text:
    KARREN KANE, Plaintiff and Appellant, v. BILLY MILLER, Defendant and Respondent.
    No. 92-317.
    Submitted on Briefs December 17, 1992.
    Decided May 6, 1993.
    50 St.Rep. 488.
    852 P.2d 130.
    258 Mont. 182.

      See C.J.S. Attorney and Client § 259.
    For Plaintiff and Appellant: Patrick F. Flaherty, Great Falls.
    For Defendant and Respondent: Joan Cook, Great Falls.
   JUSTICE WEBER

delivered the Opinion of the Court.

Appellant Karren Kane appeals the order of the District Court of the Eighth Judicial District, Cascade County, which granted defendant Billy Miller’s motion for summary judgment in a legal malpractice action. We affirm.

We find the following issue dispositive:

Whether the District Court erred by granting defendant’s motion for summary judgment.

Ms. Kane’s legal malpractice action originated from Mr. Miller’s representation in a proceeding initiated by the State to obtain permanent custody of Ms. Kane’s son JEH and to terminate her parental rights. Mr. Miller replaced Ms. Kane’s former public defender, Nancy Belcheff, after Ms. Belcheff resigned her position as a Cascade County public defender in early March 1987. Mr. Miller was the third attorney to represent Ms. Kane in that matter.

The events leading to the parental rights termination proceeding began in 1984 when Ms. Kane called the Department of Social and Rehabilitative Services (SRS) and requested that JEH, her eight-year-old son, be placed in residential placement because she could not control his violent behavior. The youth was removed from Ms. Kane’s home and initially placed in foster care. As early as July 18, 1985, Ms. Kane stipulated to a treatment plan with SRS. At that time, she was represented by her first attorney, Mark Bauer. On July 28,1985, JEH was transferred to the Yellowstone Boys and Girls Ranch in Billings, Montana. A psychological evaluation was subsequently administered there. He has received psychological treatment since then with positive results.

The stipulated treatment plan required Ms. Kane and her daughter to obtain psychological evaluations by a licensed clinical psychologist and to follow any of the resultant recommendations. Although she agreed to follow the treatment plan, she did not comply with its provisions. Ms. Kane and her daughter had still not obtained psychological evaluations at the time of the final termination hearing nearly two years later.

In July 1986, the District Court allowed Ms. Kane additional time to comply with the treatment plan. A hearing was subsequently held on November 12, 1986, to terminate Ms. Kane’s parental rights because she had still not complied with the SRS treatment plan. The court again continued the hearing so as to allow Ms. Kane yet another opportunity to comply with the treatment plan. A final hearing was rescheduled for April 2,1987.

Mr. Miller was appointed to represent Ms. Kane shortly before the April 2,1987 hearing. Testimony at that hearing established that Ms. Kane had failed to comply with the court ordered treatment plan after nearly two years. SRS employees testified to their opinion that no additional time should be allowed for Ms. Kane’s compliance due to JEH’s need for permanency and further treatment. A social worker and therapist both testified that Ms. Kane refused to comply because she felt that the problem was physical in nature and originated with the child.

Other evidence, in the form of eleven separate medical statements from various doctors, indicated that JEH suffered from no neurological disfunction. It also established that Ms. Kane had taken the boy to doctors since he was a baby looking for a medical explanation for continuing difficulties that she experienced with him.

Doctors repeatedly diagnosed no neurological disfunction, explaining JEH’s behavior as the result of a severely disturbed mother-child relationship. Dr. Monte Kuka, a clinical psychologist, concluded in his diagnosis of JEH, that JEH was a deeply disturbed child with emotional problems that went back many years. He said the problem developed because the child felt abandoned by his mother and by several father figures and because the mother had emotional problems. Also assessing Ms. Kane in that same year, he diagnosed her as having an inconsistent parenting style, angry outbursts and blaming JEH in an attempt to humiliate him with guilt. None of the doctor’s diagnoses convinced Ms. Kane that JEH’s problems were emotional and not medical in nature.

In February 1987, less than three months before the final hearing in the termination of parental rights proceeding, Ms. Kane attended a foster care review meeting at SRS and insisted that JEH had Tourette’s syndrome. Ms. Kane had not previously attended any of these meetings which were designed to facilitate services provided by SRS. She explained her attendance that particular day as essential, because if she did not attend the review, SRS would win and she wanted to show them that they were wrong.

Throughout the duration of that proceeding, Ms. Kane dealt with several social workers from SRS. In 1986 she began working with Nancy Pallares-Hernandez. Ms. Pallares-Hernandez testified that although Ms. Kane had been involved with four social workers, none of them had been able to help her. She testified that Ms. Kane resisted help because she refused to accept that she had a problem and continued to place all blame on her son’s physical condition. Ms. Pallares-Hernandez testified that when she tried to reassure Ms. Kane that she did indeed want to help her and support her, suggesting that Ms. Kane go to mental health, Ms. Kane told her that “she doesn’t trust the therapists and that she doesn’t trust in the records; that SRS is wrong; that Judge McKittrick is the prosecutor; that all the social workers are crazy; [and] that she is the only one who is okay.”

Ms. Pallares-Hernandez’ efforts to help Ms. Kane included several letters which she wrote to Ms. Kane and home visits to encourage her to get the treatment that she desperately needed to improve the family’s emotional environment so that JEH could be reunited with them. In a letter dated August 22, 1986, she told Ms. Kane that contacting a psychologist was at that time the only way to help her son. On October 1, 1986, she mailed another letter to Ms. Kane encouraging her to get psychological evaluations and reminding her of the upcoming hearing. In February 1987, after the November hearing was continued to give Ms. Kane additional time to comply with the treatment plan, Ms. Pallares-Hernandez wrote another letter reminding her about the importance of complying with the treatment plan before the next court hearing. In that letter she wrote: “This is the only way to have your child back with you.”

On March 2, 1987, she again wrote to Ms. Kane, reminding her of the need to comply with the court order, outlining JEH’s visits to doctors and their diagnoses and again stating SRS’ position that the problem was the mother-child relationship. In addition to Ms. Pallares-Hernandez letters, Ms. Kane’s previous attorney, Nancy Belcheff, in a letter dated February 18, 1987, noted that she too had received copies of the SRS letters and stated: “If you refuse, no lawyer in the world will be able to help you.”

Billy Miller began employment with the public defender’s office in Cascade County in early March of 1987. He met with Ms. Kane once prior to the termination hearing. He could not locate her file at that time. Mr. Miller testified that he received the file a few days before the hearing. The only witness Mr. Miller called at the hearing to testify on Ms. Kane’s behalf was her mother, who testified regarding the love between Ms. Kane and JEH.

The hearing went forward with the State calling witnesses and Mr. Miller cross-examining them. The order resulting from that hearing terminated Ms. Kane’s parental rights relating to JEH.

On April 27, 1990, Ms. Kane filed a complaint alleging that Mr. Miller had committed professional negligence. In her complaint Ms. Kane alleged that Mr. Miller assured her that he would request a continuance and the continuance would be granted, as well as numerous other inadequacies relating to Mr. Miller’s representation in the parental termination proceeding. The District Court granted Mr. Miller’s motion for summary judgment twelve days before the scheduled trial date of May 14, 1992.

Did the District Court err in granting defendant’s motion for summary judgment?

Summary judgment is proper under Rule 56(c), M.R.Civ.R, when the movant has shown that there is no genuine issue as to any material fact, in light of the substantive legal principles entitling the movant to judgment as a matter of law. Christopherson v. White, Inc. (1991), 250 Mont. 118, 120, 817 P.2d 1165, 1167. The purpose of Rule 56, M.R.Civ.P., is to dispose of those actions which do not raise genuine issues of material fact, and to eliminate the expense and burden of unnecessary trials. Berens v. Wilson (1990), 246 Mont. 269, 271, 806 P.2d 14, 16.

“Our scope of review is the same as the trial court and is a question of law. If as a matter of law no genuine issue of material fact exists summary judgment is granted.” Christopherson, 817 P.2d at 1167. Generally, negligence issues are not susceptible to summary judgment motions because of the factual issues involved in such cases. Lorash v. Epstein (1989), 236 Mont. 21, 24, 767 P.2d 1335, 1337. This case, however, does not involve factual issues germane to a negligence determination as our decision is based on an assumption that Mr. Miller may have been negligent.

