author: Chief Justice Turnage s/J.A. Tumage, Chief Justice s/John Conway Harrison, Justice s/John C. Sheehy, Justice s/WiUiam E. Hunt, Sr., Justice s/Diane G. Barz, Justice s/Fred J. Weber, Justice

text:
    LAWRENCE E. SPELDRICH, Petitioner, v. JACK McCORMICK, Warden, Respondent.
    No. 90-102.
    Decided June 7, 1990.
    794 P.2d 339.
    Lawrence E. Speldrich, pro se.
    Marc Racicot, Atty. Gen., for respondent.
   ORDER AND OPINION

Chief Justice Turnage

delivered the Opinion of the Court.

Lawrence E. Speldrich has filed in this cause a petition for writ of habeas corpus in which he states that he is seeking restoration of good time but is not appealing his sentence or conviction in this petition. Jack McCormick, Warden, has filed his response admitting that petitioner is in his custody at Montana State Prison in Deer Lodge, Montana, and further contending that petitioner is not entitled to a writ of habeas corpus. Counsel for Mr. McCormick contends that the Legislature has changed the Montana statutes in such a manner that there is no good time credit earned on a suspended sentence and that petitioner therefore is not entitled to any good time.

By order dated August 5, 1985, the District Court of the Seventh Judicial District for Richland County entered its judgment on plea of guilty and order suspending sentence. Petitioner was found guilty of the offense of aggravated assault, a felony and was sentenced to five years in Montana State Prison, with the further provision that all five years of the sentence were suspended upon described conditions. After an appropriate petition, by order and judgment dated December 4, 1989, the same District Court ordered that the defendant’s suspended sentence of August 5, 1985 was revoked and vacated. The District Court thereupon ordered that the defendant was sentenced to five years in Montana State Prison with two years suspended upon certain conditions. The District Court stated that the reason for the sentence was because of the seriousness of the crime committed by the defendant and the violations of probation.

This Court was concerned whether there was any limitation upon the power of the District Court to reimpose the original five-year sentence after completion of four and one-half years of the suspended sentence. The Attorney General of the State of Montana was ordered to respond to that question.

Having reviewed the response by the Attorney General, and relevant statutory and case law, this Court concludes that the District Court had jurisdiction to revoke the suspended sentence and to impose the original sentence of five years with two years suspended.

In the revocation and resentencing the District Court made no reference to sec. 46-18-201, MCA, which provides:

“46-18-201. Sentences that may be imposed. (1) Whenever a person has been found guilty of an offense upon a verdict or a plea of guilty, the court may:
“(a) defer imposition of sentence, excepting sentences for driving under the influence of alcohol or drugs, for a period, except as otherwise provided, not exceeding 1 year for any misdemeanor or for a period not exceeding 3 years for any felony. The sentencing judge may impose upon the defendant any reasonable restrictions or conditions during the period of the deferred imposition. Reasonable restrictions or conditions may include:
“(b) suspend execution of sentence up to the maximum sentence allowed for each particular offense. The sentencing judge may impose on the defendant any reasonable restrictions or conditions during the period of suspended sentence. Reasonable restrictions or conditions may include any of those Usted in subsections (l)(a)(i) through (l)(a)(xi).
“(3) If any restrictions or conditions imposed under subsection (l)(a) or (l) (b) are violated, the court shall consider any elapsed time and either expressly allow part or all of it as a credit against the sentence or reject all or part as a credit and state its reasons in the order. Credit, however, must be allowed for jail time already served. ” (Emphasis added.)

This statute has been frequently amended by the legislature and apparently sometimes overlooked by the ¿strict courts. Under this statute the District Court was required to consider elapsed time and state its reasons for either expressly allowing or rejecting the elapsed time as credit against the sentence. In all revocation hearings we suggest that the county attorney shall call this section to the attention of the court before whom the county attorney appears.

IT IS ORDERED:

1. The petition for writ of habeas corpus is denied because Mr. Speldrich has failed to set forth any basis for granting habeas corpus.

2. This case shall be remanded to the District Court for compHance with the above-mentioned statute. The order of the District Court does not indicate that it considered this specific section. We therefore consider it appropriate to remand in order that the District Court may consider the statute and take such action as it deems advisable.

3. Copies of this order shall be mailed or dehvered to the Attorney General of the State of Montana; Lawrence E. Speldrich; Jack McCormick, Warden; and the Honorable Dale Cox.

DATED this 7th day of June, 1990.

s/J.A. Tumage, Chief Justice

s/John Conway Harrison, Justice

s/John C. Sheehy, Justice

s/WiUiam E. Hunt, Sr., Justice

s/Diane G. Barz, Justice

s/Fred J. Weber, Justice

JUSTICE R. C. McDONOUGH did not participate.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    YELLOWSTONE VALLEY PROPERTIES, a Montana General Partnership, Petitioner and Appellant, v. The BOARD OF REALTY REGULATION, DEPARTMENT OF COMMERCE, STATE OF MONTANA, Respondent and Respondent.
    No. 89-603.
    Submitted on Briefs April 19, 1990.
    Decided June 20, 1990.
    794 P.2d 341.

      James C. Reuss, Wright, Tolliver & Guthals, Billings, for petitioner and appellant.
    Mary Anne Simpson, Dept, of Commerce, Helena, for respondent and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Yellowstone Valley Properties, a Montana general partnership, appeals the refusal of the Thirteenth Judicial District, Yellowstone County, to review a decision of the Board of Realty Regulation. The Board ruled that Yellowstone Valley Properties could not recover from the real estate recovery account for an unsatisfied judgment against one of its partners arising from the sale of the partnership’s property. We affirm.

Yellowstone Valley Properties raises the following issues:

1. Whether the Board of Realty Regulation erred in denying Yellowstone Valley Properties’ application for payment from the real estate recovery account on the grounds that the transactions upon which the Yellowstone Valley Properties’ judgment was based were not ones for which a real estate license was required.

2. Whether as a matter of public policy the recovery account should extend to the acts of a licensed real estate agent notwithstanding the fact that the agent committed defalcations in selling land of which he is deemed an owner.

The facts of this case are not in dispute. Yellowstone Valley Properties [hereinafter YVP] is a general partnership under the laws of Montana engaged in the business of owning, subdividing, developing and selling real estate in the Billings, Montana, area. Kenneth Lee Eames was the managing general partner of YVP holding a power of attorney authorizing him to act for the partnership in property sales. Between August 1981 and September 1986, Eames committed numerous acts of fraud and conversion in the sale of YVP property causing substantial loss to the partnership. As a result of those acts, YVP won a civil judgment against Eames for $166,850, but YVP was unable to execute that judgment. YVP then applied to the Board of Realty Regulation [hereinafter Board] for the maximum $25,000 payment from the real estate recovery account. The Board denied the claim, and the District Court denied YVP’s petition for judicial review.

The only question here is a question of law. An agency’s conclusion of law arises to a reversible abuse of discretion when it is clearly contrary to legislative intent. City of Billings v. Billings Firefighters Local No. 521 (1982), 200 Mont. 421, 431, 651 P.2d 627, 632.

On YVP’s first issue, the plain language of the relevant statutes leaves no doubt that the Board correctly rejected YVP’s application. Subject to a number of restrictions not relevant to the present issue, a person may file a claim against the recovery account for unrecoverable judgments based on “any act or transaction ... for which a license is required under this chapter...” Section 37-51-503(1), MCA. The definition of “person” as used in the real estate licensing statutes includes a partnership. Section 37-51-102(8), MCA. Thus a partnership such as YVP is entitled to file against the recovery fund. However, at the time this case arose, a person was statutorily exempted from the licensing requirement when selling his own property. Sections 37-51-301(1) and -103(l)(a), MCA (1985). A partner, such as Eames, is a co-owner of the partnership’s property. Section 35-10-502(1), MCA. As an owner of the property sold in the fraudulent transactions, Eames’s actions were not subject to the real estate licensing requirements and, therefore, were not subject to the recovery account.

On the second issue, YVP relies heavily on Twite v. Western Sur. Co. (1978), 176 Mont. 286, 577 P.2d 1219. In Twite the plaintiffs purchased property from the defendant, a licensed real estate agent. The defendant held himself out as an agent of a real estate company even though he was covertly selling his own property. At the time of the sale, the defendant was in default on the contract for deed under which he held title to the property. This Court held that under the public policy of the Real Estate Licensing Act, the plaintiffs were entitled to recover from the defendant’s bonding company notwithstanding the Act’s licensing exemption for owners selling their own property.

YVP now argues that Twite controls the present case. Like the present statutes, the law governing Twite provided an exemption from the real estate licensing requirements for owners selling their own property. Section 66-1926(1), RCM (1947). In Twite, this Court refused to rely on the owner exemption because it would contravene public policy when a licensed real estate agent committed fraud in the sale of his own property.

“The fact that a person can sell his own property without being in violation of the Real Estate Act, for failure to purchase a real estate license, does not lend itself to the proposition that a licensed real estate salesman is relieved of his responsibility under section 66-1937, merely because he has taken property into his name before defrauding a purchaser. This would render the Act a nullity. Furthermore, it will stand without discussion that this kind of arrangement would be strictly against public policy, which is to protect the public from unscrupulous and insolvent real estate agents and brokers.”

Twite, 176 Mont, at 289, 577 P.2d at 1221.

We agree with the Board that Twite is distinguishable; it was decided under a standard which the legislature has since changed. The law at that time allowed recovery against a real estate agent’s $10,000 bond for acts, ‘‘arising in the course of the [agent’s] practice as a real estate broker or salesman.” Section 66-1933, RCM (1947). The plaintiffs in Twite recovered on the defendant’s bond because the defendant led the plaintiffs to believe that they were dealing with a bonded real estate salesman. Twite, 176 Mont, at 290-91, 577 P.2d at 1221-22. His acts, therefore, fell within his practice as a real estate salesman.

The current standard is different. The 1985 Legislature replaced the bonding requirement with the recovery account and changed the standard of recovery. Act approved May 9, 1985, ch. 688, sec. 5, 1985 Mont. Laws 1537, 1539-40. The statute now allows a person to file against the recovery account for judgments based on the ‘‘conversion of trust funds or arising directly out of any act or transaction.. .for which a license is required under this chapter....” Section 37-51-503(1), MCA (emphasis added). As noted above, no license is required, or recovery allowed, when the act complained of arises out of the sale of property owned by the seller.

