author: JUSTICE TRIEWEILER

text:
    WILLARD EARL ARNOLD, Plaintiff and Respondent, v. BOISE CASCADE CORPORATION, a Delaware corporation, Defendant and Appellant.
    No. 92-386.
    Submitted on Briefs January 21, 1993.
    Decided July 6, 1993.
    50 St.Rep. 784.
    259 Mont. 259.
    856 P.2d 217.

      For Defendant and Appellant: David A. Veeder, Veeder & Broeder, Billings.
    For Plaintiff and Respondent: K. D. Peterson, Peterson and Schofield, Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Boise Cascade Corporation appeals from a jury verdict and judgment entered in favor of Willard Earl Arnold by the District Court for the Thirteenth Judicial District, Yellowstone County, on July 2,1992. Arnold was awarded damages of $41,920 for wrongful discharge from employment by Boise.

We affirm.

The following issues are raised on appeal:

1. Was Arnold barred from seeking relief because he failed to file suit within one year as required by the Wrongful Discharge From Employment Act?

2. Did the trial court abuse its discretion when it allowed Arnold to testify concerning the amount of damages he incurred?

3. Did the trial court abuse its discretion by allowing Arnold’s counsel to present evidence of damages during summation?

4. Did the trial court abuse its discretion when it refused Boise’s proposed jury instruction defining the term “discharge”?

This litigation involved a factual dispute with respect to the time and circumstances surrounding Arnold’s termination from employment with Boise.

Arnold was hired by Boise in July 1982 to work at the millwork facility in Billings. In order to provide standard guidelines and personnel policies, Boise provided its employees with a “U.S. Salaried Employee Handbook” which referred to Boise’s Corporate Policy Manual.

Of significance to this litigation are the provisions of the Handbook and Policy Manual which provide for “temporary curtailment leave,” defined as an unpaid absence caused solely by reduced work availability. Specifically at issue was the company’s policy of reinstating an employee who has been placed on temporary leave to the position previously occupied or, if that position is not available, to one that is suitable based on the employee’s salary, skills, and experience. The manual states that temporary curtailment leave concludes when six months have elapsed and the employee has not been asked to return to work. It further states: “At the end of six months, the employee will be terminated subject to the provisions of the Termination of Employment Policy, 10.2. Such termination will be considered involuntary, and severance pay provisions apply.” The termination provisions referred to require the company to give the employee a written notice of termination or two weeks pay in lieu of that notice, and severance pay based on length of service and salary at the time of termination.

On February 19,1988, due to a lagging local economy, Arnold was placed on temporary curtailment leave and was told he would probably be recalled in one to two months. By April 1988, when he had not yet been recalled by Boise, Arnold accepted a position with the Gardner Distributing Company at a salary considerably lower than what he was earning at Boise. On April 13,1988, Arnold went to Boise and requested his vacation pay and funds in his Supplemental Savings and Retirement Plan (SSRP).

It is at this point that each party’s version of events varies.

Arnold’s representation to the jury was that he always anticipated returning to Boise, because he was led to believe he would have that opportunity when he was temporarily laid off. He took the job with Gardner and requested his vacation pay and SSRP funds because he could not idly sit and wait to be rehired, and needed the money to provide for his family during the interim. He insisted that he never told anyone that he was voluntarily resigning from Boise, and that it was his understanding that if he went back to work for Boise, he could repay the SSRP funds and reinstate the program.

Although six months eventually elapsed, Arnold pointed out that Boise never initiated the involuntary termination procedures as described in the manual which required Boise to give Arnold notice or pay in lieu of notice, and severance pay. Arnold’s claim was that the temporary curtailment leave was never terminated, and that Boise had an obligation to rehire him in accord with the company’s policies as soon as a suitable position was available. He testified that he made very clear to the management that he was ready, willing, and able to return to Boise whenever he received a call, even if it was just a part-time position.

In contrast, Boise asserted that Arnold voluntarily terminated his employment with the company when he accepted the position at Gardner and requested his vacation and retirement pay. Boise noted that, although Arnold contacted the company frequently during the first two months of lay-off, he never inquired about job possibilities after taking the job with Gardner even though he was aware that some employees were being reinstated. Boise testified that Arnold admitted that he knew SSRP funds could only be paid upon separation from the company, and that, when he elected to continue health care coverage on a self-pay basis, Arnold understood that his health coverage had ended due to termination of employment on April 13, 1988. Thus, it was Boise’s contention that Arnold voluntarily terminated employment on that date.

Although Boise asserted that Arnold terminated on a voluntary basis on April 13, 1988, it argued that even if the jury believed otherwise, once six months of temporary leave had elapsed, an involuntary discharge was automatically effective according to the company’s policy. In either case, the company contends it was thereafter under no legal obligation to rehire or reinstate Arnold since he was no longer employed by Boise.

In March 1990, Arnold discovered that Boise was ready to fill the position that he had been laid off from two years earlier. When he inquired about the job, he was told he would have to fill out an application and wait for the company to respond. Two to three weeks later he was informed that Boise had hired another applicant to fill the position.

Arnold filed suit ten months later, on January 16, 1991, in which he claimed that he had been wrongfully discharged from employment on or about April 1990, when Boise failed to recall or rehire him in accordance with company policy. He sought damages for loss of wages, fringe benefits and costs, and expenses. The cause of action was based on Montana’s Wrongful Discharge From Employment Act, found at §§ 39-2-901 through -914, MCA. As set forth by Arnold, § 39-2-903(2), MCA, defines a discharge to include “failure to recall or rehire,” and the act specifies that a discharge is actionable if it was not for good cause or was in violation of the express provisions of the employer’s written personnel policy.

Atrial was held on June 29,30, and July 1,1992. The jury resolved the questions of whether there had been a voluntary discharge, and whether Boise had an obligation to recall or rehire him, in Arnold’s favor and against Boise. It found that Arnold had not terminated employment in 1988, but rather had been discharged in 1990 without good cause and in violation of the company’s written personnel policy when it failed to recall or rehire him. The jury assessed damages in the amount of $41,920.

Judgment for that amount was entered against Boise on July 2, 1992. From that judgment, Boise appeals.

I.

Was Arnold barred from seeking relief because he failed to file suit within one year as required by the Wrongful Discharge From Employment Act?

Arnold’s claim is governed by § 39-2-911, MCA, of the Wrongful Discharge From Employment Act, which states that all actions brought pursuant to this act must be filed within one year after the date of discharge. Boise claims that Arnold voluntarily terminated his employment on April 13, 1988, and the complaint was not filed until January 16, 1991, nearly three years later.

The evidence Boise presented to the jury was that even if Arnold did not know he had been terminated in 1988, the documents forwarded to Arnold, such as the withdrawal of SSRP funds, vacation pay, and the health benefit election, supported the fact that Boise affirmatively discharged him from employment at that time. Boise asserts that the statute cannot run from the time when it refused to rehire Arnold because it had no obligation to do so.

After considering the evidence and testimony, the jury found otherwise. The jury was asked to decide whether a discharge had occurred on or before January 16,1990, the date one year prior to the time Arnold filed his cause of action. It found that a discharge had not occurred. The jury found that Arnold had not quit his employment with Boise, nor did Boise take the necessary steps to effectuate an involuntary termination prior to that date. Boise appeals this finding and urges this Court to find as a matter of law that Arnold’s employment was terminated on April 13, 1988, thus precluding him from stating a claim for relief.

When, and under what circumstances, Arnold was discharged from Boise are questions of fact which were properly presented to the jury. We recently discussed our function in reviewing jury verdicts in Simchuk v. Angel Island Community Association (1992), 253 Mont. 221, 833 P.2d 158, and Silvis v. Hobbs (1992), 251 Mont. 407, 824 P.2d 1013. In those cases, we held that it is not the function of this Court to agree or disagree with the jury’s verdict. Our role is to determine whether there was substantial evidence to support the verdict. Substantial evidence is evidence which a reasonable mind might accept as adequate to support a conclusion, even if the evidence is weak or conflicting. Silvis, 824 P.2d at 1015.

We reaffirmed these general principles in Wisher v. Higgs (1993), [257 Mont. 132], 849 P.2d 152, 156, 50 St. Rep. 191, 193, where we stated that when reviewing the record, we examine the facts in a light most favorable to the prevailing party. If conflicting evidence exists, we do not retry a case because the jury chose to believe one party over another. Simchuk, 833 P.2d at 163.

In this instance, the jury’s resolution of the discharge issue was based primarily on its determination of credibility of the witnesses and the weight to be given to specific evidence. Arnold’s testimony on this point was corroborated by the admission of some management-level employees that Arnold never actually stated that he was quitting. Furthermore, the evidence suggests that Boise’s assumption that Arnold was quitting was largely one of inference. It is evident that the jury chose to believe the evidence presented on Arnold’s behalf on this disputed point, and it is not our function to find otherwise, provided there is adequate evidence to support this finding.

Based on our review of the record, we conclude that there was substantial evidence to support the finding that Arnold was not barred from seeking relief by the statute of limitations. We affirm the jury verdict on this issue.

II.

Did the trial court abuse its discretion when it allowed Arnold to testify concerning the amount of damages he incurred?

