author: JUSTICE NELSON JUSTICE TRIEWEILER

text:
    BARBARA NITZEL, personal representative of the estate of LLOYD ROBERT MCKAY, deceased, Plaintiff, Counterdefendant and Respondent, v. MARSHA WICKMAN, individually and as sole surviving partner of M & M WALKERS PARTNERSHIP, and M & M WALKERS PARTNERSHIP, Defendants, Counterclaimants and Appellants.
    No. 95-557.
    Submitted on Briefs June 19, 1997.

    Decided July 2, 1997.
    54 St.Rep. 684.
    283 Mont. 304.
    940 P.2d 451.

      For Appellants: David F. Stufft, Cut Bank.
    For Respondents: K. Dale Schwanke, Jardine, Stephenson, Blewett & Weaver, Great Falls.
   JUSTICE NELSON

delivered the Opinion of the Court.

Barbara Nitzel, as personal representative of the estate of Lloyd Robert McKay (Mac) brought this action seeking dissolution of the partnership known as M & M Walkers and an equal distribution of partnership assets. The District Court for the Ninth Judicial District, Pondera County, dissolved the partnership giving one half of all partnership assets to Mac’s estate (the Estate) and one half to the surviving partner, Marsha Wickman (Marsha). Marsha appeals. We affirm.

We address the following issues on appeal:

1. Did the District Court err in ruling that the August 24, 1987 document is invalid as a contractual obligation between Mac and Marsha?

2. Did the District Court err by failing to address Marsha’s arguments that the Estate was estopped from claiming that the August 24, 1987 document was not binding and enforceable?

Factual and Procedural Background

On August 18, 1986, Marsha and Mac formed M & M Walkers, an equal partnership. The purpose of the partnership was to breed, raise, train and market Tennessee Walking Horses. Marsha and Mac did not enter into a written partnership agreement. Instead, they had an oral agreement sealed with a handshake.

Marsha had raised Tennessee Walkers before and after the formation of the partnership, Marsha worked with the horses on a daily basis. She also maintained the books and records of the partnership. Mac had a full-time job with an implement company and did not spend as much time working with the horses as did Marsha. Although Marsha and Mac agreed that Mac would only contribute money when he had the funds and contribute time when he was not at his full-time job, they agreed that it would be an equal partnership.

On or about August 24, 1987, Mac executed a document wherein he purported to convey his interest in the partnership to Marsha in the event something happened to him. The document was prepared without the assistance of an attorney and stated as follows:

I, Lloyd McKay am a partner in the M & M WALKER Horse business. If anything happens to me all the horses SUPREMES DESERT FAWN, SO SO SHADOW SIS, NAMRONS KO KO DELIGHT, SUPREMES ROYAL FLAME, AND ANY OTHER HORSES PURCHASED will belong to my partner Marsha Wick-man. In the business also are my two hay trailers, my horse trailer, baler, my brown Ford three quarter ton pickup. They will stay in the business and belong to Marsha Wickman and anything else we purchase with the M & M Walker and or our names on it. There is numerous equipment that has been purchased and is in my garage, house, horse trailer etc. Halters, bridles, saddles, ropes, harness, pack saddle, pads, curry brushes, rubber tubs, water tubs, fencing, grain bin, cover blankets, feeders, saddle pads etc. and anything else purchased after the date of this paper August 24, 1987 will stay in the business and belong to Marsha Wickman.
All the business records are kept at my house at 120 s. Minnesota. Marsha has access to my house to get anything pertaining to the business and what ever belongs to her as she has things stored in my spare room and garage. Description of trailers and any other machinery on attached sheets.

Marsha testified at trial that she typed the document at Mac’s direction, leaving blanks for the insertion of a name where appropriate. The names “Lloyd McKay*’ and “Marsha Wickman” were written in by hand, purportedly by Mac. The document was signed by Mac and witnessed by Linda Duncan on September 2, 1987, and by Sandra Becker on September 3, 1987. It was subsequently notarized by Randy Wahl.

Mac passed away on June 25, 1992, without leaving a will or other testamentary disposition of his property. Mac and his wife, Sally, had divorced in 1985. They had two sons, Robert, who was killed in an automobile accident, and Tim. Mac had also adopted Sally’s two daughters, Barbara and Vicky, sometime after Mac and Sally were married. When Mac and Sally divorced, Tim moved with his mother to Billings, the two girls having moved away several years earlier. Mac’s family also included two sisters and three brothers. Mac’s daughter, Barbara, was appointed personal representative of the Estate.

On October 21, 1992, Marsha, as sole surviving partner of M & M Walkers, and her husband, Terry, filed a creditor’s claim against the Estate claiming that they were entitled to the return of property the Estate was allegedly wrongfully withholding from them. The Estate sent a notice of disallowance of claim on January 5,1993. In addition, the Estate asserted a counterclaim against Marsha personally and as sole surviving partner, for an accounting from the partnership and for the Estate’s share of the partnership’s assets and profits. On April 5, 1993, the Estate sued Marsha alleging that the partnership had been dissolved by Mac’s death, that the Estate was entitled to an accounting and distribution of an equal share of the partnership assets and profits, and that Marsha, in refusing to account for the partnership assets and profits, was appropriating them for her own benefit.

On September 10,1993, Marsha filed an Answer and Counterclaim alleging that pursuant to the August 24, 1987 document, she was entitled to all partnership assets after Mac died and that, as a result of the document, the Estate had no interest in the partnership or its assets. The counterclaim asserted that Marsha, Terry and the partnership were entitled to the immediate possession of property that was allegedly wrongfully withheld, and demanded its return and damages. Terry, who had not been named as a party defendant, was subsequently dismissed as a counterclaimant.

The District Court heard testimony on December 14, 15, 16 and 24, 1994. A considerable amount of testimony at trial dealt with the extent of Marsha’s relationship with Mac as well as the quality of the relationship Mac’s family, particularly Tim, maintained with Mac. It was alleged during trial that Mac and Sally’s divorce was a result of Mac’s relationship with Marsha.

On November 7, 1995, the District Court entered its Findings of Fact, Conclusions of Law, Order and Judgment concluding that, as a matter of law, the written agreement was invalid because of a lack of consideration. Additionally, the court concluded that the document did not meet the legal requirements necessary to suffice as a testamentary disposition of property even though it had not been offered as such. The court determined that the Estate was entitled to one-half of the value of the partnership’s assets, less any obligations due, as of June 25, 1992, the date of Mac’s death. Hence, the court ordered Marsha to provide the Estate with a full accounting of all partnership assets and liabilities as of that date, as well as any income received or expenses incurred subsequent to that date.

Marsha appeals the District Court’s judgment and order.

Issue 1.

Did the District Court err in ruling that the August 24,1987 document is invalid as a contractual obligation between Mac and Marsha?

In its November 7, 1995 Findings of Fact, Conclusions of Law, Order and Judgment, the District Court concluded that Marsha was under a legal obligation to contribute to M & M Walkers, consequently, her “promise” to continue to contribute to the partnership in return for the August 24,1987 document was insufficient consideration. The court, finding no evidence of any other consideration, concluded that the agreement was invalid as a contractual obligation between Mac and Marsha.

The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686 (citing Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603).

The Estate argues that the District Court erroneously concluded that Marsha “promised” to continue to contribute to the partnership in return for the August 24, 1987 document. We find no evidence in the record that Marsha made any type of “promise,” only that she voiced an unwillingness to continue to contribute to the partnership.

The August 24, 1987 document does not recite any consideration for the contemplated transfer. However, Marsha contends that the fact that she did not dissolve the partnership was sufficient consideration to make the document a binding and enforceable contract. In addition, she maintains that she refused to put any additional time or money into the partnership unless she was assured of some protection from Mac’s family and that is why Mac had her prepare the document for his signature.