YVP argues that, as a matter of public policy, the owner exemption should not apply to licensed brokers and salesmen. YVP correctly asserts that the current owner exemption may be contrary to the public policy concerns expressed in Twite. It may allow real estate brokers and salesmen to circumvent licensing requirements by simply purchasing the property they plan to transfer. As an unintended consequence, the owner exemption would also partially defeat the purposes of the recovery account. See e.g. Richards v. Income Realty and Mortgage, Inc. (Colo. App. 1982), 654 P.2d 864, 866.

The problem raised by the appellant may give the legislature reason to reconsider the current licensing provisions and, in fact, it may have already acted. The 1989 Legislature amended the licensing exemption for persons acting as attomeys-in-fact to correct a similar problem. The Legislature found

‘‘that there is a potential use of the attomey-in-fact exemption by certain persons on a regular or consistent basis, thereby allowing those persons to avoid license requirements and negating adequate safeguards to the public ...”

Act approved March 20, 1989, ch. 180, 1989 Mont. Laws 386, 386-87. The 1989 Legislature also passed an amendment which might affect all exemptions to the licensing requirements. It replaced the obligatory “shall” in the exemption statute with the permissive “may.” Act approved March 24, 1989, ch. 314, sec. 2, 1989 Mont. Laws 669, 670. Presumably, this change will give the Board some discretion in adopting rules and granting exemptions in the future.

Though the 1989 Legislature may have reacted to the policy considerations presently raised by YVP, those concerns do not give this Court authority to retroactively amend the statutes. When, as here, the words used are unambiguous, this Court is bound by the plain meaning of the statutes. Boegli v. Glacier Mountain Cheese Co. (Mont. 1989), 238 Mont. 426, 777 P.2d 1303, 1305, 46 St.Rep. 1389, 1391. We hold with the District Court that the Board did not abuse its discretion in refusing to accept YVP’s application for funds from the recovery account.

Affirmed.

JUSTICES HARRISON, WEBER, HUNT and McDONOUGH concur.


author: JUSTICE WEBER

text:
    JOAN M. GRIFFITH, as Guardian of the minor children of Charles Paul Griffith; and Joan M. Griffith, individually, Plaintiffs and Respondents, v. MONTANA POWER COMPANY, a corporation, Defendant and Appellant.
    No. 89-383.
    Submitted on Briefs May 16, 1990.
    Decided June 26, 1990.
    794 P.2d 692.

      Richard Ranney, Shelton C. Williams, Williams Law Firm, Missoula, for defendant and appellant.
    Kenneth H. Grenfell, McChesney, Grenfell & Ogg, Missoula, Ben Everett, Knight, Dahood, McLean & Everett, Anaconda, for plaintiffs and respondents.
   JUSTICE WEBER

delivered the Opinion of the Court.

After trial in the District Court of the Twentieth Judicial District, Sanders County, the jury returned a verdict in favor of defendant, Montana Power Company (MPC). Plaintiffs moved the District Court for a new trial based on irregularities in the proceedings which prevented a fair trial and an error in law at the trial. The District Court granted plaintiffs a new trial and defendants appeal. We affirm.

The sole issue for our consideration is whether the District Court erred in granting plaintiffs a new trial?

Certain agreed facts were read as true to the jury prior to trial. They may be summarized as follows: MPC entered into a contract with Williams Construction Company, Inc. (Williams), to replace a pole and certain power distribution lines owned by MPC near a bridge crossing the Clark Fork River approximately 4 miles east of Paradise, Montana. Charles Paul Griffith (Mr. Griffith), was employed by Williams as a lineman on the Clark Fork River crossing project. The crews were working to string new lines across the river. While Mr. Griffith was working with other members of the crew to raise a new distribution line, the line became hung up in the river. Mr. Griffith was working from the surface of the bridge. Tim Smith, an MPC employee, was assisting the Williams crew by driving a pickup truck which was used to pull the new lines into position. Richard Hewitt, the Williams crew foreman, was located on the pole on the west side of the river. A1 Whitaker, another Williams lineman, was on the pole on the east side of the river crossing. Whitaker attached a tag fine connected to a brass hook to the conductor which was caught in the river, and Mr. Griffith then took the tag line to the bridge and used it to pull the conductor tree from the obstruction in the river. At some point the conductor contacted an energized portion of the distribution line, became energized, and Mr. Griffith was electrocuted. He fell from the bridge, and died of his injuries.

The evidence established that the tag line which Mr. Griffith was using to free the conductor was nonconducting polypropylene, and was not the path through which electricity entered his body. None of the other crew members were eye witnesses to the manner of electrocution. Mr. Griffith had electrical burn marks on both hands, and there were apparently corresponding burn marks on the conductor. In addition, Mr. Griffith had burn marks on both knees. MPC contends that the physical facts show that after the new conductor was freed by means of the tag line, Mr. Griffith pulled the conductor towards himself, and after it had become energized on coming into contact with the 7200 volt phase, he placed his hands on it.

Plaintiff, Joan M. Griffith, acting individually, and as guardian of her three minor children, brought this action against MPC based on alleged negligence. Plaintiffs contended that MPC owed Mr. Griffith and the Williams line crew a duty to provide a safe place to work pursuant to secs. 50-71-201, 202 and 203, MCA (1985). They contended such duty was breached when MPC failed to exercise reasonable care and to take proper precautions surrounding the work on the project. Plaintiffs also maintained that MPC retained substantial control and right to control Williams on this project and that MPC negligently exercised that control. Plaintiffs farther contended that such duty was nondelegable and therefore any negligence of Williams was to be imputed to MPC. They maintain that MPC knew or should have known that the kind of work the Williams crew was doing created a “peculiar risk” of physical harm to individuals unless special precautions were taken. Plaintiffs sought damages for loss of society, comfort, consortium, contribution to support, education and training, and emotional distress as well as other expenses.

MPC denied any negligence on its part. It contended that Williams, acting as an independent contractor, retained control of its employees. In MPC’s proposed pre-trial order, it summarized its contentions:

[t]he sole cause of Mr. Griffith’s tragic accident was his inexplicable conduct in pulling the conductor to him, placing his hands on it, while his knees were against the steel bridge rail, and continuing to pull the wire to the point that it contacted the energized south phase. Mr. Griffith’s conduct violated the work rules agreed upon by the Williams crew, and violated various OSHA and NESC rules and requirements, all of which were well known to Mr. Griffith as a result of his education, training and experience as a journeyman lineman. The conduct of Mr. Griffith was unforeseeable to his foreman Dick Hewitt, to Williams Construction Co., Inc., and to the Montana Power Company, and it was the sole cause of his death.”

MPC further contended that the Occupational Safety and Health Review Committee conducted a detailed investigation and concluded that there were no OSHA violations and that the sole cause of the incident was the ‘ ‘unforeseeable and idiosyncratic behavior’ ’ of Mr. Griffith. MPC concluded that Mr. Griffith’s own negligence barred or reduced any recovery for damages.

Prior to trial plaintiffs moved the District Court to prohibit any mention at trial of the OSHA Administrative Law Judge’s (ALJ) findings of fact, conclusions of law and judgment, as well as Department of Labor charges against Williams, and the absence of OSHA and Montana Public Service Commission’s citations to MPC.

MPC contended that the ALJ’s findings, conclusions and judgment should be admitted as an exception to the hearsay rule under Rule 803(24), M.R.Evid. The District Court granted plaintiffs’ motion to prohibit any reference to the ALJ’s findings, conclusions and judgment, stating:

“It is the opinion of this Court that Plaintiffs’ motion to prohibit mention of the OSHA ALJ’s Findings of Fact, Conclusions of Law and the absence of MPSC and OSHA citations to Montana Power Company should be granted. However, if Plaintiffs call experts to testify as to the violation of certain OSHA standards, the Court will allow the introduction of evidence of the OSHA hearings. ” (Emphasis added.)

During plaintiffs case-in-chief, their expert was not questioned and did not testify about OSHA. However, on cross-examination, defense counsel asked the expert whether there were any violations of the OSHA standards. Plaintiffs objected to such questioning, but were overruled. MPC questioned the plaintiffs’ expert at length with regard to the OSHA standards.

During trial MPC referred to OSHA a number of times. MPC also submitted a number of instructions with regard to OSHA regulations. At the conclusion of the trial the jury returned a verdict for MPC. Plaintiffs then moved for a new trial. The motion was granted and MPC appeals.

Did the District Court err in granting plaintiffs a new trial?

The District Court has sound discretion to grant a new trial and it will not be overturned absent a showing of manifest abuse of discretion. Stanhope v. Lawrence (Mont. 1990), [241 Mont. 468,] 787 P.2d 1226, 47 St.Rep. 438.

On appeal, MPC contends that the jury could not have understood this case without reference to OSHA since OSHA provides the standard of care the linemen should use in this case. MPC maintains that since violations of safety standards are evidence of negligence, then compliance with the safety standard is evidence of no negligence. It contends the District Court did not err in admitting the OSHA evidence or in subsequently instructing the jury on OSHA standards.

Plaintiffs contend that under the court’s ruling, as reemphasized a number of times in the course of conferences between counsel and the court, plaintiffs’ conduct was severely limited. In substance plaintiffs argue they were prohibited from questioning their experts on possible violations of OSHA in the course of direct examination. Plaintiffs’ expert, on direct examination, testified only to violations of the National Electric Safety Code (NESC). It was only on cross-examination that he made any reference to OSHA. Plaintiffs contend this effectively eliminated any opportunity on their part to present evidence of OSHA violations; while effectively allowing MPC to present evidence of OSHA compliance.

At the request of MPC the District Court gave a number of instructions on OSHA. Plaintiffs contend that the instructions together with the OSHA evidence allowed as to MPC, and the limitation upon evidence as to the plaintiffs, prejudiced their case. We agree with the District Court’s conclusion that there was such prejudice.

