author: JUSTICE McDONOUGH

text:
    VICTOR J. TACKE, Plaintiff/Respondent, v. ROBERT E. WYNIA, M.D., and WINONA C. WYNIA, Defendants/Appellants, and WILLIAM F. SMITH and RE/MAX OF BIGFORK, Respondents. ROBERT E. WYNIA, M.D., and WINONA C. WYNIA, Plaintiffs/Appellants, v. C. JOHN EKMAN, SUSAN P. EKMAN and ALMA JEAN B. KELLENBERGER, Defendants/Respondents.
    No. 92-438.
    Submitted on Briefs January 21, 1993.
    Decided May 20, 1993.
    50 St.Rep. 587.
    853 P.2d 87.
    258 Mont. 405.

      See C.J.S. Easements § 70.
    For Appellants: William D. Jacobsen, Curtis G. Thompson, Jardine, Stephenson, Blewett & Weaver, Great Falls.
    For Respondents: Stephen Berg, Warden, Christianson, Johnson & Berg, Kalispell (Tacke); Donald Murray, Murphy, Robinson, Heckathorn & Phillips, Kalispell (Ekmans & Kellenberger); Randall Ogle, Ogle & Worm, Kalispell (Smith); Dana Christiansen, Murphy, Robinson, Heckathorn & Phillips, Kalispell (Re/Max).
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from a Twentieth Judicial District Court, Lake County bench trial judgment in a consolidated case regarding easements. We affirm.

There are three issues before the Court:

1. Did the District Court err in concluding that Wynias’ use of the easement across Ekmans’ and Kellenberger’s property was permissive?

2. Did the District Court err in failing to conclude that Tacke’s easement across Wynias’ property was extinguished when Tacke’s predecessor sold Lots 18 and 19 to Ekmans?

3. Did the District Court err when it located Tacke’s easement across the Wynias’ property on the “trailer pad” road?

This case is a consolidation of two cases, one filed by Victor Tacke (Tacke) against Robert and Winona Wynia (Wynias), William Smith (Smith), Tacke’s predecessor in title and RE/MAX of Bigfork, a real estate company (RE/MAX) and the other action filed by the Wynias against C. John Ekman and Susan Ekman (Ekmans) and Alma Jean B. Kellenberger (Kellenberger). The Wynias, Ekmans, Tacke and Kellenberger own property in Lac Cygne Shores, a platted subdivision on Swan Lake in Lake County. Tacke owns Lot 15, Wynias own Lots 16 and 17, Ekmans own Lots 18 and 19 and Kellenberger owns Lots 20 and 21. The following is a plat for reference:

See diagram on page 413.

Smith is the former owner of Lots 15,18 and 19. He listed the Lots for sale through RE/MAX and subsequently sold Lots 18 and 19 to Ekmans in 1988 and Lot 15 to Tacke in 1989. Wynias bought Lot 16 from the original owners of the entire subdivision, Dr. Virgil Ferree and Gladys Ferree (Ferrees) in 1965. They bought Lot 17 from the Ferrees in 1973.

When the Wynias purchased Lot 16 in 1965, the only access to the lots in the subdivision was by boat. In 1967, the Ferrees built a road leading to the subdivision which they subsequently deeded to the county. They also built an access road from the “county” road near Lot 2 to an area in Lot 16. At that point, the Ferrees discovered that if they continued building the road toward Lot 21, the road would have to be very steep and individual driveways leading to the road would also have to be very steep. Consequently, the Ferrees abandoned the road within Lot 16.

There was an old skid road located near the end of the “abandoned” access road and the Wynias used this road for access to their boat launch. The trial court concluded that the Ferrees acquiesced in Wynias’ use of the road and Wynias’ use did not interfere in any way with the Ferrees’ use and enjoyment of the Ferrees’ property. The trial court further concluded that Wynias’ use of the skid road was permissive from its inception and at no time adverse or hostile to the rights of the Ferrees, Smith or Kellenberger.

At about the time that the Wynias bought Lot 17 in 1973, Dr. Wynia, Dr. Virgil Ferree and William Walterskirschen, Ferree’s attorney, met to discuss the appropriate placement of easements and access roads from the Wynias to the Ferrees and vice versa. The first easement went from Dr. Ferree to the Wynias across Lots 18 and 19, providing access to Lots 15, 16, 17, 18, 19, 20 and 21. The second easement went from the Wynias to the Ferrees across Lots 16 and 17 for access to Lots 15, 18, 19, 20 and 21. “The easements locate the roads in the SW1/2 of Lots 19, 18, 17, and 16 to approach from the Northwest.” After the signing and recording of easements, Dr. Ferree and Dr. Wynia met on the property and Dr. Ferree instructed Dr. Wynia as to where to build the easement access road. The Wynias instructed Jim Herron to construct an access road across Lots 16,17, 18 and 19 in the fall of 1973.

During summers after the access road was built, Wynias parked their 32 foot trailer on Lot 16 near the boundary of Lot 15. The trial court concluded that the Wynias could park their trailer in the road turnouts on Lot 16 without disturbing vehicle use on the road. It further concluded that Ferrees acquiesced in the trailer being parked on the roadway and it did not interfere with any use of the road by Ferree or Smith, the subsequent owner. Further facts will be presented as necessary.

Our standard of review of a district court’s findings of fact is clear. Rule 52(a), M.R.Civ.R, 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.)

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.

1. WYNIAS v. EKMANS AND KELLENBERGER

Wynias contend they had perfected an easement by prescription across Ekmans’ and Kellenberger’s properties on the skid trail near the lake. They further state that they had established that their use was open, notorious, exclusive, continuous and uninterrupted, creating the presumption that their use was adverse. They believe there was insufficient evidence to show that their use was permissive, especially given that they established the presumption of adverse use. Ekmans and Kellenberger counter that the presumption in this case is that the use is permissive.

“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. (Citation omitted.) “District courts sitting as fact finders occupy the best position to determine if the use was permissive or adverse.” Granite County v. Komberec (1990), 245 Mont. 252, 258, 800 P.2d 166, 169.

Dr. Wynia described a neighborly and cordial relationship between himself and Dr. Ferree, the original owner of the subdivision. He testified to social visits by Dr. Ferree and wrote that Dr. Ferree had “been considerate with us in the past.”

Perhaps most telling of all is Dr. Wynia’s answer when Mr. Murray, attorney for the Ekmans and Kellenberger, asked “So you said, ‘Doctor Ferree, I’d like to be able to continue to use that lower skid trail road, true?”’ Dr. Wynia replied, “True.” Dr. Ferree responded that ‘We’ll talk about it. Bring an attorney out and we’ll look at drawing up the easements.” Dr. Wynia appears to be asking for continued permission to use the skid trail road. “The trier of fact is in the best position to hear the testimony and observe the witnesses and their demeanor.... Particularly where credibility of witnesses is involved, we give great weight to fact-findings of a district court.” Scott v. Eagle Watch Investments, Inc. (1991), 251 Mont. 191, 195, 828 P.2d 1346, 1349. “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. Chesttnut (1974), 164 Mont. 484, 491, 525 P.2d 24. 27.

This Court concludes that there was sufficient evidence for the trial court to conclude that the Wynias’ use of the skid trail road was permissive from its inception. The trial court did not misapprehend the evidence nor was the finding of permissiveness clearly erroneous.

2. TACKE v. WYNIAS

Wynias claim that Tacke’s easement was extinguished when Smith sold Lot 15 without reserving easement rights across Lots 18 and 19. This failure extinguishes any easement rights Smith may have had to cross Lots 16 and 17 according to the Wynias. However, this Court agrees with Tacke’s argument that Smith’s transfer of title did not extinguish the easement over Lots 16 through 19 to gain passage to Lot 15, but for different reasons.

When Wynias bought Lot 17 in 1973, they granted an easement to the Ferrees and their successors and assigns over and across Lots 16 and 17. “The second easement is for the purpose of providing access to Lot 15 and shall be over and across the Southwesterly Half of Lots 16 and 17, and shall make its approach from the Northwest.” The written easement was signed and recorded in August of 1973.

In November of 1985, the widowed Mrs. Ferree sold her lots in Lac Cygne Shores to William Smith. Smith sold Lots 18 and 19 to the Ekmans on July 7,1988. Smith sold Lot 15 to Victor Tacke on August 16,1989.

Wynias’ argument that the sale of Lots 18 and 19 to the Ekmans and the sale of Lot 15 to Tacke without a reservation of easement extinguished any easement rights Tacke may have had through Lots 16 and 17 is without merit. The Ekmans have stated that Tacke may travel across Lots 18 and 19 to gain access to Lots 16 and 17. Once Tacke crosses Lots 18 and 19, he arrives at Lots 17 and 16. Tacke is able to traverse Lots 17 and 16 by virtue of the 1973 recorded easement from the Wynias to the Ferrees which states that:

ROBERT E. WYNIA and WINONA CAROLE WYNIA, Husband and Wife, of Great Falls, Montana, do hereby give and grant unto VIRGIL D. FERREE, Trustee, and GLADYS I. FERREE, Trustee, of Kalispell, Montana, and to their successors and assigns, a roadway easement twenty feet (20 ft.) in width, and over and across the following described property situated in Lake County, Montana, to-wit:
Lots 16 and 17 of Lac Cygne Shores, according to the map or plat thereof on file and of record in the office of the Clerk and Recorder, Lake County, Montana.
It is understood this is a grant of two (2) separate road easements over and across Lots 16 and 17. ...The second easement is for the purpose of providing access to Lot 15 and shall be over and across the Southwesterly Half of Lots 16 and 17, and shall make its approach from the Northwest. (Emphasis added.)