A valid contract must be supported by sufficient consideration. Section 28-2-102, MCA. “Consideration” is defined at § 28-2-801, MCA, as:

Any benefit conferred or agreed to be conferred upon the promisor by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered or agreed to be suffered by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor is a good consideration for a promise.

“A written instrument is presumptive evidence of a consideration.” Section 28-2-804, MCA. However, this presumption of consideration is rebuttable and the burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate the instrument. Section 28-2-805, MCA.

Marsha contends that Mac benefitted from his promise to convey to Marsha because Marsha agreed to continue funding the partnership. However, Montana law in effect at the time the partnership was formed, as well as when the August 24,1987 document was signed, required that partners contribute to a partnership in accordance with the partner’s share of profits. Section 35-10-401(1), MCA (1985). Thus, Marsha’s “promise” to perform her existing legal obligation of funding the partnership was not sufficient consideration for the document. Section 28-2-801, MCA; Rudio v. Yellowstone Merchandising Corp. (1982), 200 Mont. 537, 543-44, 652 P.2d 1163, 1167.

Marsha also contends that because she had the right to dissolve the partnership but elected not to, such forbearance furnished sufficient consideration to support the document. We stated in Rudio that forbearance to enforce a legal right is sufficient consideration to support a contract if there is an agreement to forbear. Rudio, 652 P.2d at 1167. Thus, if Marsha had specifically agreed not to dissolve the partnership in return for the August 24, 1987 document, her agreement would constitute sufficient consideration. However, there is no evidence in the record that she made such an agreement. On the contrary, Marsha’s testimony at trial indicated that she did not make any agreements in exchange for Mac’s signing the document:

Q. [Mac] did not ask you to agree to do something in return for this document, did he?
A. No.
Q. It’s just something that he wanted to do, is it not?
A. I believe it was something that he wanted to do. I think he wanted to protect me.
Q. And he did not ask that you sign a similar agreement?
A. No.
Q. Was your answer, No, he didn’t ask you to do a similar agreement?
A. No, he didn’t ask me to do anything, no.

Trial Transcript pp. 694-97.

Moreover, the record does not indicate that Mac executed the document because of any promise to forbear from Marsha:

Q. Now did Mac approach you about doing something with respect to this document you call an agreement or did you approach him?
A. He approached me at first.
Q. All right, so you’re saying that he came and spoke with you first about making out some sort of document?
A. Yes, he was—
Q. I’m just asking you if he approached you first.
A. Yes.
Q. How long, before the document was signed, was that?
A. I don’t know exactly, within a couple of months, within that time trame. I don’t know exactly the date.
Q. Do you recall testifying at your deposition that it was about a month before the agreement was signed — the document was signed?
A. Yes, between a month, two months, somewhere in there, in that neck of the woods.
Q. So he was the initiating factor, according to your testimony; correct?
A. Yes, initially.
Q. And when he first talked with you then, you had not said anything to him about being concerned about the amount of money you were putting into the agreement; correct — into the partnership; correct?
A. This is at the first time he talked to me?
Q. Yes.
A. The first time he talked to me, he just mentioned the fact that he was concerned—
Q. I’m just asking you if you men — if you had not mentioned to him yet, the concern?
A. No, not at that time.
Q. All right.
A. Not at that particular time, no.
Q. So his thought process, in coming to you about this document, at least at that point, had nothing to do with any input from you as to your concern about the money you were putting into the partnership; correct?
A. At that particular time.
Q. Hadn’t even come up in the discussions; right?
A. No, hadn’t really talked about that, at that time.

Trial Transcript, pp. 690-92.

Accordingly, finding no evidence of a promise to forbear on Marsha’s part, or anything else that might constitute sufficient consideration, we affirm the District Court’s conclusion that the August 24, 1997 document was invalid as a contractual obligation between Mac and Marsha.

Issue 2.

Did the District Court err by failing to address Marsha’s arguments that the Estate was estopped from claiming that the August 24,1987 document was not binding and enforceable?

Marsha contends on appeal that both promissory estoppel and equitable estoppel prohibit the Estate from claiming that the August 24, 1987 document is invalid. She maintains that the District Court erred by failing to address these issues in its Findings of Fact, Conclusions of Law, Order and Judgment. The Estate contends that since Marsha did not affirmatively plead either promissory estoppel or equitable estoppel, pursuant to Rule 8(c), M.R.Civ.P., she cannot now rely on those arguments. Moreover, the Estate argues that at no time during trial did Marsha or the partnership relate that they intended to rely upon any estoppel issue or theory and, instead, the first reference to estoppel was made in a paragraph in Marsha’s proposed findings of fact and conclusions of law entered after trial.

Rule 8(c), M.R.Civ.P., provides:

Affirmative defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. [Emphasis added.]

“An affirmative defense is generally waived if not set forth affirmatively.” Nimmick v. Hart (1991), 248 Mont. 1, 8, 808 P.2d 481, 486; Pracht v. Rollins (1989), 239 Mont. 62, 68, 779 P.2d 57, 61; Chandler v. Madsen (1982), 197 Mont. 234, 241, 642 P.2d 1028, 1032.

Marsha concedes that she did not include the affirmative defenses of promissory estoppel or equitable estoppel in her answer, but that she did raise these issues in her trial brief. She argues that Rule 15(b), M.R.Civ.P., allows her to rely on those defenses because the Estate impliedly consented to an estoppel defense at trial. Rule 15(b), M.R.Civ.P., provides, in part:

Amendments to conform to the evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues.

A review of the record indicates that Marsha did indeed raise estoppel issues in her trial brief filed with the District Court on December 14, 1994, and again in her Proposed Findings of Fact, Conclusions of Law and Judgment filed April 7,1995. However, there is no indication in the record that these issues were tried either by express or implied consent. Moreover, Rule 15(b) requires the filing of a motion to amend the pleadings and Marsha has never filed a motion to amend her answer to include the affirmative defenses of promissory estoppel or equitable estoppel. “In order to amend a pleading under Rule 15(a) or Rule 15(b), M.R.Civ.P., a party must file an appropriate motion, and brief accompanying that motion.” Nimmick, 808 P.2d at 487.

We will not address issues which were not properly raised before the district court. Marsh v. Overland (1995), 274 Mont. 21, 29, 905 P.2d 1088, 1093 (citing Lane v. Smith (1992), 255 Mont. 218, 221, 841 P.2d 1143, 1145). Accordingly, we conclude that Marsha failed to timely raise the defenses of promissory estoppel and equitable estoppel before the District Court and, therefore, we decline to address these issues.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY and LEAPHART concur.

JUSTICE TRIEWEILER

dissenting in part and specially concurring in part.

I dissent from the majority opinion.

I do not quarrel with the majority’s statement of the law applicable to this case. I do conclude that it is incomplete and that the majority’s interpretation of the record is incorrect.

Section 35-10-603(l)(b), MCA (1987), which was in effect at the time Lloyd and Marsha entered into their agreement, provided as follows:

Dissolution is caused, without violation of the agreement between the partners by:
(b) The express will of any partner when no definite term or particular undertaking is specified ....

In other words, because there was no specified term for this partnership, Marsha could have terminated the partnership agreement at any time.

The majority correctly notes, as we stated in Rudio v. Yellowstone Merchandising (1982), 200 Mont. 537, 543-44, 652 P.2d 1163, 1167, that a promise by Marsha to forebear her right to terminate the partnership would have been sufficient consideration for Lloyd’s agreement to leave his partnership interest to her at the time of his death. However, the majority then concludes that there was no evidence of such a promise in the testimony. I disagree.