As mentioned, the District Court effectively prohibited plaintiffs’ examination of their own expert on OSHA, and yet allowed MPC to cross examine the same expert on OSHA. The instructions given by the court included Instruction #18 which read:

“Plaintiffs’ Decedent, Charles Paul Griffith, was bound to comply with applicable provisions as established by the Occupational Safety & Health Administration (OSHA) and applicable provisions of the NESC. If you were to find that he violated an applicable provision of the OSHA standards, you would consider that to be evidence of his negligence. If you were to find that he violated an applicable provision of the NESC, you would find that that constitutes negligence as a matter of law. Such negligence is of no consequence unless it acted as a cause of the accident in question.”

Instructions #29 and #30 instructed the jury on specific OSHA provisions. Instruction #32 read:

“The requirements of the Occupational Safety & Health Act apply to Williams Construction Co., Inc. and its employees, including Plaintiffs’ Decedent, Charles Paul Griffith. The OSHA code does not apply to the Montana Power Company in connection with the activities involved in the present action unless you find Montana Power vicariously liable for the Williams Construction Co., Inc. if any. [sic]”

In the order and opinion granting plaintiffs’ motion for a new trial the District Court stated its reasons as follows:

“It is the Court’s opinion that the Court committed error with respect to the OSHA evidence. This Court had previously granted the Motion in Limine prohibiting mention of the OSHA AJLJ’s Findings of Fact, Conclusions of Law and Judgment. Plaintiffs’ counsel was advised that if he introduced evidence of OSHA violations, Defendant would then be allowed to introduce evidence of the OSHA findings. When Plaintiffs’ expert was called to testify, no questions asked of him were directed to OSHA on direct examination. However, on cross-examination, Defense Counsel asked the witness whether there were any violations of the OSHA standards. Plaintiffs’ counsel objected to this line of questioning, arguing that it should not be allowed given the Court’s ruling on the Motion in Limine. The Court overruled the objection and later issued instructions as to compliance with OSHA regulations.”

The court later stated that it had committed error in giving any instructions with regard to OSHA. We agree that the District Court properly granted a new trial and conclude there was no abuse of discretion. The effect of the court’s rulings, including instructions, was to deny the plaintiffs an opportunity to present any evidence of OSHA violations by MPC or by Williams for which MPC could be held vicariously liable. On the other hand, the effect was to allow MPC to present its theory of compliance with OSHA together with extensive reference to OSHA regulations, to their obvious benefit. We hold that the District Court did not err in granting plaintiffs a new trial.

Without ruling upon the same, we make the following comments. Under Runkle v. Burlington Northern (1980), 188 Mont. 286, 303-4, 613 P.2d 982, 992-93, and similar cases, it would appear that evidence of the OSHA regulations and direct evidence of the breach of the same or compliance with the regulations, would be admissible.

Affirmed.

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

JUSTICE BARZ did not participate.


text:
    JOHN CLEVELAND BENJAMIN, Petitioner and Respondent, v. JACK McCORMICK, Warden, Montana State Prison, Respondent and Appellant.
    No. 89-182.
    Submitted on Briefs March 22, 1990.
    Decided May 8, 1990.
    792 P.2d 7.

      Marc Racicot, Atty. Gen., Robert F.W. Smith, Asst. Atty. Gen., Helena, for respondent and appellant.
    John S. Forsythe, Forsyth, for petitioner and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The State of Montana appeals a writ of habeas corpus issued by the Third Judicial District Court, Powell County, ordering the warden of the Montana State Prison to release prisoner John Benjamin on parole. The District Court found that Benjamin did not fully understand the consequences of his guilty plea when the sentencing court, prosecuting attorney, and defense attorney represented that he would be incarcerated approximately one year under the terms of his plea bargain agreement, but the sentence and agreement required completion of a two-year sexual offender program. We affirm.

ISSUES

The State raises three issues:

1. Did the habeas corpus court err in not enforcing the petitioner’s plea bargain agreement as written?

2. Did the sentencing court err by representing that the petitioner would be incarcerated for approximately one year when the court had no authority to guarantee probation?

3. Did the habeas corpus court err in finding that the petitioner’s plea of guilty was not made voluntarily and knowingly?

FACTS AND PROCEDURE

This case presents an unusual set of circumstances. Under the terms of a plea bargain agreement, John Benjamin pled guilty to deviate sexual conduct in violation of § 45-5-505, MCA, and possession of a dangerous drug in violation of § 45-9-102, MCA. The Sixteenth Judicial District Court sentenced Benjamin to the Montana State Prison for ten years with five years suspended on the first count and for one year on the second count to run concurrently. The sentence included nondangerous offender designation and enrollment in the sexual offenders program.

Prior to accepting the guilty plea, the District Court elicited Benjamin’s statement providing factual support for the plea. The court also carefully questioned Benjamin to establish that he voluntarily pled guilty and that he fully understood his rights and the effect of his plea.

At the time of sentencing, the court stated:

‘ ‘And, of course, if you don’t know, in Montana, a ten year sentence, five suspended, nondangerous criminal, you will serve, actually serve, somewhere around a year, give or take a few days one way or the other. And the sentence, of course, will recommend a treatment program.”

After one year in prison, Benjamin was denied parole and petitioned the sentencing court for a writ of error coram nobis. The court denied the writ holding that it had no jurisdiction to modify the sentence. In its opinion, the court stated:

“Defendant entered into a plea bargain agreement which provided, among other things, that the defendant would enroll in a sexual offenders program while serving his sentence in the state prison. It was the belief of the court, defense counsel and the county attorney that the defendant would serve about a year in the prison. At the time of sentencing, the Court did not know that attendance in the sexual offender program in the prison would enhance defendant’s sentence by more than a year.”

Benjamin then petitioned the court for a writ of habeas corpus on the same grounds, and the court transferred the petition to the court of appropriate jurisdiction.

The Third Judicial District Court, Powell County, granted the petition and ordered Benjamin’s release on parole. The court found that Benjamin did not fully understand the consequences of his plea when entered or during sentencing because the sentencing court, the prosecuting attorney, and his defense counsel had all represented that he would serve only one year in prison. Following his release, the State of Washington re-incarcerated Benjamin for violating his parole from a previous sentence for sexual offenses. The State now appeals the habeas corpus court’s decision.

We will address two preliminary arguments before reaching the determinative issue in this case.

PLEA BARGAIN ENFORCEMENT

The parties argue for specific enforcement of different terms of the plea bargain agreement. Their contentions, however, fail to consider the current state of the law. In State v. Cavanaugh, this Court overturned a plea bargain sentence when the district court failed to inform the defendant that he would not be eligible for parole. Cavanaugh (1983), 207 Mont. 237, 240, 673 P.2d 482, 484. We held that, ‘ ‘the trial judge, who accepts a plea but rejects any other portion of the plea bargain, [is required] to afford the defendant the opportunity to withdraw his guilty plea and enter a plea of not guilty. ’ ’

Cavanaugh, 207 Mont, at 243, 673 P.2d at 485.

The 1985 Legislature revised § 46-12-204, MCA, the statute governing plea bargain agreements. Act approved April 23, 1985, ch. 606, § 2, 1985 Mont. Laws 1278, 1279. The statute now clearly delineates the effect of plea bargain agreements.

‘ ‘A plea bargain agreement is an agreement between a defendant and a prosecutor that in exchange for a particular plea the prosecutor will recommend to the court a particular sentence. A judge may not participate in the making of, and is not bound by, a plea bargain agreement. If a judge does not impose a sentence recommended by the prosecutor pursuant to a plea bargain agreement, the judge is not required to allow the defendant to withdraw a plea of guilty.”

Section 46-12-204(3)(a), MCA.

Under the present law, the sentencing court was not a party to the bargain and was not subject to its terms. The enforceability of the bargain is, therefore, not an issue.

GRANTING PROBATION

The Attorney General argues that by telling Benjamin that he would be paroled in one year, the sentencing court usurped the authority of the Board of Pardons by guaranteeing probation. The Attorney General overstates his position.

First, a fair reading of the sentencing court’s statement in light of the surrounding circumstances does not indicate that the court intended to guarantee Benjamin’s parole. The court certainly knew that Benjamin’s parole eligibility depended on numerous factors beyond its control. As the sentencing court later stated, it merely intended that the sexual offender program would not extend Benjamin’s incarceration beyond the normal one-year incarceration before parole eligibility for a ten-year sentence.

Second, the Board of Pardons does not have exclusive authority to grant parole. Section 46-23-104(1), MCA, only gives the Board statutory authority to establish regulations and grant parole subject to the restrictions set out in § 46-23-201, MCA. When a district court finds for a petitioner on a writ of habeas corpus, it too may order parole under its authority to enter “such supplementary orders as to reassignment, retrial, custody, bail, or discharge as may be necessary and proper.” Section 46-22-306, MCA.

VOLUNTARY AND KNOWING PLEA

The primary issue in this case is whether Benjamin voluntarily and knowingly entered his plea of guilty. Before accepting a guilty plea, the sentencing court must determine that the plea is ‘ ‘voluntary with an understanding of the charge,” § 46-12-204(2), MCA, and the court must inform the defendant of “the consequences of his plea ... ,” § 46-16-105(l)(b), MCA. The law does not require the sentencing court to educate the defendant on all aspects of the relevant law before accepting a guilty plea. However, when the guilty plea is based upon a fundamental mistake or misunderstanding as to its consequences, the sentencing court, at its discretion, may allow the defendant to withdraw the plea.

“A change of plea will be permitted only if it fairly appears the defendant was ignorant of his rights and the consequences of his act, or he was unduly and improperly influenced either by hope or by fear in making the plea, or if it appears the plea was entered under some mistake or misapprehension. Each case must be examined on its own record. The motion rests within the District Court’s discretion and the exercise of that discretion will not be disturbed absent an abuse of discretion. ’ ’

State v. Mesler (1984), 210 Mont. 92, 96, 682 P.2d 714, 716 (Citation deleted).

In this case, Benjamin’s guilty plea was based on error. Both the sentencing court and the habeas corpus court found that Benjamin was misinformed as to the consequences of his plea. The record contains sufficient evidence to establish that the sentencing court, prosecutor and defense counsel all apparently failed to recognize that the sexual offender program lasted two years and assured the defendant that he would be incarcerated for only one year.