The benefits of this recorded easement passed to Tacke as an assignee to the Ferrees. Dr. Ferree bought the Lac Cygne property for the sole purpose of subdividing and selling the lots. He ensured that future residents of Lots 15,18 and 19 would have access to their property through the written easement across Lots 16 and 17 recorded in 1973. By the same token, Dr. Ferree ensured that the Wynias would be guaranteed their easements across Lots 18 and 19 by the other written easement recorded in 1973 on the upper portion away from the lake. As an assignee of the Ferrees, Tacke has access across Lots 16 and 17 by virtue of the recorded easement 211576.

3. TACKE v. WYNIAS

Finally, Wynias argue that the trial court established an unreasonable location for Tacke’s easement. Tacke claims that there are good reasons to locate the easement on the “trailer pad” road.

The trial court made the following findings of fact concluding the “trailer pad” road was the appropriate easement for Tacke across Lots 16 and 17:

21. That the easements were signed by Ferrees and Wynias and were recorded later in August of 1973. After the easements were signed, Dr. Ferree and Wynias met on the property and Dr. Ferree directed where he wanted the easement access road across Lots 19 and 18 located.
22. That during the fall of 1973, an access road across Lots 19, 18,17, and 16 was constructed by Jim Herron at the instance and request of Wynias, who built the road in the most appropriate place for a road on the property.
23. That the existing access road across Lots 19, 18, 17, and 16 is the only road in the southwest half of Lots 19, 18, 17, and 16, which approaches from the northwest and which provides access to Lot 15 of Lac Cygne Shores.
24. That the existing access road variously described by the parties as Easement No. 1, Easement No. 2, the upper road and the trailer pad road is located in accordance with the Walterskirschen map (Plaintiff’s Exhibit 4) and Walterskirschen’s letter of August 9, 1973 (Plaintiff’s Exhibit 5), and is located where Dr. Ferree directed that it be located across Lots 16, 17, 18 and 19. It is located in the most appropriate place to build a road across Lots 16,17,18 and 19 and is the only road which provides access to Lot 15 of Lac Cygne Shores across the southwest half of Lots 19, 18, 17 and 16 and which approaches from the northwest.
27. That during the summer of nearly every year from 1974 to 1990 Wynias parked their 32’ Silver Streak trailer on Lot 16 near the boundary of Lot 15 on that portion of the road which the Wynias described as the trailer pad road and which Tacke described as Easement No. 2 on Plaintiff’s Exhibit 1. The Court finds that to be the same road as sketched by Bill Walterskirschen on Plaintiff’s Exhibit 4 extending from the triangle on the boundary line between Lots 19 and 20 to a point within Lot 15, and which road is over and across the southwesterly half of Lots 16 and 17 approaching Lot 15 from the northwest as provided in the recorded easement, Court’s Exhibit 2, and as actually constructed on the ground by Jim Herron.
31. That Wynias introduced a topographic map (Wynias’ Exhibit 60) and proposed an alternative route for access to Lot 15 by means of a road between the existing 30’ access road as it extends to the triangle on the boundary between Lots 19 and 20 and the existing “trailer pad” road. The Court finds said proposal to be totally unacceptable. The terrain is steep and rocky, the construction of an additional road at such location would be difficult, expensive and steep and would be extremely disruptive to Wynias’ Lots 16 and 17. For similar reasons, the Court finds that access to Lot 15 cannot be had from the 30’ access road as shown on the plat of Lac Cygne Shores (Court’s Exhibit 1 and Wynias’ Exhibit 23).

There was conflicting testimony about reasonable locations for Tacke’s easement to Lot 15. Jim Herron, who built the “trailer pad” road, stated that he built the road in the only place where it could be built “-without creating where you couldn’t get out. You’d have too steep a grade. This was about the natural part to get in there.” R. J. Burggraf, a road contractor, was asked by Tacke to consider options for building road access to Lot 15 if Tacke did not have an easement at the “trailer pad” road and to provide cost estimates. Mr. Burggraf concluded that the “best spot for a road traversing Lot 16 and 17 to get to Vic Tacke’s property” is the “trailer pad” road. The above testimony, along with other testimony and exhibits provide substantial evidence for the trial court to establish the easement at the “trailer pad” road. “Due regard is given the opportunity of the district court to judge the credibility of witnesses ... and resolve conflicts or inconsistencies in testimony.” Thomas v. Bamum (1984), 211 Mont. 137, 143-144, 684 P.2d 1106, 1110. (Citations omitted.)

This Court concludes that the trial court findings are supported by substantial evidence, the trial court did not misapprehend the effect of the evidence, and the findings are not clearly erroneous. AFFIRMED.

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


source: Caselaw Access Project

author: JUSTICE WEBER

license: Public Domain

text:
    COLUMBIA GRAIN INTERNATIONAL, Plaintiff and Respondent, v. JAMES AND WILLIAM CERECK, d/b/a CERECK BROTHERS, Defendants and Appellants.
    No. 92-503.
    Submitted on Briefs March 4, 1993.
    Decided May 20, 1993.
    50 St.Rep. 591.
    852 P.2d 676.
    258 Mont. 414.
    See C.J.S. Sales § 548.

      For Defendants and Appellants: Dirk Larsen, Larsen & Neill, Great Falls.
    For Plaintiff and Respondent: K. Dale Schwanke, Jardine, Stephenson, Blewett & Weaver, Great Falls.
   JUSTICE WEBER

delivered the Opinion of the Court.

Defendants, James and William Cereck, appeal the decision of the District Court of the Eighth Judicial District, Cascade County, which awarded damages for breach of a contract to sell grain to plaintiff, Columbia Grain International. We affirm.

The issues for review are restated as follows:

1. Did the District Court err in finding that an oral contract existed for the sale of grain between the parties?

2. Did the District Court err in determining that the statute of frauds did not apply as a defense to enforcing the contract?

3. Did the District Court err in calculating damages?

James and William Cereck (the Cerecks) formed a partnership in 1972 to raise and market grain. Columbia Grain International (Columbia Grain) operates a grain elevator in Great Falls, Montana and regularly deals in buying and selling grain. This appeal concerns an alleged oral agreement between Columbia Grain and the Cerecks to buy and sell 6,500 bushels of No. 1 dark northern spring wheat to be delivered to Columbia Grain’s Great Falls elevator in June of 1988.

Marcus Raba (Raba), a grain buyer for Columbia Grain, testified that he initially contacted James Cereck on May 2, 1988 concerning the purchase of the grain at issue here. At that time, James Cereck did not agree to sell. Raba further testified that he had a total of six conversations with James Cereck throughout May, and that each time, Cereck did not commit to a sale. Raba was away on vacation for two weeks in early June. Raba testified that on June 14, 1988, after he had returned from his vacation, he again spoke with James Cereck over the telephone and Cereck agreed to sell 6,500 bushels of No. 1 dark northern spring wheat at $4.05 per bushel, for a total contract price of $26,325.00.

Raba prepared a "workup" copy of the contract terms while he spoke with James Cereck. He testified that he read the terms back to James Cereck to make certain the terms were clear. He further testified that he considered the grain sold to Columbia Grain on June 14, 1988, when James Cereck told him over the telephone that he would sell 6,500 bushels of grain to Columbia Grain. Raba delivered a copy of the workup to a Columbia Grain merchandiser who in turn sold the grain to a third party.

Columbia Grain’s office staff prepared a written Contract of Purchase from the workup copy, dated June 14, 1988. Raba then signed the Contract of Purchase and mailed two copies to the Cerecks at James Cereck’s address. James Cereck testified that he received the copies within a day or two of their conversation and then left on a vacation of a week to ten days.

Neither of the Cerecks signed or returned the contract copies to Columbia Grain. However, Columbia Grain sold the grain in the open market in reliance on the sale.

The price of grain rose significantly after June 14, 1988. The Cerecks did not deliver the grain to Columbia Grain. On July 12, 1988, Raba contacted James Cereck about delivery of the grain. James Cereck advised him that the Cerecks would not deliver the grain and did not feel obligated to deliver because neither of them had signed the contract. Raba asked James Cereck to reconsider. The next day, Raba again contacted James Cereck and Cereck again refused to deliver the grain. The Cerecks later sold their grain to another elevator for $4.45 per bushel. On July 14, 1988, Columbia Grain purchased 10,000 bushels of grain from another seller for $4.68 per bushel.

Columbia Grain brought this action against the Cerecks to recover contract damages. The Cerecks raised the statute of frauds defense in a motion to dismiss which the District Court denied. The Cerecks later filed an answer generally denying the existence of a contract. The Cerecks did not affirmatively plead the statute of frauds as a defense, nor did they move to amend the pleadings to add the statute of frauds as a defense. After trial, the District Court found that an oral contract existed between the parties and concluded that the contract was enforceable because the Cerecks had waived their right to rely on the statute of frauds defense by not affirmatively pleading it in their answer. The Court further found that damages equaled the difference between the contract price of $4.05 per bushel and the $4.68 per bushel that Columbia Grain paid to replace the grain on July 14, 1988.

I.