Marsha gave the following testimony at trial:

Q. Let me jump ahead a little bit, Marsha, and I’ll get back to some of these exhibits. Did there come a time when you became concerned regarding the amount of monies you were investing in the partnership?
A. Yes.
Q. Okay, and you talked with Mac about this?
A. Yes, briefly.
Q. Okay, what was your concern?
A. Well, my concern was that his family was giving him quite a bit of trouble, and I was not going to put anymore [sic] money into the business, at that time.
Q. Was Mac aware of that?
A. Yes, he was.
Q. And so what happened?
A. Well, to start with, Mac was a little bit concerned about his family and he wanted to protect me, and to start with, I told him, that I didn’t believe — actually I told him his handshake was good enough for me. And his concerns became more and more, and as his concerns became more and more—
Q. Did you — I’m going to speed some of this up. Did you discuss with Mac, regarding what your intent was to do with the business? A. Yes, I was just getting to that now.
Q. And what was your discussion?
A. We were taking down — going down to the horses and I told him that I was not going to put anymore [sic] money into the business, and that there wasn’t going to be a business. I was going to get out if he didn’t do something to protect me, and — some kind of an agreement or something because there was not going to be a business after ’87.
Q. Okay, and did you — was an agreement finally then signed by Lloyd McKay?
A. Yes.
(Tr. 647-48)
Q. Marsha, would you have continued on with your contributions to the partnership, if that agreement had not been signed by Mac?
A. No, I would not.
(Tr. 652)
THE COURT: So the question you’re asking is, up to the time Mr. McKay signed the agreement, had Mrs. Wickman discussed with him the fact that she would not be making anymore [sic] contributions to the partnership unless such an agreement was signed.
MR. SCHWANKE: That’s my question.
A. I — we did have a conversation, yes. We did not have a discussion. To me, a discussion is quite lengthy. The conversation we had was about a 30 second conversation and I told him I was not going to put anymore [sic] money into the partnership unless we had some kind of an agreement that was going to protect me, and otherwise I was done, I was out.
Q. When did you tell him this?
A. It was sometime — oh, just a few weeks, probably, before the initial agreement.
(Tr. 697-98)

(Emphasis added.)

There is only one interpretation that can be attached to the testimony which is quoted. Marsha Wickman was aware of her right to terminate her partnership with Lloyd McKay. She was aware that without some protection of her future interest it was not financially reasonable for her to continue to invest in the partnership; but she agreed to forebear from terminating the partnership based on the agreement that was signed by McKay and which is the subject of the Court’s opinion. There was no evidence to the contrary. I conclude that the above testimony was direct evidence of a promise to forebear on Marsha’s part and did provide sufficient consideration for the agreement entered into between her and Lloyd McKay on August 24,1997.

For these reasons, I dissent from that part of the majority opinion which affirms the District Court’s refusal to enforce the agreement between the parties. I concur with those parts of the majority opinion which relate to promissory and collateral estoppel.

JUSTICE HUNT and JUSTICE REGNIER join in the foregoing dissenting and concurring opinion.


source: Caselaw Access Project

author: JUSTICE NELSON

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, vs. DALE MICHAEL HANSON, Defendant and Appellant.
    No. 95-513.
    Submitted on Briefs February 13, 1997.
    Decided July 2, 1997.
    54 St.Rep. 678.
    283 Mont. 316.
    940 P.2d 1166.

      For Appellant: Wendy Holton, Helena.
    For Respondent: Joseph P. Mazurek, Attorney General, Carol Schmidt, Assistant Attorney General, Helena; Thomas J. Esch, Flathead County Attorney, Kalispell.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from the Eleventh Judicial District Court, Flathead County. On July 21, 1995, the District Court entered an order denying Defendant Hanson’s motion for new trial following a jury conviction of one count of sexual assault and one count of deviate sexual conduct. Subsequently, the District Court sentenced Hanson to two concurrent terms in the Montana State Prison. Hanson, through new counsel, appeals from the District Court’s denial of his motion for new trial. We affirm.

We restate the following issues raised on appeal:

1. Are Defendant Hanson’s claims of error reviewable under the common law plain error doctrine or alternatively under the cumulative error doctrine?

2. Was Defendant Hanson denied his constitutional right to effective assistance of trial counsel?

FACTUAL AND PROCEDURAL BACKGROUND

Emmy Gregg (Emmy) and her then four-year-old son, Aaron, lived across the street from Defendant Hanson (Hanson) in Whitefish, Montana. Emmy and Hanson met during the summer of 1990 and began dating in October 1990. By May 1991, Emmy and Aaron moved into Hanson’s home. In June 1992, Emmy and Aaron moved out of Hanson’s home; however, Emmy and Hanson continued dating until the fall of 1993. Aaron testified at trial that during the time they all lived together, Hanson sexually abused him. Apparently, at Hanson’s request, all three would shower together to conserve hot water. And, at times, only Hanson and Aaron would shower together. Aaron testified at trial that during the times that he and Hanson showered alone, Hanson would wash Aaron’s genital area and Aaron would wash Hanson’s genital area. Also, Aaron testified that Hanson would tell Aaron to perform oral sex on him, which Aaron did on several occasions.

In the fall of 1993, Emmy became concerned about Aaron’s behavior. In particular, Emmy noticed that Aaron was having nightmares about Hanson and expressed anger toward Hanson. Furthermore, Emmy noted that Aaron began wetting the bed, locking the door when he took baths, and hiding under the bed and in closets when the phone rang or someone came to the door. Emmy testified that when she asked Aaron on different occasions about any improper contact with Hanson, Aaron denied that it occurred.

However, on March 24, 1994, Emmy met Detective Maxine Lamb of the Flathead County Sheriff’s Department and discussed her concerns. That same day Detective Lamb went to Aaron’s school to interview him. During her one-half hour interview with Aaron, he disclosed incidents involving Hanson which Detective Lamb believed described sexual abuse. On April 14, 1994, Hanson was charged by Information in the Eleventh Judicial District Court, Flathead County, with one count of sexual assault and one count of deviate sexual conduct, both felonies, in violation of § 45-5-502(1) and § 45-5-505(1), MCA, respectively. At his May 27,1994 arraignment, Hanson plead not guilty. A jury trial commenced on March 6, 1995. On March 9, 1995, the jury returned a verdict of guilty to both counts. Hanson filed a motion for a new trial on April 7, 1995. The District Court denied Hanson’s motion for a new trial on July 21, 1995, holding that the testimony of Aaron, Detective Lamb and Beatrice Rowe, Aaron’s therapist, was all properly placed before the jury. On July 24, 1995, the District Court sentenced Hanson to twenty years in the Montana State Prison for the offense of sexual assault and ten years for the offense of deviate sexual conduct, both sentences to run concurrently. Hanson, now represented by different counsel, appeals from the District Court’s denial of his motion for a new trial.

DISCUSSION

1. Are Hanson’s claims of error reviewable under the common law plain error doctrine or alternatively under the cumulative error doctrine?

Hanson, through new appellate counsel, has raised numerous issues for the first time on appeal. Hanson contends that his trial was fundamentally unfair in violation of his rights under the Sixth Amendment of the United States Constitution and under Article II, Section 24 of the Montana Constitution, and, therefore, his convictions should be reversed. Hanson concedes that these issues were not properly preserved for appellate review. However, Hanson alternatively argues under both the plain error doctrine and under the cumulative error doctrine that this Court should, nonetheless, exercise its inherent power of appellate review conferred by the Montana Constitution to address the merits of his arguments and reverse his convictions. The State responds that neither doctrine is applicable in this case. We agree.