The usual remedy for a guilty plea that is not voluntarily or knowingly made is to allow the defendant to withdraw the plea. In this case, however, the habeas corpus court exercised its discretion to order Benjamin’s release on probation. The court has the discretion to determine whether withdrawal of a guilty plea is appropriate, § 46-16-105(2), MCA, and to issue orders implementing its decision for the petitioner, § 46-22-306, MCA. As the court noted, withdrawal of the plea and further legal proceedings would not have been appropriate in this case. Benjamin never asked the court to withdraw his plea or claimed that he was not guilty. He argued only that he should have been released after one year as the sentencing court intended.

We hold that, on the facts of this particular case, the District Court did not abuse its discretion in releasing Benjamin on parole on the grounds that he did not have an adequate understanding of the consequences of his guilty , plea.

Affirmed.

JUSTICES HARRISON, SHEEHY, McDONOUGH and WEBER concur.


author: JUSTICE SHEEHY

text:
    In the Matter of the ESTATE OF RALPH M. ELLISON, Deceased.
    No. 89-605.
    Submitted April 5, 1990.
    Decided May 8, 1990.
    792 P.2d 5.
    Carl A. Hatch, Small, Hatch, Doubek & Pyfer, Helena, for appellant.
    Leonard H. McKinney, William E. Berger, Wilkins and Berger, Lewistown, for respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Appellants, Nora Jean Scott, Gary Ellison, Larry Ellison, Scott Ellison and Pat Ellison appeal from an order of the Tenth Judicial District, Fergus County, construing the terms of the Will of Ralph M. Ellison. We affirm the District Court’s order.

Appellants raise one issue on appeal: Whether the District Court erred in construing the phrase “tax-free municipal bonds” found in the decedent’s Will?

Ralph M. Ellison, a resident of Lewistown, Montana, died August 19, 1988. On August 31, 1988, his Will was admitted to probate by the Fergus County District Court. The Will provides the following in Paragraph II:

“I have invested money in tax-free Municipal Bonds. I give, devise and bequeath one-half of all Municipal Bonds that I own at the time of my death to SCOTT ELLISON, GARY ELLISON, LARRY ELLISON, PAT ELLISON and NORMA JEAN SCOTT, in equal shares, share and share alike. I direct that any inheritance tax attributable to any of these people is to be paid by them from their individual bequests.”

The remaining one-half of the tax-free Municipal Bonds passed to Erma M. Ellison, his surviving spouse, as part of the rest, residue and remainder of the estate under Paragraph IV:

“I give, devise and bequeath all of the rest, residue and remainder of my property of whatever nature, kind or description, whether real, personal or mixed, wheresoever situated, belonging to me or in which I am possessed, or to which I may have an interest, or to which I may be entitled at the time of my death, to my wife, ERMA M. ELLISON.”

Ralph Ellison was a knowledgeable investor, with a large portfolio of municipal bonds, mutual funds and trusts. The estate’s Schedule B Inventory and Appraisement list sets forth 60 such investments. The question arises, “What did Ralph Ellison intend by using the term ‘tax-free Municipal Bonds?’ Everyone concerned with the estate agrees that items 1-45 on the estate’s inventory list are tax-free bonds issued by various local government units of the state of Montana. However, with regard to items 50-60 of the estate’s inventory list there is no agreement between the devisees. Those are securities found with names or designations other than municipal bonds, but which have some, though not all, of the characteristics of municipal bonds. They represent municipal obligations, but are not free of Montana inheritance tax, though they are of federal estate tax.

Accordingly, the personal representative filed a petition requesting the District Court to construe the language “tax-free Municipal Bonds.” After a full hearing on the matter, the District Court issued its order on November 13, 1989, concluding that items 50-60 on the inventory list are not “tax-free Municipal Bonds” to be distributed under paragraph II of the Will. The beneficiaries named in paragraph II, Scott Ellison, Gary Ellison, Larry Ellison, Pat Ellison and Nora Jean Scott, who under the court’s construction of the Will have been deprived of a total of $125,499.63, appeal the District Court’s order.

I.

Whether the District Court erred in construing the phrase ‘ ‘tax-free municipal bonds” found in the decedent’s Will?

The nieces and nephews contend that items 50-60 in the inventory list have the character of tax-free municipal bonds, are for all practical purposes municipal bonds, and therefore, 50 percent of the-bonds should pass to them. In contrast, Erma Ellison, feels that these items, although having some characteristics attributable to tax-free municipal bonds, are in fact different from tax-free municipal bonds and should be distributed according to the Will’s residuary clause.

This Court must determine: 1) If the items 50-60 on the inventory list are tax-free; and, 2) whether those securities fall under the definition of “municipal bonds.”

The testator specifically stated that the securities devised in paragraph II of his Will must be “tax-free.” It is clear from reviewing the record that items 50-60 of the estate’s inventory list are not tax-free. Larry Van Afta, Ralph Ellison’s stockbroker and investment counselor, testified that these securities were only partially tax-free. Unlike the securities in items 1-45, which were income tax-free both under federal law and Montana law, items 50-60 were exempt only from federal income tax. The appellants agree the securities are income tax-free only under federal law, but continue to argue that the testator still intended items 50-60 to be devised as tax-free municipal bonds under paragraph II of his Will. It is well settled that intention of a testator, as expressed in his Will, controls the legal effect of his disposition. Section 72-2-501, MCA; In re the Estate of Delong (Mont. 1990), [242 Mont. 214,] 788 P.2d 889, 47 St.Rep. 496, 498; in re the Estate of Erdahl (Mont. 1981), [_Mont._,] 630 P.2d 230, 231; State Fish & Game Comm’n v. Keller, etc. (1977), 173 Mont. 523, 526, 568 P.2d 166, 168. The facts are inescapable, the Will states tax-free municipal bonds, not partially tax-free municipal bonds. Thus, we adopt the District Court finding that items 50-60 are only partially tax-free, and therefore fail to meet the intention of the the testator as set forth in Paragraph II of his Will.

Even if we consider fixed items 50-60 as tax-free, the securities fail to qualify as Municipal Bonds. Van Atta, at the hearing, described the following principle characteristics of municipal bonds.

“QUESTION: Can you tell me and the Court, what is the principle characteristic of a municipal bond?
“ANSWER (MR. VAN ATTA): A municipal bond would be a bond issued by a municipality, it could be a state government or it could be I.D.R. bonds, which are things that are not allowed by law now. The bonds are an obligation by that issuer to pay principal and interest, bank at a certain percent, it has a fixed maturity rate, and it has a fixed amount that they are to pay you back. So those are three characteristics that are very much a part of municipal bonds.”

As Mr. Van Atta testified to at the hearing, the securities found in items 50-60 are not municipal bonds, but mutual funds or mutual bond trusts. Mr. Van Atta explained the differences between the municipal bonds and mutual fund or mutual bond trusts.

“QUESTION: Okay. Items 50-60, are they municipal as defined by the term municipal bonds?
“ANSWER (MR. VAN ATTA): In my opinion, they’re not because the reason being is that you don’t have a fixed interest rate, you don’t have a fixed maturity, and you don’t have a fixed amount that you’re going to get back. The only thing you have in common is tax-free from federal, and that’s the only requirement or the only thing that’s similar.”

The evidence is overwhelming that items 50-60 are not Municipal Bonds but were investments in mutual funds, or municipal bond trusts. The only expert called in this case, stockbroker Larry Van Atta, testified that items 50-60, Schedule B, Inventory and Appraisement, are not municipal bonds. It is also undisputed that the Testator was a shrewd investor and knew the difference between a municipal bond and mutual fund or mutual trust. When he made his Will he chose the words “municipal bonds.” If the testator had meant to include in his devise to the appellants the proceeds of the mutual funds or mutual bonds trusts, items 50-60, he, a knowledgeable investor, could have used other terms, or simply said mutual funds or mutual bond trusts.

The testator executed his Will on June 28, 1988, and died shortly thereafter on August 19, 1988. The testator at the time of executing his Will already had his portfolio completed and knew his investments; he used the words ‘ ‘municipal bonds’ ’ knowing he had items 50-60 which were not municipal bonds. On June 28, 1988, the date of the Will, the only conclusion is that he employed the words “municipal bonds” in their ordinary sense and therefore, did not intend to include items 50-60 of Schedule B of the Inventory and Appraisement in paragraph II of his Will. To decide otherwise would side-step the intent of the testator as set forth in his Will.

Accordingly, we affirm the District Court.

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


author: JUSTICE HARRISON

text:
    G. NICK HOLMES, Plaintiff and Respondent, v. BOARD OF TRUSTEES OF SCHOOL DISTRICT NOS. 4, 47, AND 2, Madison and Jefferson Counties, and Nancy Keenan, Superintendent of Public Instruction, Defendants and Appellants.
    No. 89-631.
    Submitted on Briefs April 12, 1990.
    Decided May 8, 1990.
    792 P.2d 10.

      Charles E. Erdmann, Erdmann Law Office, Beda J. Lovitt, Office of Public Instruction, Helena, for defendants and appellants.
    Richard L. Parish, Harlan, Thompson & Parish, P.C., Helena, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This case presents an appeal from a decision of the First Judicial District, Lewis and Clark County, Montana, reversing a State Superintendent of Public Instruction’s decision that respondent would not be allowed to “bump” a nontenured teacher. The District Court reinstated the County Superintendent’s decision that did allow respondent to “bump” a nontenured teacher. We affirm.

Appellant raises essentially one issue for review:

Did the District Court abuse its discretion in reversing the State Superintendent of Public Instruction’s decision.

Respondent Holmes was a high school principal who had been employed by appellant school district in that capacity for seven years. Prior to becoming a principal, Holmes had over fourteen years of classroom teaching experience. On March 5, 1986, the school board voted to eliminate the position of high school principal and combine that position with that of the district superintendent. This decision was a reduction in force (RIF) based on declining enrollment and economic considerations. The school board duly gave Holmes notice of the decision and advised him of his right to request a hearing, which he did.

