author: JUSTICE LEAPHART

text:
    SHAUN GILLULY, Plaintiff and Appellant, -vs-KIE MILLER, Defendant and Respondent.
    No. 94-544.
    Submitted on Briefs February 16, 1995.
    Decided March 16, 1995.
    52 St.Rep. 178.
    270 Mont. 272.
    891 P.2d 1147.

      For Appellant: Stephen D. Roberts, Attorney at Law, Bozeman.
    For Respondent: Gene I. Brown, Steve Reída, Attorneys at Law, Bozeman.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Plaintiff, Shaun Gilluly, appeals from the decision of the Eighteenth Judicial District Court disallowing as costs the expense of videotaped depositions used by the plaintiff at trial in which the jury returned a verdict for the plaintiff. We reverse.

Background

Plaintiff Shaun Gilluly filed a complaint for injuries he received to his neck and upper back in a rear-end collision caused by the defendant, Kie Miller. Gilluly sought recovery under a negligence claim for his compensatory damages and also sought punitive damages on the basis that Miller was highly intoxicated when he caused the collision.

Prior to trial, Gilluly took three video taped depositions to perpetuate the testimony of witnesses who would be out of state at the time of trial. These witnesses were Gilluly’s former coworker, Shannon Williams, a California resident; Joseph Kasperick; and treating physician Dr. Frank Seitz.

The case was tried before a jury. The video tape perpetuation deposition testimony of Williams, Kasperick and Dr. Seitz was presented to the jury by the plaintiff, without objection from the defendant. The jury returned verdicts for the plaintiff in the total amount of $95,283, ofwhich $80,283 was compensatory damages and $15,000 was punitive damages.

Following entry of judgments for the plaintiff for compensatory and punitive damages, plaintiff filed his memorandum of costs and disbursements. Plaintiff requested that the defendant be assessed costs for the videotape and transcript of the perpetuation depositions of Williams in the amount of $649.45; Kasperick in the amount of $220.50; and Dr. Seitz in the amount of $742.50. Miller filed an objection to Gilluly’s memorandum of costs contending that Gilluly should be reimbursed only for the cost of the written deposition transcripts and not for the costs of videotaping. After a hearing on the matter, the court granted defendant’s request to disallow the $1,284.76 costs of the videotaped depositions.

In denying the costs of the video depositions, the District Court held as follows:

The way I read the statute is that a party certainly has the right to take video depositions, but that election is at that party’s own expense, otherwise there is an obligation to produce the witness in court. And since the witness was the witness for the plaintiff in this case in lieu of presenting the witness live in court, they utilized a video deposition and in that way satisfied their obligation to produce the witness. So it will be the ruling, counsel, that costs set forth in plaintiff’s bill of costs be reduced by the amount of $1,284.76.

Standard of Review

In reviewing a district court’s award of costs, the standard of review is whether the district court abused its discretion. Erickson v. Dairyland Ins. Co. (1990), 241 Mont. 119, 124-25, 785 P.2d 705, 708.

Issue

Did the District Court err in denying the reasonable expense of videotaped depositions which were used at trial as recoverable costs under Rule 30(h)(5), M.R.Civ.P.?

Rule 30(h), M.R.Civ.P, provides that any deposition may be recorded by audio-visual or tape recorded means without a stenographic record. Subsection (5) of Rule 30(h) provides, “[t]he reasonable expense of recording, editing, and using an audio-visual or tape recorded deposition may be taxed as costs as provided by law.” Section 25-10-201, MCA, provides:

Costs generally allowable. A party to whom costs are awarded in an action is entitled to include in his bill of costs his necessary disbursements, as follows:

(2) the expenses of taking depositions', .... [Emphasis added.]

We find that our decision in Thayer v. Hicks (1990), 243 Mont. 138, 793 P.2d 784, is controlling. In Thayer, Montana Merchandising presented the testimony of one of its witnesses at trial, Tom Jenkins, by means of a video taped deposition. While the jury viewed the tape, the court and the parties followed along with written transcripts of the video taped deposition so that the parties could make objections and the court could rule upon the objections. In its bill of costs, Montana Merchandizing sought to charge the expense of both videotaping and transcribing Jenkins’ deposition. Bloomgren claimed that both charges were improper. In concluding that the charges were taxable, this Court stated:

As we noted earlier, the costs of a deposition used at trial are properly taxable. Cash [v. Otis], 210 Mont. [319,] 333, 684 P.2d [1041,] 1048 [(Mont. 1984)]. Furthermore, Rule 30(h)(5), M.R.Civ.R, provides, “The reasonable expense of recording, editing, and using an audio-visual or tape recorded deposition may be taxed as costs as provided by law.” This rule, however, remains subject to the limitation that the audio visual or tape recording must be used at trial before the expenses incurred in obtaining such a deposition may be charged to the opposing party. In this case, both the video tape and the written transcript of Jenkins’ deposition were used at trial, therefore, the expenses of both may be charged to Bloomgren.

Thayer, 793 P.2d at 798.

Miller contends that the District Court’s denial of video taped depositions as actual costs follows strong precedent from this Court that the prevailing party’s costs of depositions are not awardable when the deposition is taken solely for the party’s own convenience. Although Miller did not object to the video depositions at the time of trial, Miller contends that Dr. Seitz and Joe Kasperick could have been subpoenaed for appearance at trial. Thus, Miller contends that presentation of their video taped depositions was solely for Gilluly’s own “convenience.” Miller relies on our decisions in Morrison-Maierle, Inc. v. Selsco (1980), 186 Mont. 180, 606 P.2d 1085, and Lovely v. Burroughs Corp. (1974), 165 Mont. 209, 527 P.2d 557. Neither one of these decisions stands for the proposition that a party cannot properly tax the costs of a deposition (be it video or transcribed) used at trial unless the party shows that the witness could not have been subpoenaed to appear at trial. In Morrison-Maierle, the question was whether Morrison-Maierle could properly be awarded costs for the expense of a deposition transcript that Morrison-Maierle provided to Selsco which then used it as evidence at trial. In affirming an award of costs for this deposition, we stated:

Since it was so used, we conclude that it was properly part of the costs of the action. The distinction is that if a deposition is taken solely for a party’s own convenience, he cannot properly charge it to the other party as part of the costs. Lovely v. Burroughs Corp. (1974), 165 Mont. 209, 527 P.2d 557, appeal after remand 169 Mont. 454, 548 P.2d 610; Johnson v. Furgeson, et al. (1971), 158 Mont. 170, 489 P.2d 1032. Here the copy was furnished to [Selsco] at [Morrison-Maierle’s] expensed, and used by [Selsco] at trial. It has no ground to complain.

Morrison-Maierle, 606 P.2d at 1088.

In Lovely, we cited our decision in Johnson v. Furgeson et al. (1971), 158 Mont. 170, 489 P.2d 1032, for the proposition that depositions taken for the convenience of the deposing party in marshalling his own case must be borne by that party. Lovely, 527 P.2d at 563.

In Johnson, 489 P.2d at 1035, this Court denied an award of costs for deposition expenses stating,

It cannot be included in his bill of costs because that deposition was obviously a discovery deposition for defendant’s benefit. The deposition was never filed with the district court and plaintiff’s counsel did not have any practical means of securing a copy.

We conclude that depositions which are not used at trial are for the “convenience of counsel” and are not recoverable costs. On the other hand, expenses incurred in taking depositions which are filed with the district court and are used at trial are not for the “convenience” of the litigant and, thus, constitute recoverable costs under Rule 30(h)(5), M.R.Civ.P. See Sage v. Rogers (1993), 257 Mont. 229, 242, 848 P.2d 1034, 1042 and Cash v. Otis Elevator Co. (1984), 210 Mont. 319, 684 P.2d 1041, in which we recognized that costs of a deposition used at trial for impeachment are allowable.

The lower court abused its discretion in denying as costs the reasonable expense of video depositions which were used at trial.

We conclude that the costs associated with video depositions used at trial are not for the convenience of the parties and are therefore allowable costs under Rule 30(h)(5), M.R.Civ.R

Reversed.

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

      . It should be noted that in the published opinion of Morrison-Maierle, 606 P.2d at 1088, there is a typographical error. The last sentence of the published opinion reads as follows: “With the exception of the Wetstein deposition which should be excluded as an item of costs, the judgment of the District Court is affirmed.” (Emphasis added.) It is clear from reading the Court’s opinion that the Wetstein deposition was to be included as an item of costs and that the partial transcript of the trial was to be excluded as an item of costs. Accordingly, the opinion should read: ‘With the exception of the partial trial transcript which should be excluded as an item of costs, the judgment of the District Court is affirmed.”