Boise next asserts that the court improperly allowed Arnold to testify concerning his estimation of the damages he incurred. The basis for Boise’s objection to this testimony is that Arnold was not trained as a labor economist and had no training or experience in calculating the value of fringe benefits. Boise complains that some of the calculations were admittedly “approximations,” and in one instance Arnold retracted a previous statement regarding the value of his benefits, stating he had been mistaken. Boise further protests the fact that Arnold could not produce any documentary evidence to support his assessment of the value of the fringe benefits.

A court’s ruling on the admissibility of evidence, which includes a witness’s testimony, is subject to an abuse of discretion standard and we will not overturn a court’s ruling absent a showing of an abuse of discretion. Miranti v. Orms (1992), 253 Mont. 231, 833 P.2d 164.

Section 39-2-905(1), MCA, provides for specific damages to be awarded in a wrongful discharge action, and limits them to lost wages and fringe benefits for a period not to exceed four years from the date of discharge, together with interest. Additionally, interim earnings must be deducted from the amount awarded for lost wages.

After reviewing the record, we note that Arnold testified to the amount he had been earning at Boise, what he had earned in the interim, and documented this by submitting his W-2 tax forms. Arnold also knew the benefits he had received while at Boise and based his testimony on his personal knowledge of what those benefits were worth. The fact that he conceded these were approximations would go to the weight the jury would give to this testimony, rather than its admissibility. There was also evidence from Boise regarding the wages currently being paid for his former position.

Considering the testimony as a whole, we do not find it unreasonable that the court allowed Arnold to testify about his wages and benefits while employed at Boise, and the amounts he earned after the company refused to rehire him. We conclude the court did not abuse its discretion when it determined that Arnold was competent to testify concerning his estimation of damages.

III.

Did the trial court abuse its discretion by allowing Arnold’s counsel to present evidence of damages during summation?

Boise contends that, in addition to the inadequacy of Arnold’s assessment of damages, the problem was compounded when the court allowed Arnold’s counsel to present a written summary of the alleged damages which included an interest rate not in evidence, and a fringe benefit figure that contradicted Arnold’s estimate. By allowing this objectionable summation, Boise maintains the court committed prejudicial error relating to the jury’s award of damages.

The court’s ruling on this evidentiary matter is similarly discretionary and will be upheld absent an abuse of discretion. Miranti, 833 P.2d at 166.

After reviewing the pertinent sections of the closing argument in question, we cannot conclude that the figures put forth by Arnold’s counsel were totally unsupported by evidence which was before the jury. Moreover, when the attorney for Boise objected to the use of the interest rate it was made clear to the jury that they were not required to use that specific interest rate. We note that the damages verdict that the jury arrived at was its own assessment; it was not the value estimated by Arnold or requested by his counsel. In light of the jury’s obvious ability to consider the evidence as a whole and make its own determination of damages, we conclude there was no abuse of discretion when the court allowed the challenged summation.

IV.

Did the trial court abuse its discretion when it refused Boise’s proposed jury instruction defining the term “discharge”?

The District Court has discretion in deciding how to instruct the jury, taking into account the theories of the parties, and we will not overturn that decision absent an abuse of discretion. Mannix v. Butte Water Company (Mont. 1993), 854 P.2d 834, 846, 50 St. Rep. 691, 699; Cline v. Durden (1990), 246 Mont. 154, 164, 803 P.2d 1077, 1083.

Boise contends that the court erred when it refused to give the following offered instruction which directly quoted the definition of discharge under § 39-2-903(2), MCA:

Discharge is defined as any termination of employment, including resignation, elimination of the job, layoff for lack of work, failure to recall or rehire, and any other cutback in the number of employees for a legitimate business reason.

Instead, the court instructed the jury that “Discharge includes termination of employment including resignation, failure to recall or rehire.” Boise contends the jury had no opportunity to conclude that Arnold was discharged through a different means, at a different time, than the two events specified. The assertion is that when the jury was asked to determine if Arnold was discharged on or before a date one year prior to the time suit was filed, it could have drawn no other conclusion than “no” in light of the definition it was given.

We disagree with this contention. On the basis of the definition it was given, the jury could have concluded that Arnold resigned through voluntary termination of employment on April 13, 1988, as was argued by Boise. Had it so concluded, Arnold would have been precluded from any recovery under this cause of action.

The instruction addressed the types of discharge which were supported by the evidence, and informed the jury of the two theories advanced by the parties — whether there had been a discharge through a voluntary resignation, or a failure to recall or rehire when the company was obliged to do so. It was within the court’s discretion to instruct the jury on this matter, and we conclude the court did not abuse its discretion when it refused Boise’s request to include the entire statutory definition of discharge.

For the reasons stated, the judgment of the District Court is affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    SHANA LEE STANDLEY, Plaintiff and Appellant, v. THE TRAVELERS INDEMNITY COMPANY OF ILLINOIS, GREANY INSURANCE SERVICES, INC., a Montana corporation, and KAREN BOWERS, Public Administrator of Lewis and Clark County, Montana, as Personal Representative of the Estate of Daniel P. Shute, deceased, Defendants and Respondents.
    No. 92-452.
    Submitted on Briefs December 10, 1992.
    Decided July 6, 1993.
    50 St.Rep. 788.
    259 Mont. 269.
    855 P.2d 1020.

      For Plaintiff and Appellant: Edward K. Duckworth, Ronan, and Michael J. McKeon, Butte.
    For Respondents: James R. Walsh and Dennis P. Clarke, Smith, Walsh, Clarke & Gregoire, Great Falls (Travelers); Shelton C. Williams and Cynthia K. Smith, Williams & Raney, Missoula (Greany).
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Plaintiff Shana Lee Standley appeals from an order of the District Court for the Third Judicial District, Powell County, which granted a motion by defendant Greany Insurance Services, Inc., to change venue. We reverse.

The sole issue on appeal is whether the District Court erred when it granted Greany’s motion to change venue from Lewis and Clark County to Powell County.

On September 21, 1989, Shana Lee Standley (plaintiff) was severely injured in a single vehicle accident in Lewis and Clark County, Montana. Daniel P. Shute (decedent), the driver of the vehicle, died as a result of the car crash. Plaintiff, a passenger in the car, sustained permanent knee and back injuries and incurred over $50,000 in medical bills. Decedent had only $26,000 in insurance coverage.

At the time of the accident, plaintiff was married to Todd Pocha who had an insurance policy with The Travelers Indemnity Company of Illinois (Travelers) that provided for underinsured motorist coverage in the amount of $500,000. However, plaintiff and her husband had been separated for three months at the time of the accident. When plaintiff made a claim against Travelers for the underinsured motorist coverage, Travelers denied coverage on the grounds that plaintiff was not residing in the same household as her husband at the time of the accident. At the time of the denial of coverage, the couple’s policy did not list plaintiff as a named insured.

On September 11, 1990, plaintiff filed a complaint in Lewis and Clark County, Montana, against Travelers and Karen Bowers, the Public Administrator of Lewis and Clark County and the personal representative of the decedent’s estate. Lewis and Clark County was Bowers’ county of residence at the commencement of plaintiff’s action. In her complaint, plaintiff asserted a tort claim against Bowers and the decedent’s estate, alleging the decedent was negligent in his driving. Plaintiff asserted a breach of contract claim against Travelers, alleging the insurance company failed to pay in accordance with the underinsured motorist coverage purchased by plaintiff and Todd Pocha.

The Travelers policy had been purchased by Todd Pocha and the plaintiff, prior to the accident, through Greany Insurance Services, Inc. (Greany), which is located in Powell County, Montana. During the course of discovery of the breach of contract claim against Travelers, an agent for Greany disclosed to plaintiff’s attorney that Travelers had originally issued an oral binder covering plaintiff as a named insured; however, Greany’s agent unilaterally removed plaintiff’s name as a named insured on the policy at the request of plaintiff’s father-in-law, Donald Pocha. Greany had provided no notice to plaintiff of the deletion of her name from the Travelers policy at the time plaintiff’s name was removed.

On the basis of this new information, plaintiff amended her complaint to name the Greany agency as a defendant. Plaintiff alleged that Greany acted fraudulently and negligently when it failed to ensure that plaintiff’s name would remain on the Travelers policy as a named insured. Plaintiff also added an additional tort claim against Travelers, alleging Travelers acted negligently and fraudulently when it failed to list plaintiff as a named insured on the underinsured motorist coverage.

On June 26,1992, Greany, a resident of Powell County, moved for change of venue to Powell County, asserting that Lewis and Clark County was not a proper county for any of the claims against Greany. On August 20, 1992, the District Court granted defendant Greany’s motion.

The District Court based its decision to change venue to Powell County on three venue statutes. First, the court relied on § 25-2-122(1), MCA, and concluded that because the suit against Greany is strictly in tort, the proper place of trial is the county in which Greany resides. Second, the court relied on § 25-2-118(1), MCA, and explained that, unless otherwise specified, the proper place of trial is the residence of one of the defendants. Finally, the court relied on § 25-2-116, MCA, the provision governing multiple claims. The lower court determined that because plaintiff’s complaint contained more than one claim, and Greany was entitled to a change of venue on at least one of the claims against it, Greany was entitled to change venue on all of the claims.

On appeal, plaintiff asserts that the District Court erred when it granted Greany’s motion to change venue to Powell County. She asserts that the court’s reliance on § 25-2-116, MCA, as the basis for its decision to change venue is misplaced because § 25-2-116, MCA, is inapplicable to her case. Travelers agrees with plaintiff on this matter.

