author: MR. JUSTICE SHEEHY

text:
    ARLYN McJUNKIN and Lorraine McJunkin, Plaintiffs and Appellants, v. KAUFMAN AND BROAD HOME SYSTEMS, INC., a California Corp., and Ponderosa Homes, a Montana Corporation, Defendants and Respondents.
    No. 87-77.
    Submitted on Briefs Nov. 13, 1987.
    Decided Dec. 22, 1987.
    Rehearing Denied Feb. 11, 1988.
    748 P.2d 910.

      Larry W. Moran, Bozeman, for plaintiffs and appellants.

      Herndon, Harper & Munro; Rodney T. Hartman, Billings, Berg, Coil, Stokes & Tollefsen; Gig A. Tollefsen, Bozeman, for defendants and respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Following trial by jury in the Eighteenth Judicial District, Gallatin County, judgment was entered against Kaufman and Broad Homes (K&B) on a claim of negligence and against Ponderosa Homes (Ponderosa) on a claim of negligent misrepresentation. All litigants allege error. We affirm.

The parties present the following issues for review.

1. Did the District Court properly refuse to instruct the jury on strict liability, the covenant of good faith and fair dealing and punitive damages?

2. Did the District Court properly grant directed verdicts dismissing claims of breach of the implied warranty of habitability, breach of the implied warranty of merchantability, express warranty and constructive fraud?

3. Did the District Court properly allow the jury to view the mobile home at issue?

4. Did the District Court properly refuse to grant a directed verdict on the claims of negligence and negligent misrepresentation?

Ponderosa is engaged in the business of selling mobile homes, including those manufactured by K&B. The controversy at hand arose from the McJunkins’ purchase of a K&B mobile home from Ponderosa.

In December, 1982, the McJunkins met with Ponderosa salesman Vern Gusick concerning the purchase of a K&B mobile home. The McJunkins subsequently returned to Ponderosa and ordered a K&B mobile home with a number of special features. It arrived in Belgrade on or about December 21, 1982.

The McJunkins first inspected their mobile home on December 23, 1982. At that time, Mr. McJunkin noted that the mobile home did not conform to their specifications in certain areas. The McJunkins allege that they told Gusick they were not going to take the mobile home. Gusick is alleged to have responded that the trailer was a special order and they had to take it. In any event, it is uncontested that Gusick informed the McJunkins not to worry, that everything will be taken care of. Thereafter, the McJunkins entered an installment contract for the purchase of the mobile home.

Ponderosa transported the trailer to the McJunkins’ home in Sheridan, Wyoming, and set it in place. Mrs. McJunkin testified that she observed the mobile home fishtail wildly during the trip on an icy curve near Crow Agency. The stress placed on the trailer during this incident is alleged to be partially responsible for problems the McJunkins later had with the trailer.

Immediately upon moving in, the McJunkins noted problems with the mobile home. A significant problem was that the trailer was not level. The serviceman who attempted to relevel the trailer discovered that it could not be leveled because of the frame. Mr. McJunkin was advised by the serviceman not to move the trailer as a result. At various times, the McJunkins also discovered that the doors fit poorly; the carpet was coming loose; the floor plan had not been changed; there were not copper pipes as ordered; shutters were missing; the ceiling fan was defective; there was not an outside faucet as ordered; the furnace was noisy; the vent was in the wrong place; the shower heads were not positioned as ordered; the wrong materials had been used in the bathroom door casings; the paneling was coming off the bath wall; the door trim had been incorrectly installed; a special order cabinet was damaged; shingles came off the roof; the floor tile was coming up around the toilet; the front door lock broke; the door bell was installed on the wrong side; and other problems.

Although Ponderosa and K&B made efforts to remedy some of the defects, the McJunkins received very little relief. Efforts to correct defects often resulted in further damage or more sloppy work. As a result, the McJunkins sent a revocation of acceptance on December 10, 1984, but continued to live in the trailer.

Prior to trial, both parties had engineers examine the mobile home for structural defects. The engineer who examined the trailer at the request of the McJunkins found that the wooden frame had been overstressed at some point. He agreed with the serviceman that the trailer should not be moved. Defendants’ engineer examined the mobile home after it had been returned to Belgrade. In his opinion, the frame had not suffered excessive stress and could safely be moved. Both engineers agreed that the mobile home was habitable. The jury was also allowed to view the mobile home to make their own determination. Many of the alleged errors revolve around the sufficiency of the complaint filed on December 21, 1984, as amended by the pretrial order of October 6, 1986. .

The liberal pleading philosophy of the Montana Rules of Civil Procedure has superseded the highly technical theory of code pleading which often resulted in substantial injustice to the injured party. “Ancestor worship in the form of ritualistic pleadings has no more disciples. The time when the slip of an [attorney’s] quill pen could spell death for a plaintiff’s cause of action is past.” Thompson v. Allstate Insurance Company (5th Cir. 1973), 476 F.2d 746, 749. A pleading will be liberally construed in order to achieve substantial justice. Johnson v. Herring (1931), 89 Mont. 156, 173, 295 P. 1100, 1105; Rule 8(f), M.R.Civ.P.

Generally, a pleading need only provide “a short and plain statement of the claim that will give the defendant prior notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson (1957), 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80, 85. Discovery procedures and the pretrial conference under Rule 16 are the primary means of formulating and clarifying the issues so that the only real function of pleadings is that of giving notice. 2A Moore’s Federal Practice Section 8.13 at 8-71. However, “it is not enough to find that the plaintiff has a grievance . . . sufficient detail must be given so that the defendant, and the court, can obtain a fair idea of what the plaintiff is complaining and can see that there is some legal basis for recovery.” Davis v. Passman (1979), 442 U.S. 228, 238 n.15, 99 S.Ct. 2264, 2273, 60 L.Ed.2d 846, 858, 2A Moore’s Federal Practice Section 8.13 at 8-13.

The failure to set forth all claims initially is not fatal. Under Rule 15(b), M.R.Civ.P., when issues not raised by the pleadings or amended by the pretrial order are tried by the express or implied consent of the parties, they shall be treated as if raised in the pleading. The general rule is that such amendments shall be freely granted. Union Exchange, Inc. v. Parker (1960), 138 Mont. 348, 357 P.2d 339.

However, liberal construction and amendment of pleadings does not grant counsel carte blanche to advance new theories on an unsuspecting opponent. In Brothers v. Surplus Tractor Parts Corp. (1973), 161 Mont. 412, 506 P.2d 1362, we cautioned counsel in this state that any reliance on the liberality of the courts in granting amendments was at their peril.

“It is generally accepted that the appellant cannot recover beyond the case stated by him in his complaint .... This Court believes that fair notice to the other party remains essential, and pleadings will not be deemed amended to conform to the evidence because of ‘implied consent’ where the circumstances were such that the other party was not put on notice that a new issues was being raised .... (Citations omitted.)

“Rule 15(b), M.R.Civ.P. should be applied liberally to avoid the old requirements of formalism and to allow litigants to proceed efficiently on the merits of the case. However, leave to amend pleading under Rule 15(b), cannot be granted arbitrarily or perfunctorily because the result would create a question of due process in cases where the defendant may not have an adequate opportunity to prepare his case on the new issues raised by the amended pleading, therefore the facts attendant to each case become controlling.”

161 Mont. at 417-418, 506 P.2d at 1365.

The McJunkins allege that the District Court improperly granted a directed verdict on the express warranty claim. It is alleged that the District Court based its decision on the McJunkins’ failure to plead the claim against Ponderosa. We disagree. A review of the trial transcript indicates that Ponderosa did not request, nor did the court grant, a directed verdict on the express warranty claim. Rather, the court properly found that the claim was not pleaded.

As noted above, the purpose of pleading is to provide notice. See Conley, supra. The McJunkins had two and one-half years to amend their complaint. In addition, the pretrial order signed by the parties specifically states that the express warranty claim applied only to K&B. Under these facts, we cannot say the District Court clearly abused its discretion. We hold that the District Court properly refused to submit the issue to the jury.

Implied Covenant of Good Faith and Fair Dealing

The District Court also refused to instruct the jury on the implied covenant of good faith and fair dealing. Although the claim had not been plead, the McJunkins submitted a jury instruction defining good faith “as honesty in fact in the conduct or transaction concerned.” We find that the instruction inadequately defines the tort.

The seminal case on the issue of the implied covenant of good faith and fair dealing is Nicholson v. United Pacific Insurance Co. (Mont. 1985), [219 Mont. 32,] 710 P.2d 1342, 42 St.Rep. 1822. In Nicholson, this Court engaged in an exhaustive examination of the nature of the duty of good faith and fair dealing. We stated:

“The nature and extent of an implied covenant of good faith and fair dealing is measured in a particular contract by the justifiable expectations of the parties. Where one party acts arbitrarily, capriciously or unreasonably, that conduct exceeds the justifiable expectations of the second party. The second party then should be compensated for damages resulting from the other’s culpable conduct.” 710 P.2d at 1348, 42 St.Rep. at 1829.

The issue before us is not novel. In McGregor v. Mommer (Mont. 1986), [220 Mont. 98,] 714 P.2d 536, 43 St.Rep. 206 and Dunfee v. Baskin-Robbins, Inc. (Mont. 1986), [221 Mont. 447,] 720 P.2d 1148, 43 St.Rep. 964, we rejected similar instructions which defined good faith and fair dealing as “honesty in fact.” As Nicholson indicates, the covenant of good faith and fair dealing is more than “honesty in fact.” Dunfee, 720 P.2d at 1152, 43 St.Rep. at 969. “It requires, at a minimum, that defendants’ actions were arbitrary, capricious or unreasonable and exceeded plaintiffs’ justifiable expectations.” McGregor, 714 P.2d at 543, 43 St.Rep. at 214.

We hold the District Court correctly refused to give the instruction.

Fraud

The District Court granted a directed verdict in favor of the defendants on the McJunkins claim of constructive fraud. The McJunkins contend that the District Court incorrectly determined that a fiduciary duty is necessary for a constructive fraud claim to lie. We agree with the McJunkins. However, we find the error to be harmless.

Constructive fraud is defined in Section 28-2-406, MCA. It provides:

“Constructive fraud consists in:
“(1) any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under him by misleading another to his prejudice or to the prejudice of anyone claiming under him; or
“(2) any such act or omission as the law especially declares to be fraudulent, without respect to actual fraud.”