In order to establish a cause of action for legal malpractice there must be a showing that the attorney owed his client a duty of care, that there was a breach of this duty by a failure to use reasonable care and skill, and that the breach was the proximate cause of the client’s injury and resulted in damages. Merzlak v. Purcell (1992), 252 Mont. 527, 830 P.2d 1278.

Clearly the first element was met in this case. There is no dispute that an attorney-client relationship existed between Ms. Kane and Mr. Miller. The second element requires Ms. Kane to establish that Mr. Miller’s conduct constituted a failure to use reasonable care and skill; that is, that he breached his duty to his client. Here, we have assumed that Mr. Miller may have been negligent. However, such breach of duty alone is not sufficient to establish liability for professional negligence.

The third element that Ms. Kane must prove is that Mr. Miller’s negligence proximately caused her injury and damages. In this case, to withstand Mr. Miller’s motion for summary judgment, Ms. Kane needed to establish that “but for” Mr. Miller’s negligence, the result of the hearing to terminate parental rights would have been different. Failure to prove causation and damages is fatal to an attorney malpractice action. Kinniburgh v. Garrity (1990), 244 Mont. 350, 355, 798 P.2d 102, 105. Ms. Kane must show that “but for” Mr. Miller’s conduct, her parental rights would not have been terminated as a result of the April 2, 1987 hearing.

Ms. Kane presented evidence that Nancy Pallares-Hernandez, the SRS social worker, if asked, would have requested that the hearing be postponed, thus giving Ms. Kane a third chance to comply with the stipulated treatment plan. The decisive question in this case, however, is not whether Ms. Pallares-Hernandez would have agreed to a continuance and the plaintiff would then have complied with the treatment plan, but whether a continuance would have made any difference in the result.

The record establishes that such evidence would not have made any difference here. The defendant submitted an affidavit by Judge Joel G. Roth, the presiding judge in the termination hearing. Judge Roth stated that he had two reasons for terminating Ms. Kane’s parental rights: (1) he was unpersuaded that she would comply with the treatment even if she was given yet another chance, and (2) that further delay in the resolution of the case would not serve the best interests of the child. In his affidavit Judge Roth stated:

Despite argument presented at the final hearing by Billy Miller, on Ms. Kane’s behalf, that she had recently become involved in the parenting program at the YWCA, that they were attempting to get her into a mental health program, and that she should be given yet another chance to comply with the treatment plan, this Court was unpersuaded that Ms. Kane would actually comply.

The court gave the following reasons for its belief that Ms. Kane would not comply with its prior order: (1) that she had consistently denied that she needed treatment, (2) that she did not accept the diagnosis that the child had emotional problems, (3) she continued to seek a medical reason for the child’s problems, and (4) she had a pattern of externalizing any basis for the family’s disfunction.

Most importantly, Judge Roth stated that only presentation of evidence that Ms. Kane had, in fact, complied with the treatment plan would have altered his decision to terminate her parental rights. Ms. Kane’s failure to complete her treatment plan was established by uncontradicted evidence.

The environment provided by Yellowstone Boys and Girls Ranch has provided the structure and stability that Ms. Kane was unable to provide. Uncontested evidence indicates that Yellowstone Boys and Girls Ranch has been beneficial to JEH during his extended stay there. Since he has been living in Yellowstone Boys and Girls Ranch, JEH has again done well in school and has responded to their therapy.

The record establishes that Mr. Miller did argue that Ms. Kane should be given another chance. Although he did not file a written motion for a continuance, he stated as follows:

... [CJlearly, your Honor, ... the best interest of the child is the paramount objective of this hearing, and the fact that we have established, by way of testimony, that the love between the mother and child is quite extensive, to the point that when we talk about the best interests of the child, that is one of the ... top objectives .... Now, we have problems .... [JEH] probably will not be adopted. So it’s our recommendation, Judge, that you actually permit us to find some type of program ... for Karren to participate in and give us a certain length of time to actually comply to the court’s order. Therefore, we ask for a postponement of your disposition of this case and give us an opportunity. Sure, she has had a couple in the past, but I feel that what we have here is so unique, it requires more than just two opportunities .... If we have that opportunity, I feel we would at least have given it our best shot in trying to establish a better home for [JEH] and trying to establish a relationship between mother and child whereby we’ll be able to look back ... and say we have done justice to both individuals, [JEH] and his mother.

Ms. Kane argues that the crucial fact question Judge Roth failed to address in his affidavit is what he would have done if Mr. Miller had asked for a continuance. We do not find this to be a question of fact requiring resolution as the above excerpt from the transcript of the hearing indicates that Mr. Miller did ask for another opportunity, although he did not specifically mention the word “continuance.”

Of paramount importance is the best interest of the child. Judge Roth found it was in the youth’s best interest to terminate Ms. Kane’s parental rights so that JEH could continue treatment in a therapeutic foster home and be placed in a permanent home when emotionally ready. Ms. Kane failed to present any evidence to prove that the best interests of the child were not served.

Ms. Kane also failed to present any facts which would establish that Mr. Miller’s actions were the proximate cause of the District Court’s decision to terminate her parental rights with regard to JEH. We conclude that Ms. Kane has not established that “but for” Mr. Miller’s actions, the result in this case would have been different.

We hold that the District Court properly granted Mr. Miller’s motion for summary judgment.

Affirmed.

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

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

In support of its conclusion, the majority cites testimony unfavorable to the plaintiff which resulted from a hearing where she was effectively unrepresented and had no opportunity to present evidence of her own. In a peculiar form of logic, the majority then cites the conclusion drawn by the trial judge under these circumstances as conclusive proof that the result would have been the same even if plaintiff had been adequately represented. So much for traditional notions about the adversary system.

The defendant, who formerly represented the plaintiff at the hearing held to determine whether her parental rights should be terminated, took the Montana Bar Examination in February 1986, and began practicing in August of the same year. He was appointed public defender on April 1, 1987, and represented plaintiff at the hearing in question on the following day. The hearing was held on a Monday. He received the file several days earlier, and met with his client on only one occasion, on the Thursday or Friday preceding the hearing. The situation defendant found himself in was unfair to either him or his client.

Defendant admitted in his deposition that he did not have time to go through the normal procedures to prepare for a termination of parental rights proceeding. He felt the only thing necessary for him to do was appear at the hearing.

Defendant conducted no pretrial discovery; he interviewed none of the State’s witnesses; he did not interview plaintiff’s child; and he made no effort to negotiate either a continuance or some other resolution of the underlying proceedings with the county attorney.

Defendant testified that his only preparation for the hearing at which plaintiff’s parental rights were terminated was to talk to his client on one occasion and review the file.

He testified that his plan was to simply call his client as a witness and hope that through her testimony he could persuade the court to give her one more chance to comply with the treatment plan. However, not even plaintiff was called to testify at her hearing.

Defendant agreed in his deposition that he had promised plaintiff he would ask the court to continue her hearing, and contends that he did so. However, Julie Macek, who reviewed the transcript of the termination hearing and was listed as an expert on defendant’s behalf, testified that defendant did not ask the court for a continuance at the outset of the hearing. Instead, he allowed the hearing to go forward and allowed the State’s unchallenged case to be presented. Then, in his closing argument, he asked the court to postpone a decision until his client had one more chance to comply with the treatment program. He made no mention of the fact that he was unprepared for trial, and that a continuance, therefore, was absolutely necessary. Obviously, under these circumstances, the District Court declined to postpone its decision.

After the hearing, the District Court terminated plaintiff’s parental rights based upon her failure to comply with the recommended treatment program. Instead of advising plaintiff of her right to file a motion for rehearing or appeal the District Court’s decision, defendant did nothing. He simply waited until she came in to pick up her file and then told her that the time for filing an appeal had passed. He considered his services concluded when the District Judge made his decision to terminate plaintiff’s parental rights.

When asked in his deposition whether plaintiff received ineffective assistance of counsel in the proceeding to terminate rights, he declined to answer.

In her affidavit in opposition to defendant’s motion for summary judgment, plaintiff stated that in her initial interview with defendant she was told that he would be getting the hearing continued and that she would not need to prepare to testify or call witnesses. She testified that on the following Monday she attended the hearing with defendant, and to her surprise, no continuance was requested. She stated that she was not called to testify, and that other than her mother, neither were any other witnesses called on her behalf. She stated that since the hearing she has obtained a full and complete psychological evaluation which has established that she is a normal, healthy person who is fit to be a mother.