Plaintiff contends that § 25-2-116, MCA, governs actions involving a “single defendant,” and therefore, the lower court erred when it applied the statute to plaintiff’s case which involved multiple defendants. Furthermore, plaintiff contends that § 25-2-117, MCA, the venue provision governing multiple defendants, is the controlling statute in this case. She contends that pursuant to § 25-2-117, MCA, if Lewis and Clark County was a proper venue for her claim against defendant Bowers, it was also a proper venue for her claims against Travelers and Greany.

However, it is not necessary to reconcile the potentially contradictory provisions of §§ 25-2-116 and -117, MCA. Plaintiff’s claims against Greany sounded in tort. The venue statute for tort claims provides as follows:

The proper place of trial for a tort action is:
(1) the county in which the defendants, or any of them, reside at the commencement of the action; or
(2) the county where the tort was committed. If the tort is interrelated with and dependent upon a claim for breach of contract, the tort was committed, for the purpose of determining the proper place of trial, in the county where the contract was to be performed. [Emphasis added.]

Section 25-2-122, MCA.

Count I of plaintiff’s complaint alleges a tort claim against Bowers and a breach of contract claim against Travelers. Greany concedes that Lewis and Clark County is a proper place of venue for both of the claims included in Count I.

The basis for plaintiff’s breach of contract claim against Travelers is that at the time of her accident and injuries plaintiff was covered by an underinsured motorist policy issued by Travelers and that Travelers wrongfully refused to provide her with the coverage to which she is entitled.

The essence of the tort claims against Greany found in Counts II through VI is that if plaintiff was not covered by the Travelers policy, then lack of coverage was due to Greany’s negligent or otherwise wrongful conduct. It is clear that the tort claims against Greany are interrelated with and dependent upon the claim for breach of contract against Travelers. If the contract claim against Travelers is successful, then there is no basis for claiming damages against Greany. If the claim against Travelers is unsuccessful, then the lack of coverage which is alleged in Count I is the basis for damages claimed from Greany.

Greany contends that that part of § 25-2-122, MCA, which is highlighted above and relied on in this opinion, has only been applied to single defendants in the past. However, all of the cases relied on by Greany, with the exception of Berlin v. Boedecker (1989), 235 Mont. 443, 767 P.2d 349, precede the enactment of § 25-2-122, MCA. Furthermore, there is nothing in the Berlin decision, nor in the plain language of § 25-2-122, MCA, which suggests an intention to limit the application of this statute to cases where the tort and contract claim are made against the same defendant.

Since both Lewis and Clark County and Powell County were proper places for venue for plaintiff’s claims against Greany under § 25-2-122, MCA, no motion can be granted to change the place of trial on the ground that the action was not brought in a proper county. Section 25-2-115, MCA.

For these reasons, we reverse the order of the District Court granting Grean/s motion for change of venue and remand this case to the District Court for further proceedings consistent with this opinion.

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


author: JUSTICE WEBER JUSTICE TRIEWEILER

text:
    THE STATE OF MONTANA, Respondent, v. DANIEL EARL BOURNE, Appellant.
    No. 93-102.
    Submitted on Briefs May 20, 1993.
    Decided July 6, 1993.
    50 St.Rep. 791.
    259 Mont. 274.
    856 P.2d 222.
    For Appellant: Daniel Earl Bourne, Deer Lodge (pro se).

      For Respondent: Joseph P. Mazurek, Attorney General, Patricia J. Jordan, Assistant, Mike McGrath, County Attorney, and Carolyn Clemens, Deputy, Helena.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from the First Judicial district Court, Lewis and Clark County, denying Daniel Bourne’s motion for correction of his sentence. We affirm.

The only question on appeal is whether the District Court erred in denying Bourne’s motion for correction of sentence.

Daniel E. Bourne (Bourne) pled guilty on December 16, 1988, to the offense of Accountability (Deliberate Homicide), a felony, in the shooting of John Ex Roberts. Bourne was sentenced to the Montana State Prison for 40 years. At his sentencing, the judge determined conditions of his parole. One of those conditions involved restitution:

9. That the defendant shall be jointly and severally liable with his convicted co-defendants for the payment of the costs associated with the transportation and burial of the defendant’s victim, John Ex Roberts.
12. That the defendant shall pay the financial obligation imposed by this Judgment to the Restitution Officer of this Court, Penney Sey, on a schedule which the defendant shall devise with the Restitution Officer as soon as practicable following his release from the Montana State Prison if he is released. (Emphasis added.)

Bourne moved the sentencing court on November 20,1992 for a correction of sentence pursuant to § 46-18-117, MCA. Bourne’s contention is that restitution was not intended to be a condition of his parole and because he had no part of his sentence deferred or suspended, restitution was improperly assessed pursuant to State v. Mazurkiewicz (1990), 245 Mont. 172, 799 P.2d 1066.

Mazurkiewicz is not controlling because the restitution in that case was determined as part of defendant’s sentence. In the instant case, Bourne’s ordered restitution is clearly attendant to his parole, if and when that occurs. The District Court concluded that the controlling case was State v. Klippenstein (1989), 239 Mont. 42, 778 P.2d 892. The most recent case on the same issue is State v. Todd (1993), [257 Mont. 321], 849 P.2d 175. In response to the argument made by Bourne in the present case, we stated in Todd as follows:

We previously have upheld a district court’s authority to impose restitution as a condition of parole under Section 46-18-202, MCA, on almost identical facts. State v. Klippenstein (1989), 239 Mont. 42, 778 P.2d 892. We were careful to point out in Klippenstein that the condition of restitution would never apply if the defendant served his full term of imprisonment; in other words, the total sentence imposed could never exceed the statutory maximum for the offense. Klippenstein, 778 P.2d at 894. Klippenstein is directly on point and mandates the same result in the case presently before us.

Todd, 849 P.2d at 176. In Todd we pointed out that our concern in Mazurkiewicz was that the totality of defendant’s sentence exceeded the total authorized by law and that no statute authorized such “stacking” of restitution on the maximum statutory term of imprisonment. Todd further pointed out:

Here, as in Klippenstein, the ordered restitution is constitutional; it becomes operative only in the event the defendant secures early release from prison via parole. Thus, it cannot result in a sentence exceeding the statutory maximum. In the event of parole, similar to a deferred or suspended sentence situation, the State maintains considerable authority over the offender for general rehabilitative and protective purposes, and the restrictions or conditions authorized by Section 46-18-202, MCA, lawfully can be imposed.

Todd, 849 P.2d at 176-77.

The specific wording in § 46-18-202, MCA, is as follows:

46-18-202. Additional restrictions on sentence. (1) The district court may also impose any of the following restrictions or conditions on the sentence provided for in 46-18-201 which it considers necessary to obtain the objectives of rehabilitation and the protection of society:
(a) prohibition of the defendant’s holding public office;
(b) prohibition of his owning or carrying a dangerous weapon;
(c) restrictions on his freedom of association;
(d) restrictions on his freedom of movement;
(e) any other limitation reasonably related to the objectives of rehabilitation and the protection of society. (Emphasis added.)

The dissent argues that restitution is not related to defendant’s rehabilitation and is not necessary for the protection of society. We disagree with that analysis.

The correctional policy of this State has been and continues to be punishment for crimes and rehabilitation of the convicted:

(2) The correctional policy of the state of Montana is to protect society by preventing crime through punishment and rehabilitation of the convicted. The legislature finds that an individual is responsible for and must be held accountable for his actions. Corrections laws and programs must be implemented to impress upon each individual his responsibility for obeying the law. ... Furthermore, it is the state’s policy that persons convicted of a crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities. (Emphasis added.)

Section 46-18-101, MCA.

The district court judge is in the best position to determine what can best help the individual defendant convicted of a crime. The legislature acknowledged this by adding subsection (e) to § 46-18-202(1), MCA. If a particular defendant can best be rehabilitated by requiring him to earn or otherwise obtain money sufficient to compensate his victim rather than serving a full prison term, the district court has been given authority to institute this. Here, the District Court determined that if defendant was paroled, he should then pay restitution to the victim’s family as part of his parole conditions.

We conclude that restitution is an appropriate limitation reasonably related to the objectives of rehabilitation and the protection of society. We therefore hold that the District Court did not err in denying Bourne’s motion for correction of sentence.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON and GRAY concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the opinion of the majority.

As this Court pointed out in State v. Mazurkiewicz (1990), 245 Mont. 172, 177, 799 P.2d 1066, 1070:

Section 46-18-242, MCA, clearly states that restitution may be a proper condition of a deferred, suspended or partially suspended sentence. No statute allows restitution requirements to be imposed in the absence of these sentences.

Actually, restitution is authorized when sentences are deferred or suspended by § 46-18-201(l)(a) and (b), MCA. Section 46-18-242, MCA, simply describes the information which must be included in the presentence investigation and report when the court believes restitution is proper. However, this Court was correct in Mazurkiewicz when it held that no sentencing statute allows restitution as a condition to anything other than a deferred or suspended sentence. In a series of decisions, this Court has judicially created a penalty of restitution where none was provided by the Legislature. First, in State v. Klippenstein (1989), 239 Mont. 42, 778 P.2d 892, then in State v. Todd (1993), [257 Mont. 321], 849 P.2d 175, 50 St. Rep. 288, and now in this case, this Court has held that restitution, as a condition to parole, is actually authorized by § 46-18-202, MCA. However, to find restitution in that statute is creative, to say the least. Although I was a signator to the Todd decision, I conclude after more careful review that that decision was incorrect. Section 46-18-202, MCA, provides in relevant part that:

(1) The district court may also impose any of the following restrictions or conditions on the sentence provided for in 46-18-201 which it considers necessary to obtain the objectives of rehabilitation and the protection of society:
(a) prohibition of the defendant’s holding public office;
(b) prohibition of his owning or carrying a dangerous weapon;
(c) restrictions on his freedom of association;
(d) restrictions on his freedom of movement;
(e) any other limitation reasonably related to the objectives of rehabilitation and the protection of society.