By its terms, the statute does not require that the plaintiff demonstrate a fiduciary relationship. It merely requires the establishment of a duty. We have recognized that a sufficient duty can arise in a commercial transaction such as the one at hand. Woodahl v. Mathews (1982), 196 Mont. 445, 639 P.2d 1165; Mends v. Dykstra (1981), 195 Mont. 440, 637 P.2d 502; Moschelle v. Hulse (1980), [190 Mont. 532,] 622 P.2d 155, 37 St.Rep. 1506. We find the defendants had a duty to refrain from intentionally or negligently creating a false impression by words or conduct. Moschelle, 622 P.2d at 159, 37 St.Rep. 1509.

In the instant case, the McJunkins’ complaint stated that Ponderosa’s representations constituted negligent misrepresentation. The next count contends that the same representations also constituted constructive fraud. Had the jury been instructed on both theories, the damages would have been the same. Thus, the error is harmless.

As the McJunkins’ brief only refers to Ponderosa, we do not address the issue as to K&B. Nor do we reach the issue of actual fraud. The District Court did not address the issue because actual fraud was not pleaded or raised by the McJunkins.

Implied Warrant of Habitability

The McJunkins allege the District Court improperly granted a directed verdict on the implied warranty of habitability because the defects precluded “realistic” habitation. In Chandler v. Madison (1982), 197 Mont. 234, 642 P.2d 1028, we recognized that the doctrine of caveat emptor no longer reflects the realities of the modern home market. 197 Mont. at 239, 642 P.2d at 1031. We therefore held that the builder-vendor of a new home impliedly warrants that the residence is constructed in such a manner as to he suitable for habitation. Chandler, 197 Mont. at 239, 642 P.2d at 1031. The implied warranty of habitability does not require that the home be defect free, however.

In the instant case, the District Court found that the mobile home was habitable. We agree. The trailer did not constitute a health or safety hazard. Nor was the mobile home so riddled with defects as to reasonably preclude its use as a residence. The critical determination for a breach of habitability is whether the defects relate to the useful occupancy of the house. Although the problems were a constant source of irritation for the McJunkins, the experts for both parties agreed that the trailer was habitable. The warranty of habitability is not so broad as to provide a remedy for minor defects and annoyances. See Klos v. Gockel (1976), 87 Wash.2d 567, 554 P.2d 1349.

Merchantability

The District Court also granted a directed verdict on the McJunkins’ claim of breach of the implied warranty of merchantability because “it is excluded by the express language of the sales document.” The language in question provides:

“8. WARRANTIES: THE DEALER SHALL GIVE OVER TO THE BUYER COPIES OF ANY AND ALL WRITTEN WARRANTIES COVERING THE WITHIN DESCRIBED UNIT, OR ANY APPLIANCE OR COMPONENT THEREIN, WHICH HAVE BEEN PROVIDED BY THE MANUFACTURER OF THE UNIT OR APPLIANCE OR COMPONENT, RESPECTIVELY. IT IS UNDERSTOOD AND AGREED THAT EXCEPT AS MAY BE REQUIRED UNDER APPLICABLE STATE LAW THE DEALER MAKES NO WARRANTIES WHATSOEVER REGARDING THE UNIT OR ANY APPLIANCE OR COMPONENT CONTAINED THEREIN. THE DEALER EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR USE. “ (Emphasis in original.)

The McJunkins contend that the “disclaimer” is invalid because there is no evidence they ever saw or were made aware of the disclaimer, nor were they made aware of its significance. Section 30-2-316, MCA, does not require that a disclaimer of implied warranties be specifically pointed out to the consumer. In order to “exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous. . . .” Section 30-2-316(2), MCA.

In the instant case, the disclaimer was not hidden in the fine print. The language was in larger, darker, bolder type. It was also capitalized and underlined. The fact that the disclaimer appeared on the back of the purchase agreement is not per se sufficient to render the disclaimer ineffective. It is fundamental that a person is presumed to have read the contractual agreements that they enter into. We find that the disclaimer at issue satisfies the requirements of Section 30-2-316(2), MCA. See Schlenz v. John Deer Co. (D. Mont. 1981), 511 F.Supp. 224, 228.

Strict Liability

The McJunkins contend that the District Court should have instructed the jury on the theory of strict liability. Defendants contend that the McJunkins failed to plead strict liability as a theory of recovery. The issue requires two considerations, whether the evidence justified such instructions, and whether the failure to plead strict liability constituted such a lack of notice of the issues to the defendants that such instructions would be improper or no amendment to the pleadings could be granted.

In Brandenburger v. Toyota Motor Sales (1973), 162 Mont. 506, 513 P.2d 268, this Court joined a growing number of states which had adopted strict liability as defined by 2 Restatement (Second) of Torts, Section 402A. Mr. Justice Harrison, speaking for the Court, indicated that the essential rationale behind the theory of strict liability was to afford the consuming public maximum protection from defective products by requiring the manufacturer who reaps the profit of sales to also bear the burden of injuries and loss. 162 Mont. at 517, 513 P.2d at 275. For, “it is apparent from a reading of the Restatement, and the leading cases on this subject, that the doctrine of strict liability was evolved to place liability on the party primarily responsible for [an] injury occurring, that is, the manufacturer of the defective product.” 162 Mont. at 514, 513 P.2d at 273.

In the nearly 15 years since Brandenburger, this Court has repeatedly returned to the source of Montana’s theory of strict liability. In Thompson v. Nebraska Mobile Homes (1982), 198 Mont. 461, 647 P.2d 334, we were confronted with whether a claim for strict liability in tort would lie where the only harm was to the consumer’s property. Thompson also involved a “lemon” mobile home. Mrs. Thompson was plagued by cold air blowing through the home’s outlets, cupboards and closets. After several phone calls during a two year period, a factory man visited the home and caulked the bedroom closet floor. The caulking was insufficient, however. Mrs. Thompson found it necessary to install a gas heater as well as several electrical heaters in an effort to keep warm.

Sometime after the caulking was performed, Mrs. Thompson noticed that the living room ceiling was sagging approximately four inches and that the walls of the mobile home were bowed. Her pleas for assistance fell on deaf ears.

Consistent with the Brandenburger rationale, an unanimous court found strict liability applicable:

“The rationale [cited] in Brandenburger also applies under these circumstances. The public remains in an unfair bargaining position as compared to the manufacturer. In the case of damage arising only out of loss of the product, this inequality in bargaining position becomes more pronounced. Warranties are easily disclaimed. Negligence is difficult, if not impossible, to prove. The consumer does not generally have large damages to attract the attention of lawyers who must handle these cases on a contingent fee. We feel that the consumer should be protected by affording a legal remedy which causes the manufacturer to bear the cost of its own defective products. By allowing a claim for strict liability in tort we are joining with the jurisdictions of New Jersey, Wisconsin, Michigan, Minnesota and Colorado in affording legal recourse to all victims damaged by defects resulting from the manufacturing process.”

198 Mont. at 466-67, 647 P.2d at 337.

In the instant case, we are confronted with a situation very similar to Thompson. The District Court found that the McJunkins failed to satisfy the elements of Section 402A, however. It provides:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
“(a) the seller is engaged in the business of selling such a product, and
“(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
“(2) The rule stated in Subsection (1) applies although
“(a) the seller has exercised all possible care in the preparation and sale of his product, and
“(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

The defendants contend that the McJunkins failed to establish that the mobile home was in a “defective condition unreasonably dangerous.” (Emphasis added.) Thus, the first question for determination is whether a plaintiff is required to show that the product is defective and also that it was unreasonably dangerous.

The dual test propounded by the commentaries to Section 402A of the Restatement (Second) of Torts has been criticized as “vague and very imprecise.” See Keeton, “Product Liability and the Meaning of Defect”, 5 St. Mary’s L.J. 30, 32 (1973).

“It is unfortunate perhaps that Section 402A of the Restatement (Second) of Torts provides that as a basis for recovery it must be found that the product was both ‘defective’ and ‘unreasonably dangerous’ when as a matter of fact the term ‘unreasonably dangerous’ was meant only as a definition of defect. The phrase was not intended as setting forth two requirements but only one . . .”

Keeton, 5 St. Mary’s L.J. at 32. Professor Keeton’s argument has merit. We agree with the drafters of the Uniform Products Liability Act that a modified approach is needed. The position taken in the commentaries is not consistent with the mandate of Brandenburger and Thompson. We have stated that this Court shall not blindly follow the dictates of the Restatement commentaries.

“We emphasize that this Court adopted the rule as set out in the Restatement, but we did not and do not intend the restraints in the comments to this rule to hamstring us in developing and refining the rule of strict liability. To the extent that the comments are helpful in our development of the law, we shall accept them; but we will reject them where we believe a more appropriate explanation of the rule of strict liability can be provided.”

Stenberg v. Beatrice Foods Co. (1978), 176 Mont. 123, 128-129, 576 P.2d 725, 729. We believe the central issue is whether the product is defective. We therefore chart a separate course.

In Rix v. General Motors Corp. (Mont. 1986), [222 Mont. 318,] 723 P.2d 195, 43 St.Rep. 1296, we distinguished a design defect from a manufacturing defect. Under a manufacturing defect theory, the central question is whether the product is flawed due to improper construction.

“ [Manufacturing defects, by definition, are ‘imperfections that inevitably occur in a typically small percentage of products of a given design as a result of the fallibility of the manufacturing process. A [defectively manufactured] product does not conform in some significant aspect to the intended design, nor does it conform to the great majority of products manufactured in accordance with that design.’ . . . Stated differently, a defectively manufactured product is flawed because it is misconstructed without regard to whether the intended design of the manufacturer was safe or not. Such defects result from some mishap in the manufacturing process itself, improper workmanship, or because defective materials were used in construction .... (Emphasis added.)

“In contrast, a design defect is one which ‘presents an unreasonable risk of harm, notwithstanding that it was meticulously made according to [the] detailed plans and specifications’ of the manufacturer. Thus, unlike manufacturing defects, design defects involve products which are made in precise conformity with the manufacturer’s design but nevertheless result in injury to the user because the design itself was improper.”