Nancy Pallares-Hernandez is a social worker employed by the Department of Family Services for the State of Montana. Plaintiff’s termination of parental rights case had been assigned to her in August 1986, and she was in charge of monitoring the treatment program at the time that plaintiff’s parental rights were terminated. She had the most direct involvement in assuring that the best interests of plaintiff’s son were served, and her recommendations would obviously have been important to the District Court’s decision. When asked what she would have recommended if she had known prior to the April 2, 1987, hearing that plaintiff was willing to complete the treatment program by getting a psychological evaluation, and that her attorney needed a continuance of the hearing to accomplish the evaluation, she gave the following answers:

Q. Excuse me, assuming that Billy would have said to you words to this effect —
A. Um-hum.
Q. “Nancy, I visited with Karren, and we’ve really had a heart-to-heart talk, and we really understand what you are trying to do, and we understand how important the psychological evaluation is, we are going to get it, would you continue the hearing while we go ahead and get it,” would you have then recommended a continuation of the proceedings?
A. Yes.

The majority concedes that there was an attorney-client relationship between plaintiff and defendant and generously assumes that plaintiff would have been able to establish that defendant acted negligently. In fact, two separate attorneys licensed to practice in Montana testified by deposition that defendant’s representation of plaintiff was negligent.

However, the majority goes on to conclude that even though defendant may have been negligent, his negligence did not cause any damage to plaintiff because the District Court would not have continued her case, even if it had been requested to do so. The majority bases that conclusion on an affidavit submitted by the District Judge who decided this case. In his affidavit, he outlines the history of the case and then states that despite the argument presented at the final hearing, he was unpersuaded to postpone his decision, pending plaintiff’s compliance with the treatment program. However, being unwilling to postpone a decision after listening to a one-sided hearing about plaintiff’s unfitness to be a parent is not the same thing as considering a motion to continue by an attorney who was unprepared to proceed, and which would have been joined in by the case worker in charge of seeing that the child’s best interest was served. In fact, in State v. Timblin (1992), 254 Mont. 48, 834 R2d 927, where this same attorney moved for a continuance which was denied by the same District Judge, we reversed after concluding that the judge abused his discretion. We held that denial of the continuance in that case denied the fundamental fairness to which the defendant was constitutionally entitled. Certainly, this mother, whose right to parent her child was at stake, was entitled to no less fairness.

How can this majority disregard the District Court’s decision in Timblin, even though a proper motion and argument for continuance had been presented in that case, and then rely on irrelevant comments by the same District Judge in this case when, in fact, no proper motion had been presented and the basis for a continuance had not even been explained to the judge? Had that motion been presented and granted, and had plaintiff, in the interim, submitted to the psychological evaluation that she has now completed, it is clear that her parental rights would not have been terminated.

In reviewing a motion for summary judgment, this court must view the evidence in the light most favorable to the party opposing the motion. Payne Realty & Housing, Inc. v. First Security Bank (1991), 247 Mont. 374, 807 P.2d 177. The majority has done just the opposite.

Summary judgment is not a proper tool for resolving disputed issues of fact. Flanagan v. Curran (1974), 164 Mont. 262, 521 P.2d 200. However, that is exactly what the District Court relied on in this case; and it did so with the majority’s approval.

Summary judgment should not be used as a substitute for trial when factual controversies exist. Farmers Ins. Exchange v. Janzer (1985), 215 Mont. 260, 697 P.2d 460. However, the majority, with increasing frequency, finds summary judgment an acceptable alternative to the inconvenience of jury trials.

A parent’s rights are among the most important rights in our society. No parent should have those rights terminated without due process. Due process necessarily requires effective representation. Where those rights were terminated without effective representation, plaintiff has sustained damage beyond the imagination of most people. She should not have been denied further rights in this proceeding without an opportunity to present her evidence to a jury, as was intended by Article II, § 26, of the Montana Constitution.

For these reasons, I dissent from the majority opinion. I would reverse the judgment of the District Court and remand this case for a trial by jury to resolve the factual issues which have been resolved by the majority on appeal.

JUSTICE GRAY joins in the foregoing dissent.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    IN THE MATTER OF A.S.A., J.L.A., G.A., and A.J.A., YOUTHS IN NEED OF CARE.
    No. 92-369.
    Submitted on Briefs January 7, 1993.
    Decided May 6, 1993.
    50 St.Rep. 494.
    852 P.2d 127.
    258 Mont. 194.
    See C. J.S. Infants § 52.

      For Appellant: Joseph R. Massman, Massman Law Firm, Helena.
    For Respondent: Marc Racicot, Attorney General, Helena, and Deborah F. Butler, Deputy Jefferson County Attorney, Boulder.
    Guardian Ad Litem: Paul B. Smith, Boulder.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

This is an appeal from an order of the Fifth Judicial District Court, State of Montana, terminating a mother’s parental rights to her four children and awarding permanent legal custody to the Department of Family Services. The mother asserts on appeal that the District Court violated her constitutional right to due process and denied her statutory right to appointed counsel when the court refused to appoint counsel for her at the hearing to terminate her parental rights. We reverse.

The dispositive issue on appeal is:

Did the District Court err when it refused to appoint counsel to represent an indigent mother in proceedings brought to involuntarily terminate her parental rights?

On August 13, 1990, the Department of Family Services (DFS) petitioned for temporary investigative authority and temporary emergency protection of D.A.’s four children. The District Court granted the DFS petition. In August 1991, the court granted a subsequent petition by the DFS to continue temporary investigative authority and protection services for the four children.

On December 18,1991, the DFS filed a petition for termination of D.A.’s parental rights and permanent legal custody with the right to consent to adoption. A termination hearing was held on February 5, 1992. In the initial minutes of the hearing, Joseph Massman, guardian ad litem for the children, informed the court that D.A., an indigent mother, was not represented by counsel. Massman explained to the court that D.A. was entitled to appointed counsel at the hearing to terminate her parental rights, and requested that an attorney be appointed to represent her.

The court acknowledged that D.A. was entitled to an attorney in the termination proceedings; however, the court elected to proceed without appointing counsel for D.A., because according to the District Court, the DFS was prepared to present its evidence and the judge wanted to hear it. The court asked D.A. directly if she was going to contest not having an attorney and D.A. indicated that she planned to do so.

Massman made numerous comments to the court throughout the hearing to the effect that D.A. was unrepresented by counsel and that she was entitled to counsel at the termination proceedings. In spite of such suggestions, however, the court continued to hear evidence without appointing counsel for D.A.

At one point in the hearing, the court admonished Massman that he was abdicating his position as guardian ad litem for the children and that he was advocating for the mother. At another time, the court warned Massman that he could not serve two masters. However, the court did not stop the termination proceedings and appoint counsel for D.A.

At the conclusion of the termination hearing on February 5, 1992, the District Court “tentatively” terminated D.A.’s parental rights to her children. The court informed the parties that the decision to terminate was based on the evidence presented at the hearing. The parties were told that the termination was tentative because D.A. was not formally represented at the hearing. The court reserved the right to amend its decision to terminate and explained that additional reports filed by the attorneys would be considered. The court then removed Massman as the guardian ad litem for the children and appointed Massman to be attorney for D.A., the mother. Paul Smith was appointed as guardian ad litem for the children.

In an omnibus order dated February 5, 1992, (the same date as the hearing), the District Court directed the deputy county attorney to prepare proposed Findings of Fact and Conclusions of Law supporting the court’s decision to terminate D.A.’s parental rights. The court also ordered both Massman and Smith to review the proposed findings, to conduct further inquiry, and to each make a formal recommendation to the court as to whether D.A.’s parental rights should be terminated.

On February 13, 1992, the court issued temporary Findings of Fact and Conclusions of Law and Order in which D.A.’s parental rights were terminated. Attorney Massman filed two reports, dated April 8 and April 16,1992. Attorney Smith filed a report dated April 15, 1992. On May 4, 1992, the court issued its final order and reaffirmed its earlier decision to terminate D.A.’s parental rights to her four children. D.A. appeals.

D.A. asserts on appeal that when the District Court refused to appoint counsel to represent her at the hearing to terminate her parental rights, the court (1) violated her constitutional right to due process, and (2) deprived her of her statutory right to appointed counsel. D.A. contends that the due process clause found at Article II, § 17, of the Montana Constitution guarantees indigent parents the right to court-appointed counsel in proceedings to terminate parental rights. We agree.

The United States Supreme Court has ruled that a natural parent’s right to the care and custody of his or her child is a “fundamental liberty interest” that must be protected by fundamentally fair procedures. Santosky v. Kramer (1982), 455 U.S. 745, 753-54, 102 S.Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606. In Santosky, the Court explained:

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.