The school board held the hearing on March 24, 1986. During the hearing, the board passed the following two motions:

“1. ... We accept the superintendent’s recommendation that Mr. Holmes’ contract be terminated at the end of the 1985-86 contract due to elimination of the high school principal position which was based on declining enrollment and administrative reorganization.
“2. ... If Mr. Holmes is able to provide evidence by April 11, 1986, of endorsements in positions where the District currently has non-tenured teachers, that Mr. Holmes be allowed to ‘bump’ into the position, pursuant to the Sorlie case and continue his status as a tenured teacher.”

No further communication occurred between Holmes and the school board between the March 24, 1986 meeting and the April 2, 1986 meeting. At the April 2, 1986 meeting, the school board passed the following motion:

“[T]hat we rescind the motion that we, that was carried, on March 24, that stated that if Mr. Holmes was able to provide evidence by April 11, 1986, of endorsements in positions where the District currently has non-tenured teachers, that Mr. Holmes will be allowed to ’bump’ into that position pursuant to the Sorlie case and continue his status as a tenured teacher.”

The school board gave Holmes no notice that this action would be taken at the April 2, 1986 meeting.

At the time of the March 24, 1986 meeting, Holmes possessed all necessary qualifications for certification as a teacher in areas where nontenured teachers held positions. The Office of Public Instruction (OPI) issued Holmes’ certificate with the necessary endorsements on April 10, 1986.

Holmes appealed the school board’s decision to terminate his services. Relying on Massey v. Argenbright (1984), 211 Mont. 331, 683 P.2d 1332, the Lewis and Clark County Superintendent of Schools reversed the decision of the school board and ordered Holmes reinstated with back pay and benefits. The school board appealed the County Superintendent’s decision to the State Superintendent of Public Instruction. Disagreeing with the County Superintendent’s interpretation of Massey, the State Superintendent reversed that decision and reinstated the school board’s decision. Holmes appealed the State Superintendent’s decision to the District Court. The District Court reversed the State Superintendent’s position holding that the State Superintendent has misinterpreted Massey. Further, the District Court held that the school board violated Holmes’ due process rights during the April 2, 1986 meeting when it rescinded its earlier motion allowing Holmes to “bump” a nontenured teacher if he provided proper endorsements by April 11, 1986. The school board’s appeal followed.

The Montana Administrative Procedures Act (MAPA) applies to this case. Appellant argues that the District Court erred in the legal conclusions it drew when it applied Massey to this case. In contested cases under MAPA, conclusions of law are subject to an “abuse of discretion” standard of review. Harris v. Bauer (1988), 230 Mont. 207, 212, 749 P.2d 1068, 1071. The broader “abuse of discretion” standard of review applies to conclusions of law in recognition of ‘ ‘the court’s expertise in interpreting and applying the law.” Harris, 749 P.2d at 1071, quoting City of Billings v. Billings Firefighters (1982), 200 Mont. 421, 430, 651 P.2d 627, 632.

Both parties agree that the resolution of this case rests on the interpretation of Massey. In Massey, a school board terminated Massey, a tenured teacher, due to a reduction in force, even though he was qualified to teach in subject areas where nontenured teachers held positions. The school board argued that it only hired teachers who had majored in the subject areas in college. Since Massey had neither majored in any of the subject areas nor taught them previously, the school board decided that he should be terminated. Massey countered that his certification embraced the available subjects and that certification alone should establish his qualifications.

In affirming the District Court’s decision in Massey’s favor, this Court emphasized the rights conferred on tenured teachers by the Teacher Tenure Act, § 20-4-203, MCA. We stated:

“Because Mr. Massey was a tenured teacher, he was entitled under the tenure laws to a certain degree of employment and economic security, which non-tenured teachers do not enjoy.” Massey, 683 P.2d at 1335. Accordingly, we held that under § 20 4-203, MCA, “the school board was obligated to offer Mr. Massey one of the comparable teaching positions held by non-tenured teachers.”

Massey, 683 P.2d at 1335.

Appellant argues that the Massey rationale did not obligate the Board to offer Holmes a teaching position because, in contrast to Massey, Holmes did not hold any teaching endorsements at the time of his termination. Under the appellant’s and State Superintendent’s reasoning, Massey’s actual possession of the OPI certificate becomes the critical element of the Massey decision. Thus, even though Holmes possessed the proper qualifications, he could not take advantage of his tenure rights because he did not have the necessary paperwork completed at the moment he was terminated. We disagree.

Contrary to appellant’s contention, the cornerstone of the Massey decision was Massey’s tenure and the protection to which the Teachers Tenure Act entitled him. In Massey, we emphasized that ‘“[a] teacher’s tenure is a substantial, valuable and beneficial right, which cannot be taken away except for good cause.”’ Massey, 683 P.2d at 1334, quoting State v. Dist. Court, Fergus County (1954), 128 Mont. 353, 361, 275 P.2d 209, 214. Thus, Massey’s tenure coupled with his qualifications to teach in subject areas where nontenured teachers held positions spawned the Massey decision. Massey’s possession of the OPI certification paper was not crucial because as Massey was a teacher, not an administrator, he necessarily had OPI teaching certification.

Similar to Massey, Holmes possessed both tenure and the qualifications to teach in subject areas where nontenured teachers held positions. Thus, applying the Massey decision, we hold that when the school board eliminated Mr. Holmes’ position, § 20-4-203, MCA, obligated it to offer Holmes a comparable teaching position held by a nontenured teacher. The OPI’s issuance of the certificate showing Holmes’ endorsements only memorialized the qualifications Holmes was known to possess. Holmes would have met the school board’s April 11 deadline because the OPI issued the certificate on April 10. To hold otherwise, elevates form over substance.

Appellant argues that it is significant in terms of Holmes’ tenure that it terminated Holmes as principal in one motion and then allowed him to “bump” a nontenured teacher in a second motion. This contention has no merit because logically the board had to terminate Holmes as a principal before it could recognize Holmes’ tenure rights by allowing him to “bump” a nontenured teacher. The number of motions the board utilized in its decision process does not affect Holmes’ substantive tenure rights nor the board’s obligation to honor those rights under § 20-4-203, MCA.

In summary, then, § 20-4-203, MCA, and the Massey decision compelled the board to allow Holmes to ‘ ‘bump’ ’ a nontenured teacher provided he met their deadline, which he would have. Holmes left the March 24 meeting with his tenure rights intact. The due process clause of both the federal and Montana Constitutions protects a tenured teacher’s interest in continued employment. See, Bd. of Trustees v. Super, of Pub. Inst. (1976), 171 Mont. 323, 557 P.2d 1048. When, on April 2 the board rescinded its decision to allow Holmes to “bump” without prior notice to Holmes, the board unquestionably deprived Holmes of his interest in continued employment without due process of law.

From the foregoing, it is clear that the District Court correctly applied Massey. Further, the District Court correctly determined that appellant violated Holmes’ due process rights during the April 2 meeting. We hold that the District Court did not abuse its discretion in reversing the State Superintendent of Public Instruction and in reinstating the County Superintendent’s decision.

Affirmed.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RAYMOND ERNEST FLOYD, JR., Defendant and Appellant.
    No. 89-406.
    Submitted on Briefs Feb. 15, 1990.
    Decided April 9, 1990.
    790 P.2d 475.

      Dan Yardley, Yardley & Yardley, Livingston, for defendant and appellant.
    Marc Racicot, Atty. Gen., James Yellowtail, Asst. Atty. Gen., Helena, William Neis Swandal, Park County Atty., and Jon M. Hess, Deputy County Atty., Livingston, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Defendant Raymond Floyd appeals the judgment of a Park County jury finding him guilty of two counts of burglary. We affirm the District Court’s judgment.

Defendant presents two issues:

1. Did the District Court err in denying defendant’s motion to dismiss Count I at the conclusion of the State’s case-in-chief?

2. Did the District Court err in not giving defendant’s proposed instruction 9B regarding possession of the stolen property?

By information defendant was charged in separate counts under § 45-6-204, MCA, with burglarizing two homes in Livingston, Montana. Count I arises from a break-in on July 16 or 17, 1988 at an apartment located on North 7th Street, and Count II stems from the break-in at a residence on South C Street sometime between July 11 and July 13, 1988.

A brief summary of the facts surrounding Count I follows:

When Gerald and Pearl Stratton and family, along with their houseguest Robert Armijo, returned from a visit to Yellowstone National Park, they discovered their apartment had been broken into sometime during their absence. The Strattons had been gone from their home between 10 a.m. on July 16, and 8 p.m. on July 17, 1988. Mrs. Stratton reported the burglary to the Livingston Police on July 18, 1988. Items taken during the burglary included a wristwatch, pocket change, clothing, a pair of diamond earrings and a 14-karat gold necklace. The necklace belonged to Mr. Armijo. Access to the Stratton home had been gained through a window.

Defendant gave a gold necklace to Anita Christensen early in the morning of July 17. Ms. Christensen testified at trial that she had met defendant about 10 p.m. on July 16 and they spent the evening with a group of people in various Livingston bars. At closing time the group, which included defendant’s sister Margaret Moore, went to Ms. Moore’s residence for a party. Ms. Moore resided in an apartment above the Strattons’.

Ms. Christensen left the party at the Moore home around 3 a.m. Shortly thereafter defendant visited Ms. Christensen at her home, but left when Ms. Christensen requested he do so. Defendant returned to Ms. Christensen’s home at approximately 4 a.m. and gave her a gold necklace in a gray earring box.

Because she suspected the necklace may have been stolen, Ms. Christensen turned in the necklace to a dispatcher for the Livingston Police Department on July 18. The investigation that followed revealed the necklace was the one belonging to Mr. Armijo stolen from the Stratton home.

At trial Ms..Christensen testified that defendant had spoken of buying a car and a gold ring for her. Ms. Christensen stated she believed the defendant was trying to get intimate with her.

On July 19, the day after the Stratton burglary was reported and Ms. Christensen turned in the gold necklace, defendant voluntarily gave a statement. Defendant indicated that he had purchased the stolen necklace from Roger Phillips while leaving his sister’s residence on the night of the party. Mr. Phillips denied selling any necklace to the defendant.