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    CANDANCE E. BURLINGHAM and ALVIN BURLINGHAM, Plaintiffs and Appellants, v. GARY R. MINTZ, D.D.S., Defendant and Respondent.
    No. 94-291.
    Submitted January 19, 1995.
    Decided March 16, 1995.
    52 St.Rep. 181.
    270 Mont. 277.
    891 P.2d 527.

      For Appellants: John M. Morrison (argued), Meloy & Morrison, Helena.
    For Respondent: Keith Strong (argued), Dorsey & Whitney, Great Falls.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellants Candance and Alvin Burlingham appeal from an order of the Nineteenth Judicial District Court, Lincoln County, granting summary judgment to respondent Gary R. Mintz, D.D.S.

Reversed and remanded.

The issue on appeal is as follows:

Did the District Court err by excluding appellants’ standard of care experts?

On March 21, 1990, Candance Burlingham visited Dr. Mintz for a check-up and teeth cleaning. Dr. Mintz determined that she needed further treatment. Dr. Mintz also determined that Candance suffered from temporomandibular joint (TMJ) pain. On April 20, 1990, Can-dance returned to Dr. Mintz for treatment of her upper left rear molar. After applying a local anesthetic, Dr. Mintz noted that Candance had difficulty keeping her mouth open. To help keep her mouth open, Dr. Mintz placed a bite block between Candance’s jaws. A bite block is a rubber coated tapered device with a serrated surface to keep it in place. The bite block was left in for approximately 45 minutes to one hour while Dr. Mintz completed the work. Later that day Candance began to suffer severe TMJ pain which did not abate. Dr. Mintz filled several more of Candance’s teeth over the next few months, although he was hindered by her TMJ pain. In October 1990, Dr. Mintz referred Candance to a Kalispell specialist who attempted, without success, to relieve Candance’s pain. Eventually, Candance underwent restorative arthroscopic surgery in Spokane, Washington, to alleviate her TMJ pain.

On September 18, 1992, appellants filed suit alleging that Dr. Mintz’s negligence caused Candance’s TMJ injury. Appellants’ first standard of care expert, Dr. James McGivney, was deposed on June 11, 1993. On August 12,1993, appellants filed a motion asking the District Court to qualify Dr. McGivney as an expert. Respondent filed a motion to exclude the testimony of Dr. McGivney, arguing that he lacked any knowledge of practice in Eureka, Montana, and that he had never practiced any place similar.

On February 8,1994, the District Court denied appellants’ motion finding that Dr. McGivney, a suburban St. Louis dentist, was not familiar with the standards of practice or medical facilities available in Eureka, Montana, in a similar locality in Montana, or a similar locality anywhere in the country. The District Cotut granted appellants until the end of February to find another expert.

Appellants identified Dr. Robert Staley, an oral surgeon practicing in Albany, Oregon, as their second standard of care expert. On May 2, 1994, respondent moved to exclude the testimony of Dr. Staley, arguing that as an oral surgeon practicing in Albany, Oregon, Dr. Staley had no idea of the standard of care in Eureka or a similar community. On May 31, 1994, the District Court excluded the testimony of Dr. Staley after applying the same analysis used to exclude the testimony of Dr. McGivney.

On June 7,1994, respondent filed a motion for summary judgment, arguing that appellants were not able to present expert testimony to meet their burden of proof to establish a prima facie case of a violation by respondent of his standard of care. The District Court granted respondent’s motion. Appellants appeal from the order granting summary judgment.

Did the District Court err by excluding appellants’ standard of care experts?

The district court has broad discretion to determine whether evidence is relevant and admissible, and absent a showing of abuse of discretion, the trial court’s determination will not be overturned. State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380; State v. Crist (1992), 253 Mont. 442, 445, 833 P.2d 1052, 1054.

The District Court excluded the testimony of appellants’ proposed standard of care experts after modifying the standard of care applicable to dentists set forth in Negaard v. Feda’s Estate (1968), 152 Mont. 47, 446 P.2d 436, by applying the standard of care applicable to general practice physicians set forth in Chapel v. Allison (1990), 241 Mont. 83, 785 P.2d 204, and followed in Falcon v. Cheung (1993), 257 Mont. 296, 848 P.2d 1050. In Negaard, we held that a dentist who undertakes to treat a patient assumes a duty to that patient to exercise such reasonable care and skill as is usually exercised by a dentist in good standing in the community in which he or she resides. After due consideration, this Court now concludes that the standard of care enunciated in Negaard is no longer appropriate for non-emergency dental care in Montana. To the extent that Negaard is in conflict with this opinion, Negaard is hereby overruled. Just as the residents of Eureka, Montana, are entitled to the same standard of care from an attorney or an architect as are the residents of any community in the United States; the residents of Eureka, Montana, are entitled to the same standard of non-emergency dental care as are the residents of any community in the United States.

In Chapel, this Court held that a non-board certified general practitioner is held to the standard of a reasonably competent general practitioner acting in the same or similar community or in the same or similar circumstances. The application of Chapel is limited to general practice physicians in an effort to ensure that rural communities have access to the essential medical services provided by the general practitioner. Chapel does not apply to local certified specialists, or board certified general or family medical practitioners, nor does it apply to dentists. The policy consideration that necessitates the Chapel standard of care applicable to general practice physicians in rural Montana communities does not exist for dentists in rural Montana communities. There is no evidence to suggest that rural communities suffer from a shortage of dentists, or that dental negligence claims have had a chilling effect on dental services in rural communities.

The District Court concluded that appellants’proposed experts had no idea of the standards of practice in Eureka, Montana, in a similar locality in Montana, or in a similar place anywhere else in the country. A review of the testimony of respondent’s and appellants’ standard of care experts reveals little, if any, contradictory testimony as to the applicable standard of care for a dentist treating a patient suffering from TMJ pain in Eureka, Montana, or any other community in the country. Respondent’s first standard of care expert testified that, with the exception of limited specialties, the same standard of care that applies to dentists in San Francisco and Kalispell, applies to dentists in Eureka. He agreed that the standard of care required in the diagnosis of and the treatment decisions regarding TMJ pain would be the same in San Francisco, Kalispell, and Eureka. Respondent’s second standard of care expert testified that in non-emergency situations the standard of care for dentists in Eureka is the same as the non-emergency standard of care anywhere else in the United States.

In Montana, proof of dental negligence usually requires expert testimony. See Newville v. State, Department of Family Services (1994), [267 Mont. 237], 883 P.2d 793, 805. The foundation for that testimony must necessarily include evidence that the witness is familiar with the standard of care at the time when, and the place where, the alleged act of negligence occurred. Expert testimony may consist of direct or indirect knowledge of the standard of care in the community where the act occurred or in a similar community. Rule 703, M.R.Evid.; Hunsacker v. Bozeman Deaconess Foundation (1978), 179 Mont. 305, 323, 588 P.2d 493, 502. Expert testimony, as in the present case, may be based on evidence that the standard of care for the procedure at issue is the same in all communities, regardless of size or location. If the basis of the witness’s familiarity with the applicable standard of care is that the standard of care is uniform throughout the United States, and if evidence to the contrary is presented, then the issue raised by the contrary evidence goes to the weight of the witness’s testimony, but does not preclude its admission. Section 26-1-203, MCA; Kavick v. Reilly (1988), 233 Mont. 324, 333, 760 P.2d 743, 748.

We conclude that appellants’ standard of care experts were familiar with the applicable non-emergency standard of care for dentists in Eureka if, by either direct or indirect knowledge, they were familiar with the applicable non-emergency standard of care for dentists in their communities, regardless of size or location. As a result, we hold that the District Corut erred by excluding appellants’ standard of care experts.

After excluding appellants’ standard of care experts, the District Court granted respondent’s motion for summary judgment, concluding that appellants were not able to present expert testimony to meet their burden of proof to establish a prima facie case of violation by respondent of the applicable standard of care.

Summary judgment is only proper when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Spain-Morrow Ranch, Inc. v. West (1994), 264 Mont. 441, 442, 872 P.2d 330, 332. Appellants provided two appropriate standard of care experts, and therefore, met their burden of establishing a prima facie case of violation by respondent of the applicable standard of care.

We reverse the summary judgment and remand this case to the District Court for further proceedings.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, TRIEWEILER, NELSON, LEAPHART and WEBER concur.


author: CHIEF JUSTICE TURNAGE

text:
    KAPNER, WOLFBERG & ASSOCIATES, INC., a California corporation, Plaintiff and Respondent, v. BLUE CROSS AND BLUE SHIELD OF MONTANA, a Montana corporation, Defendant and Appellant.
    No. 94-452.
    Submitted on Briefs February 9, 1995.
    Decided March 16, 1995.
    52 St.Rep. 184.
    270 Mont. 283.
    891 P.2d 530.

