text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MARTIN DANIEL REYNOLDS, Defendant and Appellant.
    No. 94-368.
    Submitted on Briefs May 11, 1995.
    Decided July 17, 1995.
    52 St.Rep. 600.
    272 Mont. 46.
    899 P.2d 540.

      For Appellant: Jeannettte Ellen Berry, Berry Law Firm, Bozeman.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Elizabeth L. Griffing, Assistant Attorney General, Helena; A. Michael Salvagni, Gallatin County Attorney, Susan Swimley, Deputy Gallatin County Attorney, Bozeman.
   JUSTICE NELSON

delivered the Opinion of the Court.

Defendant/Appellant, Martin Reynolds (Reynolds), was charged with a third offense of driving under the influence of alcohol (DUI) on December 22, 1991. After a hearing, the Gallatin County Justice Court denied Reynolds’ motion to dismiss, found Reynolds guilty, and stayed sentence pending appeal. Reynolds appealed to district court. The Eighteenth Judicial District Court, Gallatin County, denied Reynolds’ motion to dismiss and following trial, found Reynolds guilty and stayed sentence pending appeal. Reynolds appeals from the sentence and judgment of the District Court and from the order denying his motion to dismiss. We reverse.

ISSUE

Reynolds raises the following issue on appeal: Did Deputy Peterson have a particularized suspicion to justify an investigative stop of Reynolds’ vehicle?

STANDARD OF REVIEW

In this case, the District Court denied Reynolds’ motion to dismiss for an improper investigative stop, concluding that the arresting officer had vast experience and that Reynolds committed a traffic violation which gave rise, along with other facts, to the officer’s right to stop him. We review the record to determine whether substantial credible evidence supports the legal conclusion implicit in the trial court’s denial of defendant’s motion, that the arresting officer had a particularized suspicion to justify the investigatory stop, and, if, based on the evidentiary record, the court’s legal conclusion was correct. See, for example, State v. Stubbs (1995), [270 Mont. 364], 892 P.2d 547, 550. (We review a district court’s ruling on a motion to suppress to determine whether there is substantial credible evidence to support the court’s findings of fact, and whether the court correctly applied the findings as a matter of law.)

BACKGROUND

At approximately 9:00 p.m., on December 22,1991, Deputy Sheriff David Peterson observed a pickup driven by Reynolds, traveling down a dead-end street. Deputy Peterson thought the vehicle was “bordering on traveling too fast” for the conditions (traffic and darkness) and drove to where he thought the vehicle would reappear. When it did not reappear, he moved to see Reynolds make a u-tum in a city park. Deputy Peterson then met Reynolds at an intersection where Reynolds had the right-of-way. After approximately 7 to 10 seconds, Reynolds proceeded through the intersection. Deputy Peterson then pulled Reynolds over to make an investigatory stop. Other facts are referred to in our discussion as necessary.

DISCUSSION

Reynolds argues that the District Court erred in denying his motion to dismiss and in finding him guilty of driving under the influence of alcohol. Reynolds claims that Deputy Peterson did not have a particularized suspicion to justify an investigatory stop pursuant to § 46-5-401, MCA. In 1991, the Legislature amended § 46-5-401, MCA, to be consistent with United States Supreme Court and Montana case law: Section 46-5-401, MCA, provides:

Investigative stop. In order to obtain or verify an account of the person’s presence or conduct or to determine whether to arrest the person, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense. [Emphasis added].

The Fourth Amendment right against unreasonable searches and seizures, made applicable to the states by the Fourteenth Amendment, “protects people, not places.” Terry v. Ohio (1968), 392 U.S. 1, 8-9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889, 899 (citing Katz v. United States (1967), 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582). Whenever a police officer restrains a person’s freedom, such as in a brief investigatory stop of a vehicle, the officer has seized that person. Terry, 392 U.S. at 16, 88 S.Ct. at 1877; United States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621, 628.

A police officer may seize an individual based on less than probable cause if the seizure is reasonable under the circumstances. Terry, 392 U.S. at 20, 88 S.Ct. at 1879. “[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S.Ct. at 1880. The Court refused to sanction intrusions based on “nothing more substantial than inarticulate hunches. ...” Terry, 392 U.S. at 22, 88 S.Ct. at 1880.

Recognizing that “[a]n investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity”, the United States Supreme Court set forth a two-part test to evaluate whether the police have sufficient cause to stop a person. Cortez, 449 U.S. at 417-18, 101 S.Ct. at 694-95. The essence of the test is that the totality of the circumstances must give the police a particularized and objective basis for suspecting the person of criminal activity. Cortez, 449 U.S. at 417-18, 101 S.Ct. at 694-95.

In State v. Gopher (1981), 193 Mont. 189, 631 P.2d 293, we adopted the two-part test enunciated in Cortez, placing the burden on the state to show: “1) objective data from which an experienced officer can make certain inferences; and (2) a resulting suspicion that the occupant of a certain vehicle is or has been engaged in wrongdoing or was a witness to criminal activity.” Gopher, 631 P.2d at 296. Applying the rules of Cortez, we held that a particularized suspicion existed to justify stopping a vehicle that slowly drove past the crime scene and exhibited an unusual curiosity in the crime site. Gopher, 631 P.2d at 296.

The issue of whether or not a particularized suspicion exists in order to justify an investigative stop is factually driven. For example, in State v. Morsette (1982), 201 Mont. 233, 654 P.2d 503, a farm was broken into, setting off a silent alarm that alerted the sheriff and a neighbor. The neighbor saw an unfamiliar truck driving very fast and wrote down its license number. Morsette, 654 P.2d at 504. The deputy followed tire tracks from the farm and saw the truck matching the neighbor’s description. In applying the two-pronged test, we held that the totality of the facts before the deputy created a particularized suspicion justifying the investigatory stop. Morsette, 654 P.2d at 507.

In Matter of Suspension of Driver’s License of Blake (1986), 220 Mont. 27, 712 P.2d 1338, the petitioner exhibited patterns consistent with a person driving while under the influence of alcohol. Blake, 712 P.2d at 1341. The petitioner was driving in the vicinity of several bars at around 2:00 a.m. and swerved into the wrong traffic lane. Therefore, we held that such uncontradicted evidence was sufficient to support a particularized suspicion that the petitioner may have been driving under the influence of alcohol. Blake, 712 P.2d at 1341.

When the totality of the circumstances does not support a particularized suspicion, we have held the investigatory stop to be unjustified. For example, in Grinde v. State (1991), 249 Mont. 77, 813 P.2d 473, the sheriff’s deputies saw the defendant’s car properly execute a right hand turn and drive out of eyesight. After the defendant’s car was out of eyesight, the deputies then heard an engine revving and the squeal of tires. Subsequently, they stopped the defendant. Grinde, 813 P.2d at 474. We held that the sheriff’s deputies were not justified in stopping the defendant’s vehicle because they merely heard the squeal of tires but saw no evidence of erratic driving. Grinde, 813 P.2d at 475.

Similarly, in State v. Anderson (1993), 258 Mont. 510, 853 P.2d 1245, the facts were not sufficient for us to hold that the police officers met the particularized suspicion test. In Anderson, an informant tipped the police that a blue pickup carrying a large quantity of marijuana would be traveling from Washington to Montana late at night on a specific date. The officers did not corroborate the tip but pulled the blue truck over for an investigative stop. Although the vehicle had not violated any traffic laws justifying a traffic stop, the officers conducted a stop nonetheless. Anderson, 853 P.2d at 1246. Consequently, we held that there was no objective data to give rise to a resulting suspicion and that the search of Anderson’s pickup was unlawful. Anderson, 853 P.2d at 1247.

In the case before us, Deputy Peterson testified that he saw a pickup move through an intersection “bordering on traveling too fast” for the conditions, “not necessarily [that Reynolds had] broken the law critically or technically.” After this initial “possible” traffic violation, Deputy Peterson observed no other violations of the law or driving anomalies. Reynolds did not exhibit patterns consistent with a person driving while under the influence of alcohol; there was no evidence of erratic driving.

The State argues that the possible speeding combined with Reynolds’waiting 7-10 seconds at the intersection provides a particularized suspicion. However, Deputy Peterson conceded that drivers on the left do not always grant the right of way and that the presence of a police car at the intersection could have an unnerving effect on a driver’s normal driving routine. Therefore, we conclude that, under the totality of the circumstances and facts in this case, the possible traffic violation combined with no other objective data does not support a particularized suspicion that Reynolds had been engaged in wrongdoing.

We hold the investigative stop was not justified pursuant to § 46-5-401, MCA; Deputy Peterson did not have facts supporting a particularized suspicion that Reynolds had committed, was committing, or was about to commit an offense. Because the investigatory stop was unlawful, we reverse the District Court’s decision to deny Reynolds’ motion to dismiss and we remand with instructions to enter an order of dismissal consistent with this opinion.

JUSTICES HUNT, TRIEWEILER, LEAPHART and WEBER concur.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    JAMES EDWARD CHANCE, III, Plaintiff and Appellant, v. CAROL THOMAS HARRISON and the MONTANA HUMAN RIGHTS COMMISSION, Defendants and Respondents.
    No. 95-024.
    Submitted on Briefs May 26, 1995.
    Decided July 17, 1995.
    52 St.Rep. 603.
    272 Mont. 52.
    899 P.2d 537.