Nothing in § 46-18-202, MCA, refers to parole or to restitution. First, § 202 relates only to those sentences provided for in § 201. Nowhere in § 201 is there any discussion of, or provision for, parole. Second, the catch-all phrase in subsection (l)(e), which is relied on by the majority, refers to limitations related to the objectives of rehabilitation and protection of society. Notwithstanding the majority’s effort to make it so, restitution is certainly not related to a defendant’s rehabilitation and is not necessary for the protection of society. Restitution is intended to compensate the victim of the defendant’s crime. Furthermore, the majority makes no effort to reconcile its holding with the specific limitation in § 202 that its provisions are only applicable to those sentences provided for in § 201.

Not only do this and previous decisions of this Court add to § 202 a penalty which was not intended, the additional penalty is not even reasonably related to the objectives for which § 202 was enacted.

For these reasons, I dissent from the opinion of the majority. I would reverse the District Court and amend Bourne’s sentence by deleting any reference to restitution.


author: JUSTICE NELSON

text:
    PUBLIC LANDS ACCESS ASSOCIATION, INC., LEWIS EUGENE HAWKES, WALTER J. SILLS, ALBERT C. GEIGER, AND HERMAN J. EARLES, Plaintiffs and Respondents, v. BOONE AND CROCKETT CLUB FOUNDATION, INC., AND THE STATE OF MONTANA, DEPARTMENT OF FISH, WILDLIFE AND PARKS, Defendants and Appellants. BOONE AND CROCKETT CLUB FOUNDATION, INC., Third-Party Plaintiff and Appellant, v. TETON COUNTY, MONTANA, Third-Party Defendant and Respondent.
    No. 92-262.
    Submitted on Briefs May 20, 1993.
    Rehearing Denied Aug. 17, 1993.
    Decided July 8, 1993.
    50 St.Rep. 794.
    259 Mont. 279.
    856 P.2d 525.

      For Appellant: Gregory W. Duncan, John P. Poston and Phillip W. Strope, Harrison, Loendorf & Poston, Helena.
    For Respondent: F. Woodside Wright, Reynolds, Motl, Sherwood & Wright, Helena; Russell R. Andrews, Teton County Attorney, Choteau.
    For Amicus: Joan B. Newman, University of Montana, Missoula.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from a Ninth Judicial District Court, Teton County, order filed after a bench trial, which declared that a public prescriptive easement had been established over the road in dispute. We reverse and remand.

We restate the issues on appeal as follows:

I. Did the District Court err in declaring that a public prescriptive easement had been established over the road in question?

II. If there was a public prescriptive easement, was it extinguished by the actions of Clarence Evilsizer?

III. Did the District Court err in concluding that the road in question was a county road due to the application of the “curative statute”?

Respondent Public Lands Access Association, Inc. (PLAA) is a non-profit Montana corporation dedicated to maintaining access to public lands for multiple purposes. The individual respondents are members of the general public; are residents of the State of Montana; are past users of the road in dispute; and are desirous of using the road in the future.

Appellant, Boone and Crockett Club Foundation (BCC), is also a non-profit corporation. BCC purchased the land upon which the disputed road is located as a ranch for scientific and educational purposes and is working in coordination with Amicus Curiae University of Montana conducting research at the ranch. The land is located approximately ten miles west of Dupuyer, Montana.

The controversy surrounds a road which is described as starting “in Section 18 of Township 27 North, Range 8 West at the intersection with county road; then proceeding in a northwesterly fashion across Section 18; then in a southwesterly direction through Section 13, Township 27 North, Range 9 West; entering Section 14 in the northernmost portion of Lot 1; continuing in a westerly fashion through Lot 1 and Lot 2 into the northwest quarter of Lot 3; then turning in a southerly direction across Lot 3 of Section 14 to enter Lot 3 of Section 23; and then in a southerly direction across Section 23 to U.S. Forest Service lands and then into the mouth of Dupuyer Canyon.” The road is referred to as the Dupuyer-Dupuyer Canyon Road, and it crosses an area known as Johnson’s Crossing. Johnson’s Crossing serves as the dividing point between the eastern portion of the road, agreed by all parties to be a county road and the disputed portion of the road (disputed road) which lies west of Johnson’s Crossing. The disputed portion of the road consists of an unimproved track which leads to the mouth of the North Fork of Dupuyer Creek Canyon.

BCC closes the disputed road to vehicular traffic “right prior to hunting season through the spring ...” PLAA disputed BCC’s power to close this route to vehicle traffic for part of the year because it claimed there existed a public prescriptive easement over the road. However, BCC asserted that there was no public prescriptive easement, but if there ever was, it was extinguished by the actions of the landowners in the 1970s and 1980s.

PLAA brought an action against BCC to force its discontinuation of the walk-in policy and to open the disputed road to vehicular traffic on a year-round basis in order to access the National Forest Service land beyond BCC’s ranch. Abench trial was held in the Ninth Judicial District Court in September of 1991. In March of 1992, the court filed its memorandum and order barring and enjoining BCC from interfering with the general public’s use of the disputed road, ruling that there was a public prescriptive easement over the disputed road which had been converted to a county road by the curative statute. This appeal by BCC followed.

The standard of review for a district court’s findings of fact is provided by Rule 52(a), M.R.Civ.P. Rule 52(a), M.R.Civ.P, provides in pertinent part:

Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses ...

In interpreting this rule, we have adopted the following three-part test:

First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence we will determine if the trial court has misapprehended the effect of evidence. Third, if substantial evidence exists and the effect of the evidence has not been misapprehended, the Court may still find that “[A] finding is ‘clearly erroneous’ when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.”

Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. (Citations omitted.)

“[0]ur standard of review relating to conclusions of law ... is whether the tribunal’s interpretation of the law is correct.” Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-475, 803 P.2d 601, 603.

To establish an easement by prescription, the party claiming an easement “must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement claimed for the full statutory period. The statutory period is five years.” Keebler v. Harding (1991), 247 Mont. 518, 521, 807 P.2d 1354, 1356. (Citation omitted.) See also; Downing v. Grover (1989), 237 Mont. 172, 175, 772 P.2d 850, 852. The burden is on the party seeking to establish the prescriptive easement. Downing, 772 P.2d at 852. “All elements must be proved in a case such as this because ‘one who has legal title should not be forced to give up what is rightfully his without the opportunity to know that his title is in jeopardy and that he can fight for it’ ” Downing, 772 P.2d at 852.

“To be adverse, the use of the alleged easement must be exercised under a claim of right and not as a mere privilege or license revocable at the pleasure of the owner of the land; such claim must be known to, and acquiesced in by, the owner of the land.” Keebler, 807 P.2d at 1356-1357. “If the owner shows permissive use, no easement can be acquired since the theory of prescriptive easement is based on adverse use.” Rathbun v. Robson (1983), 203 Mont. 319, 322, 661 P.2d 850, 852. (Citation omitted.)

I. PUBLIC PRESCRIPTIVE EASEMENT

BCC argues that there was not substantial evidence to conclude that a public prescriptive easement was established over the road in dispute. It contends that the use of the road was not adverse but rather due to neighborly accommodation and courtesy before Fred Troop bought the ranch upon which the road is located. In addition, BCC asserts that the road has been used for access to recreational activities and that these types of activities do not rise to the level necessary to establish a public prescriptive easement. We agree.

Paul Bruner, who has been residing in the area since 1913, and Ken Duncan, who has resided in the area for the past 35 years, both testified that neighborly accommodation was the rule for travel in that area, including the road in question in earlier days. Bruner testified, “like I stated before, in those days that if you had to cross someone else’s land to get to your land, there was a — well, I guess you might say a law that if you had to cross somebody else’s land to get to your land, why it was legal to cross it, if you maintained it by closing the gates and so on and so forth.” Duncan said that when the Conners owned the ranch, the whole area was “open.” When asked if it was a kind of neighborly accommodation, Duncan replied, ‘Yes, certainly.”

“A use of a neighbor’s land based upon mere neighborly accommodation or courtesy is not adverse and cannot ripen into a prescriptive easement. Thus where the use of a way by a neighbor was by express or implied permission of the owner, it was held that the continuous use of the way by the neighbor was not adverse and did not ripen into a prescriptive right.” Wilson v. Chestnut (1974), 164 Mont. 484, 491, 525 P.2d 24, 27.

This case is similar to the Rathbun case, cited above, where the Court concluded that the use of the way had been permissive since 1934. Rathbun, 661 P.2d at 852. Rathbun stated that:

[s]everal witnesses testified concerning local customs that began in the homesteading days concerning access across another’s land. There existed an understanding among landowners that permission was not required every time a person needed to cross his neighbor’s land. Permission was automatic if the individual closed the gates and respected his neighbor’s property.