Santosky, 455 U.S. at 753-54, 102 S.Ct. at 1394-95.

In Matter of R.B. (1985), 217 Mont. 99, 102-03, 703 P.2d 846, 848, the Montana Supreme Court recognized that a natural parent’s right to the care and custody of his or her child is a “fundamental liberty interest.” This Court also affirmed the requirement set forth in Santosky that when the State moves to terminate a parent’s rights, the parent must be protected by fundamentally fair procedures. Matter of R.B., 703 P.2d at 848.

The guarantee of fundamental fairness injudicial proceedings to terminate parental rights has its source in our State Constitution. Article II, § 17, of the Montana Constitution requires that “[n]o person shall be deprived of life, liberty, or property without due process of law.” When the State seeks to terminate a parent’s liberty interest in the care and custody of her child, due process requires that the parent not be placed in an unfair disadvantage during the termination proceedings. Fairness requires that a parent, like the State, be represented by counsel at parental termination proceedings. Without representation, a parent would not have an equal opportunity to present evidence and scrutinize the State’s evidence.

The potential for unfairness is especially likely when an indigent parent is involved. Indigent parents often have a limited education and are unfamiliar with legal proceedings. If an indigent parent is unrepresented at the termination proceedings, the risk is substantial that the parent will lose her child due to intimidation, inarticulateness, or confusion. Lassiter v. Dept. of Social Services (1981), 452 U.S. 18, 47, 101 S. Ct. 2153, 2170, 68 L. Ed. 2d. 640, 662 (Blackmun, J., dissenting). Because of the substantial risk of an unfair procedure and outcome, and the guarantee under our Constitution of fundamental fairness, we hold, as a growing number of other jurisdictions have concluded, that the due process clause in our State Constitution guarantees an indigent parent the right to court-appointed counsel in proceedings brought to terminate parental rights. See V.F. v. State (Ak. 1983), 666 P.2d 42; Joel E. Smith, J.D., Annotation, Right of Indigent Parent to Appointed Counsel in Proceeding for Involuntary Termination of Parental Rights, 80 A.L.R.3rd 1141 (1977).

Our review of the record reveals that during the proceedings to terminate D.A.’s parental rights, D.A. was not represented by counsel. The court appointed counsel for D.A. at the end of the termination hearing; however, this late action was no substitute for representation during the hearing. It was the evidentiary hearing which formed the basis of the court’s decision to terminate D.A.’s parental rights.

We conclude that because D.A. was not protected by a fundamentally fair procedure at the hearing to terminate her parental rights, her constitutional right to due process was violated.

We hold that the District Court committed reversible error when it denied D.A.’s request for court-appointed counsel at the termination hearing. We reverse the judgment of the District Court and remand this case for determination of D.A.’s parental rights in further proceedings consistent with this opinion.

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


author: CHIEF JUSTICE TURNAGE

text:
    ALENE BRACKMAN, RN, License No. RN 06169; MARY MOUAT, RN, License No. RN 07358; DEBBIE RUGGLES, RN, License No. RN 17406; RUTH SASSER, RN, License No. RN 18738; VERNA VanDUYNHOVEN, RN, License No. RN 18699; LYNN ZAVALNEY, RN, License No. RN 08577; Petitioners and Respondents, v. BOARD OF NURSING, an Administrative Agency of the Department of Commerce, State of Montana, Respondent and Appellant.
    No. 92-573.
    Submitted on Briefs April 1, 1993.
    Order Denying Rehearing May 20, 1993.
    Decided May 6, 1993.
    50 St.Rep. 497.
    851 P.2d 1055.
    258 Mont. 200.

      See C.J.S. Physicians, Surgeons and Other Health-Care Providers § 50.
    For Respondent and Appellant: Robert J. Emmons, Emmons & Sullivan, Great Falls.
    For Petitioners and Respondents: Gary L. Davis, Luxan & Murfitt, Helena.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

This is an appeal from an administrative action. The District Court for the First Judicial District, Lewis and Clark County, reversed the findings, conclusions, and order entered by the Board of Nursing and ordered that the recommended findings, conclusions, and order of the Board’s hearing examiner be adopted instead. The Board appeals. We affirm.

The issues are:

1. Did the District Court err in ruling that the Board violated § 2-4-621, MCA, by receiving and considering the prosecuting attorney’s proposed findings?

2. Did the court err in concluding that the Board’s review of the hearing examiner’s proposed findings was substantially impaired by the Board’s rejection of the hearing examiner’s opinion that Mary Mouat was more credible than Ellen Wirtz?

3. Did the court err in concluding that the Board was biased and prejudiced so that it could not objectively determine the discipline for the nurses upon remand?

4. Did the court err in holding that the Board’s rejection of the hearing examiner’s findings was erroneous, arbitrary and capricious, and an abuse of discretion?

At the time relevant to this action, the registered nurses who appear here as petitioners were employed by St. Peter’s Hospital, Helena, Montana, in its hospice program. As registered nurses practicing in Montana, their licenses were subject to regulation by the Board of Nursing. Title 37, Chapter 8, MCA.

In October 1990, Ellen Wirtz, a registered nurse who had resigned from the hospice program, filed a complaint with the Board charging that the hospice nurses were stockpiling painkilling medications, primarily morphine suppositories, received from families of deceased patients. It has not been alleged that the nurses were appropriating the drugs for their own personal use or personal gain. The drugs were stored in an unlocked desk drawer at the hospice office and were used when a nurse felt it would take too long to obtain a new prescription or to get a prescription filled for a hospice patient in need.

The complaint resulted in charges that the nurses’ conduct was in violation of § 37-8-441(5), MCA, and § 8.32.413(2), ARM. In response to the filing of the complaint, the nurses signed statements admitting their conduct. However, in her statement, Mary Mouat, the supervisor of the hospice program nurses, pointed out that they had ceased the practice and that the hospice program had initiated a new procedure for obtaining drugs in emergency situations. A supply of narcotic drugs had been placed in the hospice office in a lockbox, the contents of which were periodically audited by a pharmacist.

On April 15, 16, and 17, 1991, a public hearing was held on the complaint, before a hearing examiner appointed by the Board. The Board was represented at the hearing by counsel who assumed the role of prosecuting the complaint. The nurses were represented by privately-retained counsel. After the hearing, the nurses’ attorneys submitted proposed findings of fact and conclusions of law and supporting briefs. The prosecuting attorney did not.

On April 30, the hearing examiner issued his findings of fact, conclusions of law, and a recommended order concluding that the substantive charges of unprofessional conduct were not proven and should be dismissed. He found that the nurses, with the exception of Verna VanDuynhoven, committed technical violations of law pertaining to record keeping and storage of narcotics. The hearing examiner recommended that all charges against VanDuynhoven be dismissed and that letters of reprimand be placed in the files of the other nurses for three years.

The Board met and agreed to individually review the transcripts of the hearing before the hearing examiner. Different counsel was brought in to advise the Board. The attorney who had prosecuted the complaint and was normally the Board’s counsel appeared on behalf of the Department of Commerce, the administrative arm of the Board.

At a subsequent meeting made open to the public, the Board rejected the hearing examiner’s findings of fact, conclusions of law, and recommended order. It later issued its own findings, conclusions, and order, based on objections and proposed findings and conclusions filed directly with the Board by the attorney who had prosecuted the complaint. The Board concluded that the nurses essentially committed every violation alleged in the complaint. It placed the licenses of the nurses on probation for terms ranging from three to five years, with certain education and reporting requirements. The Board’s order also prohibited the nurses from supervising other nurses during their probation.

The nurses petitioned for judicial review of the Board’s final order. The parties submitted briefs to the District Court, which then held a hearing on the petition for judicial review. The court reversed the findings, conclusions and final order of the Board. It remanded the matter and ordered the Board to adopt the findings, conclusions, and recommended order of the hearing examiner in their entirety. The Board appeals.

I

1. Did the District Court err in ruling that the Board violated § 2-4-621, MCA, by receiving and considering the prosecuting attorney’s proposed findings?

The District Court found that the Board acted improperly in receiving and considering the prosecuting attorney’s proposed findings, conclusions, and order after the hearing examiner had submitted to the Board his findings, conclusions, and proposed order. The court found that, at that point in the proceedings, the parties were entitled to file only exceptions to the hearing examiner’s decision. The court further found that

[b]y permitting [the prosecuting attorney] to file proposed findings after the hearing examiner had already issued his decision, the prosecuting arm of the Board was given an unfair advantage over the Nurses in the Board’s review of the case. Moreover, by accepting and using [the prosecuting attorneys] proposed findings, the Board favored the prosecution and violated its neutrality which it was required to maintain at that stage of the proceedings.