      For Appellant: Samuel M. Warren, St. Peter & Warren, P.C., Missoula.
    For Respondents: Rex Palmer, Attorneys, Inc., P.C., Missoula; Paulette Kohman, Montana Human Rights Commission, Helena.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

James Edward Chance, III (Chance), appeals the decision of the Fourth Judicial District Court, Missoula County, denying his motion for summary judgment. We affirm.

The sole issue on review is whether the District Court erred in denying Chance’s motion for summary judgment on the grounds that the statute of limitations was equitably tolled.

Carol Thomas Harrison (Harrison) went to work for Chance in September 1986. Harrison groomed and trained Chance’s horses and maintained and cleaned his bam. Harrison terminated her employment with Chance on March 17, 1987, following several alleged incidents of sexual harassment.

On September 28, 1987, Harrison filed a civil suit in the Fourth Judicial District Court, Missoula County, alleging various torts against Chance. On October 18, 1989, the District Court dismissed Harrison’s claim. The court determined that all allegations set forth in her complaint stemmed from the alleged sexual harassment by Chance. The court went on to conclude that, pursuant to § 49-2-509, MCA, a claimant alleging sexual harassment must exhaust his or her administrative remedies with the Montana Human Rights Commission. Because Harrison had not pursued her administrative remedies with the Human Rights Commission, the District Court dismissed her claim without prejudice.

Harrison appealed the District Court’s decision to this Court. In affirming the District Court, we concluded that § 49-2-509, MCA, provided Harrison’s exclusive remedy. Harrison v. Chance (1990), 244 Mont. 215, 797 P.2d 200 (Harrison I). We noted, in dicta, that due to the enactment of an amendment to § 49-2-509, MCA, between the time Harrison terminated her employment with Chance and the filing of her complaint in District Court, the 180-day statute of limitation for filing a claim with the Human Rights Commission may be equitably tolled. Harrison I, 797 P.2d at 208.

Harrison filed a complaint with the Human Rights Commission on December 20, 1990. The hearing examiner determined that, while more than 180 days had elapsed since Harrison’s discharge, the statute of limitations was equitably tolled. The hearing examiner relied on this Court’s dicta in Harrison I in tolling the statute of limitations.

Following a hearing, the hearing examiner held in favor of Harrison, awarding over $43,000 in lost wages and other damages. Chance appealed the decision of the Human Rights Commission to the Fourth Judicial District Court, Missoula County, arguing that Harrison’s claim was not timely filed and that the 180-day statute of limitations should not have been equitably tolled. Chance moved for summary judgment on these grounds. The court denied Chance’s motion for summary judgment, upholding the decision of the Human Rights Commission. Chance appeals the denial of his motion for summary judgment.

Did the District Court err in denying Chance’s motion for summary judgment on the grounds that the statute of limitations was equitably tolled?

We review a district court’s denial of a summary judgment motion de novo. Summary judgment is proper only when there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P; Minnie v. City of Roundup (1993), 257 Mont. 429, 849 P.2d 212.

Chance argues that Harrison’s claim with the Human Rights Commission should have been time-barred because she did not file her complaint within the 180-day statute of limitation. We disagree.

On March 17, 1987, the date of Harrison’s termination, an appeal to the Human Rights Commission was not Harrison’s exclusive remedy. Pursuant to our decision in Drinkwalter v. Shipton Supply Company, Inc. (1987), 225 Mont. 380, 732 P.2d 1335, an individual alleging sexual harassment could initiate proceedings directly in the district court without first filing a complaint with the Human Rights Commission. In Drinkwalter we stated:

If we were to decide the Human Rights Act provides the sole and exclusive remedy for all claims arising out of sexual harassment, we would also be imposing the 180 day statute of limitation found in § 49-2-501(2), MCA, on every possible remedy. ... We therefore find the imposition of the 180 day statute of limitations to be further proof of the legislature’s intent that the Human Rights Act not be the sole remedy for acts which also give rise to a cause of action independent of the statute.

Drinkwalter, 732 P.2d at 1339 (emphasis added).

However, on April 16,1987, after Harrison’s termination but prior to the filing of her initial complaint in District Court, a legislative amendment of § 49-2-509, MCA, went into effect. The amendment added the following provision to § 49-2-509, MCA:

(7) The provisions of this chapter establish the exclusive remedy for acts constituting an alleged violation of this chapter, including acts that may otherwise also constitute a violation of the discrimination provisions of Article II, section 4, of the Montana constitution or 49-1-102. No other claim or request for relief based upon such acts may be entertained by a district court other than by the procedures specified in this chapter.

This amendment effectively overruled this Court’s decision in Drinkwalter and mandated that the Human Rights Act was the sole and exclusive remedy for a sexual harassment cause of action.

Harrison proceeded with her case in District Court. The District Court dismissed her cause of action based on the amended language of § 49-2-509, MCA, set forth above. In affirming the District Court’s decision, we noted that Harrison might still be able to instigate an action with the Human Rights Commission despite the clear elapse of 180 days since the time of her discharge. We stated:

In Erickson v. Croft (1988), 233 Mont. 146, 760 P.2d 706, this Court looked favorably upon the doctrine of equitable tolling. Under that doctrine, the statute of limitations may be tolled when a party reasonably and in good faith pursues one of several possible legal remedies and the claimant meets three criteria:
“(1) timely notice to the defendant within the applicable statute of limitations in filing the first claim; (2) lack of prejudice to defendant in gathering evidence to defend against the second claim; and (3) good faith and reasonable conduct by the plaintiff in filing the second claim.”
Erickson, 233 Mont. at 150-51, 760 P.2d at 708. In Erickson, we found no need to adopt equitable tolling because the appellant faded to meet the first criteria; the first claim did not give adequate notice of the second claim. Erickson, 233 Mont. at 152, 760 P.2d at 709.
Under the facts of this case, the doctrine of equitable tolling may be appropriate if Harrison refiles her claim with the Human Rights Commission. Unlike Erickson, here the District Court claim may give Chance adequate notice of a claim before the Commission.
Furthermore, in filing with the District Court, the appellant appears to have relied reasonably and in good faith upon this Court’s holding in Drinkwalter. As a case of first impression holding that the legislature overruled Drinkwalter, this case should not prevent the appellant from having her substantive claims heard by the Human Rights Commission.

Harrison I, 797 P.2d at 208.

First, we note that at the time of the alleged torts, Harrison had two legal remedies. Pursuant to our decision in Drinkwalter, Harrison was entitled to file her claim in District Court or pursue her administrative remedies with the Human Rights Commission. Unlike our recent decision in Hash v. U.S. West (1994), 268 Mont. 326, 886 P.2d 442, Harrison reasonably and in good faith pursued one of two potential legal remedies. We declined to apply the doctrine of equitable tolling in Hash because at the time of Hash’s claim, the legislature had already amended § 49-2-509, MCA, and this Court had handed down its decision in Harrison I in which we determined that the amended language of § 49-2-509(7), MCA, precluded bringing sexual harassment claims in district court. Hash, 886 P.2d at 446. Therefore, Hash had only one legal remedy, that being to file her claim with the Human Rights Commission. Hash is thus clearly distinguishable from this case.

Harrison relied reasonably and in good faith on this Court’s holding in Drinkwalter. A review of our decision in Harrison I reveals Harrison reasonably believed that the amended version of § 49-2-509, MCA, either was inapplicable to her claims or, if applicable, would not apply because the alleged torts occurred before the effective date of the statute.

Harrison filed her initial claim within the applicable statute of limitation. The final tort allegedly occurred on March 17, 1987, the day Harrison terminated her employment with Chance. Harrison filed her complaint in District Court on September 28, 1987. Such a filing was well within the applicable three-year tort statute of limitations. Section 27-2-204, MCA. Chance argues that, under Erickson v. Croft (1988), 233 Mont. 146, 760 P.2d 706, Harrison had a duty to file her complaint within 180 days, the statute of limitations applicable for a Human Rights Commission claim.

Even if such an interpretation of Erickson is correct, we conclude that Harrison satisfied the 180-day filing requirement. Prior to the amendments to § 49-2-509, MCA, Harrison was entitled to file her complaint in District Court. Only after § 49-2-509, MCA, was amended was Harrison required to file with the Human Rights Commission. The amendment to § 49-2-509, MCA, went into effect on April 16, 1987. The 180-day statute of limitations therefore commenced running on the effective date of the statute, not on March 17, 1987. Harrison filed her initial claim in District Court within 180 days of the April 16 effective date of the amendment. Harrison therefore satisfied the Human Rights Commission statute of limitation as well as the tort statute of limitation.

A review of the record reveals that Chance was not prejudiced in gathering evidence to defend against the claim filed with the Human Rights Commission. Extensive discovery took place in conjunction with Harrison’s initial complaint filed in District Court. Chance submitted depositions to the hearing examiner and testified telephonically at the hearing. The record does not support Chance’s allegations that he was prejudiced by Harrison’s delayed filing with the Human Rights Commission.

Finally, it is clear to this Court that Harrison acted in good faith in filing her claim with the Human Rights Commission. Harrison justifiably relied on this Court’s holding in Drinkwalter in pursuing her District Court claim. After we determined that her claim was subject to the amended version of § 49-2-509, MCA, Harrison promptly filed her claim with the Human Rights Commission. Harrison demonstrated reasonable conduct and good faith throughout these proceedings.