Rathbun, 661 P.2d at 852. “The mere use of a way for the required time is generally not sufficient to give rise to the presumption of a grant, and generally some circumstances or act, in addition to the use, tending to indicate that the use was not merely permissive, is required.” Wilson, 525 P.2d at 27.

Even PLAA’s witnesses describe permissive, not adverse use of the road. Two of the witnesses, the Bredings, resided on the ranch for only a few years on a year round basis. Their testimony regarding their stay at the ranch however, indicates neighborly accommodation as the local custom when the Conner family owned the ranch. Delbert Breding testified that there was a general understanding that the road was always open to the public. Arcelia Conner Breding, Delbert’s wife and daughter of the Conner ranch owner, when asked about the use of the road and where the users came from, replied, “Well, from Great Falls and from Conrad. The Boy Scouts and the Girl Scouts from different areas, it was open to them all the time, because my folks figured it was a good recreational place for young people.”

Delbert Breding also testified to a specific request for permission to use the road. Mr. Breding testified that the road was not graded until an oil drilling company improved it in order to reach the drilling sites. He testified that the oil company was given permission by the Conners to improve the road.

Perry Nelson, Walter Sills, Herman Earles and Albert Geiger, all PLAA witnesses, testified that when they traversed the road and encountered gates, they went through the gates, but left them as they were found. “The fact that the passage of a road has been for years barred by gates or other obstructions to be opened and closed by the parties passing over the land, has always been considered as strong evidence in support of a mere license to the public to pass over the designated way.” Maynard v. Bara (1934), 96 Mont. 302, 307, 30 P.2d 93, 95.

BCC argues that a public prescriptive easement was not established because the use of the road has been primarily for recreational uses and these uses do not rise to the level of adverse possession. For example, the Bredings testified that the road was accessed for the purposes of fishing, camping and sight-seeing. Nelson, Sills, Earles and Geiger stated that their reasons for using the road were to gain access to hunting, fishing and picnicking grounds. “[T]his type of occasional use has been held to be insufficient to raise a presumption of adverse use.” Keebler, 807 P.2d at 1358.

Donald Hauge, a drilling contractor, testified for the PLAA but he was an infrequent visitor. He hunted there twice in 1961 and hunted in 1962 and 1963. He made infrequent visits after the 1964 flood to see how the flood had affected the land. He was on the road in 1976 but the parking lot for a walk-in access program had already been established. When he reached the parking lot area, he turned around and left. Mr. Hauge also testified that if he was going to work at a drill site, the company would take care of asking for permission to work on the land from the owner so he would not have to bother a landowner for permission before entering their property.

In the trial court’s memorandum and order, finding of fact 31 states that the road was used for a multitude of purposes. The court mentions use of the road by stockmen, law enforcement officials, wood gatherers as well as some commercial use. However, the only testimony that stockmen used the road related to BCC’s use of the road for its livestock or use by previous owners and/or their lessees. Clarence Evilsizer used the road for his cattle because he had a permit to graze his cattle on Forest Service land. Use by the landowner for his own purposes cannot become a component of a non-owner’s claim of adverse possession.

In addition, law enforcement personnel were on the road at the consent or by permission of the landowners. Mr. Evilsizer had an agreement with the federal and local government for access for law enforcement to keep unwanted trespassers off his property. Also, Fish, Wildlife and Parks’ personnel were on the premises to enforce the walk-in program’s regulations but they were working in cooperation with the landowners.

The commercial use of the road was limited to oil and gas drilling, trapping and outdoor guiding. Robert Sills trapped in the area in 1975 and 1976, but such period is insufficient to establish a public prescriptive easement. Allen Mathews, a former State Fish and Game warden, related that in 1975, he issued a new outfitter’s license to an individual who asked about driving to the Forest Service and then hunting down below. Mathews stated that he would have to get specific written permission from the landowners. The outfitting license is a yearly license so Mathews could only testify about an outfitter using the area for the year 1975. Moreover, when the outfitter did hunt in the area, he parked in the walk-in program’s parking lot area which was permissible.

Finally, the only testimony regarding oil and gas companies’ use of the road was that the companies asked permission of the landowners to use and improve the road before they entered the property. These uses were either permissive or did not last long enough to establish adverse possession.

We conclude that the trial court’s findings of fact are not supported by substantial evidence and that PLAA failed in its burden to establish the existence of a public prescriptive easement over the Dupuyer-Dupuyer Canyon Road west of Johnson’s Crossing. DeSaye, 820 P.2d at 1287.

II. EXTINGUISHMENT OF A PUBLIC PRESCRIPTIVE EASEMENT

Although BCC asserts that there is no public prescriptive easement, it contends that even if there was a public prescriptive easement, it was extinguished by the conduct of owners after the Conners, particularly Clarence Evilsizer. We agree.

Ken Duncan, when asked by Mr. Poston, attorney for BCC, how other owners, Troop, (who purchased the ranch from Conners), Evil-sizer and States treated the property, responded as follows:

Q. Okay, how did Troop treat the property, the use of the road?
A. He let hunters in with permission.
Q. But he required permission?
A. Yes, he did.
Q. What about Evilsizer and his lessee?
A. Well, his lessee was there to start with, before Evilsizer moved there, and he was really strict with it. You usually didn’t get on his place, and I think he testified the other day that a lot of them left. I think they all left.
Q. Do you know whether or not the gates were locked, when he was there?
A. In certain areas, they were.
Q. Now, how did Mr. States treat the property, when he got there, about letting people on the road?
A. Well, I had to cross some of States’land to get to this area I leased, this Ahmon place I’m talking about, and I have, since 1973, and if I didn’t ask permission from States to cross that land, I would probably, within a half day, I would get a phone call and he would ask if I crossed that land, and I assume he knew every tire tread track that ever crossed his place.

Everett F. Hedrick testified that he lived on the subject property from 1967 through 1972. At this time, the property was owned by Clarence Evilsizer and leased by Mr. Hedrick. Hedrick testified that he allowed people to traverse the road and hunt on the land by permission. Mr. Hedrick also testified that the gates were erected and locked to control the cattle and “to keep the people out of there.” Hedrick also stated that some people used the road even if he told them they could not, but if he caught them there, he would try “to run them off.”

In his affidavit, Clarence Evilsizer, who bought the ranch from Troop, stated that:

[flrom approximately 1966 to 1978 I owned what is now known as the Boone and Crockett Club TRM Ranch ... During my ownership of the ranch, the road in question was always treated as a private road with appropriate signs being placed at beyond Johnson’s crossing and with all persons not given specific permission to use the road, which occurred on rare occasions, being asked to and required to get off the property. Most problems of trespass occurred during the hunting season.

Mr. Dean States, who owned the land upon which the road is situated subsequent to Clarence Evilsizer, stated in his affidavit, that:

From approximately 1978 to 1987, my family and I owned and operated what is now known as the Boone and Crockett Club TRM Ranch located at Dupuyer Montana. During our ownership and operation of the ranch, we believed that the road in question in this lawsuit, which has been dubbed the Dupuyer Creek Road, from Johnson Crossing west, was a private road, and we treated it as such with appropriate signs being placed at and beyond Johnson Crossing. Anyone using the ranch for hunting, recreation, or any other purpose was requested to get permission. Anyone caught on the ranch without permission was promptly ejected from the ranch. It was understood by all that permission was necessary if they wanted to use the ranch; and if they were caught on the ranch without permission, they would be ejected. Therefore, I rarely had to eject anyone from the ranch.

In approximately 1972, Mr. Evilsizer closed the road to through traffic. Robert Richmond, a National Forest Service supervisor, and Bud Olsen, then Chairperson of the Teton County Commissioners, went to discuss the blockage with Evilsizer. Evilsizer was persuaded by the two men to remove the blockage and the men assured him that Forest Service staff or the Teton County Commissioners would contact the Sheriff to deal with further problems with trespassers on Evilsizer’s land.

At about this time FWP approached Evilsizer to work out an agreement to provide access to the road for people who wanted to hunt on the Forest Service land. This was part of a FWP program begun in the 1970s with landowners around the State. The Department would assist in controlling vehicle traffic through private land by issuing vehicle permits for landowners who would allow people to make recreational use of their land but had concerns over uncontrolled vehicle use.

In Evilsizer’s case, a special parking area was installed and visitors would park in the lot and could then traverse the road on foot or horseback to access the National Forest land. The Department provided landowners involved in programs like this “walk-in” program with signs which said “Parking Area, Do not drive beyond this point” and “Written Permission Required.” FWP provided any other materials which would facilitate a landowner’s permission to allow access to their land for recreational users. FWP personnel in the area were also responsible for enforcing the agreement.

Mr. Evilsizer explained the walk-in program in his affidavit:
In approximately 1973, I entered into an agreement with the Fish and Game Department of the State of Montana to set up a walk-in hunting area. This agreement allowed hunters to park and camp at a location near the fence line running north and south in the SW 1/4 SE 1/4 of Section 14. The fence is not on the property line. The hunters were then allowed to proceed strictly on foot or on horseback from there to the west and south onto and access, if they so desired, the rest of my property which lay between that fence and the forest boundary. The parking area was signed with signs provided by the Fish and Game Department.
This permissive arrangement seemed to be accepted by everybody and to my knowledge there were very few if any violations of the agreement. I have no knowledge of anyone driving beyond the parking area without permission.

