author: JUSTICE LEAPHART JUSTICE TRIEWEILER

text:
    ROBERT D. URQUHART and EVELYN M. URQUHART, individually and as Trustees of the URQUHART REVOCABLE LIVING TRUST, Plaintiffs, Counterdefendants, Appellants and Cross-Respondents, and JOHN P. TALIA, JAMES A. COTE, BARBARA L. JUNE, a/k/a BARBARA L. URQUHART, and SPRING CREEK INVESTMENTS, a Montana partnership, Involuntary Plaintiffs, Counterdefendants and Cross-Respondents, v. OTTO H. TELLER and THE CINNABAR FOUNDATION, a Montana non-profit corporation, Defendants, Counterclaimants, Respondents and Cross-Appellants.
    No. 97-372.
    Submitted on Briefs February 12, 1998.
    Decided May 6, 1998.
    1998 MT 119.
    55 St.Rep. 461.
    958 P.2d 714.
    288 Mont. 497.

      For Appellants and Cross-Respondents: William T. Wagner; Garlington, Lohn & Robinson, Missoula (for Appellants and Involuntary Plaintiffs Barbara L. June and Spring Creek); Gregory G. Schultz; Knight, Masar & Poore, Missoula (for Involuntary Plaintiffs John P. Taha and James A. Cote).
    For Respondents: Grant D. Parker; Parker Law Firm, Missoula.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Appellants Robert and Evelyn Urquhart (the Urquharts) appeal from the April 2,1997 opinion and order of the Twenty-First Judicial District Court, Ravalli County, granting partial summary judgment in favor of Respondents Otto Teller (Teller) and The Cinnabar Foundation (Cinnabar) on the Urquharts’ claim to enforce an option to purchase. Teller and Cinnabar cross-appeal from the District Court’s grant of partial summaiy judgment in favor of the Urquharts, the Urquhart Revocable Living Trust, and Involuntary Plaintiffs/Counter-defendants John Taha (Taha), James Cote (Cote), Barbara [Urquhart] June (June), and Spring Creek Investments on TeUer and Cinnabar’s counterclaim to enforce restrictive covenants. We affirm.

¶2 The parties raise the following issues:

¶3 1. Did the District Court err in holding that the Urquharts may not exercise the preemptive right of first refusal contained in the Contract for Deed?

¶4 2. Did the District Court err in holding that the covenants contained in the Contract for Deed may not be enforced?

Factual and Procedural Background

¶5 Teller and his late wife, Elena Teller, were the owners of 280 acres of land in Ravalli County, Montana. In May 1971, the Tellers entered into an agreement with the Urquharts to sell approximately 270 acres, reserving 10 acres to the Tellers (Contract for Deed). The parties executed the agreement and deposited an unrestricted Warranty Deed in escrow.

¶6 The Contract for Deed contained the following provision:

IT IS SPECIFICALLY AGREED by and between the parties hereto that should Sellers choose to dispose of said ten acre tract, Buyers shall have the option to purchase said tract for the sum of $10,000.00, and in addition thereto the sum of $2000.00 in the event there is added to the house on said premises a bedroom and bath. PROVIDED, HOWEVER, that this option shall be non-assignable unless coupled with the assignment of this contract and the sale of the said premises and this option as a unit, and shall absolutely expire unless said option be exercised by Buyers within six months of written notice by Sellers that the property is to be disposed of. On death of Sellers, Buyers shall have the right to exercise said option, but the time for payment thereof shall be extended to six months after notice is given hereunder by the personal representatives or heirs of Sellers. Death of Buyers, however, shall not terminate this option ....

Teller states that he intended to grant the Urquharts a temporary option during the term of the Contract for Deed to ensure that the property would not be divided should he or his wife die before the Contract for Deed was paid off. The Urquharts claim that Teller intended to grant them an option exercisable upon sale of the property or upon the death of the Tellers and that Teller was told by his attorney that the option would continue in full force after the Contract for Deed was paid off.

¶7 The Contract for Deed also contained restrictions on constructing improvements on or selling portions of the property, on committing waste, and on removing or destroying improvements on the property. The Contract for Deed stated that no covenant would be waived by the Tellers’ choosing not to enforce it and that “[t]he covenants and conditions hereof run with the land and are binding upon the heirs, executors, administrators and assigns of the parties hereto.” The Urquharts state that they were told these covenants were not permanent, but were intended to protect the Tellers in the event they defaulted on the Contract for Deed.

¶8 On January 9,1979, the Urquharts contracted to sell 11.31 acres of the property to Raymond Bartram (Bartram). On January 17, 1979, the Urquharts paid off the Contract for Deed, and the unrestricted Warranty Deed was released from escrow and recorded. Teller did not object to the Urquharts’ selling a portion of the property to Bartram. Bartram constructed substantial improvements on the property, and Teller never sought to enforce the restrictive covenants. Bartram subsequently conveyed his portion to Talia, and Talia conveyed an undivided one-half interest to Cote.

¶9 After paying off the Contract for Deed, the Urquharts built a home, machine shed, hay barn, and another house on the property. Although Teller was aware of the construction, he did not seek to enforce the covenant prohibiting improvements on the property. In 1982, the Urquharts conveyed all of their remaining interest in the 270 acres to the Urquhart Revocable Living Trust. The Urquhart Revocable Living Trust conveyed a portion of the property to June and a portion to Spring Creek Investments, a partnership comprised of June and her brother, Tom Urquhart. In the contract for sale with Spring Creek Investments, the Urquharts, as trustees of the Urquhart Revocable Living Trust, purported to assign the option, but agreed to exercise it on Spring Creek’s behalf if it were deemed non-assignable.

¶10 The Urquharts claim that on several occasions since the Contract for Deed was satisfied, both Teller and his nephews have offered to buy portions of the Urquharts’ property and have attempted to purchase the option. In July 1993, the Urquharts received a letter from Teller’s attorney, which stated that Teller would not commence litigation for the Urquharts’ violation of the covenants if they would agree to new covenants prohibiting the construction of more than one house on each portion of the property and if they would agree to release their option to purchase.

¶11 In the fall of 1993, Teller conveyed his 10-acre parcel to Cinnabar, a non-profit corporation dedicated to the conservation and protection of Montana’s lands and waters, as a charitable gift. The value of the 10-acres plus improvements had increased to between $375,000 and $400,000. OnAugust23,1994, the Urquharts, individually and as trustees of the Urquhart Revocable Living Trust, filed suit in the District Court seeking to enforce the option. Teller and Cinnabar counterclaimed to enforce the restrictive covenants contained in the Contract for Deed and joined Talia, Cote, June, and Spring Creek Investments as involuntary plaintiffs.

¶12 All parties filed motions and cross-motions for summary judgment. On March 31,1997, the District Court entered its opinion and order granting partial summary judgment for Teller and Cinnabar on the Urquharts’ claim to specifically enforce the option. The District Court held that the option, which it characterized as a preemptive right of first refusal, was limited to the duration of the Contract for Deed, constituted an unreasonable restraint on alienation, and violated the Rule against Perpetuities. The court also found that, considering the fair market value of the property, it would be inequitable to enforce the terms of the right of first refusal.

¶13 The District Court also granted partial summary judgment in favor of the Urquharts and involuntary plaintiffs on Teller and Cinnabar’s counterclaims. The District Court held that the restrictive covenants did not run with the land because they were not contained in a grant of an estate in real property. The court also held that the statute of limitations barred their claims for violations of the covenants occurring more than eight years before filing of the action and that laches barred their claims for violations occurring within the statute of limitations. The parties appeal from this order.

Standard of Review

¶14 We review a district court’s grant of summary judgment de novo. Motarie v. Northern Montana Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156. Therefore, pursuant to Rule 56, M.R.Civ.P., we review the record to determine whether material issues of fact exist and whether the movant is entitled to judgment as a matter of law. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903.

Discussion

¶15 1. Did the District Court err in holding that the Urquharts may not exercise the preemptive right of first refusal contained in the Contract for Deed?

¶16 As noted by the District Court, the “option” provision is actually a preemptive right of first refusal, triggered only upon Teller’s choosing to sell or transfer the 10-acre parcel or upon his death. The Urquharts argue that the right of first refusal was triggered when Teller transferred the property to Cinnabar and that the District Court erred in refusing to grant the Urquharts’ request for specific performance. The District Court held that the right of first refusal was enforceable only during the period of the Contract for Deed, was an unreasonable restraint on alienation, and violated the Rule against Perpetuities. The court also held that granting the Urquharts specific performance would be inequitable. We agree that the right of first refusal is an unreasonable restraint on alienation. Because we determine that the right of first refusal is void, we need not reach the issues of its possible duration or of the equities of specific performance.