In State v. Finley (1996), 276 Mont. 126, 137, 915 P.2d 208, 215, we explained that we employ the common law plain error doctrine only on a case by case basis:

[T]his Court may discretionarily review claimed errors that implicate a criminal defendant’s fundamental constitutional rights, even if no contemporaneous objection is made and notwithstanding the inapplicability of the § 46-20-701(2), MCA, criteria, where failing to review the claimed error at issue may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial or proceedings, or may compromise the integrity of the judicial process.

Furthermore, the doctrine of cumulative error refers to a number of errors which prejudice a defendant’s right to a fair trial. State v. Close (1981), 191 Mont. 229, 245, 623 P.2d 940, 948. However, “[w]hile Montana recognizes that the accumulation of errors may prejudice a defendant’s right to a fair trial, mere allegations of error without proof of prejudice are inadequate to satisfy the doctrine.” State v. Campbell (1990), 241 Mont. 323, 329, 787 P.2d 329, 333 (citation omitted).

Hanson begins by raising the three issues he previously presented to the District Court in his motion for new trial. First, Hanson asserts that Aaron’s testimony was tainted and unreliable, and, therefore, should not have gone to the jury. Specifically, Hanson argues that Aaron’s testimony was not reliable because Detective Lamb used coercive or suggestive interviewing techniques when she interviewed Aaron. Second, Hanson claims that Detective Lamb deliberately failed to preserve exculpatory evidence vital to the defense when she did not record her interview with Aaron, and, therefore, Hanson asserts the charges against him should be dropped.

Yet, upon consideration of these two arguments, we note, as did the District Court, that Hanson failed to object to Aaron’s testimony at the time of trial. Furthermore, as the District Court noted, Hanson himself called Detective Lamb to the witness stand in an effort to discredit her by questioning Detective Lamb about the deficiencies in her interviewing techniques and the absence of any video recording of her interview with Aaron. We agree with the District Court’s July 21,1995 Order wherein the court ruled that both the evidence of Detective Lamb’s failure to preserve a record of her interview with Aaron as well as the effect of her interviewing techniques on the reliability of Aaron’s testimony were properly considered by the jury. Consequently, Hanson’s arguments that the District Court should have held a pretrial hearing to determine Aaron’s reliability and that Detective Lamb’s failure to videotape her interview with Aaron resulted in suppression of exculpatory evidence in violation of Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, are not properly before us on appeal and we decline to address them.

Third, Hanson argues that the State improperly presented the testimony of Beatrice Rowe (Rowe), Aaron’s therapist, on rebuttal. Specifically, Hanson asserts that the defense never questioned Aaron’s credibility, and, therefore, Rowe was precluded from testifying about her assessment of Aaron’s credibility. While, on appeal, Hanson concedes that he did not properly preserve this issue for appeal, we note that his trial counsel did in fact make an objection to Rowe’s rebuttal testimony which the District Court addressed in its July 21, 1995 Order denying Hanson’s motion for a new trial. Consequently, we will review the merits of Hanson’s argument on this matter.

We agree that an expert witness is generally not allowed to comment on the credibility of an alleged victim. However, an exception to this general rule is made in cases involving sexual abuse of a minor child when that child testifies and the child’s credibility has been questioned. State v. Harris (1991), 247 Mont. 405, 410, 808 P.2d 453, 455. In this case, Aaron, who was eight years old at the time of trial, testified in person and Hanson, as apart of his defense strategy, questioned Aaron’s credibility to show that Aaron had falsely accused him. In an effort to do this, Hanson elicited testimony from Jack Oakwright, Ph.D., an expert witness. Dr. Oakwright testified that a situation such as the bitter relationship between Emmy and Hanson, which Aaron witnessed, would raise a “red flag” that a child might make a false accusation. Accordingly, we agree with the District Court’s July 21, 1995 Order, wherein the court ruled that Rowe’s rebuttal testimony concerning Aaron’s credibility was proper.

Next, for the first time on appeal, Hanson specifies four errors made by the State which allegedly violated Rule 404(b), M.R.Evid., and the due process clauses of the Montana Constitution and the United States Constitution. Specifically, Hanson asserts that the State introduced testimony and evidence of other acts in violation of Rule 404(b), M.R.Evid.

First, Hanson argues that Emmy’s testimony regarding the animosity present in their relationship is irrelevant to the question of whether Hanson abused Aaron. We decline to address this argument because Hanson not only failed to object to this testimony at trial, but, moreover, because Hanson himself elicited similar evidence regarding the bitter relationship between Emmy and himself as a part of his defense strategy to demonstrate that Emmy had a motive to encourage Aaron to make false claims against him regarding sexual abuse. Furthermore, Hanson asserts that the State demonstrated its ability to distinguish between relevant and irrelevant evidence as demonstrated by its objection to Hanson’s testimony concerning Emmy’s alleged propensity to deceive. Specifically, Hanson explains that he attempted to introduce evidence of a situation when Emmy purportedly called Hanson on three consecutive occasions requesting a ride home thereby causing him to drive repeatedly to a specific location when she was actually home the entire time. Hanson notes that the State objected to this testimony on the basis that this information was irrelevant to the question of whether Aaron was sexually abused. Consequently, Hanson argues that this proves that the only reason the State introduced Emmy’s testimony regarding Hanson’s actions during the course of their relationship was “to destroy Dale Hanson’s reputation and credibility with the jury.” We disagree. After reviewing the record, we conclude that the District Court properly struck from the record and admonished the jury to disregard Hanson’s testimony concerning this incident because Hanson failed to lay the proper foundation that Aaron was present when Emmy made these alleged phone calls to Hanson. The court properly reasoned that because Aaron did not witness these alleged interactions between Emmy and Hanson, it would not, contrary to Hanson’s claim, affect Aaron’s propensity to testify falsely against him.

Second, Hanson argues that Detective Lamb’s answers to the State’s questions concerning previous criminal investigations of Hanson regarding his relationship with Emmy constituted inappropriate comments on Hanson’s character. Yet, Hanson failed to object to this testimony at trial. In fact, as the State points out, it was Hanson who called Detective Lamb to the stand, and, consequently, the State’s cross-examination questions pertaining to these investigations merely responded to the testimony that Hanson previously elicited from Detective Lamb during direct examination.

Third, Hanson asserts that the State’s cross-examination of him went beyond the scope of direct examination. Hanson contends that the State suggested that he fit the profile of an abuser by asking Hanson questions which implied that Hanson had been sexually abused himself as a child. Additionally, Hanson contends that the State attempted to portray him as a racist by asking questions regarding Hanson’s alleged thoughts concerning the connection between Emmy’s drinking history and her Native American heritage. Again, Hanson failed to object to the State’s cross-examination questions. Moreover, as the State notes, Hanson put before the jury the issue of his relationship with Emmy as a part of his defense strategy, and, therefore, the prosecution properly cross-examined Hanson regarding a number of different issues to further illuminate the nature of his relationship with Emmy.

Fourth, Hanson claims that the State improperly impeached him by introducing hostile notes that Hanson had left on Emmy’s car. Hanson argues that the State only introduced these notes to show that Hanson was a “bad man.” Yet, upon review of the record, we note that Hanson denied being jealous of Emmy, and, consequently, the hostile notes were properly introduced to impeach Hanson’s prior testimony. Furthermore, Hanson was given the opportunity to object to the introduction of these notes when the State made a sidebar offer of proof and Hanson expressly stated he had no objection.