The Board claims that no reason has been shown why it was permissible to file proposed findings with the hearing examiner but not with the Board. It asserts that, under § 2-4-614(l)(e), MCA, proposed findings can be filed with the hearing examiner, the administrative agency, or both.

Section 2-4-614, MCA, provides:

(1) The record in a contested case shall include:
(e) proposed findings and exceptions^]

Section 2-4-621, MCA, provides:

(1) When in a contested case a majority of the officials of the agency who are to render the final decision have not heard the case, the decision, if adverse to a party to the proceeding other than the agency itself, may not be made until a proposal for decision is served upon the parties and an opportunity is afforded to each party adversely affected to file exceptions and present briefs and oral argument to the officials who are to render the decision.
(3) The agency may adopt the proposal for decision as the agency’s final order. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the proposal for decision but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record and states with particularity in the order that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept or reduce the recommended penalty in a proposal for decision but may not increase it without a review of the complete record.

We agree with the District Court that § 2-4-614, MCA, merely describes the contents of the record in a contested case. It does not provide that proposed findings may be filed at any point in an administrative proceeding.

Section 2-4-621, MCA, sets forth the procedure by which an agency may alter the findings and conclusions of its finder of fact. The Board did not comply with that statute. In allowing the prosecuting attorney to file findings, conclusions, and a proposed order after the hearing examiner’s findings, conclusions, and proposed order had been filed, the Board went beyond its authority under § 2-4-621(1), MCA, to allow parties adversely affected to “file exceptions and present briefs and oral argument” in response to the proposed decision.

Further, the Board did not follow the procedure set forth in § 2-4-621(3), MCA, for modifying or rejecting the findings of its hearing examiner. In its deliberations, instead of focusing on whether the hearing examiner’s findings were supported in the record, the Board focused on whether the prosecuting attorney’s objections to the proposed findings were supported in the record. The Board then considered each of the prosecuting attorney’s proposed findings, adopting them with minor modifications.

Notwithstanding the Board’s position that the transcript demonstrates its reasons for rejecting the findings of the hearing examiner, § 2-4-621(3), MCA, requires that the agency’s order state “with particularity” why such findings have been rejected. Instead of stating with particularity why each of the hearing examiner’s findings was rejected, the Board’s order stated only that the findings, conclusions, and recommended order of the hearing examiner “are rejected in their entirety.”

A hearing examiner, when one is used, is in the unique position of hearing and observing all testimony entered in the case. In the present case, none of the Board members heard the evidence “live;” they were limited to reviewing a cold record. The findings of the hearing examiner, especially as to witness credibility, are therefore entitled to great deference. This is reflected in the procedural requirements which must be met under § 2-4-621, MCA, before a hearing examiner’s findings may be rejected or modified. The failure of the Board to meet those requirements in this case is clear.

The Board cites the provision of § 2-4-623(4), MCA, that “[i]f, in accordance with agency rules, a party submitted proposed findings of fact, the decision shall include a ruling upon each proposed finding.” Because the prosecuting attorney’s proposed findings were not submitted in accordance with the statutes governing proceedings before the Board as discussed above, this statute does not apply to his proposed findings. Therefore, there was no need for the Board to rule upon each of the prosecuting attorney’s proposed findings.

We hold that the District Court did not err in ruling that the Board violated § 2-4-621, MCA, by receiving and considering the prosecuting attorney’s proposed findings after the recommended findings, conclusions, and order of the hearing examiner were submitted.

II

Did the court err in concluding that the Board’s review of the hearing examiner’s proposed findings was substantially impaired by the Board’s rejection of the hearing examiner’s opinion that Mary Mouat was more credible than Ellen Wirtz?

At the hearing before the hearing examiner, the testimony of Ellen Wirtz, the former hospice nurse, conflicted in numerous respects with the testimony of Mary Mouat, the supervisor of the hospice nurses. The hearing examiner found that Wirtz’s testimony was not credible. The District Court stated that the Board “failed to provide adequate grounds for rejecting the hearing examiner’s determinations of credibility of Mary Mouat and Ellen Wirtz.” As the District Court pointed out, the Board failed to determine whether there was substantial credible evidence to support two findings by the hearing examiner which provided specific examples of Wirtz’s lack of credibility.

In objecting to the District Court’s opinion on this issue, the Board relies upon the language of § 2-4-704(2), MCA, prohibiting a district court from substituting its judgment for “that of the agency as to the weight of the evidence on questions of fact.” The Board asserts that this language prohibits not only the District Court, but also the hearing examiner, from making any judgment that is binding on the Board as to the weight of Wirtz’s or Mouat’s testimony.

The Board misinterprets § 2-4-704(2), MCA. This relates back to the use of a hearing examiner by an administrative agency as discussed under Issue I. As stated under that issue, the credibility of a witness is best judged by one who has the opportunity to observe the demeanor of the witness in person. In this case, the hearing examiner definitely found that Mouat was a more credible witness than was Wirtz, and supported that finding. We have reviewed the record, as did the District Court. We hold that the District Court did not err in ruling that substantial credible evidence supports the findings of the hearing examiner concerning the credibility of Mouat and Wirtz.

The Board also argues that the District Court erred in stating that the hearing examiner’s findings of fact and conclusions of law “were based in large part on the testimony and credibility of these two witnesses [Mouat and Wirtz].” Because the nurses admitted their conduct, a major focus of the hearing was the appropriate discipline to be imposed upon them. Whether they were being candid in their admissions was, of course, crucial to this determination. The primary challenge to the nurses’ credibility was the testimony of Wirtz, and her testimony conflicted with Mouat’s. We hold that the District Court did not err in ruling that the Board’s review of the hearing examiner’s proposed findings was substantially impaired by the Board’s improper rejection of the hearing examiner’s opinion as to the relative credibility of Mouat and Wirtz.

Ill

Did the court err in concluding that the Board was biased and prejudiced so that it could not objectively determine the discipline for the nurses upon remand?

The District Court found that the Board violated its neutrality and impartiality and had become “irreparably tainted.” The Board claims, however, that there is no factual or legal basis for the court to divest it of its legal duty to determine the discipline for the nurses.

The Board’s perhaps unintentional bias against the position taken by its hearing examiner and in favor of the position taken by the prosecuting attorney, who was usually the Board’s attorney is demonstrated by the improper procedure used by the Board, as discussed above. The District Court’s decision not to remand the action to the Board for determination of discipline is further supported by the need for final resolution of this matter. As evidence of absence of bias on its part, the Board points out that it now has several new members who did not consider this matter the last time it was before the Board. But the new Board members would require time to study the record before the Board could meet and enter an order. The nurses have been under the cloud of this litigation long enough.

We have ruled that the findings and conclusions of the hearing examiner are supported by substantial evidence. The discipline recommended by the hearing examiner and adopted by the District Court is commensurate with those findings and conclusions. The discipline is also commensurate with the Board’s discipline rulings in other cases between 1986 and 1991, as summarized by the Board in a document in the record before the hearing examiner. We hold that there was no error in the District Court’s ruling that the hearing examiner’s recommendations for discipline shall be adopted.

IV

Did the court err in holding that the Board’s rejection of the hearing examiner’s findings was erroneous, arbitrary and capricious, and an abuse of discretion?

The Board challenges several specific findings of the hearing examiner. It claims that the hearing examiner’s finding that “the practice” was “stopped voluntarily” is error because Mouat was directed by her supervisor to see that “the practice” stopped. The Board points out the contrast between the drug destruction record indicating that 158 doses of drugs were destroyed on June 7, 1990, and the hearing examiner’s finding that “not a large number of suppositories” were placed in Mary Mouat’s desk drawer. We note that “the practice” ceased prior to the initiation of these proceedings. Further, it is unclear from the record whether all the drugs destroyed on June 7,1990, had been stored in Mouat’s desk drawer, or whether some had just been received by the hospice program. At any rate, we conclude that neither of these semantic uncertainties are critical, in light of the entire record.

The Board also disputes the finding that Mary Mouat was a credible witness. The Board cites evidence that Mouat had forged Ruth Sasser’s signature on a drug destruction record and that Mouat told Sasser to use her own judgment about retaining drugs, after having been directed to stop the practice. It also cites Mouat’s testimony that all of the nurses participated in “the practice,” which conflicted with VanDuynhoven’s statement that she knew of “the practice,” but did not participate. Again, in the context of the entire record, we conclude that the evidence cited by the Board, some of which is disputed, is not fatal to the finding that Mouat was credible.