¶17 Under Montana law, a condition restraining alienation, when repugnant to the interest created, is void. Section 70-1-405, MCA. This Court discussed the reasonableness of a restraint on alienation in Edgar v. Hunt (1985), 218 Mont. 30, 706 P.2d 120. In that case, the Hunts sold real property to Omer and Alma Edgar. Edgar, 706 P.2d at 121. The parties agreed that the Hunts would have the first option to purchase the property for $7,000 on written notice from the Edgars of their intention to sell. Edgar, 706 P.2d at 121. After the death of her husband, Alma Edgar filed a quiet title action, seeking to invalidate the option agreement. Edgar, 706 P.2d at 121. The district court granted summary judgment for Edgar, holding that there was no consideration to support the option and that it was an unreasonable restraint on alienation. Edgar, 706 P.2d at 121.

¶ 18 This Court set forth the factors to be considered in determining whether a restraint is void under § 70-1-405, MCA:

The type of price set is important. If the price is fixed and greatly disproportionate to the market value of the property, this supports a finding of unreasonableness. Secondly, the intent of the parties contracting for the pre-emptive right is a factor. If, from the circumstances, it appears that the particular restraint, or the price set thereby, is primarily for the purpose of restraining the alien-ability of the property, it will weigh heavily against the validity of the restraint. On the other hand, if the circumstances suggest that the restraint was freely entered into by mutual consent as a normal incident of an equal bargaining relationship in order to promote the original transfer of the property, the scales will tip back towards the reasonableness of the restraint. [Citations omitted.]

Edgar, 706 P.2d at 122. The Edgar Court remanded to the district court to consider the option provision in light of these factors. Edgar, 706 P.2d at 122.

¶19 In this case, the price set in the 1971 right of first refusal is fixed at $10,000 (or $12,000 in the event a house was erected on the property). Some 23 years later, the market value of the 10-acre parcel and improvements thereon had increased to between $370,000 and $400,000. Obviously, at nearly 35 times greater, the market value is grossly disproportionate to the option price. Other courts considering the issue have found much smaller variances in option and market price to be unreasonable. For example, a New Jersey court found that a $10,000 fixed option to purchase property valued at $40,000 was an unreasonable restraint. Ross v. Ponemon (N.J. Super. 1970), 263 A.2d 195. A Texas court held an option price of $79,955 to be unreasonable where the property value had risen to $550,000. Procter v. Foxmeyer Drug Co. (Tex. App. 1994), 884 S.W.2d 853.

¶20 In determining the reasonableness of a restraint, we also consider whether the restraint was entered into by mutual consent as a normal incident of an equal bargaining relationship or whether the parties intended for it to restrain the alienation of the property. Edgar, 706 P.2d at 122. If the person imposing the restraint has some interest in land which he is seeking to protect by the enforcement of the restraint and if the enforcement of the restraint accomplishes a worthwhile purpose, the restraint is more likely to be reasonable. Edgar, 706 P.2d at 122 (citing Restatement of Property: Perpetuities and other Social Restrictions (1994) [hereinafter “Restatement of Property”] § 406 cmt. i).

¶21 In this case, the evidence does not suggest that the Urquharts intended for the right of first refusal to restrain Teller from transferring his ten acres, but rather that the Urquharts sought to ensure they would be able to buy the acreage adjoining their own if they so desired. However, since the parties entered the agreement, the Urquharts have conveyed their entire interest in the property, and the property is now in the hands of several different owners, including the Urquhart Revocable Living Trust and involuntary plaintiffs. Thus, the Urquharts’ legitimate purpose of obtaining ownership to neighboring property can no longer be served by enforcing the option. Enforcing the right of first refusal at this point would simply restrain Teller from transferring the property or give the Urquharts the bargain purchase of the century.

¶22 The Restatement’s reasonableness factors also include whether the restraint is limited in duration, allows a substantial variety of types of transfers, or is limited as to the number of persons to whom transfer is prohibited. Restatement of Property § 406. The Urquharts’ right of first refusal states, in part:

On death of Sellers, Buyers shall have the right to exercise said option, but the time for payment thereof shall be extended to six months after notice is given hereunder by the personal representatives or heirs of Sellers. Death of Buyers, however, shall not terminate this option....

Thus, the right of first refusal affects the alienability of the property in all types of transfers to all transferees.

¶23 Further, the District Court found that the right was of potential perpetual duration and therefore violated the Rule against Perpetuities. The District Court concluded that, under the language of the right, if the personal representatives or heirs of Sellers failed to give Buyer notice of Seller’s death, the six-month period would never be triggered and the right would go on in perpetuity. However, in interpreting similar option language, other courts have held that when death triggers the buyer’s right, the representatives or heirs of the seller are required to give the buyer notice within a reasonable time of death. See, e.g., Smerchek v. Hamilton (Kan. App. 1980), 606 P.2d 491. The Rule against Perpetuities should not be applied when it is possible to give an instrument a construction which leads to its validity. Trust Created Under Will of Damon (Haw. 1994), 869 P.2d 1339; Matter of Estate of Crowl (Okla. 1987), 737 P.2d 911; Oliner v. City of Englewood (Colo. App. 1979), 593 P.2d 977. Therefore, we adopt the interpretation of the right of first refusal that does not violate the rule and determine that the right of first refusal imposed' an obligation on Teller’s heirs or representatives to give the Urquharts notice of death within a reasonable time. However, that the restraint could be interpreted as existing in perpetuity further supports our holding that it is an unreasonable restraint on alienation.

¶24 Under the Restatement of Property, a restraint that tends to increase the value of the property or that is imposed on property that is not otherwise marketable is more reasonable. Restatement of Property § 406. In this case, the right of first refusal fixes the price of the property, property that has appreciated in value to almost $400,000, at $10,000. Obviously, such a restraint decreases, rather than increases, the value of the property. Further, the property’s market value and location in the Bitterroot Valley suggest that without the fixed price restraint, the property would be highly marketable.

¶25 We determine that the right of first refusal is an unreasonable restraint on alienation. The District Court correctly concluded that, under § 70-1-405, MCA, the right is repugnant to Teller’s interest and therefore void.

¶26 2. Did the District Court err in holding that the covenants contained in the Contract for Deed may not be enforced?

¶27 The Contract for Deed executed by the parties in 1971 contained covenants prohibiting the Urquharts from constructing improvements on or transferring portions of the property. The Warranty Deed, which was released from escrow when the Urquharts paid off the Contract for Deed in 1979, contained no restrictions or references to the Contract for Deed. Teller argues that the covenants contained in the Contract for Deed run with the land and that, despite his failure to enforce them in the past, he should be free to enforce them in the future.

¶28 It is a general tenet of contract law that all provisions in a contract for sale of real property are merged into the deed. Davis v. Tazewell Place Associates (Va. 1997), 492 S.E.2d 162; U.S. v. Mojac Const. Corp. (E.D.N.Y. 1960), 190 F.Supp. 622; Colorado Land & Resources, Inc. v. Credithrift of America, Inc. (Colo. App. 1989), 778 P.2d 320. Thus, when a deed has been executed, the purchaser’s rights are generally founded in the deed covenants, not the executed contract. Simpson v. Johnson (Idaho 1979), 597 P.2d 600. An exception to the general rule of merger occurs when the parties intended for an agreement in a contract for sale to be collateral. Baxter v. Stubbs (Utah 1980), 620 P.2d 68. Covenants relating to title, quantity, and possession of land are generally not collateral and merge into the deed. Lazy Dog Ranch v. Telluray Ranch Corp. (Colo. App. 1996), 923 P.2d 313. In this case, we hold that Teller and the Urquharts did not intend for the covenants to be collateral agreements and that they merged with and were extinguished by the unrestricted Warranty Deed.

¶29 Teller and Cinnabar argue that the covenants should be enforced because the Contract for Deed specifically states that they run with the land and because they were properly recorded when the Contract for Deed was filed. They state that this Court has held that restrictive covenants do not need to be contained in a deed granting title to the property and cite Kosel v. Stone (1965), 146 Mont. 218, 404 P.2d 894, for the proposition that restrictive covenants filed in the clerk and recorder’s office bind a subsequent purchaser, regardless of whether that purchaser had knowledge of the restrictions.

