text:
    IN RE THE MARRIAGE OF DEANNA K. SCOTT, Petitioner and Appellant, v. GEORGE M. SCOTT, Respondent and Respondent.
    No. 96-669.
    Submitted on Briefs March 20, 1997.
    Decided June 17, 1997.
    54 St.Rep. 548.
    283 Mont. 169.
    939 P.2d 998.

      Appeal from the District Court of Gallatin County.
    Eighteenth Judicial District.
    Honorable Larry W. Moran, Judge.
    See C.J.S. Divorce § 505.
    For Appellant: Richard Larson, Chronister, Moreen & Larson, Helena.
    For Respondent: James D. McKenna, Walsh & McKenna, Bozeman.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Deanna K. Scott (Dee) appeals the decision of the Eighteenth Judicial District Court, Gallatin County, dissolving her marriage to Respondent George M. Scott (George) and dividing their marital estate. We affirm in part, reverse in part and remand.

ISSUES

Dee raises the following issues on appeal:

1. Did the District Court abuse its discretion in its valuation of miscellaneous personal property in the marital estate?

2. Did the District Court abuse its discretion in vacating a previously entered conclusion of law which granted Dee an “equalization payment” of $5,582?

3. Did the District Court abuse its discretion in vacating a previously entered conclusion of law which required George to compensate Dee for lost rental income?

FACTS

This Court previously remanded this case in the unpublished decision In re Marriage of Scott (Mont. No. 95-003, decided August 24, 1995) (Scott I). In Scott I, George raised seven issues on appeal. Of the seven, this Court affirmed four and remanded three. Two of the three issues remanded in 1995 are faced by this Court again in this appeal because Dee contends that the District Court, in addressing the two issues, did not comply with this Court’s order of remand. Dee also contends the District Court erred by revisiting an issue which was affirmed by this Court in Scott I.

After the parties’ separation, George continued to exercise control over the marital home by living there intermittently, storing his personal property there, and allowing certain relatives to live there, all without Dee’s consent. In Scott I, the District Court determined that George’s actions prevented Dee from renting the home to a third party, and awarded her $11,830 in lost rental income. George appealed and this Court determined that the District Court lacked sufficient facts to support such an award. We noted that the District Court did not state the time period the house should have been rented; the times when either or both parties were using the house; or if George’s relatives who lived there paid rent and, if so, in what amount. In short, we concluded that “there [was] an insufficient record for us to determine how the District Court made its decision.” Slip Op. at 6-7. We therefore remanded this issue to the District Court.

In Scott I, George also appealed the District Court’s valuation of the marital property. The parties agree that the valuations contained in the District Court’s findings of fact in Scott I were inconsistent with the valuations contained in its conclusions of law. This discrepancy apparently arose because the District Court adopted one party’s property valuations in its findings of fact and the other party’s property valuations in its conclusions of law. Not surprisingly, the numbers did not match. Therefore, this Court in Scott I remanded and directed the District Court “to correct the discrepancy in property values between its findings of fact and its conclusions of law.” Slip Op. at 7.

Also in Scott I, this Court affirmed several aspects of the property division which George had asserted were erroneous. In particular, the District Court had awarded Dee a payment of $5,582 to “equalize more closely the cost of maintaining marital property,” in recognition of the fact that she had been responsible for maintaining much of the estate during the marriage. George appealed this monetary award and this Court affirmed it without comment.

In this appeal, Dee revisits the above issues and takes exception to how the District Court responded to this Court’s order of remand. First, the District Court reconciled the property valuations in a manner Dee contends was erroneous. Second, since the court’s revaluation of the marital estate resulted in Dee receiving a larger share of the estate, the District Court also vacated its earlier equity award of $5,582. Dee contends the disallowance of this award was also erroneous since the award had been specifically affirmed by this Court in Scott I. Last, the District Court determined that the issue of the use of the house was “moot” and declined to award Dee any amount for lost rental income. Dee contends the District Court erred in this determination as well. We affirm in part, reverse in part and remand with directions.

STANDARD OF REVIEW

The standard of review of a district court’s findings of fact is whether the findings are clearly erroneous. The standard of review of a district court’s conclusions of law is whether the conclusions are correct. In re Marriage of Cowan (1996), [279 Mont. 491], 928 P.2d 214, 217 (citing In re Marriage of Brandon (1995), 271 Mont. 149, 151-52, 894 P.2d 951, 952-53). See also In re Marriage of Bradshaw (1995), 270 Mont. 222, 229, 891 P.2d 506, 510. This Court is not bound by a lower court’s conclusions of law, but remains free to reach its own conclusions. Bradshaw, 891 P.2d at 510 (citing In re Marriage of Danelson (1992), 253 Mont. 310, 833 P.2d 215).

DISCUSSION

1. Did the District Court abuse its discretion in its valuation of miscellaneous personal property in the marital estate?

The District Court used one valuation in it findings of fact and another valuation in its conclusions of law. This Court remanded the matter to the District Court, with instructions to correct the valuation discrepancy. To do so, the District Court on remand substantively adopted the property valuations contained in its original findings of fact. It did not, however, expressly state that its new findings and conclusions were based on the valuations contained in the findings of fact in Scott I.

In asserting that the District Court erred in its valuations on remand, Dee asserts three specific errors. First, she asserts that the District Court did not set forth how it arrived at its finding that the new valuations left her with $11,736 more than George. This figure, however, is taken directly from the Scott I findings of fact, and is arrived at by merely subtracting the amount awarded to George from the amount awarded to Dee. While the District Court’s order on remand may have been clearer if this mathematical computation had been explicitly set forth, a careful reading of the new order, together with the old, reveals the District Court’s analysis.

Second, Dee asserts that the District Court erred by not setting forth the actual valuations it used in its new findings of fact. Again, while it might have been less confusing had the District Court done so, a close reading of the order on remand reveals that the valuations adopted by the District Court were those contained in the findings of fact in Scott I. Dee does not assert, nor do we conclude, that the use of the valuations from the Scott I findings of fact were otherwise erroneous.

Third, Dee asserts that the District Court exceeded its authority on remand by going beyond this Court’s directive to “correct the discrepancy in property values” to actually reapportion certain assets. This allegation is the basis for Issue 2, and does not independently serve to invalidate the District Court’s decision to use the valuations contained in the Scott I findings of fact for purposes of valuing the marital estate. The adoption of the valuations listed in the Scott I findings of fact as the actual values of the items in dispute served to correct the discrepancy which had necessitated a remand. We affirm the District Court on Issue 1.

2. Did the District Court abuse its discretion in vacating a previously entered conclusion of law which granted Dee an “equalization payment” of $5,582?

The District Court’s correction of the personal property values had the effect of increasing the dollar value of Dee’s share of the marital estate. After the valuation adjustment, the District Court found that Dee received $11,736 more in property than George. The District Court apparently determined that such a disparity in the property award served to meet the court’s stated goal of giving Dee a proportionately larger share of the marital estate in consideration of her proportionally larger contribution to the estate’s maintenance. It therefore vacated the additional award of $5,582, which it had apportioned to Dee in the original decree in order to equalize the cost of maintaining the marital estate. Dee notes that this Court affirmed this disputed award in Scott I, and therefore contends that the District Court erred in vacating it on remand.

In asserting that the District Court erred, Dee contends that the court’s earlier decision on this issue was res judicata or, in the alternative, that George is collaterally estopped from relitigating it. While we agree that the District Court lacked jurisdiction to disturb the previously affirmed award, we base our determination on law of the case, not on res judicata or collateral estoppel.