Did the District Court err in finding that an oral contract existed between Columbia Grain and the Cerecks for the sale of 6,500 bushels of grain?

The District Court found that the Cerecks and Columbia Grain entered into an oral contract. Under its terms, Columbia Grain agreed to buy and the defendants agreed to sell 6,500 bushels of No. 1 dark northern spring wheat for $4.05 per bushel. The grain was to be delivered to Columbia Grain’s Great Falls elevator in June 1988. The court further found that the contract terms were as alleged by Columbia Grain and that the Cerecks had breached this express oral contract.

The Cerecks conténd that there is no contract here because there was no mutual consent of the parties as required by § 28-2-102, MCA. They argue that they consented only to discuss the price offered by Columbia Grain, but did not consent to sell the grain on June 14,1988 at the price of $4.05 per bushel. They contend that James Cereck communicated his lack of consent by telling Raba that he would have to discuss the proposed price with his brother, William Cereck, and that he expressed a desire not to enter into a contract until after he had discussed Columbia Grain’s proposal with his brother.

Columbia Grain contends that § 30-2-204, MCA, provides that a contract for the sale of grain can be made in any manner sufficient to show agreement. Section 30-2-204, MCA, provides in pertinent part:

Formation in general. (1) A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract. ...

The District Court’s finding that an oral contract existed was based on the prior course of dealing between the parties and the general practices in the industry.

The standard of review for a district court’s findings of fact is whether they are clearly erroneous. Interstate Production Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 322, 820 P.2d 1285, 1287. To determine whether a finding is clearly erroneous, this Court uses the following three-part test: (1) the Court will review the record to see if the findings are supported by substantial evidence; (2) if they are supported by substantial evidence, we determine if the trial court has misapprehended the effect of the evidence; and (3) if the findings are supported by substantial evidence and the trial court has not misapprehended the effect of the evidence, the Court may still find that a finding is clearly erroneous although there is evidence to support it, if a review of the record leaves the Court with the definite and firm conviction that a mistake has been made. DeSaye, 820 P.2d at 1287.

The District Court’s finding is supported by substantial evidence. The evidence established that the Cerecks were experienced in farming and the sale of crops. Both were raised on a farm and, at the time of this contract, had been partners in their grain operation for eighteen years. Both Cerecks testified they were familiar with the methods farmers use to market their grain.

The evidence presented at trial also established that during the period from September 26, 1980, through February 12, 1988, the Cerecks entered into eighteen separate grain sales transactions with Columbia Grain. Each time, Columbia Grain prepared a contract on its standard form and mailed the first two copies to the Cerecks at James Cereck’s address. The Cerecks never returned signed copies of any of the former contracts.

Testimony established that it is not unusual for farmers not to return signed contracts to the buyer. Other testimony established that Columbia Grain buys most of its grain over the telephone and mails contracts to the selling farmer. Rada testified that this is standard industry practice and that it is impracticable to buy grain in other ways because of the distance involved and daily grain price fluctuations.

When a farmer has agreed to sell grain over the telephone, it is Columbia Grain’s business practice to repeat the terms back to the farmer to make sure the farmer has agreed to them. A workup copy is not submitted to accounting department staff unless a sale is agreed to. When a sale is agreed to, the information is then transcribed by the accounting department onto a printed “Contract of Purchase” form which is signed by the grain buyer. Two copies of the Contract of Purchase are then mailed to the seller.

Typically, James Cereck handled grain sales transactions for the partnership. He had dealt with Raba on several occasions in the previous one and one-half years. At the time of trial, Raba had been a grain buyer for twelve years. Raba also testified that he keeps a daily record of his conversations with farmers. He testified that there were times he and James Cereck would communicate frequently and James Cereck would not agree to sell. No contract was mailed to the Cerecks in those instances. Raba and representatives of other grain companies which had also dealt with the Cerecks testified that James Cereck always sold the grain for the partnership and that he had never told them he would have to discuss an offer with his brother before a sale could be final. Raba had spoken with James Cereck on six separate days in May of 1988 regarding the sale of the grain involved in this action. Raba was gone for a two-week vacation in early June. When he returned, he and James Cereck had the conversation at issue here.

Clearly, James Cereck was experienced in selling grain. From prior dealings with Columbia Grain, he was also familiar with Columbia Grain’s procedures. There is substantial evidence in the record to support the findings made by the District Court. We conclude that the conduct of both parties is sufficient to show consent to the contract here. We further conclude that the District Court has not misapprehended the effect of the evidence and our review of the record does not leave us with a firm and definite conviction that a mistake has been made.

We hold the District Court correctly determined that an oral contract existed between Columbia Grain and the Cereck’s to buy and sell 6,500 bushels of grain.

II.

Did the District Court err in determining that the statute of frauds did not apply as a defense to enforcing the contract?

The statute of frauds provision in the Montana Uniform Commercial Code states that a contract for the sale of goods for $500.00 or more is not enforceable unless in writing and signed by the party against whom enforcement is sought. Section 30-2-201(1), MCA. The contract here involved the sale of goods for over $500.00. However, the District Court concluded that the Cerecks had failed to affirmatively plead the statute of frauds as a defense, had thereby waived their right to rely on the statute of frauds as a defense and were barred from using the defense.

The Cerecks argue that they should be allowed to use the statute of frauds defense because they raised it in a motion to dismiss, because both parties had argued it before the District Court during the pleadings stage of the proceedings, and because Columbia Grain was aware the Cerecks were relying on the defense. They further contend that Columbia Grain was precluded from objecting to the use of the defense because it raised the objection in its case in chief, was prepared to argue it and did not show any prejudice by allowing evidence concerning the defense.

We review a district court’s interpretations of the law to determine whether they are correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601.

The Cerecks’ motion to dismiss and subsequent motion for summary judgment were both based on the statute of frauds defense. However, they made no motion to amend their answer at any time to include the affirmative defense of the statute of frauds. Rule 8(c), M.R.Civ.P., provides:

Affirmative defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. ... (Emphasis supplied.)

Rule 8(c) precludes a defendant from using the statute of frauds as a defense when it has not been raised in the pleadings.

The Cerecks first alluded to the statute of frauds defense in their motion to dismiss. They again argued the defense in their summary judgment motion. The Cerecks contend that Rule 15(b), M.R.Civ.P., allows them to rely on the defense because Columbia Grain impliedly consented to the defense. Rule 15(b), M.R.Civ.P., provides:

Amendments to conform to the evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. ...

This Court has previously addressed this same issue with regard to waiver as an affirmative defense. Waiver was not raised in either the defendant’s answer or in a subsequent motion for summary judgment in Butte Teachers’ Union Local No. 332 v. Board of Trustees (1982), 201 Mont. 482, 655 P.2d 146. In that case, the defense was first presented in a memorandum and supporting affidavit in opposition to the plaintiff’s motion for summary judgment. Because the plaintiff continued to maintain its objection to the defendant’s allegations of waiver, this Court stated:

Therefore, it cannot be said that an issue not raised by the pleadings was tried by the express or implied consent of the parties, as Rule 15(b), M.R.Civ.R would permit. Cf. Reilly v. Maw (1965), 146 Mont. 145, 405 P.2d 440, wherein implied consent was found on the basis that evidence extrinsic to the claim plead, was admitted at trial without objection. (Emphasis in original.)

Butte Teachers’ Union, 655 P.2d at 148. Although the motion to dismiss may have put Columbia Grain on notice that the Cerecks intended to rely on the statute of frauds as a defense, Butte Teachers’ Union requires that the opposite party raise no objection in order for implied consent to operate under Rule 15(b), M.R.Civ.P.

The Cerecks claim that Columbia Grain did not object to the use of the statute of frauds in any of its documents or at the hearing on the summary judgment motion and, further, that Columbia Grain argued the merits of the defense. The Cerecks claim, therefore, that Columbia Grain impliedly consented and the pleadings should be treated as amended to include the defense. The Cerecks also claim that Columbia Grain impliedly consented by its actions at trial in eliciting testimony from witnesses and by arguing the defense. Specifically, they cite the following from the transcript, where Columbia Grain’s counsel responded to the Cerecks’ objection to the introduction of a loan form signed by James Cereck as being irrelevant: “[A]gain I think it goes to the practice of farmers, the business of farmers, and I think it relates again back to what I anticipate is going to be the defense here with respect to the statute of frauds.”

Columbia Grain contends that it has maintained its objection to the Cerecks’ use of the defense throughout the proceedings. The Cerecks admit that Columbia Grain did object at the trial to the use of the statute of frauds as a defense for failure to plead it. We conclude that by objecting at trial to the use of the statute of frauds for failure to plead it and by resisting the defense at pre-trial proceedings, Columbia Grain did not impliedly consent under Rule 15(b), M.R.Civ.P., to the Cerecks’ use of the statute of frauds defense.

We hold the District Court correctly determined the statute of frauds did not apply as a defense to enforcing the contract.

III.

Did the District Court err in calculating damages?

The District Court determined that Columbia Grain bought other grain on July 14, 1988 to replace the grain the Cerecks did not deliver. Columbia Grain purchased the replacement grain for $4.68 per bushel, which turned out to be the high price of the season. The court awarded damages of $4,095.00 based on the difference between $4.68 and the $4.05 contract price.

