

s/Diane G. Barz, Justice

s/John C. Sheehy, Justice

s/William E. Hunt, Sr., Justice

s/Fred J. Weber, Justice

s/R.C. McDonough, Justice


author: JUSTICE WEBER

text:
    LYNN G. SCHWEIGERT and Glenna J. Schweigert, Plaintiffs and Appellants, v. WILLIAM V. FOWLER and Rosemary T. Fowler, Defendants and Respondents.
    No. 89-76.
    Submitted on Briefs Oct. 1989.
    Decided Jan. 2, 1990.
    784 P.2d 405.

      Elizabeth A. Best, Best Law Offices, Great Falls, for plaintiffs and appellants.
    David F. Stufft, Frisbee, Moore, Stufft & Olson, Cut Bank, for defendants and respondents.
   JUSTICE WEBER

delivered the Opinion of the Court.

This appeal arises from a judgment following a bench trial by the District Court, Ninth Judicial District, Toole County, Montana. Plaintiffs alleged fraud in the sale of land and sought rescission of a contract for deed. Following trial, the court found in favor of defendants. Plaintiff appeals. We affirm.

The controlling issues are:

1. Are the District Court’s findings of fact supported by substantial credible evidence?
2. Did the District Court err in failing to order restitution for plaintiffs?
3. Did the District Court err in failing to require Defendants to pay Plaintiff’s expert witness fees?

Lynn and Glenna Schweigert both grew up working on ranches. Lynn was raised in South Dakota and worked on various ranches from grade school through high school. Glenna was raised on a ranch in Montana. Lynn and Glenna met in Conrad, Montana while Lynn was working there as an ironworker. They married, and moved to various states while Lynn continued to do ironwork, eventually settling near Seattle, Washington. For approximately a year and a half in the mid-1960’s, the Schweigerts moved back to Montana. During this time they lived on the ranch owned by Glenna’s father, helping him with ranching. They lived most of their married life in Washington, but desired to return to Montana to buy a ranch. Glenna’s brother, Jack Hurley, is a rancher in Montana, and he began helping them search for a ranch to purchase.

In 1985 Mr. Hurley heard that a ranch very close to his ranch, owned by William Fowler, was for sale. On inquiry he learned that the asking price was $450,000, which he determined was too high. In 1986 Mr. Fowler called Mr. Hurley and informed him that he had lowered the price to $300,000. Mr. Hurley learned from a realtor that the ranch had been appraised at $250,000, and that Mr. Fowler might be willing to take even less. Mr. Hurley then discussed the Fowler ranch with his father, Gordon Hurley, and they determined that they should tell the Schweigerts about it. Gordon and Jack Hurley took a short tour of the ranch in the spring of 1986, driving through it in Gordon’s pick-up. During this tour, Mr. Fowler showed them a gravel pit and pasture reservoirs.

In April of 1986 the Schweigerts decided to travel to Montana to view the ranch themselves. They arrived in Montana during a snowstorm. The next day they drove to the Fowler ranch but were unable to drive over the property because of the snow on the ground. However, they discussed the property with the Fowlers over the kitchen table.

A few days later Mr. Schweigert and Jack Hurley drove through the ranch, and on another occasion the Schweigerts were both driven through the property by Mr. Fowler. During this trip they asked Mr. Fowler about the presence of leafy spurge and knapweed. Mr. Fowler stopped and showed them a leafy spurge plant. Shortly after this, Lynn Schweigert and Jack and Gordon Hurley flew over the ranch to view its boundaries.

The Schweigerts decided to purchase the ranch, and the parties agreed to a price of $226,500. A Receipt and Agreement to Sell and Purchase was signed on April 17, 1986. This agreement did not state a total number of acres; rather the land was sold as a gross unit for a set price. Further, the agreement contained a clause which stated:

“Purchaser enters into this agreement with full reliance upon his independent investigation and judgment. No agreements, verbal or otherwise, modify or affect this agreement.”