The police conducted a search of the defendant’s residence in connection with Count I on July 19. None of the other items taken in the Stratton burglary were found in the search. The officers searching defendant’s residence did, however, notice unusually large quantities of food. Livingston police had received a report a few days earlier of a break-in where large amounts of food had been taken from another Livingston residence.

The circumstances of Count I intersect with circumstances of Count II which are as follows:

John H. (Harve) Counts, Sr. resides at 221 South C Street in Livingston. While Mr. Counts was in Billings receiving medical treatment from July 11 to July 13, 1988, his house was burglarized. Upon returning, Mr. Counts immediately reported the break-in. Access had been gained by prying the back door open and many food items had been taken.

Livingston police conducted a second search of defendant’s residence in connection with Count II on July 26. The police seized several items which Mr. Counts identified at trial as having been stolen from his home. Mr. Counts also testified that he has known defendant for several years and defendant was familiar with the Counts residence.

A trial was held February 27 through March 1, 1989 in Park County. Following the State’s presentation of its case-in-chief, the defense moved for a directed verdict on Count I, the Stratton burglary. The motion was denied.

Issue I: Defendant’s Motion to Dismiss

At the conclusion of the State’s case-in-chief defense counsel presented a motion to dismiss Count I and enter a directed verdict of acquittal on the basis there was insufficient proof to go to the jury. Defendant argued that the State merely proved that defendant had possession of the necklace and evidence of possession of stolen property alone is insufficient to sustain a burglary conviction.

Whether a motion for directed verdict is granted lies within the discretion of the trial judge, as provided in § 46-16-403, MCA, which reads in part:

“When, at the close of the state’s evidence ... the evidence is insufficient to support a finding or verdict of guilty, the court MAY, on its own motion or on the motion of the defendant, dismiss the action and discharge the defendant ...” (Emphasis added.)

That the decision whether to dismiss a charge or direct a verdict of acquittal lies within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion is well-established in Montana case law. See, State v. Graves (Mont. 1990), [241 Mont. 533,] 788 P.2d 311, 313, 47 St.Rep. 483, 485; State v. Goltz (1982), 197 Mont. 361, 372, 642 P.2d 1079, 1085; State v. Just (1979), 184 Mont. 262, 277, 602 P.2d 957, 965. Furthermore, only if there is no evidence to support a guilty verdict may a verdict of acquittal be directed. Graves at 313, 47 St.Rep. at 485.

The District Court judge, in his sound discretion denied defendant’s motion, stating that there was other corroborating evidence, beyond defendant’s mere possession of the necklace, sufficient to submit the case to the juiy. We agree with the District Court’s assessment and will not disturb its decision on appeal.

The State’s burden of proof with regard to the charge of burglary alleged in Count I was to show that the Stratton residence had been unlawfully entered for the purpose of committing an offense therein and that defendant was responsible therefor. Section 45-6-204(1), MCA. The record clearly shows that, in its case-in-chief, the State presented direct evidence sufficient to meet its burden.

The State presented testimony of witnesses Gerald Stratton and Robert Armijo indicating the Stratton residence had been broken into during the weekend of July 16-17, 1988, and that several items, including a gold necklace, had been taken in the burglary. Police Officer Keyes testified entry had been gained through a window. Officer Keyes also indicated that investigation revealed defendant was a frequent visitor to his sister’s apartment upstairs from the Strattons’. Anita Christensen’s testimony linked defendant to the Stratton burglary, establishing that defendant had been in the building which housed the Stratton apartment around 2 a.m. on July 17, 1988 and that defendant had given her the gold necklace in a gray earring box at about 4 a.m. the same day. Suspecting the necklace was stolen Ms. Christensen turned the necklace over to the police. Mr. Armijo identified the necklace at trial as having been stolen from his suitcase at the Stratton home.

The above-listed evidence corroborates the fact that defendant was in possession of the gold necklace. While mere possession of stolen property as insufficient to support a conviction of burglary, it is a strong circumstantial indication of guilt which may be considered by the jury. State v. Kramp (1982), 200 Mont. 383, 396, 651 P.2d 614, 621 and State v. Deeds (1952), 126 Mont. 38, 40, 243 P.2d 314, 315.

Defendant’s possession of the necklace, taken with the other incriminating circumstances presented by the State, will sustain the burglary conviction.

“[Possession of stolen property, accompanied by other incriminating circumstances, and false or unreasonable explanation by the suspect is sufficient to sustain a conviction of burglary.”

State v. Cox (1987), 226 Mont. 111, 114, 733 P.2d 1307, 1309. The State, through Officer Lynn Gillett, offered evidence that refuted defendant’s explanation of his possession of the necklace. The defendant stated that he bought the necklace from a man named Roger Phillips on July 17, while leaving the party at his sister’s apartment. Officer Gillett testified that Mr. Phillips denied selling the necklace to defendant. The jury was presented with conflicting stories of how defendant came to possess the necklace and obviously chose to adopt the State’s position on the matter. The State did establish that defendant was in exclusive possession of the necklace. The possession was accompanied by incriminating circumstances and defendant’s fabricated explanation. On appeal, this Court presumes the correctness of the District Court’s judgment and it is the appellant’s burden to overcome such presumption. State v. District Court of Eighth Jud. Dist. (1978), 176 Mont. 257, 264, 577 P.2d 849, 853. We find that the defendant did not overcome the presumption and hold the lower court properly denied the defendant’s motion for a directed verdict.

Issue II: Jury Instruction 9B

Defendant argues that the trial court’s failure to give his proposed instruction 9B was error. Proposed instruction 9B is taken verbatim from an instruction previously approved by this Court, where we stated:

‘ ‘We would support on retrial, the following instruction on the point:
“Unauthorized control or possession of property belonging to another is ordinarily a circumstance from which the jury may draw an inference and find, in the light of all the evidence in the case, that the person in possession committed the theft of the property.
“You are permitted but not required to infer from the defendant’s possession of the property of another that the defendant is guilty of theft only if in your judgment such an inference is warranted by the evidence as a whole. It is your exclusive province to determine whether the facts and circumstances shown by the evidence warrant the inference to be drawn by you.
“The possession of the property by the defendant does not shift the burden of proof which is always on the State to prove beyond a reasonable doubt every essential element of the offense with which defendant is charged.
“The defendant’s possession of property belonging to another may be satisfactorily explained in the evidence independently of any testimony of the defendant personally. If defendant does take the witness stand to explain his possession of the property, the weight to be attached to his explanation is exclusively for you to determine. Even if defendant’s possession of the property is unexplained, you cannot find him guilty, if after consideration of all the evidence in the case, you have a reasonable doubt as to his guilt.
“If under the evidence, defendant’s possession of the property of another is consistent with his innocence, then the jury should acquit the defendant unless he has been proven guilty beyond a reasonable doubt by other evidence in the case.” State v. Kramp (1982), 200 Mont. 383, 396-97, 651 P.2d 614, 621-22. The District Court refused the instruction as not timely because it was not submitted the requisite five days before trial. Additionally, the District Court judge termed the instruction “verbose and confusing.” Moreover, the instructions approved by the trial court incorporate all of the essential provisions of the refused instruction 9B.

Montana case law holds that where a proposed instruction was adequately covered by a given instruction, it is not error for the trial court to refuse the proposed instruction.

“It is not error for a trial court to refuse to give a requested instruction if other instructions given adequately cover the rejected instruction’s legal theory. State v. Lagge (1964), 143 Mont. 289, 295, 388 P.2d 792, 795. Nor must a trial court give repetitious instructions or instruct ’on every nuance’ of a defense theory. State v. Graves (Mont. 1981), [191 Mont. 81, 92,] 622 P.2d 203, 210, 38 St.Rep. 9, 16.”

State v. Bingham (1987), 229 Mont. 101, 111, 745 P.2d 342, 348.

In the case at bar the District Court adequately covered the proposed instruction 9B principles in the instructions given. No prejudice to the defendant resulted from the District Court’s refusal of proposed instruction 9B. We therefore affirm the District Court.

Affirmed.

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


text:
    In re the ESTATE OF RUTH L. NELSON, Deceased, Mae b. brown, Petitioner and Respondent, v. Guy Robbins, Personal Representative of the Estate, individually, and Robbins, Inc., a Montana Corporation, Respondents and Appellants.
    No. 89-510.
    Submitted on Briefs April 26, 1990.
    Decided June 26, 1990.
    794 P.2d 677.

      Walter S. Murfitt and Dale E. Reagor, Luxan and Murfitt, Helena, for respondents and appellants.
    David F. Stufft, Frisbee, Moore, Stufft & Olson, Cut Bank, for petitioner and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Guy L. Robbins appeals the order of the Ninth Judicial District Court, Glacier County, removing him for cause as the personal representative of the estate of Ruth L. Nelson. We affirm.

The appellant raises four issues:

1. Did the District Court err in removing the personal representative for cause after receiving his letter of resignation?

2. Did the appellant receive sufficient notice of the removal hearing when the notice did not specify the grounds for removal?

3. Was the District Court’s order removing the personal representative for cause barred by the automatic stay under 11 U.S.C. sec. 362(a)(1) after the appellant declared bankruptcy?

4. Does the record contain sufficient evidence to support the District Court’s conclusion that removal of the personal representative was in the best interest of the estate?

Ruth L. Nelson died on January 11, 1986. Nelson’s will named as heirs her sisters, Fern L. Caskey and Mae B. Brown, whom Nelson had not seen in over fifty years. The will appointed Guy L. Robbins, Nelson’s financial adviser of thirty years, as personal representative.

After Robbins settled the estate and submitted his final accounting, Brown filed an objection to several claims made by Robbins against the estate. She later charged Robbins with a number of counts of self-dealing and filed a separate cause of action against him, Brown v. Robbins, Cause No. DV-87-081. Brown twice petitioned the District Court to remove Robbins, but the court delayed acting on the petitions as the parties exchanged procedural and discovery motions in the probate proceeding. The court finally concluded that discovery would best proceed in a separate action against Robbins.

Robbins subsequently moved to Arizona, filed bankruptcy, and filed a letter of resignation as personal representative. Brown then filed a third petition for removal. The District Court held a show cause hearing which neither Robbins nor his counsel attended. The court ordered Robbins’ removal and replacement by Brown. Robbins now appeals that order.