723 P.2d at 200, 43 St.Rep. at 1301-02.

Naturally, a product is defective if it is unreasonably dangerous. Rost v. C.F.&I. Steel Corp. (1980), 189 Mont. 485, 488, 616 P.2d 383, 385. The lack of a dangerous aspect does not automatically preclude a finding that the product is defective, however. As Thompson demonstrates, the Brandenburger rationale is equally appropriate in situations of purely economic loss without a finding of unreasonable danger.

We do not adopt a theory of absolute liability for all defects. As Rix indicates, in order for a product to be “defective” within the meaning of a manufacturing defect theory, the defect must be significant. Strict liability is not intended to replace a breach of contract action for minor defects. However, defining strict liability solely in terms of unreasonably dangerous does not adequately set forth the concept enunciated in Brandenburger. The proper test of a defective product is whether the product was unreasonably unsuitable for its intended or foreseeable purpose. If a product fails this test, it will be deemed defective.

In the instant case, the McJunkins failed to demonstrate the product was defective or unreasonably dangerous. The testimony of the experts indicated that the trailer was in fact habitable. Consequently, we find that the trailer was fit, suitable, and safe for its intended purpose i.e. a residence. We need not decide defendants’ contention that the McJunkins failed to plead strict liability.

Punitive Damages

The McJunkins contend that the District Court erroneously determined that “there’s insufficient proof to justify the giving of such an instruction.” We hold the District Court was correct.

At the time of trial, Section 27-1-221, MCA (1985), delineated when punitive damages were proper. It provides, in pertinent part:

“When exemplary damages allowed. (1) Subject to Subsection (2), in any action for a breach of an obligation not arising from contract where the defendant has been guilty of oppression, fraud, or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example and by way of punishing the defendant.
“(2) The jury may not award exemplary or punitive damages unless the plaintiff has proved all elements of the claim for exemplary or punitive damages by clear and convincing evidence. Clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence. It is more than a preponderance of evidence, but less than beyond a reasonable doubt.
“(3) Presumed malice exists when a person has knowledge of facts, intentionally avoids learning of facts, or recklessly disregards facts, knowledge of which may be proven by direct or circumstantial evidence, which creates a high degree of risk of harm to the substantial interests of another, and either deliberately proceeds to act in conscious disregard of or indifference to that risk or recklessly proceeds in unreasonable disregard of or indifference to that risk.
“(4) The plaintiff may not present, with respect to the issue of exemplary or punitive damages, any evidence to the jury regarding the defendant’s financial affairs or net worth unless the judge first rules, outside the presence of the jury, that the plaintiff has presented a prima facie claim for exemplary or punitive damages.
“(5) A defendant is guilty of oppression if he intentionally causes cruel and unjust hardship by:
“(a) misuse or abuse of authority or power; or
“(b) taking advantage of some weakness, disability, or misfortune of another person.”

We find that the McJunkins failed to demonstrate oppression, fraud, or malice, actual or presumed by clear and convincing evidence. At most, the McJunkins showed that the defendant’s repeated attempts to repair the defects were ineffective. We hold the District Court correctly refused to instruct on punitive damages.

Jury View

Prior to the time of trial, Ponderosa added furniture, drapes, and minor decorations to the mobile home in question. It is alleged that permitting the jury to view the proper in this altered state prejudiced the McJunkins’ case. We disagree.

The decision to permit or deny a jury view of the property in question is left to the sound discretion of the trial court. Section 25-7-401, MCA, provides, in pertinent part:

“When in the opinion of the Court, it is proper for the jury to have a view of the property which is the subject of the litigation . . ., it may order the jurors to be conducted in a body, under charge of an officer and one person representing each party . . .

The addition of furniture or minor cosmetic changes is not dispositive. It is generally held that even where there has been changes in the condition of the object of litigation, a jury view is still within the discretion of the court. Clark v. Worrall (1965), 146 Mont. 374, 379, 406 P.2d 822, 824. It is not an abuse of discretion to allow the jury to view the premises where the changes are not material. Clark, 146 Mont. at 379, 406 P.2d at 825. In the instant case, the changes were not material. We find the District Court did not abuse its discretion.

Negligence and Negligent Misrepresentation

Ponderosa contends that the District Court incorrectly refused to grant a directed verdict on the negligent misrepresentation claim. When deciding whether a motion for directed verdict is proper, a case should not be withdrawn from the jury if reasonable men may differ as to the conclusions drawn from the evidence. Solich v. Hale (1967), 150 Mont. 358, 435 P.2d 883. The evidence showed that Gusick told the McJunkins not to worry, that all the problems would be taken care of. The numerous problems were not in fact remedied. When the McJunkins complained about the problems and ineffective repairs, Ponderosa often answered it was K&B’s problem. We hold the issue was properly submitted to the jury.

Similarly, K&B contends that there was insufficient evidence to submit the negligence claim to the jury. We find K&B’s claim frivolous. It is not necessary to repeat the laundry list of defects which riddled the mobile home.

The judgment of the District Court is affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE McDONOUGH MR. JUSTICE SHEEHY,

license: Public Domain

text:
    DAVID L. CALDWELL, Claimant and Appellant, v. GREAT WESTERN SUGAR CO., and Hunt International Resources Corporation, Employer, and Uninsured Employers’ Fund, Defendant and State Compensation Insurance Fund, Defendant and Respondent.
    No. 87-203.
    Submitted on Briefs Aug. 13, 1987.
    Decided Dec. 10, 1987.
    746 P.2d 627.
    Whalen & Whalen, Timothy J. Whalen, Billings, for claimant and appellant.
    Allen B. Chronister, Agency Legal Services, Helena, for defendant and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

Claimant Caldwell appeals the Workers’ Compensation Court’s order dismissing his claim for benefits from the Uninsured Employer’s Fund. We affirm.

On May 5, 1983, Caldwell suffered an industrial injury while working at Great Western Sugar in Billings, Montana. Great Western, a self-insured employer, accepted liability for Caldwell’s injury and paid temporary total benefits until February 23, 1985. Subsequently, Great Western Sugar went bankrupt and benefits ceased.

After benefits ceased, Caldwell petitioned for coverage from the Uninsured Employers’ Fund. The Workers’ Compensation Court denied coverage holding that at the time of the injury and thereafter, the claimant’s employer was not an uninsured employer. The issue on appeal is whether the court properly dismissed the Uninsured Employers’ Fund.

The matter presented by this appeal concerns the court’s conclusion of law defining who is and when an employer is an uninsured employer within the meaning of the Uninsured Employers’ statute as applied to the Uninsured Employers’ Fund. We will decide this issue accordingly. Statutory construction must give proper effect to legislative intent. Here, the question concerns the purpose and function of the Uninsured Employers’ Fund. Hendy v. Industrial Accident Board (1944), 115 Mont. 516, 146 P.2d 324. At the time of the injury, the law called for liberal construction of the Workers’ Compensation statutes, Section 39-71-104, MCA (1981), however, this does not mean that the clear meaning of the statute can be ignored, Olson v. Manion’s Inc., (1973), 162 Mont. 197, 510 P.2d 6.

Section 39-71-508, MCA, provides that an employee is entitled to a claim against the Uninsured Employers’ Fund if he “suffers an injury out of and in the course of employment while working for an uninsured employer as defined in 39-71-501.” (Emphasis added). Uninsured employer is defined by Section 39-71-501, MCA, as “an employer who has not properly complied with the provisions of 39-71-401.” Section 39-71-401 requires that employers “shall elect to be bound by the provisions of compensation plan No. 1, 2 or 3.” When Caldwell was injured, Great Western Sugar was not an uninsured employer, it was properly enrolled under plan No. 1 and paid benefits for approximately two years. Clearly, Caldwell was not injured while working for an uninsured employer. Therefore, Caldwell is not eligible to have a claim against the Uninsured Employers’ Fund. We hold that the Workers’ Compensation Court properly interpreted the statutory law. Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and GULBRANDSON concur.

MR. JUSTICE SHEEHY,

dissenting:

The majority have selectively interpreted Section 39-71-401, MCA, regarding that portion of the statute which accords with their view of the case, and disregarding an equally applicable portion of the statute because it is troublesome.

Under Section 39-71-501, MCA, an “uninsured employer” means an employer who has not properly complied with the provisions of Section 39-71-401, MCA. Note that the definition refers to the whole of Section 39-71-401, and not merely to Subdivision (1) thereof.

The majority have relied on Subdivision (1) of Section 39-71-401, which provides in part:

“An employer who has any employee in service under any appointment or contract of hire, express or implied, oral or written, shall elect to be bound by the provisions of compensation plan number 1, 2 or 3 ... .”

However that is not the only duty placed upon employers under Section 39-71-401. It is provided in Subdivision (4) (a) of that statute as follows:

“(4) (a) A private corporation shall provide coverage for its officers and other employees under the provisions of compensation plan number 1 [self insurance], 2 [private insurer] or 3 [state fund insurance] ...” (Emphasis added.)

Great Western Sugar Company enrolled under plan number 1, a self insurer. It is a private corporation and so is bound by Subdivision (4) of Section 39-71-401. It has not provided coverage for its “other employees” as a self insurer as it is required to do under that Subdivision. Thus under Section 39-71-501, Great Western Sugar Company is an “uninsured employer” because it has not properly complied with the provisions of 39-71-401.

In Section 39-71-505, MCA, it is provided that with respect to uninsured employers, all appropriate provisions in the Workers’ Compensation Act apply to the fund in the same manner as they apply to compensation plan numbers 1, 2 and 3. Included in that command is the statute requiring liberal construction of the Workers’ Compensation Act in favor of the employee, a statute which was in effect at the time of this loss.

In Gidley v. W.R. Grace and Company (1986), [221 Mont. 36,] 717 P.2d 21, 43 St.Rep. 616, we had before us the Montana Occupational Disease Act (MODA). In that case, we determined that the rationale that applies to Workers’ Compensation cases applied to MODA, because both Acts involve the same employer/employee relationship and the same rules of liberal construction should apply. We should apply the same rules of liberal construction to this case and determine Caldwell in effect is in fact an employee of an “insured employer” because his employer has not provided coverage to him to the extent that he is entitled.