We conclude that equitable tolling is applicable to the facts and circumstances of this case and that Harrison has satisfied the elements necessary to invoke equitable tolling as discussed in Erickson. We therefore hold that there are no genuine issues of material fact and Harrison is entitled to a judgment as a matter of law. We affirm the decision of the District Court.

JUSTICES GRAY, NELSON, TRIEWEILER and LEAPHART concur.


author: JUSTICE WEBER

text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. RONALD EVANS, Defendant and Appellant.
    No. 95-105.
    Submitted on Briefs May 11, 1995.
    Decided July 13, 1995.
    52 St.Rep. 593.
    272 Mont. 58.
    899 P.2d 1073.

      For Appellant: Jeffrey T. Renz, Montana Defender Project, Univeristy of Montana, School of Law, Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Cregg Coughlin, Assistant Attorney General, Helena; Robert McCarthy, Silver Bow County Attorney, Brad Newman, Deputy Silver Bow County Attorney, Butte.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a designation as dangerous offender by the Second Judicial District Court, Silver Bow County. We remand so the court can articulate its reasons for entering this designation.

The following issues are dispositive of the case:

I. Did the District Court err in relying upon the evidence found in the case record for its designation of dangerous offender?

II. Did the District Court err in failing to articulate its reasons for designating Evans a dangerous offender?

On August 30, 1994, a vehicle driven by Ronald Evans (Evans) veered into the on-coming lane and collided head on with another vehicle driven by Sonnie Holm (Holm). Holm and another adult passenger were seriously injured. The passenger’s five month old baby sustained serious head injuries and eventually died as a consequence of the accident.

Evans, whose blood alcohol was .164 an hour after the accident, was charged with one count of negligent vehicular homicide, a felony and two counts of negligent vehicular assault, a misdemeanor. Evans initially pled not guilty, but later changed his plea to guilty pursuant to an agreement with the State.

Evans was freed on bond, but following a disturbance in a vacant lot in Butte, Evans was charged with disorderly conduct and his bond was revoked. He was remanded to the county jail.

On November 21, 1994, the District Court sentenced Evans to ten years on the negligent homicide count and six months on each count of negligent vehicular assault, all time to run concurrently. Evans was also ordered to pay $1,000 fine and $10,000 restitution. Evans was remanded to the custody of the Department of Corrections with a recommendation that he be placed at the Montana State Prison. The court also designated Evans a dangerous offender for purposes of parole eligibility.

Evans filed his appeal on January 12,1995, appealing his dangerous offender designation.

I.

Did the District Court err in relying upon the evidence found in the case record for its designation of dangerous offender?

Appellant argues that the record does not contain sufficient evidence that he is a dangerous offender. The State disagrees.

Under § 46-18-404, MCA, “an individual may be designated a dangerous offender, if, in the discretion of the sentencing court, he is determined to represent a substantial danger to other persons or society; however, more than a mere recital of the statutory language is required. ...” [citations omitted.] Our review of the record here indicates that the District Court failed to articulate its reasons for the dangerous offender designation. ...
Where the record below reveals substantial evidence to support a sentencing court’s determination that an offender is dangerous, this Court has remanded the cause to the district judge for findings to support such a conclusion.

State v. Belmarez (1991), 248 Mont. 378, 381, 812 P.2d 341, 342-43.

The record here indicates that Evans has a dismal and extensive juvenile criminal record. At the time of sentencing Evans was 18 years of age and had already been involved in a negligent vehicular homicide. The felony occurred because Evans was intoxicated while driving and swerved into the oncoming lane of traffic.

Further, the record indicates that while out of jail on bail bond during the vehicular homicide proceedings, he was again arrested for disorderly conduct and resisting arrest. The court indicated that Evans was “incorrigible” and the record bears this out. Further, the record also reflects that he has not sought help with his drinking problem, but continues to drink without considering the consequences of his actions. Nor does he show remorse for the lives that he negatively impacts. These facts are contained in the record and the court should have noted them, all or in part, for its determination that he represented a danger to society.

We hold that the record contains substantial evidence from which the District Court could have drawn support for its dangerous offender designation.

II.

Did the District Court err in failing to articulate its reasons for designating Evans a dangerous offender?

Evans argues on appeal that the court did not articulate the reasons that it found him to be a dangerous offender. According to Evans, the court had to specifically state why it found him to be a danger to society and could not just mimic the wording of § 46-18-404(l)(b), MCA.

The State argues that the court’s statements were adequate according to the statute and our case law.

Section 46-18-404(1), MCA, states in pertinent part:

(1) .... [T]he sentencing court shall designate an offender a non-dangerous offender for purposes of eligibility for parole under part 2 of chapter 23 if:
(a) during the 5 years preceding the commission of the offense for which the offender is being sentenced, the offender was neither convicted of nor incarcerated for an offense committed in this state or any other jurisdiction for which a sentence to a term of imprisonment in excess of 1 year could have been imposed; and
(b) the court has determined, based on any presentence report and the evidence presented at the trial and the sentencing hearing, that the offender does not represent a substantial danger to other persons or society.

This statute governs the designation of both nondangerous and dangerous offenders. State v. Wing (1994), 264 Mont. 215, 870 P.2d 1368.

In making a dangerous designation, the court should consider the defendant’s persistence in criminal conduct, the defendant’s failure with earlier discipline to deter or reform him and whether the defendant is a substantial danger to others or society. State v. Nichols (1986), 222 Mont. 71, 720 P.2d 1157. Also to be considered is the vicious nature of the crime engaged in. Belmarez, 248 Mont. at 382, 812 P.2d at 343.

In making the dangerous offender designation, the district courts must articulate their reasons for imposing a dangerous designation; a mere recital of the statutory language will not be sufficient because we cannot review the court’s discretion based upon a mere repetition of the statutory directives. Belmarez, 248 Mont, at 381, 812 P.2d at 343. When a court fails to state its specific reasons and substantial evidence exists for such a finding, we will remand the case in order that the court follow the proper procedure. Belmarez, 248 Mont. at 381, 812 P.2d at 343.

Here, the court made the following conclusions in its judgment:

That Defendant Ronald Evans is a dangerous offender and is currently a threat to society and confinement in the Montana State Prison in Deer Lodge, Montana is necessary and appropriate for the protection of society and particularly the rehabilitation of the Defendant.
That the Defendant Ronald Evans has been sentenced to Montana State Prison after this Court has fully considered the gravity of the offenses, the punishment permitted by law, the deterrent effect on others, the protection of society while the Defendant is incarcerated, and the possibilities, or lack thereof, of rehabilitation of this Defendant and the Pre-Sentence Report. The Court has also considered the Motive of the Defendant in committing the crime, his lack of cooperation with officials and mitigating circumstances. The age of the Defendant and the Defendant’s prior criminal record, including his juvenile record, were also taken into consideration along with the Defendant’s lifestyle and his lack of significant goals or work history.

This is merely repetition of the elements as stated in statutory directives and case law. It is not sufficient.

The State argues that this case is analogous to State v. Buckman (1989), 236 Mont. 37, 768 P.2d 1361. There, the court gave the following reasons for making the dangerous offender designation:

The defendant, since he was 18 years old, has been involved with the criminal law. In 1979, he was given a three (3) year deferred sentence for auto theft. In 1980, he was convicted, by a jury, of Aggravated Assault and Aggravated Kidnapping, felonies, and was given two ten (10) year terms which ran concurrently and was designated a Dangerous offender. He was released from the Montana State Prison in February, 1987 and committed the crime of Deceptive Practices, a felony, by stealing and using stolen credit cards.
The defendant has demonstrated no evidence or effort to rehabilitate himself and is addicted to alcohol and drugs. His incarceration is necessary for long term in-patient treatment for alcohol and drugs and for the protection of the public.

Buckman, 236 Mont. at 40-41, 768 P.2d at 1363. The Buckman court gave specific facts taken from the record of the case as reasons for making its decision. Buckman is not analogous to the case at hand.

While the court here made its decision “pursuant to Findings and Conclusions set forth above” such is not sufficient reasoning for our review.

Remanded for further proceedings consistent with this opinion.

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


author: JUSTICE LEAPHART JUSTICE GRAY JUSTICE WEBER

text:
    LORI INDENDI, Plaintiff and Appellant, v. “DOC” WORKMAN and CHRYSTAL WORKMAN, Defendants and Respondents.
    No. 94-208.
    Submitted on Briefs March 9, 1995.
    Decided July 25, 1995.
    52 St.Rep. 644.
    272 Mont. 64.
    899 P.2d 1085.

      For Appellant: Karl Knuchel, Attorney at Law, Livingston.
    For Respondents: Michael C. Coil; Angel, Serenar, Coil, Bartlett & Fay, Bozeman.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

The Fifth Judicial District Court, Madison County, directed a verdict in favor of “Doc” Workman and his daughter Chrystal Workman (the Workmans) and against Lori Indendi (Indendi). Indendi appeals. We affirm in part and reverse and remand.

The following issue is dispositive of the case:

Did the District Court err by directing a verdict for the Workmans and against Indendi following Indendi’s case-in-chief concerning the issues of negligence, res ipsa loquitur, and negligence per se?