We recognize that under Rule 404(b), M.R.Evid., “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” However, we again note that Hanson failed to object to any of this evidence during the trial. Moreover, the strategy of the defense was to show that Emmy was vindictive toward Hanson and that this animosity would have caused her to compel Aaron to testify falsely against Hanson, and, consequently, much of the testimony regarding the bitter relationship between Emmy and Hanson was elicited by Hanson himself as a part of his defense strategy. Accordingly, we agree with the State that the evidence to which Hanson now objects on appeal was not evidence of other acts prohibited by Rule 404(b), M.R.Evid.

Finally, Hanson argues that the State made inappropriate remarks in its closing argument. Specifically, Hanson refers to a portion of the State’s closing argument in which he claims that the prosecutor inappropriately accused the defense expert, Jack Oakwright, Ph.D., of lying. We note that in one part of the closing argument, the prosecutor said to the jury, “I don’t think [Dr. Oakwright] was being honest with you.”

We have stated numerous times that “it is highly improper [for an attorney] to characterize either the accused or the witnesses as liars or offer personal opinions as to credibility” because it improperly invades the province of the jury. State v. Stringer (1995), 271 Mont. 367, 380, 897 P.2d 1063, 1071 (citations omitted). However, we will not consider it reversible error every time an attorney comments on the credibility of a witness. Stringer, 897 P.2d at 1071. As we stated in Stringer, a prosecutor may comment on contradictions and conflicts in the testimony, however, “it [is] the task of the jury to determine which testimony and evidence was more believable.” Stringer, 897 P.2d at 1071 (citation omitted). Here, the prosecutor erred by offering a personal opinion as to Dr. Oakwright’s credibility, yet Hanson failed to make a contemporaneous objection to the prosecutor’s statements. Moreover, based upon our review of the prosecutor’s entire closing argument, we conclude that the prosecutor’s isolated comment concerning Dr. Oakwright’s credibility, in context, is not prejudicial.

In summary, after considering Hanson’s arguments and reviewing the record, we agree with the State that much of the error about which Hanson now complains was a part of his own defense strategy to demonstrate that Aaron falsely accused Hanson of sexual abuse due to Emmy’s antagonism and ill will toward Hanson. In fact, with the exception of Hanson’s objection to Rowe’s rebuttal testimony, Hanson not only failed to object to this evidence at trial, but in some instances actually solicited the evidence about which he now complains. Consequently, we conclude that these alleged errors do not rise to the level of a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial or proceedings, or compromise the integrity of the judicial system. See Finley, 915 P.2d at 215. Therefore, we decline to invoke the plain error doctrine to review the issues that Hanson raises for the first time on appeal.

Additionally, Hanson has failed to prove he was prejudiced by either the challenged testimony or the prosecutor’s comments during closing argument. Rather, we agree with the State that these alleged errors were either trial strategy, proper rebuttal, or appropriate comments contrasting evidence. Consequently, we conclude that the doctrine of cumulative error also is not applicable in this case. See Campbell, 787 P.2d at 333.

Because we decline to apply the plain error doctrine, and because the doctrine of cumulative error is not applicable, we decline to address Hanson’s allegations of error further.

2. Was Hanson denied his constitutional right to effective assistance of trial counsel?

Despite Hanson’s failure to preserve the previously discussed issues for appeal and despite our refusal to review the merits of his arguments on the basis of plain or cumulative error, he asserts that we should also review these same issues within the context of his ineffective assistance of counsel argument. We evaluate claims of ineffective assistance of counsel using the two-part test as set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. State v. Boyer (1985), 215 Mont. 143, 147, 695 P.2d 829, 831. First, a defendant must demonstrate that counsel’s performance was so deficient that it fell below the level of competency reasonably demanded of attorneys under the Sixth Amendment. Second, a defendant must demonstrate that counsel’s deficient performance was so prejudicial that he was denied a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The first prong of the Strickland analysis is based upon an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-65. Moreover, “judicial scrutiny of counsel’s performance must be highly deferential.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Accordingly, the United States Supreme Court warned against “second-guessing” counsel’s assistance:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (citations omitted).

Hanson first argues that his counsel was ineffective because he did not object to Aaron’s testimony and he failed to request a pretrial hearing to assess the reliability of Aaron’s testimony to determine its admissibility as required by State v. Michaels (N.J. 1994), 642 A.2d 1372. Yet, as the State points out, Hanson’s counsel’s trial strategy was to demonstrate that Aaron’s testimony was unreliable, which he attempted to do through the testimony of Detective Lamb and Dr. Oakwright. Testing a witness’s credibility through the presentation of other witnesses and cross-examination is a traditional and widely accepted method. Furthermore, Hanson’s counsel had no duty to rely on Michaels, which is not the law in Montana in any event.

Hanson next argues that his counsel was ineffective because he did not object to Detective Lamb’s testimony or the testimony of Beatrice Rowe, Aaron’s therapist. Again, as previously discussed, Hanson’s counsel called Detective Lamb to the stand and he did so in accordance with his trial strategy to show that Aaron’s testimony was unreliable because Detective Lamb used suggestive or coercive interviewing techniques during her interview with Aaron. Furthermore, as previously noted, Hanson’s counsel did in fact object to Rowe’s rebuttal testimony.

Additionally, Hanson argues that his counsel was ineffective because he made no objection to the attacks on Hanson’s character. Again, because the essence of the defense strategy was to demonstrate that Aaron testified falsely against Hanson due to the bitter and vindictive relationship between Emmy and Hanson, Hanson’s original counsel made no objection. Finally, Hanson claims that his counsel was ineffective because his counsel failed to object to the prosecutor’s closing remarks. We previously concluded that, in context, the prosecutor was merely comparing and contrasting evidence in her closing arguments. While the one reference to Dr. Oakwright’s honesty may have been improper, trial counsel’s failure to object does not rise to the level of ineffective assistance of counsel.

While Hanson argues that he was denied his constitutional right to effective assistance of counsel, we note that his complaints actually center on his disapproval of his original counsel's trial strategy. Under the circumstances, we will not second guess his counsel’s assistance. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. While Hanson’s trial counsel's strategy was not successful, we are not prepared to hold that as a matter of law it was ineffective for Sixth Amendment purposes. Counsel’s strategy might well have prevailed with some other jury; it simply did not persuade the trial jury in this case. We conclude that Hanson has failed to demonstrate that his trial counsel’s performance was so deficient that it fell below the level of competency reasonably demanded of attorneys under the Sixth Amendment. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Because we reach this conclusion, there is no need to address the prejudice prong of the Strickland test. Accordingly, we hold that Hanson was not denied his constitutional right to effective assistance of counsel.

In summary, we decline to address, under the plain error doctrine or under the cumulative error doctrine, Hanson’s arguments that his trial was fundamentally unfair in violation of his rights under the Sixth Amendment of the United States Constitution and under Article II, Section 24 of the Montana Constitution. Additionally, we hold that Hanson was not denied his constitutional right to effective assistance of trial counsel.

Affirmed.

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


author: JUSTICE TRIEWEILER

text:
    CENEX, INC., Plaintiff and Appellant, v. BOARD OF COMMISSIONERS FOR YELLOWSTONE COUNTY, acting through the Chairperson, MIKE MATHEW and its Members, JAMES A. ZIEGLER, SR., and BILL KENNEDY, THE COUNTY OF YELLOWSTONE, THE YELLOWSTONE COUNTY TREASURER, THE DEPARTMENT OF REVENUE FOR THE STATE OF MONTANA, and THE YELLOWSTONE COUNTY ASSESSOR, Defendants & Respondents.
    No. 97-164.
    Submitted on Briefs June 19, 1997.
    Decided July 2, 1997.
    54 St.Rep. 695.
    283 Mont. 330.
    941 P.2d 964.