In Fiscus v. Beartooth Electric Cooperative, Inc. (1979), 180 Mont. 434, 591 P.2d 196, this Court defined the interrelated theories of res judicata, collateral estoppel, and law of the case. We noted that res judicata is a final judgment which, when rendered on the merits, is an absolute bar to a subsequent action between the same parties or those in privity with them, upon the same claim or demand. Fiscus, 591 P.2d at 197 (quoting Western Montana Prod. Credit Ass’n v. Hydroponics, Inc. (1966), 147 Mont. 157, 161, 410 P.2d 937, 939). See also Hollister v. Forsythe (1996), 277 Mont. 23, 27, 918 P.2d 665, 667. We defined collateral estoppel as a final judgment which bars the parties, or those in privity with them, from relitigating matters which were previously necessarily litigated and determined, even if the claim or demand in the subsequent action is different. Fiscus, 591 P.2d at 197 (quoting Western Mont. Prod. Credit Ass’n, 410 P.2d at 939). See also Estate of Eide v. Tabbert (1995), 272 Mont. 180, 183-84, 900 P.2d 292, 295. In other words, res judicata is “an absolute bar to a subsequent action,” while collateral estoppel “prevents the parties from relitigating only those matters that were determined.” Fiscus, 591 P.2d at 197. Res judicata, therefore, also properly is referred to as “claim preclusion,” while collateral estoppel also properly is referred to as “issue preclusion.” Brault v. Smith (1984), 209 Mont. 21, 26, 679 P.2d 236, 238.

In contrast, the law of the case doctrine “expresses the practice of courts generally to refuse to reopen what has been decided. It expresses the rule that the final judgment of the highest court is the final determination of the parties’ rights.” Fiscus, 591 P.2d at 197 (quoting Black’s Law Dictionary (Rev. 4th Ed.1968)). This Court has stated that

[t]he rule is well established and long adhered to in this state that where upon an appeal, the Supreme Court, in deciding a case presented states in its opinion a principle or rule of law necessary to the decision, such pronouncement becomes the law of the case, and must be adhered to throughout its subsequent progress, both in the trial court and upon subsequent appeal.

Fiscus, 591 P.2d at 197 (quoting Apple v. Edwards (1949), 123 Mont. 135, 139-40, 211 P.2d 138, 140). See also State v. Black (1990), 245 Mont. 39, 44, 798 P.2d 530, 533.

Here, the parties appear in a second appeal of the same case which was reviewed by this Court previously. The parties and issues are identical to those addressed in Scott I. In that previous decision, this Court determined that only three issues warranted remand; we affirmed without comment all other issues raised on appeal, including the propriety of the $5,582 award to Dee in consideration of her maintenance of the marital estate. Having conclusively ruled on the propriety of that award, our determination became the law of the case so far as that specific issue was concerned, and the District Court lacked jurisdiction to exceed the scope of this Court’s order of remand to revisit and vacate the award.

Further, we note that the District Court in Scott I justified awarding this additional amount to Dee on the grounds that she had expended more time and effort in maintaining the marital estate during the time of the marriage. This rationale cannot be invalidated simply by the District Court’s subsequent correction of property valuations; to do so would mean that Dee should now be deemed to have done less to conserve the marital estate. In any event, this Court’s affirmation of the award in Scott I became the law of the case, which the District Court was without authority to disturb. The District Court’s order vacating the $5,582 payment to Dee is reversed.

3. Did the District Court abuse its discretion in vacating a previously entered conclusion of law which required George to compensate Dee for lost rental income?

Lastly, Dee argues that the District Court erred in vacating on remand its award to her for lost rental on the marital home. In Scott I, the District Court determined that George’s “failure to rent the house in Bozeman while neither he nor [Dee] were occupying it amounts to a lost income opportunity, effectively a dissipation of the marital estate,” justifying an award of lost rental income to Dee. George appealed this finding, and this Court noted that the District Court record was insufficient to allow meaningful review and that, consequently, this Court lacked sufficient facts to determine whether or not the award was justified. We therefore remanded the matter to the District Court “for reconsideration of its award of lost rental income to [Dee].” We further ordered the District Court to “receive further evidence and then enter appropriate findings of fact and conclusions of law supporting its decision to either award or not award such rent.” Scott I, Slip Op. at 7.

On remand, the District Court determined that George had in fact occupied the marital home during the period in dispute. It therefore concluded that Dee was not entitled to lost rental income because there was no period during which the house was truly empty and available for rental. Dee appeals, asserting that the District Court abused its discretion by disallowing the lost rental payments.

In Scott I, this Court made an affirmative, final determination regarding the disputed maintenance award to Dee, as discussed above. In contrast, we declined to make such a final determination regarding the issue of lost rent. Instead, we directed the District Court to revisit the issue de novo and to set forth facts sufficient to support its determination. Our intention that the District Court address the issue anew is embodied by this Court’s order on remand, which directed the District Court to “enter appropriate findings of fact and conclusions of law supporting its decision to either award or not award such rent.” (Emphasis added.) Therefore, contrary to Dee’s assertion, the issue before the District Court on remand was not simply what amount of rent was due to Dee, but whether any rent was due at all.

In challenging the District Court’s determination on remand that she was not entitled to any payment for the lost opportunity to rent the marital home, Dee argues that “since sufficient evidence was presented concerning the rental proceeds that could have been realized, and since there was no dispute that George in fact precluded Dee from renting the house, the district court’s disallowance of lost rental payments amount to an abuse of discretion.” We disagree.

The crucial question in resolving this issue was whether or not George continued to occupy the marital home during the period before the divorce, when Dee contends it could have been rented. Contrary to Dee’s assertion, the District Court could not disregard the issue of whether George was in fact occupying the house and merely confine itself to whether the house could have been rented had he been absent and, if so, for what amount. By this rationale, any party to a divorce who vacates the marital home could demand lost rent from the party who remains in the home, simply on the theory that the house could be rented if the remaining party vacated as well. Dee cites no authority to support such a broad proposition, nor have we been able to discover any.

The initial and crucial determination that George prevented Dee from renting the house and thereby dissipated the marital estate was premised on the finding that neither he nor Dee were occupying the house during the period in question. On remand, the District Court found that George had in fact continued to occupy the home and, consequently, it was never available to rent to a third party. Such a reversal is not inherently erroneous. When this Court directs the District Court to revisit a given issue and indicates that it should do so de novo, the District Court is not constrained to finding the same way it did initially. Were it so constrained, there would be no point in ordering a remand.

The question to be reviewed by this Court, therefore, is whether the District Court’s finding that George continued to occupy the home during the period in question was clearly erroneous. During the hearing on remand, George testified that he came home to the house approximately every two weeks during the first three years of the five years in dispute. He further testified that he returned to the house every few months thereafter, whenever his job allowed him to return home. He continued to use the house as his residence and to claim it as his residence on his driver’s license and car registrations. In light of this testimony, which was uncontroverted, we cannot say that the District Court’s finding that George continued to occupy the house was clearly erroneous. The District Court did not abuse its discretion in concluding that the house was not available for rent during the disputed period.

We affirm Issues One and Three. We reverse Issue Two and remand this matter to the District Court for entry of judgment in accordance with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES REGNIER, LEAPHART and NELSON concur.


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    WILL NEUSTROM, Petitioner and Appellant, v. STATE OF MONTANA, DEPARTMENT OF LABOR AND INDUSTRY, Respondent and Respondent, and DAROLD DAVIS, Real Party in Interest.
    No. 96-703.
    Submitted on Briefs March 20, 1997.
    Decided June 17, 1997.
    54 St.Rep. 552.
    283 Mont. 179.
    939 P.2d 990.