Liberal construction is not required in this case; literal construction is. Under 39-71-401(4)(a), MCA, a private corporation such as Great Western is required to provide coverage for its employees under some compensation plan. It has not complied with that provision. It is an “uninsured employer” under Section 39-71-501, MCA.

It is mere babble in this case to talk about the clear meaning of the statute, where literally and clearly Great Western is an uninsured employer. In the construction of a statute, the office of the Court is simply to ascertain and declare what is in terms or is substance contained therein, not to insert what has been omitted or to omit what has been inserted; where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. Section 1-2-201, MCA.

This Court is committing a grave error in denying this worker access to such benefits as may be available from the uninsured employer’s fund.

MR. JUSTICE HUNT concurs in the foregoing dissent.


author: MR. JUSTICE GULBRANDSON

text:
    EDWARD BOEHM, Plaintiff and Appellant, v. ALLEN NELSON, Wendell Lovely, George Ommundsen, Joe Kelsey, Defendants and Respondents.
    No. 87-189.
    Submitted on Briefs Oct. 29, 1987.
    Decided Dec. 22, 1987.
    747 P.2d 213.

      Edward Boehm, pro se.
    Utick & Grosfield, Dee Ann G. Cooney, Mike Garrity, Legal Counsel, Dept, of Revenue, Helena, for defendants and respondents.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

This case is an appeal of a motion to dismiss granted by the Sixth Judicial District Court, Park County. The District Court dismissed pro se plaintiff/appellant Edward Boehm’s (Boehm) complaint on grounds he failed to exhaust his administrative remedies prior to filing a claim in District Court against the Park County Tax Appeal Board and that the complaint failed to state a claim upon which relief could be granted. Boehm appeals the dismissal of his claim.

We affirm.

The issue we are faced with is whether the District Court erred when it granted defendants’ motion to dismiss Boehm’s claim.

On February 3, 1987, Boehm filed an unnamed document accompanied by twelve exhibits seeking punitive and compensatory damages. We will refer to this document as the complaint in this action. The complaint alleged in part that Boehm protested his tax appraisals and he was never given a hearing prior to the tax appeal board denying his claim. He named the tax appeal board members, Allen Nelson (Nelson), Wendell Lovely (Lovely), and George Ommundsen (Ommundsen) and the Park County appraisal supervisor, Joe Kelsey (Kelsey), claiming they had “. . . individually and jointly acted outside and contrary to their respective offices and legal duties prescribed by law and in bad faith . . .”

Defendants Nelson, Lovely and Ommundsen filed motions to dismiss on grounds the District Court lacked subject matter jurisdiction and Kelsey filed an answer asserting as an affirmative defense that the claim failed to state a claim upon which relief could be granted. On March 11, 1987, the District Court granted the defendants’ motions.

The rules for motions to dismiss are found in Rule 12, M.R.Civ.P. Specifically, in this case, defendants based their motions on Rule 12(b)(1) lack of jurisdiction over the subject matter and Rule 12(b)(6) failure to state a claim upon which relief can be granted. The motion to dismiss is always to be construed in a light most favorable to the non-moving party and should not be granted “[u]nless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Willson v. Taylor (Mont. 1981), [_Mont._,] 634 P.2d 1180, 1182, 38 St.Rep. 1606, 1608; Fraunhofer v. Price (1981), 182 Mont. 7, 12, 594 P.2d 324, 327. See also, Busch v. Kammerer (1982), 200 Mont. 130, 649 P.2d 1339.

“The standard of review is clear. In reviewing the propriety of an order granting a motion to dismiss, we repeat the oft-quoted rule that ‘. . . the allegations of the complaint must be viewed in a light most favorable to plaintiffs, admitting and accepting as true all facts well-pleaded.’ ”

Devoe v. Missoula County (Mont. 1987), [226 Mont. 372,] 735 P.2d 1115, 1116, 44 St.Rep. 731, 732.

On June 9, 1986, the tax appeal board received an appeal signed by Boehm. The document, in regards to his tax appraisal, stated: “[t]his is an absolute outrageous, ridiculous increase of ‘1445%’. The property is in the floodway and no one will buy it even at the old appraisal.” Boehm’s complaint alleges that he met with the Park County appraisal supervisor,, Kelsey, and was told that the figures were not erroneous. Upon further inquiry, Boehm was instructed that he needed to appear before the county tax appeal board. Boehm was informed by telephone that a hearing would be scheduled towards the end of September. When informed of the date, Boehm stated he could not attend due to an accident. After this, a number of telephone messages were missed between Boehm and the county.

On October 31, 1986, Nelson called Boehm and informed him that a tape recording was made explaining the calculations used in appraising his property. Boehm alleged in his complaint that he listened to the tape and that it was “superfluous.” The tape, included as part of the District Court record, explains how the appraiser, Kelsey, arrived at the valuations on Boehm’s properties. At the conclusion of the tape, Kelsey requested that if Boehm had problems with the appraisal that he should set up a time to meet with him. The tape concluded: “[t]his will be his [Boehm’s] responsibility to do this, and we will review it at that time.” The making of this tape in itself demonstrates the board’s willingness to deal fairly with Boehm.

Boehm alleged that he wrote a letter to Kelsey on November 12, 1986, demanding an answer to his complaint in writing. Kelsey responded and advised Boehm that his taxes were assessed according to a statewide manual. Kelsey further informed Boehm that he could set up an appointment and Kelsey would explain the appraisal to him. On December 5, 1986, Boehm again wrote to Kelsey and attached a copy of a letter from John D. LaFaver, Director of the Department of Revenue, that Boehm alleged said “[Kelsey] over-appraised three of my properties.” LaFaver’s letter stated:

“You recently received your 1986 property assessment. It reflected the 1986 reappraisal values.
“The June Special Session of the Montana Legislature asked us to be sure you understand your opportunity to appeal the new appraisal. The rights are particularly important to you because our records show that your property values increased more than the state-wide average.
“The attached fact sheet explains the increase in taxable value for your property.
“If you disagree with the appraisal, the Legislature has extended the appeal deadline to 15 days after you receive this notice.
“Our appraisal office in your county will be happy to explain how your values were determined. Please give them a call and set up a time to discuss your questions or concerns.”

This letter does not show that the State agreed that the taxes were improperly assessed. It merely informs Boehm that the local board was available for further explanation of the tax assessment. Boehm alleged that he received a letter on January 7, 1987, with attached copies of denials of his appeals signed by Allen Nelson. Only one of these documents is attached in the record. Nelson’s denial, property tax appeal form IA signed December 23, 1986, states that Boehm’s application for reduction in appraised value was disapproved. Nelson stated, “[a]fter many discussions and sending you the tape of the appraisal, and not getting the necessary response, we as a board has [sic] denied your appeal.” In regard to this denial, Boehm wrote another letter on January 10, 1987, requesting Nelson to explain who gave Nelson “. . . the authority that he assumed to deny any American citizen, and a tax paying resident of Park, Montana the right to appeal.” Boehm again requested a statement in writing only. Boehm alleged he was then contacted by a woman on behalf of Nelson and Boehm told her he needed a response in writing only. Boehm received a number of contacts from Dixie Dill at the county tax appeal board that he was to receive another hearing. On January 27, 1987, Dill sent Boehm a letter which stated:

“Your hearing with the Park County Tax Appeal Board has been set for Friday, February 6, 1987, at 11:00 a.m. in the Community Room of the City-County Building.
“Either you or a representative must be present at this hearing. This hearing will not be rescheduled.”

Boehm alleged that he received a call from Lovely on February 1, 1987, at 10:45 a.m. He alleged that Lovely told him that the Friday meeting needed to be rescheduled. Boehm replied that the board “[w]ould be hearing from me.” Boehm never appeared for the hearing. Instead, Boehm filed a complaint in District Court.

The above is a cursory outline of the allegations made by Boehm in his complaint. For these actions, Boehm claimed the county tax appeal board members and the Park County appraisal supervisor, abused their duties and acted in bad faith for which he requested $500 actual and $100,000 punitive damages. No appeal to the State Tax Appeal Board (STAB) was ever filed by Boehm.

Keeping in mind the standards we have enunciated in regard to a motion to dismiss, we hold that the District Court properly denied Boehm’s complaint in this case.

Article VIII, Section 7 of the 1972 Montana Constitution mandates:

“The legislature shall provide independent appeal procedures for taxpayer grievances about appraisals, assessments, equalization, and taxes. The legislature shall include a review procedure at the local government unit level.”

Section 15-7-102(5), MCA, gives STAB the power to hear tax appraisal appeals. Department of Revenue v. State Tax Appeal Board (1980), 188 Mont. 244, 247, 613 P.2d 691, 693. In Butte Country Club v. State (1979), 186 Mont. 424, 431-432, 608 P.2d 111, 116, we stated that it is clear that the legislature provided that the county tax appeal board furnishes the exclusive review procedure for any appraisal appeal.

“The statutory scheme enacted by the legislature allowing taxpayers to appeal assessments clearly shows a legislative intent that an appeal and review before the Local Board be a condition precedent to STAB review. This Court has determined that as a condition precedent to the reduction of the valuation of property, the taxpayer must appeal at the local level. See Barret v. Shannon (1897), 19 Mont. 397, 399-400, 48 P. 746. Further, this Court has determined that except in cases where fraud or the adoption of a fundamentally wrong principle of assessment is shown, an appeal to the Local Board is the exclusive remedy granted the taxpayer. Keller v. Department of Revenue (1979), 182 Mont. 478, 597 P.2d 736; Larson v. State (1975), 166 Mont. 449, 534 P.2d 854.”

Boehm has not alleged fraud which must be “. . . stated with particularity . . .” in the complaint. Rule 9(b), M.R.Civ.P.; Kinjerski v. Lamey (1979), 185 Mont. 111, 116-117, 604 P.2d 782, 785, appeal after remand 635 P.2d 566; Tschache v. Barclay (1977), 172 Mont. 415, 420, 564 P.2d 1299, 1302. Although Boehm claims “bad faith” on the part of the local tax appeal board and county assessor and their acting outside their duties, no facts alleged, even when read in a light most favorable to Boehm, support this claim. We support the District Court’s statement expressed in its explanatory comment attached to the order granting the motion to dismiss that Boehm “[a]lleges no facts to demonstrate [bad faith or acts outside the law], and his own exhibits defeat such claim.” ,

Boehm, just as any other citizen contesting local tax appeal board actions, must exhaust all administrative remedies provided. Title 15, Chapters 2, 7 and 15, MCA. The complaint filed by Boehm presents no challenge to the legality of the tax pursuant to Section 15-1-406, MCA. Devoe, supra, 735 P.2d at 1117. Boehm’s complaint merely sets forth a broad and ambiguous claim of bad faith and abuse of legal authority with no supporting facts. Section 15-1-402, MCA, sets forth the requisite actions Boehm could have taken, Boehm did not comply with these procedures.