On April 18, 1986, the Schweigerts delivered $2,500 of earnest money to the Fowlers. They then moved from Washington to Montana. In April and June the Schweigerts seeded all of the spring crops for the 1986 growing season. After seeding the property, the Schweigerts executed a Contract for Purchase and Sale on June 16, 1986. In this contract the total purchase price was stated as $221,500.

The Schweigerts continued to farm this property for the years 1986 and 1987. On August 7, 1987, they filed suit against the Fowlers, alleging fraud, and seeking rescission of the contract. On November 18, 1987, the Schweigerts were notified that they were in default under the terms of the contract. On December 22, 1987 they were notified that the contract for deed had been canceled for failure to cure the default. On June 17, 1988, the Schweigerts executed a quitclaim deed on the property to the Fowlers.

I

Are the District Court’s findings of fact supported by substantial credible evidence?

In reviewing the trial court’s findings of fact and conclusions of law, this Court’s standard of review is to determine whether the findings of fact are supported by substantial credible evidence. Lorenz v. Estate of Schilling (Mont. 1989), [236 Mont. 82,] 768 P.2d 869, 870, 46 St.Rep. 198, 200. This Court will not overturn findings of fact by the District Court unless they are clearly erroneous. Rule 52(a) M.R.Civ.P.

In the present case, Plaintiffs are contending that Mr. Fowler made several fraudulent misrepresentations. They contend that he made the following misrepresentations in order to induce them to buy the land:

“a. The farm contained 750 acres of cropland, whereas it only contained 523 acres;
“b. The farm contained 80 — 100 acres of irrigated producing hay land, whereas it only contained 35 — 40 acres of poorly producing hayfields;
“c. Approximately 298 acres of farm ground leased from the State of Montana were broken and ready for production, whereas 59.3 acres of this land were unbroken;
“d. Approximately 11 acres of crop land bordering the Fowler property and adjacent to land owned by neighbor, Merrill Kovatch, were contained in the State lease which was part of the Defendants’ property, whereas these 11 acres were actually owned by Kovatch;
“e. The property contained only approximately one acre of land which was infected with the noxious weeds leafy spurge and Russian knapweed, whereas 600 acres were heavily infested with noxious weeds;
“f. A gravel pit located in Section 19 of the farm was contained in deeded acreage and was available for excavation as a source of needed income for a potential purchaser, whereas this gravel pit was actually owned by the Bureau of Land Management;
“g. The barn water well located on the property would water 250 head of cattle and provide adequate water for the residence, whereas the barn well went dry watering only 48 head of cattle;
“h. The reservoirs in the pasture land would hold water year round and provide adequate water for 120 — 150 animal units, whereas two pastures were incapable of holding water year round, and went dry;
“i. That the pastures had a carrying capacity of 120 — 150 animal units, whereas they only had half this capacity;
“j. No more than .50 posts would need replacement in order to repair fences adequately to hold cattle, whereas over 400 posts needed repair.”

In Poulsen v. Treasure State Industries, Inc. (1981), [-Mont.-,] 626 P.2d 822, 825, 38 St. Rep. 218, 221, we addressed allegations of fraud, stating:

“In Lee v. Stockmen’s Nat. Bank (1922), 63 Mont. 262, 284, 207 P. 623, this Court set down the elements which a plaintiff must prove to make out a prima facie case of actual fraud: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted upon by the person and in the manner reasonably contemplated; (6) the hearer’s ignorance of its falsity; (7) his reliance upon its truth; (8) his right to rely thereon; and (9) his consequent and proximate injury.
“Actual fraud is always a question of fact. Section 28-2-404, MCA. Fraud can never be presumed but must be proved by a preponderance of the evidence. Good faith will always be presumed and mere suspicion of fraud is not sufficient.” (Citation omitted.)

Poulsen, 626 P.2d at 825.