The Workmans own a home and thirty-three acres between the Madison River and Highway 84, a federal-aid primary highway. The land is split into three pastures. All of the pastures are bordered to the north by the Madison River. Pasture #1 is located closest to Norris, Montana. Bureau of Land Management (BLM) land borders pasture #1 to the south and Highway 84 borders the BLM land to the south. Pasture #2 is the middle pasture with the smallest amount of acreage. The Workmans’ family home is located in pasture #2 and the Workmans’ driveway travels out of pasture #2 to the south, connecting with Highway 84. A two-wire electric gate controls the access between the driveway and pasture #2. Both sides of the Workmans’ driveway are bordered by BLM land. Pasture #3 is the largest of the pastures and is closest to Bozeman, Montana. Highway 84 bisects pasture #3 and State and BLM land border pasture #3.

On August 10, 1991, after Chrystal Workman and a friend had finished riding horses for the day, they took one horse to pasture #3 leaving the other horse, a palomino, and a mule in pasture #2. Upon their return from pasture #3, Chrystal and her friend noticed that the palomino and the mule were missing and the electric gate at the beginning of the driveway was broken. It is theorized that the mule broke through the gate and the horse and mule left pasture #2 and headed for the highway.

That night, Indendi was travelling from Bozeman on Highway 84 in her 1969 Volkswagen bus when, in the path of her vehicle, she saw two eyes reflecting off of her headlights. Indendi swerved, applied her brakes and successfully missed hitting the animal. Another animal, however, was just behind and to the right of the first one. Indendi was unable to miss the second animal, the Workmans’ palomino horse. Indendi hit the palomino, killing it instantly; Indendi suffered personal injuries and totalled her vehicle.

Indendi subsequently filed a complaint in the District Court alleging that the Workmans were negligent and in violation of several statutory provisions relating to fencing, herding livestock and an open range exception. The Workmans counter-claimed for the loss of the horse. After Indendi presented her case, the District Court directed a verdict in favor of the Workmans.

Standard of Review

The law does not favor directed verdicts. Sweet v. Edmonds (1976), 171 Mont. 106, 109, 555 P.2d 504, 506. The district court may grant a directed verdict only when it appears that the non-moving party cannot recover on any view of the evidence, including the legitimate inferences drawn from that evidence. Barrett v. Larsen (1993), 256 Mont. 330, 335, 846 P.2d 1012, 1016. With these principles in mind, we examine whether the District Court properly granted a directed verdict in favor of the Workmans.

Did the District Court err by directing a verdict for the Workmans and against Indendi following Indendi’s case-in-chief concerning the issues of negligence, res ipsa loquitur, and negligence per se? We consider the legal theories put forth by the parties separately.

Negligence

Indendi argues that the District Court made certain factual assumptions that are not supported by the record. Indendi claims that the assumptions made by the court allowed the court to determine that the Workmans had no liability under the law and, without a duty to Indendi, the Workmans could not be found negligent. According to Indendi, the fallacy in this reasoning results from the fact that the District Court made the assumption that the Workman ranch and the surrounding land was “open range.” Further, the court assumed that the property was essentially fenced land. Indendi asserts that neither of these facts had been proven and, therefore, the Workmans do not fit within the statutory exclusion assessing liability to owners of livestock which wander onto federal-aid primary highways. Indendi argues that the court incorrectly directed a verdict because there were issues of fact for the jury to decide.

The Workmans argue that the highway involved here has been designated as open range by this Court in prior cases. Jenkins v. Valley Garden Ranch, Inc. (1968), 151 Mont. 463, 443 P.2d 753 (involving Highway 287-A); Estate of Bartsch (1967), 149 Mont. 405, 427 P.2d 302 (involving Highway 289). The Workmans do, however, concede that Highway 84 is part of the federal-aid primary system and that when a highway is part of the federal-aid primary system the open range doctrine does not apply unless they can satisfy the statutory exception set forth in § 60-7-202, MCA. The Workmans argue that because their land is substantially fenced, has no livestock device, and sits within the open range, that they do fall under the exclusionary language of § 60-7-202(2), MCA, and they, therefore, do not have a duty to keep their livestock from the highway.

After Indendi had submitted her case, the District Court directed that a verdict be entered for the Workmans. In directing a verdict for the Workmans, the District Court concluded that the evidence submitted by Indendi demonstrated that this was open range and that the exclusion contained in § 60-7-202(2), MCA, applied. Our careful review of the record demonstrates that there was no factual basis for that directed verdict.

The court correctly stated that the following statutes are applicable to the facts of the case:

60-7-201. Grazing livestock on highway unlawful. Aperson who owns or possesses livestock may not permit the livestock to graze, remain upon, or occupy a part of the right-of-way of:
(1) a state highway running through cultivated areas or a part of the fenced right-of-way of a state highway if in either case the highway has been designated by agreement between the highway commission and the secretary of transportation as a part of the national system of interstate and defense highways; or
(2) a state highway designated by agreement between the highway commission and the secretary of transportation as a part of the federal-aid primary system, except as provided in 60-7-202.
60-7-202. Exclusions. Section 60-7-201 does not apply to the following:
(1) livestock on state highways under the charge of one or more herders;
(2) the parts of fenced highways adjacent to open range where a highway device has not been installed to exclude range livestock',
(3) the parts of a state highway or a part of the federal-aid primary system which the department of transportation designates as being impracticable to exclude livestock. These portions of the highway shall be marked by proper signs in accordance with the department’s manual and specifications for a uniform system of traffic-control devices.
60-7-203. Penalty. A person who violates 60-7-201 is guilty of a misdemeanor and is subject to a fine of not less $5 or more than $100 for each offense. In a civil action for damages caused by collision between a motor vehicle and a domestic animal or animals on a highway brought by the owner, driver, or occupant of a motor vehicle or by their personal representatives or assigns or by the owner of livestock, there is no presumption or inference that the collision was due to negligence on the part of owner or the person in possession of the livestock or the driver or owner of the vehicle. [Emphasis added.]

The court found that Indendi had not made a prima facie case for negligence because no duty existed on the part of the Workmans. The court, however, based this assessment on the Workmans’ ability to meet the exclusionary provisions of subsection (2) of § 60-7-202, MCA, as it relates to the owners of livestock and their statutory responsibility to keep their animals from federal-aid highways. The record does not support the corut’s findings with regard to the Workmans’non-liability. The District Court reasoned as follows:

The record in this case without dispute was that Defendants’ property is open range [sic]. It consists of sporadically fenced land belonging to the Bureau of Land Management (hereinafter referred to as BLM) and the State. Livestock graze and move about generally unrestrained by fences.

The factual statements in the court’s memorandum and order are not substantiated by the record before us.

In the court’s memorandum, written to support its determination that the Workmans did fall under the exclusion of § 60-7-202(2), MCA, and therefore did not have a duty to keep livestock on their ranch, the District Court distinguished this case from the facts of Ambrogini v. Todd (1982), 197 Mont. 111, 642 P.2d 1013, which stated:

We find that exclusion number two [of § 60-7-202, MCA] applies only to livestock which wander from open range onto adjacent fenced highway. Open range is defined in section 60-7-102, MCA, as being an area where animals graze and move about generally unrestrained by fences. Todd’s heifers were restrained by fences prior to breaking free and roaming onto Highway 10. Therefore, exclusion number two is inapplicable. ...
We hold that Todd has a legal duty to exercise due care in preventing his livestock from wandering on Highway 10.
The fence surrounding the Todd ranch was in excellent condition. ... Through some inadvertent action, the gate to the lane was open on the night of May 2, 1979, and early morning of May 3, 1979. The reasonableness of Todd’s conduct is for a jury to decide.

Ambrogini, 642 P.2d at 1019. The District Court noted that Ambrogini did not include an “open range” consideration as does the present case. Yet the District Court here failed to recognize that, in this case as in Ambrogini, the animals had been confined before they broke through the gate or fence.

While the District Court distinguished Ambrogini from the case at hand based upon the “open range” land that appears in the current case, the evidence presented in Indendi’s case did not establish that the land in question was “open range.” Without such a distinction, the facts of Ambrogini are so close to those in this case, that it is pertinent authority and a directed verdict was inappropriate.

The directed verdict was based upon an application of the statutory exclusion to the requirement that an owner of livestock may not permit his livestock to graze upon a state highway designated for the federal-aid primary system. That exclusion is set forth in § 60-7-202(2), MCA. In order to come within the terms of that exclusion, a party must show: (1) that the highway in question was “fenced;” (2) that it was adjacent to open range; and (3) a highway device had not been installed to exclude range livestock. Section 60-7-202(2), MCA. The record before us does not support a finding that Highway 84 was fenced, nor does it support a finding that Highway 84 was adjacent to open range.

Section 60-7-102, MCA, specifically defines open range as follows:

(4) “Open range” means those areas of the state where livestock is raised and maintained in sufficient numbers as to constitute a significant part of the local or county economy and where such animals graze and move about generally unrestrained by fences.

There is no evidence in the record before us to establish that livestock were raised in sufficient numbers to constitute a significant part of the economy. In addition there is no evidence which establishes that such animals graze and move about generally unrestrained by fences.

In the absence of proof that the land was open range, and the further absence of proof establishing that Highway 84 was a “fenced highway,” the court could not properly direct a verdict premised upon the Work-mans’ satisfaction of the duty exclusion of § 60-7-202(2), MCA.

A directed verdict for the Workmans was possible only if Indendi’s case demonstrated that no other outcome was possible. Clearly that test was not met here as there was no factual basis for the entry of the directed verdict for the Workmans.

We hold that the District Court erred in directing a verdict for the Workmans.