The Cerecks contend that Columbia Grain failed to show any damages resulting from the contract breach. Alternatively, they contend that the only damages proven are $.07 per bushel, the margin of profit for this transaction as testified by Raba. They also argue that no evidence was offered to show when the grain was purchased or for what price and, therefore, the damages are speculative and Columbia Grain has not met its burden of proving damages as required under § 27-1-311, MCA.

The Cerecks’ arguments have no merit. Damages for breach of a contract for the sale of goods are governed by § 30-2-711(1), MCA, which provides in pertinent part:

Buyer’s remedies in general .... (1) Where the seller fails to make delivery or repudiates ... then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract (30-2-612), the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid:
(a) “cover” and have damages under the next section as to all the goods affected whether or not they have been identified to the contract ...

Section 30-2-712, MCA, provides:

“Cover” — buyer’s procurement of substitute goods. (1) After a breach within the preceding section the buyer my “cover” by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due from the seller.
(2) The buyer may recover from the seller as damages the difference between the cost of cover and the contract price together with any incidental or consequential damages as hereinafter defined (30-2-715), but less expenses saved in consequence of the seller’s breach... (Emphasis supplied.)

In addition to the provisions outlined above, § 30-2-713, MCA, provides that the measure of damages for nondelivery or repudiation is the difference between the market price and the contract price at the time the buyer learns of the breach.

Columbia Grain covered the undelivered grain without unreasonable delay. They had no way to know that $4.68 would be the high price that season for No. 1 dark northern spring wheat. Columbia Grain testified that to meet its obligations to the buyer, it could not wait longer for delivery from the Cerecks after James Cereck refused to deliver on July 13, 1988. We conclude the Montana Uniform Commercial Code provision for damages based on cost to cover as used by the District Court was the correct measure of damages here.

We hold the District Court correctly calculated damages. Affirmed.

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


author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WENDELL O. GRAY, Defendant and Appellant.
    No. 92-511.
    Submitted on Briefs March 4, 1993.
    Decided May 25, 1993.
    50 St.Rep. 596.
    853 P.2d 93.
    258 Mont. 424.

      See C.J.S. Insane Persons § 129.
    For Defendant and Appellant: Jennifer Bordy, Berry & Bordy, Bozeman.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Helena; A. Michael Salvagni, Gallatin County Attorney, Marty Lambert, Deputy County Attorney, Bozeman.
   JUSTICE HUNT

delivered the Opinion of the Court.

Following a bench trial in the Eighteenth Judicial District Court, Gallatin County, appellant Wendell O. Gray was found guilty of the crime of robbery, a felony, in violation of § 45-5-401, MCA. Gray appeals the court’s final conviction and sentence entered on July 23, 1992. He also appeals the court’s denial of motions for evaluation at the Montana State Hospital at Warm Springs entered on May 1,1992.

We affirm.

Appellant presents two issues for this Court’s consideration.

1. Did the District Court err in denying appellant’s motion to obtain a complete psychological evaluation under § 46-14-202, MCA?

2. Did the District Court err at sentencing by not determining whether appellant suffered from a mental disease or defect at the time of the offense?

On January 19, 1992, a store clerk noticed Gray looking into the shoe store where she worked. Shortly thereafter, Gray entered the store, browsed for a minute, and then approached the cash register. Gray concealed his right hand in his coat pocket and handed the clerk a note which told her to give him the money and no one would get hurt. The store clerk believed that Gray was concealing a gun or a knife in his coat. She gave him all the money in the cash register. The store clerk testified that she smelled alcohol on Gray during the robbery. Gray placed the money in his coat and left the store. Based upon Gray’s physical description given by the store clerk, the police located Gray at a local bar. After the store clerk identified Gray at the police station, he was arrested and charged with robbery.

Because of a long history of mental health problems, Gray filed a motion requesting an evaluation at the Montana State Hospital at Warm Springs pursuant to § 46-14-202, MCA. The State requested that a local psychiatrist perform the evaluation to save time. The court ordered Dr. Noel Haukebo, a local psychiatrist, to perform the evaluation.

After Dr. Haukebo’s first evaluation, Gray made a second motion for a more complete evaluation at Montana State Hospital because Dr. Haukebo met with Gray for only one afternoon. Gray contended that this was inadequate, considering Gray’s history of mental illness. The District Court held a hearing and took the matter under advisement, but subsequently denied the motion.

A bench trial was held on June 23,1992. After presentation of the evidence, the District Court found that Gray did not suffer from a serious mental disease or defect. The court recognized that Gray had mental disorders, but concluded that the disorders did not deprive him of the capacity to understand the nature and meaning of the proceedings against him, or of his conduct on the day of the robbery, and that Gray acted purposely and knowingly when he committed the robbery. The court found Gray guilty and sentenced him to 15 years in the Montana State Prison without eligibility for parole. Gray appeals the denial of the motions for evaluation and the final conviction and sentence.

I.

Did the District Court err in denying appellant’s motion to obtain a complete psychological evaluation under § 46-14-202, MCA?

Section 46-14-202(1), MCA, provides that upon a written motion by the defense requesting an examination:

[T]he district court shall appoint at least one qualified psychiatrist or licensed clinical psychologist or shall request the superintendent of the Montana state hospital to designate at least one qualified psychiatrist or licensed clinical psychologist... to examine and report upon the defendant’s mental condition.

The statute gives the district court the discretion to appoint either a qualified professional or order the Montana State Hospital to evaluate the defendant. Absent an abuse of discretion we will not disturb the order of the district court.

In State v. Campbell (1985), 219 Mont. 194, 202, 711 P.2d 1357, 1362, cert. denied (1986), 475 U.S. 1127, 106 S.Ct. 1654, 90 L.Ed.2d 197, we held that the district court did not err in denying appellant’s motion for a second psychiatric evaluation simply because appellant thought that the results of the first evaluation were unfair. We stated that the statute does not provide for a second evaluation. Campbell, 711 P.2d at 1362. Gray seeks a second evaluation because he claims that the psychological evaluation was insufficient because of his long history of mental illness.

Section 46-14-202(3), MCA, provides that for the examination, “any method may be employed that is accepted by the medical or psychological profession for the examination of those alleged to be suffering from mental disease or defect.” The record shows that Dr. Haukebo is a qualified psychiatrist who testified at trial that the examination he performed was a standard evaluation for those asserting a mental disease or defect. In his first report, Dr. Haukebo stated that a person with such mental disorders should be given a period of inpatient care to reduce the severity of his illness.

Contrary to Gray’s allegation that he was seen only once, Dr. Haukebo testified that he examined Gray on a second occasion the day before trial. In the second report, Dr. Haukebo stated that Gray retained the capacity to understand the nature and meaning of the proceedings against him and the possible outcome. Dr. Haukebo further opined that Gray was not seriously mentally ill as defined by Montana law and that Gray understood the criminality of his behavior. As we have stated previously:

The spirit of the statute is to have a qualified professional examine a defendant for the purpose of evaluation. Where that spirit is substantially fulfilled, as here, we can find no substantial interference with a defendant’s rights and, thus, no reversible error.

State v. Buckman (1981), 193 Mont. 145, 150-51, 630 P.2d 743, 746.

In this instance, the spirit of the statute was upheld. We hold that the District Court did not err in denying Gray’s second motion for a psychiatric evaluation at the Montana State Hospital.

II.

Did the District Court err at sentencing by not determining whether appellant suffered from a mental disease or defect at the time of the offense?

Gray contends that the District Court erred when it did not consider his mental disease or defect at sentencing. Specifically, Gray asserts that pursuant to our holding in State v. Raty (1984), 214 Mont. 114, 692 P.2d 17, and § 46-14-311, MCA, the District Court did not determine at sentencing whether Gray suffered from a mental disease or defect at the time of the offense.

At the close of the evidence, the District Court specifically found that Gray did not suffer from a serious mental disease or defect. The court did not further discuss Gray’s mental condition during the sentencing hearing, or in its written sentence and judgment. The only additional evidence regarding Gray’s mental condition presented during the sentencing hearing was Gray’s own testimony.

Section 46-14-312(1), MCA, provides:

If the court finds that the defendant at the time of the commission of the offense of which the defendant was convicted did not suffer from a mental disease or defect as described in 46-14-311, the court shall sentence the defendant as provided in Title 46, chapter 18.

In this instance, the District Court was the trier of fact making both legal and factual determinations. All the evidence regarding Gray’s mental condition was presented during the bench trial. The court made a specific finding that Gray did not suffer from a mental disease or defect.

Based upon the presentence investigative report, the District Court sentenced Gray to 15 years at the Montana State Prison without possibility of parole. Attached to the presentence investigative report were the psychiatric reports of Dr. Haukebo. We hold that the District Court did not err in its consideration of Gray’s mental disease or defect at the time of the commission of the offense.

We affirm.

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


text:
    KENNETH S. ROBBINS, Petitioner, v. JACK McCORMICK, Warden, Montana State Prison, Respondent.
    No. 93-221.
    Dated May 25, 1993.
    50 St.Rep. 599.
    853 P.2d 1205.
    258 Mont. 429.
    See C.J.S. Criminal Law § 1524.
    Kenneth S. Robbins, pro se.
    For Respondent: Joseph P. Mazurek, Atty. Gen. James Obie, Legal Counsel, Dept, of Corrections & Human Services, Helena.
   OPINION AND ORDER

Kenneth S. Robbins comes before this Court with a Petition for Writ of Habeas Corpus. Petitioner was released from Montana State Prison on April 29, 1993, and is presently serving probation on the suspended portion of his sentence handed down in March 1982 in Sheridan County for Criminal Sale of Dangerous Drugs and Criminal Possession with Intent to Sell.