¶30 We find Kosel readily distinguishable. In that case, the developer had filed a subdivision plat and declaration of restrictions in the clerk and recorder’s office. Kosel, 404 P.2d at 895. The developer originally conveyed the lots by deeds which referenced the restrictions; however, when the Stones purchased their lot, the deed from the seller did not mention the restrictions, and the Stones claimed that they were unaware that the declarations existed. Kosel, 404 P.2d at 895. This Court affirmed the district court in holding that the declaration of restrictions ran with the land. Kosel, 404 P.2d at 896. We noted that the restrictions were recorded prior to the Stones’ purchasing their lot and that the Stones’ deed described the property as being located in the subdivision according to the official plat on file. Kosel, 404 P.2d at 897. Thus, we determined that the Stones had constructive notice of the official plat and declaration of restrictions and that they became part of the Stones’ deed. Kosel, 404 P.2d at 897.

¶31 In Kosel, the declaration of restrictions was not contained in a contract for sale between the same parties who executed the deed, but rather was a separate document filed by the original developer. The facts in Kosel did not necessitate application of the doctrine of merger, which only applies where a buyer and seller enter into a contract for the sale of real property and subsequently execute a deed conveying title to the real property.

¶32 We agree with Teller and Cinnabar that a contract for sale of property can contain a valid covenant running with the land. However, we determine that the evidence in this case suggests that Teller and the Urquharts intended for the Contract for Deed, and the restrictions set forth therein, to merge into the Warranty Deed. Teller and the Urquharts executed the Contract for Deed and the Warranty Deed at the same time and intended for the Warranty Deed to be recorded upon the Urquharts’ performance of the contract. The parties did not record the Contract for Deed at the time it was executed. In fact, it was not recorded until the following year when the Urquharts recorded it as part of an unrelated real estate transaction. The Warranty Deed makes no reference to restrictive covenants, and no separate declaration of covenants was ever filed. The notice of purchaser’s interest recorded by the Urquharts and Teller at closing makes no reference to any property restrictions. Further, the remedies for breach provided in the Contract for Deed were exclusive to the contracting parties and did not extend to heirs or assigns.

¶33 Therefore, we apply the general rule of merger and hold that the District Court did not err in refusing to enforce the covenants contained in the Contract for Deed or in refusing to hold that they may be enforced in the future.

¶34 Based on the foregoing, we affirm the decision of the District Court.

JUSTICES REGNIER, NELSON and GRAY concur.

JUSTICE TRIEWEILER

specially concurring in part and dissenting in part.

¶35 I concur with the majority’s conclusion that the preemptive right of first refusal claimed by the plaintiffs is void as an unreasonable restraint on alienation. I dissent from that part of the majority opinion which holds that the restrictive covenants agreed upon by the Tellers and Urquharts as partial consideration for the transfer of real estate among them are unenforceable.

¶36 The real estate contract executed by the parties included the following relevant provisions:

IT IS SPECIFICALLY AGREED by the parties hereto that there shall be no construction on the property except by mutual written agreement between the parties. But it is agreed that a 2-car garage with reasonable shop facilities may be erected near the pump house which shall be of the same quality and style as the pump house.
BUYERS SPECIFICALLY AGREE that they will not sell or contract to sell portions of the above described property, although nothing in this paragraph contained shall prevent the assignment of this contract or the sale of said premises as a unit.
... [T]he failure of sellers to insist in any one instance or more upon the performance of any of the covenants or conditions of this contract or of exercising any right or privilege herein contained, shall not be construed as thereafter waiving any such covenants, conditions, rights, or privileges, but the same shall continue and remain in full force and effect, and it is expressly agreed that there are no promises, agreements or understanding or representations of any kind other than those contained in this written agreement, and that no agent has or had any authority to obligate the sellers by any promises, stipulations or conditions not herein expressed.
The covenants and conditions hereof run with the land and are binding upon the heirs, executors, administrators and assigns of the parties hereto.

¶37 The majority holds, without explaining the basis for its conclusion, that the parties did not intend the restrictive covenants to be a collateral agreement and, therefore, that the contract for deed merged with the unrestricted warranty deed. The majority does exactly what the very terms of the contract prohibit when it assumes that the parties intended something other than indicated by the plain language of their agreement. The plain language of the parties’ agreement provides for restrictions which “run with the land and are binding upon the heirs, executors, and assigns of the parties hereto.”

A covenant running with the land is one so relating to the land, that its benefit or obligation passes with the ownership irrespective of the consent of subsequent parties.
In order for a covenant to run with the land, the grantor and grantee must intend that the covenant run with the land, that the covenant touch and concern the land, and that there be privity of estate between the original parties to the covenant, the original parties and the present disputants, or between the party claiming the benefit of the covenant and the party who rests under the burden.
In addition, the covenant must be in writing, must have been enforceable between the original parties, and the successor to the burden must have notice.
Where the intention of the parties is the determining factor, such intent will be ascertained from the facts, as appear from the grant itself and the surrounding circumstances.

21 C.J.S. Covenants § 25 (1990).

¶38 Section 70-17-201, MCA, establishes as a matter of statutory law that certain covenants run with the land in Montana. It provides:

Certain covenants contained in grants of estates in real property are appurtenant to such estates and pass with them so as to bind the assigns of the covenantor and to vest in the assigns of the covenantee in the same manner as if they had personally entered into them. Such covenants are said to run with the land.

¶39 Section 70-17-203(1), MCA, explains which covenants run with the land in Montana. It provides that “[e]very covenant contained in a grant of an estate in real property, which is made for the direct benefit of the property or some part of it then in existence, runs with the land.”

¶40 In this case, the contract for deed executed by Tellers and Urquharts, when filed with the Clerk and Recorder in Ravalli County, satisfied all of the necessary prerequisites to bind the land conveyed by Tellers and to provide notice to subsequent purchasers.

¶41 Furthermore, this Court has not had difficulty in the past with the argument that a subsequent warranty deed which includes no restrictions on the use of land supersedes an earlier agreement which placed restrictions on the use of that same land. In Kosel v. Stone (1965), 146 Mont. 218, 404 P.2d 894, the owners of land near Billings, prior to the sale of that land, entered into an agreement with the seller entitled “declaration of restrictions” which provided that no lot in what was about to be a subdivision could be used for other than residential purposes. That declaration was filed in the clerk and recorder’s office. The lots were subsequently conveyed by a deed which made no reference to the declaration of restrictions. The property was later conveyed to Stone by deed which made no mention of building or use restrictions. When neighbors eventually learned that Stone wanted to put a filling station on his property, they brought suit to have the “declaration of restrictions” enforced. The district court did so. On appeal, Stone contended that the only covenants which run with the land are those contained in a grant of real estate, and that the agreement between the parties which placed restrictions on the use of his land was not a grant of real estate. While not specifically referring to principles of merger, this Court held on appeal that because the declaration of restrictions affected the title to the real estate it was, in effect, a conveyance and that, furthermore, because the document was filed with the clerk and recorder of Yellowstone County, it was as much a part of the deed as if folly incorporated therein by its terms. This Court stated:

Under our recording statutes these instruments [including the declaration of restrictions] constituted constructive notice of their contents to subsequent purchasers. Section 73-201, R.C.M. 1947. Since defendants’ deed described the property as being located in the subdivision according to the official plat on file, the official plat becomes as much a part of the deed as if folly incorporated therein, and the same situation applies to the declaration of restrictions. See 16 Am. Jur. Deeds, Sec. 273, p. 592.
"... [T]he term conveyance as used in section 1213 of said Code embraces every instrument in writing by which an estate in real property is created, aliened, mortgaged, or encumbered or by which the title to any real property may be affected, except wills. This definition of ‘a conveyance of real property’ is sufficiently comprehensive to include the agreement which is the basis of the present controversy.” Wayt v. Patee, 205 Cal. 46, 53, 269 P. 660, 663 [emphasis in original].
Our own court has defined the word “conveyance,” as used in sections 73-201 and 73-203 to include ... a contract for sale of land, Piccolo v. Tanaka, 78 Mont. 445, 451, 253 P. 890 ....

Kosel, 146 Mont. at 222-23, 404 P.2d at 896-97 (emphasis added).