Plaintiffs have alleged that Mr. Fowler made fraudulent misrepresentations about ten different conditions of the ranch property. They contend that these representations were material, that Mr. Fowler knew them to be false, yet induced the Schweigerts to purchase the property in reliance on the misrepresentations. Plaintiffs contend that they did not know the statements were false, that they relied upon these misrepresentations, and that this reliance was justified. They contend they were damaged by the misrepresentations.

The District Court made lengthy findings of fact on the issue of fraud, specifically, addressing most of the ten alleged misrepresentations. The court made no specific findings as to whether each of these representations were actually made by Mr. Fowler, or as to the falsity of each separate allegation. Rather, the District Court found that as to each alleged misrepresentation the Schweigerts learned the true condition of the property before they signed the contract to purchase on June 16, 1986. Thus the court concluded that the Schweigerts did not rely on the truth of the asserted false statements.

Initially, we note that the District Court found it significant that both Glenna and Lynn Schweigert had worked on ranches, and were familiar with farmland and farming methods. The court determined that the Schweigerts inspected the ranch property five times prior to signing any agreement. The court found it significant that Lynn Schweigert and Gordon and Jack Hurley flew over the property in an airplane to inspect the property. The Schweigerts seeded all of the spring crops for the 1986 growing season prior to signing the contract to purchase. The court noted that the property was open for inspection, prior to signing the intent to purchase and prior to signing the contract. Additionally, the court emphasized that the Schweigerts never complained of any misrepresentations until filing suit in August of 1987, although they spoke with various people about the property, including Mr. Fowler and his son. The court noted that they seeded, harvested, marketed and appropriated for their own use two consecutive crops for 1986 and 1987, making no complaints.

In regard to the allegation that Mr. Fowler said the property contained 750 acres of cropland, whereas the ranch only contained 523 acres of cropland, the District Court found several facts to be relevant. On April 17, 1986, Mr. Schweigert told the Agricultural Stabilization and Conservation Service (ASCS) office in Toole County that he would be seeding a total of 235.3 acres during 1986. The court noted that the Schweigerts were aware that only one-half of the farmland would be cropped on any given year. On July 28, 1986 Mr. Schweigert purchased hail insurance, representing that his total number of acres for the crop year 1986 was 235.7 acres. On December 9,1986 Mr. Schweigert contracted to participate in the 1987 federal government price support and production price support programs. He acknowledged that he was to seed 129.4 acres of wheat and 103.8 acres of crop lands. He did not at that time complain about the number of farm acres. On November 24, 1986 the ASCS office informed the Schweigerts that their cropland acres were 595.9 acres. The court also noted that ASCS maps are available from which a producer can determine how many acres he has seeded.

In regard to the alleged misrepresentation by Mr. Fowler that the ranch contained 80 to 100 acres of irrigated, producing hayland, the court found that the Schweigerts were shown the hay land and knew that the hay land needed to be reseeded during their own visual inspection of the properties in April 1986.

The Schweigerts place much emphasis on their allegation that the property was “infested with noxious weeds.” The court, however, found that Lynn Schweigert knew there was knapweed infestation during the 1986 spring seeding. Jack Hurley testified that he discussed the knapweed with Lynn that spring, and Mr. Schweigert admitted that he sprayed for knapweed on forty acres of the property prior to signing the purchase agreement. Additionally, the Toole County weed supervisor testified that knapweed and leafy spurge are observable at all times during the year.

In regard to the leafy spurge, the court found that John Wanken, a rancher in the area, testified that he saw leafy spurge in full bloom on the property in May 1986, on the day of an auction that was conducted to sell Mr. Fowler’s farm machinery. The court noted that Glenna Schweigert testified that she conversed with federal agencies regarding the control and containment of leafy spurge and knapweed during the summer of 1986.