The issue raised by Petitioner is whether he has been properly ordered to serve probation or if, alternatively, he has completely discharged his sentence.

The pertinent facts are as follows: On April 1,1982, Petitioner, on his plea of guilty to Criminal Sale of Dangerous Drugs and Criminal Possession with Intent to Sell in Sheridan County, received a sentence of fifteen years with ten years suspended.

On April 28,1986, while on parole for the Sheridan County conviction, Petitioner pled guilty to two counts of Criminal Sale of Dangerous Drugs in Gallatin County. On May 16, 1986, he received two concurrent twelve year sentences on his plea. The District Court, however, failed to specify whether the Gallatin County sentences were to run consecutively or concurrently with the Sheridan County sentences.

On June 26, 1986, Petitioner’s parole on the Sheridan County Convictions was revoked and he was ordered incarcerated until his discharge date in August 1986.

Petitioner was discharged from the Montana State Prison on April 29, 1993, on the Gallatin County charges, but he then was placed on ten years probation as a result of the ten year suspended sentence in Sheridan County.

Section 46-18-401, MCA (1985), provides, in pertinent part:

(1) Unless the judge otherwise orders:
(a) whenever a person serving a term of commitment imposed by a court in this state is committed for another offense, the shorter term or shorter remaining term shall be merged in the other term except as provided in subsection (5); and
(b) whenever a person under suspended sentence or on probation for an offense committed in this state is sentenced for another offense, the period still to be served on suspended sentence or probation shall be merged in any new sentence of commitment or probation.
(5) Except as provided in this subsection, whenever a prisoner is sentenced for an offense committed while he was imprisoned in the state prison or while he was released on parole or under the supervised release program, the new sentence runs consecutively with the remainder of the original sentence. The prisoner starts serving the new sentence when the original sentence has expired or when he is released on parole under chapter 23, part 2, of this title in regard to the original sentence, whichever is sooner. In the latter case, the sentences run concurrently from the time of his release on parole.

Petitioner relies on Petition of Arledge (1988), 232 Mont. 450, 756 P.2d 1169, wherein we held, in the absence of a lower court order specifying whether sentences in the Fourth and Eleventh Judicial Districts were consecutive or concurrent, that § 46-18-401(1)(a), MCA, required merger of sentences imposed by the Eleventh Judicial District with those imposed by the Fourth Judicial District.

We did not discuss in our opinion, however, the application of subsection (5) where, as in the instant case, the defendant is convicted or pleads guilty to a subsequent offense while on parole, nor did we consider the application of subsection (l)(b), when the defendant is also under a suspended sentence at the time of his conviction of or plea to the second offense.

Because we did not consider the application of subsections (l)(b) and (5) to the facts in Arledge, we limit our holding on Issue II in Arledge to that case.

In construing a statute where there are several provisions or particulars, the function of this Court is, if possible, to adopt a construction that will give effect to all. Section 1-2-101, MCA.

In the absence of the sentencing court’s order to the contrary, subsection (5) of the statute provides an exception to the general requirement of merger set forth in subsection (l)(a), if the prisoner is sentenced for an offense committed while he is imprisoned in the state prison or while he is released on parole or under the supervised release program.

In the instant case, Petitioner was on parole from the Sheridan County sentence when he was sentenced in Gallatin County. Since the District Court in Gallatin County failed to specify whether the sentences in that case were to be served consecutively or concurrently with the Sheridan County sentences, § 46-18-401(5), MCA, required that the “new” (Gallatin County) sentence run consecutively with the remainder of the “original” (Sheridan County) sentence with the defendant to start serving the “new” (Gallatin County) sentence when the “original” (Sheridan County) sentence expired.

Since Petitioner was also under suspended sentence from Sheridan County at the time he was sentenced on the Gallatin County offenses, subsection (l)(b) required the suspended Sheridan County sentence be merged in the Gallatin County sentences.

The net result of the application of subsections 46-18-401(l)(b) and (5), MCA, is that the Gallatin County sentences commenced to run when the Petitioner’s Sheridan County sentence expired, taking into consideration that the suspended portion of the Sheridan County sentence was merged in the Gallatin County sentences.

There is no authority under § 46-18-401(5), MCA, for the State to require the Petitioner to serve the suspended portion of his “original” (Sheridan County) sentence consecutively with the end of his “new” (Gallatin County) sentence. The plain language of that subsection of the statute requires precisely the opposite, that is, that the “original” sentence be served before the “new” sentence commences to run.

The Petitioner having been discharged from the Gallatin County sentence and the suspended portion of the Sheridan County sentence having been merged in the Gallatin County sentence,

IT IS HEREBY ORDERED that Petitioner be discharged from his probation on the Sheridan County sentence.

DATED this 25th day of May, 1993.

/S/J. A. TURNAGE, Chief, Justice

/S/ TERRY N. TRIEWEILER, Justice

/S/ WILLIAM E. HUNT, SR., Justice

/S/ JOHN CONWAY HARRISON, Justice

/S/ JAMES C. NELSON, Justice

/S/ FRED J. WEBER, Justice


author: JUSTICE HARRISON JUSTICE TRIEWEILER

text:
    JOHN A. LENCE and JOHN A. LENCE, P.C. a Montana professional corporation, Plaintiffs and Appellants, v. HAGADONE INVESTMENT CO., a Nevada Corporation, d/b/a INTER LAKE PUBLISHING CO., DANIEL BLACK, JACQUELINE L. ADAMS, et al., Defendants and Respondents.
    No. 92-152.
    Submitted December 10, 1992.
    Decided May 27, 1993.
    50 St.Rep. 601.
    853 P.2d 1230.
    258 Mont. 433.

      See C.J.S. Records § 40.

      For Plaintiffs and Appellants: Alan J. Lerner, Kalispell; Larry M. Elison, Missoula (argued).
    For Defendants and Respondents: Gary R. Christiansen, Warden, Christiansen, Johnson & Berg, Kalispell; Robert C. Bernius, Nixon, Hargrave, Devans & Doyle, Washington, D.C. (argued).
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from summary judgment granted by the District Court of the Eleventh Judicial District, County of Flathead, the Honorable Michael H. Keedy presiding. Appellant John A. Lence (Lence) sued the respondents (collectively, Inter Lake) in June 1989 for damages arising from libel, false light invasion of privacy, intentional and negligent infliction of emotional distress, and negligence. Inter Lake answered Lence’s complaint in July 1989, and in July 1990 filed a motion for summary judgment. In January 1992 the court issued a memorandum and order granting the motion, and Lence appealed. We affirm.

Lence’s claims are based on three articles published in the Daily Inter Lake in November 1988 and April 1989, on two unrelated matters. Lence included all three articles in his complaint, and all three are considered here.

The 1988 Article

On November 30,1988, the Daily Inter Lake published an article, under the heading “Lawyer-client dispute probed,” reporting that the Montana Supreme Court’s Commission on Practice was looking into “allegations of fraud and professional misconduct on the part of Kalispell attorney John A. Lence.” The article stated that local building contractor L. Craig Semenza (Semenza) had filed a complaint against Lence with the “high court,” alleging fraud, professional misconduct, and failure to pay $67,511 for Semenza’s work remodelling Lence’s office.

The article also stated that Semenza had been charged in September 1988 with criminal mischief after someone flooded Lence’s offices with a garden hose inserted through a hole drilled in the ceiling; that the county attorney was dropping this charge against Semenza because of insufficient evidence; that Lence had handled legal matters for Semenza’s contracting business; and that Semenza had fired Lence and wanted to bring a theft charge against him because he had refused to give Semenza access to his corporate records.

Lence’s attorney, Alan Lerner, wrote to the Daily Inter Lake demanding a retraction. Mr. Lerner’s letter identified the portions of the article that Lence considered defamatory and included statements describing the “true facts.” Inter Lake published these statements on December 11, 1988, under the heading “Attorney takes exception to DIL [Daily Inter Lake] story.”

Lence objected particularly to the second paragraph of the article, which stated that Semenza had filed his complaint with “the high court.” In reality, of course, Semenza had filed his complaint with the Commission on Practice (Commission). Under the Montana Supreme Court Rules for Lawyer Disciplinary Enforcement, only the Commission may file a formal complaint against a lawyer.

When the author of the 1988 article, respondent Jacqueline Adams (Adams), spoke with Semenza, the proceedings before the Commission were confidential, pursuant to Rule 13 of the Rules for Lawyer Disciplinary Enforcement, because no formal complaint had been filed. But because Semenza approached Adams with the information and gave her a copy of this complaint, he, not she, violated the rule of confidentiality. The 1988 article was defamatory, Lence argues, because:

The Daily Inter Lake’s use of the words “high court” falsely informed all other attorneys reading the story that there was credible evidence to support the conclusion that [Lence] had committed fraud and was guilty of professional misconduct.

Lence complained that Adams had published the story without giving Lence an opportunity to comment and without investigating Semenza’s allegations. Adams acknowledged these omissions in her deposition and stated:

The story was based on the complaint filed with the Commission on Practice. And just as I would not contact people named in a civil suit about their part in it, I would not contact those named in a complaint to the Commission on Practice. It’s not my job to determine who’s calling who names and who’s right.