We affirm.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, HUNT and McDONOUGH concur.


text:
    WILLIAM M. PERUSICH and Margery E. Perusich, Plaintiffs and Respondents, v. DAVID E. MEIER, Defendant and Appellant.
    No. 87-196.
    Submitted Oct. 16, 1987.
    Decided Dec. 22. 1987.
    747 P.2d 857.
    John L. Hamner, Butte, for defendant and appellant.
    Richardson & Richardson, George W. Richardson, Butte, for plaintiffs and respondents.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

In this action involving disputed ownership of land the District Court for the Second Judicial District, Silver Bow County, Montana, granted plaintiffs William and Margery Perusich (Perusichs) all right, title and interest in the disputed parcel of land. Defendant David E. Meier (Meier) appeals.

We affirm.

The issues presented by the parties can be addressed in one statement:

Whether there was sufficient evidence to allow the District Court to find the Perusichs had acquired all right, title and interest in the disputed property by adverse possession?

This case involves a land dispute between two Butte, Montana, neighbors over the ownership of land described as Tract Two on Certificate of Survey 224 (COS 224) and the southern portion of lots 19, 20, and 21 on Certificate of Survey 119B (COS 119B). The land lies within property claimed by Meier, who lives on lot 18, and the Perusichs, who own Tract One. This area is commonly known as the “Crosby” home and consists of 0.36 acres of a 160-acre patented Speir & Bauer Placer Mining Claim. The Perusichs purchased the property from the conservator of the estate of Mae Crosby in September, 1980. The Perusichs claim they and the previous “Crosbys” have been in uninterrupted possession of the home for more than twenty-five years. Evidence was presented that for over fifty years the Perusichs and their predecessors in interest, have occupied the land.

The Meier home and Crosby home are separated by a vacant lot. Both Tract One and Two have been fenced for approximately twenty-five years. The Perusichs, and before them, the Crosbys, had built and maintained improvements on Tract Two. After a trial was held September 4, 1986, the District Court determined the Perusichs had acquired title to Tract Two by adverse possession.

In August, 1982, the Perusichs had a survey, COS 224, prepared and filed. It shows the Crosby home semi-enclosed in a fence. The property is comprised of two parcels, Tract One and Tract Two and an undedicated alleyway. COS 224 was based on an unrecorded drawing entitled the “Rocker Townsite” of which the source and date are unknown. It is further unknown whether the Rocker Town-site originated from an actual survey. However, the Rocker Townsite was never formally dedicated and much of the property was acquired by squatters. Because no formal plat ever existed most of the property was described by metes and bounds.

Meier had COS 119B completed on December 6, 1978. According to 119B lots 19, 20 and 21, claimed by Meier, overlap the Perusichs’ land, described as Tract Two in COS 224, and it is this 30.74 feet-wide, 98.10 feet-long, piece of property which is in dispute. The Perusichs and previous owners maintained a fence around this property, including Tract Two and the alleyway, that was obvious to Meier, yet he never questioned their occupancy until the Perusichs commenced a quiet title action on November 8, 1985. Meier contends that the Perusich fence and buildings are encroachments as shown on COS 119B.

The title for the Speir & Bauer Placer Mining Claim for both surface and mineral interests was given by the United States government by original patent. A quiet title action was brought by the predecessors in interest in 1970 in which the court decree stated the mineral and surface interest was vested in Frank Benich and James Driscoll as Trustees for West Butte Development, the Anaconda Company, and the Butte, Anaconda and Pacific Railway Company. All of these parties were named in the Perusichs’ quiet title action and dismissed after execution of quitclaim deeds.

The Silver Bow County Assessor regularly assessed the Crosby property as lot 3, block 3 of the Rocker Townsite and included all of the improvements within the enclosure. Pat Callaghan (Callaghan), Supervisor of Delinquent Tax Sales for Silver Bow County, testified that Tract Two, as stated in COS 224, was included in lot 3 and was taxed to the Crosbys and later to the Perusichs. According to Callaghan’s notes and tax receipts, submitted as evidence, all tax assessments were paid by the Perusichs and Mae Crosby from 1978 through 1985. Further, the Perusichs presented the tabulation diagram used by the county assessor which showed that the tax valuation included all the improvements on Tract Two. Meier also paid taxes assessed against lots 15 through 23 of block 3 from 1978 through the trial date. The District Court stated in its findings of fact, paragraph 16, that Meier “[m]ay also have paid taxes on property which included Tract Two, but that such tax was improperly assessed . . . and did not include improvements thereon.” (Emphasis added.)

Meier testified that the Crosbys were in possession of the property when he moved to Rocker as a three-year-old in 1935. From the record, it is clear the Perusichs and their predecessors in interest have built fences surrounding the property and have made improvements on the land. Both parties exhibit color of title and submitted proof of payment of taxes.

The District Court, after consideration of evidence raised at hearing and supplemental evidence allowed to perfect the record, made the following paraphrased findings:

1. That the Rocker Townsite is an unrecorded plat that overlies portions of the Speir & Bauer Placer in Section 21 T3N R9W MPM Silver Bow County.

2. That Tracts One and Two constituted the Crosby home and were within the boundaries of the Speir & Bauer Placer and separated by an undedicated alleyway as described in COS 224 filed for record on August 13, 1981.

3. All surface rights in the Speir & Bauer Placer contained in Section 21 which were unconveyed by deed prior to February 20, 1970 are inferior to the titles of the Anaconda Company, Frank Benich and James Driscoll, as Trustees for West Butte and and Development, and the Butte, Anaconda and Pacific Railway Company by court decree, Cause No. 56-309.

4. The Perusichs continuously occupied Tracts One and Two from August 1981 through 1986 and that prior to that time, Steven J. and Mae Crosby had possession of the property well in excess of twenty-five years sufficient to confer title by prescription upon the Crosbys.

5. Tract One, Two and the alleyway were enclosed by woven wire fence and regularly assessed by the Silver Bow County Assessor under the incomplete designation of lot 3 of block 3 of the Rocker Townsite.

6. The Perusichs paid all taxes legally assessed and levied against Tracts One and Two and the alleyway under the erroneous designation of lot 3 block 3 of the Rocker Townsite for the years 1981 through 1985 and the Crosbys paid all taxes assessed and levied for the years 1976 through 1980.

7. The Perusichs acquired all claims of right, title and interest in Tracts One and Two by quitclaim deeds from: The Blue Bird Company, Atlantic Richfield, successors of the Anaconda Company, and the Butte, Anaconda and Pacific Railway Company; Rudy E. Endresse and Frank Benich, Trustees for West Butte Land and Development, and the Crosbys and that all of these parties were dismissed as defendants in the quiet title action.

8. The Perusichs and their predecessors held the property openly, notoriously and adversely and only Meier protested the quiet title action even though he was aware of the adverse possession as early as December 6,1978 when he had COS 119B done and was therefore estopped pursuant to Section 70-19-402, MCA.

9. That Meier may have also paid improperly assessed taxes on the property which included Tract Two.

The court decreed that the Perusichs were entitled to the entire title to surface rights of Tract Two by adverse possession.

We will uphold the District Court unless it is shown there was insufficient evidence to support the court and it abused its discretion in its determination:

“This Court will not overturn the findings of fact of a District Court where they are supported by substantial, though conflicting, evidence unless there is a clear preponderance of the evidence against the findings. State ex rel. Wilson v. Department of Natural Resources and Conservation of State of Montana, Water Resources Div. (1982), [199] Mont. [189], 648 P.2d 766, 772, 39 St.Rep. 1294, 1302. We view the evidence in the light most favorable to the prevailing party. Cameron & Jenkins v. Cameron (1978), 179 Mont. 219, 228, 587 P.2d 939, 944.

Burlingame v. Marjerrison (Mont. 1983), 204 Mont. 464, 665 P.2d 1136, 1139, 40 St.Rep. 1005, 1007.

In this case, the evidence supports the finding of the District Court that Perusichs adversely possessed the property at issue in this case.

The requirements to establish title by adverse possession have been addressed by this Court on numerous occasions. Castles v. Lawrence (Mont. 1983), 203 Mont. 421, 662 P.2d 509, 40 St.Rep. 545; Brannon v. Lewis & Clark County (1964), 143 Mont. 200, 387 P.2d 706. Section 70-19-407, MCA, states:

“When it appears that the occupant or those under whom he claims entered into the possession of the property under claim of title, exclusive of other right, founding such claim upon a written instrument as being a conveyance of the property in question or upon the decree or judgment of a competent court and that there has been a continued occupation and possession of the property included in such instrument, decree or judgment or of some part of the property under such claim for 5 years, the property so included is deemed to have been held adversely, except that when it consists of a tract divided into lots, the possession of one lot is not deemed a possession of any other lot of the same tract.”

For adverse possession to occur, property must be claimed under color of title or by actual, visible, exclusive, hostile and continuous possession during the statutory period of five years. Additionally, the party claiming adverse possession must also have paid the taxes on the property for the full statutory period pursuant to Section 70-19-411, MCA. Burlingame, supra, [204 Mont. 464,] 665 P.2d at 1139-1140; Swecker v. Dorn (1979), 181 Mont. 436, 441, 593 P.2d 1055, 1058.

It is clear from the record that the Perusichs and their predecessors had possession of the property in question. Section 70-19-408, MCA, defines possession as follows:

“(1) For the purpose of constituting an adverse possession by any person claiming a title founded upon a written instrument or a judgment or decree, land is deemed to have been possessed and occupied in the following cases:
“(a) where it has been usually cultivated or improved,-,
“(b) where it has been protected by a substantial enclosure . . .” (Emphasis added.)