      For Appellant: Jeffrey B. Hays, Recht, Hays & Hayes, Hamilton.
    For Respondent: Kevin Braun, Department of Labor and Industry, Helena.
    For Real Party in Interest: John Houtz, Forsyth.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Will Neustrom (Neustrom) appeals from the opinion and order issued by the Twenty-First Judicial District Court, Ravalli County, dismissing Neustrom’s petition for alternative writs of mandate and prohibition on the grounds that the court had no jurisdiction to consider the matters presented, that the matters presented were within the jurisdiction of the Workers’ Compensation Court, and that therefore Neustrom had a “plain, speedy and adequate remedy” in that court.

We affirm.

The dispositive issue here is whether the District Court correctly concluded that the Workers’ Compensation Court had exclusive jurisdiction to consider the substantive matters contained in Neustrom’s petition for alternative writs of mandate and prohibition.

BACKGROUND

On December 5, 1991, Darold Davis (Davis) broke his arm after falling from a ladder at the Miles City Trading Company, which was then owned by Neustrom. On July 30, 1992, Davis filed a claim for workers’ compensation benefits, alleging that he was an employee of Neustrom’s at the time of the accident and was therefore entitled to benefits.

The Department determined that Neustrom did not have workers’ compensation insurance at the time of Davis’s accident, and accordingly transferred Davis’s claim to the Department’s Uninsured Employers Fund (UEF). On May 30, 1993, after it unsuccessfully attempted to obtain employee information from Neustrom, UEF sent Neustrom a letter informing him that it had decided to accept Davis’s claim for benefits. However, on July 18,1993, Neustrom filed a “First Report of Injury” regarding Davis’ accident in which Neustrom expressly denied that Davis was an employee. On September 17,1993, UEF sent Davis a letter informing him that the Department had determined that he was not an employee and therefore was not entitled to workers’ compensation benefits.

On November 2, 1994, Davis filed an independent action against Neustrom in the Sixteenth Judicial District Court, Custer County. Section 39-71-515, MCA, provides for an independent cause of action against an employer for failure to be enrolled in one of the three workers’ compensation plans required by Montana law.

Later, by letter dated July 17, 1995, Davis’s attorney informed UEF that during discovery in the Custer County District Court action it had been established that Davis was Neustrom’s employee at the time of Davis’s injury. In the same letter, Davis’s attorney inquired as to whether Davis could at that time still appeal from UEF’s September 17, 1993 decision rejecting Davis’s claim. On August 2, 1995, UEF responded by letter stating that the 1991 version of the Workers’ Compensation Act applied to Davis’s claim and that the current 90-day appeal requirement of § 39-71-520, MCA did not apply.

Thereafter, on September 7,1995, Davis’s claim was mediated and UEF reversed its earlier decision by concluding that Davis was in fact Neustrom’s employee at the time of Davis’ injury. By letter dated November 30,1995, UEF informed Neustrom of its decision, and also informed Neustrom that its decision would become final if not appealed within 90 days. Neustrom indicated to UEF his disagreement with UEF’s decision, contending in a December 21, 1995 letter that the matter had already become final and could not be reconsidered, but did not appeal.

In July, 1996, the Department issued to Neustrom an “Accounts Receivable Invoice,” a document which indicated that Neustrom was obligated to reimburse the Department for $13,576.67 it had paid on Davis’s claim for benefits. By letter dated July 19, 1996, Neustrom objected to the action taken by UEF and requested that the invoice by withdrawn. The Department responded through its legal counsel, informing Neustrom by letter dated August 1,1996 that UEF had an obligation to pay on Davis’s claim pending the outcome of the district court litigation, that Neustrom was required to reimburse UEF or face a collection action, and that if Neustrom disagreed with the decision made by UEF he could proceed to the Workers’ Compensation Court.

On August 7,1996, Neustrom petitioned the Twenty-First Judicial District Court, Ravalli County for a writ of mandate or prohibition directing the Department to vacate and set aside its November 30, 1995 decision. After a hearing, the District Court on October 10,1996, issued its opinion and order, dismissing Neustrom’s petition on the grounds that it had no jurisdiction over the dispute, that the Workers’ Compensation Court had exclusive jurisdiction, and that therefore Neustrom had a “plain, speedy and adequate remedy’ in that court. Neustrom appeals from the District Court’s opinion and order.

DISCUSSION

Did the District Court correctly conclude that the Workers’ Compensation Court had exclusive jurisdiction to consider the substantive matters contained in Neustrom’s petition for alternative writs of mandate and prohibition?

The District Court’s conclusion that the Workers’ Compensation Court had jurisdiction over the matters presented in Neustrom’s petition is a conclusion of law. We review a district court’s conclusion in order to determine if it correctly interpreted the law. CNA Ins. Companies v. Dunn (1995), 273 Mont. 295, 298, 902 P.2d 1014, 1016.

In its opinion and order, the court made two interrelated determinations in disposing of Neustrom’s petition. First, the court engaged in a jurisdictional analysis and concluded that the Workers’ Compensation Court had jurisdiction over the substantive matters contained in the petition. Based on this first conclusion, the court then also concluded that dismissal of Neustrom’s petition was proper because he had a “plain, adequate and speedy remedy” in appealing UEF’s actions to the Workers’ Compensation Court.

Neustrom petitioned the District Court for writs of mandate and prohibition, pursuant to § 27-26-102, MCA (writ of mandate), and § 27-27-102, MCA (writ of prohibition). The statutes explain that the writs should be issued in cases in which “there is not a plain, speedy, and adequate remedy in the ordinary course of law.” Section 27-26-102(2), MCA; § 27-27-102, MCA. To determine the propriety of the court’s dismissal of Neustrom’s petition on the ground that he has “a plain, speedy, and adequate remedy” in an appeal to the Workers’ Compensation Court, we must first determine whether the court’s conclusion that the Workers’ Compensation Court had exclusive jurisdiction over the matters presented in Neustrom’s petition is correct.

Neustrom contends that the court’s jurisdictional conclusion is incorrect because Montana statutes and case law dictate that where, as here, a party files an “independent action” in district court against an employer for lack of workers’ compensation insurance, the district court has jurisdiction over that action and all of its “integral elements.” Neustrom argues that the matters presented in his petition for writs of mandate and prohibition are “integral elements” of Davis’s Custer County District Court action, and are therefore within the jurisdiction of the district courts, not the Workers’ Compensation Court.

The “independent action” to which Neustrom refers is found in § 39-71-515(1), MCA:

An injured employee or the employee’s beneficiaries have an independent cause of action against an uninsured employer for failure to be enrolled in a compensation plan as required by this chapter.

The district courts have jurisdiction over these actions:

An injured employee or an employee’s beneficiaries pursuing an independent cause of action pursuant to 39-71-515 shall bring the action in the district court in the district where the claimant resides or where the alleged violation occurred.

Section 39-71-516, MCA. Finally, § 39-71-2905, MCA, explains that district court jurisdiction over § 39-71-515, MCA, “independent actions” is an exception to the Workers’ Compensation Court’s exclusive jurisdiction over disputes arising under chapter 71:

After parties have satisfied dispute resolution requirements provided elsewhere in this chapter, the workers’ compensation judge has exclusive jurisdiction to make determinations concerning disputes under Chapter 71, except as provided in 39-71-317 and 39-71-516.