¶42 Likewise, the contract for deed executed by Tellers and Urquharts was a conveyance of an interest in land which included restrictions on Urquharts’ use of the land conveyed. That contract, including those restrictions, was filed with the clerk and recorder in Ravalli County, thereby placing all of the public, including subsequent purchasers, on constructive notice of its terms, and they are as binding as if included in the warranty deed which was subsequently filed.

¶43 There is simply no basis for the majority to conclude that the Tellers and Urquharts intended that the contract for deed merge with the warranty deed. The best and only necessary evidence of the parties’ intention is the plain language of their contract for deed which provides that the restrictions therein on Urquharts’ use of the land run with the land and are binding on Urquharts’ successors. Where the language of the contract is clear, the court has no authority to contradict those terms by assuming that the parties intended something else. See Carbon County v. Dain Bosworth, Inc. (1994), 265 Mont. 75, 87, 874 P.2d 718, 726; First Security Bank of Anaconda v. Vander Pas (1991), 250 Mont. 148, 153, 818 P.2d 384, 387. Furthermore, had the parties chosen to do what the majority has, in effect, done for them, they could have stated, as Urquharts did in subsequent conveyances, that restrictions on use of the property being conveyed are limited to the term of the contract for deed. The fact that they included such a provision in subsequent contracts by which they conveyed parts of the land in question makes clear that the parties to this contract understood the significance when they stated a contrary intention.

¶44 The fact that the remedies provided for breach in the contract for deed were exclusive to the contracting parties is of no significance. The remedies provided for breach in the contract (termination of the contract and forfeiture of rights) do not include all of the remedies available for breach of a contract, and there is nothing in the contract which would preclude enforcement of other remedies, such as injunctive relief or damages for or against either of the parties’ successors in interest.

¶45 I do agree with the District Court that principles of laches bar enforcement of the land use restrictions against those persons who violated them prior to the date on which Tellers’ counterclaim was filed.

Laches exists where there has been an unexplainable delay of such duration or character as to render the enforcement of an asserted right inequitable, and is appropriate when a party is actually or presumptively aware of his rights but fails to act.

Murray v. Countryman Creek Ranch (1992), 254 Mont. 432, 435-36, 838 P.2d 431, 433.

¶46 However, I do not believe the doctrine of laches, nor the notice provision in the enforcement part of the contract for deed, preclude future enforcement of the contract’s terms and prevention of future violations. This is so because of the specific nonwaiver provision in the agreement.

¶47 For these reasons, I dissent from that part of the majority opinion which holds that those restrictions in the contract for deed which limit the use of the land conveyed to Urquharts are unenforceable. I would reverse that part of the District Court judgment; however, I would limit enforcement to future violations.

¶48 I otherwise concur with the majority opinion.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CLYDE ALLEN JOHNSON, Defendant and Appellant.
    No. 96-694.
    Heard February 17, 1998
    Submitted February 26, 1998.
    Decided May 5, 1998.
    1998 MT 107.
    55 St.Rep. 408.
    958 P.2d 1182.
    288 Mont. 513.

      For Appellant: William F. Hooks, Appellate Defender, Helena; J. G. Shockley (argued), Victor.
    For Respondents: Honorable Joseph P. Mazurek, Attorney General; Jennifer Anders (argued), Assistant Attorney General, Helena; George H. Com, County Attorney, Hamilton.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

¶1 In a Ravalli County jury trial before the Twenty-First Judicial District Court, Clyde Allen Johnson was convicted of three counts of sexual intercourse without consent. He appeals. We affirm.

¶2 The issues are:

¶3 1. Did the District Court abuse its discretion when it precluded Johnson from cross-examining the victim or offering other evidence of her prior sexual conduct with other men?

¶4 2. Did the court err in admitting the annotated transcription of an interview of the victim by the investigating officer?

¶5 3. Did the court err in granting the jury’s request for a copy of the annotated transcription during deliberations?

¶6 Clyde Allen Johnson spent the afternoon of May 23, 1994, at Chaffin Motor in Hamilton, Montana, helping the owner of the business, Chad Chaffin, and two other men, Brad Grenfell and Jay Bier, put an engine in a truck. A 28-year-old woman, the victim in this case, was also working at Chaffin Motor that day, “detailing” another truck to prepare it for sale. The victim and Johnson had not met before, although he had seen her around town.

¶7 As they worked, they all drank beer and talked about fishing. At the end of the afternoon, the victim asked Chaffin for a ride home. Chaffin told her he would take her home when he finished putting the engine in the truck. She decided not to wait and began walking. As she was walking on the left side of the highway, Johnson’s car pulled up behind her in the wrong lane of traffic, and he offered her a ride. She agreed, getting into the car quickly because of oncoming traffic.

¶8 The trial testimony of Johnson and the victim differed as to what happened next. The victim testified that she gave Johnson directions to the house where she lived with her boyfriend and his mother. She noticed that Johnson was not following her directions and at first thought he must have had an errand to run in town. However, when she mentioned that he was going in the wrong direction, he sped up and told her that he wanted to “party.” 'When she told him that she wanted to go home, he leaned very close and said repeatedly, “I’m going to fuck you.” The victim told Johnson that she did not want to “party” and that she needed to get home for dinner or her boyfriend would wonder where she was. Johnson proceeded to drive several miles out of town, up to the Canyon Creek trail head.

¶9 Johnson testified, in contrast, that after the victim got into his car, they agreed to go fishing. Because neither of them had a fishing license and because the victim did not want her boyfriend to know what she was doing, they decided to fish at the somewhat remote Canyon Creek trail head.

¶10 At the trail head, Johnson and the victim got out of his car and walked toward the nearby creek. The victim testified that Johnson was holding her tightly by the arm and that she was trying to make conversation to “keep him calm.” A couple visiting Montana from New Hampshire walked past them on the short trail to the creek. The woman from New Hampshire heard the victim nervously ask Johnson if he wanted her to tell him her whole life story. Johnson said, “Howdy” to the couple, but the victim did not speak to them, and she testified that she did not even see them.

¶11 According to the victim, after she and Johnson got to the creek, she suggested that they go back to town and get her fishing pole, hoping that this would give her an opportunity to escape. Johnson instead went back to his car and got his fishing pole. The victim testified that she did not believe she had time to escape while he was at his car. When he returned, they fished briefly. Johnson then led her to a spot near the trail, pushed up her t-shirt and bra, and pushed her shorts and panties down. She left one leg in her shorts in preparation for escape. Johnson forced her to engage in three separate acts of sexual intercourse with him, and attempted a fourth, anal intercourse, on the ground near the creek. She testified that she did not actively fight back because she was afraid to provoke a violent physical response from him.

¶12 Johnson testified, in contrast, that their acts of sexual intercourse near the creek were consensual and did not include attempted anal intercourse. He testified that after they fished, they kissed for awhile. Then the victim took him by the hand and led him up the trail, where she sat down and pulled her pants and panties down. He laid down beside her and they proceeded to have intercourse. He testified that when they finished having sex, the victim got up and walked away; he believed she was just going back to his car.

¶13 The victim testified that at the first opportunity she saw, she got up from the ground and ran away. The couple from New Hampshire saw her bolt past them in the parking area, again not appearing to notice them, and then run right off the road over an embankment. The couple became convinced that something was wrong. At that point, Johnson came down the trail and asked if they had seen the victim. They said “no” and directed Johnson off into the woods (the wrong way) to look for her.

¶ 14 The man from New Hampshire got into his van and drove down the road in the direction the victim had gone. After he drove around several curves, the man heard thrashing in the underbrush and then the victim reemerged onto the road. He stopped the van and called out, “I’m here to help you,” to which she replied, “Thank God, thank God, thank God for you, you’re an angel, you saved me.” She got into the van and hid in the back. The man asked if Johnson was armed, and the victim replied, “Only with his dick.”

¶15 The man then went back to the trail head and asked his companion to take the victim to get the police. Johnson reappeared and said he was going to go get the victim’s brother to help look for her. Johnson then left in his car, returning with Grenfell, who was not a brother of the victim. Two Ravalli County sheriff’s officers arrived shortly thereafter and arrested Johnson.

¶ 16 At the jury trial, the victim, J ohnson, and the couple from N ew Hampshire testified, as did Chaffin, Grenfell, and the investigating officers. The doctor who examined the victim after the incident testified that her vagina was packed with forest debris, and that she had a “fairly flat” and “unemotional” affect, not unusual in a person who had undergone trauma and abuse. The doctor testified that the victim did not appear to be drunk so he did not test for alcohol content in her blood.