The Perusichs presented evidence that showed the estate of Mae Crosby conveyed to them Tract One, Tract Two and the alleyway. Although there was conflicting evidence presented by Meier, the Perusichs still had legitimate “claim of title . . . upon a written instrument as being a conveyance.” The document, a quitclaim deed, was sufficient to create color of title. Sullivan v. Neel (1937), 105 Mont. 253, 73 P.2d 206. Further, there was no evidence that the conveyance was done without good faith.

“Adverse possession under color of title is possession based on a written instrument which purports to pass title but which in reality does not. The Court has stated:

“ ‘. . . for one who holds a land under a written instrument, a statute or a judgment or decree of court which appears to convey or confirm title, but does not do so in fact, holds under ‘color of title’; that is to say he holds by virtue of something which gives him a colorable title only . . .
“ ‘What is meant by color of title? It may be defined to be a writing upon its fact professing to pass title, but which does not do it, either from a want of title in the person making it, or from the defective conveyance that is used — a title that is imperfect, but not so obviously so that it would be apparent to one not skilled in the law.’ Morrison v. Linn (1915), 50 Mont. 396, 401-409, 147 P. 166, 168.
“Under Montana law, ‘An instrument which purports to convey land or the right to its possession is sufficient color of title as a basis for adverse possession if the claim is made in good faith.’ ” (Emphasis added.)

Joseph Russell Realty Co. v. Kenneally (1980), 185 Mont. 496, 503, 605 P.2d 1107, 1111.

Meier testified that he thought the Crosbys had always owned the property in question. He stated that the Crosbys built the sheds and improvements on the property and enclosed the area in a fence. He further stated that he did not know he was taxed on the disputed property until COS 119B was completed in 1978. However, even after he was aware that he may have had claim to the property, he made no effort to retrieve it.

We have held that a fenced enclosure is sufficient to satisfy the actual possession requirement under Section 70-19-408, MCA. Castles, supra, 662 P.2d at 590; Johnson v. Silver Bow County (1968), 151 Mont. 283, 286, 443 P.2d 6, 8, overruled on other grounds, Swecker v. Dorn (1979), 181 Mont. 436, 593 P.2d 1055, 1058. The establishment of the fence in this case clearly satisfies the enclosure requirements and this conclusion is further buttressed by the improvements made to the property. The improvements included a large shed, a smaller shed, referred to as a “doll house,” and a dog kennel.

The District Court found that the Perusichs and predecessors held the property “[o]penly, notoriously and adversely, as against all persons.” The evidence supports this finding. The fence and improvements are sufficient to satisfy this requirement. The holding was. open, it was not masked to deceive Meier. Both Perusichs and the Crosbys openly showed their intention of possessing Tract Two. Martin v. Randono (1978), 175 Mont. 321, 573 P.2d 1156, appeal after remand, 623 P.2d 959.

The property was held adversely and hostile to Meier’s interest. The Perusichs’ claim was adverse to the extent that Meier gave no privilege or license to them or their predecessors to possess Tract Two. Taylor v. Petranek (1977), 173 Mont. 433, 437, 568 P.2d 120, 122. Yet Meier acquiesced in the use, even after he was aware of a possible claim. The use by the Perusichs and their predecessors clearly put Meier on notice that they were adversely holding the land. This Court has defined “hostile” to mean “[a]n invasion of the owner’s possession by the claimant without the owner’s permission and in violation of the owner’s right of property.” Price v. Western Life Insurance Co. (1943), 115 Mont. 509, 514, 146 P.2d 165, 167. In Price, this Court also stated that “adverse” meant “having opposite interests, having interests for the preservation, of which opposition is essential.” Price, supra, 146 P.2d at 167. The land was held in violation of Meier’s interests once the Crosbys fenced and improved the area, even though he was unaware that he had an interest until 1978.

Finally, although it was contested and arguably proven by Meier that he also paid taxes on Tract Two, it was proven by the Perusichs that they, and the Crosbys prior to them, paid, not only the underlying property tax but also the tax on the improvements. Section 70-19-411, MCA, mandates that a claimant pay the taxes levied for adverse possession to occur:

“In no case shall adverse possession be considered established under this code unless it shall be shown that the land has been occupied and claimed for a period of 5 years continuously and the party or persons, their predecessors, and grantors have during such period paid all the taxes, state, county, or municipal, which have been legally levied and assessed upon said land.” (Emphasis added,)

This has generally been the aspect which bars most parties attempting to adversely possess land. Huggans v. Weer (1980), 189 Mont. 334, 336-337, 615 P.2d 922, 924. However, the Perusichs sufficiently proved that they and their predecessors paid all taxes for the mandated period and therefore satisfied this burden. Townsend v. Koukol (1966), 148 Mont. 1, 8, 416 P.2d 532, 537. The District Court appropriately mentioned that both parties may have paid the taxes on the property. However, not only did the Perusichs prove payment of all taxes, they also showed that they were the party that possessed the property in an open, notorious, hostile and adverse manner.

There was substantial credible evidence to support the District Court’s findings of fact, conclusions of law and decree.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, SHEEHY and McDONOUGH concur.


author: MR. JUSTICE WEBER

text:
    DELORES E. GUILD, Claimant and Appellant, v. BIGFORK CONVALESCENT CENTER and Northwest Horizons, Employers, and Rockwood Insurance Company, and Employee Benefits Insurance Co., Defendants and Respondents.
    No. 87-208.
    Submitted on Briefs Nov. 24, 1987.
    Decided Dec. 22, 1987.
    747 P.2d 217.

      Bothe & Lauridsen, David W. Lauridsen, Columbia Falls, for claimant and appellant.
    Garlington, Lohn & Robinson, E. Craig Daue, Missoula, Keller, Reynolds, Drake, Sternhagen & Johnson, William G. Sternhagen, Helena, for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Claimant Mrs. Guild appeals the decision of the Workers’ Compensation Court on her claim for temporary total disability benefits. Employee Benefits Insurance Co. (EBI) also appeals. We reverse and remand.

The issues raised by Mrs. Guild are:

1. Did the Workers’ Compensation Court err in failing to award Mrs. Guild temporary total disability benefits from Rockwood Insurance Company after August 16, 1985?

2. Did the court err in failing to find that Mrs. Guild had sustained a compensable hip injury on July 1, 1985?

3. Is Mrs. Guild entitled to an increase in her award for unreasonable delay or refusal to pay benefits, and is she entitled to costs and attorney fees?

EBI raises the issues of whether Rockwood Insurance Company is liable to EBI for 1) benefits paid by EBI during the pendency of this action, and 2) EBI’s attorney fees and costs.

In August 1983, Mrs. Guild suffered a back injury arising out of and in the course of her employment as a nurses’ aide at Bigfork Convalescent Home. The insurer, Rockwood Insurance Company (Rockwood), accepted liability and paid Mrs. Guild temporary total disability benefits for about ten days. Mrs. Guild then returned to work. She remained employed at Bigfork Convalescent Home until October 1984, when she found employment elsewhere.

On July 1,1985, while lifting a patient in the course of her employment at Northwest Horizons, Inc., Mrs. Guild suffered a second industrial accident. EBI was the insurance carrier. Mrs. Guild continued working her regular schedule until July 26, when she was unable to return to work. Her physician diagnosed her problem as abdominal muscular strain. On August 12, Mrs. Guild’s physician released her to return to work on August 20. In the meantime, on August 16, Mrs. Guild injured her back while sliding into her small car after watching a parade. She remained unable to work at the time of trial. Her condition has been diagnosed as the effect of a calcified bulging disk upon a nerve root. In the opinions of two physicians who have examined Mrs. Guild, the calcified bulging disk is a result of the 1983 industrial accident.

Beginning August 21, 1985, EBI paid Mrs. Guild temporary total disability benefits retroactive to the date of her abdominal muscular injury and until October 1986. On October 17, 1986, the Workers’ Compensation hearing examiner ordered that Rockwood assume responsibility for temporary total disability benefits until this matter was finally adjudicated. The hearing examiner ruled that in the event EBI were eventually determined to be the insurer on risk, Rockwood would be reimbursed.

After the hearing, the Workers’ Compensation Court concluded that Mrs. Guild was entitled to temporary total disability benefits from EBI for the period from July 1, 1985, to August 16, 1985. It ruled that Mrs. Guild was not entitled to disability benefits from either defendant for her August 16, 1985, parade injury, but instructed Mrs. Guild and Rockwood to reach a settlement on the question of whether Mrs. Guild is entitled to permanent partial disability benefits. It ordered that the temporary total disability benefits paid by Rockwood to Mrs. Guild during the pendency of this action be credited toward those permanent partial benefits, if any. It denied Mrs. Guild an increase in award for unreasonable delay or refusal to pay benefits, and denied her claim for costs and attorney fees.

I

Did the Workers’ Compensation Court err in failing to award Mrs. Guild temporary total disability benefits from Rockwood Insurance Company after August 16, 1985?

Mrs. Guild argues that her present disability is a result of aggravation of her pre-existing injury from her first industrial accident. She asserts that this entitles her to benefits from Rockwood from the date of the parade incident until she reaches maximum healing.

Mrs. Guild cites Rightnour v. Kare-Mor, Inc. (Mont. 1987), [225 Mont. 187,] 732 P.2d 829, 44 St.Rep. 141. The claimant in Rightnour had suffered an industrial injury to her lower back. A settlement was negotiated, with the claimant reserving medical benefits. Claimant subsequently reinjured her back, not in the course of her employment. Notwithstanding the fact that the reinjury occurred outside claimant’s employment, the Workers’ Compensation Court ordered claimant’s medical expenses paid from the medical benefits reserved from the compensable injury. We affirmed.

Rockwood states that this case is governed by Belton v. Carlson Transport (Mont. 1983), 202 Mont. 384, 658 P.2d 405, 40 St.Rep. 158. In that case, we held that a traumatic event or unusual strain which aggravates a pre-existing compensable injury may be a compensable injury. We also held that the carrier at risk at the time of the first compensable injury is liable for benefits up to the point of maximum healing. Rockwood says that in this case there was maximum healing from both the first and second injuries, so that Rock-wood is no longer liable for total disability benefits.