Res Ipsa Loquitur

Indendi argues that the theory of res ipsa loquitur applies to the facts of this case and that the court incorrectly dismissed this theory from her complaint. The Workmans argue that the court correctly determined that res ipsa loquitur is improper because § 60-7-203, MCA, disallows any presumptions of negligence in accidents between livestock and vehicles.

Section 60-7-203, MCA, eliminates any presumptions that might arise from the type of accident which occurred here. Without a presumption of liability, res ipsa loquitur, which is itself a presumption of negligence so long as certain conditions are met, is inappropriate. The court correctly struck Count V from Indendi’s complaint based upon its conclusion that this theory of law did not apply to the case. Thus, we affirm the court’s conclusion in this regard and further action in this case should not include the theory of res ipsa loquitur.

Negligence per se

Indendi argues that the fences constructed by the Workmans around their 33-acre tract did not constitute a legal fence — the Workmans used an electrified fence which consisted of a one-wire electrified strand with a two-wire electrified strand gate. Indendi relies on the legal fence definition in § 81-4-101, MCA, and contends that because the Workmans did not maintain a legal fence as described in § 81-4-101, MCA, the violation of that statute is negligence per se.

Section 81-4-101, MCA, is the first section in that portion of the Montana Code broadly pertaining to the “Containment of Livestock.”

81-4-101. Legal fences defined. Any one of the following, if not less than 44 inches or more than 48 inches in height, shall be a legal fence in the state of Montana:
(1) all fences constructed of at least three barbed, horizontal, well-stretched wires, the lowest of which must not be less than 15 inches or more than 18 inches from the ground, securely fastened as nearly equidistant as possible to substantial posts firmly set in the ground or to well-supported leaningposts not exceeding 20 feet apart or 33 feet apart where two or more stays or pickets are used equidistant between posts. All corral fences which are used exclusively for the purposes of enclosing stacks which are situated outside of any lawful enclosure shall not be less than 16 feet from such stack so enclosed and shall be substantially built with posts not more than 8 feet distant from each other and not less than five strands of well-stretched barbed wire and shall not be less than 5 or more than 6 feet high. Any kind of a fence equally as effectual for the purpose of a corral fence may be made in lieu thereof.
(2) all fences constructed of any standard woven wire not less than 28 inches in height, securely fastened to substantial posts not more than 30 feet apart, provided that two equidistant barbed wires shall be placed above the same at a height of not less than 48 inches from the ground;
(3) all other fences made of barbed wire, which shall be as strong and as well calculated to protect enclosures as those above described;
(4) all fences consisting of four boards, rails, or poles with standing or leaning posts not over 17 feet and 6 inches apart, provided that, if leaning posts are used, there shall be a pole or wire fastened securely on the inside of the leg or support of such leaning post;

(5) all rivers, hedges, mountain ridges and bluffs, or other barriers over or through which it is impossible for stock to pass. Section 81-4-101, MCA.

In VanLuchene v. State (1990), 244 Mont. 397, 401, 797 P.2d 932, 935, we set forth the five criteria necessary in order to establish that a defendant was negligent as a matter of law. Those criteria are as follows:

1. The defendant violated the particular statute.
2. The statute was enacted to protect a specific class of persons.
3. Plaintiff is a member of that class.
4. Plaintiff’s injury is of the sort the statute was enacted to prevent.
5. The statute was intended to regulate members of defendant’s class.

It is apparent that the whole purpose for the legislature’s requiring fences to be constructed in a certain manner is to insure, to the extent possible, that livestock not on open range are adequately confined and are not free to roam and to cause harm to persons and property or to breed with the livestock of others. There could be no other purpose for that sort of legislation.

In 1933, the legislature enacted § 81-4-102, MCA, allowing for the construction and maintenance of vehicle passes in legal fences in the explicit or, at least, implicit recognition that automobiles were using highways protected by or adjacent to legal fences. Indeed, it is reasonable to conclude that the legislature has not further amended § 81-4-102, MCA, because it recognizes the reality that one of the purposes of a legal fence is to keep livestock off the roadways of this state and that no amendments to the statute are required to afford that protection to the motoring public. There is nothing in the statute which would preclude its application in proving negligence per se in connection with a livestock/vehicle accident.

Section 81-4-101, MCA, was not enacted simply to prevent injury to livestock. Section 81-4-103, MCA, provides:

Civil liability. Any person constructing or maintaining any fence of any kind not described in 81-4-101 is liable in a civil action for all damages caused by reason of injury to stock resulting from such defective fence.

There is nothing in the wording of that statute which limits the civil liability of the owner of a defective fence to injury to livestock. While the statute specifically provides for civil liability for one sort of injury — i.e. to livestock — it does not, in any way, preclude liability for other types of injuries to persons or property resulting from the livestock owner’s failure to properly contain his or her animals by means of a legal fence. We hold that violation of § 81-4-101, MCA, can be the basis for a finding of negligence per se when that violation results in injury to a motorist or passenger traveling on the highways.

Finally, the record establishes that Indendi did present sufficient evidence of negligence per se under the VanLuchene test. Starting with the premise, as we have, that § 81-4-101, MCA, was enacted to require the containment of livestock by means of a ‘legal fence” and, thereby, to prevent, among other harm, livestock/vehicle accidents, Indendi presented evidence that the Workmans violated the statute by failing to construct a legal fence; that she was a motorist using the highway adjacent to lands owned by the Workmans, lands required to be legally fenced to prevent the escape of their livestock; and that she suffered personal injuries in a vehicle collision with the Work-mans’ livestock that escaped through their defective fence onto the highway. In doing so, Indendi sufficiently established the elements of negligence per se as set forth in VanLuchene. On retrial of this matter, we do not preclude a defense that the Workmans’fence was damaged or tampered with where the evidence supports such a finding.

We reverse and remand and instruct the District Court to empanel a jury to hear the case.

JUSTICES HUNT, TRIEWEILER and NELSON concur.

JUSTICE GRAY

specially concurring.

I concur in the Court’s opinion regarding negligence and res ipsa loquitur. I specially concur in the result the Court reaches on whether a violation of § 81-4-101, MCA, is negligence per se, even though I do not agree with all that is said on that subject. My concurrence in the result is based on the fact that the Workmans’ arguments in this regard are unpersuasive.

The Workmans advance only two arguments with regard to the applicability of § 81-4-101, MCA. First, they argue that application of negligence per se based on a violation of the “legal fence” statute is inconsistent with the prohibition in § 60-7-203, MCA, against presumptions or inferences of negligence on the part of a livestock owner in a civil action involving a vehicle-domestic animal accident on the highway. It is my view that no inconsistency exists. In an ordinary negligence action, the plaintiff must prove the existence of a legal duty and a breach of that duty; it is to those elements of an ordinary negligence action which the § 60-7-203, MCA, prohibition against inferences and presumptions of negligence relates.

Negligence per se is a separate theory of liability premised on the violation of a statute. In a negligence per se claim, the plaintiff need not establish the existence of a duty and a breach of that duty. Where a statute applies, the plaintiff need only establish that the defendant violated the statute and then prove that the damage or injury was caused by the statutory violation. Inferences or presumptions of negligence have no bearing on a negligence per se claim. Thus, I would reject the Workmans’ first argument regarding the applicability of § 81-4-101, MCA, in this case.

The Workmans’ second argument is equally unpersuasive. They argue that the definition of a legal fence in Montana is ambiguous because of the existence of two statutes, §§ 81-4-101 and 81-4-203, MCA, on the subject. Section 81-4-101, MCA, as set forth in its entirety in the Court’s opinion, sets forth the types offences which “shall be a legal fence in the state of Montana[;]” those fences include, among others, fences constructed of “at least three barbed, horizontal, well-stretched wires” of certain heights. The Workmans point out that § 81-4-203, MCA, references fences “of not less than two wires in good repair.” On this basis, they argue that the definition of a legal fence is ambiguous and, therefore, that their gate complies with at least part of the definition.

The flaw in this argument is that, by its terms, § 81-4-203, MCA, applies only vis-a-vis certain other statutes. The limiting language states: “In 81-4-204, 81-4-207, and 81-4-208,” certain subsequent definitions apply; the “fence of not less than two wires in good repair” language follows the limiting introductory language of § 81-4-203, MCA. The statutes referred to in § 81-4-203, MCA, are not involved in the case before us. Thus, I would reject the Workmans’ second argument regarding the applicability of § 81-4-101, MCA.

JUSTICE WEBER

concurs and dissents as follows:

I concur with the opinion’s analysis under the Negligence issue and its holding that the District Court erred in directing a verdict for the Workmans. In a similar manner, on Res Ipsa Loquitur, I agree with the affirmation of the District Court’s conclusion that the case should not include the theory of res ipsa loquitur.

Negligence Per Se

I dissent from the holding that a violation of § 81-4-101, MCA, can be a basis for a finding of negligence per se in this case. The opinion sets forth § 81-4-101, MCA, with its definition of a legal fence. Note that as to a barbed wire fence, at least three barbed, horizontal, well-stretched wires are required, together with additional provisions. I emphasize this because of other code sections later mentioned which do not limit a barbed wire fence to three wires.