      For Appellant: David A. Veeder and Jolane D. Veeder, Veeder Law Firm, Billings.
    For Respondents: Dennis Paxinos, Yellowstone County Attorney; Thomas D. Gai, Deputy County Attorney; Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The appellant, Cenex, Inc., filed a complaint for declaratory judgment in the District Court for the Thirteenth Judicial District in Yellowstone County in which Yellowstone County and various County officials were named as defendants. Cenex sought a determination that it was entitled to a property tax reduction as an expanding industry. Cenex and the Board of Commissioners for Yellowstone County filed motions for summary judgment. After a hearing, the District Court denied Cenex’s motion and granted the Board’s motion. Cenex appeals. We affirm the judgment of the District Court.

The following issues are presented on appeal:

1. Did the District Court err when it concluded that the plain language of §§ 15-24-1401 and -1402, MCA, gives the Board discretion to deny, in part, Cenex’s application for property tax reduction as a new or expanding industry?

2. Did the District Court err when it awarded costs of suit to Yellowstone County when no bill of costs had been filed?

FACTUAL BACKGROUND

Between March 1992 and December 1993, Cenex constructed a 92 million dollar hydrodesulfurization (“HDS”) unit and corresponding waste water facilities in Yellowstone County. On December 22, 1993, Cenex applied to Yellowstone County for an expanding industry property tax reduction, pursuant to §§ 15-24-1401 and -1402, MCA. On December 23,1993, Cenex filed an additional application with the Air Quality Division and the Water Quality Bureau of the Montana Department of Health and Environmental Sciences (“MDHES”) to have the HDS unit and waste water facilities classified as Class 5 pollution control equipment, pursuant to § 15-6-135, MCA; Class 5 property is taxed at a significantly reduced rate.

The Board of Commissioners for Yellowstone County adopted the new and expanding industry tax reduction provided for in §§ 15-24-1401 and -1402, MCA, by Resolution 92-12 on March 26, 1992. The resolution resolved that “it is in the public interest to encourage economic development in Yellowstone County through the use of amended tax incentives for new and expanding industry.” It also described the procedures for obtaining the tax incentives in an attached Exhibit A. The Board amended Resolution 92-12 on May 31, 1994, by Resolution 94-42, which amended the definition of “qualifying” to except “property that has already received a tax reduction through some other incentive programs.” On October 4, 1994, the Board further amended part of the language in Resolution 92-12 to state that “Qualifying applicants may, in the discretion of the County Commissioners, receive property tax reductions” where it had previously stated that “Qualifying applicants will receive property tax reductions.”

After considering the application and conducting public hearings concerning the application, the Board granted Cenex’s application for its Class 4 and Class 8 property on June 29,1995. After learning from MDHES that the majority of the HDS and waste water facilities with a value of approximately 72 million dollar had been classified as Class 5 property, it denied Cenex’s application as it applied to the Class 5 property. Had Cenex’s application been fully granted, its tax reduction for the Class 5 property for 1994 would have been approximately $266,000. Prior to Cenex’s application, the Board had approved three other applications that included Class 5 property pursuant to §§ 15-24-1401 and -1402, MCA. Since the rejection of Class 5 property in Cenex’s application, the Board has consistently denied tax incentive applications for Class 5 property.

Cenex filed a complaint for declaratory judgment in the District Court. Cenex maintained that it was entitled to the tax incentive benefit pursuant to §§ 15-24-1401 and -1402, MCA, and that the Board’s partial denial of its application constituted an unauthorized exercise of discretion pursuant to the statute. Cenex and the Board both filed motions for summary judgment. After a hearing, the District Court denied Cenex’s motion and granted the Board’s motion for summary judgment. The court held that the Board is immune from suit pursuant to § 2-9-111, MCA. It also held, however, that the clear language of §§ 15-24-1401 and -1402, MCA, gives the Board discretion to reject or approve applications and, therefore, that the Board acted within its authority when it excepted Cenex’s Class 5 property from the tax reduction. Finally, it awarded costs to Yellowstone County in the amount of $852.75 for deposition and photocopy expenses.

DISCUSSION

Did the District Court err when it concluded that the plain language of §§ 15-24-1401 and -1402, MCA, gives the Board discretion to deny in part Cenex’s application for property tax reduction as a new and expanding industry?

When we review a District Court’s order granting summary judgment, we consider the issue decided de novo. Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. We determine whether there is an absence of genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. Brinkman & Lenon v. P&D Land Enterprises (1994), 263 Mont. 238, 241, 867 P.2d 1112, 1114; Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214.

Section 15-24-1402, MCA, states in relevant part:

(1) In the first 5 years after a construction permit is issued, qualifying improvements or modernized processes that represent new industry or expansion of an existing industry, as designated in the approving resolution, must be taxed at 50% of their taxable value. Each year thereafter, the percentage must be increased by equal percentages until the full taxable value is attained in the 10th year. In subsequent years, the property must be taxed at 100% of its taxable value.
(2) (a) In order for a taxpayer to receive the tax benefits described in subsection (1), the governing body of the affected comity or the incorporated city or town must have approved by separate resolution for each project, following due notice as defined in 76-15-103 and a public hearing, the use of the schedule provided for in subsection (1) for its respective jurisdiction. The governing body may not grant approval for the project until all of the applicant’s taxes have been paid in full. Taxes paid under protest do not preclude approval.
(b) The governing body may end the tax benefits by majority vote at any time, but the tax benefits may not be denied an industrial facility that previously qualified for the benefits.
(c) The resolution provided for in subsection (2)(a) must include a definition of the improvements or modernized processes that qualify for the tax treatment that is to be allowed in the taxing jurisdiction. The resolution may provide that real property other than land, personal property, improvements, or any combination thereof is eligible for the tax benefits described in subsection (1).
(3) The taxpayer shall apply to the department for the tax treatment allowed under subsection (1). The application by the taxpayer must first be approved by the governing body of the appropriate local taxing jurisdiction, and the governing body shall indicate in its approval that the property of the applicant qualifies for the tax treatment provided for in this section. Upon receipt of the form with the approval of the governing body of the affected taxing jurisdiction, the department shall make the assessment change pursuant to this section.

In this case, Cenex contends that the language of the statute obligates the local governing body to grant the tax incentive to applicants who have complied with the specific application requirements. We recently stated:

In interpreting a statute, the prime consideration must be defining the objectives the legislature sought to achieve. Montana Wildlife Federation v. Sager (1980), 190 Mont. 247, 264, 620 P.2d 1189, 1199. The legislative intent is to be ascertained, in the first instance, from the plain meaning of the words used. Boegli v. Glacier Mountain Cheese Co. (1989), 238 Mont. 426, 429, 777 P.2d 1303, 1305. If the intent of the legislature can be determined from the plain meaning of the words used in the statute, the plain meaning is controlling and the Court need not go further and apply any other means of interpretation. Phelps v. Hillhaven Corp. (1988), 231 Mont. 245, 251, 752 P.2d 737, 741.

Hern Farms, Inc. v. Mutual Benefit Life Ins. Co. (1996), 280 Mont. 436, 930 P.2d 84, 87. In this case, we conclude that the plain language of the statute clearly reflects the Legislature’s intent that tax reductions for improvements which constitute new or expanded industry be granted at the discretion of the local governing body.

The statute grants discretion to the local governing body in several ways. First, as cited by the District Court, the plain language of § 15-24-1402(2)(a), MCA, requires Board “approv[al] by separate resolution for each project.” Additionally, subsection (2)(b) allows the Board to “end the tax benefits by majority vote at any time,” and subsection (2)(c) allows the Board to “provide that real property other than land, personal property, improvements, or any combination thereof is eligible for the tax benefits described in subsection (1).” If the Board can make eligible any combination of property, it necessarily follows that the Board may exclude any combination of property.