Lence also objected to the article’s failure to state that charges against Semenza, for flooding Lence’s office, were to be dropped without prejudice. According to Lence, this omission implied that the county attorney had found no evidence against Semenza. In reality, he says, the county attorney “was not convinced of Semenza’s innocence but needed time to obtain more evidence.”

Adams admitted in her deposition that she knew before the article was published that charges against Semenza had been dropped without prejudice, and she agreed that the article would have been slightly less favorable to Semenza had she included and explained the phrase “without prejudice.” She did not do that, she said, because “the deadline was at hand” when she learned of the dismissal, and because she expected to write another story later, “when the actual matter came into court.”

On April 3,1989 the Commission notified Semenza, with a copy to Lence, that it had reviewed his complaint against Lence and found no ethical violation or breach of the Rules of Professional Conduct. The 1989 Articles

On April 4, 1989 Inter Lake published a short article about a Kalispell Board of Appeals hearing on a building permit for “the Main Street offices of attorney John Lence.” The article stated that the city judge had issued a summons to Lence, “who is charged with violating city codes by constructing openings in walls where they were prohibited.” Lence had installed windows in the north side of the building, which was on the property line, after city officials had informed him that placing windows on the property line would violate the Uniform Building Code.

On April 9,1989, the newspaper reported that Lence had pleaded innocent to the misdemeanor charge of violating the city building code and that the Kalispell Board of Appeals had approved a no-construction easement from the adjoining property owner, which satisfied the building code’s open space requirement for buildings with windows.

At Lence’s request, the newspaper printed an item in its “Corrections” column on April 20, 1989, stating that “GKL,” a Montana corporation, not Lence, had been charged with a building code violation and explaining that Lence was the president of GKL and his wife, Gwendolyn K. Lence, was the secretary.

Lence argues that the “sting” of these stories was “not that a violation had been alleged, but rather that [Lence], an attorney, had personally violated the law,” and that Inter Lake should have known that the court files on the building code violation showed that GKL, not Lence, was the defendant.

In his deposition, however, Lence stated that GKL Corporation was merely a holding company created for the purpose of holding title to the building and that his wife was the sole stockholder. Lence appeared before the city judge on behalf of the corporation, and in their correspondence on this matter, both Lence and the city officials referred to the building as Lence’s building.

The following issues are presented for review.

1. Whether, in light of Article II, section 7 of the Montana Constitution, the District Court erred in granting summary judgment.

2. Whether the First Amendment protects newspaper articles about a preliminary investigation of alleged attorney misconduct and an alleged violation of a city building code.

3. Whether the articles are privileged, under § 27-1-804(4), MCA, as fair and true reports, without malice, of official proceedings.

4. Whether the District Court erred in dismissing Lence’s claim for false light invasion of privacy.

5. Whether Lence’s emotional distress claim duplicates his defamation claim.

6. Whether Lence’s negligence claim is barred as a restatement of the fault element of his defamation claim.

I

Did the District Court err in granting summary judgment?

Lence contends that in granting summary judgment the District Court erred by deciding genuine issues of material fact; by failing to view the evidence in a light most favorable to the opposing party; and by failing to consider Article II, section 7 of the Montana Constitution, which provides, in part, that:

In all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and the jury, under the direction of the court, shall determine the law and the facts.

Lence’s “genuine issues of material fact” are discussed below in the context of the remaining issues. The procedural issue —jury determination of law and facts in a libel case — was disposed of by this Court in Griffin v. Opinion Publishing Co. (1943), 114 Mont. 502, 138 P.2d 580, which held that it is for the court and not the jury to pass on motions for nonsuit, directed verdict, new trial, and so on, and in Williams v. Pasma (1982), 202 Mont. 66, 72, 656 P.2d 212, 215, which cited Griffin to support the proposition that “there is no absolute prohibition against granting summary judgment in libel cases.” In libel cases as in other civil cases, summary judgment is appropriate when there are no material issues of fact and the evidence supports the judgment as a matter of law. Kurth v. Great Falls Tribune Co. (1991), 246 Mont. 407, 804 P.2d 393; Rule 56(c), M.R.Civ.P.

As we decide here that there are no material issues of fact and that Inter Lake is entitled to judgment as a matter of law, we conclude that the District Court did not err in granting summary judgment.

II

Does the First Amendment protect the Daily Inter Lake articles?

In holding that Inter Lake’s report of Semenza’s complaint to the Commission is protected by a qualified constitutional privilege, the District Court relied on Landmark Communications, Inc. v. Virginia (1978), 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1.

In Landmark, the defendant newspaper published an article identifying a judge who was under investigation by the Virginia Judicial Inquiry and Review Commission. Like Montana’s Rules for Lawyer Disciplinary Enforcement (Rules), the Virginia statute requires confidentiality of the investigation until a formal complaint is filed with the Virginia Supreme Court. Unlike Montana’s Rules, the Virginia statute makes violation of the confidentiality rule a misdemeanor. The Virginia Supreme Court found the newspaper criminally hable, but the United States Supreme Court reversed, holding that the First Amendment does not permit criminal punishment of third parties, including the news media, for publishing truthful information about confidential proceedings of the Judicial Inquiry and Review Commission.

Lence contends that the District Court’s reliance on Landmark is misplaced because the Virginia statute imposed criminal penalties; the case involved a public official and a matter of “the most urgent governmental importance;” and the holding was expressly limited to the publication of truthful information. In contrast, Lence argues, the present case is a civil action brought by a private citizen and is, in Lence’s view, “a private dispute without social or political significance.”

By the time Landmark was decided, however, the Supreme Court had extended First Amendment protection to publications about private citizens. Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789. Both Gertz and Landmark are descendants of the seminal First Amendment case, New York Times v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, but Sullivan, like Landmark, involved alleged defamation of a public official. In Gertz, the plaintiff was an attorney described in a magazine published by the defendant as, among other things, a “Leninist” and “Communist-fronter.” No evidence supported these allegations. The Supreme Court held that states have a legitimate interest in compensating private individuals for the harm inflicted on them by defamatory falsehood; therefore, states may define an “appropriate standard of liability for a publisher of defamatory falsehoods,” so long as they do not impose liability without fault. Gertz, 418 U.S. at 347, 94 S.Ct. at 3011. See Madison v. Yunker (1978), 180 Mont. 54, 589 P.2d 126 (following Gertz in establishing the standard of liability for defamation of a private person).

In Landmark, the Supreme Court held unequivocally that the newspaper’s publication of accurate factual information about an inquiry pending before the Judicial Inquiry and Review Commission “served those interests in public scrutiny and discussion of governmental affairs which the First Amendment was adopted to protect.” Landmark, 435 U.S. at 434, 98 S.Ct. at 1148. In Landmark and again in two cases involving private plaintiffs, the Court balanced these First Amendment interests against the interests served by preserving confidentiality and found that the latter were not sufficient to justify the subsequent punishment of speech.

Smith v. Daily Mail Publishing Co. (1979), 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399, ruled unconstitutional a West Virginia statute making it a crime for a newspaper to publish truthful information concerning the identity of juvenile offenders. The Florida Star v. B.J.F. (1989), 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443, held that where a newspaper had obtained a rape victim’s name from a police report distributed to the press, a Florida statute making publication of the victim’s name unlawful was unconstitutional. “[WJhere a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order.” The Florida Star, 491 U.S. at 541, 109 S.Ct. at 2613.

If the public’s interest in the dissemination of truth outweighs the state’s interest in protecting the privacy of rape victims or juvenile offenders, then surely the public’s interest in accurate information about attorney discipline outweighs the state’s interest in preserving the confidentiality of Commission on Practice investigations, where, as here, the press obtained the information lawfully. Thus, Lence cannot recover unless he can establish that the published information was false. “A private-figure plaintiff must bear the burden of showing that the speech at issue is false before recovering damages for defamation from a media defendant.” Philadelphia Newspapers, Inc. v. Hepps (1985), 475 U.S. 767, 777, 106 S.Ct. 1558, 1564, 89 L.Ed.2d 783, 793.

Lence contends that the published information in this case was neither truthful nor accurate and that the “irresponsible publication of false information is not privileged communication protected by the First Amendment.” By “false information,” he means the 1988 article’s reference to the “high court” instead of the Commission on Practice; its failure to state that charges against Semenza had been dropped without prejudice; the implication that Lence had been charged with theft; and in the 1989 articles, the attribution of the building code violation to Lence instead of the GKL corporation. The evidence is sufficient, Lence argues, for a jury to conclude that these errors were not inconsequential or insignificant but instead were “gross distortions of the truth.”

The District Court concluded, however, that the cited errors were inconsequential and that the articles were substantially true. The 1988 article did not allege that Lence had actually committed acts of fraud, professional misconduct and theft, but merely reported accurately that Semenza had filed a complaint alleging such acts, and that police records indicated that Semenza had told the police he wanted to bring a theft charge against Lence. Similarly, the 1989 articles were substantially true because the acts on which the misdemeanor building code violations were based were the personal acts of Lence, not his corporation, and because Lence himself consistently treated his personal interests as identical to those of the GKL corporation.

We conclude that Lence failed to meet his threshold burden of establishing the falsity of the Daily Inter Lake articles. The articles, therefore, are protected by the First Amendment as truthful information about a matter of public significance.

Ill

Does the fair and true report privilege protect the Daily Inter Lake articles?