The opinion then refers to § 81-4-103, MCA, and its statement that any person maintaining a fence which is not a legal fence is liable for damages such as “injury to stock.” The opinion then concludes there is nothing in that reference which precludes liability from other types of injuries to persons or property resulting from a livestock owner’s failure to contain animals by means of a legal fence. The opinion then concludes that while § 103 provides for civil liability for one sort of injury, it does not preclude liability for other types of injuries. This is followed by the holding which in substance states that § 81-4-101, MCA, establishes a basis for negligence per se in this case. I suggest this analysis fails to adequately consider other Montana statutes.

Part 2 of Chapter 4 of Title 81 sets forth a number of provisions regarding animals unlawfully running at large. Section 81-4-203, MCA, provides as follows:

81-4-203. Open range defined. In 81-4-204, 81-4-207, and 81-4-208, the term “open range” means all lands in the state of Montana not enclosed by a fence of not less than two wires in good repair. ... (Emphasis supplied.)

Note that a two-wire barbed wire fence which converts open range land is not adequate to constitute a ‘legal fence.”

Section 81-4-204, MCA, makes it unlawful to allow certain described animals to run at large on the open range. In a similar manner, subsequent sections refer to such things as castration of animals running at large on the open range, killing of animals running at large on open range, unlawfully allowing bulls other than purebred bulls to run on open range. It therefore is clear that for the purposes of part 2, Chapter 4 of Title 81, a two wire fence in good repair is sufficient to change land from open range and to establish liability for different purposes — all without any reference to “legal fence” as defined in 81-4-101. The result is that property owners could maintain a two-wire fence in good repair and thereby protect themselves from claims under such part 2 of Chapter 4. Nonetheless, the same party could be held liable for the same claims on a different theory — that used in the present case — that the two-wire fence in good repair was still not a legal fence and therefore the owner was guilty of negligence per se. This is a significant contradiction.

Later sections in this same part demonstrate that the legislature can refer to ‘legal fence” when it desired to do so. In § 81-4-215, MCA,, the owner of various described animals is liable for damages resulting from these animals breaking into an enclosure where the fence is legal. In a similar manner, § 81-4-217, MCA, provides that if an animal breaks into an enclosure “surrounded by a legal fence” and is wrongfully on the premises, the owner may be held liable for damages. It is therefore apparent that the legislature has made a reference to legal fence when it finds it reasonable or necessary to do so.

Chapter 7 of Title 60 entitled Livestock on Highways, was enacted in 1974. As a part of its purposes it states:

60-7-101. Purpose. It is the purpose of 60-7-101 through 60-7-103 to balance the tradition of the open range and the economic and geographic problems of raising livestock with the need for safer highways and the policy of taking all feasible measures to reduce the high incidence of traffic accidents and fatalities on Montana highways.

The following section also contains a somewhat different definition of “open range” as compared to § 81-4-203, MCA:

60-7-102. Definitions. As used in 60-2-208 and 60-7-101 through 60-7-103, the following definitions apply:
(4) “Open range” means those areas of the state where livestock is raised and maintained in sufficient numbers as to constitute a significant part of the local or county economy and where such animals graze and move about generally unrestrained by fences. (Emphasis supplied.)

Note that the legislature failed to provide that generally unrestrained by fences meant unrestrained by “legal fences.”

Section 60-7-103, MCA, places upon the Department of Transportation the responsibility to fence the right-of-way of the state highway system in various places where it is constructed through open range. While there are a number of statutory requirements that the Department shall erect fences, there is no references to ‘legal fence.” I conclude that in its direct consideration of the issue of livestock and highway usage, the legislature made no reference to a need to.comply with the “legal fence” definition. Under the opinion analysis in this case, if any of the fences constructed by the Department do not meet the ‘legal fence” definition of § 81-4-101, MCA, then the Department and State of Montana are subject to liability for any injury resulting from failure to construct legal fences throughout Montana.

While not a matter of record, it is common knowledge that electrified fences have been used throughout Montana for a number of years as a means of containing livestock. Electrified fences as commonly used do not meet the requirements of § 81-4-101, MCA. It will come as a shock to many livestock owners in the State of Montana to find that they are negligent per se in the use of electrified fences which fail to meet the legal fence definition of § 81-4-101, MCA, which requires three barbed, horizontal, well stretched wires, securely fastened as nearly equal distant as possible to substantial posts and with other additional provisions.

I therefore conclude that §. 81-4-101, MCA, defines various types of legal fences but does not exclude from the definition of legal fences all other types of fences not therein described. Under the facts of this case, it still would be possible that Indendi could prove negligence on the part of the Workmans in the construction of a single wire electrified fence, but that should remain as an issue of fact to be determined in the course of trial.

I would therefore hold that plaintiff Indendi has failed to prove negligence per se. As a result I dissent from this portion of the opinion.

CHIEF JUSTICE TURNAGE concurs in the foregoing dissent.


author: JUSTICE WEBER JUSTICE NELSON

text:
    VICTORIA KLOEPFER, Petitioner and Appellant, v. LUMBERMENS MUTUAL CASUALTY CO., Insurer and Respondent for BECHTEL CONSTRUCTION CO., Employer and Respondent.
    No. 94-336.
    Submitted on Briefs March 16, 1995.
    Decided July 25, 1995.
    52 St.Rep. 663.
    272 Mont. 78.
    899 P.2d 1081.

      For Appellant: James G. Edmiston, III, Billings.
    For Respondent: Steven S. Carey, Garlington, Lohn & Robinson, Missoula.
    For Amicus: Patrick R. Sheehy, Halvorson, Sheehy & Plath, Billings (Montana Trial Lawyers Association).
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from the Order Awarding Costs of the Workers’ Compensation Court which disallowed as a recoverable cost the expert witness fee of $750 charged for the deposition testimony of Victoria Kloepfer’s treating physician. We reverse.

The only question on appeal is whether the Workers’ Compensation Court erred when it disallowed the payment of $750 as the fee charged by claimant’s treating physician for the taking of a deposition based upon the Witty rationale.

Victoria Kloepfer (Kloepfer) sustained an injury to her back on April 14, 1992, while undergoing physical therapy at the Billings Clinic Work Hardening Center (Clinic) where she was undergoing treatment for an existing occupational disease of her arm. Kloepfer’s physician, Peter V. Teal, M.D., testified that she had in fact injured her back at the Clinic. Dr. Teal’s testimony was presented to the court by way of a deposition taken in his office on September 14, 1993, for which he charged Kloepfer $750.

Although several other doctors testified for the insurer that Kloepfer had not been injured at the Clinic, the Workers’ Compensation Court relied on Dr. Teal’s deposition and found that Kloepfer had been injured at the Clinic.

The Workers’ Compensation Court ordered that Kloepfer receive occupational disease benefits and medical and hospital benefits for her back injury. The court also awarded Kloepfer her costs. The court permitted the costs of medical records but denied Kloepfer the $750 cost for Dr. Teal’s deposition fee.

Kloepfer filed a Request for Redetermination of Costs and the parties further briefed the issue. The court again denied the $750 stating that “irrespective of past practice” it had to follow the directives set out in Witty v. Pluid (1986), 220 Mont. 272, 714 P.2d 169; and Baeta v. Don Tripp Trucking (1992), 254 Mont. 487, 839 P.2d 566.

Kloepfer appeals the Workers’ Compensation Court’s denial of the $750 for Dr. Teal’s deposition.

Did the Workers’ Compensation Court err when it disallowed as a recoverable cost the expert witness fee of $750 charged for the deposition testimony of Victoria Kloepfer’s treating physician?

Kloepfer argues that the Workers’ Compensation Court misconstrued the case law upon which it relied. Further, Kloepfer contends that the court has historically awarded witness fees for testimony by way of deposition.

The insurer argues that § 25-10-201, MCA, made applicable to the Workers’ Compensation Court by the Baeta case requires that the court can only award witness fees of $10 per day per witness, including fees of expert witnesses.

Our standard of review is whether or not the Workers’ Compensation Court correctly interpreted the law. Russette v. Chippewa Cree Housing Authority (1994), 265 Mont. 90, 874 P.2d 1217. The District Court disallowed the $750 charged by Kloepfer’s physician for his deposition based upon the court’s conclusion that Witty and Baeta were precedent for its decision.

Witty was a case tried in District Court in which the court had to reconcile two conflicting civil procedure statutes dealing with the compensation for witnesses who appear at trial:

Witnesses in courts of record and before certain court officers. (1) Witness fees are as follows:
(a) for attending in any civil or criminal action or proceeding before any court of record, referee, or officer authorized to take depositions or commissioners to assess damages or otherwise, for each day, $10 ...

Section 26-2-501, MCA.

Costs generally allowable. A party to whom costs are awarded in an action is entitled to include in his bill of costs his necessary disbursements, as follows:
(2) the expenses of taking depositions;
(9) such other reasonable and necessary expenses as are taxable according to the course and practice of the court or by express provision of law.

Section 25-10-201, MCA. The Witty Court stated that “[wjhere there are two statutes concerning the same subject, the particular controls the general.” Witty, 220 Mont. at 272, 714 P.2d at 170.

In Witty, we concluded that the specific statute, § 26-2-501, MCA, which states that expert witnesses can only receive $10 per day controls the more general statute, § 25-10-201, MCA, which says that the court can award costs in keeping with its course of practice. Witty, 220 Mont. at 274, 714 P.2d at 170. Because the case was in district court, that court did not consider either the rules or procedure applicable to cases before the Workers’ Compensation Court.