The walk-in agreement continued when Dean States purchased the ranch. In his affidavit, he stated:

[W]hile I owned and operated the ranch, I maintained the walk-in area which had been previously been [sic] established by Clarence Evilsizer and the Montana Fish and Game Department while Clarence Evilsizer owned the property.
Through an agreement with the Department of Fish, Wildlife and Parks, they also helped me police the area. It is my belief they issued citations to anyone using the area without permission and ejected them from the property.
During the time we owned the ranch, no lawsuits were initiated against us demanding the road in question, which was blocked, be open to the public or any other individuals.
At the time I owned the ranch, there were five gates going from Johnson Crossing into the forest service land. Generally, anyone using the property followed the custom in the area and left the gates open if they found them open and closed if they found them closed. Anyone not doing so was asked to leave the ranch if I caught them. If I did not catch them and knew who did it, I would deny them access thereafter.

This agreement has continued through the ownership of the area by BCC. In 1986, BCC entered into a written agreement with FWP.

If a public prescriptive easement had been established, Evil-sizer’s blocking of the road and the creation and maintenance of the walk-in program evidenced a “distinct and positive assertion of a hostile right. ...” Taylor v. Petranek (1977), 173 Mont. 433, 438, 568 P.2d 120, 123. The assertion of this right hostile to the owner [the public] must be brought to the attention of the owner and the use must continue for the full prescriptive period. Medhus v. Dutter (1979), 184 Mont. 437, 442-443, 603 P.2d 669, 672.

Section 70-17-111(3), MCA, provides that a servitude is extinguished "... (3) by the performance of any act upon either tenement by the owner of the servitude or with his assent which is incompatible with its nature or exercise [.]” We have held, on the basis of that statute, that if a prescriptive easement exists, subsequent acts inconsistent with the claim by prescription, support the conclusion that the prescriptive easement has been extinguished. Morrison v. Higbee (1983), 204 Mont. 515, 668 P.2d 1025; Downing v. Grover (1989), 237 Mont. 172, 772 P.2d 850.

In those two cases we found that such inconsistent acts, among others, included the establishment of or acquiescence in a permissive use after an act hostile to the claimed prescriptive right. Morrison, 668 P.2d at 1027-1028; Downing, 772 P.2d at 852-853.

Clarence Evilsizer’s blocking of the road was a hostile act which established reverse adverse possession because the state and local government, as well as the public cooperated and adhered to the walk-in policy which had been in existence for approximately 17 years. Clarence Evilsizer cooperated in the establishment of the walk-in program in the early 1970s and the program continued until 1988 when PLAA brought an action against BCC. The users and general public acquiesced in Evilsizer’s reverse adverse prescription by adhering to the walk-in program. Compliance with the walk-in program was inconsistent with the claim of a public prescriptive easement. Accordingly, any prescriptive easement the public may have acquired in the road was lost.

In addition, in 1988, the county commissioners had the opportunity to establish Dupuyer-Dupuyer Canyon Road west of Johnson’s Crossing as a county road. At the February 1988 meeting of the Board of Commissioners, the three Teton County Commissioners denied a petition to open and establish for public use and access the road in dispute. The county commissioners stated that:

[A]t this time recreational activities would seem to be the greater use. So it is the recommendation of the inspection team to deny the road petition at this time. Also, due to litigation involved in aquiring [sic] right of way aquistion [sic] thru [sic] the Boone & Crockett Club to the National Forest Service Boundary.

The decision to deny the petition to establish the disputed road as a county road confirms acquiescence by the county and the public that the disputed road is a private road.

In conclusion, substantial evidence supports the proposition that prior to Fred Troop’s ownership of the BCC ranch area, there was a policy that travellers used the road because of neighborly accommodation. Further, users accessed the road for the purposes of hunting, fishing, picnicking and other forms of recreation. When Fred Troop bought the land from the Conners, he allowed access to the road with permission. Clarence Evilsizer, his lessee and Dean States continued the practice of access by permission. Finally, in the early 1970s, an attempt by Clarence Evilsizer to block the road met with state and local government cooperation to establish a program that would allow public access to the road which would be agreeable to the landowner. The public, thereafter, acquiesced in the established walk-in policy.

We conclude that even if there was a public prescriptive easement, it was clearly extinguished by reverse adverse possession and by the inconsistent acts of road users in acquiescing in the walk-in program for more than the full statutory period.

III. THE CURATIVE STATUTE

BCC argues that the trial court erred in declaring that the curative statute converted the public prescriptive easement into a county road. The “curative” statute at issue reads:

All highways, roads, lanes, streets, alleys, courts, places and bridges laid out or erected by the public or now traveled or used by the public, or if laid out or erected by others, dedicated or abandoned to the public, or made such by the partition of real property, are public highways.

Section 32-103, RCM 1947. (repealed in 1959). The trial court concluded that:

The record taken as a whole fails to show that the disputed road was laid out or erected by the public, dedicated or abandoned to the public or made such by the partition of real property. ...

Since the trial court concluded that the road could not become a county road by virtue of its being laid out or erected by the public or dedicated or abandoned to the public, or made such by a partition, then the only choice available to establish that the disputed road is a public road would be that it was “traveled or used by the public,” as in a public prescriptive easement. Because we have concluded that there was no public prescriptive easement, then the curative statute could not be applied to create a public road out of the road in dispute.

We hold that the disputed road is not encumbered by a public prescriptive easement nor does it qualify as a county road under the “curative” statute.

REVERSED AND REMANDED for entry of an order consistent with this opinion.

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


author: JUSTICE HUNT JUSTICE TRIEWEILER

text:
    IN RE THE MARRIAGE OF PAMELA C. PRESCOTT, Petitioner and Respondent, and GREGORY W. PRESCOTT, Respondent and Appellant.
    No. 92-605.
    Submitted on Briefs March 18, 1993.
    Decided July 8, 1993.
    50 St.Rep. 801.
    259 Mont. 293.
    856 P.2d 229.

      For Respondent and Appellant: Christopher Daly, Missoula.
    For Petitioner and Respondent: Sydney E. McKenna, Patterson, Marsillo, Tornabene, Schuyler & McKenna, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Gregory W. Prescott appeals from an order of the Fourth Judicial District Court, Missoula County, denying his request for a modification of the dissolution decree dated June 13, 1988. Gregory also appeals the District Court’s order finding him in contempt for failing to pay child support, maintenance, and taxes. The District Court sentenced Gregory to jail for 15 days to be suspended for six months to allow him to pay back taxes.

We affirm.

The parties raise four issues for this Court’s consideration.

1. Did the District Court err in denying Gregory the right to counsel during the contempt proceedings?

2. Did the District Court err in not staying the contempt proceedings until the resolution of a pending criminal charge in Oregon?

3. Did the District Court err when it offered to be sworn and testify on the record during the contempt proceedings?

4. Should this Court award costs and attorney fees to respondent Pamela Prescott?

This action arises out of a decree of dissolution. The relevant portions of the decree provided that Gregory pay $400 per month per child in support and that he pay $800 per month in maintenance. Gregory also agreed to pay all current and back state and federal taxes that the parties owed. Since the entry of the divorce decree, Gregory has not made any maintenance payments and his record in child support payments is poor. To date, Gregory has failed to meet his obligations, and at the time of the hearing owed in excess of $70,000 in back maintenance and child support. Because Gregory did not pay the parties’ tax liabilities, the IRS has withheld three years of tax refunds from Pamela.

Pamela and the parties’ four children have suffered considerably because of Gregory’s failure to make payments. The family became dependent upon family and friends to meet their daily needs. During the separation, Pamela attended a Displaced Homemaker Program and worked as a maid in Missoula. The family qualified for food stamps and other government assistance. Pamela’s relatives purchased food for the family. In 1987, the teachers at the children’s grade school voted the children the “most needy,” which allowed the family to receive free winter clothing.

Gregory’s failure to pay child support and maintenance forced the children to help Pamela support the family. The oldest child, who has reached the age of majority, quit college and went to work at a local fast food restaurant. The second child, a high school student, worked part-time at a restaurant. The third child did his part by doing odd jobs after school.

After the dissolution was final, the family moved to LaPine, Oregon, where Pamela initially cleaned houses to get by. The family lived in two borrowed travel trailers parked at Pamela’s sister’s house. With the help of an aunt who contributed $300 a month for a year, the family moved into a rental home. After the dissolution, Pamela sold a parcel of real estate, but the income from the sale is only $250 a month. Pamela and the children still depend on relatives and friends for food, clothing, and money.

Gregory has bachelor of science degrees in geology and mathematics. During the separation and after the dissolution, Gregory voluntarily underemployed himself so that he could work on his invention. The record shows that Gregory can earn a good income as a geologist, having earned $70,000 in 1986. He currently works as Chief Geologist for the Colville Confederated Tribes in Nespelm, Washington, and earns $24,000 a year.

In March 1989, the Washington State Department of Social and Health Services held a hearing and found Gregory $20,000 in arrears for back child support and maintenance. In April 1992, the State of Oregon filed felony charges against Gregory for criminal neglect of the children. Trial on those charges was scheduled for December 1992.

On April 30, 1992, Gregory filed a motion to modify child support. On July 31, 1992, Gregory also filed a motion to amend the original dissolution decree. On September 16, 1992, Pamela filed a motion to hold Gregory in contempt for violating the court’s order and decree of dissolution dated June 13, 1988. On September 29, 1992, the court conducted a show cause hearing and considered Gregory’s motions. Gregory appeared pro se, and Pamela appeared with counsel.