The Schweigerts contend that Mr. Fowler represented that he owned the gravel pit, when in fact it was located on Bureau of Land Management (BLM) properties. The court, however, found that Mr. Fowler told the Schweigerts that he did not know who owned the gravel pit. The court additionally noted that Glenna Schweigert made extensive notes of meetings with Mr. Fowler in April 1986, yet those notes contained no mention of the gravel pit. In September 1986, the Schweigerts received a map showing the location of all BLM properties on the ranch. Mr. Tom Stokes, an excavator, testified that in September 1986 Lynn Schweigert showed him the BLM map and told him he believed the gravel pit was on BLM land. The Schweigerts, however, made no complaints at this time about the gravel pit.

As to the Schweigert’s complaints about the reservoirs, the court observed that the reservoirs were open and could be readily inspected prior to the signing of the contract. It also noted that some years are “dry”, and there will be no water for the reservoirs. The court found that the water well did not go dry.

At trial the Schweigerts admitted that the issue of how many fence posts needed repair was a minor concern. The court determined that, in any event, the number of fence posts to be replaced was open, obvious and could be readily seen, by the Schweigerts during their first inspections of the property.

From our review of the record, we conclude that substantial credible evidence supports the findings of fact by the District Court. The Schweigerts had extensive background in farming and ranching prior to marriage. While married they spent IV2 to 2 years working on a ranch owned by Glenna’s father, which is only a few miles from the ranch they purchased. On their first trip to Montana in April 1986, they spent ten days to two weeks at the home of Glenna’s brother, Jack Hurley. During this time they inspected the property numerous times. Glenna’s father and brother were experienced ranchers in that area. They signed an agreement to purchase which contained a clause stating that they were relying on their independent inspection of the property. They physically worked the property for two months prior to signing the final contract for deed on June 16, 1986. During this time they had continuous opportunity to discover the true conditions of the ranch property. The Schweigerts inspected, seeded, and worked the property prior to signing the contract to purchase. Even in the absence of their admitting that they knew the true condition of the property, it is clear from the court’s findings that the Schweigerts did not rely on the truth of the alleged false statements. Substantial credible evidence supports this conclusion, and the District Court’s conclusion that the Schweigerts failed to prove the elements of fraud by a preponderance of the evidence.

The District Court also made extensive findings relating to the fact that the Schweigerts did not complain of any fraud or misrepresentation until late in 1987, and in fact treated and referred to the property as their own, before and even subsequent to filing suit in August 1987. Section 28-2-1713, MCA, states that to accomplish rescission a party must “rescind promptly upon discovering the facts which entitle him to rescind . . .,” and must restore or oifer to restore the property which was received under the contract. The District Court noted that the Schweigerts admitted that they were aware of all alleged misrepresentations by spring of 1987, yet continued to work the property and appropriate the crop for their own use. The Schweigerts neither informed the Fowlers of the alleged fraud, nor offered to tender the property back. As late as October 1987 the Schweigerts were treating the property as their own and representing to third parties that they owned the property. We conclude that these findings by the District Court are supported by substantial credible evidence, and were properly considered by the District Court in analyzing the fraud issue. We affirm the District Court’s conclusion that fraud was not proven.

Plaintiffs allege that the District Court erred in trying this solely as a case for rescission, which foreclosed any attempt to prove damages for fraud. We conclude that it is unnecessary to discuss this issue since plaintiffs failed to prove fraud.

II

Did the District Court err in failing to order restitution for plaintiffs?

The Schweigerts contend the District Court should have ordered Fowlers to pay restitution to them of approximately $110,000. This amount includes Schweigerts’ down payment of $40,000, improvements to the property valued at $80,000, and payments on certain loans. The Fowlers sold the property prior to trial for $241,000. The Schweigerts contend it is “unfair” to allow Fowlers to benefit from selling the land twice. Plaintiffs urge several theories to support this contention.

Plaintiffs contend that § 71-3-1302, MCA, allows them a purchaser’s lien against the property. That statute provides:

“Purchaser’s lien on real property. One who pays to the owner any part of the price of real property, under an agreement for the sale thereof, has a special lien upon the property, independent of possession, for such part of the amount paid as he may be entitled to recover back, in case of a failure of consideration.”