The statutes governing workers’ compensation claims direct the Workers’ Compensation Court to be bound by “the Montana Administrative Procedure Act” and the “common law and statutory rules of evidence.” Section 39-71-2903, MCA. The statutes governing workers’ compensation cases do not require that the Workers’ Compensation Court comply with the rules of civil procedure applicable to district court proceedings.

Yet, we decided in Baeta that § 25-10-201, MCA, applied to the Workers’ Compensation Court’s award of costs. The Baeta Court stated:

A claimant, like any other party, is still subject to the mandates of § 25-10-201, MCA, and the court’s authority to tax costs. There can be no question that even under the “net recovery” concept, the court has discretion in determining fees. The same holds true for costs, subject to the mandates of § 25-10-201, MCA. We hold that the Workers’ Compensation Court did not abuse its discretion in its award of costs.

Baeta, 254 Mont. at 494, 839 P.2d at 570. The holding in Baeta was affirmed in Stevens v. State Fund (1994), 268 Mont. 460, 886 P.2d 962, where this Court stated:

Section 25-10-201, MCA, is a general statute which governs the award of costs and was made applicable to workers’ compensation cases in Baeta v. Don Tripp Trucking (1992), 254 Mont. 487, 493-94, 839 P.2d 566, 570. ...

The statutes applicable to the Workers’ Compensation Court were not considered in either Baeta or Stevens. In pertinent part these workers’ compensation statutes provide:

Costs and attorneys’ fees payable on denial of claim or termination of benefits later found compensable. (1) The insurer shall pay reasonable costs and attorney fees as established by the workers’ compensation court if:
(a) the insurer denies liability for a claim for compensation or terminates compensation benefits;
(b) the claim is later adjudged compensable by the workers’ compensation court.... (Emphasis added.)

Section 39-71-611, MCA. Further, the legislature reinforced this standard in another statute:

Costs and attorneys’ fees that may be assessed against an insurer by workers’ compensation judge. (1) If an insurer pays or submits a written offer of payment of compensation under chapter 71 or 72 of this title but controversy relates to the amount of compensation due, the case is brought before the workers’ compensation judge for adjudication of the controversy, and the award granted by the judge is greater than the amount paid or offered by the insurer, a reasonable attorney’s fee and costs as established by the workers’compensation judge if the case has gone to a hearing may be awarded by the judge in addition to the amount of compensation. (Emphasis added.)

Section 39-71-612, MCA.

The above statutes establish that “reasonable costs and attorney’s fees” may be awarded in workers’ compensation cases. As a result, the costs payable in Workers’ Compensation Court under the reasonable costs standard are not necessarily comparable to the standard applied in normal district court cases.

Medical depositions have been consistently used in workers’ compensation cases and the costs of such testimony have been routinely allowed by workers’ compensation judges. We conclude that the workers’ compensation statutes do not require that we diminish a claimant’s award by making the claimant pay the high costs of medical depositions which are a requirement in many cases for obtaining benefits.

We also point out that the statutes covering workers’ compensation state that the “assessments” made by the Workers’ Compensation Judge are the exclusive assessments that can be levied against an insurer for disputes arising under Chapter 71. See § 39-71-2905, MCA. This statute establishes the necessity of finding the cost assessment standards in Chapter 71. Further, there is no issue of fact regarding the past practice of the Workers’ Compensation Court to award a successful claimant the cost of medical testimony and depositions. Attorneys for both sides agree such costs have been traditionally awarded.

We specifically overrule Baeta and Stevens in their holding that § 25-10-201, MCA, governs the award of costs which may be allowed in a workers’ compensation case. We further reverse the holding of the Workers’ Compensation Court when it relied on Witty and the provisions for $10 per day witness fees allowed for witnesses in a district court civil proceeding, as that holding is not applicable to workers’ compensation cases.

We hold that the Workers’ Compensation Court erred in disallowing the payment of $750 as the cost of taking the treating physician’s deposition.

We amend the Order Awarding Costs entered by the Workers’ Compensation Court and hold that Kloepfer shall recover the sum of $750 as the expert witness fee for Dr. Teal.

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

JUSTICE NELSON

specially concurs.

I concur in the result reached in our opinion, but I disagree in our decision to overrule Baeta and Stevens. That is unnecessary, and neither the parties nor amicus requested that we overrule either of those cases. The problem in this case is not Baeta or Stevens. The problem is Witty and the Court’s assumption that because Witty, a district court case, interpreted § 25-10-201, MCA, in a certain limiting manner, that interpretation automatically is applicable to workers’ compensation cases. Afair reading of Baeta and Stevens does not support that conclusion.

Baeta did not address Witty much less determine that the particular rule enunciated in that case limiting expert witness fees to the amount provided by § 26-2-501, MCA, was applicable to workers’ compensation cases. More important, Baeta did not address the specific language of § 25-10-201(9), MCA, cited above. At most, Baeta generally applied § 25-10-201, MCA, to workers compensation cases and held that § 25-10-201, MCA, defines the sorts of costs that may be awarded under § 39-71-612, MCA.

Similarly, while Stevens relied on Baeta, Stevens did not address Witty. We simply pointed out that Baeta made § 25-10-201, MCA, applicable to workers’ compensation cases. We then went on to discuss why, under subsection (9) of that statute, the Workers’ Compensation Court did not abuse its discretion in refusing to award private investigator costs to the prevailing claimant. We pointed out in Stevens, that the investigator costs at issue in that case were not historically awarded within the course and practice of the Workers’ Compensation Court, nor was there any express provision of law which mandated an award of costs for such services or special statute which excepted investigator costs from the list of items in § 25-10-201, MCA. Stevens, 886 P.2d at 968-69.

Given that Witty was a district court case rather than a workers’ compensation case; given that § 25-10-201(9), MCA, authorizes the taxing of reasonable and necessary expenses according to the course and practice of the court; given that it is undisputed that physician deposition costs have been traditionally awarded to the prevailing claimant in workers’ compensation cases; and given that the legislature has specifically allowed the Workers’ Compensation Court to award reasonable costs in contested cases where the claim is determined to be compensable, I would simply hold that, consistent with Baeta and Stevens, the Workers’ Compensation Court had discretion to award Kloepfer her physician deposition costs.

Accordingly, I specially concur only in the result of our decision.

JUSTICE GRAY concurs in the foregoing special concurrence.


author: JUSTICE GRAY

text:
    DAVID ROBERTSON, Petitioner and Appellant, v. AERO POWER-VAC, INC., Employer, and STATE COMPENSATION MUTUAL INSURANCE FUND, Respondents and Respondents.
    No. 95-089.
    Submitted on Briefs June 15, 1995.
    Decided July 25, 1995.
    52 St.Rep. 673.
    272 Mont. 85.
    899 P.2d 1078.

      For Appellant: Rex Palmer; Attorneys, Inc., Missoula.
    For Respondents: Daniel J. Whyte, Legal Counsel, State Compensation Insurance Fund, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

David Robertson appeals from the decision and order of the Workers’ Compensation Court which established his temporary total disability rate at $203.67 and denied his entitlement to attorney fees and a penalty. We affirm.

The issues on appeal are:

1. Did the Workers’ Compensation Court err in interpreting § 39-71-123(3), MCA (1991), and applying it to the facts of this case?
2. Did the Workers’ Compensation Court err in failing to award attorney fees and impose a penalty?

The underlying facts in this case are undisputed. David Robertson (Robertson) was hired by Aero Power-Vac, Inc. (Aero) for a cleaning project to be performed at Stone Container in Missoula, Montana. Aero was insured by the State Compensation Mutual Insurance Fund (State Fund) under Plan III of the Workers’ Compensation Act.

The terms, conditions and wages regarding Robertson’s employment were contained in a contract (Contract) executed by both Robertson and Aero. The Contract specified that work shifts would he 12 hours and that per hour pay would be $6.50 for straight time up to 40 hours a week and time-and-one-half for hours worked in excess of 40 hours in any work week. The duration of the project was not specified. At the time Robertson was hired, however, Aero stated orally that the cleaning project “could last 5 to 6 days” and that, subject to satisfactory performance, Robertson was expected to work the entire project.

Robertson was injured in the course and scope of his employment with Aero on June 9, 1993. The State Fund accepted liability for the injury and paid him temporary total disability benefits based on a 40-hour work week at $6.50 per hour.

Robertson petitioned the Workers’ Compensation Court for a determination that his bi-weekly benefit rate should be calculated on the basis of a 72-hour work week; the rate was based on his contention that he was hired to work six 12-hour shifts. He also requested attorney fees and a penalty, contending that the State Fund was unreasonable in refusing to recognize the number of hours for which he was hired when calculating his benefit rate. The State Fund responded that Robertson had not been hired to work more than 40 hours per week and denied that its actions had been unreasonable.

The Workers’ Compensation Court concluded that Robertson was entitled to temporary total disability benefits based on a 47-hour work week. Based on its finding that the State Fund’s position was not unreasonable, the court also concluded that Robertson was not entitled to attorney fees or a penalty. Robertson appeals.

1. Did the Workers’ Compensation Court err in interpreting § 39-71-123(3), MCA (1991), and in applying it to the facts of this case?

Interpreting § 39-71-123(3), MCA (1991), the Workers’ Compensation Court concluded that Robertson’s temporary total disability rate should be based on a 47-hour work week. Robertson contends that the court erred because the statute, properly interpreted and applied, entitles him to a benefit rate based on a 72-hour work week. We review the Workers’ Compensation Court’s conclusions of law to determine whether they are correct. David v. State Compensation Mut. Ins. Fund (1994), 267 Mont. 435, 438, 884 P.2d 778, 780.