¶17 The jury convicted Johnson of three counts of sexual intercourse without consent and acquitted him of the fourth count, attempted anal sexual intercourse without consent. He appeals.

Issue 1

¶18 Did the District Court abuse its discretion when it precluded Johnson from cross-examining the victim or offering other evidence of her prior sexual conduct with other men?

¶19 Montana’s rape shield statute, § 45-5-511, MCA, provides in relevant part:

(2) No evidence concerning the sexual conduct of the victim is admissible in prosecutions under this part except evidence of the victim’s past sexual conduct with the offender or evidence of specific instances of the victim’s sexual activity to show the origin of semen, pregnancy, or disease which is at issue in the prosecution.

The statute, enacted in 1973, “reflects a compelling interest in favor of‘preserving] the integrity of the trial and ... preventing] it from becoming a trial of the victim.’ ” State v. Anderson (1984), 211 Mont. 272, 283, 686 P.2d 193, 199. In reviewing a trial court’s decision regarding the admissibility of evidence relating to extrinsic sexual activity of an alleged victim of sexual assault under the rape shield statute, this Court determines whether the lower court abused its discretion. State ex rel. Mazurek v. Dist. Court of Fourth Jud. Dist. (1996), 277 Mont. 349, 353, 922 P.2d 474, 477.

¶20 Johnson argues that the rape shield statute may not automatically be applied to exclude evidence of the complainant’s sexual activity not within the enumerated exceptions. He asserts that is exactly what happened here, in violation of his rights to due process and to confront the witnesses against him as guaranteed under the Sixth Amendment to the United States Constitution. He maintains that the victim’s prior sexual activity was a factor which, if developed at trial, would have established her motive to lie and to claim a lack of consent. Amicus curiae Montana Association of Criminal Defense Lawyers joins Johnson’s argument, advocating that a constitutional catch-all provision is necessary in the statute to protect defendants’ constitutional rights.

¶21 Johnson points out that the United States Supreme Court has struck down state evidentiary rules which arbitrarily or mechanistically operated to exclude evidence material and relevant to the defense. See Washington v. Texas (1967), 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (striking a statute which prohibited persons charged as accomplices from testifying for each other as an arbitrary denial of the right to present evidence relevant and material to the defense); Chambers v. Mississippi (1973), 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297, 313 (“where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice”); Rock v. Arkansas (1987), 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (restrictions on the right to testify may not be arbitrary or disproportionate to the purposes which they are designed to serve).

¶22 However, the Court has recently reaffirmed that a defendant’s right to present relevant evidence under the Fifth and Sixth Amendments is not unlimited, but rather is subject to reasonable restrictions. In United States v. Scheffer (1998), _ U.S. _, 118 S.Ct. 1261, 140 L.Ed.2d 413, the Court upheld a per se rule against admission of polygraph evidence in court martial proceedings. In so doing, the Court restated that state and federal rules excluding evidence from criminal trials do not abridge an accused’s right to present a defense so long as they are not arbitrary or disproportionate to the purposes they are designed to serve. Scheffer, 118 S.Ct. at 1264.

¶23 This Court has recognized that the bar imposed by Montana’s rape shield statute is not absolute. The statute allows narrowly-drawn exceptions to the exclusion of evidence of a complainant’s sexual conduct. “[T]he policy is not violated or circumvented if the offered evidence can be narrowed to the issue of the complaining witness’ veracity.” Anderson, 211 Mont. at 284, 686 P.2d at 200, citing Hall v. State (Ind. App. 1978), 374 N.E.2d 62. At the same time, this Court recently noted that it has “consistently upheld the exclusion of prior sexual conduct evidence rejecting claims that the Sixth Amendment of the United States Constitution and Article II, § 24 of the Montana Constitution guarantee the defendant the right to introduce such evidence.” Mazurek, 277 Mont. at 354, 922 P.2d at 478.

We have held that the Sixth Amendment right of confrontation is not absolute and that the Rape Shield Law serves a compelling state interest in preventing rape trials from becoming trials on the prior sexual conduct of the victims. In balancing the rights of victims and the rights of the defendant we have stated that: “The Sixth Amendment is not absolute, and ‘may bow to accommodate other legitimate interests in the criminal trial process.’ The rape shield statute has been upheld as a legitimate interest justifying curtailment of the constitutional right to confront witnesses.”

Mazurek, 277 Mont. at 354-55, 922 P.2d at 478 (citations omitted).

¶24 The constitution does not require a blanket exception to rape shield statutes for all evidence related to motive to fabricate. Speculative or unsupported allegations are insufficient to tip the scales in favor of a defendant’s right to present a defense and against the victim’s rights under the rape shield statute. See State v. Rhyne (1992), 253 Mont. 513, 521, 833 P.2d 1112, 1118; State v. Fitzgerald (1989), 238 Mont. 261, 263-64, 776 P.2d 1222, 1223-24; State v. Laird (1987), 225 Mont. 306, 310, 732 P.2d 417, 420.

¶25 In a pretrial motion, Johnson proposed to introduce evidence that the victim was cohabitating with her boyfriend at the time of the rape and that she had a crush on Chad Chaffin. Johnson’s counsel further alleged in that motion, “A fact not known to Mr. Johnson at the time, liaisons with other men had on more than one occasion caused [the victim’s boyfriend] to leave [the victim].” The defense alleged that these matters were relevant to show that the victim had a motive to lie in order to prevent her boyfriend and Chaffin from finding out about what the defense alleged was consensual sex. The court denied the motion, ruling that the defense’s theories had been presented “without offer of proof establishing a significant factual basis.”

¶26 The only specific allegations made by the defense in its initial motion were that the victim had had sexual relationships with her boyfriend and with Chaffin. The court allowed considerable testimony concerning those two relationships.

¶27 As part of the evidence submitted for the jury’s consideration, the court allowed the defense to elicit the victim’s admissions that she had told Johnson she was in love with Chaffin and that she had a crush on him. The defense also elicited the victim’s testimony that at the time of the rape, she and her boyfriend (not Chaffin) were planning on getting married and that they were living together. The court further allowed the defense to ask the victim whether, on the afternoon of the rape, she told Johnson that she had to get home or her boyfriend would be mad, which she admitted. The defense questioned the victim as to why she did not scream during the rape, why she did not run away sooner, and whether she had made a statement in the transcription that she “pretended [she] liked part of it [the sexual intercourse with Johnson].”

¶28 The court allowed Johnson to testify that the victim was “obsessed with” Chaffin and upset that he was not paying attention to her. The court also allowed Johnson to testify that he and the victim decided to go fishing up Canyon Creek so that her boyfriend would not find out. Finally, Johnson was allowed to testify at length that the acts of sexual intercourse between him and the victim were consensual.

¶29 In short, the court allowed extensive testimony relating to the defense theory concerning a motive to lie on the part of the victim. All of this belies the defense’s allegation that the jury was not permitted to consider the victim’s statements in context of the defense theory that she was making up the complaint to cover up an incident of consensual sexual intercourse.

¶30 The defense raised its motion to introduce evidence twice more — in an offer of proof on a motion for reconsideration of the court’s ruling on the initial motion, and on the morning of trial. Immediately before trial, counsel for the defense made an offer of proof in which he referred to an August 1994 statement by Chaffin, which had been taped and transcribed. The defense further alleged that Chaffin, Chaffin’s sister, and Grenfell would all say that the victim had been thrown out by her boyfriend because of her sexual misconduct with other people. However, the defense did not submit any support for these allegations.

¶31 At oral argument before this Court, the State pointed out that the sole apparent basis for Johnson’s claim that prior liaisons between the victim and other men had caused her boyfriend to break up with her was a transcript of a taped interview with Chaffin in August 1994, several months after the rape. In that interview, Chaffin stated that the victim was no longer living with her boyfriend, but had lived by herself for “two weeks ... or so” because “she went on one of her little flings... [the boyfriend] found out... and kicked her out[.]”

¶32 This statement by Chaffin does not speak to anything which could have provided a motive for the victim to lie at the time of the rape. The event to which he referred occurred “two weeks ... or so” before his statement was made, which was several months after the rape. The defense did not include Chaffin’s interview statement as part of its offer of proof. A copy of the statement, which was not introduced into evidence, is in the exhibit file.

¶33 The defense claims it was denied the opportunity to interview the victim and her boyfriend until the last minute. It did not, however, raise this point during the year and a half in which this case was pending, but only on the morning of trial. We note that the defense was provided the services of a private investigator and did not complain until the day of trial that it was in any way unable to prepare its case.