      For Appellant: Stuart L. Kellner and John Alke, Hughes, Kellner, Sullivan & Alke, Helena.
    For Respondent: Peter Michael Meloy and John M. Morrison, Meloy & Morrison, Helena.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Kapner, Wolfberg & Associates, Inc. (KWA), seeks to recover monies due under a contract between Blue Cross and Blue Shield of Montana (BCBS) and St. Peter’s Community Hospital of Helena, Montana. Upon a jury verdict in favor of KWA, the District Court for the First Judicial District, Lewis and Clark County, entered judgment of $144,968.64 plus interest and costs. BCBS appeals from the District Court’s denial of its post-trial motion for judgment notwithstanding the verdict. We affirm.

BCBS states the issue as whether an indemnitor may be held liable on claims for which its indemnitees had no liability. We restate the issue as whether the District Court erred in failing to enter judgment notwithstanding the verdict.

In June 1989, KWA contracted with St. Peter’s Community Hospital to analyze hospital patient accounts closed within the previous eighteen months. Using the corresponding medical records, KWA identified items not included in the original hospital bills and issued rebills for those items. This process was undertaken only in regard to accounts on which there was a third-party payor other than Medicare or Medicaid. The rebills were sent only to the insurer, not to the insured.

When BCBS became aware of this rebilling practice, it refused to pay any more of the rebills and reversed payments it had already made to the hospital on rebilled charges. BCBS advised the hospital that it would no longer process bills for omitted charges submitted as a result of KWA’s analysis.

After negotiations between the hospital and BCBS on this subject failed, the hospital assigned to KWA its right to recover the charges in the rebills. KWA then commenced this action.

KWA presented evidence at trial that the contract between the hospital and BCBS entitled it to recover the disputed amounts. Additionally, it presented evidence that hospital patients who were insured by BCBS routinely signed a form assigning to the hospital the right to charge BCBS directly. KWA further argued that BCBS was liable for tort damages for neglecting to attempt prompt, fair, and equitable settlement of claims in which liability had become reasonably clear.

BCBS argued that it was not liable to pay the claims in the rebills because the rebills resulted in its insureds being charged more than other hospital patients, which was prohibited in the agreement between BCBS and the hospital. BCBS also argued that it was not liable to pay the claims because its insureds were not sent copies of or held liable for the rebilled charges.

The jury found for KWA on the contract claim and for BCBS on the tort claim. BCBS appeals from the District Court’s denial of its post-trial motion for judgment notwithstanding the verdict.

Did the District Court err in failing to enter judgment notwithstanding the verdict?

In considering a motion for judgment notwithstanding the verdict (n.o.v.), the court must view the evidence in a light most favorable to the opposing party and deny the motion if a prima facie case is made. The court must decide whether substantial credible evidence supports the jury verdict. Hash v. State (1991), 247 Mont. 497, 500, 807 P.2d 1363, 1365. Judgment n.o.v. may only be granted when it appears as a matter of law that the nonmoving party could not recover upon any view of the evidence, including the legitimate inferences to be drawn from the evidence. Wilkerson v. Sch. Dist. No. 15, Glacier Cty. (1985), 216 Mont. 203, 211, 700 P.2d 617, 622. This Court’s standard of review of a ruling on a motion for judgment n.o.v. is whether substantial evidence supported submission to the jury. Gunlock v. Western Equipment Co. (1985), 219 Mont. 112, 115, 710 P.2d 714, 716.

On appeal, BCBS cites statutory and case law for the proposition that an indemnitor is not liable on claims for which its indemnitee has no liability. See § 28-11-314(2), MCA; see, e.g., St. Paul Fire and Marine Insurance Co. v. Thompson (1969), 152 Mont. 396, 403, 451 P.2d 98, 102. However, at trial, BCBS offered no jury instructions on the indemnity theory and none were given. BCBS did not request that the jury be asked to make a finding as to whether BCBS’s insureds had been released from liability.

Theories of law not presented at trial will not be heard on appeal. Chamberlain v. Evans (1979), 180 Mont. 511, 517, 591 P.2d 237, 240. For example, where an asserted agency relationship was not raised as an issue at the trial court level, this Court held that the existence ofthat'relationship could not be argued on appeal to support a claim of breach of fiduciary duty. Service Funding, Inc. v. Craft (1988), 234 Mont. 431, 434, 763 P.2d 1131, 1133. We will not further consider the indemnity argument.

BCBS asserts that the hospital admitted at trial it did not plan to hold the insureds liable for the amounts rebilled. However, a decision by the hospital not to pursue payment by the patient does not necessarily translate into a release of liability. KWA presented evidence justifying the decision not to bill patients directly as a collection strategy.

After reviewing the record, we conclude that KWA presented sufficient evidence to support submission to the jury of the question of BCBS’s liability for the rebills. We therefore hold that the District Court did not err in denying the motion for judgment n.o.v.

Affirmed.

JUSTICES GRAY, HUNT, NELSON and WEBER concur.


author: CHIEF JUSTICE TURNAGE JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. ERNEST GRANT PINKERTON, Defendant and Respondent.
    No. 94-213.
    Submitted on Briefs January 26, 1995.
    Decided March 17, 1995.
    52 St.Rep. 186.
    270 Mont. 287.
    891 P.2d 532.

      For Appellant: Hon. Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General, Helena; Mike Salvagni, Gallatin County Attorney; Gary Balaz, Deputy County Attorney, Bozeman.
    For Respondent: John M. Kauffman, Gallatin County Public Defender, Bozeman.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The State of Montana appeals the decision of the Eighteenth Judicial District Court, Gallatin County, granting defendant Ernest Pinkerton’s motion to dismiss. We reverse.

The issue is whether the District Court erred in granting Ernest’s motion to dismiss the two-count information filed against him.

On July 16, 1993, the Gallatin County Attorney’s Office filed an affidavit of probable cause and a motion for leave to file an information charging Ernest with misdemeanor domestic abuse in violation of § 45-5-206, MCA, and felony assault in violation of § 45-5-202, MCA. The affidavit of probable cause was based on statements made by Ernest’s wife, Nadeen Pinkerton. Nadeen initially made an oral statement to a law enforcement officer the night of the incident and later supplied a written statement containing similar allegations. Nadeen subsequently supplied the Gallatin County Sheriff’s Office with a second written statement in which she recanted crucial allegations that she had made in her previous oral and written statements.

Nadeen’s initial statements alleged the following facts. On the evening of July 3,1993, Ernest and Nadeen were drinking at the Fifth Ace Saloon in Gallatin Gateway. Nadeen and Ernest got into an argument and Ernest left the bar on foot. Nadeen also left the bar, got in her vehicle, and proceeded home. Nadeen picked up Ernest on the way, and the two drove home together. Once home, the couple continued to argue. During the argument, Nadeen alleged that Ernest grabbed her by the throat and threw her on the couch. She also claimed that Ernest grabbed her hair and dragged her toward the door.

Nadeen decided to leave. She packed some belongings and took them to her vehicle. As she began to leave, Nadeen observed Ernest in his pickup truck preparing to leave the residence. Believing that Ernest was intoxicated, and knowing that his truck’s brake lights and tail lights were not operating, Nadeen positioned her vehicle behind his truck to prevent him from leaving. Ernest backed his truck into Nadeen’s vehicle and the vehicles became locked together.

Nadeen claimed that Ernest exited his truck brandishing a .22 caliber pistol. Ernest pointed the gun at Nadeen, who was still sitting in her vehicle, and threatened to kill her unless she rolled down the window and gave him all his money. Nadeen complied. Ernest continued to point the cocked and loaded gun at Nadeen as he counted the money.

Nadeen alleged that Ernest slapped her twice in the head and threatened that if she ever returned he would kill her. Ernest eventually separated the two vehicles and Nadeen left the residence in her vehicle. Nadeen drove to Bozeman and contacted the Gallatin County Sheriff’s Office.

Nadeen met with a sheriff’s deputy and recounted these allegations. The deputy observed swelling and discoloration around Nadeen’s eye. Nadeen remarked that her head hurt and showed the deputy loose clumps of hair that she removed from her scalp. She told the deputy that she feared for her life when Ernest pointed the gun at her.

Ernest was arrested in the early morning hours of July 4, 1993, and questioned about the incident. He admitted that he and his wife argued at the saloon. Ernest also admitted that the argument escalated into a physical confrontation. However, he claimed he did not point the gun at Nadeen, but rather removed the gun from the house and took it to his truck to prevent Nadeen from having access to it.

Nadeen later supplied the sheriff’s office with a second written statement in which she recanted several of her previous allegations. In the second written statement, Nadeen stated that Ernest did not point the gun at her. Rather, she claimed Ernest observed the pistol on the seat of her vehicle while the vehicles were locked together. He then removed the gun from her vehicle and put it in his truck. Nadeen’s second written statement again alleged a physical confrontation between Ernest and herself.

On February 10, 1994, Ernest moved to dismiss the charges against him. He claimed that there was insufficient evidence to convict him of the felony assault charge. He moved for dismissal of the misdemeanor domestic abuse charge, claiming that because he had not been brought to trial within six months of his arraignment, he was entitled to a dismissal pursuant to § 46-13-401, MCA.

The District Court granted Ernest’s motion to dismiss. The court concluded that the State lacked sufficient evidence to convict Ernest of felony assault. In dismissing the misdemeanor domestic abuse charge, the court concluded that the six-month statutory period did not bar the misdemeanor prosecution while it was joined with the felony assault charge. However, because the felony was dismissed, the misdemeanor must stand on its own. Because it had been more than six months since Ernest was arraigned on the misdemeanor charge, and no other good cause being shown, the court concluded that the misdemeanor domestic abuse charge must also be dismissed. The State appeals.

Did the District Court err in granting Ernest’s motion to dismiss the two-count charge against him?

Because the District Court’s rationale for dismissing the misdemeanor domestic abuse charge depended upon the dismissal of the felony assault charge, we first discuss the dismissal of the felony assault charge. Section 46-13-401(1), MCA, reads:

The court may, either on its own motion or upon the application of the prosecuting attorney and in furtherance of justice, order a complaint, information, or indictment to be dismissed. However, the court may not order a dismissal of a complaint, information or indictment, or a count contained in a complaint, information or indictment, charging a felony, unless good cause for dismissal is shown and the reasons for the dismissal are set forth in an order entered upon the minutes. [Emphasis added.]

Our standard of review is whether the District Court abused its discretion by dismissing the information. State ex rel. Fletcher v. Nineteenth Judicial District Court (1993), 260 Mont. 410, 413-14, 859 P.2d 992, 994; State v. Schwictenberg (1989), 237 Mont. 213, 216, 772 P.2d 853, 856. This Court recently stated:

The legislature has not attempted to define the phrase “in furtherance of justice” ..., hence it is left for judicial discretion exercised in view of the constitutional rights of the defendant and the interests of society to determine what particular grounds warrant the dismissal of a pending criminal action.

State v. Cummins (1993), 257 Mont. 491, 493, 850 P.2d 952, 953, (quoting State ex rel. Anderson v. Gile (1946), 119 Mont. 182, 187, 172 P.2d 583, 586).

The District Court determined that, regardless of how Nadeen ultimately testified at trial, the State would have insufficient evidence to convict Ernest. However, because the District Court dismissed the information prior to trial, it did not hear Nadeen’s testimony. The court also did not independently examine Nadeen’s prior statements made to law enforcement. Rather, it relied solely on the parties’ interpretation of these statements.

While prior out-of-corut statements made by a declarant are generally inadmissible as hearsay, such statements are admissible and can be used as substantive evidence under Rule 801(d)(1)(A), M.R.Evid., which states:

(d) Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony....

Thus, if Nadeen testifies at trial that Ernest did not point a gun at her head, the State can introduce her first statement as a prior inconsistent statement. The prior inconsistent statement can be used as substantive evidence as well as to rebut her trial testimony. State v. Fitzpatrick (1980), 186 Mont. 187, 606 P.2d 1343, cert. denied, 449 U.S. 891, 101 S.Ct. 252, 66 L.Ed.2d 118.

The District Court concluded that a conviction cannot be based solely on a prior inconsistent statement. The court relied on a series of cases which state that a criminal conviction cannot rest solely on a prior inconsistent statement. See State v. White Water (1981), 194 Mont. 85, 634 P.2d 636; Utah v. Ramsey (Utah 1989), 782 P.2d 480; Brower v. Alaska (Alaska Ct. App. 1986), 728 P.2d 645.

White Water, Ramsey and Brower are all cases in which the witnesses testified at trial inconsistently with their previous statements. Those cases held that a conviction could not rest solely on a unsworn, out-of-court prior inconsistent statement. In the present case, because the information was dismissed prior to trial, there is not yet a prior inconsistent statement. Nadeen gave two contradictory written statements to the Gallatin County Sheriff’s Office. However, until she makes a statement in court, neither of these is a prior inconsistent statement under the rules of evidence.

Likewise, because this case has not yet gone to trial, it is unclear whether the potential prior inconsistent statement would be the State’s sole basis for seeking a conviction. In State v. Charlo (1987), 226 Mont. 213, 735 P.2d 278, we upheld a conviction based primarily on a prior inconsistent statement but which was also corroborated by other circumstantial evidence. Charlo, 735 P.2d at 280. Thus, while a prior inconsistent statement standing alone is insufficient to sustain a conviction, a corroborated prior inconsistent statement may suffice.

The State contends that it will produce corroborating evidence such as: (1) Nadeen’s appearance and demeanor shortly after the incident, (2) Ernest’s admission that he did have physical possession of the gun at the time of the incident, (3) testimony concerning the couple’s behavior at the Fifth Ace Saloon during the evening in question, and (4) the recovery of a loaded gun from the Pinkerton residence. Until the State presents its case-in-chief, it is unclear what corroborating evidence it can produce.

Ernest argues that this case is more like White Water than Charlo in that the witnesses in Charlo did not explicitly make an inconsistent statement at trial, but rather, they merely claimed that they could not remember what happened. However, this further bolsters the State’s argument. Neither the State nor Ernest knows what Nadeen will say at trial. She may testify that she cannot remember what happened. The State should have the opportunity to call Nadeen to determine how she will testify under oath and to produce corroborating evidence. Only after the State presents its case-in-chief can the District Court properly determine if this is a case of an uncorroborated prior inconsistent statement such as White Water or a case of a corroborated prior inconsistent statement such as Charlo.

Nadeen may also testify that Ernest did point the gun at her. She may likewise have a reasonable rationale for making her second written statement in which she claimed he did not point the gun at her. If she testifies that he did point the gun at her, the State would not need to rely on a prior inconsistent statement. Rather, it would be relying on the victim’s sworn, in-court testimony.

The District Court concluded that if Nadeen testifies that Ernest pointed the gun at her, Ernest could introduce her second written statement to law enforcement as a prior inconsistent statement. The District Court stated, “[g]iven such inconsistent evidence and the lack of independent evidence to support a conviction, a reasonable jury could not conclude that guilt had been proven beyond a reasonable doubt.”

Neither the District Court nor Ernest cite any authority for this proposition. The State, on the other hand, cites State v. Maxwell (1982), 198 Mont. 498, 647 P.2d 348, for the proposition that a conviction can rest solely on a victim’s uncorroborated, in-court testimony even if the victim has given a prior inconsistent statement. While we note that this Court’s holding in Maxwell was specifically limited to cases involving victims of sexual intercourse without consent, similar policy reasons exist in this case. Like a victim of sexual intercourse without consent, a battered and threatened spouse may have compelling reasons for making contradictory statements.

If Nadeen testifies that Ernest did point the gun at her, she should have the opportunity to explain why she made the prior inconsistent statement. If she so testifies, her testimony should be presented to the jury rather than being deemed insufficient as a matter of law. It is the jury’s role to weigh such testimony, in light of all other admissible evidence, and determine the credibility and weight it deserves.

We have addressed a few possible scenarios which may occur if Nadeen is called to testify. Clearly there are other circumstances which may arise if the State calls Nadeen as a witness. It is precisely this uncertainty which renders the District Court’s dismissal of the information premature.

We conclude that the District Court erred in dismissing the felony assault charge prior to trial. The dismissal was premature and the State should be given the opportunity to present its case-in-chief. This will allow the District Court to hear Nadeen’s testimony, if any. With this evidence the District Court can more thoroughly and appropriately evaluate the merits of the State’s case. We reverse the District Court’s dismissal of the felony assault charge.

We conclude that the District Court’s dismissal of the felony assault charge was based on insufficient evidence to convict. Therefore, we will not address the court’s comments concerning the sufficiency of the affidavit for leave to file an information.

Because the District Court’s dismissal of the misdemeanor domestic abuse charge depended upon the dismissal of the felony assault charge, we vacate that dismissal and remand for further proceedings consistent with this opinion.

JUSTICES GRAY, NELSON, WEBER and DISTRICT JUDGE PURCELL, sitting in place of Justice John C. Harrison, Retired, concur.

JUSTICE HUNT

dissenting.

I dissent from the majority opinion. A prior inconsistent statement cannot be the sole substantive evidence upon which a jury determines guilt. State v. Gommenginger (1990), 242 Mont. 265, 790 P.2d 455; State v. White Water (1981), 194 Mont. 85, 634 P.2d 636. Our rationale for this prohibition has been that it is unlikely that a trier of fact could find the essential elements of a crime charged beyond a reasonable doubt based solely on a prior inconsistent statement. Gommenginger 790 P.2d at 463; White Water, 634 P.2d at 639.

In order to convict Ernest of felony assault under § 45-5-202, MCA, the State must prove that he purposely and knowingly caused Nadeen to reasonably apprehend serious bodily injury by use of a weapon. The majority reasons that because “it is unclear whether the potential, prior inconsistent statement would be the sole basis for seeking a conviction,” the State should be given the chance to present its case in chief. However, in its brief in opposition to Ernest’s motion to dismiss, the State, relying on State v. Charlo (1987), 226 Mont. 213, 735 P.2d 278, acknowledged that in order to convict Ernest of felony assault it would have to corroborate Nadeen’s prior inconsistent statement. The State proposed to offer as corroboration Nadeen’s physical appearance and emotional state on the night in question, evidence of the couple’s argument at the saloon, and Ernest’s physical possession of the gun. While the above might corroborate the charge of misdemeanor domestic abuse, it does not corroborate Nadeen’s prior inconsistent statement that Ernest pointed a gun at her head.

The district court may not dismiss a felony count without good cause and without setting forth its reasons for the dismissal in an order. Section 46-13-401(1), MCA. After applying Montana case law to the facts, the District Court found good cause for dismissing the felony assault charge against Ernest by concluding that under any testimonial scenario it would be impossible for a jury to find the essential element of § 45-5-202, MCA. The District Court then set forth those reasons in its order. There is nothing in the record to suggest that the District Court abused its discretion by granting Ernest’s motion to dismiss. I would affirm.

JUSTICE TRIEWEILER joins in the foregoing dissenting opinion.


author: JUSTICE WEBER

text:
    In the Matter of the Estate of ALF A. LIEN, Deceased.
    No. 94-264.
    Submitted on Briefs December 28, 1994.
    Rehearing Denied April 24, 1995.
    Decided March 21, 1995.
    52 St.Rep. 190.
    270 Mont. 295.
    892 P.2d 530.

      For Appellant: Robert L. Johnson, Lewistown; J. Douglas Alexander, Sidney.
    For Respondent: Gene R. Jarussi, Jarussi & Bishop, Billings; Phillip N. Carter, Sidney.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a summary judgment order in the District Court of the Fifteenth Judicial District, Roosevelt County, in favor of Mabel Gobbs, the Personal Representative of the Estate of Alf A. Lien. Appellant Dr. Clifton Berglee (Berglee) contested a 1989 will being probated by Mrs. Gobbs. Berglee claimed an earlier will should prevail and the 1989 will was invalid based on lack of testamentary capacity, undue influence, fraud and restraint. We affirm.

The sole question for review is whether the District Court erred in granting summary judgment to Mabel Gobbs.

Alf A. Lien (Lien) was a lifelong bachelor who farmed land near Brockton for many years. He died in 1991 at the age of 84, leaving an estate of approximately $750,000, which is the subject of this appeal.

Lien executed two wills prepared by different attorneys — one in 1987 and one in 1989. The 1987 will named appellant Berglee as personal representative of the estate and left all his real estate to Berglee. It also left the remainder of Lien’s personal property in four equal shares to Berglee, Mrs. Gobbs, and two of Berglee’s brothers. Lien had numerous brothers and sisters still living in Norway, where he had emigrated from in the 1920s, and he expressly stated in the will that he was specifically making no bequest or devise to them or any other persons not mentioned in the will.

The 1987 will was brought to Lien’s attention by Mrs. Gobbs when Lien and Mr. and Mrs. Gobbs went to a bank so that Lien could get his naturalization papers in order to obtain a passport for a trip to Norway. After Mrs. Gobbs questioned him about that will, Lien remarked many times that it was not what he wanted. After returning from the trip to Norway, Lien executed the second will dated April 11, 1989, leaving all his real and personal property in four equal shares to four first cousins — Mabel Gobbs, Clara Neer, Ingeborg Wallette and Luther Larson. The only restriction in this will was that certain named persons be given the right of first refusal prior to selling any of the real property for a specified period of time following Lien’s death. The 1989 will nominated Mrs. Gobbs as personal representative and again expressly devised no property to Lien’s brothers or sisters in Norway, with the exception of directing the personal representative to reimburse them for round-trip tickets from Oslo, Norway, to Regina, Canada if they desired to attend Lien’s funeral. The second will also expressly revoked the 1987 will.

Berglee attacked the validity of the 1989 will on four separate grounds: (1) Lien was incompetent at the time he executed the will, (2) Lien was a victim of undue influence on the part of Mabel and Howard Gobbs, (3) the will was a product of fraudulent representations, and (4) Lien executed the will under restraint. The District Court granted Mrs. Gobbs’ motion for summary judgment, finding no factual issues to submit to a jury.

Did the District Court err in granting summary judgment to Mabel Gobbs on any of the four theories presented by Berglee?

Standard of Review

Our standard of review of an order by a district court granting summary judgment is the same as that used by the district court under Rule 56(c), M.R.Civ.R Morton v. M-W-M, Inc. (1994), 263 Mont. 245, 249, 868 P.2d 576, 578. Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R

The moving party has the initial burden of demonstrating the absence of genuine issues of material fact. Once the movant has met that burden, the burden shifts to the party opposing summary judgment to establish that a genuine issue of material fact exists. Owen v. Ostrum (1993), 259 Mont. 249, 255-56, 855 P.2d 1015, 1019. The non-moving party may not rest upon the allegations or denials in the pleadings nor on speculative, fanciful or conclusory statements. Sim mons v. Jenkins (1988), 230 Mont. 429, 432, 750 P.2d 1067, 1069. All inferences that reasonably may be drawn from the offered proof will be made in favor of the party opposing the motion for summary judgment. Owen, 855 P.2d at 1019.

Material issues of fact are identified by looking to the substantive law governing the proceeding. Owen, 855 P.2d at 1019. In this case, we review the record in light of the substantive law governing contests to wills. Section 72-3-310, MCA, provides that contestants of a will have the burden to establish the existence of one of the statutory grounds listed. Of the four theories argued by Berglee, § 72-3-310, MCA, provides that a will may be contested on the basis of three of them — lack of testamentary capacity, fraud and undue influence. There is no provision under Montana statutory or case law to contest a will because of “restraint.”

A. LACK OF TESTAMENTARY CAPACITY

The test for determining testamentary capacity was set forth in In the Matter of the Estate of Bodin (1965), 144 Mont. 555, 560, 398 P.2d 616, 619, as follows:

[A] testator is competent if he is possessed of the mental capacity to understand the nature of the act, to understand and recollect the nature and situation of his property and his relations to persons having claims on his bounty whose interests are affected by his will. ... The “testator must have sufficient strength and clearness of mind and memory to know, in general, without prompting, the nature and extent of the property of which he is about to dispose, and the nature of the act which he is about to perform, and the names and identity of the persons who are to be the objects of his bounty, and his relation towards them.” ... (Citations omitted.)

Testamentary capacity is determined as of the date the will was executed — April 11, 1989 in this case — using the above test from Bodin’s Estate, which is now well-established in Montana. See, e.g., In the Matter of the Estate of Jochems (1992), 252 Mont. 24, 29, 826 P.2d 534, 537.

Berglee argues that Lien lacked testamentary capacity at the time he executed the second will in April 1989 because (1) the 1991 death certificate indicates he had Alzheimer’s disease, (2) Lien suffered from diabetes which affected his mind, (3) the 1989 will is unnatural as being contrary to what would have been expected of him, (4) he suffered from insane delusions and other physical ailments, (5) his speech was virtually unintelligible, and (6) he was not a usual client of the attorney who prepared the will.

As contestant to the 1989 will, Berglee bears the burden of establishing that Lien lacked testamentary capacity. Section 72-3-310, MCA. To support her claim that Lien was competent when he executed the 1989 will, Mrs. Gobbs submitted numerous affidavits with attachments and the deposition testimony of numerous witnesses which provided evidence that Lien was competent to execute a will in April 1989. Mrs. Gobbs met her burden as the party moving for summary judgment. The burden shifted to Berglee as the non-moving party to present affirmative evidence of a material and substantial nature to raise a genuine issue of fact to defeat her motion. As discussed below, Berglee did not meet this burden.

Vic Koch (Koch), the attorney who prepared the 1989 will, testified extensively by deposition and affidavit. On the day Lien first met with Koch, Lien drove 35 miles from his home north of Brockton to Culbertson, then rode with Howard and Mabel Gobbs to Sidney, and upon their return to Culbertson, drove himself home again. The first time Lien came to Koch’s office, they discussed the terms of the will; the second time a week later, Lien executed the will. Lien gave Koch an accurate description of real and personal property which he owned and expressed his wish to make specific provisions for the lessees of his land to have rights of first refusal in the event the real property they leased was sold within a specific time after his death. Lien provided correct names for both lessees, one of whom was Berglee. He was able to roughly plat out his land on a piece of paper to explain to Koch what he desired and how it was then being leased. He provided the full names of eight brothers and sisters in Norway who he wished to exclude from the will other than making a provision for their travel expenses should they desire to attend his funeral. Lien also provided the names of four first cousins as devisees in equal part under the will. Lien expressed his desire to be buried in a specific cemetery. Koch testified that he concluded from his personal discussions with Lien that Lien knew what property he owned, what he wanted to do with his property and who he wanted to receive his property upon his death. Koch verified that Lien had read the document before signing and declared it to be his last will and testament.

Berglee contends that the 1991 death certificate indicates that Lien had Alzheimer’s disease and demonstrates lack of testamentary capacity. There is no indication in the record, however, that Lien suffered from this disease in 1989 when he executed his last will. Lien died on July 17,1991 — more than two years after executing the 1989 will. Neither Dr. Mann nor Lien’s prior treating physician made any indication in Lien’s medical records that this was a concern at that time.

In 1989, he lived alone and cared for his own needs. Although he suffered from mild Parkinson’s disease and was unable to legibly write his checks, he handled his own financial and personal affairs, with the exception of having Mrs. Gobbs prepare checks for his signature. Lien’s reasons for seeking medical treatment in 1988 and 1989 were mild physical ailments having no bearing on mental functioning.

Dr. Mann testified by deposition that, in his opinion, Lien showed no signs of having any mental problems when he examined him on May 12, 1989. Dr. Mann did not examine Lien again until March 15, 1990, at which time he admitted him to the Culbertson hospital for treatment of leg ulcers. Lien was hospitalized for four days and Dr. Mann spoke with him during the course of his hospital stay, noting no problems with mental functioning. Dr. Mann also saw Lien on March 23rd, March 29th, May 4th, June 28th and August 20th of 1990. He testified that Lien showed no symptoms of mental deterioration on any of these occasions. It was not until January 11, 1991, that Dr. Maim first noted mental deterioration, stating that he was “failing rapidly.” Dr. Mann testified that from his own observations and from reviewing records of other physicians prior to the first time he examined Lien on May 12, 1989, he could state with reasonable medical certainty that he thought Lien was mentally competent at the time he executed his last will in 1989.

The only medical evidence provided by Berglee in support of his claim that Lien was incompetent in 1989 relates to his claim that Lien suffered from diabetes in 1989 and that the diabetes affected his mind. In support of this contention, Berglee testified about his personal experience with the disease and his knowledge of the disease from working with animals that have suffered from diabetes. Berglee is a veterinarian and did not establish that he is qualified to provide expert testimony that Lien’s diabetes may have been out of control to the point where it affected his mental functioning. Specifically, Berglee testified in his deposition that “Alf was exhibiting abnormal behavior consistent with a bad case of diabetes.” He then admitted that he was not qualified to make this sort of statement. The record shows that Berglee and others were concerned about Lien taking his medication and that they made sure he remembered to take it daily. Although the death certificate indicates that diabetes was a contributing cause of his death, no inference can be made from that statement that it also affected his mental functioning. Nothing in the record supports an inference that Lien did not take his medication for diabetes or that it in any way affected his mental functioning.

Berglee next argues that the 1989 will is an unnatural disposition of property for Lien. He claims it is contrary to what would have been expected of him. Berglee presented deposition testimony from a few of his relatives to indicate that Lien regarded him and his family as the natural recipients of his bounty. Berglee was a neighbor of Lien, he checked in on him periodically while Lien still lived on his farm, and he and his family included Lien in family activities. Berglee was not a blood relative of Lien although he was distantly related by marriage. Instead of leaving a portion of his property to Berglee as the 1987 will had done, Lien changed this in the 1989 will to leave Berglee with only a right of first refusal for land leased by Berglee. Lien left his real and personal property to four of his first cousins. A will leaving the bulk of his property to first cousins rather than to a distant relative by marriage is not an unnatural disposition of property as claimed by Berglee even if it is not what others would have expected.

Berglee also contends that Lien suffered from insane delusions and other physical ailments which affected his mental functioning. The only evidence in support of this argument is Berglee’s testimony that Lien had some “really wacky ideas”; testimony by Berglee’s wife that Lien had some “strange beliefs”; and testimony by Berglee’s mother that Lien had said something on his birthday in May of 1989 that did not make sense about some automobile or yard lights in the distance. This evidence does not support an inference in favor of Berglee that Lien suffered from insane delusions and there is nothing in the record to support his argument that Lien’s physical ailments affected his mental functioning.

Berglee also argues that Lien’s speech was virtually unintelligible and that he was not a usual client of the attorney who prepared the will. Lien spoke with a heavy Norwegian accent. Dr. Mann had some difficulty understanding him and relied on Mrs. Gobbs’ interpretations to some extent. There is no indication from anyone else that they had difficulty understanding Lien’s speech. Certainly, there is nothing to support an inference that Koch would not have understood how Lien wanted him to prepare his 1989 will. Koch testified in his deposition that he remembered that Lien had a Norwegian accent. He stated that he was used to talking to his father-in-law who also had a Norwegian accent so he had no difficulty understanding Lien.

Applying the test from Bodin’s Estate to the facts and inferences to be made from them in favor of Berglee, we conclude there are no inferences that reasonably may be drawn to support Berglee’s contention that there are genuine issues of material fact on the issue of testamentary capacity. Although the testimony of Dr. Mann and Mrs. Gobbs indicates that Lien’s mental capacity deteriorated in the months before his death on July 17, 1991, the earliest indication of impaired mental ability is January 1991. We conclude that Lien had the mental capacity when he executed the 1989 will to understand the nature of his actions, that he knew the nature and extent of his property and understood what he was doing in naming four first cousins as devisees.

B. UNDUE INFLUENCE

Next, Berglee contends that Mabel and Howard Gobbs exerted undue influence over Lien and that this resulted in Lien’s naming of members of Mrs. Gobbs’family as devisees rather than Berglee and members of his family. He argues that there are many inferences which can be drawn from Mrs. Gobbs’ actions to support this claim: Mrs. Gobbs wrote out checks for Lien, she alienated him from his friends, she “confronted” Lien with the will when she discovered it in his safe deposit box in October of 1988, she had in her possession Lien’s certificates of deposit and other financial documents and she received his mail at her address. Berglee contends that the 1989 will was a “radical departure from the 1987 document in favor of Mrs. Gobbs’ interests” and, therefore, that Mrs. Gobbs has the burden of showing that the 1989 will was not the product of undue influence. Again, the contestant of a will has the burden of establishing undue influence, according to § 72-3-310, MCA. Berglee has not met this burden.

The test for undue influence in the making of a will is as follows: (1) Confidential relationship of the person attempting to influence the testator; (2) The physical condition of the testator as it affects his ability to withstand the influence; (3) The mental condition of the testator as it affects his ability to withstand influence; (4) The unnaturalness of the disposition as it relates to showing an unbalanced mind or a mind easily susceptible to undue influence; (5) The demands and importunities as they may affect particular testator taking into consideration the time, the place, and all the surrounding circumstances.

In the Matter of the Estate of Maricich (1965), 145 Mont. 146, 161, 400 P.2d 873, 881. Each of the above elements must be satisfied in order to prove a claim of undue influence. Flikkema v. Kimm (1992), 255 Mont. 34, 40, 839 P.2d 1293, 1297.

As with testamentary capacity, undue influence is never presumed and must be proven like any other fact. Dybvik v. Dybvik (1982), 201 Mont. 389, 397, 654 P.2d 989, 993, citing Blackmer v. Blackmer (1974), 165 Mont. 69, 74, 525 P.2d 559, 562. In Blackmer, 525 P.2d at 563-64, we held that the opportunity to exercise undue influence on the testator is not sufficient to prove undue influence and invalidate a will. The opportunity to exercise undue influence is to be considered and correlated with the alleged acts of influence to determine if the acts amount to undue influence. Dybvik, 654 P.2d at 993. We conclude that the facts relied on by Berglee, at most, show the opportunity to exercise undue influence.

Applying the test for undue influence, clearly the first criterion is met as there was a confidential relationship between Mrs. Gobbs and Lien. Mrs. Gobbs assisted Lien in many ways. She helped him with payment of his bills by making out the checks for his signature. She made appointments for Lien and assisted him when he went to see his doctors by interpreting for him if needed. Lien stayed in the home of Mr. and Mrs. Gobbs for months at a time, particularly in winter, and Mrs. Gobbs provided him with a wooden box to store his personal documents in. She asked him if the 1987 will was what he wanted and when he told her it was not what he wanted, she made the appointment with Koch in Sidney so that he could execute a new will. Some time during 1990, Lien began receiving his bank statements at the address of Mr. and Mrs. Gobbs in Culbertson.

The second and third criteria, physical and mental condition of the testator as both may affect the testator’s ability to withstand influence, have not been demonstrated by Berglee as outlined above in our discussion of Issue I. The record shows that Lien’s physical and mental condition deteriorated rapidly in the last few months of his life; it does not demonstrate that his mental and physical condition was deteriorating in that manner in 1989 when he executed the second will. At the time he executed the 1989 will, Lien lived alone on his farm north of Brockton. He kept house, cooked, bought groceries, cleaned and washed his clothing. He drove his own car and had a valid driver’s license.

There is no evidence in the record that Lien was physically or mentally susceptible to influence and Berglee points to no acts of influence apart from the circumstances surrounding the execution of the 1989 will. While Mrs. Gobbs admits to making the appointment with Koch for Lien, nothing improper is evident from the record concerning the making of the 1989 will. Mrs. Gobbs chose Koch upon the recommendation of a third party accountant; Koch was not her attorney and she did not know him prior to making the appointment. Mr. and Mrs. Gobbs took Lien to Sidney so that Lien could meet with Koch. Neither of them were present when Lien spoke with Koch and Koch testified they had no involvement other than calling for the appointment.

The circumstances surrounding the making of the 1989 will do not indicate that Lien was susceptible in any manner to undue influence. Mabel and Howard Gobbs rendered assistance to Lien by driving him to Sidney. They later provided assistance to him by having him stay in their home and by taking him shopping and doing other sorts of things to help him as he aged. They accompanied him on a trip to Norway. Toward the end of his life when Lien’s physical and mental condition was rapidly failing, Mrs. Gobbs cared for Lien in her home until Dr. Mann advised that he be placed in the Culbertson nursing home in March of 1991. None of these actions are unusual between relatives and Mabel Gobbs was one of Lien’s closest blood relatives in this country.

Apparently Berglee views the removal of the three Berglee brothers as devisees as an unnatural disposition. We have stated that the unnaturalness of a disposition, the fourth criterion, is to be considered as it relates to either an unbalanced mind or a mind easily susceptible to undue influence. Even the fact that a parent might leave the majority of his or her assets to only one child, while excluding others, is not in and of itself unnatural. Flikkema, 839 P.2d at 1298. The 1989 will is not a radical departure in favor of Mrs. Gobbs’ interests. Mrs. Gobbs was named as a devisee in both wills. It is, however, a radical departure as to Berglee’s interests; in the 1987 will, Berglee was to receive the real property and one-fourth of the personal property and two of his brothers were each to receive one-fourth of the personal property. However, the four devisees under the 1989 will were all first cousins of Lien and this is not an unnatural disposition.

We are unconvinced by Berglee’s argument that the actions of Mr. and Mrs. Gobbs point to undue influence over Lien. We conclude that Berglee has failed to establish material facts in issue on his claim of undue influence.

C. FRAUD

Berglee’s final argument is that Mabel and Howard Gobbs made fraudulent representations to Lien so that he would turn against Berglee. Berglee contends that Mr. and Mrs. Gobbs were responsible for Lien’s accusations in 1989 that Berglee had stolen money and grain from him and that this influenced Lien to remove him as a devisee in his will. He claims that Mrs. Gobbs knew that Berglee was not stealing money from Lien because she had his financial records in her possession and she acknowledged this in her affidavit.

Mrs. Gobbs’ affidavit states that she did not have any of his financial records in her possession in 1989 and also that the five banks Lien did business with did not change the mailing address on Lien’s statements from Brockton to Culbertson until some time in 1990. Mrs. Gobbs also presented deposition testimony from other witnesses to support this.

Mrs. Gobbs denies she made any such statements to Lien about Berglee. She further contends that, even if the statements were made, Berglee has failed to set forth any evidence that Mrs. Gobbs knew the statements were false or that they were made with the intent to deceive Lien. We agree.

Berglee’s allegations are speculative and conclusory. To support the allegations, Berglee’s counsel submitted an unsworn statement which did not meet the requirements of Montana law. Moreover, the evidence must be in proper form and of a substantial nature, not fanciful, frivolous, gauzy or merely suspicious. Morales v. Tuomi (1985), 214 Mont. 419, 424, 693 P.2d 532, 535. An attorney’s affidavit which only recites what he intends to prove at trial must be disregarded. Morales, 693 P.2d at 535. Berglee’s allegations on the issue of fraud are in the nature of suspicious statements supported only by the allegations in his complaint repeated in his deposition. Again, Berglee has failed to establish affirmative evidence to defeat Mrs. Gobbs’ motion for summary judgment.

We hold the District Court properly granted summary judgment to Mabel Gobbs.

Affirmed.

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


text:
    CITY OF BILLINGS, Petitioner and Appellant, -v-STATE OF MONTANA, DEPARTMENT OF REVENUE, Respondent and Respondent.
    No. 94-309.
    Submitted on Briefs December 15, 1994.
    Decided March 21, 1995.
    52 St.Rep. 196.
    270 Mont. 307.
    891 P.2d 1149.

      For Appellant: Bonnie J. Sutherland, Assistant City Attorney, Billings.
    For Respondent: Lawrence G. Allen, Special Assistant Attorney General, Department of Revenue, Helena.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal by the City of Billings from an Order of the District Court of the Thirteenth Judicial District, Yellowstone County. The District Court’s Order held that the City of Billings is not exempt from payment of fees for the funding of the Department of Public Service Regulation and the Montana Consumer Counsel during years when its municipal water utility rates are not increased more than twelve percent. We affirm.

The sole issue for review is whether the District Court erred in holding that the City of Billings, as owner and operator of a municipal utility, must always pay a Public Service Commission fee and a Montana Consumer Counsel fee.

The City of Billings owns and operates a municipal water and sewer utility serving customers in and near Billings. On August 7, 1992, the Montana Department of Revenue (DOR) assessed the City of Billings for Public Service Commission (PSC) and Montana Consumer Counsel (MCC) fees of $14,890.98 and $14,886.16, respectively, for the City’s 1991 and 1992 fiscal years.

After the assessment, the City questioned whether it was subject to the PSC and MCC fees. The City took the position that it could not be required to pay these fees when it had never raised its rates in excess of twelve percent in any one year following deregulation of its utility activities in 1982. In response to the City’s query, both the PSC and DOR took the position that the City must pay the fees annually. The City appealed the assessment, claiming it did not owe the fees because it had not raised its rates more than twelve percent in either of the two fiscal years concerned and, thus, had no revenues from regulated activities.

Because DOR had issued an opinion stating its position on the matter prior to assessing the fees, the parties waived informal agency appeal proceedings with DOR and brought the matter directly to the State Tax Appeal Board. The City filed a Notice of Appeal with the State Tax Appeal Board on February 24, 1993. On April 22, 1993, following DOR’s answer to the Notice of Appeal indicating that the parties could resolve the only remaining factual issue, the City petitioned the District Court for interlocutory adjudication pursuant to §§ 15-2-304 and -305, MCA.

After briefing by the parties and without an oral hearing, the District Court ruled in favor of DOR and it is from this ruling that the City of Billings now appeals.

Did the District Court err in holding that the City of Billings, as owner and operator of a water and sewer utility, must always pay PSC and MCC fees?

The operations of the PSC and MCC are not funded through the general fund like most state government agencies. The method of funding them is provided for as follows:

69-1-223. Funding of office of consumer counsel. ... (2) In addition to all other licenses, fees, and taxes imposed by law, all regulated companies shall:
(a) within 30 days after the close of each calendar quarter, file with the department of public service regulation and the department of revenue a statement, in a form that the commission and department may determine, showing the gross operating revenue from all activities regulated by the commission within the state for that calendar quarter of operation or portion of a quarter, separately stating gross revenue from sales to other regulated companies for resale; and
(b) at that time pay to the department of revenue a fee based on a percentage of the gross operating revenue reported, as determined by the department of revenue under 69-1-224. ...
69-1-402. Funding of the department of public service regulation.... (2) In addition to all other licenses, fees, and taxes imposed by law, all regulated companies shall, within 30 days after the close of each calendar quarter, pay to the department of revenue a fee based on a percentage of gross operating revenue reported pursuant to 69-l-223(2)(a), as determined by the department of revenue under 69-1-403.

DOR assessed the PSC and MCC fees to the City of Billings Public Utility Department for the sale of water for fiscal years 1991 and 1992 according to the formula set forth in § 69-1-224, MCA.

DOR assesses the PSC and MCC fees to “regulated companies” in Montana based on a percentage of gross operating revenues generated within the state by the regulated company. Sections 69-1-201(3), and -401(2), MCA, both set forth the following definition of “regulated companies”:

“Regulated companies” means all those organizations, corporations, associations, or other public or private entities which now are or may hereafter become subject to regulation in any manner by the department of public service regulation or the public service commission or any successor agency.

In 1981, the Montana Legislature enacted House Bill 765, transferring regulation of municipal utilities from the PSC to the municipality, except as expressly retained in § 69-7-102, MCA. The following statutes govern the PSC’s regulation of rates by the municipality:

69-7-101. Municipal utilities — regulation by municipality — limitation. A municipality has the power and authority to regulate, establish, and change, as it considers proper, rates, charges, and classifications imposed for utility services to its inhabitants and other persons served by municipal utility systems. Rates, charges, and classifications shall be reasonable and just and, except as provided in 69-7-102, they may not be raised to yield more than a 12% increase in total annual revenues or, in the case of mandated federal and state capital improvements, the increase may not exceed amounts necessary to meet the requirements of bond indentures or loan agreements required to finance the local government’s share of the mandated improvements. Annual revenues must be computed on any consecutive 12-month period for purposes of this chapter.
69-7-102. Rate increases over maximum. (1) If a municipal utility requires rate increases that yield an increase in total revenues in excess of 12% in any one year or rate increases for mandated federal and state capital improvements for which the increase exceeds amounts necessary to meet the requirements of bond indentures or loan agreements required to finance the local government’s share of the mandated improvements, it must make application for such increases to the public service commission.

These statutes exclude municipal utilities from PSC jurisdiction over rate increases if the utility does not increase its rates by more than twelve percent for any twelve-month period.

Section 69-1-223, MCA, providing for funding of the MCC, states that the MCC fee is calculated with reference to “the gross operating revenue from all activities regulated by the commission.” The PSC fee is determined in the same manner as the MCC fee, except that gross revenues from sales to other regulated companies for resale, as calculated by the PSC, must be excluded from the determination of the total gross operating revenue.

Section 69-1-224, MCA, sets forth the method for calculating the MCC fee. It contains a limitation stating that no regulated company owned and operated by any municipal corporation can be required to pay more than .06 of one percent of its gross operating revenue. Section 69-1-403, MCA, provides that the PSC fee shall be calculated in the manner described in § 69-1-224, MCA, for the MCC fee. The statutory formula for determining both PSC and MCC fees is based on a utility’s gross operating revenue from “activities regulated by the commission.”

The City contends that it had no such activities and therefore owed no MCC or PSC fees. However, none of the statutes which are applicable to the funding of the PSC and MCC in Chapter 1, Parts 2 and 4, or in Chapter 7, Part 1, entitled Regulation of Rates by Municipality, include any specific exemption for municipal utilities for the payment of the PSC and MCC fees. Although the City asserts that §§ 69-7-101, MCA, through 69-7-201, MCA, give municipalities all regulatory power and authority over municipal utilities, it acknowledges that a municipality must obtain PSC approval if it wishes to increase rates, charges, or classifications to yield more than a twelve percent increase in any one year.

The City argues, however, that because it did not raise its rates, charges, or classifications in fiscal years 1991 and 1992 to yield more than twelve percent in total annual revenues, the PSC had no regulatory power over the City and the City is not subject to either of the fees under Chapter 1, Parts 2 and 4. The City argues that the fees are “user fees” to be assessed for involvement of the PSC and MCC in utility rate proceedings of which it will never be a participant unless it raises its rates more than twelve percent in one year.

DOR contends that the fees are not “user fees” and that they are in fact taxes. It further contends that the sale of water is an activity regulated in Montana, the City generated revenue from the sale of water and, therefore, the City must be taxed for that activity. It contends that the City is subject to the fees because the Billings Public Utility Department meets the statutory definition of “regulated company” as set forth in §§ 69-1-201(3) and -401(2), MCA. Not only is the City’s water and sewer utility a “regulated company,” but as such, it was statutorily required to file an annual statement with the PSC for regulation purposes. Therefore, according to DOR, the City’s utility is subject to the fees.

Clearly, the City’s municipal utility is included within the statutory definition of “regulated companies.” Both the PSC and the MCC fee statutes use the term “regulated company,” both statutes include definition of “regulated companies” and both definitions of “regulated companies” include the language “public entities ... subject to regulation in any manner.” The City’s rate increases are subject to regulation if they are in excess of twelve percent in any one year and it must submit annual statements to the PSC detailing its gross operating revenues. Although PSC regulation of municipal utilities is limited by Part 7, clearly the definition of “regulated companies” includes the City of Billings’ water and sewer utility. Therefore, the plain language of these statutes includes the City’s municipal utility as an entity subject to regulation by the PSC.

Nonetheless, the City maintains that both the MCC fee and the PSC fee are “user fees.” It claims that its revenue is not derived from a “regulated activity’ as that term is used in § 69-1-223, MCA, because it can raise its rates up to twelve percent a year without PSC approval. Section 69-1-223, MCA, sets forth the procedure for collecting the fees to fund the MCC; it does not address the question of what entities are subject to the taxes. Parts 2 and 4 of Title 69, Chapter 1, which specifically apply to the funding of the MCC and PSC and determine how the fees for such are to be calculated and assessed by the DOR, both include definitions of “regulated companies” which we have stated above apply to the City of Billings Public Water Department. There would be no reason to include entities such as the City’s municipal utility in the definitions if such entities were not to be assessed the fees which Parts 2 and 4 authorize.

The City also relies on Lechner v. City of Billings (1990), 244 Mont. 195, 797 P.2d 191, for its position that it does not owe the PSC or MCC fees. The issue in Lechner was whether the City of Billings could adopt by resolution a new system for funding the expansion of water and sewer facilities. The City assessed a “systems development fee” on customers who requested new or upgraded water or wastewater service. In Lechner, 797 P.2d at 195, we noted that municipal utilities were excluded from the definition of “public utility” in § 69-3-101, MCA. However, the exclusion from the definition of “public utility” does not determine that it is not a “regulated company.” The Court did not conclude that the PSC had no regulatory power over the City’s water utility. The Lechner case does not support a conclusion that the sale of water at a rate set by a municipal utility is revenue from unregulated activities.

According to the City, regulated companies do not have to pay the fees unless they “use” the services of the PSC and the MCC during a given year for rate making. Under this rationale, a municipal utility could control and avoid the imposition of the PSC and MCC fees, except under extraordinary circumstances. The municipal utility could decide never to “use” the services of the PSC and this could place the burden of funding the MCC and PSC totally on other regulated companies. There is no indication that this is what the legislature intended.

Moreover, the “user fee” rationale would not seem to apply to the MCC according to the statutes governing that entity. The City’s argument that the MCC and PSC fees are “user fees” is weakened by the express provision contained in § 69-7-111(5), MCA, which mandates that notice of all public hearings for regulating, establishing or changing rates, charges, or classifications imposed on customers be mailed to the MCC. Section 69-7-112, MCA, expressly provides that all affected or interested persons and entities, including the MCC, may be present and represented by counsel, and, if the MCC chooses to be present and represented by counsel, the MCC shall be allowed to make arguments as it may consider proper at the conclusion of the municipal rate hearing.

When the legislature relaxed the PSC’s regulation of municipal utility rate proceedings in 1981, it did not change the role of the MCC in municipal rate cases. Municipal utilities must still notify the MCC of all rate hearings and the MCC is specifically authorized to represent the consumer’s interest at rate hearings conducted by municipalities. Although the MCC has discretion concerning its involvement in municipal rate hearings, clearly the appearance of the MCC at municipal rate hearings is not discretionary on the part of the municipal utility. Although the City can control the jurisdiction of the PSC in its decisionmaking concerning rate increases to its customers, it has no power to control the participation of the MCC in the rate hearing process.

The DOR contends, and we agree, that the City of Billings’ interpretation of the statutes is contrary to legislative intent underlying the fee statutes. The legislature was aware that municipal utilities were subject to the MCC fees when it enacted the provisions of Title 69, Chapter 1, Part 4, to fund the PSC in 1986. At that time, it established methods for calculating the PSC fee which referred to and incorporated the formula used by DOR in calculating the MCC fee. The legislature chose not to provide an exemption from either of these fees for municipal utilities subject to limited regulation by the PSC. We conclude the City’s municipal water utility must pay the MCC and PSC fees as determined by DOR using the method set forth in §§ 69-1-223(2) and -224, MCA.

We hold the District Court did not err in holding that the City of Billings, as owner and operator of a municipal utility, must always pay the PSC and MCC fees.

Affirmed.

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

      . The City of Billings did file the statutorily required statements showing its gross revenues from regulated activities. However, it stated on the forms that it had no revenue from regulated activities for fiscal years 1991 and 1992.