This statute is not helpful to the Schweigerts. It only applies to a case where there is a failure of consideration and the purchaser is entitled to recover part of the amount paid. In the present case, the District Court did not grant rescission; hence, there was no failure of consideration, cf. Warner v. Peterson (1988), [234 Mont. 319,] 762 P.2d 872, 45 St.Rep. 1939 (allowing a purchaser’s lien where rescission was granted).

Plaintiffs urge application of Montana’s anti-forfeiture statute, § 28-1-104, MCA, which states:

“Relief from forfeiture. Whenever by the terms of an obligation a party thereto incurs a forfeiture or a loss in the nature of a forfeiture by reason of his failure to comply with its provisions, he may be relieved therefrom upon making full compensation to the other party, except in case of a grossly negligent, willful, or fraudulent breach of duty.”

However, this statute is also not helpful to Schweigerts, They did not offer to pay Fowlers full consideration for the property.

Finally, Schweigerts contend that restitution is appropriate because Fowlers have been unjustly enriched, citing Robertus v. Candee (1983), 205 Mont. 403, 670 P.2d 540. This allegation ignores the fact that Schweigerts are the defaulting purchasers, and the contract for deed expressly stated that in the event of purchaser’s default, all payments made and any improvements to the property would be retained by the sellers. Restitution is normally denied to a defaulting purchaser. Burnham, Contract Damages in Montana Part II: Reliance and Restitution, 45 Mont.L.Rev. 1, 19 (1984). This view was implicitly acknowledged in Robertus, where the non-breaching injured party was allowed restitution from the party that breached or repudiated an oral contract.

Additionally “[ujnjust enrichment is an equitable doctrine wherein the plaintiff must show some element of misconduct or fault on the part of defendant, or that the defendant somehow took advantage of the plaintiff.” Randolph V. Peterson v. J.R. Simplot Co. (Mont. 1989), [239 Mont. 1,] 778 P.2d 879, 883, 46 St. Rep. 1463, 1468; Brown v. Thornton (1967), 150 Mont. 150, 156, 432 P.2d 386, 390. While this standard may state an “overly restrictive view of the availability of restitution,” Burnham, at 12, it is appropriate in the present case. The Schweigerts failed to establish misconduct on the part of Fowlers, and the equities of the present case do not support a theory of unjust enrichment.

We conclude that Schweigerts have failed to present any basis for restitution.

Ill

Did the District Court err in failing to require Defendants to pay Plaintiff’s expert witness fees?

The Schweigerts contend that the District Court erred in failing to require the Fowlers to pay $293.50 in fees incurred when Fowlers deposed two of Schweigerts’ expert witnesses.

In October 1987, counsel for Fowlers requested through interrogatories the names and addresses of all expert witnesses to be called by the Schweigerts at trial. This request included summaries of the experts’ testimony. The Schweigerts, however, did not produce names of any experts until July 7, 1988, at which time they produced names of seven expert witnesses, but no addresses or summaries of testimony. Counsel for Fowlers then moved the court for a protective order, or in the alternative, a continuance of the trial, since trial was set for July 26, 1988. However, the parties agreed that certain expert witnesses would be deposed prior to trial, and the court did not rule on the motion.

Counsel for Fowlers deposed two expert witnesses, in July of 1988. In a posttrial motion to alter or amend the judgment, the Schweigerts raised the issue of whether Fowlers should be required to pay fees associated with these depositions. That motion was denied by the District Court. On appeal, the Schweigerts contend that the District Court should have required the Fowlers to pay these fees, citing Rule 26(b)(4)(C), M.R.Civ.P. Our analysis of this rule, however, discloses no error. The rule does not require the court to order payment of expert witness deposition fees, unless the court has ordered this discovery, and even in that instance, the court may not order payment if manifest injustice would result. We conclude that the District Court did not err in failing to require Fowlers to pay expert witness fees.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES BARZ, HUNT and McDonough concur.