¶34 Johnson himself acknowledges that a limitation, without a blanket prohibition, may be proper as to evidence of the victim’s alleged motive to lie. After reviewing the record, we conclude that this case does not present an example of a blanket application of the rape shield statute as to evidence related to motive to fabricate. We conclude that the facts alleged and about which questioning was not permitted were speculative and unsupported, and are therefore insufficient to tip the scales in favor of Johnson’s right to present a defense and against the victim’s rights under the rape shield statute. We hold that to the extent the District Court denied the defense’s motions to present evidence of the victim’s prior sexual conduct and her relationships with other men, that denial was not' an abuse of discretion and violated neither Johnson’s right to due process nor his right of confrontation.

Issue 2

¶35 Did the court err in admitting the annotated transcription of an interview of the victim by the investigating officer?

¶36 The admissibility of evidence is a discretionary ruling, and this Court determines whether the trial court abused its discretion by admitting disputed evidence. State v. Ahmed (1996), 278 Mont. 200, 206-07, 924 P.2d 679, 683.

¶37 At trial, the defense cross-examined the victim about an interview which Detective Zerbst had conducted with her on the evening of the rape. Referring to a transcription of that interview, counsel attempted to impeach the victim’s trial testimony with statements she had made to Detective Zerbst. The defense also cross-examined Detective Zerbst using the transcription of the interview.

¶38 It became apparent during this cross-examination that the transcription to which defense counsel was referring was not the same transcription in the possession of the State-the defense’s copy contained additional handwritten comments, beginning at page 2. Out of the jury’s presence, the court and counsel determined that the copy in the defense’s possession was one on which the victim had added handwritten changes and additions. The prosecuting attorney had given the victim a copy of the transcription, asking her to add to it or correct it as she saw necessary. When the victim returned her annotated copy to the county attorney’s office, the office was closed, and she merely slipped it under the door. When the annotated copy was found, it was believed to be identical to the original, and was later mistakenly provided to the defense as part of discovery. The State did not realize until during cross-examination that the victim had made handwritten notes on a copy of the transcription and that defense counsel had been given that copy.

¶39 The State proposed that because the victim had already been cross-examined on parts of her transcribed and annotated statement, the statement should be allowed into evidence under Rule 801(d)(1), M.R.Evid., as either a prior consistent or prior inconsistent statement. Defense counsel argued that the statement as a whole was inadmissible hearsay. The court reserved a ruling on the admissibility of the annotated transcription, but the parties agreed to examine the victim to explain to the jury the confusion over the two different transcriptions.

¶40 During further cross-examination, the defense specifically questioned the victim about her handwritten statement on page 9 of the transcription that, “I pretended I liked part of it I went back and forth.” The victim confirmed that this was her handwriting and that it was a true statement. On redirect, she clarified that going “back and forth” did not describe her physical movements with Johnson, but instead described how she felt mentally, i.e., “making him think I liked it for a little bit, but then I’d get angry and I’d burst out with verbal abuse.”

¶41 During closing arguments, both sides again addressed the victim’s statement to Detective Zerbst and her annotations on the transcribed copy of that statement. The prosecutor argued that despite defense counsel’s attempts to impeach the victim with some of the statements, her trial testimony was not “that inconsistent” with either her original or annotated statement. In his closing, defense counsel played up the “back and forth” language which the victim had handwritten in her statement, saying, “Take that in context, folks. She was talking about her body and Mr. Johnson’s body.” He argued that the sexual intercourse in which Johnson admittedly engaged with the victim was consensual, or if not consensual, not knowingly nonconsensual to Johnson, because the victim was acting as if she liked it.

¶42 The issue of the admissibility of the annotated transcription was reopened during the jury’s deliberations when the jury asked to be allowed to see the copy of the transcription “which includes [the victim’s] written changes.” After lengthy discussion with counsel, the court decided to admit nearly all of the annotated transcription into evidence, with the exception of a small portion at the bottom of page 3 and the top of page 4 discussing another event deemed prejudicial to Johnson. The court reasoned that based upon the arguments made in the defense’s closing, “we have more reason now to put it in as a prior consistent statement than we had when it was first offered.”

¶43 Rule 801(d)(1), M.R.Evid., provides that a prior statement is not hearsay if the declarant testifies at the trial and is subject to cross-examination concerning the statement and the statement is either (A) inconsistent with the declarant’s testimony, or (B) consistent with the declarant’s testimony and offered to rebut an express or implied charge against the declarant of subsequent fabrication, improper influence or motive. Johnson argues that the victim’s pretrial statements were not admissible as either a prior statement consistent with her trial testimony offered to rebut a charge of subsequent fabrication, or as a prior inconsistent statement.

¶44 The court allowed the statement as a prior consistent statement under Rule 801(d)(1)(B), M.R.Evid. As to that subsection, Johnson maintains that he did not allege a subsequent fabrication of the story, but that the victim fabricated her story all along. He cites Tome v. United States (1995), 513 U.S. 150, 115 S.Ct. 696, 130 L.Ed.2d 574. In Tome, the Court interpreted Fed. R. Evid. 801(d)(1)(B), which is different from Rule 801(d)(1)(B), M.R.Evid. Johnson also points out, however, that this Court has interpreted Rule 801(d)(1)(B), M.R.Evid., to mean that “if a defendant does not assert that the victim is subsequently fabricating her story, but claims, as in this case, she was lying all along, prior consistent statements are not admissible.” State v. Lunstad (1993), 259 Mont. 512, 517, 857 P.2d 723, 726.

¶45 In this case, the prior statement in the annotated transcription may have had general impeachment value to the defense, but our review of that statement convinces us that nothing in it supported Johnson’s theory that the victim was concocting the rape to hide her promiscuity from others. The prior statement thus provided no independent basis for defense counsel to question the victim about a “motive to lie all along,” but was relevant only to suggest that the victim’s overall credibility was suspect because of her various statements concerning the rape.

¶46 The annotated statement was initially brought before the jury by the defense, for purposes of impeachment. The defense attempted to use the annotated transcription as a prior inconsistent statement by the victim. Under that argument, the annotated transcription would have had to predate the motive to lie. But, as the District Court noted, the victim’s statements in the annotated transcription proved to be fairly consistent with her trial testimony. A prior consistent statement which predates the motive to lie is admissible into evidence. Therefore, we conclude that the State was thereafter entitled to utilize the statement as a prior consistent statement to rehabilitate the witness, and the annotated transcription was admissible under Rule 801(d)(1)(B), M.R.Evid.

¶47 Finally, it is disingenuous for Johnson to argue that the annotated transcription is a prior statement that could not be used by the State for its substantive value. Johnson himself relied upon the annotated statement as substantive evidence that the victim went “back and forth,” implying that the victim was consenting to sex.

¶48 We hold that the District Court did not abuse its discretion in admitting the annotated transcription into evidence.

Issue 3

¶49 Did the court err in granting the jury’s request for a copy of the annotated transcription during deliberations?

¶50 Section 46-16-503(2), MCA, allows a Montana court to refresh the jury’s recollection of trial testimony under certain limited circumstances:

After the jury has retired for deliberations, if there is any disagreement among the jurors as to the testimony or if the jurors desire to be informed on any point of law arising in the cause, they shall notify the officer appointed to keep them together, who shall then notify the court. The information requested may be given, in the discretion of the court, after consultation with the parties.

Johnson’s objection to granting the jury’s request for a copy of the annotated transcription dining deliberations is based upon case law concerning jury requests to rehear trial testimony during deliberations. In such cases, this Court has held that trial courts should not furnish a transcript of the testimony of any particular witness, in order to avoid placing undue emphasis on the testimony of any one witness to the exclusion of all others. E.g., State v. Harris (1991), 247 Mont. 405, 417, 808 P.2d 453, 460. However, if a jury has “some particular reason or point” that it wants to resolve relating to the evidence, the jury may submit the question for the court’s consideration. Harris, 247 Mont. at 418, 808 P.2d at 460.

[T]he court should determine what particular testimony has caused the disagreement among the jurors. After making that determination, the court shall exercise its discretion after consultation with the parties, keeping in mind that the court must avoid undue emphasis upon particular testimony as condemned in State v. Harris.

State v. Mayes (1992), 251 Mont. 358, 374, 825 P.2d 1196, 1206.