Thus, every application is subject to the Board’s review and approval pursuant to § 1402 before it qualifies to receive the tax incentive. The statute’s operation clearly contemplates a substantive role for the Board in its consideration of each application, and the statute as a whole must be read to grant the Board discretion to approve or deny applications for the tax incentive.

Finally, we have previously discussed the implications of statutory use of the word “approval” in McCarten v. Sanderson (1941), 111 Mont. 407, 415, 109 P.2d 1108, 1111. There, we stated, “ ‘[a]pproval of the application’ is not ordinarily limited in meaning to a mere verification of the facts stated in the application. ‘Approval’implies knowledge and the exercise of discretion after knowledge, the exercise of judgment... unless limited by the context of the statute.” McCarten, 111 Mont. at 415, 109 P.2d at 1111 (citations omitted). Here, the statute neither limits the Board’s authority to approve or deny applications, nor does it provide specific requirements for the Board to follow in its decision. Rather, the Board has the explicit authority both to end the benefit and to determine that “any combination [of property] is eligible for the tax benefits.” Section 15-24-1402(2)(c), MCA. Accordingly, “approve” must be interpreted in its ordinary sense to confer discretion on the Board to approve or deny applications pursuant to the statute.

Cenex contends that the Board’s denial of its application as to Class 5 property constitutes an illegal and discriminatory exercise of discretion pursuant to the statute. First, however, the statute plainly grants the Board authority to approve or deny tax applications, including the discretion to make certain kinds of property eligible and other kinds ineligible. Second, the Board’s approval of three previous applications that included Class 5 property did not preclude a change in the Board’s policy, based on its continued experience with revenue impacts. As the District Court stated, “[t]he fact that earlier taxpayers were allowed tax benefits on Class 5 property did not mean that the Commissioners were required to grant such benefits forever concerning such property.”

In fact, the Board had previously been unaware of the full consequences of approving the tax incentive pursuant to §§ 15-24-1401 and -1402, MCA, for Class 5 property. Since its realization, the Board has consistently denied applicants the new or expanding industry tax incentive for Class 5 property. The potential and significant loss of tax revenue to the County and its schools if Class 5 property receives the additional tax benefit is of legitimate interest to the County and one obvious reason why governing bodies were granted discretion to approve or deny each application. Furthermore, the means chosen by the Legislature to safeguard this interest is rationally related to that objective and, therefore, does not violate substantive due process, as asserted by Cenex. See Plumb v. Fourth Judicial Dist. Court (1996), 279 Mont. 363, 927 P.2d 1011, 1016.

Cenex also contends that language in Exhibit Ato Resolution 92-12 compels the Board to grant the tax benefit upon Cenex’s completion of the necessary administrative procedures. It relies on the statement that “Qualifying applicants will receive property tax reductions.” However, Cenex ignores other language that clearly reaffirms the Board’s discretion. For example, Exhibit A’s definition of “qualifying” tracks the language in § 15-24-1401, MCA, and the following statement plainly notifies the applicant that receipt of the tax benefit is subject to the Board’s approval: “The [Board] may approve an application by separate resolution ... only after the applicant has completed the following ....” (Emphasis added.) Contrary to Cenex’s assertion, this statement does not render the statute’s and Exhibit’s definition of “qualifying” meaningless. Rather, it serves to implement the statutory grant of discretion to the Board. As stated by the District Court, none of the resolutions relied on by Cenex constituted the separate resolution called for by statute to approve an application. Thus, regardless of which resolution the Board applied in considering Cenex’s application, ultimately, the Board was statutorily entitled to either approve or to deny the application.

Both parties spend considerable time addressing whether the Board has immunity pursuant to § 2-9-111, MCA, which pertains to legislative acts. Cenex’s complaint, however, seeks a declaratory judgment regarding the meaning of §§ 15-24-1401 and -1402, MCA. The Board’s liability is not at issue. Therefore, we need not address the issue of legislative immunity. We conclude that the plain language of §§ 15-24-1401 and -1402, MCA, grants discretion to the local body to approve or disapprove tax reduction for improvements related to new or expanding industry, and thatthe record disclosesno issues of material fact. For that reason, we affirm the judgment of the District Court.

ISSUE 2

Did the District Court err when it awarded costs of suit to Yellowstone County when no bill of costs had been filed?

Cenex has raised for the first time on appeal its objection to the District Court’s award of $852.75 to the Board for deposition and photocopy costs. Its objection is based on the Board’s failure to file a bill of costs pursuant to § 25-10-201, MCA. Generally, we will not consider issues raised for the first time on appeal. State v. Weeks (1995), 270 Mont. 63, 86, 891 P.2d 477, 491. Here, however, the Board’s failure to file a bill of costs deprived Cenex of its opportunity to object in the District Court and, thus, we conclude that Cenex cannot be deemed to have waived its right to appeal the award of costs.

The Board’s failure to file a bill of costs constitutes a waiver of its right to costs. See, e.g., Bloemsma v. Auto Club Ins. Ass’n (1991), 190 Mich.App. 686, 476 N.W.2d 487; DeWald v. Isola (1991), 188 Mich.App. 697, 470 N.W.2d 505; Hydratec, Inc. v. Sun Valley (1990), 223 Cal.App.3d 924, 272 Cal.Rptr. 899. Accordingly, we hold that the District Court erred when it assessed the $852.75 for deposition and photocopy costs against Cenex after the Board failed to file a bill of costs.

We affirm the District Court’s order granting summary judgment to the Board and denying summary judgment to Cenex. We reverse the District Court’s order awarding costs to the Board, and remand to the District Court for entry of judgment consistent with this opinion.

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


text:
    IN RE THE MARRIAGE OF SALLY PERRINE NAGRA, Petitioner and Respondent, and DAVID A. NAGRA, Respondent and Appellant.
    No. 97-146.
    Decided April 1, 1997.
    54 St.Rep. 280.
    283 Mont. 339.
    943 P.2d 82.
   OPINION AND ORDER

Appellant David A. Nagra and respondent Sally Perrine Nagra have filed a joint motion and stipulation for an extension of time in which to complete the mandatory mediation of their case required by Rule 54, M.R.App.P. They request that the 75-day mediation deadline contained in Rule 54, M.R.App.P., be continued for an additional 45 days “in order that sufficient time be allowed for exploring settlement possibilities and so that the mediation process can take place at a time that is convenient to all concerned.”

Rule 54(b), M.R.App.P., expressly provides that the parties and the mediator have 75 days within which to complete the required mediation. The Rule does not contain a provision for extending that period of time for the convenience of the parties. N or, of course, does the Rule require the parties to cease pursuing settlement possibilities at the end of the 75-day time period provided for the required mediation process; indeed, Rule 54(g)(3), M.R.App.R, explicitly encourages parties to continue to pursue settlement efforts in the event the case is not resolved via the mediation process and returns to the ordinary appeal process.

Moreover, we issued an Opinion and Order on January 30, 1997, clarifying that Rule 54 is intended to benefit both litigants and this court and that the provisions of Rule 54, M.R.App.R,

were designed to be, and are, self-executing. Otherwise, the caseload of the Court will not decrease, but may very well increase as the Court considers and rules upon motions which address the mediation process, such as motions to opt out of the mediation requirements, motions for substitution of mediators, extensions of time to file statements of position and the myriad of other forms of relief that counsel may seek. Correspondingly, the parties will incur additional expense on appeal during this process. The result will be self-defeating and thwart the goals of the appellate mediation program. Consequently, this Court will not insert itself in the process except under unusual or extraordinary circumstances.