Neustrom contends that we have previously interpreted these statutes to mean that once an “independent action” is filed in district court, the district court maintains exclusive jurisdiction over that action and its “integral elements.” In Bohmer v. Uninsured Employers’ Fund (1994), 266 Mont. 289, 880 P.2d 816, an injured employee sued his employer in district court pursuant to §§ 39-71-515 and -516, MCA. After the employer agreed that it was uninsured, the employee petitioned the Workers’ Compensation Court to determine the benefits to which he was entitled. We addressed the issue of “whether the Workers’ Compensation Court had jurisdiction to determine the compensation to which an employee is entitled from an uninsured employer pursuant to § 39-71-515(4), MCA.” Bohmer, 880 P.2d at 817. In that case, we concluded that the district courts have exclusive jurisdiction over such actions, and refused to “insert a [jurisdictional] limitation into § 39-71-516, MCA] where none exists.” Bohmer, 880 P.2d at 818. We were not persuaded by Bohmer’s argument that the district court’s jurisdiction was limited to liability issues raised in § 39-71-515(2), MCA, and explained that “[s]uch an interpretation would limit the District Court’s jurisdiction to questions relating to [the employer’s] failure to enroll in a compensation plan and would exclude the damages issue which is an integral element of the cause of action.” Bohmer, 880 P.2d at 818.

In Dunn, the injured employee sued his allegedly uninsured employer in district court, pursuant to §§ 39-71-515 and -516, MCA. Then, CNA Insurance filed a petition with the Workers’ Compensation Court, seeking a determination that its policy provided workers’ compensation insurance to the employer for the injury suffered by Dunn, the employee. Dunn, 902 P.2d at 1016. On appeal, CNA Insurance argued that the Workers’ Compensation Court had jurisdiction over its petition because, unlike the situation in Bohmer, where the extent of benefits was at issue, at issue in the present case was the uninsured status of the employer. Dunn, 902 P.2d at 1017. We disagreed, stating:

These distinctions make no difference. In Bohmer, we found that once an independent action pursuant to § 39-71-515, MCA, is brought in district court, that district court has exclusive jurisdiction over any issues which are an integral part of the cause of action.
Section 39-71-515, MCA, provides a cause of action which includes as an essential element the employer’s failure to insure itself against workers’ compensation claims. In order for Dunn to prevail in the District Court, he must prove that [his employer] was uninsured at the time of his injury.

Dunn, 902 P.2d at 1017.

Neustrom contends that, pursuant to Bohmer and Dunn, the District Court erred in concluding that the Workers’ Compensation Court has jurisdiction over the matters contained in his petition for writs of mandate and prohibition. We disagree.

Generally, the matters contained in Neustrom’s petition relate to Neustrom’s dispute with UEF. Particularly, Neustrom disputes UEF’s jurisdiction to reverse its prior finding that Davis was not Neustrom’s employee, and therefore disputes UEF’s issuance of the “Accounts Receivable Invoice” and its stated requirement that Neustrom reimburse UEF for payments made on Davis’s claim. These matters are unrelated to Davis’s § 39-71-515, MCA, “independent action.” Instead, they are the basis of a separate dispute over the propriety, jurisdictionally and otherwise, of actions taken by UEF in regard to Davis’s pursuit of a remedy through that agency. Section 39-71-508, MCA, recognizes that an injured employee may concurrently pursue remedies according to separate causes of action:

An employee who suffers an injury arising out of and in the course of employment while working for an uninsured employer as defined in 39-71-501 or an employee’s beneficiaries in injuries resulting in death may pursue all remedies concurrently, including but not limited to:
(1) a claim for benefits from the uninsured employers’ fund;
(3) an independent action against an employer as provided in 39-71-515; ....

Neither Bohmer nor Dunn is inconsistent with the relevant statutory provisions, as neither case involved a concurrent claim for benefits from UEF and an “independent action” pursuant to § 39-71-515, MCA. In Bohmer, we considered whether the “independent action” could be decided in piecemeal fashion with the district court deciding the issue of liability and the Workers’ Compensation Court deciding the amount of compensation that was due. Bohmer, 880 P.2d at 817. We held that pursuant to the plain language of §§ 39-71-516 and -2905, MCA, the district court had exclusive jurisdiction to decide all issues related to the “independent action.” Bohmer, 880 P.2d at 818.

In Dunn, the claimant had filed an “independent action” in district court and the employer’s insurer filed a petition in the Workers’ Compensation Court to have the integral issue of whether the employer was, in fact, uninsured decided in a separate venue. Dunn, 902 P.2dat 1016. Pursuant to Bohmer, and the plain language of the same two statutes, we correctly held that the “independent action” cannot be split up and decided in piecemeal fashion. Dunn, 902 P.2d at 1017.

Neither Bohmer nor Dunn involved a claim for benefits from UEF, which the Workers’ Compensation Act clearly provides must initially be made to the Department and appealed to the Workers’ Compensation Court. See, e.g., § 39-71-503, MCA; § 39-71-204, MCA. Neither case discusses the specific provision in the Workers’ Compensation Act that the UEF claim can be filed concurrently with the “independent action” over which the district court has exclusive jurisdiction. See § 39-71-508, MCA.

Neustrom’s procedural and jurisdictional dispute with UEF over its handling of Davis’s claim for benefits, and Davis’s “independent action” against Neustrom because of Neustrom’s alleged failure to insure himself and his workers, are two separate disputes. Montana’s Workers’ Compensation Act allows these disputes to proceed along two separate tracks. Section 39-71-508, MCA. Neustrom’s procedural and jurisdictional dispute with UEF is within the exclusive jurisdiction of the Workers’ Compensation Court, while Davis’s “independent action” against Neustrom is within the exclusive jurisdiction of the District Court. Section 39-71-2905, MCA.

The Act’s plain requirement that the Workers’ Compensation Court decide issues related to UEF claims and the district court decide issues related to the “independent action” will not, as is impliedly argued in the briefs, create potentially inconsistent results. The claimant must initiate both claims and is bound by principles of res judicata or collateral estoppel by the decision of the first venue to arrive at a decision. The claimant must take that reality into consideration when making a decision about which claim to file, or the timing of each claim.

The court correctly concluded that the Workers’ Compensation Court had exclusive jurisdiction over the matters contained in Neustrom’s petition for writs of mandate and prohibition, and therefore correctly dismissed Neustrom’s petition because he had a “plain, speedy, and adequate remedy” through an appeal to the Workers’ Compensation Court.

Affirmed.

JUSTICES GRAY, LEAPHART, NELSON and TRIEWEILER concur.


author: JUSTICE REGNIER

text:
    CHERYL H. KELLEHER, and Others Similarly Situated, a Class, Plaintiffs and Appellants, v. BOARD OF SOCIAL WORK EXAMINERS AND LICENSED PROFESSIONAL COUNSELORS, DEPARTMENT OF COMMERCE; MARY MEIS; C. JAMES ARMSTRONG; ANTOINETTE F. ROSELL; PATRICK WOLBERD; ERVIN BOOTH; LETA A. LIVOTI; and RICHARD A. SIMONTON, Members of said Board; ALLAN ELLIOTT, Director of the Department of Commerce, Defendants and Respondents.
    No. 96-724.
    Submitted on Briefs May 30, 1997.
    Decided June 17, 1997.
    54 St.Rep. 556.
    283 Mont. 188.
    939 P.2d 1003.

      For Appellants: Robert C. Kelleher, Kelleher Law Office, Butte.
    For Respondents: Carol Grell, Special Assistant Attorney General, Department of Commerce, Helena.
   JUSTICE REGNIER

delivered the Opinion of the Court.

Cheryl Kelleher appeals from the order of the Second Judicial District Court, Silver Bow County, denying her motion for costs and attorney fees arising from her petition for writ of mandamus based on the doctrine of laches. We reverse and remand to the District Court.