¶51 This case is in no way analogous to Harris or Mayes. First, the ruling did not place undue emphasis on the victim’s testimony to the exclusion of the other evidence. At issue were the victim’s statements, made at different times, which defense counsel suggested were inconsistent with her trial testimony. Defense counsel also asked the jury to consider the annotated transcription for its substantive value, i.e., that the victim “went back and forth.”

¶52 More to the point, the jury was not asking to review trial testimony, but to review a document referenced at trial and introduced into evidence. Section 46-16-504, MCA, allows the jury to take with it into the jury room “all exhibits that have been received as evidence in the cause that in the opinion of the court will be necessary.” Like jury requests to be allowed to review trial testimony, such requests must be decided so as to guard against the evidence being given undue weight or emphasis. See State v. Christenson (1991), 250 Mont. 351, 361, 820 P.2d 1303, 1309.

¶53 The form of the jury’s request indicated that the jury was interested in the additions and corrections the victim made to her initial statement to Detective Zerbst. The victim’s handwritten corrections or additions appeared on pages 2, 4, 5, 6, 7, 8, 9, 11, and 13 of the 23-page transcription. By admitting the majority of the annotated transcription into evidence, the court allowed the victim’s statements to be placed in context. We conclude that this was the only just result, given the manner in which the statements were used at trial and that the victim’s additions and corrections appeared on multiple pages of the transcription. The court’s ruling would have aided the defense if, as the defense argued, discrepancies truly existed in the victim’s statements. We hold that the District Court did not abuse its discretion in granting the jury’s request to review the annotated transcription during deliberations.

¶54 Affirmed.

JUSTICES REGNIER, NELSON, GRAY, HUNT, LEAPHART and TRIEWEILER concur.


author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BRYAN STEINMETZ, Defendant and Appellant.
    No. 97-079.
    Submitted on Briefs December 4, 1997.
    Decided May 5, 1998.
    1998 MT 114.
    55 St.Rep. 450.
    961 P.2d 95.
    288 Mont. 527.

      For Appellant: Brad Amdorfer, Arndorfer Law Firm, Billings.
    For Respondent: Joseph P. Mazurek, Attorney General, Tammy K. Plubell, Assistant Attorney General, Helena; Rick Helm, Deputy Yellowstone County Attorney, Billings.
   JUSTICE NELSON

delivered the Opinion of the Court.

¶1 Defendant Bryan Steinmetz (Steinmetz), after pleading guilty to the charge of driving under the influence of alcohol in violation of § 61-8-401, MCA, appeals from the Findings of Fact, Conclusions of Law and Order of the Thirteenth Judicial District Court, Yellowstone County, denying his motion to suppress evidence of his field sobriety test results. We affirm in part and remand for further proceedings consistent with this Opinion.

¶2 The sole issue raised on appeal is whether the District Court properly denied Steinmetz’s motion to suppress evidence of his field sobriety tests the State administered at the investigative stop and on videotape at the detention facility subsequent to Steinmetz’s arrest.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On February 13, 1996, at approximately 1:50 a.m., Deputy Bill Michaelis of the Yellowstone County Sheriff’s Department was on duty and observed Steinmetz’s vehicle traveling with an inoperable left, rear taillight. Deputy Michaelis initiated a traffic stop, approached Steinmetz, informed him of the reason for the stop, and asked him to produce his driver’s license, registration and proof of insurance. Deputy Michaelis testified that he initially intended to issue Steinmetz a warning, but upon further observation, he asked Steinmetz to step out of his vehicle to perform a series of field sobriety tests including the Horizontal Gaze Nystagmus (HGN), walk-and-turn, and recitation of the alphabet. After Steinmetz performed the field sobriety tests, Deputy Michaelis arrested him for driving under the influence of alcohol (DUI) in violation of § 61-8-401, MCA, and transported him to the Yellowstone County Detention Facility in Billings, Montana.

¶4 Once at the detention facility, Deputy Michaelis videotaped the following investigative process. Deputy Michaelis began by reading Montana’s Implied Consent Law to Steinmetz who thereafter refused to submit to a breath test. Subsequently, Deputy Michaelis initiated field sobriety testing with the administration of the HGN, walk-and-turn, one-legged stand, and alphabet recitation. Upon completion of the field sobriety tests, Deputy Michaelis read Steinmetz his Miranda rights to which Steinmetz responded affirmatively that he understood his rights and he indicated that he would talk to Deputy Michaelis without his attorney present. After Steinmetz cooperatively answered all of Deputy Michaelis’s questions, Deputy Michaelis suspended Steinmetz’s driver’s license and issued him a 72-hour driving permit. In doing so, Deputy Michaelis explained the purpose of the temporary driving permit and made sure that Steinmetz had a ride home.

¶5 On February 23, 1996, Steinmetz pleaded not guilty to the charges of DUI brought against him in Justice Court. On April 17, 1996, Steinmetz filed a motion to suppress evidence of his field sobriety test results arguing that Deputy Michaelis coerced him into performing the field sobriety tests and that his recitation of the alphabet and counting during the field sobriety tests was testimonial and violated his right against self-incrimination. After receiving the State’s brief in opposition and conducting a hearing, the Justice Court denied Steinmetz’s motion to suppress on June 18,1996. On July 11, 1996, a jury convicted Steinmetz of DUI.

¶6 On July 16, 1996, Steinmetz filed a notice of appeal and requested a trial de novo in the Thirteenth Judicial District Court, Yellowstone County. Thereafter, on November 22, 1996, he renewed his motion to suppress and submitted a brief in support of his motion. The State again filed a brief in opposition on December 5, 1996, and on December 12,1996, the District Court conducted a hearing on the motion. On December 16, 1996, the District Court entered Findings of Fact, Conclusions of Law and an Order denying Steinmetz’s motion to suppress evidence of his field sobriety test results. In denying Steinmetz’s motion, the court concluded that Steinmetz was not entitled to be informed that he could refuse to perform field sobriety tests; that field sobriety tests are not searches protected by the federal or Montana constitutions; and that neither counting during the walk-and-turn test nor reciting the alphabet is testimonial in nature, and, thus, is not protected by the Fifth Amendment to the United States Constitution or by the Montana Constitution.

¶7 Subsequently, on December 20, 1996, Steinmetz changed his plea to guilty and the District Court sentenced him to ten days in the Yellowstone County Detention Facility, with nine days suspended based on certain conditions. However, the District Court stayed execution of this sentence pending appeal. Steinmetz appeals from the District Court’s denial of his motion to suppress and from his judgment and sentence.

DISCUSSION

¶8 On appeal, Steinmetz argues that the District Court erred when it denied his motion to suppress. However, he explains that he is not appealing the District Court’s conclusion that counting during the walk-and-turn test and recitation of the alphabet are not testimonial in nature, and, thus, are not protected by the Fifth Amendment to the United States Constitution or by the Montana Constitution. Rather, relying on State v. Nagel (Or. 1994), 880 P.2d 451 and State v. Maddux (Or.App. 1996), 925 P.2d 124, Steinmetz asserts that field sobriety tests do constitute a search protected by the Montana and federal constitutions. In this regard, he suggests that we should clarify our decision in State v. Purdie (1984), 209 Mont. 352, 680 P.2d 576, to explain that the issue in Purdie did not concern whether field sobriety tests constitute a search, but, rather, whether there must be an exception to the warrant requirement, such as consent. In this regard, Steinmetz maintains that he was coerced into performing field sobriety tests during his initial stop and at the detention facility due to both Deputy Michaelis’s failure to inform him of his right to refuse and his “demands” that Steinmetz perform the tests.

¶9 The State responds that under Purdie the District Court correctly concluded that field sobriety tests do not constitute a search protected by the Montana and United States Constitutions. In the alternative, the State argues that if this Court overrules Purdie, as Steinmetz suggests, we should adopt particularized suspicion, not probable cause, as the appropriate standard for permissible administration of field sobriety tests, as other jurisdictions have done including the Arizona Supreme Court in State v. Superior Court (Ariz. 1986), 718 P.2d 171. Further, the State asserts that Deputy Michaelis did not coerce Steinmetz into performing field sobriety tests either during the investigative stop or at the detention facility. Consequently, the State contends that we should affirm the District Court’s denial of Steinmetz’s motion to suppress evidence of his field sobriety test results.