The Workers’ Compensation Court found that Mrs. Guild’s first industrial injury confined her to bed for a week with “excruciating” pain in her back. It found that Rockwood paid temporary total disability benefits for this injury. The court found that Mrs. Guild returned to work fulltime, and it is undisputed that she resumed her normal work activities. The court found that Mrs. Guild’s subsequent abdominal muscular injury did not create any change in her back condition. The court further found that Mrs. Guild testified that in the parade incident, “a pain shot through her lower back similar to the 1983 pain.” It then found that Mrs. Guild’s doctor testified that Mrs. Guild’s 1983 low back injury was aggravated by the August 16, 1985, parade incident, the last medical evidence submitted, the court found, was that Mrs. Guild had not yet reached maximum healing from the parade incident. It also found that one physician testified Mrs. Guild will not be able to return to work as a nurses’ aide because she will never be able to lift. These findings would support a conclusion that Mrs. Guild is entitled to temporary total disability benefits from Rockwood following the parade incident.

However, the Workers’ Compensation Court concluded that “the medical evidence supports the conclusion that the claimant reached maximum healing when she successfully returned to work at the Bigfork Convalescent Home and defendant Rockwood Insurance Company is not liable for temporary total disability benefits after August 22, 1983.”

In this unusual case, the parade incident was not a separate injury, but a triggering event relating back to Mrs. Guild’s 1983 injury. The court’s conclusion is inconsistent with its findings listed above. We hold that under the law of Montana, the fact that a claimant has reached maximum healing does not eliminate the employer’s future liability for temporary total disability benefits where, as here, a subsequent non-employment related event causes aggravation of the first injury. Such a case is not comparable to a case where there is a second industrial injury covered by workers’ compensation. We remand to the Workers’ Compensation Court for reconsideration consistent with this opinion.

II

Did the court err in failing to find that Mrs. Guild had sustained a compensable hip injury on July 1, 1985?

Mrs. Guild testified that she had hip and radiating leg pain following her July 1, 1985, industrial injury but before the August 16, 1985, parade incident. She argues that EBI is responsible for benefits for that injury.

The medical testimony relied upon by Mrs. Guild is Dr. Stephen’s deposition testimony, which was based on a hypothetical question. His testimony was that the presence of such pain would “make me feel it was probable” that she aggravated the lower back condition on July 1, 1985. He also stated, though, that the date on which she started having hip problems would make a difference:

“If it was, you know, within a few days of the 7/1/85,1 would think that like I said it would be probable. If it was several weeks later, we would be back to the possible range again.”

Mrs. Guild did not complain to her doctor of hip and leg pain until July 26, almost four weeks after her compensable injury.

The Workers’ Compensation Court did not enter a finding or conclusion on Mrs. Guild’s hip pain. We conclude that the evidence that this hip pain was related to her compensable abdominal muscular injury is not sufficient to put the lower court in error.

Ill

Is Mrs. Guild entitled to an increase in her award for unreasonable delay or refusal to pay benefits, and is she entitled to costs and attorney fees?

The first of these claims is based on Rockwood’s failure to promptly forward to EBI a letter it received from Mrs. Guild’s physician. Mrs. Guild indicates that she has been needlessly forced to prosecute a claim against both insurers because of this failure. She claims an entitlement to a 20% penalty under Section 39-71-2907, MCA.

We have reviewed the letter at issue, and conclude that it does not constitute the type of evidence which could serve as a basis for a finding of unreasonable delay or refusal to pay justifying a penalty under Section 39-71-2907, MCA. The letter does not set forth a medical opinion or diagnosis, but merely relays Mrs. Guild’s belief that her back problem is related to her 1983 industrial injury.

Mrs. Guild also argues that she is entitled to costs and attorney fees under Section 39-71-612, MCA. The claim for costs and attorney fees is based on the erroneous proposition that “[t]he Court has found that Rockwood is liable for Claimant’s temporary total disability benefits after August 16, 1985.” This was not true, as stated above. However, the lower court is directed to reconsider this issue on remand.

IV

Is Rockwood Insurance Company liable to EBI for 1) benefits paid during the pendency of this action, and 2) EBI’s attorney fees and costs?

EBI claims that this Court’s opinion in Belton v. Carlson Transport (Mont. 1983), 202 Mont. 384, 658 P.2d 405, 40 St.Rep. 158, entitles EBI to indemnity from Rockwood for benefits paid by EBI after the second injury reached maximum healing. The claimant in Belton was injured twice, with each accident occurring under a different insurer for purposes of workers’ compensation. We held in Belton that it was the duty of the insurance company at risk at the time of the accident to pay benefits until liability was resolved. Belton, 658 P.2d at 410.

“If it is later determined that the insurance company on risk at the time of the accident should not pay the benefits, this insurance company, of course, has a right to seek indemnity from the insurance company responsible for the benefits already paid out to the claimant.”

Belton, 658 P.2d at 410.

If on remand the Workers’ Compensation Court rules that Rockwood is responsible for temporary total or permanent partial benefits for Mrs. Guild, it appears that Rockwood is liable to EBI for benefits paid during this action and for EBI’s attorney fees. We conclude that this must be considered on remand.

We reverse the decision of the Workers’ Compensation Court, and remand for further proceedings in accordance with this opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, HUNT, McDONOUGH, SHEEHY and GULBRANDSON concur.


author: MR. JUSTICE HUNT

text:
    In the MATTER OF T.J.F., Respondent.
    No. 87-333.
    Submitted Dec. 3, 1987.
    Decided Dec. 22, 1987.
    Rehearing Denied Jan. 26, 1988.
    747 P.2d 1356.
    Terry L. Seiffert, Billings, for appellant.
    Mike Greely, Atty. Gen., Betsy Brandborg argued, Asst. Atty. Gen., Helena, Harold Hanser, Co. Atty., Curtis Bevolden, Deputy Co. Atty., Billings, for respondent.
    Allen Smith, Jr., for Mental Disabilities Bd. of Visitors, Warm Springs, for amicus curiae.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

A youth, T.J.F., appeals from an order of the District Court, Thirteenth Judicial District, County of Yellowstone, committing him to continued treatment of up to 3 months to Rivendell of Billings, Inc., a lock-up treatment facility for mentally disturbed youths. The Legal Services Program of Warm Springs has filed an amicus brief. The youth, T.J.F., has been discharged from custody and we therefore dismiss this case on the grounds of mootness.

Appeal dismissed.

We cannot let this case be dismissed without commenting on the facts that gave rise to this appeal. The appellant has alleged serious procedural errors committed by the State. The commitment procedure is governed by Section 53-21-101, et seq. MCA. These statutes are clear and must be strictly adhered to. Although we do not pass upon the validity of the appellant’s claims today, we will not hesitate to do so in future cases where there are allegations of procedural abuses, whether moot or not.

Issues of the appellant are as follows:

1. Did the District Court err by not dismissing the petition for commitment on grounds of procedural defect?

2. Was there sufficient evidence to find that T.J.F. was mentally ill to a reasonable medical certainty?

3. Was there sufficient evidence to find that T.J.F. was a danger to himself or others?

4. Did the District Court err when it based its order on a medical report not in evidence?

The appellant, T.J.F. was committed to the Rivendell facility for mentally disturbed youths on April 13, 1987. T.J.F. is a 12 year old male. On July 1, 1987, a petition for extension of commitment was filed by the deputy county attorney. Because the petition was not filed within the statutory time frame, appellant made a motion to dismiss on procedural grounds at the hearing. This motion was never ruled on but on July 8, 1987, the deputy county attorney filed a petition for commitment supported by a June 23 medical report by T.J.F.’s psychiatrist, Dr. Newman. T.J.F. again made a motion to dismiss because no request for commitment had been filed as required by statute and because the appellant had not been advised of his rights prior to the June 23 exam. The District Court ordered that a psychiatrist examine T.J.F. No examination was ever given pursuant to this order.

Without ruling on the motion to dismiss (which went unopposed by the State), the court held a hearing. John Kiendrowski, a certified mental health professional at Rivendell, testified that through his daily contact with T.J.F., he felt that T.J.F. was seriously mentally ill and believed that if placed back in his home he would be dangerous to younger children owing to a past history of abuse. Kiendrowski is neither a psychiatrist nor a psychologist but holds a degree in personnel guidance. No personal evaluation of T.J.F. was made nor was any report written. Kiendrowski testified that he concurred with Dr. Newman’s June 23 report. The report, however, was never introduced into evidence and Dr. Newman did not testify. Kiendrowski further testified that T.J.F. had not been violent while at Rivendell but had made threats about getting back at people.

The Court ordered that T.J.F. be committed and attached Dr. Newman’s June 23 report to its findings of fact. It is from this order that appellant appeals.

It is unnecessary to address the appellant’s arguments because we hold that the case before us today is moot. Moot questions may not be addressed by this court. State ex rel. Miller v. Murray (1979), 183 Mont. 499, 503, 600 P.2d 1174, 1176. We defined a moot question in Murray as “one which existed once but because of an event or happening, it has ceased to exist and no longer presents an actual controversy”. 600 P.2d at 1176. A case will become moot for the purpose of an appeal “where by a change of circumstances prior to the appellate decision the case has lost any practical purpose for the parties, for instance where the grievance that gave rise to the case has been eliminated ...” 5 Am.Jur.2d, Section 762, Appeal and Error (1962).

Since this action arose, T.J.F. has been released from the Rivendell facility. There is no longer any actual controversy.

Dismissed on grounds of mootness.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY, WEBER, McDONOUGH and GULBRANDSON concur.


author: MR. JUSTICE HARRISON

text:
    In re the MARRIAGE OF BARBARA LEE MITZEL (KRAMER), Petitioner and Respondent, and DICK WAYNE KRAMER, Respondent and Appellant.
    No. 87-334.
    Submitted on Briefs Oct. 22. 1987.
    Decided Dec. 22. 1987.
    747 P.2d 865.

      Brad L. Arndorfer, Billings, for respondent-appellant.
    Nye & Meyer, Jerrold L. Nye, Billings, for petitioner-respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Dick and Barbara Kramer were divorced in 1979. As part of the decree of dissolution, they entered into a property settlement and child custody agreement. Dick Kramer now appeals a District Court decision that the portion of that agreement that reads: “Husband will deliver free of charge one (1) beef a year to Wife” is a division of property, not a provision for maintenance. Barbara Kramer, in turn, appeals the value the District Court assigned for Dick Kramer’s failure to provide the beef from 1981 through 1986. The issue raised is “Where’s the Beef.” We affirm in part and reverse in part.