Robbins first argues that the District Court should not have removed him for cause after he entered his letter of resignation because it is an idle act not required by the law. See sec. 1-3-223, MCA. Removal of a personal representative for cause is within the sound discretion of the district court. In re Estate of Stone (1986), 223 Mont. 327, 330, 727 P.2d 508, 511. We can find no principle of law or reason which would compel a district court to accept a personal representative’s voluntary resignation over three petitions for removal. A voluntary resignation by a personal representative “is effective only upon the appointment and qualification of a successor representative and delivery of the assets to him.” Section 72-3-525, MCA. Robbins’s resignation had no effect since the District Court did not appoint a successor until it ordered his removal for cause. The District Court did not abuse its discretion in removing Robbins for cause rather than accepting his resignation.

Robbins next argues that the notice of the removal hearing was insufficient because it did not specify Brown’s reasons for seeking removal. He cites In re Estate of Counts for the proposition that the notice must state the specific grounds of removal. Robbins misreads the case. Counts held that the law did not require the district court to convene a hearing on a petition for removal when the court had twice before approved the personal representative’s actions and the petition stated no new grounds for removal. Counts (1985), 217 Mont. 350, 354, 704 P.2d 1052, 1055. Even if some particularity were required, Brown’s two previous petitions contained detailed allegations of misconduct. Those, along with the separate cause of action filed against Robbins, provided Robbins with actual notice of the grounds for the third petition.

Robbins next argues that his filing in bankruptcy automatically stayed any finding of misconduct including the District Court’s order of removal. We disagree. Only proceedings against the debtor or his property are stayed by a bankruptcy petition. See 11 U.S.C. § 362. Here the proceeding is the probate of the Nelson estate. It is not an action against Robbins or his property even though the removal order may help to preserve and determine Brown’s cause of action against Robbins following the bankruptcy proceedings. See 11 U.S.C. § 523(a)(4); sec. 26-3-201, MCA.

Finally, Robbins argues that the evidence does not support the District Court’s findings of fact and conclusions of law. For the most part, we agree. The court’s order includes numerous findings supporting its conclusion that Robbins “intentionally misrepresented facts in [the probate] proceedings” and engaged in “conduct amounting to fraud, bad faith, collusion, or breach of trust...” Most of those findings are not supported by the record of In re Estate of Nelson, Cause No. DP 86-04, the only record presently before this Court. In making its determination, the District Court had before it both the record of this case and had Brown v. Robbins, Cause No. DV 87-081. Had the latter record been filed with this Court, we could have taken judicial notice of it. See Rules 201 and 202(b)(6), M.R.Evid.; but see D’Agostino v. Schaap (1988), 230 Mont. 59, 62, 748 P.2d 466, 468. Without the record of the companion case, the question remains whether the present record contains sufficient evidence to find that the District Court did not abuse its discretion in removing Robbins for cause. We conclude that it does on at least one point.

The record contains strong evidence that Robbins misappropriated estate funds for his personal benefit. The record contains photocopies of three checks totaling $60,648.60 paid to the Ruth Nelson Trust, a joint checking account in the names of the decedent, Ruth L. Nelson, and the appellant, Guy L. Robbins. The checks bear the date of January 10, 1986, and the signature of the decedent. The record also contains photocopies of medical records showing that on January 10, the decedent was comatose and incapable of signing checks. The doctor’s summary states, “She became disoriented and restless ... on the evening of 01-09-86. On 01-10-86 she was not responsive, would not take anything orally and showed further deterioration ....” A nurse’s note states that the decedent was unable to sign an admittance form on January 7 and that on January 10 she did not respond to verbal commands. She passed away sometime before 2:45 a.m. on January 11. There is no direct evidence that Robbins forged the decedent’s signature on the checks, but the circumstantial evidence is strong. The checks transferred the $60,648.60 from the estate into an account accessible only to the decedent and Robbins, thereby making Robbins the direct beneficiary of the transfer.

The District Court has an obligation to oversee the probate of the estate to prevent this type of abuse by the personal representative. We will not overturn the court’s orders protecting the estate unless there is a clear abuse of discretion. Cause for removal of a personal representative exists “when removal would be in the best interests of the estate ....” Section 72-3-526(2)(a), MCA. We hold that the District Court did not abuse its discretion in determining that Robbins’s removal for cause was in the best interests of the Nelson estate.

Affirmed.

JUSTICES BARZ, HARRISON, SHEEHY, McDONOUGH, HUNT and WEBER concur.


text:
    CREDIT ASSOCIATES, INC., Plaintiff and Respondent, v. RICHARD E. HARP, SR., and Lavonne K. Harp, Defendants and Appellants.
    No. 90-051.
    Submitted on Briefs May 24, 1990.
    June 26, 1990.
    794 P.2d 343.

      Richard E. and LaVonne K. Harp, Great Falls, pro se.
    Dirk Larsen, Larsen & Neill, Great Falls, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Appellants Richard and LaVonne Harp appeal the order of the District Court of the Eighth Judicial District, Cascade County, dismissing their appeal from justice court for failure to file a proper undertaking on appeal. We reverse and remand.

On June 27, 1989, respondent Credit Associates, Inc., filed suit in the justice court of Great Falls naming the appellants in a case brought for the collection of three claims which had been assigned to the respondent for collection. Those collection claims included claims to recover $98.89 for Columbus Hospital, $85.70 for Dr. Robert E. Wynia and $151.10 for Radiology/Columbus.

Following trial in justice court, a judgment was granted in favor of the respondent on all three claims. The appellants filed an appeal with the District Court but failed to file a proper undertaking on their appeal to the District Court and the District Court thereafter ordered that the appeal from justice court be dismissed. The appellants now appeal to this Court.

The issue on appeal is whether the District Court erred in dismissing the appeal from justice court for the reason that the appellants had failed to file a proper undertaking as required by law.

In support of their arguments, appellants’ brief contains various facts which have not been established by the record before us. In the absence of an appropriate record, this Court cannot consider any such alleged facts on an appeal.

Under the provisions of sec. 25-33-201(1), MCA, the appellants were required to file an undertaking in an amount equal to twice the amount of the judgment including costs. In Merchants Ass’n. v. Conger (1979), 185 Mont. 552, 606 P.2d 125, an indigent defendant had appealed from a justice court judgment to the district court. In substance this Court held that under sec. 25-33-201(1), MCA, a requirement that the appellant must post an undertaking in an amount equal to double the judgment violated the indigent defendant’s Fourteenth Amendment rights. From the limited facts available to us, it appears that this decision may be controlling as to the major part of the undertaking.

We therefore reverse the order of the District Court dismissing the appeal and remand the case to the District Court for its determination of the indigency on the part of the appellants and consideration of the law of the case, including our decision in Merchants Association.

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


author: JUSTICE HUNT

text:
    MARK YOVISH, Plaintiff and Respondent, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant and Appellant.
    No. 89-455.
    Submitted Dec. 21, 1989.
    Decided June 26, 1990.
    Rehearing Denied July 19, 1990.
    794 P.2d 682.

      Dennis Tighe, Cure, Borer & Davis, Great Falls, for defendant and appellant.
    J. David Slovak, Ugrin, Alexander, Zadick & Slovak, Great Falls, for plaintiff and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Mark Yovish, plaintiff and respondent, filed suit against United Services Automobile Association (USAA), alleging a wrongful denial of coverage. The Eighth Judicial District Court, Cascade County, sitting without a jury, found in favor of Yovish, awarding him compensatory damages and attorney fees. USAA appeals. We affirm in part and reverse in part.

We will discuss the following issues on appeal:

1. Whether USAA complied with the insurance policy provisions governing renewal so that the policy expired of its own terms prior to the automobile accident in question;

2. Whether the District Court abused its discretion by awarding attorney fees to Yovish.

USAA, an insurance company with a principal place of business in San Antonio, Texas, provides multi-line insurance coverage exclusively to military personnel and their dependents. Mark Yovish, a member of the United States Air Force, insured his 1983 Volkswagen Rabbit with USAA in January, 1983. Yovish paid monthly premiums on the Volkswagen in response to premium notices sent by USAA. The notices indicated the amount due on the policy.

Sometime around May, 1983, Yovish moved from California to Great Falls. He retained his policy with USAA and continued to pay his premiums in response to monthly premium notices sent by the company. In early 1984, he moved from one Great Falls location to another. Consequently, his February, 1984 premium notice was returned to USAA by the post office. This notice indicated that the policy would be renewed for six months beginning February 1, 1984. Although Yovish did not receive the notice or pay the premium until approximately February 10, 1984, USAA backdated the coverage to the beginning of the month, leaving the six-month policy term running from February 1 to August 1, 1984. About this same time, Yovish also received a renewal declarations page to attach to his policy. The declarations page displayed a policy period of February 1 through August 1, 1984.

As USAA did not have any local agents, Yovish occasionally contacted the company by telephone to conduct business or obtain general rate and coverage information. In mid-February, 1984, he called the company for premium quotes. In April, 1984, after securing rental insurance coverage with Farmers, he called USAA to cancel his rental insurance policies.

On June 9 or 10, 1984, he again called the company. At trial, the parties disputed the substance of this conversation. Yovish maintained that he called USAA in June simply to obtain rate and coverage information. USAA, on the other hand, contended that he told the company not to renew the policy in August because he was insuring the automobile with Farmers. Yovish did not receive any written confirmation of the phone call from USAA nor did he receive a notice of non-renewal or cancellation. In fact, the last written notice Yovish received from USAA consisted of a May, 1984 premium notice indicating that, due to the cancellation of his rental policies, the balance on his auto policy was fully paid.

On August 5, 1984, Yovish sides wiped a parked car on a residential street in Great Falls. He admitted liability, and phoned USAA the following day to report the accident. A few days later, USAA denied coverage of die accident, maintaining that Yovish’s policy had expired on August 1, 1984, the last day of the six-month policy period. USAA based its denial on the substance of the June telephone conversation.