¶10 We review a district court’s denial of a motion to suppress to determine whether the court’s findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Widenhofer (1997), [286 Mont. 341], 950 P.2d 1383, 1386 (citations omitted). Further, we will uphold the decision of a district court, if correct, regardless of the court’s reasoning for its decision. Hagan v. State (1994), 265 Mont. 31, 35, 873 P.2d 1385, 1387 (citations omitted). In the case at bar, Steinmetz does not argue that the District Court’s findings of fact are clearly erroneous. Rather, Steinmetz argues that the District Court incorrectly applied its findings of fact as a matter of law. After this appeal was submitted on briefs, we decided the case of Hulse v. State, 1998 MT 108, [289 Mont. 1], 961 P.2d 75. Because we give retroactive effect to judicial decisions, Hulse is applicable in the case sub judice although it was not available to the District Court at the time it ruled on Steinmetz’s motion to suppress. Kleinhesselink v. Chevron, U.S.A. (1996), 277 Mont. 158, 162, 920 P.2d 108, 111 (citing Porter v. Galarneau (1996), 275 Mont. 174, 185, 911 P.2d 1143, 1150).

¶11 In Hulse, we addressed the issue of whether the district court erred when it denied Hulse’s petition to reinstate her driver’s license after she had been arrested for DUI and refused to submit to a breath test. Hulse, ¶ 16. In part, Hulse argued that the field sobriety tests she performed constituted a search within the meaning of both Article II, Section 11 of the Montana Constitution and the Fourth Amendment to the United States Constitution, and, thereby, implicated her individual right to privacy under Article II, Section 10 of the Montana Constitution. As such, Hulse asserted that this warrantless search must be supported by probable cause and exigent circumstances to be constitutionally valid. Hulse, ¶ 19. Hulse maintained that her right to be free from unreasonable searches and seizures was violated because her arresting officer lacked probable cause to administer the field sobriety tests, and, consequently, lacked probable cause to arrest her. Hulse, ¶ 19.

¶12 Relying on Nagel, 880 P.2d 451, People v. Carlson (Colo. 1984), 677 P.2d 310, and State v. Nelson (1997), 283 Mont. 231, 941 P.2d 441, we overruled our holding in Purdie that field sobriety tests are “merely observations” of a person’s physical behavior, and held that field sobriety tests constitute a search under the Fourth Amendment to the United States Constitution, and independently of the federal constitution, under Article II, Section 11 of the Montana Constitution. Hulse, ¶¶ 32-33. However, we adopted the rationale of the Arizona Supreme Court’s decision in Superior Court, 718 P.2d 171 (relying on Terry v. Ohio (1968), 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889, 911), to hold that while field sobriety tests do constitute a search, to be constitutionally valid, these tests, like an investigative “Terry” stop, must be based upon particularized suspicion, not probable cause. Hulse, ¶¶ 36-38.

¶13 Additionally, we explained that, in certain instances, particularized suspicion for the initial stop may also serve as the necessary particularized suspicion for the administration of field sobriety tests, if the basis for the initial stop was such to lead an officer to believe that the driver was intoxicated. Hulse, ¶ 39. On the other hand, we also recognized that an investigative stop can take on the quality of an escalating situation:

As the Appellate Court of Connecticut explained:

Once a lawful stop is made, a police officer’s suspicions may become further aroused and the stop may become further prolonged and the scope enlarged as required by the circumstances, provided the scope of the investigation remains within the limits created by the facts upon which the stop is predicated and the suspicion which they arouse. Lamme, 563 A.2d at 1374 (citing Terry, 392 U.S. at 21-22, 29, 88 S.Ct. at 1879-81, 1883-84, 20 L.Ed.2d 889). For example, if an officer only observed an individual driving with a broken taillight and after making his initial stop he did not observe any signs of intoxication, he would not have particularized suspicion that the driver was driving under the influence, and, therefore, would be prohibited from administering field sobriety tests. By contrast, if an officer stops a driver for a broken taillight and upon approaching this driver the officer does observe signs of intoxication, e.g., the driver’s breath smells of alcohol, his eyes are bloodshot and glassy, or his speech is slurred, the officer would have a separate particularized suspicion that the individual was driving under the influence of alcohol, and, therefore, may administer field sobriety tests. If the driver should fail the field sobriety tests, the officer would then have probable cause to arrest this individual for driving under the influence of alcohol.

Hulse, ¶ 40.

¶14 Here, like the previously referenced example in Hulse, Deputy Michaelis stopped Steinmetz for driving with an inoperable, rear taillight. However, based upon further observation of Steinmetz, Deputy Michaelis asked Steinmetz to step out of his vehicle and initiated a series of field sobriety tests. Pursuant to our decision in Hulse, for these field sobriety tests to be a constitutionally permissible search, Deputy Michaelis must have had a separate particularized suspicion that Steinmetz was driving under the influence of alcohol. Hulse, ¶ 40.

¶15 However, we cannot address the constitutional validity of these field sobriety tests because Deputy Michaelis’s testimony during the suppression hearing was limited primarily to questions concerning whether he “coerced” Steinmetz into performing the field sobriety tests; he never testified as to what objective data established his resulting suspicion that Steinmetz was driving under the influence of alcohol. See Hulse, ¶¶ 41-42. Therefore, in light of our decision in Hulse, we remand to the District Court with instructions that it hold a hearing and determine whether Deputy Michaelis had a separate particularized suspicion that Steinmetz was driving while under the influence of alcohol before or as a result of his investigative stop for the inoperable taillight.

¶16 If the District Court finds that Deputy Michaelis had a separate particularized suspicion that Steinmetz was driving while under the influence of alcohol, the issue of whether Deputy Michaelis “coerced” Steinmetz to perform the tests by “commanding” rather than “asking” him to perform the tests is immaterial. That is, if Deputy Michaelis had this separate particularized suspicion, then his administration of the field sobriety tests during the initial stop was constitutionally valid. As such, his lawful request for and administration of these tests cannot, without more, be characterized as “coercion.”

¶17 Further, if the District Court finds that Deputy Michaelis had particularized suspicion to administer field sobriety tests during his investigative stop of Steinmetz, and, thereby, established probable cause to validly arrest Steinmetz for DUI, we conclude that Deputy Michaelis’s administration of field sobriety tests on Steinmetz at the detention facility was also a constitutionally permissible search. Having already arrested Steinmetz, Deputy Michaelis’s administration of the tests at the detention facility was supported by probable cause, a more stringent standard than particularized suspicion. Again, as such, his lawful request for and administration of these tests cannot, without more, be characterized as “coercion.”

¶18 As to the “without more” caveats of the preceding two paragraphs, nothing in the record demonstrates that Deputy Michaelis otherwise coerced Steinmetz into performing the field sobriety tests. To determine whether Steinmetz was coerced, we look to the totality of the circumstances. State v. Rushton (1994), 264 Mont. 248, 258, 870 P.2d 1355, 1361 (citing Schneckloth v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854). An accused’s knowledge of the right to refuse a search is only one factor to consider and is not determinative of voluntariness. Rushton, 264 Mont. at 258, 870 P.2d at 1361 (citing Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2059, 36 L.Ed.2d at 875). However, “[t]he police do not have to warn a person of the right to withhold consent.” State v. Ellinger (1986), 223 Mont. 349, 354, 725 P.2d 1201, 1204 (citing Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2048, 36 L.Ed.2d at 863). After reviewing the suppression hearing testimony of both Deputy Michaelis and Steinmetz concerning the initial stop as well as the videotape of the investigative process conducted at the detention facility, we see no evidence that Deputy Michaelis coerced Steinmetz into performing the field sobriety tests. Whether Deputy Michaelis asked or told Steinmetz to perform the tests, there is no evidence that Steinmetz’s “will ha[d] been overborne and his capacity for self-determination critically impaired. ...” Schneckloth, 412 U.S. at 225, 93 S.Ct. at 2047, 36 L.Ed.2d at 862.

¶19 Accordingly, we affirm the District Court’s denial of Steinmetz’s motion to suppress on the basis of the court’s rejection of Steinmetz’s argument that Deputy Michaelis coerced him into performing any of the field sobriety tests. However, in light of our decision in Hulse that field sobriety tests do constitute a search, we remand to the District Court the issue of whether the field sobriety tests that Deputy Michaelis administered during his investigative stop of Steinmetz for an inoperable taillight were based on a separate particularized suspicion that Steinmetz was driving while under the influence of alcohol.

¶20 Affirmed in part and remanded for further proceedings consistent with this Opinion.

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