On October 8,1992, the court issued its order. By agreement of the parties, the court lowered child support from $400 a month per child to $300 a month per child, which is within the mandatory SRS Guidelines. The court denied Gregory’s motion to amend the decree of June 13, 1988. The court found Gregory in contempt for violating the June 13,1988, order and decree and sentenced him to 15 days in jail, which the court suspended for six months. During the suspension, Gregory had the opportunity to pay off the back taxes owed and purge the contempt order. Gregory appeals from this order.

MOTION TO DISMISS THE APPEAL

On February 18, 1993, Pamela filed a motion with this Court to dismiss Gregory’s appeal of the lower court’s contempt order pursuant to § 3-1-523, MCA. Both parties addressed the motion in their appellate briefs.

We have stated that although contempt orders by the district court are final and usually not reviewable by this Court except through writ of certiorari, as required by § 3-1-523, MCA, we have made an exception for family law cases. In re Marriage of Boharski (1993), [257 Mont. 71], 847 P.2d 709, 713, 50 St. Rep. 161, 163. We limit our review of the contempt order to examining the record to see whether the district court acted within its jurisdiction and whether the evidence supports the contempt. In re Marriage of Sullivan (1993), [258 Mont. 531], 50 St. Rep. 648, 651, 853 P.2d 1194. Therefore, we deny the motion to dismiss the appeal.

I.

Did the District Court err in denying appellant the right to counsel during the contempt proceedings?

At the beginning of the contempt proceedings, Gregory requested the District Court to appoint counsel, which was denied. Gregory contends that the contempt in this case is criminal in nature and that the District Court violated his constitutional right by not appointing counsel at public expense. Because Gregory works as a geologist earning $24,000 a year, his argument that he is indigent is without merit.

A contempt proceeding may be quasi-criminal in nature. Because this case involved a contempt violation outside the presence of the court, it is considered a constructive contempt, and therefore, due process is required. Lilienthal v. District Court (1982), 200 Mont. 236, 242, 650 P.2d 779, 782. Constructive contempt requires the following due process requirements:

“[T]hat one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.”
The right to counsel however, has generally been held to mean that one charged with contempt of court is entitled to a “reasonable opportunity to employ counsel in contempt proceedings.” [Citations omitted.]

Marks v. First Judicial District (1989), 239 Mont. 428, 433-34, 781 P.2d 249, 252 (quoting Lilienthal, 650 P.2d at 782).

In this instance, we concern ourselves with whether Gregory had a “reasonable opportunity to employ counsel” prior to the contempt proceedings. The court issued its order to show cause on September 17,1992. Gregory was served by certified mail on September 22, 1992. The show cause hearing occurred on September 29, 1992. Gregory had seven days in which to obtain counsel.

We have discussed this issue at length in Marks and Lilienthal. In Marks, this Court found that the defendant had a reasonable opportunity when he had over a week to obtain counsel. Marks, 781 P.2d at 252. We held that five days’ notice was a reasonable opportunity to obtain counsel for contempt proceedings. Marks, 781 P.2d at 252 (citing Ungar v. Sarafite (1964), 376 U.S. 575, 590, 84 S.Ct. 841, 850, 11 L.Ed.2d 921). The United States Supreme Court considered that a four day notice provided reasonable opportunity to obtain counsel. Nilva v. United States (1957), 352 U.S. 385, 395, 77 S.Ct. 431, 437, 1 L.Ed.2d 415. We have held, however, that when a defendant only had one working day notice he was denied an adequate opportunity to obtain counsel. Lilienthal, 650 P.2d at 782. Therefore, we hold that seven days’ notice of the contempt hearing allowed a reasonable opportunity for Gregory to obtain counsel.

II.

Did the District Court err in not staying the contempt proceedings until the resolution of a pending criminal charge in Oregon?

Gregory filed his motions to modify child custody and amend the decree and requested a hearing. After the court set the hearing, Pamela then filed her motion for the court to issue a show cause order. The court held the hearing on the same day for both parties’ motions. The court granted one of Gregory’s motions to modify child custody and denied his motion to amend the decree. The court then proceeded to the show cause hearing. The following exchange took place between Gregory and the Court.

MR. PRESCOTT: Well, I am not putting conditions on you, Your Honor; I am just saying that I am willing to accept service of that and forego any complaints about timeliness, providing that its heard at the end —
THE COURT: You are willing to proceed, then, on the Order to Show Cause?
MR. PRESCOTT: Yes. Yes, your Honor.

As the transcript shows, Gregory consented to proceed with the show cause hearing. He now complains that the court erred by not staying the proceedings until criminal charges pending against him in the State of Oregon were resolved. Gregory never made a motion to stay the proceedings but argues that the court should have acted sua sponte to suspend the proceedings.

This Court has consistently held that it will not normally consider objections which parties present for the first time on appeal. City of Billings v. Skurdal (1986), 224 Mont. 84, 88, 730 P.2d 371, 373, cert. denied, 481 U.S. 1020, 107 S.Ct. 1902, 95 L.Ed.2d 508 (1987). Here, Gregory did not object to the District Court proceeding, and in fact, actually agreed to its continuation. Therefore, we hold that the District Court did not err in not staying the contempt proceedings until the resolution of a pending criminal action in Oregon.

III.

Did the District Court err when it offered to be sworn and testify on the record during the contempt proceedings?

During the contempt hearing, the District Court offered to testify regarding whether Gregory agreed to the original dissolution settlement agreement in court as the record reflects. Gregory argued during the hearing that he agreed he would only try to make child support payments. In its findings, the District Court noted its willingness to testify regarding the parties’ understanding relating to the settlement agreement. Gregory now contends that the District Court’s offer to testify showed the court’s bias in this matter and that the court’s denial of Gregory’s motion to amend the dissolution decree should be reversed and remanded.

This Court confronted a similar question in State ex rel. Moser v. District Court (1944), 116 Mont. 305, 151 P.2d 1002. In Moser, a pro se litigant faced the district court during contempt proceedings. The judge presided over his court, testified in defense of his acts relating to the contempt, and ruled on objections made to his testimony and exhibits. Moser, 151 P.2d at 1005. We held that a trial judge generally is not a competent witness qualified to testify for or against either party in an action or proceeding pending in his court and tried before him. Moser, 151 P.2d 1007. However, we noted that this rule is not applicable to direct contempt proceedings, yet probably would be pertinent in cases of constructive contempt. Moser, 151 P.2d 1007-08.

Moser is distinguishable from the present case. The District Court did not take the stand and testify on its behalf. We hold that the District Court did not err when it offered to testify during the contempt proceedings. We deny costs and attorney fees.

We affirm.

JUSTICES HARRISON, GRAY and WEBER concur.

JUSTICE TRIEWEILER

specially concurring.

I concur with the result of the majority opinion. However, I do not concur with all that is said therein.

Specifically, I disagree with that part of the majority opinion which either holds or implies that an indigent person cited for contempt has only the right to “employ counsel,” and no right to court-appointed counsel.

To grant a right to counsel to a person cited for contempt, but to deny court-appointed counsel for someone who cannot otherwise afford to employ counsel, is to render the right meaningless. I agree with the Fifth Circuit Court of Appeals decision in Ridgway v. Baker (5th Cir. 1983), 720 F.2d 1409, 1413-15, where it stated that:

The Constitution’s fourteenth amendment guarantee of due process incorporates the sixth amendment assurance that the accused in a criminal prosecution has the right to counsel. This imposes a duty on the state to provide counsel to a person accused who, because of indigency, cannot afford a lawyer. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). This right extends to every case in which the litigant may be deprived of his personal liberty if he loses. Lassiter v. Department of Social Services, 452 U.S. 18, 25, 101 S.Ct. 2153, 2158-59, 68 L.Ed.2d 640, 648 (1981).
The right to counsel turns on whether deprivation of liberty may result from a proceeding, not upon its characterization as “criminal” or “civil.” ...
The state’s argument that the contemnor imprisoned only for civil contempt has, in the aphoristic phrase, “the keys of his prison in his own pocket,” ignores two salient facts: that the keys are available only to one who has enough money to pay the delinquent child support and that, meanwhile, the defendant, whatever the label on his cell, is confined. If the court errs in its determination that the defendant has the means to comply with the court’s order, the confinement may be indefinite. Such an error is more likely to occur if the defendant is denied counsel. Viewed in this light, a civil contempt proceeding may pose an even greater threat to liberty than a proceeding labeled “criminal,” with a correspondingly greater need for counsel.
If the parent is indeed indigent the state may obviate the need for counsel by announcing that imprisonment will not result from the proceeding. Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). If it holds the threat of jail over the defendant, however, it must accord the defendant facing it due process, including the right to counsel.
... If, however, imprisonment, by whatever process it is adjudicated, is the possible result of a proceeding, the defendant who is threatened with jail has the right to a lawyer.

The Ninth Circuit Court of Appeals has also recognized that due process requires that court-appointed counsel be provided to an indigent who is cited for contempt. See Henkel v. Bradshaw (9th Cir. 1973), 483 F.2d 1386.

Therefore, I disagree with that part of the majority opinion which suggests that appellant had only the right to “employ counsel” and no right to court-appointed counsel, if he had established his indigency.

