text:
    IN RE THE MARRIAGE OF JERRY A. HOWARD, Petitioner and Appellant, and DEBBE A. GLIDDEN, formerly known as DEBBE A. HOWARD, Respondent and Respondent.
    No. 92-217.
    Submitted on Briefs August 13, 1992.
    Decided October 29, 1992.
    49 St.Rep. 894.
    255 Mont. 64.
    840 P.2d 1217.

      For Appellant: H. James Oleson, Oleson Law Firm, Kalispell.
    For Respondent: Bruce McEvoy, Warden, Christiansen, Johnson & Berg, Kalispell.
   JUSTICE WEBER

delivered the Opinion of the Court.

After a hearing, the District Court for the Eleventh Judicial District, Flathead County, modified the original decree of dissolution and ordered that the amount of child support owing to Debbe A. Glidden (Ms. Glidden) by Jerry Howard (Mr. Howard) be increased from $300 per month to $1,172.50 per month, retroactive to December 1, 1990. He appeals. We affirm in part and reverse in part.

The issues for our consideration are:

1. Did the District Court err in increasing Mr. Howard’s child support obligation from $300 per month to $1,172.50 per month?

2. Did the District Court err in failing to deduct support payments allegedly made by Mr. Howard to his mother in arriving at the correct modified child support obligation?

3. Did the District Court err in modifying Mr. Howard’s child support obligation effective December, 1990?

4. Did the District Court err in granting Ms. Glidden attorney fees?

Jerry and Debbe Howard were divorced on August 9, 1982, pursuant to a decree of dissolution entered by the Eleventh Judicial District Court, Flathead County, Montana. In accordance with the terms of a custody and property settlement agreement, Ms. Glidden was awarded custody of the parties’ two minor children, and Mr. Howard was ordered to pay a total amount of $300 per month in child support.

In December of 1990, when both parties were residing in the State of Washington, Mr. Howard received a letter from Ms. Glidden’s counsel requesting child support modification. On February 12,1991, Ms. Glidden filed a petition in a superior court of the State of Washington for modification of child support. Copies of the petition and summons were served on Mr. Howard’s current spouse at his home in Washington on February 17, 1991. Mr. Howard challenged the petition on jurisdictional grounds and the motion was ultimately dismissed for insufficiency of process.

Subsequently, Ms. Glidden filed a motion to modify child support in the Flathead County District Court on August 15,1991. Again Mr. Howard challenged the petition on jurisdictional grounds. The District Court denied his motion.

After a hearing, the District Court ordered that Mr. Howard should pay $1,172.50 per month for child support, retroactively from and including December of 1990, allowing a credit for the $300 per month which Mr. Howard had already paid. The District Court further ordered Mr. Howard to pay Ms. Glidden’s reasonable attorney fees and costs incurred as a result of bringing the motion to modify. Mr. Howard appeals.

I

Did the District Court err in increasing Mr. Howard’s child support obligation from $300 per month to $1,172.50 per month?

Mr. Howard maintains that such an enormous increase in child support payments is per se unconscionable. Ms. Glidden maintains that the District Court properly applied the Montana Child Support Regulations and Guidelines and that Mr. Howard has failed to prove otherwise.

Mr. Howard cites no authority for his argument that a substantial increase in child support is per se unconscionable. Furthermore, he does not specify any error in the District Court’s findings, only in its conclusion increasing the child support. The District Court made extensive and particular findings regarding the income of the parties and their respective child support obligations. Absent a clear abuse of discretion, the District Court will not be overruled. Marriage of Graveley (1990), 244 Mont. 137, 139, 796 P.2d 585, 586.

We conclude the District Court did not abuse its discretion. We hold that the court did not err in increasing Mr. Howard’s child support obligation from $300 per month to $1,172.50 per month.

II

Did the District Court err in failing to deduct support payments allegedly made by Mr. Howard to his mother in arriving at the correct modified child support obligation?

The District Court found:

15. Petitioner claims he should be allowed to deduct, for child support purposes, $15,148.58 he pays annually for the Kalispell residence, a vehicle, insurance, and approximately $225.00 per month to his mother for her support. The Regulations do not provide for such a deduction.

Mr. Howard maintains he is bound by law to provide for his indigent mother, citing Sec. 40-6-301, MCA, as authority. It provides:

Duty of child to support indigent parents. It is hereby declared and made the duty of every adult child, having the ability so to do, to furnish and provide necessary food, clothing, shelter, and medical attendance for his indigent parent or parents, unless, in the judgment of the court or jury, he is excused therefrom by reason of intemperance, indolence, immorality, or profligacy of such parent.

The record contains no evidence that Mr. Howard’s mother is indigent. Absent such proof, the District Court is not bound to consider the support of his mother as a legal duty which might be considered as an expense in calculating child support. We hold the District Court correctly refused to deduct support payments Mr. Howard made to his mother in arriving at the modified child support obligation.