This current dispute was brought to court after three of the four children of the marriage left the mother’s home to live with their father. It also arose after Barbara Kramer had remarried. The provision in the original agreement dealing with child support has been modified to reflect that three of the four sons now live with Dick Kramer. That part of the dissolution decree is not now in dispute. What is in controversy is Dick Kramer’s assertion that the one-beef-a-year provision is in the nature of maintenance and so terminated once Barbara Kramer remarried in September of 1982.

The District Court held a hearing on December 11, 1986. It ruled on January 2, 1987 that the disproportionate division of marital property under the property settlement agreement required the one-beef-a-year provision be considered a division of property. Under the original property settlement, Dick Kramer had retained the ranch property near Pompey’s Pillar, Montana, and Barbara Kramer received her various personal effects as well as a down payment from Dick Kramer on a trailer home. Further, Dick Kramer was to pay one-half of the monthly payments on Barbara Kramer’s new home until she remarried. The court concluded:

“That the respondent [Dick Kramer] is presently indebted to petitioner in an amount representing the reasonable value of one (1) cut, wrapped, frozen and delivered beef each year for the years of 1981 through 1986, plus interest. If the parties are unable to reach an agreement as to such reasonable value, this court will schedule a hearing and make findings to that effect.”

Dick Kramer requests that we reverse the District Court’s ruling that the one-beef-a-year provision was a division of property. This we will not do; the District Court was correct in its ruling. Dick Kramer asserts four reasons that the beef provision should be considered maintenance. First, he notes that although he did not contest the dissolution, it was Barbara Kramer’s attorney who drafted the agreement and so under Section 28-3-206, MCA, any ambiguity in that agreement must be read against Barbara Kramer. Second, he claims it was clearly erroneous for the District Court to consider the property settlement disproportionate since the family ranch he received was burdened with debt. He argues next that this beef provision is not division of property because the transaction will continue until one of the two parties dies and no time certain exists for termination. Lastly, he says the District Court’s analysis wreaks havoc on other divorces in the farm and ranch community that contain similar provisions.

The District Court has far-reaching discretion in the division of marital property and its judgment will not be reversed without a showing of clear abuse of discretion. In Re the Marriage of Rolfe (Mont. 1985), [216 Mont. 39,] 699 P.2d 79, 83, 42 St.Rep. 623, 626. A court abuses its discretion only when it acts arbitrarily without employment of conscientious judgment or exceeds the bounds of reason causing substantial injustice. Marriage of Rolfe, 699 P.2d at 83; In Re the Marriage of Jensen (Mont. 1986), [223 Mont. 434,] 727 P.2d 512, 515, 43 St.Rep. 1891, 1893; In Re the Marriage of Hamill (Mont. 1987), [225 Mont. 263,] 732 P.2d 403, 406, 44 St.Rep. 220, 222. Where an appellant fails to prove either arbitrariness or excess in judicial exercise, we will uphold the District Court since we presume the judgment of the District Court is correct. Marriage of Jensen, 727 P.2d at 515.

On December 11, 1986, the court heard testimony from both parties to the dissolution. This exchange occurred while Barbara Kramer was testifying:

“Q. [By Mr. Nye] When the property of the marriage was divided, what portion of the property did you get?
“A. I got $3,000.00 down on a mobile home, and a dresser, and stereo, and the T.V., and some of the things like sheets and towels and such.
“Q. What happened to the ranch property and equipment and all of that?
“A. Dick got all of that, because he said that if I fought for any of the farm that the kids wouldn’t be able to farm. So that was the way we arranged it. And we agreed to that, that he would have the farm and help the boys get started farming.
“Q. In your understanding was the providing of a beef animal part of the property settlement?
“A. I would say yes.

Dick Kramer testified that he had not provided beef or money in lieu of beef since 1980 because he and his former wife had agreed to end that provision. He testified, in part, as follows:

“Q. [By Mr. Nye] Do you have proof of that agreement?
“A. No, I don’t.
“Q. Was it written?
“A. No.
“Q. Was it oral?
“A. Yes.
“Q. Was there any witnesses?
“A. No.
“Q. What were the terms of the agreement?
“A. I talked to her about being the boys were now with me, three of them, that I couldn’t afford it. Farming was bad. I asked her if I could not have to give [the beef]. And there was an argument. And she agreed to it. And that was the last time she asked for it.

He added that the beef provision “was a maintenance thing. That is what her lawyer had said to me;” and that he has received the bulk of the marital property, but “[t]here wasn’t much to give.”

The District Court found that Dick Kramer was obligated to deliver free of charge one beef per year, that he had failed to do so for the years 1981-1986, and that there was insufficient evidence to show that the parties had agreed to end that obligation. Its conclusion that the provision represents a property settlement was based on “the disproportionate distribution of marital property under the parties’ property settlement agreement . . .” The court’s findings were based on the evidence placed before it; its conclusions of law stemmed from those findings and are not arbitrary nor do they exceed the bounds of reason. This Court neither retries questions of fact, nor does it reverse District Court findings that are based on substantial evidence. In Re the Marriage of Hilt (Mont. 1984), [209 Mont. 140,] 679 P.2d 783, 787, 41 St.Rep. 604, 609. Thus, we affirm the District Court’s decision that this provision divided marital property.

The parties were unable to agree on the reasonable value of the undelivered beef. Barbara Kramer surveyed various meat markets. She then submitted a claim for $5,625. She calculated that a 500 to 600 pound carcass at $1.35 per pound for “choice” cuts would cost between $675 and $810. Thus, she placed a value of $750 a beef, multiplied it by six years and added 10 percent interest. Dick Kramer, meanwhile, made a non-negotiable offer to “settle all past, present, and future beefs that would supposedly be owed” for $3,000.

The court heard testimony on the valuations on April 2, 1987. On April 20, 1987, it ordered Dick Kramer to pay Barbara Kramer $2,530.68 for the six missed deliveries. The court dismissed Barbara Kramer’s figures because “it was the intent of the parties to have the respondent [Dick Kramer] butcher and process one of. his own beef animals . . . Petitioner’s figures are too high because they are based on current retail meat market prices.” Instead the court assumed a 550 pound carcass and used U.S. Department of Agriculture commodity figures for 1981 through 1986. Its calculations were:

$61.35 (average of commodity figures for 1981-1986 per hundred weight) multiplied by 5.50 (pounds) equals $337.43 (average value of animal to Respondent per year).
$337.43 x 6 years = $2,024.58
Interest: 10% of $337.43 = $33.74 per year.
1981 5 years x 33.74 = 168.70
1982 4 years x 33.74 = 134.96
1983 3 years x 33.74 = 101.22
1984 2 years x 33.74 67.48
1985 1 years x 33.74 33.74
1986 0 years x 33.74 = 0
TOTAL INTEREST = $506.10
$2,024.58 (value of animal to Respondent for 6 years)
+506.10 (total interest)
$2,530.68 TOTAL AMOUNT DUE

Barbara Kramer asks that we vacate the order valuing her claim at $2,530.68. The valuation is an abuse of discretion. The terms of the property settlement dictate that she was to receive one beef each year “free of charge” from her former husband. Such was reiterated by the District Court in its first set of findings when it said Barbara Kramer was due “the reasonable value of one (1) cut, wrapped, frozen and delivered beef each year . . .” In its calculations it then used figures that purport to represent the cost of beef on the hoof to Dick Kramer, not the value of butchered meat to Barbara Kramer. Such a valuation appears to charge Barbara Kramer for the cutting and wrapping. The District Court must provide reasons for its valuation. Marriage of Rolfe, 699 P.2d at 83; In Re the Marriage of Glass (Mont. 1985), [215 Mont. 248,] 697 P.2d 96, 101; 42 St.Rep. 328, 332; In Re the Marriage of Wolfe (1983), 202 Mont. 454, 459, 659 P.2d 259, 262. It stated its reason as being that the parties intended Dick Kramer to butcher one of his own animals for delivery to Barbara Kramer. However, for six years Dick Kramer did not make such deliveries.

In a property dispute, the District Court may assign any value that is within the range of figures presented into evidence. In Re the Marriage of Johnston (Mont. 1986), [223 Mont. 383,] 726 P.2d 322, 325, 43 St.Rep. 1808, 1812; In Re the Marriage of Reich (Mont. 1986), [222 Mont. 192,] 720 P.2d 286, 288, 43 St.Rep. 1167, 1169. The District Court’s value of $337.43 per delivery of beef is not supported in the record. Dick Kramer’s own testimony shows that his animals were worth considerably more:

“Q. [By Mr. Arndorfer] When you got these figures that are listed on Defendant’s Exhibit A, did you use them then to determine what you could have sold a steer for, 800 or 900 pound steer for each year?
“A. Yes.
“Q. Could you tell us what it would have cost, or what that steer was worth in 1981?
“A. 1981, it would have been worth $540.00.
“Q. 1982?
“A. Five hundred sixty-seven dollars.
“Q. 1983?
“A. Five hundred fifty-eight dollars.
“Q. 1984?
“A. Five hundred ninety-four dollars.
“Q. 1985?
“A. Five hundred thirty-one dollars.
“Q. 1986?
“A. Five hundred four dollars. In 1987, $594.00.
“Q. Do you have a total of what that would cost you?
“A. Three thousand eight hundred eighty-eight dollars.”

Defendant’s Exhibit A is a U.S. Department of Agriculture statement showing live-weight prices from which the court ultimately derived its figures for the value of butchered meat. The court, though, did not need to attempt such a calculation as Dick Kramer already had testified on the basis of those figures. He had testified that even in the worst year his steer would have been worth $504, not the $337.43 assigned by the court. He also testified that the total value for six years of undelivered beef would cost him $3,888 (not including interest), not the $2,530.68 (including interest) assigned by the court.

The court’s figures are mistakenly low. This is because the court assigned a value based on live-weight prices to the butchered beef. We vacate the order of April 20, 1987 and remand the question of the value of the beef to the District Court for reevaluation in light of this opinion.

Affirmed in part, reversed in part.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HUNT, McDONOUGH and SHEEHY concur.