Libel is a false and unprivileged publication. Section 27-1-802, MCA (emphasis added). If the publication appears to be privileged, the plaintiff must show that it is false. Cooper v. Romney (1914), 49 Mont. 119, 128, 141 P. 289, 292. Section 27-1-804, MCA, provides that for purposes of a defamation action, a “privileged publication” is one made in the proper discharge of an official duty, in any legislative or judicial proceeding, or:

(4) by a fair and true report without malice of a judicial, legislative, or other public official proceeding or of anything said in the course thereof.

The District Court concluded that under this statute, the Daily Inter Lake articles were privileged and therefore not defamatory.

Whether a publication is privileged is a question of law for the court, where there is no dispute about the content of the proceedings on which the publication is based. Rasmussen v. Bennett (1987), 228 Mont. 106, 110, 741 P.2d 755, 758; Crane v. Arizona Republic (C.D. Cal. 1989), 729 F.Supp. 698, 702. Our review of this issue is confined to determining whether the District Court’s interpretation of the law is correct. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 803 P.2d 601.

We hold that the District Court concluded correctly that a preliminary Commission on Practice investigation is part of a judicial proceeding, and that the 1988 Daily Inter Lake article therefore was privileged. See Cox v. Lee Enterprises, Inc. (1986), 222 Mont. 527, 529, 723 P.2d 238, 240 (“judicial proceeding” defined to include, for example, “any proceeding to obtain such remedy as the law allows”). The 1989 articles, which described Lence’s alleged violations of the Kalispell building code, clearly were privileged under § 27-1-804(4), MCA.

As Lence presented no evidence showing that the articles were false, and all three were privileged as a matter of law, Inter Lake was entitled to summary judgment.

IV

Did the District Court err in declining to recognize Lence’s claim of false light invasion of privacy?

False light invasion of privacy is (1) the publicizing of a matter concerning another that (2) places the other before the public in a false light, when (3) the false light in which the other is placed would be highly offensive to a reasonable person, and (4) the actor knew of or acted in reckless disregard as to the falsity of the publicized matter. Restatement (Second) of Torts § 652E (1977).

Here, Lence has no legitimate claim for false light invasion of privacy because he failed to establish the falsity of the Daily Inter Lake articles. See Restatement (Second) of Torts § 652E, comment a (“it is essential to the rule stated in this Section that the matter published concerning the plaintiff is not true”).

V

Did the District Court err in holding that Lence’s emotional distress claims fail?

The District Court held that Lence could not recover for emotional distress because the Daily Inter Lake statements were substantially true and without malice. Citing Hustler Magazine v. Falwell (1988), 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41, the court concluded that emotional distress claims are subject to the same First Amendment defenses as the libel suit. Because the plaintiff in Falwell was a public figure, subject to an “actual malice” standard, while Lence is a private person, we affirm on this issue for different reasons.

This Court has adopted the requirements for recovering damages for infliction of emotional distress that are set out in Restatement (Second) of Torts § 46 Comment j (1965). First Bank v. Clark (1989), 236 Mont. 195, 771 R2d 84. The victim must show that the defendant’s tortious conduct resulted either in physical or mental injury or in “a substantial invasion of a legally protected interest,” and that it “caused a significant impact,” including emotional distress “so severe that no reasonable person could be expected to endure it.” Clark, 771 P.2d at 91.

Lence argues that “untrue charges of fraud, professional misconduct, theft and crime” are “sufficiently outrageous” to sustain a cause of action for severe emotional distress, but he offers no evidence of severe emotional distress. In his deposition he described a visit to a hospital emergency room approximately two weeks after the 1988 article was published, for “stress and heart-related problems and circulatory problems” that he had not had previously. The only other evidence of distress or “significant impact” is Lence’s statement that he missed a meeting of a client’s board of directors on the day after the 1988 article appeared.

Even if Lence could legitimately plead emotional distress, the Daily Inter Lake articles would have had to be more than merely hurtful or offensive; they would have had to be “so outrageous ... as to go beyond all possible bounds of decency.” Frigon v. Morrison-Maierle, Inc. (1988), 233 Mont. 113, 123, 760 P.2d 57, 64. The newspaper’s truthful publication that Semenza had lodged a complaint with the Commission, and its report of the building code dispute, hardly constitute outrageous conduct that goes beyond all possible bounds of decency.

In the past we have characterized emotional distress as an element of damages rather than a distinct cause of action; see Frigon, 233 Mont. 113, 760 P.2d at 63; Shiplet v. First Security Bank (1988), 234 Mont. 166, 174, 762 P.2d 242, 247. Even if considered only for the purpose of establishing damages, however, Lence’s deposition testimony demonstrates the absence of any genuine issue of material fact concerning the severity of his alleged emotional distress.

VI

Was Lence’s negligence claim barred as a restatement of the fault element of his defamation claim?

Lence argues that the District Court erred in dismissing his negligence claim because “the facts of this case present a separate and distinct cause of action for negligence.” He claims that Inter Lake was under a duty to investigate Semenza’s allegations before repeating them to the public, that Inter Lake owed Lence a duty of care in their choice of words describing the status of Semenza’s complaint, and that Inter Lake owed Lence a duty of confidentiality under Rule 13C, Montana Supreme Court Rules for Lawyer Disciplinary Enforcement. By disseminating. Semenza’s allegations without investigation, Lence argues, Inter Lake breached not only its duties to Lence but also its direct duty to keep information about a Commission investigation confidential.

As a result of Inter Lake’s breach of duty, Lence claims, he has suffered damage to his reputation and business and “extreme emotional harm, humiliation, and physical stress which led to a doctor’s visit.” The First Amendment does not protect a media defendant from suits that can be brought generally under common law theories of liability, Lence argues, citing Cohen v. Cowles Co. (1991), _U.S._, 111 S.Ct. 2513, 2518, 115 L.Ed.2d 586, 597 (a newspaper publisher “has no special privilege to invade the rights and liberties of others”). Thus, Lence contends, he has a right to present his negligence theory of liability to a jury.

The District Court dismissed Lence’s negligence claim on the grounds that it “merely reiterates the fault element of the libel claim.” We hold that Lence’s negligence claim fails even if it is considered independently of his libel claim.

To prevail in a negligence action, a plaintiff must prove the following elements: a duty owing from the defendant to himself; a breach of that duty; proximate causation; and damages. Scott v. Robson (1979), 182 Mont. 528, 535-536, 597 P.2d 1150, 1154. Here, Inter Lake owed no duty to Lence to investigate or to keep the Commission investigation confidential. Semenza’s allegations, after all, had been made to a body authorized to investigate them. Adams’ role was merely to let the public know that an investigation had been initiated, not to undertake an investigation herself.

It is clear that Rule 13D, Montana Supreme Court Rules for Lawyer Disciplinary Enforcement, imposed a duty on Semenza, because it unequivocally requires “participants” in a disciplinary proceeding to “conduct themselves so as to maintain the confidentiality mandated by this rule.” Semenza violated this rule when he approached Adams with the information and gave her a copy of his complaint, but Adams committed no wrong in receiving the information. Further, the rule does not apply to an accurate republication of Semenza’s allegations. First, as we have seen, the 1988 Daily Inter Lake article is privileged under § 27-1-804(4), MCA. See also Dameron v. Washington Magazine, Inc. (D.C. Cir. 1985), 779 F.2d 736 (in a libel action brought by an air traffic controller against The Washingtonian, the court held that republication of a defamation uttered by another is immune when it is a fair and accurate report of official proceedings); Law Firm of Daniel P. Foster v. Turner Broadcasting System, Inc. (2nd Cir. 1988), 844 F.2d 955 (dismissing a libel action on the grounds that CNN’s broadcast of statements made by FBI officials was substantially accurate and therefore privileged under the state’s fair and true report statute).

Second, our constitution gives a high priority to the public’s right to know. It can be abridged only when “the demand of individual privacy clearly exceeds the merits of public disclosure.” Art. 2, § 9, Mont. Const. See Great Falls Tribune Co., Inc. v. Cascade County Sheriff (1989), 238 Mont. 103, 775 P.2d 1267 (when law enforcement officers have engaged in conduct that subjects them to disciplinary action, the public’s right to know outweighs law enforcement officers’ privacy interests). Here, the merits of disclosing that an attorney has been accused of misconduct clearly outweigh the demand of individual privacy, when the misconduct is presented as a mere allegation by a person whose motivation and probable unreliability are adequately conveyed in the publication.

As Inter Lake owed no duty to Lence, it is entitled to judgment on Lence’s negligence claim as a matter of law.

Affirmed on all issues.

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

JUSTICE TRIEWEILER

dissenting in part and concurring in part.

I dissent from that part of the majority opinion which concludes that defendants’ publication of the November 30, 1988, article was privileged as a matter of law. I conclude that there was no constitutional privilege which applied to this case and that whether there was a statutory privilege was an issue of fact which could not be resolved by summary judgment.

The United States Supreme Court’s decision in Landmark Communications, Inc. v. Virginia (1978), 435 U.S. 829, 98 S.Ct. 1535, 56 L. Ed. 2d 1, which is relied upon by the majority was a narrow decision limited to the facts before the Court in that case. Those facts bear no similarity to the facts alleged in this case.