The Board cites the following omissions from the findings: Wirtz testified that Mouat never told her to cease “the practice;” the hearing examiner did not account for the source of all the drugs in Mouat’s desk drawer; Sasser kept two morphine suppositories in her nursing bag after being told not to; Lynn Zavalney took drugs from the drawer to a patient on the basis of financial need, not medical emergency; Aleñe Brackman admitted she did not tell Dr. Simms she was filling a prescription from the drawer; and VanDuynhoven knew there were drugs in the drawer. While it is true there was evidence on all of these points, findings are not required to be made on every point on which evidence is produced. We conclude that none of these points constitute significant omissions from the findings.

The District Court examined each of the findings of the hearing examiner, one by one, as the Board should have done, and determined that each was supported by substantial credible evidence in the record. Therefore, the court concluded that under § 2-4-621(3), MCA, the hearing examiner’s findings of fact should have been adopted by the Board.

Rejection of a hearing examiner’s factual recommendations in violation of § 2-4-621(3), MCA, constitutes an abuse of discretion within the meaning of § 2-4-704(2)(a)(vi), MCA. Brander v. Director, Dept, of Inst. (1991), 247 Mont. 302, 308, 806 P.2d 530, 533. In this case, the Board abused its discretion by rejecting the hearing examiner’s findings without following the procedure required pursuant to § 2-4-621(3), MCA. We hold that the District Court did not err in holding that the Board’s rejection of the hearing examiner’s findings, conclusions, and proposed order constituted an abuse of discretion and violated § 2-4-704(2)(a)(vi), MCA.

Affirmed.

JUSTICES GRAY, TRIEWEILER, HUNT, HARRISON and WEBER concur.

ORDER

The Court’s opinion in this case was filed on May 6,1993. On May 17, 1993, the Board of Nursing filed a petition for rehearing. Having considered that petition, the Court hereby ORDERS that the petition for rehearing is DENIED.

IT IS FURTHER ORDERED that the opinion in this matter is clarified to reflect that counsel for the Board of Nursing on appeal was not the attorney who prosecuted this matter below.

The Clerk is directed to mail copies of this ORDER to counsel for the parties and to West Publishing and the State Report with the request that it be published with the Court’s opinion.

DATED this 20th day of May, 1993.

/s/J.A. TURNAGE, Chief Justice

/s/ JOHN CONWAY HARRISON, Justice

/s/ KARLA M. GRAY, Justice

/s/ WILLIAM E. HUNT, SR., Justice

Isl TERRY TRIEWEILER, Justice

/s/ FRED J. WEBER, Justice


author: JUSTICE HUNT

text:
    LEE McDONALD, Plaintiff and Appellant, v. IRENE H. JONES, a/k/a IRENE H. PETERSON, IRENE H. JONES PARTNERSHIP, a/k/a IRENE H. PETERSON PARTNERSHIP; OWNERSHIP OF AMERICA, a Texas corporation, and all other persons unknown claiming or who might claim any right, title, estate or interest in or lien or encumbrance upon the real property described in the Complaint adverse to Plaintiff’s ownership or any cloud upon Plaintiff’s title thereto, whether such claim or possible claim be present or contingent, Defendants and Respondents.
    No. 92-422.
    Submitted on Briefs January 28, 1993.
    Decided May 11, 1993.
    50 St.Rep. 502.
    852 P.2d 588.
    258 Mont. 211.

      See C.J.S. Deeds § 30.
    For Plaintiff-Appellant: Nancy K. Moe, Ellingson & Moe, Missoula.
    For Defendants-Respondents: David L. Pengelly, Knight, Maclay & Masar, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Lee McDonald appeals from an order of the Fourth Judicial District Court, Missoula County, granting summary judgment and finding a certain warranty deed from respondent Irene H. Jones (now Irene Peterson but referred to as Jones) to Ownership of America void, and a certain tax deed issued to McDonald by Missoula County void. McDonald also appeals a subsequent order denying his motion to reconsider.

We affirm.

McDonald raises three issues on appeal. We find the following issue to be dispositive:

Did the District Court err in finding that the grantor did not comply with the Montana Subdivision and Platting Act, thereby invalidating the warranty deed?

Irene H. Jones owned 12.63 acres of land in the Seeley Swan valley. The land contained various improvements, including a house built by Jones. Ownership of America approached Jones and requested that she convey two undeveloped acres from the 12 acre tract for a promotional scheme in exchange for some of Ownership’s stock. There was no agreement specifying which two acres were to be conveyed. A friend of Jones, Vernon H. Peterson, prepared a warranty deed conveying title. On April 13, 1981, Jones executed a warranty deed to Ownership. The deed contained the following land description:

That portion of Lot numbered Seven (7) of Section Six (6) in Township Twenty (20) North of Range Sixteen (16) West of Montana Principal Meridian, Montana, lying West of Federal Aid Secondary 209 right-of-way and containing two acres more or less and further accurately described by plat on file with the party of the first part and party of the second part. Party of the first part herein reserves all minerals under the above description.

Jones and Ownership agree that the deed intended to convey two undeveloped acres out of the larger 12.63 acres owned by Jones. However, the deed did not specify which two undeveloped acres were to be conveyed. No plat was ever filed with the Missoula County Clerk and Recorder. The Missoula County Clerk and Recorder’s office, following internal office procedures, erroneously treated the conveyance as a transfer of 12.63 acres, and not as two acres, as intended by Jones and Ownership. The Missoula County Treasurer changed the tax records upon recordation of the deed and sent all further tax notices for the entire 12.63 acre parcel to Ownership, who failed to pay any of the real property taxes. On July 20,1983, Missoula County took a tax sale certificate on the entire 12.63 acre parcel due to nonpayment of taxes. Jones never received any notice regarding the pending tax sale.

On August 13, 1985, prior to taking a tax deed to the 12.63 acres, Missoula County assigned its interest in the tax certificate to Lee McDonald for $738.92, which represented unpaid taxes, interest, and penalties. On April 28,1986, and on May 5,1986, McDonald published a notice of application for tax deed in the local newspaper. The notice contained the following legal description: “All of Gov’t Lot 7 lying West of Federal Aid Secondary #209 R/W in SW4 (Plat E) of 6-20N-16W, M.P.M.” On July 11, 1986, McDonald filed an affidavit stating that the property was unoccupied at the time of his application for tax deed on the property but acknowledged that the property may be occupied occasionally during the summer.

On August 27, 1986, the Missoula County Treasurer executed a tax deed to McDonald as grantee, which contained the following legal description:

Book 163 Page 228 SUID #1078409
Pt of Lot T W of R/W in SWV4 Plat E Section 6 Township 20 Range 16 12.63 Acres
That portion of lot numbered Seven (7) of Section Six (6) in Township Twenty (20) North of Range Sixteen (16) West of Montana Principal Meridian, Montana, lying West of Federal Aid Secondary 209 Right-of-Way and containing two acres more or less and further accurately described by Plat on file with the party of the first part and party of the second part. Party of the first part herein reserves all minerals under the above description. McDonald then published a Notice of Claim of Tax Title in the

Missoula newspaper on August 25,1986, and again on September 1, 1986. The legal description used in the publication is identical to the legal description used in the original notice of application for tax deed.

McDonald never visually inspected the premises to determine if the property was unoccupied before acquiring the tax deed; he did not attempt to notify personally any persons who may have been occupying the property during the summer of 1986; he did not attempt to contact anyone other than a local handyman to determine who was in possession of the property and who was allowing guests to enter the property.

Ownership contacted McDonald and agreed to give him a quit claim deed to the property. The quit claim deed was prepared by McDonald and contained a different legal description than that used in the warranty deed from Jones to Ownership. The deed deleted all reference to the two acre limitation contained in the warranty deed. In addition, the word “all” was inserted at the beginning of the legal description. McDonald had actual knowledge of the two acre limitation contained in the Jones-to-Ownership warranty deed, but he chose to ignore the limitation. McDonald did not pay any consideration to Ownership for the quit claim deed. McDonald then conveyed a separate piece of property to Ownership for $2000.