Ill

Did the District Court err in modifying Mr. Howard’s child support obligation effective December, 1990?

Mr. Howard maintains the District Court erred in ordering the increased child support obligation to be retroactive to December, 1990. The court found that to be the date Mr. Howard “became aware of [Ms. Glidden’s] legal proceeding to modify the support”. Mr. Howard maintains that a child support obligation may only be made retroactive to the date the motion to modify child support was filed. We agree.

Section 40-4-208(1), MCA, provides:

[A] decree maybe modified by a court as to maintenance or support only as to installments accruing subsequent to actual notice to the parties of the motion for modification. (Emphasis added).

Ms. Glidden filed her motion for modification in the District Court in Montana on August 15,1991, and Mr. Howard was properly served. The District Court concluded that the notice given to Mr. Howard under the filing in the superior court in Washington, constituted notice under the statute. We conclude that is not appropriate under the specific wording of the statute. We conclude that under the statute the right to the modified child support accrued on the date actual notice was given of the motion for modification in the Montana proceedings.

We conclude the District Court erred in ordering the increased child support obligation to be retroactive to December 1990. We hold that the modified child support shall be retroactive only to August 15, 1991.

IV

Did the District Court err in granting Ms. Glidden attorney fees?

The District Court ordered Mr. Howard to pay $1,978 in attorney fees as a result of her motion to modify. Mr. Howard maintains that ordering him to pay fees is a “substantial injustice”.

Ms. Glidden correctly cites Sec. 40-4-110, MCA, as authority for the court ordering Mr. Howard to pay attorney fees. We also point out that as the District Court noted in its order, Mr. Howard failed to object to the finding that Ms. Glidden should recover attorney fees or to the reasonableness of such fees. It is well settled law that a party may not raise an issue, not raised in the District Court, for the first time on appeal. We hold that the District Court did not err in granting Ms. Glidden attorney fees.

The judgment of the District Court is affirmed with the exception that an appropriate order shall be entered modifying the child support to show that it is retroactive only to August 15, 1991.

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


source: Caselaw Access Project

author: JUSTICE McDONOUGH

license: Public Domain

text:
    IN RE THE MARRIAGE OF SHANNON K. HEBERT, Petitioner and Appellant, and THOMAS P. HEBERT, Respondent and Respondent.
    No. 92-237.
    Submitted on Briefs August 20, 1992.
    Decided October 29, 1992.
    49 St.Rep. 902.
    255 Mont. 69.
    840 P.2d 584.
    For Petitioner and Appellant: Michael V. Sinclair, Coil & Sinclair, Bozeman.
    For Respondent and Respondent: Mark L. Guenther, Nash, Guenther, Zimmer & Serenar, Bozeman.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from the Eighteenth Judicial District, Gallatin County, from an order denying attorney’s fees to the petitioner. We affirm.

There is a sole issue on appeal:

(1) Whether the District Court erred in denying appellant’s requests for attorne/s fees.

This action is predicated upon petitioner/appellant’s (petitioner) motion to modify child support and enforce the dissolution decree. The decree was issued on June 20,1984 and incorporated within the decree was Mr. and Mrs. Hebert’s Marriage and Property Settlement Agreement. In the agreement, respondent was to pay $200 for child support and one-half of their minor son’s medical expenses which were not covered by petitioner’s health insurance. Respondent was also supposed to provide petitioner with a washer and dryer in good condition. A later amendment to the decree provided that the cost of transporting the child for summer visitation was to be shared equally by the parties.

Petitioner filed a petition to modify child support, collect arrearages for child support and medical expenses, and for delivery of a washer and dryer. In respondent’s answer, he stated that there was not a sufficient increase in his financial resources to warrant a modification in child support. He also stated that the petitioner did not provide him with adequate information to allow him to determine his share of the medical expenses. He further contended that he did provide a washer and dryer to petitioner. Finally, he alleged that the petitioner owed him one-half the cost of visitation travel expenses.

Ahearing was held on the petition. At the conclusion of the hearing the judge requested proposed findings of fact, conclusions of law and an order from both parties.

Pursuant thereto petitioner proposed that the respondent pay $646 per month in child support, $553.14 in overdue medical expenses, child support arrearages and that he deliver a washer and dryer in good condition. She also proposed that the respondent pay attorney’s fees for each party.

Respondent proposed in his order that he should indeed pay an increase in child support and he calculated the payment due to be $350 per month. He stated that the issues of medical expenses and child support arrearages, as well as visitation travel expenses had been resolved. He also contended that the washer and dryer had been previously delivered. Finally, lie contended that neither party was the “prevailing part/’ so each should pay his/her own attorney’s fees.

In the court’s Findings of Fact, Conclusions of Law and, Order issued on March 5, 1992, it concluded that petitioner should receive child support in the amount of $416.91 per month and an extra $75 per month until the arrearages were paid. Respondent was also ordered to pay $553.13 in medical expenses previously due. The court ordered each party to pay their own attorney’s fees.

The petitioner filed a motion to amend the judgment concerning attorney’s fees on March 16,1992. Petitioner’s motion was based on a provision in the parties’ marital and property settlement agreement which had been incorporated into the dissolution decree. This provision stated:

In the event that either party shall institute legal proceedings to enforce, modify or interpret any provision of this agreement, the Court shall award, in addition to any other appropriate relief, a reasonable attorney’s fee to the prevailing party.

The motion was heard and an order denying petitioner’s attorney’s fees was issued. The court denied the motion because of its conclusion that there was no prevailing party in the action.

The petitioner argued that she was the prevailing party because her request for increased child support and for payment of medical expense arrearages had been granted. The District Court, however, concluded that the respondent prevailed on the child support increase issue because he had agreed to an increase of $350 and the petitioner had calculated an increase to $646 per month. The judge noted that the final child support order to pay $416.91 was only $66.91 above respondent’s calculation of $350 but $229.09 below the petitioner’s calculation.

The comb also concluded that petitioner had prevailed on the medical expenses arrearages and the visitation travel expenses issues. Respondent prevailed on the child support issue and also the washer and dryer issue. Respondent had presented proof that he had previously delivered a washer and dryer to the petitioner but she sold them. The court also concluded that because each party had “won” on two issues, there was no “prevailing party” and each party should pay their own attorney’s fees and costs.

Post-trial motions will be reviewed for abuse of discretion. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 604.

Several previous cases have served to clarify the term “prevailing party.” E.C.A. Environ. Management v. Toenyes (1984), 208 Mont. 336, 345, 679 P.2d 213, 217-218, states that “[n]o one factor should be considered in determining the prevailing party for the purpose of attorney fees. The party that is awarded a money judgment in a lawsuit is not necessarily the successful or prevailing party.” In the present case, even though petitioner received a “money judgment”, she is not necessarily the prevailing party.

In Lauderdale v. Grauman (1986), 223 Mont. 357, 359, 725 P.2d 1199, 1200, we stated, “[Tjhere are cases where, at the close of all litigation, there is no actual ‘prevailing party.’ [Tjhere is no prevailing party where both parties gain a victory but also suffer a loss.” In the present case, the District Court did not abuse its discretion in concluding that there was no “prevailing part/’ and that each party shall pay his/her own costs.

AFFIRMED.

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


author: JUSTICE WEBER JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RICHARD J. FERTTERER, SR., and DAVID JOHN FERTTERER, Defendants and Appellants.
    No. 91-443.
    Submitted July 9, 1992.
    Decided Sept. 28, 1992.
    Rehearing Denied Nov. 12, 1992.
    49 St.Rep. 846.
    255 Mont. 73.
    841 P.2d 467.

      For Defendants and Appellants: John M. Morrison, argued, Morrison Law Offices, Helena.
    For Plaintiff and Respondent: Marc Racicot, Attorney General, Paul D. Johnson argued, Assistant Attorney General, Helena; Patrick L. Paul, Cascade County Attorney, and Steve Hagerman, Deputy Cascade County Attorney, Great Falls.
   JUSTICE WEBER

delivered the Opinion of the Court.

A jury in the Eighth Judicial District Court, Cascade County, Montana, convicted Richard J. Fertterer, Sr. of seven misdemeanor fish and game violations and two counts of felony criminal mischief. This jury also found David John Fertterer guilty of four misdemeanor fish and game violations and two counts of felony criminal mischief. Defendants appeal the felony convictions and the sentence imposed by the District Court. We affirm in part and reverse in part.

The Fertterers raise the following issues for our review:

1. Are wild animals “public property” within the purview of Sec. 45-6-101, MCA?

2. Does Title 87, MCA, provide an exclusive remedy for the illegal taking of game?

3. Are wild animals property within the definition of Sec. 45-2-101(54), MCA?

4. Is Montana’s criminal mischief statute, as applied to the Fertterers, unconstitutionally vague?

5. Did the District Court properly charge the Fertterers with the costs of investigation?

6. Did the District Court properly charge Fertterers with jury costs?

From November 1989, through August 1990, the Department of Fish Wildlife and Parks (FWP) conducted an undercover investigation of a large scale poaching operation run by the Fertterers. During the investigation FWP agents, posing as out-of-state hunters, had extensive contact with the defendants. At trial, agents testified they were actively guided by the Fertterers during two separate five-day hunts. Neither defendant had an outfitter license. In addition, agents testified that during those hunts, Fertterers were spotlighting and killing game without proper tags, illegally trapping bear, soliciting the sale of an illegally killed mountain lion hide, and attempting to sell approximately 1000 pounds of deer and elk meat to an Illinois FWP agent posing as an owner of a meat market.

The jury convicted Richard Fertterer of two counts of felony criminal mischief for illegally killing three elk, six deer and three antelope. It also convicted him of several misdemeanors under Title 87, MCA, including: two counts of outfitting without a license; two counts of unlawfully selling, transporting and possessing game; two counts of hunting with aid of artificial light; and one count of unlawfully trapping game animals.

Likewise, the jury convicted David John Fertterer of two counts of felony criminal mischief for unlawfully killing one mountain lion and three elk. He was also convicted of several misdemeanors under Title 87, MCA, including: guiding without a license, unlawful sale or possession of game, hunting with aid of artificial light, and unlawful trapping of game animals.

Fertterers contend they were wrongfully convicted of felony criminal mischief where wild animals are not properly classified as property or public property within Montana’s criminal code. In the alternative defendants claim the criminal mischief statute is unconstitutionally vague as applied to Fertterers and violates the legislative intent of Title 87, MCA.

As a condition of the Fertterers’ partially suspended sentences, the District Court charged both defendants with the cost of the jury trial, investigation expenses incurred by FWP, and restitution for the value of the wild game they illegally killed. Defendants argue the court improperly charged them with jury costs where the state improperly tried and convicted them of criminal mischief, and that the costs were excessive due to the length of the trial and the change of venue caused by the State’s excessive publicizing of the case. Finally they contend the court wrongfully charged them with investigative costs incurred by FWP prior to filing an information.

I

Are wild animals “public property’ within the meaning of Sec. 45-6-101, MCA?

Section 45-6-101(l)(a), MCA, provides:

(1) A person commits the offense of criminal mischief if he knowingly or purposely:
(a) injures, damages, or destroys any property of another or public property without consent;...

In this instance, defendants contend the District Court incorrectly instructed the jury that wild animals in Montana are owned by the State and are public property. Fertterers argue that the State has no title ownership in the wild animals within its borders; thus, the animals are not owned by the State.

Although the criminal code fails to define “public property’, it offers some other definitions regarding ownership which are helpful in defining “public property” under Montana’s criminal code.

Section 45-2-101(46), MCA, defines owner as follows:

“Owner” means a person other than the offender who has possession of or any other interest in the property involved, even though such interest or possession is unlawful, and without whose consent the offender has no authority to exert control over the property.

Under this definition, ownership is not limited to title ownership such as that applied to the ownership of real property or to personal property such as cattle or other livestock. The statute recognizes that a lesser interest than title ownership is sufficient as an ownership interest in property crimes.

In State v. Tome (1987), 228 Mont. 398, 742 P.2d 479, this Court recognized that an interest less than title ownership was sufficient to prove ownership for the purpose of Montana’s criminal mischief statute. Tome, 228 Mont. at 401, 742 P.2d at 481. In that case, the defendant was charged with felony criminal mischief for $191 in vandalism damages to a city building and $359 in damages to a vending machine leased by a golf pro employed by the city. The defendant argued that the lower court incorrectly considered $359 in damages to the machine in convicting him of felony criminal mischief. This Court held that mere possessory ownership is sufficient to show ownership under the criminal mischief statute.

Similarly here, the State need not prove it had title ownership interest in wild game within its borders. As stated in Sec. 45-2-101(46), MCA, the State is an owner of the property if, without the State’s consent, the Fertterers had no authority to exert control over the game.

Next Section 45-2-101(55), MCA, defines property of another as follows:

“Property of another” means real or personal property in which a person other than the offender has an interest which the offender has no authority to defeat or impair, even though the offender himself may have an interest in the property.

Again, this definition focuses not on title ownership of the property but on a superior interest. Under this definition, the State need only prove that it had an interest in the wild game which the Fertterers had no authority to either defeat or impair. Once again under the definition of § 45-2-101(55), MCA, the State need not prove it has title ownership to the game to be classified as an owner.

While the criminal code does not require the State to prove title ownership, the State must prove it possesses an interest superior to the interest of the Fertterers. We conclude that under the statutes and cases of Montana, the State has a superior interest under the ownership theory and also has such an interest by virtue of its police power to regulate the taking of game.

A brief historical analysis shows that beginning with Geer v. Connecticut (1896), 161 U.S. 519, the United States Supreme Court recognized that the states had a right to regulate the taking of game within their borders. This regulatory power was derived from the states’ “title ownership” in the game, and also from the states’ police power. In Geer, the Court determined that a Connecticut law prohibiting the taking of game birds outside its borders did not violate interstate commerce. That court likewise relied on the title ownership theory in subsequent federal cases including Baldwin v. Montana (1978), 436 U.S. 371. In Baldwin, the Court recognized Montana’s interest in regulating the taking and preserving the game animals within its borders. It held that Montana’s disparate licensing fees between resident hunters and non-resident hunters did not violate the privileges and immunities clause of the Constitution or the equal protection clause. In the 1979 case of Hughes v. Oklahoma (1979), 441 U.S. 322, the United States Supreme Court concluded that an Oklahoma law which prohibited the transporting of live minnows across state lines into Texas violated the interstate commerce clause. As a part of that opinion, it expressly abandoned the title ownership theory as promulgated in Geer. The defendants argue that the Hughes decision effectively precludes Montana from convicting them of criminal mischief for destroying public property.

The State contends there are no federal constitutional questions of interstate commerce, equal protection, or privileges and immunities; and as a result, Hughes is not controlling. We agree with that contention. There is no federal constitutional issue or other federal question presented in the present case. As a result, the holding in Hughes is not controlling here. We do point out that as we compare Hughes to Baldwin, we are not certain the holding expressed in this case would be found to contradict Hughes.

Montana has long recognized that Montana has the power to regulate game animals under both a title ownership and police power theory. In Rosenfeld v. Jakways (1923), 67 Mont. 558, 216 P. 776, this Court stated the rule very clearly as follows:

That the ownership of wild animals is in the state, held by it in its sovereign capacity for the use and benefit of the people generally, and that neither such animals nor parts thereof are subject to private ownership except in so far as the state may choose to make them so, are principles now too firmly established to be open to controversy. (Geer v. Connecticut, 161 U.S. 519, 40 L.Ed. 793, 16 Sup.Ct.Rep. 600, [See, also, Rose’s U.S Notes]; 12 R.C.L. 691-703.) If the state so elects it may prohibit absolutely the killing of such . animals, or it may regulate the killing and prohibit the sale in this state of such animals or the parts, whether the animals were killed within or without the state. It may grant or withhold the right to hunt, and if it grants the right at all it may do so upon such terms and conditions as it sees fit to impose so long as constitutional limitations or guaranties are not infringed. Aside from any question of common ownership, the state may exercise these rights in virtue of its police power. There is practically not any dissent from these general propositions. (Emphasis supplied.)

The State’s ownership in wild game for the use and benefit of its people was affirmed in Heiser v. Severy (1945), 117 Mont. 105, 158 P.2d 501, and again in State ex rel. Visser v. State Fish and Game Comm’n, 150 Mont. 525, 437 P.2d 373. In Visser, this Court confirmed the State’s ownership of wild game as long as those regulations do not violate the Constitution.

Montana’s case law affirming the State’s property interest in wild game is consistent with case law from other jurisdictions, including Washington, Colorado, Oregon, Indiana, Texas, Michigan and Alabama. In State v. Gillette (Wash. 1980), 621 P.2d 764, Washington sued and recovered damages from property owners whose reconstruction of a stream bank resulted in the killing of salmon. That court concluded that Washington had standing to sue. It held: “food fish of the state are the sole property of the people of the state ...” Likewise in Collopy v. Wildlife Comm’n (Colo. 1981), 625 P.2d 994, that court upheld a regulation prohibiting hunting within a specific area. The court recognized that the ownership of wild game is in the state for the benefit of all the people. Finally, in Rogers v. State (Ala.App. 1985), 491 So.2d 987, that court stated: The authority of the state to regulate hunting ... derives from the long established and well recognized principle of law that ownership of wild animals is vested in the state." See also, Ridenour v. Furness (Ind.App. 1987), 504 N.E.2d 336; Wiley v. Baker (Tex.App. 1980), 597 S.W.2d 3; and Glave v. Michigan Terminix Co. (Mich.App. 1987), 407 N.W.2d 36.

In accordance with the above cited Montana cases, and consistent also with Baldwin, we hold that Montana has an ownership interest in wild game held by it in its sovereign capacity for the use and benefit of the people. We further hold that under its police powers, which extend to such wild game, the State may prohibit the killing of wild game and regulate the killing of the same. We hold that wild animals are public property within the meaning of Montana’s criminal mischief state, and that Montana’s interest in such public property is superior to the interest of the Fertterers.

II

Does Title 87, MCA, provide an exclusive remedy for the illegal taking of game?

First, Fertterers contend the State cannot charge them under Title 45 where Title 87 provides a more specific definition of the conduct. The State contends that the prosecutor has the discretion to charge under any statute. We agree with the State. This Court most recently affirmed the prosecutor’s discretion to charge in State v. Brady (1991), 249 Mont. 290, 816 P.2d 413. In Brady the defendant claimed he should have been charged under the more specific crime of domestic abuse rather than aggravated kidnapping. We affirmed the conviction and upheld the prosecutor’s discretion to charge any offense as long as the defendant’s conduct meets the elements of the crime. As in Brady, here we conclude that the prosecutor had the discretion to charge the Fertterers under Title 45, Montana’s criminal code.

Next, Fertterers contend that charging them with felony criminal mischief circumvents the will of the legislature. Defendant’s further claim the result, a felony conviction in District Court, is manifestly unjust where Title 87, MCA, only exposes them to misdemeanor penalties. The State contends that Title 87, MCA, does not provide an exclusive remedy, thus Fertterers’felony convictions were a proper result. Section 87-1-102, MCA (1989), provides in pertinent part:

(1) A person violating any provision of this title, any other state law pertaining to fish and game, or the orders or rules of the commission or department is, unless a different punishment is expressly provided by law for the violation, guilty of a misdemeanor ... (Emphasis supplied.)

We affirm the conclusion of the District Court and resulting felony convictions. In this case a “different punishment” had been expressly provided in Title 45, MCA. We further conclude that none of the sections of Title 87 comprehensively define the Fertterers’ conduct. We conclude the legislature did not intend the misdemeanor provisions of Title 87 to constitute the exclusive punishments for fish and game violations.

We hold Title 87, MCA, does not provide an exclusive remedy for the illegal taking of game.

III

Are wild animals property within the definition of § 45-2-101(54), MCA?

Fertterers contend wild animals are not property within the definition of § 45-2-101(54), MCA. Section 45-2-101(54)(h), MCA, defines property as: “any tangible or intangible thing of value .... Property includes but is not limited to: birds, animals, and fish which ordinarily are kept in a state of confinement; ...” [Emphasis added.] Although Fertterers agree this is a non-exclusive list, they argue that by including domestic animals in the category, the legislature clearly intended to exclude wild game from the definition of property. Once again, we disagree with the defendants. We conclude that property under this section is defined broadly enough to include wild game.

Fertterers further argue that wild animals are not public property within the meaning of § 70-1-104, MCA, and § 70-2-111, MCA. We conclude definitions of Title 70, MCA, are not controlling in Montana’s criminal code. We hold that wild animals are property within the definition of § 45-2-101(54), MCA.

IV

Is Montana’s criminal mischief statute, as applied to the Fertterers, unconstitutionally vague?

Fertterers contend that the criminal mischief statute, as applied, is unconstitutionally vague and violates due process. Fertterers cite two Ninth Circuit cases defining vagueness. First, a statute is void for vagueness if it fails to give a person of ordinary intelligence notice of the illegal conduct. United States v. Dupree (9th Cir. 1976), 544 F.2d 1050,1051. Next they cite United States v. Stenberg (9th Cir. 1986), 803 F.2d 422, which held that statutes must apply explicit standards to avoid arbitrary and discriminatory applications. In essence, Fertterers argue that although they knowingly violated misdemeanor statutes under Title 87, MCA, they were not provided sufficient notice that their conduct violated Montana’s criminal mischief statute. We do not find this argument compelling.

As stated previously, wild animals are public property within the meaning of § 45-6-101, MCA, and the definitions in Title 45, MCA, provide sufficient notice that wild animals are public property within the criminal code. Thus, reasonable persons would have realized that the conduct of destroying wild animals without the consent of the State, specifically violated § 45-6-101(l)(a), MCA. Further, Montana’s criminal mischief statute applies explicit standards which prevent arbitrary and discriminatory application.

We hold that the criminal mischief statute as applied to the Fertterers does not violate due process.

V

Did the District Court properly charge the Fertterers with the costs of the investigation?

Section 46-18-232(1), MCA, provides:

A court may require a convicted defendant in a felony or misdemeanor case to pay costs, as defined in 25-10-201, plus costs of jury service as part of his sentence. Such costs shall be limited to expenses specifically incurred by the prosecution in connection with the proceedings against the defendant.

Section 25-10-201, MCA, specifies costs generally allowable. That section does not include investigative costs incurred prior to the State’s filing of an information.

Although this is a case of first impression in Montana, this Court has held that in civil cases, statutory authority must exist in order for the district court to award costs. Masanovich v. School Dist. No. 1 (1978), 178 Mont. 138, 582 P.2d 1234. Oregon has not allowed the state to recover costs of police investigations incurred prior to the filing of the information. State v. Haynes (Or.App. 1981), 633 P.2d 38. We adopt the holding in Haynes and conclude the District Court improperly charged the Fertterers with the investigative costs expended prior to the filing of the information.

Oregon has recognized an exception to that general rule. As stated in State v. Pettit (Or.App. 1985), 698 P.2d 1049, Oregon allowed the state to recover money paid directly to the defendants as part of an undercover drug investigation as restitution. The State argues in the present case that under the restitution theory of Pettit it should be allowed to recover cash amounts paid by the State to Fertterers through its undercover agents.

We likewise approve of the Pettit exception to Haynes and conclude that here restitution is appropriate under the Pettit analysis. We further conclude that such restitution should be limited to amount paid directly to the Fertterers for guided hunts and for meat and animal parts purchased in the undercover investigation. We remand to the District Court in order that it may determine the extent of the restitution to be allowed to the State under this theory.

VI

Did the District Court properly charge Fertterers with jury costs?

[12] The pertinent statute on the issue of payment of costs by a defendant is § 46-18-232, which in pertinent part provides:

Payment of costs by defendant. (1) A court may require a convicted defendant in a felony or misdemeanor case to pay costs, as defined in 25-10-201, plus costs of jury service as a part of his sentence. Such costs shall be limited to expenses specifically incurred by the prosecution in connection with the proceedings against the defendant.
(2) The Court may not sentence a defendant to pay costs unless the defendant is or will be able to pay them. In determining the amount and method of payment of costs, the court shall take into account the financial resources of the defendant and the nature of the burden that payment of costs will impose.
(3) A defendant who has been sentenced to pay costs and who is not in default in the payment thereof may at any time petition the court that sentenced him for remission of the payment of costs or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or his immediate family, the court may remit all or part of the amount due in costs. ... (Emphasis added.) In two different cases the constitutionality of the foregoing statute

has been upheld against claims of a violation of due process rights under the Constitution. State v. Weinberger (1983), 204 Mont. 278, 306, 665 P.2d 202, 217; State v. Pease (1987), 227 Mont. 424, 434, 740 P.2d 659, 665.

The primary argument on the part of the defendants is that the due process rights of the defendant were denied when they were required to pay costs attended to a change of venue where pretrial publicity requiring the change was created and encouraged by the State. Defendants urge this Court to adopt a rule which would not allow costs to be awarded where the State was primarily responsible for extensive pretrial publicity.

As pointed out by the State, the record does not contain any evidence to support the contention that the State was primarily responsible for pretrial publicity and the State vigorously contests such factual assertions. The State properly points out that no motion concerning this issue was made to the District Court and no hearing was requested on this issue in the District Court. As a result, there are no findings and conclusions of the District Court for this Court to review, nor is there any hearing record containing testimony from witnesses. We conclude that the State is correct that the assertion that the State somehow caused the extensive pretrial publicity is not sufficient to raise an issue on the matter of jury costs. As a result we will not consider this for the first time on appeal.

We conclude that the plain and unambiguous language of § 46-18-232, MCA, establishes that the District Court properly assessed all costs associated with jury service.

We hold the District Court properly charged Fertterers with jury costs.

The District Court is affirmed with the exception of our remand for recalculation of restitution under Part V.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON AND McDonough concur.

JUSTICE GRAY

concurring in part and dissenting in part.

I concur in that portion of the majority opinion which reverses the District Court’s charging of investigation costs to the Fertterers. It is my view that issues numbered one, three and four by the majority need not be reached. I dissent from the majority opinion on issue two as stated. In addition, I would restate that issue as whether the Fertterers properly could be charged with felony fish and game violations under the law in effect at the time and hold that such charges clearly are precluded by § 87-1-102(1), MCA (1989). I also dissent on the issue of imposing on the Fertterers the increased jury costs associated with change of venue.

The majority states issue two as whether Title 87, MCA, provides an exclusive remedy for the illegal taking of game. I conclude that, with only specific exceptions, it does.

Title 87 constitutes the legislature’s enactment of a comprehensive statutory body of law regarding fishing, hunting and trapping in Montana. It ranges from simple licensing requirements to criminal penalties for certain activities relating to fish and game. One need look no further than the majority’s tortured construction of § 45-6-101, MCA, to see that rendering that statute application to the illegal taking of game was never within the contemplation or intent of the Montana legislature.

It is true that § 87-1-102(1), MCA (1989), references “any other state law pertaining to fish and game ....” Given the common understanding of “pertaining” as “having reference to” (Webster’s Ninth New Collegiate Dictionary), the reasonable interpretation of that language is that other laws specifically referring to fish and game may be located elsewhere in the Montana Code Annotated. Indeed, a close review of Title 87 indicates that such other laws pertaining to fish and game do exist. Section 87-1-102(4), MCA (1989), for example, refers to Title 387, chapter 47. That chapter of Title 37 addresses outfitters and guides and, therefore, contains other state law pertaining to fish and game. There is simply nothing reasonable about an interpretation which construes the “any other state law pertaining to fish and game,” language in § 87-1-102(1), MCA(1989), to mean “any other state law on any subject which the Montana Supreme Court can bend, mold or strain into covering a fish and game violation;” yet that is the effect of the majority’s opinion in this case.