On the advice of counsel, Yovish forwarded a $408 check to USAA on August 10, 1984 in an attempt to retain coverage from August 1, 1984. The check was cashed by the company but the money was returned to Yovish in late August.

Total damages incurred in the accident amounted to $3,634 — $1,843 for Yovish’s vehicle and $1,791 for the other car. After USAA refused to accept the claim, Yovish was forced to take out a $3,000 loan at 10 percent interest to cover the damages.

On April 25, 1985, Yovish instituted suit against USAA, asserting that USAA’s rejection of the claim and alleged failure to comply with statutory notice provisions governing insurance companies constituted oppressive and malicious conduct. On December 23, 1986, the District Court denied USAA’s motion for summary judgment. A bench trial commenced on December 31 of that year. On February 24, 1989, over two years later, the court issued findings of fact, conclusions of law and order, awarding Yovish $3,384 in compensatory damages (total damages of $3,634 offset by $250 deductible) and $322 in interest. The court denied Yovish’s prayer for punitive damages but granted his request for attorney fees. On May 4, 1989, the court denied USAA’s motion to amend the judgment with respect to the award of attorney fees. Following a hearing, the court awarded attorney fees in the amount of $8,703. USAA appealed to this Court.

USAA argues that it fully complied with both the policy provisions and statutory law governing renewal and non-renewal of auto insurance policies. Therefore, USAA maintains, it was not required to provide coverage for the car accident of August 5, 1984, because the policy had expired of its own terms on August 1, 1984 due to Yovish’s failure to pay the renewal premium.

Montana’s insurance notice statutes provide that an insurer may not cancel or refuse to renew an insurance policy without furnishing adequate notice of such intent to the insured. Sections 33-23-212 and 33-23-214, MCA. The statutes were enacted in order to prevent lapses in insurance coverage by supplying insureds with sufficient time to obtain insurance elsewhere. See Cantrell v. Benefit Ass’n of Ry. Employees, 136 Mont. 426, 431, 348 P.2d 345, 348 (1960). Preventing lapses in insurance coverage assures that drivers do not travel the state’s highways without the benefit of insurance protection.

Many insurance policies possess similar notice provisions. As long as the terms in the policy regarding notice do not restrict the rights of Montana citizens given by the insurance notice statutes, the terms do not defeat public policy and are therefore valid. Because an insurance policy constitutes a contract between the parties, this Court will interpret the terms of the policy according to contract law. Universal Underwriters Ins. Co. v. State Farm Mut. Ins. Co., 166 Mont. 128, 135, 531 P.2d 668, 673 (1975). However, if a contractual term restricts the rights of the insured, we will construe the contract by looking to the statutes governing insurance law.

In the present case, the relevant policy provisions do not restrict the statutory rights of the insured. Therefore, we shall decide this case by construing the terms of the policy.

The applicable policy terms provided as follows:

“Non-renewal. If we decide not to renew or continue this policy, we will mail notice to the named insured shown in the Declarations at the address shown in this policy. Notice will be mailed at least 20 days before the end of the policy period. If the policy period is other than 1 year, we will have the right not to renew or continue it only at each anniversary of its original effective date.
“Automatic Termination. If we offer to renew or continue and you or your representative do not accept, this policy will automatically terminate at the end of the current policy period. Failure to pay the required renewal or continuation premium when due shall mean that you have not accepted our offer.” (Emphasis added.)

The policy was unambiguous. The clause concerning automatic termination required USAA to offer to renew the policy. Yovish’s obligation to pay the premium was contingent upon USAA’s offer to renew. Once USAA offered to renew the policy, Yovish could accept the offer by paying the renewal premium. The policy could automatically expire only if USAA extended an offer of renewal to Yovish and Yovish rejected that offer by failing to pay the premium when due.

USAA acknowledges that it failed to send Yovish any written offer of renewal. It neglected to forward Yovish either a premium notice or a renewal declarations page, as had been its practice in previous dealings with Yovish. Because USAA failed to offer to renew the policy, it failed to comply with the terms of the automatic termination clause. Thus, it cannot rely on that clause for the proposition that the policy automatically expired on August 1, 1984, the final day of the policy period.

USAA also neglected to mail Yovish notice of its intent not to renew as mandated by the non-renewal clause. Nevertheless, USAA argues that it did not need to mail Yovish written notice of non-renewal because Yovish, not USAA, had decided not to renew the policy.

USAA bases this argument on the substance of the disputed June, 1984 phone call. The District Court, however, found that Yovish called USAA in June, 1984, simply to obtain rate and coverage information and that he did not inform the company during the conversation that he did not intend to renew or otherwise cancel the policy. These findings are not clearly erroneous.

Yovish testified that the June telephone conversation was extremely brief and that it concerned only ballpark estimates about rates and coverages. He maintained throughout his testimony that he did not request cancellation of his coverage with USAA nor did he inform USAA that he did not wish to renew his coverage after the next expiration date. His testimony was supported by the deposition testimony of his roommate, who was present during the telephone conversation in question.

Yovish’s testimony was also supported by his conduct. The record indicates that he had always taken great care to insure his property. He canceled his USAA rental insurance policies in April, 1984, only after securing other insurance. Yet he did not obtain other insurance after the June, 1984 phone call, as would have been his normal course of conduct had he not intended to renew his coverage with USAA. Furthermore, he contacted USAA immediately after the accident, indicating that he believed that he was still covered by that insurer.

Carole Thomas, the USAA employee who took the June phone call, disputed Yovish’s testimony. Thomas contended that Yovish could not have requested or received rate information because the computers were down at the time he called. She further testified that he informed her that he would not be renewing his automobile coverage, that he would be insuring with Farmers instead.

USAA contends that Thomas’s testimony was inherently more credible than Yovish’s because Thomas’s statement was supported by a written memorandum of the telephone conversation. This is not so. Although a written memorandum may lend credence to a witness’s testimony, it is not necessarily more reliable than another witness’s verbal recollection of an event.

The written memo introduced by USAA was not entirely free of errors. The memorandum possessed at least two inaccuracies, the wrong date and Yovish’s incorrect insurance status. The District Court could reasonably have questioned both the trustworthiness of the memo as well as Thomas’s reliability when she testified that she incorrectly assumed that Yovish was a dependent of a subscriber rather than a subscriber in his own right due to the immaturity of his voice. The court could also have viewed Thomas’s ability to recall the conversation accurately with a degree of skepticism considering the fact that she received between 40 and 50 telephone calls per shift.

The present case is particularly appropriate for limited review. The parties hotly contested the substance of the June telephone conversation, thus calling the credibility of the witnesses into question. The District Court had the opportunity to listen to the testimony of both witnesses before making its decision, a decision that is not clearly erroneous. We will not second guess its judgment.

Because the District Court found that Yovish had not communicated to USAA a desire not to renew his policy, USAA was compelled to comply with the policy terms governing renewal. The policy required USAA to send Yovish written notice of non-renewal. USAA admits that it neglected to send any such notice.

Where the insurer has failed to comply with the policy terms regarding renewal and notice of non-renewal, the insurance policy does not expire of its own terms and the insurer cannot deny coverage to the insured for an accident that occurs after the renewal date. Accord Sausen v. American Family Mut. Ins. Co., 121 Wis.2d 653, 360 N.W.2d 565 (Ct. App. 1984); Barbara Corp. v. Bob Maneely Ins. Agency, 197 N.J. Super. 339, 484 A.2d 1292 (App. Div. 1984); National Automobile and Casualty Ins. Co. v. California Casualty Ins. Co., 139 Cal.App.3d 336, 188 Cal. Rptr. 670 (1983); Prudential Property and Casualty Ins. Co. v. Pritchett, 169 Ga. App. 564, 313 S.E.2d 706 (1983); Shore v. Coronet Ins. Co., 7 Ill. App.3d 782, 288 N.E.2d 887 (1972); Nationwide Mut. Ins. Co. v. Davis, 7 N.C. App. 152, 171 S.E.2d 601 (1970). Although the cases cited above refer to failure to comply with statutory notice provisions, the same reasoning applies to failure to comply with the contractual provisions in this case, where the policy provided that automatic termination was contingent upon an offer of renewal extended by the insurance company and that the insurer was required to supply the insured with written notice of non-renewal.

USAA next argues that the District Court abused its discretion by awarding attorney fees to Yovish. USAA does not dispute the reasonableness of the amount of attorney fees, for it stipulated that the $8,703 fee was reasonable. USAA does contest the propriety of any attorney fee award at all in this case.

Generally, attorney fees may not be awarded to a prevailing party in the absence of a specific statute or a contractual provision granting fees. Martin v. Crown Life Ins. Co., 202 Mont. 461, 469, 658 P.2d 1099, 1104 (1983). This action presents neither a statutory nor a contractual basis for an award of attorney fees. Nor does it fall within one of the narrow exceptions to the general rule regarding attorney fees. Therefore, we agree that the District Court abused its discretion in awarding fees.

We have approved awards of attorney fees in the absence of a specific statute or contractual provision granting the right to attorney fees in cases where an insurer has breached its obligation to defend an insured. Lindsay Drilling and Contracting v. United States Fidelity and Guar. Co., 208 Mont. 91, 676 P.2d 203 (1984); Truck Ins. Exch. v. Wolstad, 212 Mont. 418, 687 P.2d 1022 (1984); Home Ins. Co. v. Pinski Bros., Inc., 160 Mont. 219, 500 P.2d 945 (1972). The present case, however, is not a case where an insurer has wrongfully refused to defend an insured but where an insurer has wrongfully refused to provide coverage to an insured. Although the distinction may be slight, we hesitate to expand the exception to the general rule without legislative authority. See Martin, 202 Mont. at 469, 658 P.2d at 1104; Tynes v. Bankers, 224 Mont. 350, 369, 730 P.2d 1115, 1127 (1986).

We understand that the failure to award attorney fees in cases such as the present one may result in circumstances where the entire compensatory award is consumed by the costs of litigation. We also recognize that the failure to grant attorney fees may force insureds with modest claims simply to accept an insurer’s erroneous denial of coverage. Nonetheless, the legislature, not the courts, must remedy the wrongs created by this situation.

Affirmed as to the award of compensatory damages. Reversed as to the award of attorney fees.

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