In a series of deeds that were executed after the deed to Ownership, Jones, now married to Vernon Peterson, conveyed her entire interest in the 12.63 acre parcel to Irene H. Peterson Limited Partnership, a North Dakota limited partnership. Jones has paid all of the real estate taxes on the entire 12.63 acre parcel from 1986 through 1990 and has been in possession of the property at all times throughout the litigation.

On September 13, 1988, McDonald filed a quiet title action in District Court. On January 22, 1992, Jones filed her motion for summary judgment. On April 27, 1992, the District Court issued its findings of fact, conclusions of law, and order granting Jones’motion for summary judgment. On May 14, 1992, McDonald filed a motion for reconsideration, which was denied by the District Court on June 15,1992. McDonald appeals both orders to this Court.

Did the District Court err in finding that the grantor did not comply with the Montana Subdivision and Platting Act, thereby invalidating the warranty deed?

The granting of summary judgment is proper only if it is shown that there is no genuine issue of any material fact and that the moving party is entitled to summary judgment as a matter of law. Rule 56(c), M.R.Civ.P. Summary judgment may be granted where the party opposing the motion fails to prove the existence of any genuine issue of material fact. Bills v. Hannah, Inc. (1988), 230 Mont. 250, 253-54, 749 P.2d 1076, 1079.

Section 76-3-104, MCA (1979), states that a subdivision shall be comprised of parcels less than 20 acres which have been segregated from the original tract. Jones’ warranty deed to Ownership was an attempt to subdivide a parcel of land by segregating a two-acre parcel from the original 12.63 acre tract. The attempted subdivision violated the Montana Subdivision and Platting Act because the Act requires that a plat be filed of record before title to subdivided ground can be sold or transferred in any manner. Section 76-3-301(1), MCA (1979). In addition, the Act requires that the clerk and recorder reject any instrument that purports to transfer title to a parcel that is required to be surveyed. Section 76-3-302, MCA (1979).

The record shows that the parties intended to transfer only two acres of undeveloped land out of the 12.63 acres of land. No plat was recorded describing the two acres, even though the deed did make a reference to such a plat. The deed should have been rejected. Section 76-3-302, MCA.

When interpreting the validity of deeds, the general rule is that a deed will be liberally construed to give it effect, rather than to render it a nullity. Peterson v. Taylor (1987), 226 Mont. 400, 404, 735 P.2d 1120, 1123. A deed will be considered void for uncertainty if the identity of the property can not be ascertained by reference to extrinsic evidence. Peterson, 735 P.2d at 1123. We consider the property description contained in a deed adequate if it contains sufficient information to permit the identification of the property to the exclusion of all others. Peterson, 735 P.2d at 1123.

In this instance, the parties failed to come to a meeting of the minds regarding which two acres of land Jones was to convey to Ownership. No extrinsic evidence was available for the District Court to identify which two acres the parties contemplated to be conveyed. Therefore, we hold that the deed was void for uncertainty. Because the warranty deed was ineffective at conveying any portion of the 12.63 acres, the subsequent deed from Ownership to McDonald conveyed no interest in the property. Erickson v. First National Bank of Minneapolis (1985), 215 Mont. 350, 358, 697 P.2d 1332, 1337. We hold that the District Court was correct as a court sitting in equity in holding that the original conveyance between Jones and Ownership was void for failure to comply with the Montana Subdivision and Platting Act.

As a result of our holding, we need not address the additional issues raised by McDonald.

Because there is no genuine issue of material fact, we affirm the decision of the District Court in granting summary judgment as a matter of law in favor of Jones.

JUSTICES GRAY, TRIEWEILER, HARRISON and WEBER concur.


author: JUSTICE WEBER JUSTICE TRIEWEILER

text:
    BRETT DEPEE, JANET DEPEE, and BITTERROOT VALLEY BANK, Plaintiffs and Respondents, v. FIRST CITIZEN’S BANK OF BUTTE, Defendant and Appellant.
    No. 92-501.
    Submitted on Briefs February 25, 1993.
    Decided May 11, 1993.
    50 St.Rep. 505.
    852 P.2d 592.
    258 Mont. 217.

      See C.J.S. Venue § 14.
    For Defendant and Appellant: J. Richard Orizotti, Poore, Roth & Robinson, Butte.
    For Plaintiffs and Respondent: Dan G. Cederberg, Missoula, and Judith A. Loring, Stevensville.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from the Twenty-First (formerly Fourth) Judicial District Court, Ravalli County, denying defendant’s motion for change of venue. We affirm.

We consider the following issue on appeal:

Did the District Court err in denying defendant’s motion for change of venue from Ravalli County to Butte-Silver Bow County?

Brett and Janet Depee (Depees) are residents of Stevensville in Ravalli County. In October of 1990, the Depees entered into an agreement with Better Homes of Montana (Better Homes) to purchase a 1983 Venture mobile home. The contract called for Better Homes to deliver, set up, block and level the mobile home at the Depees’ residence in Stevensville.

The contract for sale of the mobile home was conditioned on the approval of financing by Bitterroot Valley Bank (Bitterroot Bank). Bitterroot Bank is located in Lolo, Missoula County. First Citizen’s Bank of Butte (First Bank) held a lien upon the mobile home in question. Upon agreement with Depees, Bitterroot Bank Vice President Rich Zins (Zins) contacted First Bank and asked if the First Bank would release its lien and, if so, where payment for the mobile home should be delivered. First Bank stated that the check from Bitterroot Bank should go directly to Better Homes and that the lien would be released in the normal course of business. Bitterroot Bank contends that it would not have loaned the money to the Depees unless the Bank had agreed to release the lien.

On or about October 19,1990, Bitterroot Bank sent Better Homes a check for the purchase price of the mobile home. The mobile home was subsequently delivered to the Depees and they moved into it in November of 1990. Subsequently, Better Homes went out of business. Following the mobile home’s delivery, First Bank attempted to have title issued to the mobile home based upon repossession. An affidavit of repossession was issued on June 4, 1991, stating that First Bank had actual possession of the mobile home. According to First Bank, Better Homes had been required to deliver a negotiable certificate of title on the mobile home to First Bank. When Better Homes paid the debt owed on the mobile home, First Bank would release the certificate of title.

Depees and Bitterroot Bank subsequently filed suit against First Bank regarding the encumbered title to the mobile home. The suit was filed in Ravalli County and contains charges of wrongful conversion, breach of agreement, breach of statutory duty to file a satisfaction of a chattel mortgage, wrongful repossession of the mobile home, breach of an obligation of good faith and fraud.

The Bank then filed a motion for change of venue to Butte-Silver Bow County where it maintains its principal place of business. A hearing was held on May 20, 1992, and on July 20, 1992, the court issued an order denying the Bank’s request for change of venue.

Did the District Court err in denying defendant’s motion for change of venue from Ravalli County to Butte-Silver Bow County?

First Bank argues that the general rule of law governing venue is that venue is proper in the county where the defendant resides. According to First Bank, none of the statutory exceptions to this general rule apply under the facts of this case: the tort claims and contract claims are not appropriate in Ravalli County. First Bank contends that the action is only proper in Butte-Silver Bow County, where First Bank has its principal place of business.

The Depees argue that if Ravalli County is a proper county, the court cannot change venue to another proper county. According to the Depees, Ravalli County is appropriate because the underlying contract was to be performed in Ravalli County. Further, all torts alleged by the Depees spring from this contract and are so interrelated with it that Ravalli County is appropriate.

The record on appeal of venue is limited and contains only the complaint, an affidavit and the transcript of the venue hearing. The action revolves around two agreements, one of which is a written purchase agreement made between the Depees and Better Homes. The purchase agreement for the mobile home had a condition precedent. A condition precedent is a condition which must be met before the agreement becomes effective. Westmont Tractor Co. v. Viking Exploration, Inc. (D.C. Mont. 1982), 543 F.Supp. 1314. The purchase agreement states expressly that the sale is conditioned on the approval of financing by Bitterroot Valley Bank.

A second agreement exists within the facts of this case and that is the oral agreement between First Bank and Bitterroot Bank. In that agreement, First Bank agreed to release its lien on the Depees mobile home, which had been floor financed to Better Homes, when Better Homes paid the amount owed on the home. First Bank agreed in a telephone conversation that the lien would be released so that Bitter-root Bank could maintain the security interest on the mobile home. Bitterroot Bank officer, Zins, testified that he would not have loaned the $12,500 to the Depees unless First Bank agreed to release its lien.