However, I concur with the result of the majority opinion because in this case the evidence established that appellant was not indigent. At the time of trial, he was being paid at the net rate of $24,000 per year. Based on that amount of income, he did not meet the criteria for indigency, and was not entitled to court-appointed counsel.

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


author: JUSTICE HUNT

text:
    IN RE THE MARRIAGE OF KATHLEEN MARGARET HAYES, Petitioner and Respondent, and ROBERT EHRGOOD HAYES, Respondent and Appellant.
    No. 93-035.
    Submitted on Briefs May 13, 1993.
    Decided July 8, 1993.
    50 St.Rep. 805.
    259 Mont. 302.
    856 P.2d 227.
    See also, 846 P.2d 272.
    For Respondent and Appellant: Christopher Daly, Missoula.
    For Petitioner and Respondent: Kerry Newcomer, Geiszler & Newcomer, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Robert Ehrgood Hayes appeals from a decision of the District Court of the Fourth Judicial District, Missoula County, adopting the Special Master’s decision to use and apply the Child Support Guidelines in effect at the time of trial.

We affirm.

The following issue on appeal is dispositive of the case:

Did the District Court err in adopting the Special Master’s recommended findings of fact?

Petitioner/Respondent Kathleen Margaret Hayes brought an action for dissolution of her marriage to Robert. On June 22, 1992, the trial was conducted before a Special Master upon referral by the District Court. On July 6,1992, the Special Master filed her decision requiring that the Montana Department of Social and Rehabilitative Services Child Support Division (CSED) calculate the child support. By the time the parties’ applications were submitted, the CSED had adopted new guidelines which were used to calculate the parties’ child support obligation. Kathleen objected to the process of delegating the calculation to the CSED and to the use of the new guidelines. She also stated that there were errors in the calculation. The Special Master agreed with Kathleen that the guidelines in effect at the time of trial on June 22,1992, were the appropriate guidelines to use, and recommended to the District Court a calculation based on those guidelines because the case had been heard, considered, and ruled upon prior to July 31, 1992, the effective date for the New Child Support Guidelines. The District Court adopted the Special Master’s findings of fact and conclusions of law and granted a decree of dissolution. Robert appeals from the District Court’s adoption of the Special Master’s decision and claims that the trial court should have used the guidelines in effect on July 31, 1992.

Did the District Court err in adopting the Special Master’s recommended findings of fact?

The Special Master’s child support calculation recommendation was filed on October 9,1992. Robert did not object until November 12, 1992. On November 10,1992, the District Court had already adopted the Special Master’s recommended findings of fact, conclusions of law, and decree of dissolution of marriage. The District Court Judge cited Rule 53(e)(2), M.R.Civ.P., as authority for accepting the Special Master’s findings of fact unless clearly erroneous.

Rule 53(e), M.R.Civ.P., also sets out the requirements for objecting to the Special Master’s findings of fact:

(2) In nonjury actions. In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6(d). The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.

Robert clearly violated the ten day limit set out in Rule 53(e)(2), M.R.Civ.R, when he waited until November 12,1992, to object to the Special Master’s child support calculation,

Robert attempts to condone his untimely objection by arguing that he was concerned about the parties’ limited financial means. He argues that if he had filed a written objection the issues would have been set for an additional hearing, thereby incurring additional expenses. However, Robert’s timely objection was required to preserve the issue for the appeal he is now pursuing with the same limited financial means. We have consistently held that we will not address an issue on appeal unless the appellant has first presented it to the district court. Carl Weissman & Sons, Inc. v. Paulson (1987), 227 Mont. 459, 462, 739 P.2d 494, 495.

Robert’s other attempt to excuse his untimely objection is based on his interpretation of Rule 53(e)(2), M.R.Civ.R He argues that the rule is strictly permissive rather than mandatory since it does not state that a party “must” object or lose the right to contest the findings. We disagree. There can be no other reason for setting a ten day limit than to require that objecting parties meet that limit or waive their rights to object. We hold that the permissive word “may” refers to the permission given to “any party” to object. The objection must be made within the ten day limit.

Because of Robert’s failure to timely object in writing to the child support calculation proposed by the Special Master and filed on October 9, 1992, we decline to review the matter on appeal. Accordingly, we do not reach the other issues relating to child support presented on appeal. The District Court did not err in accepting the Special Master’s recommended findings of fact.

We affirm.

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


text:
    RICHARD A. WELDON and MONICA A. WELDON, Plaintiffs and Appellants, v. FIRST CITIZENS BANK OF BILLINGS, a Montana Corporation, Defendant and Respondent.
    No. 93-082.
    Submitted on Briefs June 1, 1993.
    Decided July 8, 1993.
    50 St.Rep. 807.
    259 Mont. 305.
    856 P.2d 225.

      For Plaintiffs and Appellants: W. Corbin Howard, Billings, and David A. Klibaner, Billings.
    For Defendant and Respondent: Carey E. Matovich, Matovich, Addy & Keller, Billings.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellants Richard A. Weldon and Monica A. Weldon appeal from the judgment of the Thirteenth Judicial District Court, Yellowstone County, granting a motion to dismiss their complaint for failure to state a claim upon which relief can be granted.

We affirm.

The following issue is dispositive of this case:

Did the District Court err in finding that the First Citizens Bank of Billings had no obligation to ensure that all the required deeds were placed in escrow by Double S Investors?

On November 16, 1983, the Weldons sold their 1625 acres of land to Double S Investors under a contract for deed. The Weldons and Double S Investors chose to employ First Citizens Bank as the escrow agent in this transaction.

In accordance with the contract for deed, the 1625 acres of land were subdivided into 67 twenty-acre parcels, and the corresponding deeds were signed by the Weldons. The Bank was required by contract, as escrow agent, to surrender each deed to Double S Investors upon receipt of the required purchase price. However, before the deeds were ever placed in escrow, Double S Investors recorded eight of the deeds with the county clerk and recorder and sold them to a third party. Only 59 deeds reached the escrow account at the Bank.

The Weldons filed an action against Double S Investors in 1985, which was not settled until October 1, 1991. On June 12, 1992, the Weldons filed an action against the Bank alleging (1) breach of fiduciary duties, (2) breach of contract — common law duties, (3) breach of contract — covenant of good faith and fair dealing, and (4) breach of contract ■ — ■ Montana statutes.

The Bank responded to these allegations on July 16, 1992, with a motion to dismiss for failure to state a claim, or in the alternative, summary judgment based on their contention that the statute of limitations had already run on every claim presented by the Weldons.

The District Court found that the Bank was not under any obligation to inform the Weldons of Double S Investors’ failure to deliver all of the deeds. Although the contractual documents consisted of a November 16, 1983, contract for deed, a December 19, 1983, addendum to the contract, and an escrow agreement, the District Court found that none of these documents required the Bank to ensure that Double S Investors placed all of the deeds in escrow. Upon this finding, the District Court granted the Bank’s motion to dismiss. Because of this decision, the issue of whether or not the statute of limitations had run on the Weldons’ claims was not reached by the District Court. The Weldons appeal the granting of the motion to dismiss.

Did the District Court err in finding that the Bank had no obligation to ensure that all the required deeds were placed in escrow by Double S Investors?

In the case at bar, there is no actual written provision in the escrow agreement obligating the Bank to verify the accuracy of the documents or to notify the Weldons of the status of the deeds placed in escrow. Accordingly, we hold that there was no breach of a contract provision.

The Weldons also claimed that the Bank breached various implied contractual and fiduciary duties. Although in Dulan v. Montana National Bank of Roundup (1983), 203 Mont. 177, 182, 661 P.2d 28, 30, we held that the escrow agent owes fiduciary duties to its principals, the fiduciary duty does not require the agent to exceed the limits of the escrow instructions to the extent of notifying parties to the escrow of any suspicious facts or circumstances that come to the agent’s attention. 28 Am. Jur. 2d Supp. Escrow § 16 (1993). In the case at bar, the fact that eight of the deeds were converted by Double S Investors was not even brought to the attention of the Bank — all the more reason to conclude that there was no breach of an implied or fiduciary duty.

The Bank was not made aware of the missing deeds because the deeds had not yet been delivered into escrow. They were actually converted by Double S Investors before reaching the Bank. In order for an instrument to operate as an escrow, delivery to a third party, such as an escrow agent, who is not a party to the transfer transaction, is required. In re Hume’s Estate (1954), 128 Mont. 223, 229, 272 P.2d 999, 1002. In Jurgens v. Abraham (D. Mass. 1985), 616 F. Supp. 1381, 1385, the court granted a motion to dismiss brought by the escrow agent, holding that the agent had no duties or liabilities until he received a deposit in escrow. Similarly, the appellate court in Southall v. Security Title Insurance & Guarantee Company (Cal.App.2d 1952), 246 P.2d 74, 75-76, concluded that the escrow agent was under no duty to secure necessary missing documents. In the case at bar, the Bank did not have a fiduciary responsibility to account for the missing deeds, especially prior to their delivery into escrow.

We hold that the District Court did not err in finding that the Bank had no obligation to ensure that all the deeds were placed in escrow. The motion to dismiss under Rule 12(b)(6), M.R.Civ.P., was properly granted since the Weldons are not entitled to relief under any of the facts set forth in their claim. Mogan v. City of Harlem (1987), 227 Mont. 435, 437, 739 P.2d 491, 492-93.

We affirm.

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