An injured employee’s wages for workers’ compensation benefit purposes ordinarily are calculated on the basis of “the average actual earnings for the four pay periods immediately preceding the injury ...” Section 39-71-123(3), MCA(1991). When an employee’s term of employment for the same employer is less than four pay periods, however, the employee’s wages “are the hourly rate times the number of hours in a week for which the employee was hired to work[.]” Section 39-71-123(3)(a), MCA (1991).

It is undisputed that subsection (3)(a) of § 39-71-123, MCA (1991), applies here, since Robertson’s term of employment with Aero was less than four pay periods. Robertson’s hourly rate also is undisputed. Thus, under the statute, the only question before the Workers’ Compensation Court was the number of hours in a week for which Robertson was hired to work.

Robertson asserts that it is undisputed that he was hired to work five to six 12-hour shifts. The Contract states that shifts will be 12 hours in length. This identification of the length of work shifts, together with Robertson’s assertion that he was told that the project would last five to six days and that he was expected to work the entirety of the project, forms the basis for his claimed entitlement to temporary total disability benefits based on a 72-hour work week.

The record, however, does not support Robertson’s contentions. As noted above, the Contract does not state the duration of the cleaning project at Stone Container. Moreover, the agreed facts submitted to the Workers’ Compensation Court reflect that Robertson was told at the time of hire that the “project could last 5 to 6 days.” (Emphasis added.) Further, in an interview with the State Fund’s investigator, Aero’s president stated that Robertson was told when hired that the shifts would be “up to 12 hours” and that the job “might last” five to six days.

The record also establishes that, in fact, the project lasted only four days. No employee worked for more than four days on the project and no employee who worked on the project from beginning to end worked more than 47 hours.

On the basis of this record, the Workers’ Compensation Court properly determined that Robertson was hired for the duration of the project, rather than for a guaranteed number of shifts or hours, and that the five to six day period mentioned at the time of the hire was the “outside estimate” of that duration. The court also properly determined that Robertson was hired to work 47 hours during the. week of the project. Thus, we conclude that the Workers’ Compensation Court did not err in interpreting § 39-71-123(3)(a), MCA (1991), and in applying it to the facts of this case.

2. Did the Workers’ Compensation Court err in failing to award attorney fees and impose a penalty?

Section 39-71-612(1), MCA(1991), authorizes an award of attorney fees where the amount of compensation is disputed and the amount granted by the Workers’ Compensation Court is greater than the amount paid. However, such an award “may only be made if it is determined that the actions of the insurer were unreasonable.” Section 39-71-612(2), MCA (1991). The 20% penalty authorized by § 39-71-2907, MCA (1991), also is available only in the event the insurer’s refusal to pay is unreasonable.

Here, the Workers’ Compensation Court awarded Robertson temporary total disability benefits in an amount greater than the State Fund was paying, based on its determination that his benefits should be calculated on a 47-hour work week rather than the 40-hour week the State Fund utilized. Thus, the threshold factor upon which attorney fees can be awarded under § 39-71-612, MCA (1991), is met here. The court found, however, that the State Fund had not been unreasonable and, therefore, denied both attorney fees and a penalty.

Robertson challenges the court’s determination that the State Fund was not unreasonable. Reasonableness is a question of fact. Stordalen v. Ricci’s Food Farm (1993), 261 Mont. 256, 258, 862 P.2d 393, 394. We review the Workers’ Compensation Court’s findings of fact to determine whether they are supported by substantial evidence. Stordalen, 862 P.2d at 394.

At the outset, it is clear from our discussion of the first issue that Robertson’s claimed entitlement to benefits based on a 72-hour work week was properly rejected by the Workers’ Compensation Court. Thus, the State Fund’s denial of that claimed entitlement could not have been unreasonable.

Moreover, with regard to the State Fund’s use of a 40-hour work week in calculating Robertson’s benefits, the record reflects that a number of the employees who worked on the Stone Container project worked less than 40 hours over the duration of the project. Indeed, the record establishes that employees who worked on the project averaged fewer than 40 hours and only three of those employees worked more than 40 hours over the project’s duration.

We conclude that substantial evidence supports the Workers’ Compensation Court’s fin fling that the State Fund’s position was not unreasonable. Therefore, we conclude that the court did not err in failing to award attorney fees and impose a penalty.

AFFIRMED.

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


text:
    HERITAGE COMMERCIAL CONTRACTORS, INC., a Montana Corporation, and THOMAS E. LITTLE, SHERRY D. LITTLE, and RICHARD A. LITTLE, individually, Plaintiffs and Appellants, v. CITY OF HELENA, a municipal corporation, and W. J. VERWOLF, City Manager, TED HILL, City Environmental Engineer, and unknown John Doe, City Officials and Employees, Defendants and Respondents.
    No. 95-153.
    Submitted on Briefs May 25, 1995.
    Decided July 25, 1995.
    52 St.Rep. 676.
    272 Mont. 90.
    899 P.2d 1076.

      For Appellants: JackM. Scanlon, Helena.
    For Respondents: David N. Hull, Helena.
   JUSTICE WEBER

This is an appeal from the grant of City of Helena’s Motion to Dismiss by the First Judicial District Court, Lewis and Clark County. We affirm.

Although the appellant presents two issues for review, the preliminary question of standing is the only question that we need reach at this time:

Did the District Court err in finding that Heritage Commercial Contractors had no standing to object to the City of Helena’s award of a contract to Good Humus Compost Company?

The City of Helena (the City) placed an ad in the legal section of the Independent Record on October 14, 1992. The ad was a “Request for Proposal” to begin a green waste compost program. Heritage Commercial Contractors (Heritage) submitted a written proposal on October 31,1993. Following the initial submission, Heritage supplied supplemental information three times upon request from the City.

On February 14,1994, the City entered into a contract to compost its municipal waste with the Good Humus Compost Company. Heritage protested this award because it contended the City had not opened, the contract to bidding. The City replied that the contract was for a technical service and excluded from bid by § 7-5-4301, MCA.

Heritage commenced action for damages suffered as a result of the City’s negligence in failing to comply with statutes concerning municipal bidding. The District Court granted dismissal to the City because it found that Heritage had no standing to object to the City’s award of a contract. Heritage appeals this ruling.

Did the District Court err in finding that Heritage Commercial Contractors had no standing to object to the City of Helena’s award of a contract to Good Humus Compost Company?

Heritage argues that unless specifically excepted, all municipal contracts must be awarded under the bidding procedures laid out in § 7-5-4301, MCA, et seq. Heritage claims that the contract awarded was not technical as argued by the City, and was not therefore, excepted from the bidding requirement. Further, Heritage argues that Baker relied upon by the District Court, does not apply to this case because in Baker bidding took place, whereas in the present case no bidding procedure took place.

The City argues that a contract for services of less than $25,000 can be awarded without use of the statutory bidding procedure. According to the City, the District Court was correct in finding that Heritage had no standing to bring this suit. The City also contends that Heritage has asked for damages which is a new unsupported legal theory; the proper remedy, if Heritage has standing, would be to ask that the bidding take place.

The District Court relied on Baker v. State (1985), 218 Mont. 235, 707 P.2d 20 for the proposition that a party not awarded a public contract fails to have standing to contest the decision by the municipality. While Heritage argues that Baker does not apply because in that fact scenario bidding took place, the Baker case has a much broader scope:

[W]e have held that the discretion of the agency to award public work contracts to the lowest bidder is not subject to judicial review under normal circumstances, (cites omitted). We will not make a contract for the parties. Nor is this Court prepared to venture that Baker would have been awarded the contract if Edsall was not the successful bidder. In the absence of any showing of bad faith, fraud, or corruption of the Department, the exercise of discretion will not be disturbed. (Emphasis added).

Baker, 218 Mont. at 240, 707 P.2d at 24.

Regardless of bidding or no bidding, the only way this Court will review an agency’s discretionary rulings — which would involve the decision in this case — is whether the action taken by the governmental agency was conducted in bad faith, with fraud, or under the influence of corruption. Baker, 218 Mont. at 240, 707 P.2d at 24. Heritage has not introduced a shred of evidence that would taint the City’s decision.

Further, the statutory scheme states that contracts for construction, repair, or maintenance under $25,000 do not need to go through the bidding procedure. Section 7-5-4302, MCA. Contracts that are professional in nature also do not have to be bid. Section 7-5-4301(1), MCA. The contract in contention was under $25,000 and involved professional, if not technical, skills.

We conclude that the contract in question was not subject to the bidding procedure of § 7-5-4301, MCA, et seq. We further conclude that Heritage has presented no evidence that the City’s decision was made in bad faith and, therefore, Heritage has no standing to object to the City’s discretionary ruling.

We hold that the District Court did not err in finding that Heritage Commercial Contractors had no standing to object to the City of Helena’s award of a contract to Good Humus Compost Company.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT and GRAY concur.

JUSTICE NELSON

specially concurs:

I concur in the result of our opinion but not in all that is said. I would go no further than to hold that the contract at issue here was not subject to bidding by reason of the exceptions contained in §§ 7-5-4301(2), MCA, and 7-5-4302, MCA. Accordingly, Heritage has no standing to bring suit in this case. I do not agree that Baker is necessarily applicable under the facts here or dispositive of the issue which we address.