In Landmark, 435 U.S. at 837, 98 S.Ct. at 1540, the issue before the Supreme Court was stated as follows:

The narrow and limited question presented, then, is whether the First Amendment permits the criminal punishment of third persons who are strangers to the inquiry, including the news media, for divulging or publishing truthful information regarding confidential proceedings of the Judicial Inquiry and Review Commission.

The differences in Landmark are readily apparent. First, and most importantly, that decision involved a judicial officer. This case involves a private citizen. Second, that case involved admittedly truthful information, while the plaintiff in this case alleged that the material published by defendants was untruthful. Finally, the issue in Landmark was whether the publisher of truthful information can be punished, while the issue in this case is whether the victim of untruthful information can be compensated.

In arriving at its conclusion that a constitutional privilege protected the defendant, the Supreme Court relied heavily on its rationale that “[t]he operations of the courts and the judicial conduct of judges are matters of utmost public concern ." Landmark, 435 U.S. at 839, 98 S.Ct. at 1541.

There is no similar public concern in this case.

Neither did Smith v. Daily Mail Publishing Company (1979), 443 U.S. 97, 99 S. Ct. 2667, 61 L. Ed. 2d 399, nor Florida Star v. B.J.F. (1989), 491 U.S. 524, 109 S. Ct. 2603, 105 L. Ed. 2d 443 (cases also relied upon by the majority), involve facts or issues similar to those in this case. Both cases again involved the limited issue of whether a state could criminally punish the publication of truthful information. In fact, in Smith, 443 U.S. at 105-06, 99 S.Ct. at 2671-72, the Court held that:

Our holding in this case is narrow ... there is no issue here of privacy .... At issue is simply the power of a state to punish the truthful publication of an alleged juvenile delinquent’s name lawfully obtained by a newspaper. The asserted state interest cannot justify the statute’s imposition of criminal sanctions on this type of publication.

In Philadelphia Newspapers, Inc. v. Hepps (1986), 475 U.S. 767, 777, 106 S.Ct. 1558, 1564, 89 L.Ed.2d 783, 793, the Supreme Court simply held that when the subject of a newspaper article involved matters of government it was of sufficient public interest that the plaintiff would be required to prove the falsity of the publication before he could recover damages for defamation.

However, in this case, the plaintiff was neither a public official nor a public figure and the accusations made against him involved a simple dispute between an attorney and his client. There was no significant public interest in the subject of defendants’ newspaper article. According to the U.S. Supreme Court’s decisions, this type of communication possesses no significant constitutional privilege. Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789; Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985), 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593. In Hepps, the Supreme Court summarized First Amendment protection for newspapers in the following fashion:

One can discern in these decisions two forces that may reshape the common-law landscape to conform to the First Amendment. The first is whether the plaintiff is a public official or figure, or is instead a private figure. The second is whether the speech at issue is of public concern. When the speech is of public concern and the plaintiff is a public official or public figure, the Constitution clearly requires the plaintiff to surmount a much higher barrier before recovering damages from a media defendant than is raised by the common law. When the speech is of public concern but the plaintiff is a private figure, as in Gertz, the Constitution still supplants the standards of the common law, but the constitutional requirements are, in at least some of their range, less forbidding than when the plaintiff is a public figure and the speech is of public concern. When the speech is of exclusively private concern and the plaintiff is a private figure, as in Dun & Bradstreet, the constitutional requirements do not necessarily force any change in at least some of the features of the common-law landscape. [Emphasis added.]

Hepps, 475 U.S. at 775, 106 S.Ct. at 1563.

The majority concludes under Issue II that pursuant to the Hepps decision, Lence must prove that the Daily Inter Lake article was untrue; and that since the inaccuracies in the article were inconsequential, he has not met that burden. It is true that he must prove the article’s falsity. However, that is not because of Hepps. It is because, by statute, falsity is a required element of a libel action in Montana. Section 27-1-802, MCA.

When the majority concludes that the article is substantially true, it misconstrues the nature of Lence’s complaint. His complaint is that the November 30, 1988, article in the Daily Inter Lake repeated Semenza’s defamatory allegations that Lence committed fraud and professional misconduct, refused to pay Semenza for work that had been done, and unlawfully retained Semenza’s files. Lence contends that these allegations were untrue, and in support of that contention, he offers the fact that the complaint against him before the Commission on Practice was subsequently dismissed.

A newspaper cannot avoid liability by honestly pointing out that it is simply repeating statements made by others. “[0]ne who repeats or otherwise republishes defamatory matter is subject to liability as if he had originally published it.” Restatement (Second) of Torts, § 578 (1977).

Therefore, while I concur with the majority that the 1989 articles regarding building code violations were substantially true, I disagree that the accusations contained in the 1988 article were substantially true, and I disagree that the authorities relied upon by the majority under Issue II of that opinion grant any privilege to the Daily Inter Lake for the November 30, 1988, article that it published.

If there is any privilege for the November 30, 1988, article, it is based upon § 27-1-804(4), MCA. That section provides that:

A privileged publication is one made:
(4) by a fair and true report without malice of a judicial, legislative, or other public official proceeding or of anything said in the course thereof. [Emphasis added.]

I agree that the Daily Inter Lake’s reference to the Supreme Court had no significance to anyone other than attorneys, and that attorneys who read the entire article would not be mislead by that reference. Therefore, the November 30, 1988, article was “a fair and true report of a judicial proceeding.” However, § 27-1-804(4), MCA, also requires that the publication be without malice. Since the privilege is statutorily created, we must look to the statutory definition of malice in Montana’s Code. The only one I am aware of is the one found at § 27-1-221, MCA, which defines malice as follows:

(2) A defendant is guilty of actual malice if he has knowledge of facts or intentionally disregards facts that create a high probability of injury to the plaintiff and:
(a) deliberately proceeds to act in conscious or intentional disregard of the high probability of injury to the plaintiff; or
(b) deliberately proceeds to act with indifference to the high probability of injury to the plaintiff.

Whenever the meaning of a word or phrase is defined in any part of the Montana Code Annotated, that definition is applicable to the same word or phrase when it appears elsewhere. Section 1-2-107, MCA.

I conclude, based upon the testimony of Jacqueline Adams, the author of the article about which Lence complains, that there was a factual issue regarding whether Adams was aware of facts which suggested a high probability of damage to Lence, and then acted with indifference to that high probability.

Adams testified that she first met Semenza during the month in which the article was published. She knew that he had been previously accused of flooding Lence’s office and causing substantial damage. She knew, based upon that accusation and her interview with Semenza, that he had a high degree of animosity toward Lence. She had no prior experience with Semenza which would indicate that he was a reliable source of information. She was obviously aware of the fact that the allegations contained in the article would be very damaging to Lence’s professional reputation. However, she testified that she did not give any great thought to that potential damage before publishing the article.

Instead of attempting to verify the allegations made by Semenza, she published them without any further investigation. Even though she was aware that Semenza had made his complaint about the theft of his files to the Kalispell Police Department, and even though she was aware of the officer to whom the complaint was made, she made no effort to confirm the truthfulness of that accusation. She made no effort to contact Lence regarding Semenza’s accusations; and made no other effort to independently verify anything she had been told by Semenza. She stated that it was not her job to determine who was calling who names and who was right.

Even after Semenza’s complaint to the Commission on Practice was dismissed, there was no follow-up publication in the Daily Inter Lake which pointed that out.

There is a school of constitutional thought to which the majority apparently subscribes which holds that there is some public benefit from encouraging this kind of reckless disregard for the professional and personal reputation of others. However, I disagree. We are not, in this case, talking about prior restraint of speech or press. We are considering the similarly important rights of people who are damaged by the irresponsible exercise of First Amendment rights.

So long as reporters are given the broad immunity provided for in the majority opinion, they, like Adams, will continue to have no reason for caring about the truthfulness of the harmful allegations that they report. While this free-wheeling approach may serve the interest of free exchange of information, it certainly ignores an equally compelling interest that all private individuals have in preserving their reputation. As pointed out in Gertz, 418 U.S. at 341, 94 S.Ct at 3008:

The legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood. We would not lightly require the State to abandon this purpose, for, as MR. JUSTICE STEWART has reminded us, the individual’s right to the protection of his own good name
“reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.” Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S.Ct 669, 679, 15 L.Ed.2d 597 (1966) (concurring opinion.)

I concur with the majority’s disposition of Issues IV, V, and VI, but do not agree with all the reasons given for the majority’s disposition of those claims. I would affirm the District Court’s dismissal of those claims because they are, in substance, simply reallegations of plaintiff’s claim for defamation. The elements necessary for each of those claims are essentially the same as the elements necessary to prove the plaintiff’s defamation claim. Furthermore, I conclude that the facts alleged by the plaintiff do not satisfy the quantum or quality of proof necessary to establish a claim for intentional infliction of emotional distress and are not the type of facts for which we have previously recognized a claim for negligent infliction of emotional distress.

I also concur with the majority’s disposition of Lence’s claim for defamation based on the 1989 articles in the Daily Inter Lake. I would, however, reverse the District Court’s judgment which dismissed Lence’s claim based upon the November 30,1988, article and remand that claim to the District Court for trial of the factual issue raised and discussed above. If, after consideration of the facts presented, a jury determined that Adams’ article was not published with malice as defined in our statutes, then I would conclude it was privileged. On the other hand, if a jury found that her conduct was malicious, I would conclude that Lence’s claim for defamation is actionable.

JUSTICE HUNT joins in the foregoing dissent and concurrence.