Harwood v. Glacier Electric Cooperative, Inc. (1997), [282 Mont. 38], 939 P.2d 981.

The joint motion requesting an extension of time to complete the mediation process is not permitted under the provisions of Rule 54, M.R.App.P. Furthermore, we take this opportunity to caution appellate practitioners that, with this Opinion and Order, we have twice clearly provided notice that Rule 54, M.R.App.P., is self-executing and does not authorize motion practice before this Court. We will look with disfavor on further efforts by counsel in cases subject to the Rule to involve this Court in Rule 54, M.R.App.R, proceedings via motions.

We observe, in conclusion, that the amended notice of appeal in this cause number — which reflects that the appeal is subject to the mediation process required by Rule 54, M.R.App.P. — was filed on February 4, 1997; the mediation conference is scheduled for April 4, 1997, which is approximately 60 days after the filing of the notice of appeal. The mediator will have approximately 15 days thereafter to file the required mediator’s report before the 75-day limit for the mediation process runs and, in this regard, Rule 54(g), M.R.App.R, requires the filing of that report “[(Immediately upon the conclusion of the mediation conference.”

The Court having fully considered the matter,

IT IS ORDERED that the joint motion for an extension of time within which to complete the mediation process required by Rule 54, M.R.App.P., is DENIED.

The Clerk is directed to mail a true copy of this Opinion and Order to counsel of record for the parties and to the mediator appointed to mediate this case.

DATED this 1st day of April, 1997.

/S/J. A. TURNAGE

/S/KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/WILLIAM E. HUNT, SR.

/S/ JIM REGNIER

* * *

JUSTICE TRIEWEILER would grant the motion for extension of time.


text:
    JAMES P. CHALLINOR and BETTY E. CHALLINOR, Plaintiffs and Appellants, v. GLACIER NATIONAL BANK and DOUGLAS B. REMICK, Defendants and Respondents.
    No. 97-218.
    Ordered June 10, 1997.
    54 St.Rep. 520.
    283 Mont. 342.
    943 P.2d 83.
   OPINION AND ORDER

Respondents in the above-entitled action move this Court to dismiss the appeal for failure of Appellants to file a notice of appeal within the time allotted. Appellants oppose the motion, contending that the District Court’s grant of an extension of time in which to file a brief in support of a post-trial motion effectively suspended the time allotted until the brief was filed. We conclude that the District Court cannot change the time in which an appeal must be filed by granting post-trial extensions.

The following dates are relevant to the calculation of the time allotted in which to file a notice of appeal:

1. On December 13, 1996, notice of entry of judgment in the underlying case is filed;

2. On January 2, 1997, the Plaintiffs/Appellants file a post-trial motion to alter or amend the judgment;

3. On February 3,1997, the District Court grants the Plaintiffs/Appellants an extension of time in which to file a reply brief regarding the post-trial motion. The District Court orders the reply brief filed on or before February 19, 1997;

4. On March 18, 1997, the District Court denies the post-trial motion;

5. On April 17, 1997, the Appellants file their notice of appeal.

Respondents, in moving to dismiss the appeal, note that the District Court had 60 days from the filing of the post-trial motion in which to rule on it. If a District Court does not rule on a post-trial motion within the time allotted, the motion is deemed denied. Rules 59(g) and 59(d), M.R.Civ.P. Since the post-trial motion was filed on January 2, 1997, Respondents contend this time allotted expired on March 3,1997, and the motion was then deemed denied. Respondents then had 30 days after the motion was deemed denied in which to file their notice of appeal. Rule 5(a)(1), M.R.App.P. Respondents contend this time allotted expired on April 2, 1997. They therefore contend that Respondents notice of appeal, filed on April 17, 1997, was not timely filed.

Appellants respond by arguing that the District Court’s grant of additional time in which to file their reply brief to the post-trial motion had the effect of tolling the running of the time clock until the end of the extension period. Since the District Court granted them an additional sixteen days in which to file their brief, the Appellants contend the District Court then had an additional sixteen days in which to consider the motion, and that they had an additional sixteen days in which to file the notice of appeal once the District Court denied their post-trial motion. They therefore argue that their notice of appeal, filed fifteen days after the time would have expired absent an extension, was timely filed.

In support of their position, the Appellants cite Britton v. Burlington Northern, Inc. (1979), 184 Mont. 107, 601 P.2d 1192, in which this Court held that “[t]he District Court’s order extending the time for filing a supporting brief by necessary implication extends the time for its ruling on the motion.” Britton, 601 P.2d at 1193. We reasoned that the continued running of the time clock in the face of the District Court’s grant of an extension would place the District Court “in the untenable position of having to rule on the motion before appellant’s brief [on the motion] was submitted or the motion would be deemed denied.” Britton, 601 P.2d at 1194. We held that this would be unconscionable. 601 P.2d at 1194.

In subsequent cases, however, this Court has held that the time requirements of Rule 59, M.R.Civ.P., are jurisdictional and must be complied with exactly. For example, in Lerum v. Logue (1982), 198 Mont. 194, 645 P.2d 418, this Cotut noted that a party has 30 days from the date his or her motion is deemed denied in which to file a notice of appeal. Lerum, 645 P.2d at 419. We further stated:

While we have acknowledged that this rule may, in some cases, work harsh results, we have also emphasized that the public has the right to the expectation of finality of judgments. The time and procedural limitations for motions subsequent to judgment set out in Rule 59, M.R.Civ.P., are mandatory and are strictly enforced.

Lerum, 645 P.2d at 419 (emphasis added; citations omitted). In Marvel Brute Steel Bldg. v. Bass (1980), 189 Mont. 480, 616 P.2d 380, this Court noted that Rule 6(b), M.R.Civ.P. prohibits a district court, faced with a Rule 59(g), M.R.Civ.P. motion to amend a judgment, from granting extensions outside of those expressly provided in the Rule itself. We noted that:

[accepting the defendants’ argument that the motion for a new trial was to be considered submitted to the trial court, only upon completion of briefing by both sides, would mean that a time period for an appeal to run could never be fixed. The parties could control the time period simply by not getting the briefs expeditiously filed. ... Furthermore, the defendants’ interpretation would result in an untenable situation extending the time for appeal thirty days after the District Court ruled, whenever that may be.

Marvel, 616 P.2d at 382.

A district court cannot grant extensions under Rule 59(g), M.R.Civ.R for additional briefing time. Rule 6(b), M.R.Civ.R To the contrary, a district court must rule on the motion within the time allotted without regard to the status of the briefing. If a district court fails to rule on the motion within the time allotted, the motion is deemed denied. Rules 59(g) and 59(d), M.R.Civ.P. Therefore, the district court had 60 days from the date the motion was filed in which to rule on it. This time expired on March 3, 1997. At that time, the motion was deemed denied. From the denial of the motion, Appellants had 30 days, or until April 2, 1997, in which to file their notice of appeal. Since they did not file a notice of appeal until after that date, the notice was not timely filed.

The failure of Appellants to file their notice of appeal within the time allotted is an absolute jurisdictional bar to this Court’s consideration of the appeal. Rule 4, M.R.App.P; Winn v. Winn (1982), 200 Mont. 402, 409, 651 P.2d 51, 54. For this reason, Respondents’motion to dismiss is granted and the appeal is dismissed.

The Clerk of this Court is directed to mail a copy of this order to counsel of record.

DATED this 10th day of June, 1997.

/S/J. A. TURNAGE

/S/WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART

/S/KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER