text:
    LEONARD J. SJOBERG, Plaintiff and Respondent, v. DONALD KRAVIK and Frieda Kravik, Defendants and Appellants.
    No. 87-502.
    Submitted on Briefs March 24, 1988.
    Decided July 19, 1988.
    Rehearing Denied Sept. 13, 1988.
    759 P.2d 966.

      Jardine & Grauman, John H. Jardine, Whitehall, for defendants and appellants.
    Corette, Smith, Pohlman & Allen, Marshal Mickelson, Butte, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Defendants/appellants, Donald and Frieda Kravik, appeal a District Court decision favoring plaintiff/respondent Leonard Sjoberg. Trial was held without a jury on May 20, 1987 in the Second Judicial District, Silver Bow County. The District Court awarded Sjoberg $43,100 in damages, $343.60 in costs, and $9,200 for attorney’s fees. We affirm in part and reverse in part.

On May 30, 1980 Sjoberg and the Kraviks signed a “contract for sale of real property and escrow agreement.” The land consists of approximately forty acres and is located in Madison County. As buyer, Sjoberg agreed to pay $52,500 with $11,000 as a down payment. Afterward, payments were to be made in fifteen annual installments of $5,456, with the first payment on May 1, 1981. The agreed interest rate was 10% per annum on the unpaid balance.

The forty acres which was the subject of the sale was part of farmland owned by the Kraviks. The Kraviks land, including these forty acres, was encumbered by a mortgage with the John Hancock Insurance Company. The mortgage had been duly recorded and Sjoberg entered the purchase agreement knowing the mortgage existed. The purchase agreement included a specific clause addressing the eventual release of the Hancock mortgage:

“The buyer enters into this agreement with the knowledge and understanding that the real property above described is subject to a mortgage to the John Hancock Mutual Life Insurance Company recorded at book 257, pages 730-738 of Mortgage Records of Madison County, Montana, on April 3,1978. Buyer agrees that the seller shall not cause said mortgage to be released of record until the sellers obtain at least $250,000 in sales of land of which the above real estate is a part or within one year from the date of this agreement. Upon such event the seller shall cause to be filed a partial satisfaction of said mortgage to the above described real property.”

The parties agreed to an amendment to the above contract on June 12,1980. The amendment provided that after the Hancock mortgage was released, the Kraviks would subordinate their contract interest to one acre so that the one acre would be free of both the Hancock mortgage and the Kravik contract. The express purpose of the amendment was to allow mortgage financing.

Sjoberg made his first payment on the forty acres in 1981 without incident. On May 6, 1981 Sjoberg wrote a letter to Donald Kravik stating that Kravik was to have the Hancock mortgage released by May 31, 1981 according to the terms of their original contract. However, Kravik was not able to obtain the release and failed to do so until April 1986.

On January 15, 1982, Sjoberg purchased an additional twenty acres from the Kraviks for the price of $19,200, with $1,000 as a down payment. Payments were to be made in fifteen annual installments of $2,392.75. The agreed interest rate was 10% per annum. The first payment was to be made May 1, 1982 and the remaining payments were to occur on the first day of each year thereafter. This contract also contained a clause specifically addressing the Hancock mortgage which was very similar to the clause in the first contract between Sjoberg and the Kraviks. Specifically, the clause in the second contract stated:

“The buyer enters into this agreement with the knowledge and understanding that the real property above described is a portion of a larger tract of land consisting of approximately 1,515 acres which is subject to a mortgage to the John Hancock Mutual Life Insurance Company, recorded at book 257, pages 730-738 of the Mortgage Records of Madison County, Montana, on April 3, 1978. Approximately 493 acres of the larger tract have been subdivided into smaller acreage tracts. The land herein being sold is one of these acreage tracts. The sellers are in the process of selling the subdivided acreage tracts, and when there is at least $250,000 in sales of the acreage tracts or within 1 year, the seller shall obtain from the above named mortgagee, a full satisfaction of mortgage as to the subdivided acreage tracts and shall place the same of record.”

On April 20, 1982 Sjoberg’s attorney sent a letter to the Kraviks stating that the Kraviks were in default of the contract entered May 30, 1980 for the forty acre tract. The letter explained that default occurred because the Kraviks failed to obtain the release of the Hancock mortgage on May 31,1981 as promised in the contract, and demanded that the Kraviks cure the default within the time provided in the agreement. The agreement provided that if the buyer defaulted, the sellers could terminate the agreement after written notice, but only if the buyer did not cure the breach within sixty days after the notice. Although the agreement did not expressly contemplate the procedure in the event of a breach by the sellers, it appears that Sjoberg’s attorney was addressing this sixty day grace period and demanding that the Kraviks obtain a release of the Hancock mortgage within the sixty day period following the written notice and demand.

On May 1, 1982,' Sjoberg did not make any payment on either of the two contracts entered. On June 8, 1982, Sjoberg attempted to make payment on both contracts, but did so under the provision that the escrow agent hold the check in escrow and not actually deliver the payment. Under those terms, the escrow agent rejected the payment. Also on June 8, 1982, Sjoberg’s attorney sent a letter to the Kraviks notifying them that they were in default on the contract for the purchase of the twenty acre tract because the Hancock mortgage was not released. The letter stated that the agreement entered on January 15, 1982 stated that “when there is at least $250,000 in sales of these acreage tracts or within one year, seller shall obtain a full satisfaction of mortgage ...” Although the letter did not specify the reason for breach, one year had not passed since the date of the contract. Therefore, the allegation must have been that the Kraviks had by that time sold at least $250,000 worth of their total acreage. The letter demanded that the Kraviks obtain the mortgage release within the time provided in the contract.

On July 2, 1982, an attorney for the Kraviks wrote a letter to Sjoberg stating Sjoberg was in default on the contracts by failing to make payments when they were due. Sjoberg responded by making the payments within the specified grace period of sixty days.

Sjoberg filed a lawsuit against the Kraviks April 7, 1983 and alleged they had breached both contracts and damaged him in the amount of $71,700, the total sale price of the two tracts of land. Sjoberg has stated he deposited the 1983 payments on both tracts in a bank account pending the outcome of the lawsuit. No further payments have been made on the contracts. On April 11, 1986, the Kraviks obtained the release on the Hancock mortgage as a result of another lawsuit. The Kraviks then sent Sjoberg a notice of default on May 16, 1986 alleging Sjoberg had failed to render any payments since 1982. The District Court stayed all proceedings regarding this default pending the outcome of the litigation.

A bench trial was held May 20, 1987. Plaintiff Sjoberg alleged he had intended to construct a house and develop a horse farm on the property, but was unable to obtain any financing for the construction because of the Hancock mortgage. The District Court found that the Kraviks materially breached the contracts by failing to obtain a release of the Hancock mortgage. Sjoberg claimed a number of damages including loss of profits and good will regarding the horse farm which the District Court denied because they were too speculative. However, the District Court did award Sjoberg damages totaling $43,100, which Sjoberg claimed to have sustained due to a general increase in costs of construction of various buildings, equipment, power, wells, and a horse trailer and truck. The District Court also awarded attorney’s fees in the amount of $9,200 and costs of $343.60. In the District Court’s final judgment, it found there was a total of $56,529.38 remaining on the principal balances due and owing under both contracts, and that the total amount awarded to Sjoberg was $52,643.60. Therefore, the District Court concluded that upon Sjoberg paying the difference, $3,885.78, both contracts would be paid in full and the obligations of all parties fulfilled.

Defendants/appellants, the Kraviks, appeal and raise issues which may be addressed as follows:

1. Did the Kraviks’ failure to obtain a release of the Hancock mortgage constitute a breach of the contract which entitled Sjoberg to stop payments?

2. Were the damages awarded Sjoberg correctly calculated?

3. Has the Kraviks’ appeal been rendered moot?

1. BREACH OF THE CONTRACT

The Kraviks admit they were unable to obtain a timely release of the mortgage as promised in both contracts. The releases were not obtained until April 11, 1986, and under the terms of the contracts the releases should have been obtained no later than May 31, 1981 for the forty acre tract and January 15, 1983 for the twenty acre tract. The Kraviks maintain, however, that their breach was not a breach which constituted default and was not sufficient enough to allow Sjoberg to stop payments. Instead, they contend that Sjoberg’s sole remedy was to continue with the payments and sue for whatever damages he incurred.

If a contracting party materially breaches the contract, the injured party is entitled to suspend his performance, and the determination of whether a material breach exists is a question of fact. E. Farnsworth, Contracts, Section 8.16 (1982). The contracts included specific provisions directing the mortgage release. The District Court found that “the specific purpose of the provision . . . was to allow Sjoberg to have the property free of the mortgage and subject only to the purchase contract so that he could obtain financing to begin to develop the property as a horse ranch.” The District Court concluded that the Kraviks breach was a material breach. We agree with the District Court because the Kraviks breach substantially effected the purpose of the contract. Sjoberg probably would nqt have entered the contract had he known the mortgage would not be released. We hold that the Kraviks’ breach was material and constituted a condition entitling Sjoberg to stop his payments under the contracts.

The Kraviks contend that this holding would conflict with the rule that under an installment sales contract the seller does not have to produce marketable title until the date set for final payment and tender of the deed. Scheitlin v. R & D Minerals (Mont. 1985), [217 Mont. 8,] 701 P.2d 1388, 1390, 42 St.Rep. 986, 988 (citing Silvast v. Asplund (1933), 93 Mont. 584, 592, 20 P.2d 631, 636). However, this decision does not run contrary to this rule because the parties specifically agreed the mortgage would be released no later than one year after the contracts were entered.

2, DAMAGES

This action was commenced when Sjoberg filed a complaint in the District Court alleging breach of the two real estate contracts because the John Hancock Insurance Company release had not been obtained within a year. He sought total damages of $71,700. Sjoberg thus chose to stand on the contract and to seek damages for its breach.

In their answer to the complaint, Kraviks tendered a third defense and counter claim in which they agreed that under the terms of the contracts they were to deliver marketable title in the sellers; and they could not do so because they were unable to secure the release from the John Hancock Mutual Life Insurance Company; that obtaining the release was not possible and that the Kraviks were ready, willing and able to restore to Sjoberg all payments made by him under his contracts and by reason of the doctrine of mutuality of remedy, sought to rescind the contracts and restore the parties to their status at the time of entering into the contracts. No other pleadings were thereafter filed in the nature of supplementary pleadings.

While the action was pending, in April of 1986 through another litigation, the release of the property from the mortgage of John Hancock Mutual Life Insurance was obtained. On May 16, 1986, Kraviks served notices of default upon Sjoberg for each of the contracts, on the grounds that no payments had been made by Sjoberg to keep the contracts in effect. Upon receipt of the default notices, counsel for Sjoberg went to court and obtained a stay of default on the contracts until further order of the court.

In its findings and conclusions, the District Court found that the provision in the contracts requiring the John Hancock Mutual Life Insurance Company releases was material to the contracts, and that the Kraviks’ failure to produce such releases constituted a material breach of the contracts. It concluded therefore that Sjoberg’s obligation to make payments ceased on the failure of the Kraviks to obtain the mortgage releases. The court however further found that Sjoberg was obligated to pay under the contracts commencing with the payments due in May of 1988, but that no interest should accrue on the contracts between the date of the last payment in 1982 and May 1988 because of the Kraviks’ material breach.

The District Court also found that Sjoberg was damaged through the Kraviks’ breach in the sum of $18,000 for the increased costs of building a house, barn and other outbuildings; $10,000 for the increased costs of purchasing a tractor, plow and irrigation equipment; $1,600 for the increased costs of obtaining power to the pump and digging wells; and $13,500 for the increased costs of obtaining a horse trailer and appropriate truck. The District Court found the total amount of damages was $43,100.

The findings of the District Court are not clearly erroneous, Rule 52(a), M.R.Civ.P., and the application of legal principles to the fact situation by the District Court is proper.

The court did award attorney’s fees in the sum of $9,200 to Sjoberg based upon the reciprocity statute, Section 28-3-704, MCA, and the following in the contracts:

“In the event the Sellers must resort to legal action to remove the Buyer from the premises, or seek return of the property, after Default and Notice, the Buyer hereby specifically agrees to pay all the court costs and reasonable attorney fees incurred by the Seller in such action.”

Neither of the parties are entitled to attorney’s fees in this action. While Kraviks breached the contracts by not providing the John Hancock releases, Sjoberg also breached the contracts when he did not begin making payments on the contracts when he became obligated to do so in May of 1986. We hold it would be inequitable to award attorney’s fees or costs to either party in this case.

3. MOOTNESS

In its judgment, the District Court offset the amounts due to the Kraviks under the contracts with the amounts it found as damages, attorney’s fees and costs awarded to Sjoberg leaving a net of $3,885.78. The judgment provided that upon payment of that sum to the escrow holder, the escrow holder was to deliver the escrow documents, including the warranty deed to Sjoberg, at which time the contracts would be deemed paid in full and the obligations of all the parties fulfilled. During the pendency of this appeal, Sjoberg has made that payment to the escrow holder and now claims that the cause is moot because the terms of the judgment have been fulfilled by him.

Because we have found that Kraviks are entitled to effective relief on appeal, we do not find the judgment to be moot. See Martin Development Company v. Keeney Construction Company (Mont. 1985), [216 Mont. 212,] 703 P.2d 143, 147, 148, 42 St.Rep. 752, 757, 758.

4. CONCLUSION

Accordingly, we affirm in part and reverse in part the judgment of the District Court. We affirm the determination of the District Court that the sum of $56,529.38 is due to the Kraviks from Sjoberg as principal due and owing on both contracts. Kraviks should additionally receive interest on $56,529.38 at the rate of 10% per annum from May 16, 1986 until the date of the judgment appealed from. We affirm the findings of the District Court that Sjoberg is entitled to damages from the Kraviks in the sum of $43,100, and agree that this sum may be offset against the principal balance due on the contracts of Sjoberg to Kraviks as of the date of said judgment. Thereafter Kraviks are entitled to receive judgment interest at the rate of 10% per annum on the net principal amount due from and after the judgment date until paid. (Post judgment interest shall not include interest on interest.) We determine that neither party is entitled to attorney’s fees and costs in this action. We remand this cause to the District Court for such further proceedings as may be necessary to reverse the delivery of the warranty deed from the escrow holder to Sjoberg until such time as the amounts due under this opinion are fully paid.

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


source: Caselaw Access Project

author: MR. JUSTICE HUNT

license: Public Domain

text:
    WILLIAM K. SCHULTZ, Plaintiff and Respondent, v. CRAIG A. STEVENS and Stevens Construction, Inc., Defendants and Appellant.
    No. 88-07.
    Submitted on Briefs June 9, 1988.
    Decided July 19, 1988.
    758 P.2d 287.
    Harris & Seidler, Nancy C. Seidler, Billings, for defendants and appellants.

      Peterson, Schofield & Leckie, K.D. Peterson, Billings, for plaintiff and respondent.
   MR. JUSTICE HUNT

Defendants, Craig A. Stevens and Stevens Construction, Inc., appeals the decision of the District Court of the Thirteenth Judicial District, Yellowstone County, ordering that the defendants pay the plaintiff, William K. Schultz, nineteen thousand eight hundred dollars ($19,800.00) plus 10 percent interest from May 21, 1984, as a result of the promissory note executed by Stevens on behalf of himself and the Stevens Construction, Inc. We affirm and remand.

The sole issue on appeal is whether the District Court erred in interpreting the promissory note and mortgage executed between the plaintiff Schultz and the defendants Stevens and Stevens Construction, Inc.

Plaintiff-respondent, William K. Schultz, was a licensed realtor in Billings from approximately 1982 to 1985. Schultz was looking at houses when he first met defendant-appellant, Craig A. Stevens, in 1981 or 1982. At that time, Schultz owned Lots 21 and 22 in Block 1, Lillis Heights Subdivision and Stevens expressed an interest in purchasing these two lots. Stevens purchased these lots and eventually built a house on Lot 22. Schultz subsequently had Stevens build a house for him on Lot 18 for resale but instead moved into the house himself.

While building Schultz’s house on Lot 18, Stevens expressed an interest in building a house on another lot owned by Schultz. Schultz agreed to convey by warranty deed this lot, Lot 4, Block 1, Lillis Heights Subdivision, to Stevens for $19,800. Prior to delivering the deed to Lot 4 to Stevens, Schultz had Stevens execute a promissory note and mortgage that was dated May 21, 1984. The promissory note executed by Stevens reads as follows:

“For Value Received the undersigned CRAIG A. STEVENS AND STEVENS CONST. INC., OF BILLINGS MONTANA, promise to pay to the order of William K. Schultz, of Billings, Montana, the sum of Nineteen Thousand Eight Hundred ($19,800.00), as follows:

“The aforementioned amount shall, together with interest thereon the annual rate of 10%, shall be due and payable in a single payment upon sale of the House to be constructed on Lot — 4 Block — I Lillis Hts. Sub. . . .

“If this Note is not paid when due, and is placed by the holder in the hands of an attorney for Collection through legal proceedings or otherwise the undersigned shall pay a reasonable attorney’s fee to such . . . [holder], together with the costs and reasonable expenses of collection.”

Stevens signed the promissory note for himself individually and for Stevens Construction, Inc. Stevens is the sole owner of the Stevens Construction, Inc. The mortgage was never acknowledged or recorded.

Before Stevens could begin building the house on Lot 4, he had to obtain a construction loan. He obtained this loan from the First Bank Billings (Bank). Stevens did not disclose to the Bank his previous obligation to Schultz as evidenced by the signed promissory note and accompanying mortgage.

When the building of the house was approximately two-thirds finished, Schultz listed the house for sale, advertised it, and held open houses. Before the house was sold, Schultz retired from the real estate business. After his retirement, Schultz’s only contact with the house was when he occasionally drove by the house.

In the meantime, sometime prior to December, 1985, Stevens’ construction loan became delinquent. Stevens then conveyed Lot 4 and the house to the Bank in consideration for the cancellation of the construction loan obligation of Stevens. The lot and house was deeded to the Bank on January 27, 1986. Schultz received no notice of this transfer and conveyance of real property.

Schultz first became aware that something had “happened” with the house when he noticed on one of his drives by the house that the “For Sale” sign had been removed. In early April, 1986, upon further inquiry, he learned that the property had been transferred to the Bank. The Bank would not allow Schultz to purchase its interest because of a pending sale of the property. The Bank sold the property by deed dated April 22, 1986. Schultz subsequently filed this action in the Thirteenth Judicial District Court, Yellowstone County.

The District Court found that the promissory note signed by Stevens is valid, legally binding and unambiguous; that the note is in default and is due and payable in full with 10 percent interest stemming from May 21, 1984; and that pursuant to the terms of the promissory note, Schultz is entitled to reasonable attorney fees and costs.

The issue raised on appeal is whether the District Court erred in interpreting the promissory note and mortgage executed by Stevens on behalf of himself and the Stevens Construction, Inc.

Stevens argues that the intentions of the parties should be introduced by extrinsic evidence because the term “sale” is ambiguous and subject to interpretations. More specifically, Stevens argues that the transfer of the property to the Bank was not a sale within the intentions of either party when they contracted on May 21, 1984. Stevens also argues that the sale anticipated by the parties was a sale by Stevens, not a sale which occurred after the property had been deeded back to the Bank. We disagree.

General principles of contract law are applicable in this instance. A basic principle in contract law, codified by statute, is that “words of a contract are to be understood in their ordinary and popular sense . . . unless used by the parties in a technical sense or unless a special meaning is given to them by usage . . . .” Section 28-3-501, MCA. Webster’s Dictionary defines the term sale as “the transfer of ownership of and title to property from one person to another for a price.” Webster’s Ninth New Collegiate Dictionary 1037 (1984). Black’s Law Dictionary cites cases defining “sale” as “[a] contract whereby property is transferred from one person to another for a consideration of value, implying the passing of the general and absolute title, as distinguished from a special interest falling short of complete ownership.” Black’s Law Dictionary 1503-04 (4th ed. 1968) (citing Arnold v. North American Chemical Co. (1919), 232 Mass. 196, 122 N.E. 283, 284; Faulkner v. Town of South Boston (1925), 141 Va. 517, 127 S.E. 380, 381).

In the present case, Stevens transferred absolute title to Lot 4 and the house to the Bank. In exchange for the title to the property, the Bank gave valuable consideration by releasing Stevens from his construction loan debt to the Bank and the costs and expenses of the foreclosure. A transfer of property in exchange for valuable consideration constitutes a sale. In light of the above, the transaction between Stevens and the Bank regarding Lot 4 and the accompanying house is a sale.

Stevens nonetheless argues that extrinsic evidence is needed to show the intentions of the parties. However, the intentions of the parties are evidenced by the language used in the instruments, Glacier Campground v. Wild Rivers, Inc. (1978), 184 Mont. 543, 182 Mont. 389, 547, 597 P.2d 689, 692, and as discussed above, the ordinary and popular usage of the term “sale” includes the transfer of the property to the Bank. The introduction of any such extrinsic evidence would only create ambiguity that otherwise does not exist. Stevens also argues that the term “sale” is ambiguous. We disagree. Ambiguity exists only when a contract taken as a whole in its wording or phraseology is reasonably subject to two different interpretations. Martin v. Laurel Cable TV, Inc. (Mont. 1985), [215 Mont. 229,] 696 P.2d 454, 457, 42 St.Rep. 314, 317; Souders v. Montana Power Co. (1983), 203 Mont. 483, 486, 662 P.2d 289, 290. Upon applying the basic principle that the words of a contract are to be understood in their ordinary and popular sense, no ambiguity exists.

We affirm the District Court’s decision and remand this matter to the District Court for a determination of costs, and reasonable attorney fees arising as a result of this appeal.

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


author: MR. JUSTICE HARRISON

text:
    In re the MARRIAGE OF RONALD THOMAS WEST, Petitioner and Appellant, and REBECCA BIRNEL WEST, Respondent and Respondent.
    No. 88-17.
    Submitted on Briefs June 2, 1988.
    Decided July 19, 1988.
    Rehearing Denied Aug. 17, 1988.
    758 P.2d 282.

      Ronald Thomas West, Helena, pro se.
    Antonina Vaznelis, Helena, for respondent and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This appeal marks the culmination of Ronald West’s three-year long battle to amend the parties’ dissolution of marriage decree so as to give him sole and exclusive custody of the couple’s two sons, ages eight and seven. The District Court of the First Judicial District in and for Lewis and Clark County entered findings of fact, conclusions of law and an order in December 1987 finding no evidence that father is entitled to sole custody, retaining the dissolution decree’s joint custody order, and granting primary custody to Rebecca West, the mother. We affirm the decision of the District Court.

The Wests’ marriage was dissolved in January 1981. At that time they had one son and Rebecca was pregnant with the second. A review of the record indicates that the dissolution is bitter and the parties have had several clashes over exercise of the joint custody and visitation rights thereto. In July 1985, the father filed his original motion to modify the custody arrangement. This motion was prompted by Rebecca’s insistence that the boys, who at that time were in the custody of their father, attend the ceremony at which she married her second husband. The father granted this visitation privilege, as well as one several days later, when the mother’s family gathered to celebrate her remarriage. However, the sons were not returned to the father and he alleged that the mother and her new husband transported them to Iowa, a direct contravention of the District Court’s prohibition of removing the children from the state. The mother, in turn, says she merely removed the children to her home in Flathead County, Montana. However, she does admit that she later moved her sons to Iowa to be closer to her new husband, despite the District Court’s temporary restraining order of July 9, 1985 prohibiting either party from removing the children from the state. She returned the children to their father after he protested their absence and paid their airfare. On December 12, 1985, the District Court granted temporary custody to the father.

A hearing was held on August 18, 1986, at which both sides presented evidence. At the conclusion of that hearing, the District Court established further guidelines for joint custody. He ordered that the boys were to be placed in primary custody of their father for the next six months. During this time, their mother, whose second marriage already had ended, was to establish residence in Helena, enjoy liberal visitation rights, enjoy primary custody of the boys for the last six months of the succeeding year, and work with the father to establish a practical and viable means of sharing custody. The mother did establish residency in Helena and did take custody of the boys at a point six months after the District Court’s order. However, she then moved back to Flathead County, where she undertook employment with the United States Forest Service. Another hearing was held in the District Court on August 19, 1987, at which time the court considered the father’s motion for sole and exclusive custody as well as heard testimony about a proper custody schedule under joint custody.

The law in Montana favors joint custody. See, Section 40-4-222, MCA. In order to amend the original decree’s award of joint custody, the father must show a change of circumstances under Section 40-4-219, MCA, that represents such a serious physical, mental, moral or emotional danger to the children that a modification of custody would be in the children’s best interest. Before the August 1987 hearing, the District Court specifically noted this burden and the father’s former counsel agreed that such was the burden borne by the father.

The father, acting pro se on his appeal from the District Court’s denial of his motion for modification, argues:

1. the District Court erred in denying his motion;

2. the District Court erred in giving primary custody of the children to the mother;

3. the District Court erred in ordering him to pay $250 per month per child in support to the mother; and

4. the District Court erred in awarding the mother costs and attorney’s fees of $2,250.

In addition, the mother enters a cross appeal asking that she be awarded damages and costs on appeal, pursuant to Rules 32 and 33(a), M.R.App.P., since the District Court in its December 13, 1987 order concluded that:

“2. There has been no showing whatever that petitioner is entitled to sole custody and this entire proceeding must be viewed as an intentional course of harassment, delay, obstruction and abuse of process, highly detrimental to the best interest of the children.”

The primary duty of deciding proper custody of children lies with the District Court and all reasonable presumptions as to the correctness of the District Court’s determination will be made. In re the Marriage of Robbins (Mont. 1985), [219 Mont. 130,] 711 P.2d 1347, 1350, 42 St.Rep. 1897, 1900; In re Gore (1977), 174 Mont. 321, 325, 570 P.2d 1110, 1112; Foss v. Leiffer (1976), 170 Mont. 97, 100, 550 P.2d 1309, 1311. We will not disturb the District Court’s judgment unless there is a mistake of law or a finding of fact not supported by credible evidence amounting to an abuse of discretion. Solie v. Solie (1977), 172 Mont. 132, 137, 561 P.2d 443, 446.

Here the father claims the court erred by expressing its decision on modification of custody before Lowell Luke, a clinical social worker, had prepared his report on the homes of the mother and father or testified about the report. However, the issue as to whether this was proper is moot since counsel for the father had acceded to the court’s decision to bifurcate the hearing and to proceed with the hearing on father’s motion despite the unavailability of this witness. This Court will not hold a District Court in error for a procedure in which the appellant acquiesced at trial and to which he had not objected. Green v. Green (1978), 176 Mont. 532, 536, 579 P.2d 1235, 1237. Furthermore, no error lies here because counsel for the father withdrew at trial that portion of the father’s petition seeking sole custody. The counsel for the father told the court he would “just as soon keep it [custody] joint.” The appellant must stand or fall upon the grounds he used at District Court and may not assert new grounds on appeal. McAlpine v. Midland Electric Co. (Mont. 1981), 634 P.2d 1166, 1168, 38 St.Rep. 1577, 1580. Because the motion for sole custody was excised from the father’s petition at hearing, it was not error for the District Court to note for the record that it had been removed.

Next the District Court considered where the children should live for the 1987-88 school year. It awarded primary custody to the mother with two and one-half months of primary custody for the father during the summer vacation as well as visitation periods on certain weekends and holidays. This decision is consistent with the report to the court of Lowell Luke, who reported in September 1987:

“My recommendation is that Rebecca be the primary parent during the school year with liberal visitation rights during holidays and summers for Ron. I think it is imperative that the boys be in therapy. This will guarantee that their interests are kept in mind. They will need some help in understanding their feelings and situation they must cope with . . . What is important is that we build the emotional needs of the children into the process so that what is best for the boys will take precedence over the parents’ issues.”

Such a ruling is supported by substantial evidence that it would be in the children’s best interest to reside with their mother during the entire school year since both children were having difficulty at school and the parents resided in different towns making 50-50 joint custody untenable. This does not appear to be an abuse of discretion considering the children’s desire, expressed to various social workers, to live with their mother. Because there is not a clear preponderance against the court’s findings, we will not disturb them. In re the Marriage of Cook (Mont. 1986), [223 Mont. 293,] 725 P.2d 562, 565, 43 St.Rep. 1732, 1736.

Section 40-4-204, MCA, provides that the District Court may order either parent to pay a reasonable amount for support of the children after considering, inter alia, the financial resources of the children and the financial resources of the noncustodial parent. In this case, the court noted that the children would be living primarily with their mother, who earns $800 per month in seasonal employment as a forest worker and works as a waitress during other months. The father, on the other hand, collects $2,300 per month in disability payments from the Veterans Administration and Social Security. Such findings represent substantial credible evidence of the children’s need for support and the father’s ability to pay it. In re Marriage of Alt (Mont. 1985), [218 Mont. 327,] 708 P.2d 258, 261, 42 St.Rep. 1621, 1626. No abuse of discretion is apparent.

Section 40-4-219(4), MCA, provides:

“Attorney fees and costs shall be assessed against a party seeking modification if the court finds that the modification action is vexatious and constitutes harassment.” (Emphasis added.)

The father continually implied that the mother and her male associates were subjecting the children to sexual and physical abuse and not keeping the children clean. The proof as found in transcripts of the hearings was less than convincing. The District Court determined that the father’s action was intended to harass, obstruct and delay the mother’s rights to joint custody and was an abuse of process that was “highly detrimental to the best interest of the children.” Whenever in a modification of custody proceeding the court finds harassment, the statute commands it to levy attorney’s fees and costs against the proponent. That was properly done in this case.

The District Court’s interpretation of father’s motion as harassment developed after that particular court had approved the original dissolution of marriage decree and had presided over several hearings within a two-year time frame to determine if joint custody should be modified. We defer to the District Court’s characterization of the motions as harassment because it was in a much better position to determine the merit, or lack thereof, in the father’s motion.

Apart from the statute allowing an award of attorney’s fees, the District Court also may award attorney’s fees as equitable relief absent an abuse of discretion. In re Marriage of Hereford (Mont. 1986), [223 Mont. 31,] 723 P.2d 960, 962, 43 St.Rep. 1508, 1510. There was no abuse of discretion here since the father, who receives monthly benefit checks for total disability, was continually taking mother to court to challenge her interest in joint custody on charges that were so lacking that they were abandoned at trial.

Rule 32, M.R.App.P., allows this Court to tax the costs of a meritless appeal to the appellant. Such sanctions are allowed only when Treasonable grounds do not exist for an appeal. Searight v. Cimino (Mont. 1988), [230 Mont. 96,] 748 P.2d 948, 952, 45 St.Rep. 46, 52; Erdman v. C & C Sales, Inc. (1978), 176 Mont. 177, 184, 577 P.2d 55, 59. We have found no reasonable grounds for this appeal. This is borne out by the fact that the very heart of father’s appeal, sole custody of the children, is inserted and withdrawn from this case with the regularity of a yo-yo. This is a meritless appeal designed to put the mother to the expense again of protecting her right to joint custody. We will have none of that.

We affirm and remand for determination of reasonable attorney’s fees and costs on appeal.

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


author: MR. CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. EVERETT FRANCIS POWERS, Defendant and Appellant.
    No. 88-33.
    Submitted on Briefs June 9, 1988.
    Decided July 19, 1988.
    758 P.2d 761.

      Deirdre Caughlan, Dunlap & Caughlan, Butte, for defendant and appellant.
    Mike Greely, Atty. Gen., Joe Roberts, Asst. Atty. Gen., Helena, Robert M. McCarthy, Co. Atty., Brian Holland, Deputy Co. Atty., Butte, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Defendant Powers appeals his September 17,1987, jury convictions in the Second Judicial District Court, Silver Bow County, for robbery, sexual assault and sexual intercourse without consent by accountability. Powers was sentenced to ten years on each of the three counts to be served consecutively. Defendant was designated a dangerous offender.

We affirm.

Powers raises three issues on appeal:

1) Did the District Court err in not allowing a defense witness to testify as to a hearsay statement made by an unavailable accomplice and err in allowing a prosecution witness to testify as to a hearsay statement made by the unavailable accomplice?

2) Was there adequate foundation and identification of a knife, obtained from the unavailable accomplice, which was used to threaten the victim?

3) Does substantial evidence support the conviction?

The twenty-eight-year-old male victim, L.H., had a casual friendship with defendant Powers. On the evening of April 17, 1987, Powers introduced L.H. to Paula Butler at Paula’s apartment. Later in the evening Paula began to make sexual advances toward L.H. Taken aside, Powers told L.H. that Paula wanted to have sex with L.H. while Powers watched. After L.H. objected, Powers became physically abusive toward L.H. Paula approached Powers and L.H. with a knife, which she gave to Powers. Upon being threatened with the knife, L.H. did as he was told and undressed. Then Powers and Paula undressed. During the evening, L.H. was forced at knifepoint to perform sexual acts upon the defendant and Paula. Powers continued to be physically abusive toward L.H. The defendant and Paula ended their assault by sexually abusing L.H. with a broom stick.

After these assaults, two people, who later testified at the trial, stopped by Paula’s apartment for about ten to fifteen minutes. Each testified as to seeing a naked man standing in the corner of the bedroom shaking and identified the man as L.H. They also testified as to seeing Powers strike the man. After they left, defendant and Paula took the naked L.H. to L.H.’s apartment. Paula waited in the car while Powers and L.H. went inside. Powers proceeded to take some of L.H.’s belongings. Powers then allowed L.H. to put on a pair of pants. The two left the apartment and returned to the car. While Powers was talking with Paula, L.H. escaped and ran barefoot, wearing only a pair of pants, to the police station about two blocks away. L.H. made a statement, was taken to the hospital, examined by a physician and admitted.

On May 2, 1987, Powers was charged with felony counts of assault and felony robbery and was later charged with sexual assault, sexual intercourse without consent by accountability and deviate sexual conduct without consent. Paula was also charged with several criminal offenses but fled the-jurisdiction and was unavailable at the time of trial.

Issue 1: Hearsay statements attributed to Paula Butler.

Defendant claims that the District Court erred in admitting into evidence a hearsay statement of Paula Butler offered by the prosecution and in denying the defense the admission of another statement attributed to Paula Butler.

Paula Butler, an alleged accomplice in the commission of the acts for which the defendant has been convicted, was unavailable as a witness in defendant’s trial. A warrant for the arrest of Paula Butler was outstanding and a subpoena directed to her was returned with information that she could not be found at the time of trial.

Detective Albert Johnson, who was investigating the offenses committed upon L.H., had occasion to be at Paula Butler’s apartment. He testified:

“I asked Paula Butler if she would give up the knife that was alleged to have been used in this crime. At that time she pointed to the sink cupboard in the kitchen and says ‘that is it’. I at that time stated, ‘are you sure that is the knife’ because I thought it was described differently but she said, ‘yes, that is the knife.’ ”

Rule 804(b), M.R.Evid., in pertinent part, provides:

“The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

“(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true. . . [Emphasis added.]”

The statement attributed to Paula Butler, the alleged accomplice, tended to subject her to criminal liability and was therefore admissible under the hearsay exception provided in Rule 804(b), M.R.Evid. There was no error in admitting this testimony.

The hearsay exception sought by the defendant had an entirely different factual base. Defendant offered to introduce testimony of Mark Henry for the purpose of establishing that Henry had a conversation with Paula Butler wherein she allegedly stated that Powers was not a participant in the criminal activities for which he was charged.

Rule 804(b)(3), M.R.Evid., goes on to provide:

“. . . A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” [Emphasis supplied.]

The offered testimony did not qualify as an exception to hearsay. The statement, although tending to expose the declarant to criminal liability, was offered to exculpate the accused and no corroborating circumstances were offered clearly indicating the trustworthiness of the statement.

Although State v. LaPier (1984), 208 Mont. 106, 676 P.2d 210, discusses Rule 804(b)(5), M.R.Evid., we find this case persuasive as to the question of abuse of discretion with relation to guarantee of trustworthiness concerning offered hearsay testimony under Rule 804(b)(3).

There was no abuse of discretion and no error in the District Court’s refusal to admit this testimony.

Issue 2: Foundation and identification of the knife.

The investigating police officer, during a warranted search of Paula Butler’s apartment, asked Paula to give him the knife which was alleged to have been used against the victim, L.H. The officer testified that Paula Butler handed him a knife and said “that is it.” The search warrant sought “the brown handled, serrated edged knife [L.H.] was threatened with.” Paula Butler produced a smooth-edged knife.

The defendant claims that the knife produced at trial was not what its proponent claimed, nor did it bear the “distinctive characteristics and the like,” as required by Rule 901(b)(4), M.R.Evid., or some form of identification required for the admission of evidence at trial.

Rule 901, M.R.Evid., states in pertinent part:

“(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

“(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

“(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

“(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns or other distinctive characteristics, taken in conjunction with circumstances. [Emphasis added.]

We hold that the District Court properly admitted the knife into evidence for two reasons.

First, defendant Powers does not have standing to challenge the seizure of the knife. The knife was obtained from Paula Butler at her apartment pursuant to a valid search warrant. As required by State v. Gonzales (Mont. 1988) [231 Mont. 242,] 751 P.2d 1063, 1064, 45 St.Rep. 579, 580, “[a]n individual must have either a property or possessory interest in the automobile searched or seized by the police to assert standing for violations of the Fourth Amendment to the United States Constitution,” citing Rakas v. Illinois (1978), 439 U.S. 128, 148, 99 S.Ct. 421, 433, 58 L.Ed.2d 387, 404. Defendant Powers has not demonstrated a property or possessory interest in the apartment searched or in the knife seized. Thus, Powers has no standing in this issue.

Second, the differences between the knife described in the search warrant and the knife obtained and admitted into evidence is not adequate to deny the admission of the knife. The victim, L.H., identified State’s exhibit 3 as the knife with which he was threatened. The investigating police officer testified as to the identification of the knife made by Paula Butler when she said “that is it.” We hold this testimony sufficiently identified the knife within Rule 901, M.R.Evid., requirements.

Issue 3. Substantial Evidence.

On several occasions and most recently in State v. Oliver (Mont. 1987) [228 Mont. 322,] 742 P.2d 999, 44 St.Rep. 1567, and State v. Cyr (Mont. 1987) [229 Mont. 37,] 746 P.2d 120, 44 St.Rep. 2013, this Court has held:

“The standard for review of the sufficiency of the evidence is: ‘Whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560, 573. [Oliver, 742 P.2d at 1002, and Cyr, 746 P.2d at 122.] We defined substantial evidence as ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ State v. Kutnyak (Mont. 1984), [211 Mont. 255,] 685 P.2d 901, 910, 41 St.Rep. 1277, 1289. [Oliver, 742 P.2d at 1002.]”

Powers contends that the evidence did not support a guilty verdict on the counts of robbery, sexual assault and sexual intercourse without consent by accountability. We hold there is more than substantial credible evidence to allow the jury to find the defendant guilty beyond a reasonable doubt.

The testimony of the victim, L.H., was corroborated by: (1) the two people who came by Butler’s apartment during the assault upon L.H.; (2) the officer who first interviewed L.H. at the police station immediately after the assault; (3) the physician who examined L.H.; and (4) the two investigating detectives who searched Butler’s and Powers’ apartments.

After viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

The convictions are affirmed.

MR. JUSTICES HARRISON, WEBER, HUNT and GULBRANDSON concur.


text:
    RUSSELL R. WESTON, JR., Plaintiff and Appellant, v. DOROTHY COLE, Defendant and Respondent.
    No. 88-50.
    Submitted on Briefs June 30, 1988.
    Decided July 19, 1988.
    Rehearing Denied Aug. 17, 1988.
    758 P.2d 289.
    Daniel J. Shea, Helena, for plaintiff and appellant.

      Smith Law Firm, Chadwick H. Smith, Helena, for defendant and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Plaintiff-appellant, Russell E. Weston, Jr. (Weston), appeals a District Court order dismissing his law suit against defendant-respondent, Dorothy Cole (Cole). The order was entered in the Fifth Judicial District, Jefferson County, by the Honorable Frank M. Davis. We affirm.

On October 23, 1986, Weston filed a law suit against Cole alleging she struck him in the head with a cane. Specifically, the complaint alleged:

“[defendant without cause or provocation . . . unlawfully assaulted and battered plaintiff by then and there striking plaintiff with her cain [sic] in the head, which blow was struck without warning and while plaintiff was unprepared to fend off said blow.”(Emphasis added.)

The complaint alleged the assault occurred “on or about October 30, 1983.” Subsequently, Cole filed a motion to dismiss alleging, among other things, that the statute of limitations applicable to Weston’s alleged cause of action had expired. The motion was argued October 28, 1987 and the District Court filed an order granting the motion to dismiss December 21, 1987. The District Court found that the applicable statute of limitations for Weston’s claim was two years, according to Section 27-2-204(3), MCA. Since it was undisputed that Weston filed his complaint nearly three years after the incident, the cause of action was dismissed.

On appeal, Weston raises two issues:

1. Did the District Court implement the correct statute of limitations?

2. Based on general principles of equity, should the statute of limitations have been tolled during the time period that Weston was living outside Montana?

APPLICABLE STATUTE OF LIMITATIONS

Section 27-2-204, MCA, states:

“(1) The period prescribed for the commencement of an action upon a liability not founded upon an instrument in writing is within 3 years.

“(2) The period prescribed for the commencement of an action to recover damages for the death of one caused by the wrongful act or neglect of another is within 3 years.

“(3) The period prescribed for the commencement of an action for liable, slander, assault, battery, false imprisonment, or seduction is within 2 years. (Emphasis added.)”

Weston asserts the three year period stated in subsection (1) should apply, rather than the two year period specified in subsection (3). He makes this argument by alleging that he intends to prove simply an “unlawful act” instead of an intentional tort. Weston states that Cole was incompetent and could not form the necessary intent for an assault action in any event. Therefore, he concludes that the true intent of his complaint was to simply allege that Cole committed an unlawful act which damaged him.

Weston’s complaint however, could not be more clear. It states that Cole unlawfully “assaulted and battered” Weston. The complaint asserts Cole committed an assault and battery, and no additional or alternative claims are presented. In determining which subsection of Section 27-2-204, MCA, to apply, the following statutory provision is helpful:

“1-2-102. Intention of the legislature — particular and general provisions. In the construction of a statute, the intention of the legislature is to be pursued if possible. When a general and particular provision are inconsistent, the latter is paramount to the former, so a particular intent will control a general one that is inconsistent with it.”

Although a strict reading of Section 27-2-204, MCA, may present some conflict between subsections (1) and (3), the intent appears to have been to establish a general three year statute of limitations for tort actions, with a shorter two year period for certain particular tort actions such as assault and battery. We find that the District Court implemented the correct statute of limitations by invoking the two year period set forth in Section 27-2-204(3), MCA.

TOLLING OF THE STATUTE OF LIMITATIONS.

As a second argument, Weston asserts that general principles of equity should have tolled the statute of limitations for a twenty month period in which he was absent from this state. Weston cites virtually no authority supporting this argument. His position rests on the allegation that Cole developed a special relationship with the local sheriff by giving him, or selling to him at a drastically low price, a significant amount of mining equipment. As a result, Wes ton claims the local authorities ignored his criminal complaint and he was subsequently denied monetary relief through the Crime Victims Compensation Fund. Weston states he was unable to work due to the injuries he sustained and that he had no monetary resources. This situation forced him to move to Illinois where he resided with relatives. He was absent from the state for approximately twenty months and claims equitable principles dictate that the statute of limitations should be tolled during that period.

Weston cites no authority directly supporting his position. By analogy he cites Section 27-2-402, MCA, which states:

“When defendant is out of state. When the cause of action accrues against a person who is out of the state and cannot be served with process, the action may be commenced within the term herein limited after his return to the state; and if after the cause of action accrues he departs from the state and cannot be served with process, the time of his absence is not part of the time limited for the commencement of the action.”

Weston asserts that this statute creates a situation where “defendant’s absence from the state estops him from relying on the statute of limitations for that period of time in which he was absent from the state.” Weston states a reverse situation exists in this case because Cole effectively forced him to leave the state. Weston concludes that “equity and good conscience should not permit defendant Cole to rely on the twenty months that plaintiff Weston was in Illinois recovering from his injuries.”

The District Court filed a memorandum accompanying its order of dismissal and correctly noted that there was simply no authority supporting Weston’s argument. Weston seems to be making an equitable estoppel argument by asserting the defendant Cole should not be allowed to take advantage of Weston’s delay,, when she in fact caused that delay. See generally, City of Billings v. Pierce Packing Co. (1945), 117 Mont. 255, 266-267, 161 P.2d 636, 641. However, there is insufficient evidence in the record to demonstrate that Cole affirmatively induced the delay.

For the foregoing reasons, we affirm the decision of District Court.

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


author: MR. JUSTICE SHEEHY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DAVID LARRY PEASE, Defendant and Appellant.
    No. 88-101.
    Submitted on Briefs June 16, 1988.
    Decided July 19, 1988.
    Rehearing Denied Aug. 30, 1988.
    758 P.2d 764.

      David Larry Pease, Deer Lodge, pro se.
    Mike Greely, Atty. Gen., Robert F.W. Smith, Asst. Atty. Gen. Helena, John W. Robinson, Co. Atty., Hamilton, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court

David Larry Pease appeals from the amended judgment of the District Court, Fourth Judicial District, Ravalli County, revoking his suspended sentence from a jury conviction on six counts of sexual intercourse without consent. We affirm the District Court’s decision.

The appellant, David Pease, presents the following issues:

1. Was the District Court’s decision to place defendant on probation while he also posted a bail bond contrary to Section 46-20-204(4), MCA?

2. Did the District Court err in finding the defendant guilty of violating the terms and conditions of the suspended sentence if the defendant signed the probation conditions under duress?

3. Was the ex parte conference between the probation officer and the District Court judge a violation of due process?

4. Was the defendant unlawfully detained if he was told, while he was a patient in the hospital, that when ready to leave the hospital he would be under arrest?

5. Was the denial of access to certain evidence a violation of due process?

6. Did the District Court err in denying defendant the opportunity to present a subpoenaed witness?

7. & 8. Did the defendant violate the conditions of his probation if the victim made the initial contacts and if the defendant was acting under duress and necessity?

9. Did the District Court deny bail by reason of excessive bail?

10. Did the District Court err by sentencing defendant before review of his appeal on the excessive bail claim?

11. Did the District Court abuse its discretion by ordering defendant to complete the sex offender program at Montana State Prison?

David Larry Pease was charged in Ravalli County on June 12, 1985 with six counts of sexual intercourse without consent. A jury convicted Pease on all six counts. He was sentenced to 15 years imprisonment with all but six months suspended. The suspended sentence was conditional “that defendant not have any contact with the victim of the offense or her family.” Pease appealed and the Montana Supreme Court affirmed the conviction. State v. Pease (Mont. 1987), [227 Mont. 424,] 740 P.2d 659, 44 St.Rep. 1203.

On September 15, 1987, defendant was admitted to St. Patrick’s Hospital in Missoula. On that day, his probation officer visited him and told him that when he was ready to leave the hospital, he would be under arrest for violating the conditions of his parole. Defendant Pease was arrested September 18, 1987 and appeared before a Justice of the Peace in Ravalli County later that day, where bail was set at $100,000.

On September 22, 1987, the Ravalli County Attorney filed a petition for revocation of the suspended sentence stating that Pease had violated the conditions of his parole by having numerous contacts, in person and by phone, with the victim from June 22, 1987 until September 12, 1987. The District Court found that Pease had violated the terms and conditions of his parole and revoked the suspended sentence. His 15 year sentence to the Montana State Prison was reinstated December 2, 1987 in the District Court’s amended judgment which also ordered Pease to complete the sexual offender program at the prison.

Defendant Pease filed two notices of appeal; one on October 14, 1987 appealing on the issue of excessive bail and a second on November 17, 1987 from the final order revoking the suspended sentence.

I.

Before addressing the issues presented, we must rule on the State’s motion to strike the defendant’s first, second, ninth and tenth issues. The State bases the motion on Section 46-20-104, MCA, contending that the defendant must confine his appeal to errors in the judgment affecting substantial rights. The State also contends that Issues 1, 2, 9 & 10 concern Pease’s prior appeals before this Court. We agree that Issues 1 & 2 are not within the issues on appeal as presented in Pease’s notices of appeal dated October 14, 1987 and November 17, 1987. Issue 2 was reviewable only on Pease’s first appeal. However, with regard to Issue 1, whether the District Court erred requiring a bail bond while Pease was on probation, we find that Section 46-20-204(4), MCA, as relied upon by the defendant does not apply in this case. This section provides for a stay of execution and relief pending appeal of an original conviction. Pease has already been convicted and sentenced. The applicable section now is Section 46-23-1012 which provides procedures for arrest when violations of probation are alleged. A person who has violated probation is made subject to provisions regarding release on bail. Section 46-23-1012(3), MCA. This issue, and Issue 2, will not be considered further.

Issues 9 & 10, concerning excessive bail and whether the District Court erred by sentencing Pease before review of his appeal on the excessive bail claim, were settled by this court’s order on November 17, 1987 in Pease v. Printz, Cause No. 87-417. In that order, this Court found that the district judge properly considered the factors set forth in Sections 46-9-301(1), (2), & (5) in setting bail and affirmed the decision setting bail at $100,000. Pease’s motion to reconsider the order was denied on November 24, 1987. The District Court subsequently entered its amended judgment reinstating Pease’s 15 year sentence on December 2, 1987. Thus, the District Court did not sentence Pease before review of his appeal on the excessive bail claim. Issues 9 and 10 will not be discussed further.

II.

Issue 3 — Ex parte Conference

Pease contends that he was denied due process when his probation officer conversed by telephone with the District Judge on September 15, 1987, just prior to his September 18 arrest. Consequently, Pease argues that our decision in State v. Redding (1984), 208 Mont. 24, 675 P.2d 974 demands reversal of the revocation. We disagree.

In Redding, we held the defendant had been denied due process when the sentencing judge conferred with the presentence investigation officer behind closed doors with no opportunity for argument, rebuttal or explanation. However, Redding is distinguishable from the instant case. Here, the District Judge conferred with Pease’s probation officer after Pease had already been convicted and sentenced. Then, prior to revoking the suspended sentence and reinstating the 15 year imprisonment sentence on December 2, 1987, Pease was given the opportunity for argument, rebuttal and explanation in two separate proceedings. We conclude, Pease was not denied due process of law, and the rule of State v. Redding, supra, does not apply.

Issue 4 — Defendant’s detention in St. Patrick’s Hospital.

When Pease was admitted to St. Patrick’s Hospital on September 15, 1987, he was informed that he would be taken into custody upon his release. Pease contends that as of that day, he was not free to leave the hospital, was in custody and would remain so from then on, and that the hospital staff were instructed to contact the Missoula County Sheriff’s office should Pease attempt to leave. Pease was actually arrested September 18, 1987. That day he appeared before a Justice of the Peace in Ravalli County where bail was set at $100,000. Pease alleges that he was unlawfully detained and in custody with an unreasonable delay before his hearing on September 18, 1987.

This contention is contrary to the probation officer’s testimony and to Pease’s own admission. During Pease’s questioning of the probation officer, while appearing pro se, Pease said “. . . on the 18th [of September] I was arrested . . .” Because Pease had already been convicted and was on probation, any presumption of innocence was gone.

On September 14, 1987, the day before Pease was told he would be arrested, he admitted to his probation officer that he had seen and spoken with the victim on several occasions. Because Pease had admitted to violating his probation there was clearly probable cause to detain him. Pease was not taken into custody until September 18, 1987, and a hearing was held the same day. Pease was not unlawfully detained at St. Patrick’s Hospital.

Issue 5 — Denial of access to certain evidence.

Issue 6 — Disallowance of presenting a witness.

Pease had made cassette recordings of telephone conversations between himself and the victim. While being held in Ravalli County jail, the tapes were taken away from him by the jailer. Pease wanted to use the tapes to show distress and suicidal tendencies of the victim and himself in developing his defense of “duress” and “necessity.” A witness to the taking of the tapes had been subpoenaed but was not allowed to testify.

The testimony of the witness would have been irrelevant to the issue of revoking the suspended sentence. Both the testimony and the tapes would provide no more than cumulative evidence. Furthermore such evidence and testimony is not within the issues on appeal as they have very little, if anything, to do with the parole violation or the revocation of the suspended sentence.

The trial court has discretion to determine admissibility of evidence and such “action will not be reviewed except where its discretionary power has been manifestly abused.” State v. Short (Mont. 1985), [217 Mont. 62,] 702 P.2d 979, 983, 42 St.Rep. 1026, 1031 citing State v. Breitenstein (1979), 180 Mont. 503, 509, 591 P.2d 233, 236.

We find no abuse of discretion by the trial court. The tapes and testimony concerning the tapes were properly denied.

Issues 7 and 8 — Violation of probation.

a) Initial contacts by the victim.

Pease claims that because the victim made contact with him rather than vice versa, he did not violate his probation. Consequently, since the State did not prove Pease willfully violated his probation conditions, he argues his suspended sentence should not be revoked. We do not agree.

The probation agreement made no reference to “willful contact,” instead it stated: “You will have no contact with the victim of this offense or her family.” (Emphasis added.) Pease has misconstrued the agreement. “No contact” means just that, whether or not Pease was the initiator. The District Court made no error in finding that Pease’s contacts with the victim violated his probation.

b) Duress and necessity defense.

Pease presented testimony from several witnesses that showed both he and the victim were emotionally distraught and were compelled to see each other. To justify his actions because of these claimed emotional conditions cannot be tolerated. Duress and necessity are not, per se, included as defenses in the Montana Code. Compulsion, however, is an acceptable defense. Section 45-2-212, MCA. See also, State v. Owens (1979), 182 Mont. 338, 347, 597 P.2d 72, 77. The circumstances of this case do not satisfy the requirements for a compulsion defense. Whether Pease or the victim acted under duress or necessity is a question of fact adequately resolved by the District Judge. There was no error by the District Court in its finding that his claimed duress and necessity were not a defense.

Issue 11 — Order to complete sex offender program.

Pease asserts that the District Court abused its discretion by ordering him to complete the sex offender program at Montana State Prison in the face of expert testimony indicating that Pease was not likely to benefit from the program. Conditions of a sentence are within the discretion of the trial judge. It is well established in this state that the trier of fact has discretion to give whatever weight it sees fit to the testimony of any expert. See, Biegalke v. Biegalke (1977), 172 Mont. 311, 317, 564 P.2d 987, 990. The sentencing judge, not the expert witness, makes the decision as to what conditions will be placed upon a convicted defendant. Section 46-18-201, MCA, states:

“. . . (l)(b) . . . The sentencing judge may impose on the defendant any reasonable restrictions or conditions . . . (l)(e) commit the defendant to a correctional institution . . . (l)(f) impose any combination of subsections (l)(b) through (l)(e).” (Emphasis added.) Requiring Pease to complete the sex offender program is not an abuse of discretion nor is it unreasonable.

The judgment of the District Court is affirmed.

MR. JUSTICES HARRISON, McDONOUGH, HUNT and GULBRANDSON concur.


text:
    MONTANA WHOLESALE ACCOUNTS SERVICE, Plaintiff and Respondent, v. JAY PENINGTON, d/b/a Penington Place, Defendant and Appellant.
    No. 88-157.
    Submitted on Briefs June 16, 1988.
    Decided July 19, 1988.
    758 P.2d 759.
    Emmons and Coder, Robert J. Emmons, Great Falls, for defendant and appellant.
    Terry L. Seiffert, Billings, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal from an order of the District Court, Thirteenth Judicial District, Yellowstone County, denying appellant’s motion for change of venue. We affirm.

Appellant Penington presents two issues on appeal.

1. Did the District Court abuse its discretion in denying Penington’s December 23, 1987 motion for change of venue?

2. Is Penington entitled to attorney fees associated with this appeal?

The appellant contracted with Epcon Sign Company (Epcon) to purchase and install certain signs as part of the renovation of a building called Penington Place located in Great Falls. Epcon’s main office is located in Yellowstone County but Penington dealt only with the Great Falls office and its manager. Epcon installed the signs but problems arose and Penington defaulted on the two sale agreements. Epcon assigned its right to the respondent, Montana Wholesale Accounts Service (Montana Wholesale), who commenced this suit in Yellowstone County pursuant to a venue clause in the agreements. The clause states as follows:

“In the event it should become necessary for EPCON to bring suit for payments or to enforce any other rights under this agreement, venue may be laid in Yellowstone County, Montana at EPCON’S option.”

Penington filed a motion for a change of venue based on Section 25-2-121, MCA, which places venue for actions upon contracts. This motion was denied. Penington then filed a motion to change venue for the convenience of witnesses as allowed by Section 25-2-201(3), MCA. This motion was also denied and it is from this order that Penington appeals.

Penington argues that the facts of this case cannot support the District Court’s decision to leave venue in Yellowstone County because three of four possible witnesses are in Cascade County and the property subject of the contracts is located there also. He argues that an abuse of discretion occurs if the evidence does not show an even balance of convenience for the witnesses.

This Court has held that contractual stipulations to venue are not against the public policy of this state and are authorized by Section 25-2-202, MCA. Electrical Products Consolidated v. Bodell (1957), 132 Mont. 243, 247, 316 P.2d 788, 790. When faced with such a provision the Court must place venue in the stipulated county when requested by the parties. Section 25-2-202, MCA. We do not mean this to say a stipulation removes the discretion of the court to change venue when the convenience of witnesses and the ends of justice require it. Section 25-2-201, MCA, states:

“The court or judge must, on motion, change the place of trial in the following cases:

“(3) when the convenience of witnesses and the ends of justice would be promoted by the change.”

However, an agreement to place venue in a particular county is a most important factor for the court to consider. Given the court’s wide discretion under Section 25-2-201(3), MCA, see Letford v. Kraus (1983), 206 Mont. 493, 496-97, 672 P.2d 265, 267, we will not disturb the court’s decision in absence of clear evidence of abuse of that discretion. Brown v. First Federal Savings & Loan Assn. (1964), 144 Mont. 149, 156, 394 P.2d 1017, 1021. Since the parties agreed to place venue in Yellowstone County should a dispute on the contracts arise and the plaintiffs main office and office manager are located there, we hold that the District Court did not abuse its discretion in refusing to grant Penington’s motions under Section 25-2-201(3), MCA.

Appellant Penington next asks that this Court award him attorney fees for this appeal because Montana Wholesale was dissolved at the time it filed its complaint and therefore was not a legal entity making the suit frivolous.

Having disposed of appellant’s first issue in favor of respondent, we need not address the issue of attorney fees.

Affirmed.

MR. JUSTICES HARRISON, WEBER, McDONOUGH and SHEEHY concur. .


author: MR. JUSTICE WEBER

text:
    FRANCES CAROLINE PARKER, Plaintiff and Respondent, v. CARRIE WILMOTH ELDER, Robert Dalton and Vada Dalton, Defendants and Appellants.
    No. 87-544.
    Submitted on Briefs May 19, 1988.
    Decided July 21, 1988.
    758 P.2d 292.

      Bert W. Kronmiller and James E. Torske, Hardin, for defendants and appellants.
    Freeman Law Firm, Natasha Morton, Hardin, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The District Court for the Thirteenth Judicial District, Big Horn County, has entered a permanent injunction enjoining defendants from interfering with plaintiff’s use of a road which crosses defendant Carrie Wilmoth Elder’s land. For reasons expressed herein we affirm. Defendants raise the following issues on appeal:

1. Did the District Court err by concluding that the subject road was a public road by reason of and pursuant to 43 U.S.C. Section 932?

2. Did the District Court err by concluding that the plaintiff had a road right of way by reason of prescriptive easement?

The action involves a road located about 20 miles east of Decker, Montana, on property owned by Carrie Wilmoth Elder. The road begins at a county road and runs northwest across Mrs. Elder’s land for approximately four-tenths of a mile. This is the portion now in dispute. The road then enters property owned by plaintiff Frances Caroline Parker and continues northwest less than one-half mile to Mrs. Parker’s home and ranch buildings.

Gloria Schwalbe testified that her father, in 1916, homesteaded what is now Mrs. Parker’s place. Mrs. Schwalbe lived there from 1917 to 1941, and during that period no other road existed for travel to the county road. Her family and at least three other families used the subject road regularly since 1916.

Mrs. Elder and her husband occupied land southeast of Mrs. Schwalbe’s home, at least by 1926. Mr. Elder received a patent for the land from the United States in 1927. This property included the land upon which the disputed lower portion of the road runs. Mrs. Schwalbe testified that children used the road to attend the Pine Butte School, starting in 1925.

About the time Mrs. Schwalbe left in 1941, her father sold the ranch to Mrs. Parker’s brother-in-law. Mrs. Parker and her husband bought the ranch in 1946 and moved onto the place in 1947. Mrs. Schwalbe testified that she returned for a short visit in 1957, and she used the same road she and her family had always used since 1916.

Mrs. Parker testified that she used the road almost daily for 39 years. In November 1985 she drove down the road from her home toward the county road, but when she came to the fence line between her property and Mrs. Elder’s, she found that the gate had been removed and two steel posts had been driven into the road between the gate posts. Four strands of wire had been stretched across the road and attached to the steel posts. Mrs. Parker later saw that the gate at the county road had also been wired shut. Sometime before this, bad relations had developed between Mrs. Parker and Mrs. Elder’s daughter and son-in-law, Vada and Robert Dalton. The Daltons, who are defendants in this action, had wired the gates shut. Mrs. Parker filed this action seeking injunctive relief and damages.

I

Did the District Court err by concluding that the subject road was a public road by reason of and pursuant to 43 U.S.C. Section 932?

In 1866, Congress enacted Revised Statute Section 2477 which read as follows:

“The right of way for the construction of highways over public lands, not reserved for public uses, is granted.”

That section was in effect during the years pertinent to litigation of this issue. 43 U.S.C. Section 932 (repealed 1976). Section 2477 was explained in State ex rel. Dansie v. Nolan (1920), 58 Mont. 167, 172-73, 191 P. 150, 152:

“Section 2477 of the Revised Statutes of the United States goes no further than to grant a right of way for the construction of a highway across public lands . . . The grant is but an offer of the right of way for the construction of a public highway on some particular strip of public land, and can only become fixed when a highway is definitely established and constructed in some one of the ways authorized by the laws of the state in which the land is situated.” Section 1339, RCM (1915) (previously Section 1337, RCM (1907)), described the ways authorized by the State of Montana for establishing public highways:

“All highways, roads, lanes, streets, alleys, courts, places and bridges laid out or erected by the public or now traveled or used by the public, or if laid out or erected by others, dedicated or abandoned to the public, or made such by the petition [sic, should read ‘partition’] of real property, are public highways.”

Montana law recognized the existence of highways by prescription when used by the public for the appropriate statutory period of limitation. State v. Auchard (1898), 22 Mont. 14, 16-17, 55 P. 361, 362, overruled on other grounds, Reid v. Park County (Mont. 1981), 627 P.2d 1210, 1213, 38 St.Rep. 631, 634. The applicable statute of limitations for purposes of this case was 10 years. Sections 4571 and 6432, RCM (1907). Additionally, the public use “must be shown to have continued over the exact route claimed ....’’ Dansie, 191 P. at 152; see also Montana Ore-Purchasing Co. v. Butte & Boston Consol. Mine Co. (1901), 25 Mont. 427, 65 P. 421.

This Court shall not set aside findings of fact made by a district court unless those findings are clearly erroneous. Rule 52(a), M.R.Civ.P. If there is substantial credible evidence to support the findings, those findings are not clearly erroneous. See City of Billings v. Billings Firefighters (1982), 200 Mont. 421, 430-31, 651 P.2d 627, 632; Olson v. Westfork Properties, Inc. (1976), 171 Mont. 154, 157, 557 P.2d 821, 823.

After thorough review of the record, we conclude that the plaintiff failed to establish use by the public of the exact route claimed over public land for the 10 year period prior to 1927 when the patent was issued by the United States to Mr. Elder. Because there is not substantial credible evidence to support the District Court’s finding that the road was in place, was in use, and was a granted public road by reason of and pursuant to 43 U.S.C. Section 932, we conclude that the finding was clearly erroneous.

II

Did the District Court err by concluding that the plaintiff had a road right of way by reason of prescriptive easement?

To establish a prescriptive easement, the owner of the dominant tenement must establish an open, notorious, exclusive, adverse, continuous, and uninterrupted use by the owner or successors in interest for the statutory period. Rathbun v. Robson (1983), 203 Mont. 319, 322, 661 P.2d 850, 852. The element of adverse use is established by presumption if all other elements of the claim are demonstrated. Garrett v. Jackson (1979), 183 Mont. 505, 508, 600 P.2d 1177, 1179. Then the burden shifts to the owner of the servient tenement to show that the use was merely permissive, not adverse. Garrett, 600 P.2d at 1179.

The District Court concluded that Mrs. Parker had presented evidence sufficient to establish the presumption of adverse use. We conclude that substantial evidence supports the District Court’s determination.

Mrs. Elder argues that she properly rebutted the presumption of adverse use by establishing that Mrs. Parker’s use of the road has always been a permissive use. “A disputable presumption may be overcome by a preponderance of evidence contrary to the presumption.” Rule 301(b)(2), M.R.Evid. The District Court concluded that Mrs. Elder had failed to establish permissive use by a preponderance of credible evidence. The issue before us is whether the court’s determination was clearly erroneous. Rule 52(a), M.R.Civ.P.

Mrs. Elder contends that she met her burden by presenting “extensive evidence” of permissive neighborhood usage of the road. She argues that the Elders granted permission for use of the road as a route to the school house across the county road. However, Mrs. Schwalbe, a witness the lower court found to be “most credible,” testified that her family (the plaintiff’s predecessors in interest) and a number of other families were using the road in 1917 before the Elders ever moved to the area.

Mrs. Elder also argues that she demonstrated that her family exercised control over the road sufficient to overcome the presumption of adverse use. She relies upon Mrs. Parker’s testimony that she would not have placed shale upon the road in 1979 had Mr. Elder objected. Mrs. Parker testified that she called Mr. Elder to see if he had any objection to her putting shale on the road, and he had none. However, she also testified that she never sought permission to either use or shale the road, that her call concerning shaling the road was merely a “neighborly act.”

Another point of evidence relied upon by Mrs. Elder is her own deposition testimony that her husband had denied an earlier request by Mr. Parker to shale the road. The lower court did not find that this testimony outweighed the presumption of adverse use, and we do not find error in the court’s conclusion. Mrs. Elder was testifying about an alleged conversation between her husband and Ralph Parker, both of whom are deceased.

Lastly, Mrs. Elder contends that the two gates across the road, together with all other evidence presented, was sufficient evidence to establish permissive use. The presence of gates may be strong evidence of mere license. Kostbade v. Metier (1967), 150 Mont. 139, 145, 432 P.2d 382, 386. However, the evidence supports the court’s finding that the gates were used to control cattle. They were not used to control travel over the road. This evidence was not sufficient to rebut the presumption. Kostbade, 432 P.2d at 386.

We conclude that Mrs. Elder has failed to show that the District Court was clearly erroneous in finding that she had not established permissive use by a preponderance of evidence. We affirm the District Court’s determination that Mrs. Elder had failed to rebut the presumption of adverse use.

Mrs. Elder argues that Mrs. Parker had failed to prove adverse use. We agree with the District Court’s conclusion that adverse use need not be proved independent and apart from the presumption of adverse use. Unless properly rebutted, the presumption stands. Rule 301(2), M.R.Evid.

Finally, Mrs. Elder argues that the road has changed in location over the years; therefore, the prescriptive easement must fail. The same argument was discussed in Scott v. Weinheimer (1962), 140 Mont. 554, 562, 374 P.2d 91, 96:

“Although neither the owner of the dominant estate, nor the owner of the servient estate, may ordinarily change the location of all or part of a right of way, without consent of the other, the location may be changed by mutual consent of both parties and such consent may be implied from their acts and acquiescence.”

Mrs. Parker testified that although the road had changed slightly, the changes were apparent to everyone and the Elders never objected. It is clear from the evidence that the Elders acquiesced in the changes in the road. The lower court found that the changes had been agreed to by the parties or their predecessors in title. We conclude that substantial credible evidence supports this finding.

We affirm the court’s holding as to Issue II, that plaintiff had a road right of way by reason of prescriptive easement.

Affirmed.

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