The issue on appeal is whether the District Court erred in concluding that Kelleher is barred by the doctrine of laches from asserting her claim for allowance of costs and attorney fees in bringing a petition for writ of mandamus.

STATEMENT OF FACTS

On June 30, 1992, Cheryl Kelleher filed an application with the Board of Social Work Examiners and Licensed Professional Counselors (“Board”) to sit for the September 4, 1992, professional counselor examination. The application was submitted to the application review committee on July 13, 1992. The committee determined the application contained certain deficiencies, and notified Kelleher of these deficiencies and her right to appeal their determination that she could not sit for the September exam. Kelleher filed a complaint for damages and petition for writ of mandamus and application for preliminary injunction. The complaint included a prayer for an award of reasonable attorney fees and costs.

After a show cause hearing was held on August 19, 1992, the District Court entered its findings of fact, conclusions of law, order and memorandum. The court directed the Board to allow Kelleher to sit for the scheduled September 1992 examination. No further communication from Kelleher was received by the Board until May 1996 when she attempted to serve discovery documents regarding her demand for attorney fees. Kelleher subsequently moved the court for summary judgment on the issues of costs and attorney fees. Ahearing was held on this motion on September 26,1996. After the conclusion of the hearing, the District Court entered an order stating that although Kelleher was entitled to an award of damages pursuant to § 27-26-402, MCA, she was barred from recovering damages by the doctrine of laches. Kelleher appeals from this order.

DISCUSSION

Did the District Court err in concluding that Kelleher is barred by the doctrine of laches from asserting her claim for allowance of costs and attorney fees in bringing a petition for writ of mandamus?

The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

Kelleher asserts that the doctrine of laches does not apply because her actions in seeking relief were not negligent and the Board has suffered no prejudice from the delay. The Board contends that Kelleher did sleep on her rights and, therefore, fails to meet the statute requiring vigilance in pursuing a claim. The Board further argues that it has been prejudiced by Kelleher’s delay.

Section 1-3-218, MCA, provides that “[t]he law protects the vigilant before those who sleep on their rights.” Laches is a concept of equity that can apply when a person is negligent in asserting a right, and can apply where there has been an unexplained delay of such duration or character as to render the enforcement of the asserted rights inequitable. In re Marriage of Hahn and Cladouhos (1994), 263 Mont. 315, 318, 868 P.2d 599, 601; Filler v. Richland County (1991), 247 Mont. 285, 290, 806 P.2d 537, 540.

In addressing the Board’s claim of laches, we do not need to reach the issue of whether Kelleher was negligent in pursuing her right to collect fees and costs, nor do we need to address her explanations of this delay. In order to apply the doctrine of laches, a showing must be made that the passage of time has prejudiced the party asserting laches or has rendered the enforcement of a right inequitable. Helena Aerie No. 16, F.O.E. v. Department of Revenue (1991), 251 Mont. 77, 81, 822 P.2d 1057, 1059; Brabender v. Kit Mfg. Co. (1977), 174 Mont. 63, 67-68, 568 P.2d 547, 549. Each case must be determined on its own unique facts. Hahn, 868 P.2d at 601; Filler, 806 P.2d at 540.

The Board offers four examples of how it was prejudiced by Kelleher’s delay in asserting her right to attorney fees and costs. First, it argues that the Board member composition has changed, causing testimony from members involved in the original license application process to be lost. Second, the Board argues that it has implemented rule changes which affect the method of evaluating applications and has caused the process in Kelleher’s case to be clouded. The Board next asserts that due to the passage of time it has lost the ability to recreate the time involved by its own staff and by counsel for Kelleher. Finally, the Board contends that it has suffered prejudice because it has passed through several biennial budgeting processes without the knowledge of the substantial claim for costs and attorney fees.

We do not find these assertions to constitute the required showing of prejudice for application of the doctrine of laches. The issue of an award or determination of fees and costs does not require any inquiry into the license application process itself. The Board does not need to recreate, nor can it reconstruct the time expended by Kelleher’s counsel, as it is not within the knowledge of the Board. The time involved in this matter by the Board’s staff is irrelevant to the determination of Kelleher’s attorney fees and costs. The Board’s assertion that it has completed several budgeting processes since the original petition was granted does not demonstrate any prejudice. Furthermore, the Board is presumed to be aware of the law. Federal Land Bank of Spokane v. Gallatin County (1929), 84 Mont. 98, 274 P. 288. It is clear that under § 27-26-402, MCA, a party who is successful in obtaining a writ of mandamus is entitled to damages. These damages under § 27-26-402, MCA, may include attorney fees and costs. Kadillak v. Department of State Lands (1982), 198 Mont. 70, 74, 643 P.2d 1178, 1181. The Board, thus, is charged with the knowledge that Kelleher had a pending right to claim attorney fees and costs arising from her successful petition for writ of mandamus.

We hold, therefore, that with no showing of actual prejudice, Kelleher is not barred by the doctrine of laches from recovering her fees and costs arising from her petition for writ of mandamus. We reverse and remand to the District Court for a determination and award of the attorney fees and costs.

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


author: JUSTICE LEAPHART

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. PHILIP L. GRANBY, Defendant and Appellant.
    No. 96-278.
    Submitted on Briefs April 24, 1997.
    Decided June 17, 1997.
    54 St.Rep. 558.
    283 Mont. 193.
    939 P.2d 1006.

      For Appellant: Eric Rasmusson, Attorney at Law, Boulder.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Christina Lechner Goe, Assistant Attorney General, Helena; Valerie D. Wilson, Jefferson County Attorney, Boulder.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Appellant, Philip L. Granby appeals from the February 20, 1996 Judgment of the Fifth Judicial Court, Jefferson County, convicting him of the offenses of disorderly conduct, in violation of § 45-8-101, MCA, and violating privacy in communications, in violation of § 45-8-213, MCA. We affirm in part and reverse in part.

We restate the issues on appeal as follows:

1) Did Granby waive his claim of insufficiency of the evidence as to both offenses by failing to raise the issue in the District Court?

2) Was there sufficient evidence for the District Court to convict Granby of the offense of disorderly conduct?

3) Was there sufficient evidence for the District Court to convict Granby of the offense of violating privacy in communications?

Factual and Procedural Background

The following facts are taken from the parties’ testimony at trial. On June 10, 1994, Granby went to the home of his ex-wife, Delores Aaberg, in order to remove a non-running vehicle from her premises that he had been awarded in their decree of dissolution. Granby’s brother and friend accompanied him to help him tow the vehicle. Upon their arrival, Aaberg came outside and told Granby that he would have to leave, as his presence on the premises was in violation of the restraining order incorporated in the decree of dissolution. Granby refused to leave and an argument ensued.

Aaberg testified that during the argument Granby asked her “did you get enough dick today” and gestured toward her as if he were masturbating. Granby’s friend corroborated this statement and testified further that he had to “break up the fight,” grabbing Granby by the arm and pulling him out of the way. Aaberg and Granby’s two young daughters were present for at least part of the argument.

Approximately two weeks later, Aaberg called Granby to discuss visitation with the children. According to Aaberg, she told Granby that her roommate, Richard Hayward, had died, and that in response Granby said: “So your dick died, huh, that’s too bad. How long did you know him? Not very long at all, I’ll bet.” Aaberg then hung up the phone. She also testified that Granby had made other annoying or harassing phone calls to her on numerous occasions. Granby testified that it was Aaberg who initiated the call in question, but he did not deny making the statements.

On July 8, 1994, Aaberg went to the sheriff’s office to file a complaint against Granby because of these incidents. On August 25, 1994, the Justice Court of Jefferson County found that there was probable cause and issued a warrant for Granby’s arrest based on five misdemeanor charges: theft, criminal trespass to property, violating privacy in communications, violation of a protective order, and elisorderly conduct. A bench trial was subsequently held in Justice Court. Granby faded to appear and he was convicted of all five misdemeanors.

Granby filed a notice of appeal in District Court and a bench trial was held in February, 1996. The county attorney dismissed the theft charge at the end of the trial and the District Court found Granby not guilty of the offenses of criminal trespass to property and violation of a protective order. The court found Granby guilty of the offenses of violating privacy in communications and disorderly conduct. Granby appeals both convictions based on the sufficiency of the evidence.

Discussion

1) Did Granby waive his claim of insufficiency of the evidence as to both offenses by failing to raise the issue in the District Court?

The State argues that Granby has waived the claim of sufficiency of the evidence as to the disorderly conduct and violation of privacy in communications offenses because he never presented these arguments to the District Court. The State claims that if Granby believed that the evidence was insufficient to meet the State’s burden of proof, he could have filed a motion for judgment of acquittal based on insufficiency of the evidence under § 46-16-403, MCA, or made an oral motion to dismiss, either at the close of the prosecutor’s case or at the close of all the evidence. The State cites § 46-20-104(2), MCA, and State v. Walsh (1997), [281 Mont. 70], 931 P.2d 42, 45, as support for its contention that because Granby failed to raise insufficiency of the evidence at the District Court level, it is waived for purposes of appeal.

Section 46-20-104(2), MCA, provides:

Upon appeal from a judgment, the court may review the verdict or decision and any alleged error objected to which involves the merits or necessarily affects the judgment. Failure to make a timely objection during trial constitutes a waiver of the objection except as provided in 46-20-701(2).

Granby argues that the plain language of § 46-20-104(2), MCA, provides this Court with ample authority to review Granby’s convictions. He argues that the statute distinctly separates review of a verdict or decision from alleged error committed during the district court proceedings, and requires a defendant to object to error, but does not require a defendant to object to the verdict or decision itself, in order to preserve the case for appeal. Granby further argues that the decision in Walsh was based on inappropriate authority and that the decision is contrary to the legislature’s intent in its adoption of § 46-20-104, MCA. We agree.

In Walsh, this Court declined to consider Walsh’s challenge to charges of accountability “because Walsh failed to argue at any time prior to filing his brief on appeal that the evidence was insufficient to support the verdict on the accountability charges .... See State v. Johnson (1993), 257 Mont. 157, 162, 848 P.2d 496, 499.” Walsh, [281 Mont. 70], 931 P.2d at 45.

Granby argues that the Walsh Court’s reliance on Johnson was misplaced. In Johnson the defendant claimed on appeal that the testimony of an accomplice was insufficiently corroborated. Johnson, 848 P.2d at 498. The Court in Johnson declined to address the issue because nothing in the record “disclosed a challenge to the sufficiency of the corroborative evidence, or the evidence as a whole, by way of either a motion for an acquittal or a motion for a directed verdict.” Johnson, 848 P.2d at 498. The Court did not hold that a general claim of insufficiency of the evidence to support the verdict was barred on appeal for the failure to either move for a judgment of acquittal or a dismissal at the end of trial. The Court simply declined to address an allegation of specific trial error on appeal on the basis of the defendant’s failure to object to the trial error in the district court. It is clear that the Court in Johnson was concerned with error committed during the course of the trial, and not with review of the defendant’s verdict or final judgment. Therefore, we agree with Granby that Walsh’s reliance on Johnson was misplaced.

Additionally, Granby argues that the result in Walsh is contrary to the intent of the Code Commission when it recommended adoption of § 46-20-104, MCA, by the legislature. The Commission Comments provide:

[Subsection (2)] also broadens the scope of appeal in one respect. Under the present code it is necessary to make a motion for a new trial and then appeal from an adverse ruling if the grounds of appeal are also the grounds for a motion for a new trial. No such requirement is intended to be imposed by this code. All questions heretofore raised on such an appeal may be raised on appeal from the judgment regardless of whether a motion for a new trial has been made in the trial court.... It is the purpose of Subsection [(2)] to provide one complete, full and adequate review by enlarging the power of the reviewing court. This is accomplished by allowing the court to decide all questions raised by the entire proceeding, below, including an appeal from a motion for a new trial.

Although the Comments discuss a motion for new trial rather than a motion for a judgment of acquittal or directed verdict, we believe the reasoning is equally applicable. It is clear that the legislature intended that a reviewing court have the power to provide a comprehensive review of the district court proceedings for sufficiency of the evidence without the necessity of a motion challenging the sufficiency of the evidence in the district court.

Furthermore, allowing a comprehensive review of a verdict or decision without a motion for acquittal does not deny a district court the opportunity to rule on the issue of sufficiency of the evidence. Under § 46-16-403, MCA, a district court may, “on its own motion ... dismiss the action ...” when the evidence is insufficient to support a finding or verdict of guilty.

For the foregoing reasons, we conclude that Walsh’s holding that an appellant waives the right to challenge the sufficiency of the evidence to support a verdict on appeal by failing to raise the issue in the district court was decided on the basis of inappropriate authority and is contrary to the intent of the legislature. Therefore, we overrule Walsh insofar as it bars a claim of insufficiency of the evidence to support a verdict on appeal for failure to raise the issue in the district court.

Furthermore, we agree with Granby that a plain reading of § 46-20-104, MCA, indicates that an appellant need not challenge the sufficiency of the evidence at the district court level in order for this Court to review a “verdict or decision” on the basis of sufficiency of the evidence. The second sentence in § 46-20-104, MCA — “Failure to make a timely objection during trial constitutes a waiver of the objection ...” — addresses an appeal based on “any alleged error objected to which involves the merits or necessarily affects the judgment,” and does not prohibit this Court from reviewing a verdict or decision as a whole. For the foregoing reasons we hold that Granby did not waive his claims of insufficiency of the evidence as to either offense.

Standard of Review

This Court reviews the sufficiency of the evidence to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Richards (1995), 274 Mont. 180, 184, 906 P.2d 222, 224. This standard applies to judge-made findings of fact, as well as to findings of fact by a jury. State v. Bower (1992), 254 Mont. 1, 833 P.2d 1106.

2) Was there sufficient evidence for the District Court to convict Granby of the offense of disorderly conduct?

The District Court found that Granby “knowingly and intentionally disturbed the peace ... by making loud or unusual noises, and/or using threatening, profane or abusive language, by accusing Delores Aaberg of ‘screwing around’ and using abusive language concerning Ms. Aaberg’s sexual life and by using his hands in a lewd manner suggesting masturbation....” Section 45-8-101(1), MCA, provides:

A person commits the offense of disorderly conduct if he knowingly disturbs the peace by:
(b) making loud or unusual noises;
(c) using threatening, profane, or abusive language;

Granby presents a constitutional challenge to his disorderly conduct conviction. He argues that his conduct during the incident at Aaberg’s residence did not rise to the level of “fighting words” designed to provoke or incite violence and, therefore, his conduct constitutes “protected speech” as defined in City of Billings v. Batten (1985), 218 Mont. 64, 705 P.2d 1120. However, Granby failed to raise this constitutional challenge to his conviction in the District Court and it is therefore waived pursuant to § 46-20-104(2), MCA. In City of Columbia Falls v. Bennett (1991), 247 Mont. 298, 301, 806 P.2d 25, 27, this Court rejected the appellant’s constitutional challenge to the disorderly conduct statute for failure to raise the issue in his opening appellate brief. Because the constitutionality of the statute was not at issue, it was not necessary for the Court to apply the constitutional interpretation of the statute set out in Batten, that a person’s conduct or language must constitute “fighting words” in order for a conviction to stand. Instead, the Court simply analyzed whether the appellant’s language and conduct constituted “threatening, profane, or abusive language” in violation of the disorderly conduct statute as written. Bennett, 806 P.2d at 26-27. We apply the same analysis here.

Both parties testified that they were heatedly arguing with each other in the presence of others. Both Aaberg and Granby’s friend testified that Granby stated “did you get enough dick today” and used abusive and profane gestures. Granby’s friend testified that he had to “break up the fight” and “haul” Granby away. When viewed in the light most favorable to the prosecution, any rational trier of fact could have found that Granby knowingly disturbed the peace by using threatening, profane, or abusive language and gestures. Therefore, we hold that there was sufficient evidence to convict Granby of the offense of disorderly conduct and affirm his conviction on this charge.

3) Was there sufficient evidence for the District Court to convict Granby of the offense of violating privacy in communications?

Granby argues that sufficient evidence in the record does not exist to support the conviction of violating privacy in communications. Section 45-8-213(l)(a), MCA, provides the following:

[A] person commits the offense of violating privacy in communications if he knowingly or purposely:
(a) with the purpose to terrify, intimidate, threaten, harass, annoy, or offend, communicates with any person by telephone and uses any obscene, lewd, or profane language, suggests any lewd or lascivious act, or threatens to inflict injury or physical harm to the person or property of any person (the use of obscene, lewd, or profane language ... is prima facie evidence of an intent to terrify, intimidate, threaten, harass, annoy, or offend)....

Granby testified that Aaberg called him on June 24,1994. During this conversation Aaberg told Granby that her roommate, Richard Hayward, had died. Granby responded: “So your dick died, huh, that’s too bad. How long did you know him? Not very long at all, I’ll bet.” Granby argues that this statement does not contain obscene, lewd, or profane language and does not reflect an intent to “terrify, intimidate, threaten, harass, annoy, or offend.” The State argues that, when taken in context, the obscene overtone in the comment is apparent. We hold that this statement alone does not constitute obscene, lewd, or profane language. Furthermore, considering the circumstances under which it was made, including the fact that Aaberg initiated the call, and that Granby was responding to Aaberg’s comment, we hold that it was not made with the intent to harass or annoy. Therefore, after viewing the evidence in the light most favorable to the prosecution, we hold that the evidence presented is not sufficient to support the conviction for violating privacy in communications and Granby’s conviction on this charge is reversed.

In conclusion, we hold that Granby did not waive his claims of insufficiency of the evidence; there was sufficient evidence to convict him of the offense of disorderly conduct; and there was not sufficient evidence to convict him of violating privacy in communications. Therefore, Granby’s conviction for disorderly conduct is affirmed; his conviction for violation of privacy in communications is reversed; and his sentence for violation of privacy in communications is vacated.

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

      . In addition to the State’s arguments, we note that certain federal circuit courts follow the rule that where an appellant has failed to move for an acquittal or for a directed verdict in the lower court, he or she has failed to preserve the right to appeal on the grounds of insufficiency of the evidence. United States v. Atkinson (9th Cir. 1993), 990 F.2d 501; Long v. Smith (6th Cir. 1981), 663 F.2d 18; United States v. Jones (5th Cir. 1973), 486 F.2d 1081; McDonough v. United States (8th Cir. 1957), 248 F.2d 725. Most of these jurisdictions have carved out an exception to this rule for criminal bench trials holding that a plea of not guilty is tantamount to a motion for acquittal and will not impede an appeal on a sufficiency of the evidence claim. See, e.g., Atkinson, 990 F.2d at 503. The reasoning behind this exception is that a motion to acquit becomes superfluous because the plea of not guilty has brought the question of the sufficiency of the evidence to the court’s attention. We find this reasoning unconvincing in that a plea is entered before any evidence is presented, and because we do not see any distinction between a plea in a bench trial and a plea injury trial. At any rate, we are not bound to follow federal circuit decisions and we choose to analyze the issue under Montana law.


text:
    LISA L. WELTON, Plaintiff and Appellant, v. SUZANNE LUCAS, LAURETTE MURPHY and SHELLY ROBBINS, Defendants and Respondents.
    No. 97-034.
    Submitted on Briefs April 17, 1997.
    Decided June 19, 1997.
    54 St.Rep. 562.
    283 Mont. 202.
    940 P.2d 112.

      For Appellant: R. Russell Plath; Halverson, Sheehy & Plath, Billings.
    For Respondents: Don M. Hayes; Brown, Gerbase, Cebull, Fulton, Harman & Ross, Billings.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Lisa L. Welton (Welton), appeals from the order of the Thirteenth Judicial District Court granting Suzanne Lucas, Laurette Murphy, and Shelly Robbins’ (collectively “the Respondents”) motion for summary judgment. We reverse and remand.

The following issues are raised on appeal:

1. Where a claimant has pursued a workers’ compensation claim against a corporate employer, does the exclusivity provision of § 39-71-411, MCA, preclude a suit by the claimant against the corporate shareholders in their capacity as landlords?

2. Did the District Court err in granting summary judgment in favor of Suzanne Lucas, Laurette Murphy and Shelly Robbins?

BACKGROUND

Welton was injured as a result of a workplace accident at ConoMart in Billings. Welton contends that she fell and was injured after tripping over a pipe located on the floor of the stockroom behind the beer and soda coolers where cases of beer and soda are stored; the stockroom was illuminated by light coming through the glass cooler doors. Welton claimed that she knew that the pipe was on the floor but due to poor lighting had difficulty seeing and, as a result, she tripped over the pipe on the floor while stocking shelves as part of her employment with G. M. Petroleum Distributors (G. M. Petroleum). Following the incident, Welton filed for and received workers’ compensation benefits. She then filed the present suit against the owners of the property.

At the time of the accident, Welton was an employee of G. M. Petroleum, a closely held corporation that operates Cono-Mart. R. M. Grunstead, William Grunstead and the Respondents are the only shareholders of G. M. Petroleum. In addition to being shareholders of G. M. Petroleum, R. M. Grunstead, William Grunstead and the Respondents are the owners of the property and building which is leased by G. M. Petroleum and where Welton suffered her injury. R. M. Grunstead owns 50% of the building; William Grunstead and the Respondents own the remaining 50%.

In her complaint, Welton alleges that the Respondents, as owners of the building, were negligent in allowing a dangerous condition to remain on their premises. It appears that the District Court granted summary judgment against Welton under two theories. First, the court held that the Respondents were protected from liability by the exclusive remedy rule under § 39-71-411, MCA. Second, the comb held that summary judgment was appropriate because Welton knew the pipe existed while the Respondents were unaware of the situation.

DISCUSSION

This Court’s standard of review in appeals from summary judgment rulings is de novo. Motarie v. Northern Montana Joint Refuse Disposal District (1995), 274 Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782. When we review a district court’s grant of summary judgment, we apply the same evaluation as the district court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995), 272 Mont. 261, 900 P.2d 901. In Bruner, we set forth our inquiry:

The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.

Bruner, 900 P.2d at 903 (citations omitted).

1. Where a claimant has pursued a workers’ compensation claim against a corporate employer, does the exclusive remedy provision of § 39-71-411, MCA, preclude a suit by the claimant against the corporate shareholders in their capacity as landlords?

The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686. See also Kreger v. Francis (1995), 271 Mont. 444, 898 P.2d 672.

Since R. M. Grunstead and William Grunstead were co-employees of Welton, the court dismissed them as defendants pursuant to § 39-71-412, MCA. Welton has not appealed from that dismissal.

The District Court held that the Respondents (Lucas, Murphy and Robbins), as shareholders of G. M. Petroleum, were entitled to dismissal of Welton’s claim by virtue of the exclusive remedy rule under § 39-71-411, MCA. Section 39-71-411, MCA, states:

For all employments covered under the Workers’ Compensation Act or for which an election has been made for coverage under this chapter, the provisions of this chapter are exclusive. Except as provided in part 5 of this chapter for uninsured employers and except as otherwise provided in the Workers’ Compensation Act, an employer is not subject to any liability whatever for the death of or personal injury to an employee covered by the Workers’ Compensation Act or for any claims for contribution or indemnity asserted by a third person from whom damages are sought on account of such injuries or death. The Workers’ Compensation Act binds the employee himself, and in case of death binds his personal representative and all persons having any right or claim to compensation for his injury or death, as well as the employer and the servants and employees of such employer and those conducting his business during liquidation, bankruptcy, or insolvency.

To the extent that the District Court’s grant of summary judgment was based upon the exclusive remedy provision of § 39-71-411, MCA, it was in error. Welton is asserting a claim against the Respondents in their capacity as landowners, not as shareholders in G. M. Petroleum. Lucas, Murphy and Robbins, as individuals, were not employers of Welton nor were they employees of G. M. Petroleum. The fact that they own stock in G. M. Petroleum does not alter their separate and distinct status as landowners. They are in no better a position than any other landowner who leases property to G. M. Petroleum. As landlords of the property leased by G. M. Petroleum, they are strangers to the employment relationship and the exclusive remedy provision does not inure to their benefit. The District Court erred in granting summary judgment to the Respondents Lucas, Murphy and Robbins on the basis of the exclusive remedy provision of § 39-71-411, MCA.

2. Did the District Court err in granting summary judgment in favor of Suzanne Lucas, Laurette Murphy and Shelly Robbins?

In granting summary judgment, the District Court held:

Suzanne Lucas, Laurette Murphy, and Shelly Robbins are not employees at Cono-Mart, and they do not live in the state. They signed Powers of Attorney over to their father to manage the daily operations of the business and property. The daughters could not have been negligent because they did not know the pipe existed. [Emphasis added.]

The court relied on our decision in Buskirk v. Nelson (1991), 250 Mont. 92, 818 P.2d 375, for the proposition that a property owner is not liable for negligence when he/she does not have knowledge about the defect which causes the injury. In Buskirk, Buskirk was helping his friend, Donald Nelson, install a garage door opener for Nelson’s mother, Adeline Nelson. While they were testing the door opener, it became jammed and the bottom rail on the north end of the door cracked. Buskirk, 818 P.2d at 377. Buskirk was aware that a similar crack in the south end of the door had been repaired with metal strapping so he attempted to repair the new crack in a similar fashion. During this repair process, the spring-loaded mechanism of the door broke loose, resulting in severe injury to Buskirk’s eye. Recognizing that the possessor of land is not an insurer against all accidents and injuries to invitees on the premises, Buskirk, 818 P.2d at 380, we held as follows:

All three of the appellant’s experts agreed that the cause of the accident was the cracking of the garage door which took place just prior to the time of the accident. As a matter of law, Adeline Nelson, who was not present when the door cracked, could not be held liable for failure to warn about something of which she had no knowledge.

We find Buskirk to be distinguishable from the facts of this case. In Buskirk, the timing of the crack was such that Adeline Nelson not only did not know of the situation, but she could not have known nor would she have had any opportunity to warn anyone of the situation. That is not the case in the present appeal. Respondents Lucas, Murphy and Robbins each submitted affidavits that their only contact with the store was as customers, that they had not been in the cooler and that they were not aware of the existence of the pipe. Property owners owe a duty of ordinary care to keep the premises reasonably safe and to warn people of any hidden or lurking dangers. Cooper v. Sisters of Charity of Leavenworth Health Services, Corp. (1994), 265 Mont. 205, 875 P.2d 352. Although landowners are not insurers of the safety of their property, Limberhand v. Big Ditch Company (1985), 218 Mont. 132, 144, 706 P.2d 491, 499, it does not follow that landowners can avoid liability by merely stating that they have never been in the room in question and that they were unaware of the alleged hazard. Such a holding would encourage landowners to avert their eyes and to maintain a state of ignorance as to the state of their property. In Buskirk there was evidence that the crack occurred suddenly, shortly before the injury in question, while Adeline Nelson was not present and that the cause was not something “that an ordinary landowner would have expertise in ....” Buskirk, 818 P.2d at 380.

In the present case, there is nothing indicating that the presence of the pipe was a sudden occurrence or was something which the Respondents (or their managing agent) would not have seen had they chosen to look. Furthermore, that a pipe on the floor in a work/traffic area presents a potential hazard is not something that requires particular expertise. Although Respondents have testified that they were not aware of the pipe, questions of fact remain as to whether they should have been aware of the pipe and whether they should have provided adequate lighting in the cooler or rearranged the shelving.

In Brown v. Demaree (1995), 272 Mont. 479, 901 P.2d 567, we reversed a summary judgment in a case in which the plaintiff alleged that the defendant was negligent in failing to maintain and illuminate his sidewalk.

Here, then, the critical issue is whether Demaree’s failure to illuminate his sidewalk or to warn of the sidewalk/step-down/landing arrangement constituted a breach of his duty to use ordinary care in maintaining his premises in a reasonably safe condition and to warn of any hidden or lurking dangers. While the trial court resolved that question as a matter of law in favor of Demaree, whether Demaree breached his duty was one of fact which should have been determined by the jury.

Brown, 901 P.2d at 570.

We went on to conclude:

Whether the sidewalk/step-down/landing arrangement in Demaree’s sidewalk is “unusual,” and whether he should have anticipated or had reason to believe that a person using the sidewalk in the darkness would be injured by stepping into the unlighted drop-down, are clearly factual questions which should have been resolved by the jury, and not by the trial court. See Limberhand, 706 P.2d at 499.

Brown, 901 P.2d at 571.

The same is true here. The question of whether Respondents breached their duty to use ordinary care in maintaining their premises in a reasonably safe condition is one of fact properly left for the jury to resolve.

Respondents contend that the fact that Welton knew of the existence of the pipe absolves them of any liability for her injuries. They cite Kronen v. Richter (1984), 211 Mont. 208, 683 P.2d 1315, for the proposition that a property owner is entitled to assume that people will see and observe that which would be obvious through reasonably expected use of an ordinary person’s senses, and Limberhand v. Big Ditch Company (1985), 218 Mont. 132, 144-45, 706 P.2d 491, 499, for the proposition that a property owner’s duty is satisfied if the hazardous condition is obvious or actually known. This rule, however, is not absolute as we recognized in Kronen wherein we cited Restatement (Second) of Torts § 343 A(l) (1965):

Apossessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. [Emphasis added.]

Although Welton may have been aware of the pipe, she alleged in her second amended complaint that she was unable to observe the pipe due to inadequate lighting in the cooler. Further, Welton, who was shelving beer at the time of the accident, testified in her deposition that: “And with the stuff being stacked as high as it is, when there’s no lighting, you could faintly, faintly see the pipe — you knew it was somewhere in that area — while stocking.” Given the existence of a pipe on a floor in a dimly lit traffic area where it is known that workers will be carrying and shelving products, there is a question of fact as to whether the possessor of the land should anticipate harm despite the obviousness of the pipe or despite Welton’s knowledge of the pipe.

The summary judgment is reversed.

JUSTICES NELSON, HUNT, TRIEWEILER and GRAY concur.