Montana’s venue statute governing contract actions is § 25-2-121, MCA. This section of the code provides that venue for contract actions is proper in either the county in which the defendant resides or the county in which the contract is to be performed. Section 25-2-121(1), MCA. See also, Missouri-Stone v. Barber Seed (1992), [256 Mont. 66] 844 P.2d 112, 49 St. Rep. 1139. According to this statute, the county where the contract is to be performed, if no place is named, is the county in which, by necessary implication from the terms of the contract, considering all of the obligations of all parties at the time of its execution, the principal activity was to take place. Section 25-2-121(1)(b)(ii), MCA. [Emphasis added.] The particular county must be clear from the express terms of the contract or by necessary implication from the contract terms. Berlin v. Boedecker (1989), 235 Mont. 443, 767 Mont. 349.

The first contract, the purchase agreement, does not specify where the goods are to be delivered. It states that the mobile home is to be delivered, set up, blocked and leveled by Better Homes personnel. The purchase agreement lists the Depees’ address in Ravalli County. By “necessary implication” the county of principal activity is where the mobile home was to be set up, and in fact was set up.

The second agreement between First Bank and Bitterroot Bank would have Ravalli County as its place of principal activity also. Although First Bank officer Beck testified that had First Bank been paid for the mobile home, it would have released the title to the dealer, Better Homes, that title would have eventually been sent to Bitter-root Bank. That is particularly so since Better Homes went out of business shortly after the Depees bought the mobile home.

In addition, subsection (2)(a) of § 25-2-121, MCA, lists specifically that the proper county for contracts for the sale of property or goods is to be where the goods are to be delivered. The “goods” under the purchase contract were delivered, set up, blocked and leveled in Ravalli County. Ravalli County was obviously the county where the principal activity of both contracts, and the place where the “goods” from the first contract were delivered.

First Bank claims that it was not a party to the purchase agreement. Such argument is irrelevant. First Bank was a party to the second agreement and the principal place of activity on that agreement would have been Ravalli County.

The Depees do not have a cause of action outside of the purchase agreement. Every claim, every activity at issue by all four parties, stems from this purchase agreement. Even the tort claims, which the Bank argues were not founded in this initial contract, are directly tied to the initial purchase agreement or the agreement between First Bank and Bitterroot Bank. Our statutes provide that where tort claims are so interrelated with the contract action, the site of venue which is appropriate for the contract action is appropriate for the tort claims also. Section 25-2-122, MCA.

We conclude that under both contracts at issue in this case, Ravalli County is proper venue. Therefore, a change of venue is not proper under Montana’s venue statutes because the plaintiffs filed in a proper county. We hold that the District Court did not err in concluding that Ravalli County was a proper county for venue and in denying the Bank’s motion for change of venue.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT and HARRISON concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

Defendant was entitled to be sued in the county of its residence unless it was a party to a contract to be performed in some other county. In reasoning which adds a new twist to the rules of venue, the majority holds that since some other contract to which defendant was not a party was to be performed in Ravalli County, defendant is somehow subject to suit in Ravalli County.

Plaintiffs filed a complaint against defendant in Ravalli County alleging six causes of action. Count No. 2 was the only cause of action based on contract. It alleged that:

XXVI.
First Citizen’s, through its agent Beck agreed to release its lien against the mobile home and allow title to the mobile home to be transferred to Depees free and clear of its lien on payment of Twelve Thousand Five Hundred and No/100 Dollars ($12,500.00) to Better Homes plus allowance for a trade-in and down payment.
XXVII.
First Citizen’s breached its agreement to release its lien against the mobile home by failing to release its lien after payment in full was received.

There was no written agreement which formed the basis for plaintiffs’ complaint, and according to the allegations of the complaint, there was no place of performance specified in the alleged oral agreement. In Berlin u. Boedecker (1989), 235 Mont. 443, 444-45, 767 P.2d 349, 350, we held under similar circumstances that:

“The general rule governing venue of any civil action is that the action shall be tried in the county in which the defendant resides.” Whalen v. Snell (1983), 205 Mont. 299, 301, 667 P.2d 436, 437; see also § 25-2-118(1), MCA. A plaintiff also may choose to bring a contract action in the county where a contract was to be performed. Section 25-2-121(1)(b), MCA; Hardenburgh v. Hardenburgh (1944), 115 Mont. 469, 146 P.2d 151. However, this performance exception applies only if the plaintiff clearly shows that the contracting parties mutually agreed at the time they entered the contract that the contract was to be performed in a particular county other than that of defendant’s residence. The particular county must be clear from the express terms of the contract or by necessary implication from the contract terms. Armon v. Stewart (1973), 162 Mont. 262, 264, 511 P.2d 8, 9.

Since there was no specified place of performance in this contract, and since the place of performance was not clear from the express allegations in plaintiffs’ complaint, the place for venue, according to Berlin, was the place of defendant’s residence. However, if that general rule of venue is not sufficient, certainly the uncontroverted testimony in this case was sufficient to establish that the place of performance for the contract between Bitterroot Valley Bank and First Citizen’s Bank was a place other than Ravalli County.

The only testimony given regarding the place of First Citizen’s Bank’s performance was given by the vice president in charge of loans from Bitterroot Valley Bank. He testified as follows:

Q. Okay. Now you allege that there was an agreement with First Citizen’s Bank; is that correct?
A. I don’t believe that is correct.
Q. Okay. There was no agreement — you had no agreement with First Citizen’s Bank, is that right, in this case?
A. My agreements, I guess, with First Citizen’s Bank were — if you’d like me to tell the whole scenario now, I can.
Q. I would just like to have you answer the question. Do you contend you had an agreement in this case with First Citizen’s Bank?
A. I guess I would, yes.
Q. Okay. And was that agreement that First Citizen’s Bank would, which you contend, First Citizen’s Bank would release the title to this mobile home?
A. That is correct.
Q. And to whom would First Citizen’s Bank release the title to the mobile home?
A. I was told by Robert Beck at First Citizen’s State Bank of Butte that normal course of business, that he would send the title to the mobile home dealer.
Q. Okay. Who was the mobile home dealer in this case in which the — Mr. and Mrs. Depee purchased the home from.
A. Better Homes of Montana.
Q. Where is that place of business?
A. Out by the airport near Missoula.
Q. In Missoula County?
A. In Missoula County.

The majority points out that there were two separate agreements. There was a written purchase agreement between the mobile home dealer and the purchasers, Brett Depee and Janet Depee. However, defendant First Citizen’s Bank was clearly not a party to that agreement. The second agreement alleged is the agreement between First Citizen’s Bank and Bitterroot Valley Bank. However, according to the uncontroverted testimony of Bitterroot Valley Bank’s own vice president, all of First Citizen’s Bank’s duties pursuant to that agreement were to be performed in Missoula County. The fact that Better Homes, once it received the title from First Citizen’s Bank, might have eventually sent it to Ravalli County pursuant to a separate agreement is irrelevant to the issue of proper venue for enforcement of the contract between Bitterroot Valley Bank and First Citizen’s Bank.

Furthermore, § 25-2-121(2)(a), MCA, which pertains to proper venue within which to enforce contracts for the sale of property or goods, is irrelevant to the issue of proper venue for the suit against First Citizen’s Bank. First Citizen’s Bank was not a party to any contract for the sale and delivery of property or goods.

Because Ravalli County was not the proper venue for suit on plaintiffs’ claim for breach of contract, all of plaintiffs’ claims should have been transferred to Silver Bow County pursuant to defendant’s motion for change of venue. Section 25-2-116, MCA, provides that:

In an action involving two or more claims for which this part designates more than one as a proper place of trial, a party entitled to a change of place of trial on any claim is entitled to a change of place of trial on the entire action, subject to the power of the court to separate claims or issues for trial under Rule 42(b) of the Montana Rules of Civil Procedure.

The majority has, in effect, held that because one of the plaintiffs had a contract with a mobile home dealer, who is not a party to this lawsuit, wherein the mobile home dealer agreed to deliver a mobile home in Ravalli County, the defendant bank, which was not a party to that contract and had nothing to say concerning its terms, is subject to suit in Ravalli County. This is, indeed, an interesting and novel approach to venue. If the average practitioner was not previously confused by this Court’s decisions regarding venue, he or she should be now.

Periodically, the Legislature attempts to codify our decisions regarding venue in order to simplify the rules of venue for practicing attorneys. The next time the Legislature attempts to do so it will be interesting to see how it explains this decision.

For the above reasons, I dissent from the opinion of the majority. I would reverse the District Court and order that venue be transferred to Silver Bow County.

JUSTICE GRAY joins in the foregoing dissent.