In addition, the majority concedes that the violations at issue here — that is, the felony charges — are fish and game violations without regard to where in the Montana Code the statutory basis for those violations is found. Even if one accepted the majority’s interpretation of § 45-6-101, MCA, it was improper to charge the Fertterers with felony fish and game offenses under the law in effect at the time.

Section 87-1-102, MCA (1989), addresses penalties and punishments for fish and game violations. A person violating Montana’s fish and game laws “is, unless a different punishment is expressly provided by law for the violation, guilty of a misdemeanor and shall be fined not less than $50 or more than $500, imprisoned in the county jail for not more than 6 months, or both.” Misled, perhaps, by the unartful drafting of the statute, the majority focuses in on the “different punishment” language, dismisses the misdemeanor designation and fails to place the statute into context with those which follow.

Criminal offenses in Montana are classified or designated as misdemeanors or felonies for purposes of jurisdiction and statutes of limitations; the designation is based upon the maximum potential sentence which could be imposed for the offense. Section 45-1-201, MCA (1989). All criminal offenses must be designated as misdemeanors or felonies. Id.

Section 87-1-102(1), MCA (1989), provides that all fish and game violations, wherever in Montana law the offense may be found, are misdemeanors. This clear statement of intent by the Montana legislature is simply ignored by the majority.

The majority relies on “unless a different punishment is expressly provided by law” language in § 87-1-102(1), MCA (1989), to reach its conclusion that the Fertterers were properly charged with felony fish and game violations. It reasons that the placement of that clause prior to both the misdemeanor designation and the penalty provisions which follow it reflects legislative intent to provide for felony fish and game offenses. This analysis is flawed, given the clear misdemeanor designation. Notwithstanding the inappropriate placement of the “different punishment” language, it is clear that the clause was intended to modify the other penalty/punishment language in § 87-1-102(1), MCA (1989), and not the misdemeanor designation itself.

This intent is particularly clear by reading Secs. 87-1-102 and 87-1-111, MCA (1989), (Temporary, together. Section 87-1-102(1), MCA (1989), provides that all fish and game violations are misdemeanors and that, unless otherwise expressly provided, the penalty for fish and game misdemeanors is a fine of between $50 and $500, imprisonment in the county jail for not more than six months, or both.

Subsection (2) of § 87-1-102, MCA (1989), and § 87-1-111, MCA (1989), (Temporary), “expressly provide” for different penalties for certain fish and game misdemeanors. Section 87-1-102(2), MCA (1989), provides for increased fines; § 87-1-111, MCA (1989), {Temporary), provides for restitution in addition to the statutory fines and county jail terms. Neither of these statutes, however, impose a criminal penalty outside the range available for misdemeanors. See § 45-2-101(36) and (21), MCA (1989). Indeed, they merely provide for implementation of the “different punishment” language contained in § 87-1-102, MCA (1989). Absent statutory amendment to the clear statement that all fish and game violations are misdemeanors, no felony designations or punishments are authorized.

The soundness of this interpretation and analysis is best illustrated by a brief review of 1991 legislative action regarding fish and game violations. First, the 1991 legislature passed Senate Bill 240 as Chapter 277, Laws of 1991. The title of Senate Bill 240 begins “An Act to generally revise the law regarding fish and game misdemeanor penalties;”. This is a clear reflection of the fact that, at that time, all fish and game violations were misdemeanors. Indeed, Section 2 of Senate Bill 240 restructures § 87-1-102, MCA (1989), by placing the “different punishment” language after the specific punishments provided; as suggested above, this was always the intended meaning of the “different punishment” language. Importantly, Section 2 also inserted the language “except if a felony is expressly provided by law;” again, this is a clear statement by the legislature that, until its 1991 action, all fish and game violations were misdemeanors.

The 1991 legislature then proceeded to create specific felony fish and game violations. It did so via Senate Bill 239, enacted as Chapter 329, Laws of 1991. The title of that bill begins “An Act establishing as felonies the sale of unlawfully taken wildlife and the possession of unlawfully taken wildlife having a value of more than $1,000;” (emphasis added). These are, of course, the very offenses committed by the Fertterers. A clearer statement of legislative intent to convert such offenses from misdemeanors to felonies hardly can be imagined.

In sum, it is my view that the Fertterers improperly were charged with felony offenses. I would reverse the felony convictions.

I would also reverse the District Court’s imposition of the jury costs associated with the change of venue. While I have serious reservations about the entire notion of assessing the costs associated with asserting the constitutional right to a jury trial against a convicted defendant, those fundamental questions about this Court’s Weinberger and Pease decisions can await another day. In upholding the assessment of such costs, absent an inability to pay, this Court stated in Weinberger that “Montana’s statute does no more than deprive a ‘financially able defendant of available funds which, in fairness, should be remitted to the public coffers.’” Weinberger, 204 Mont. 278 at 306 (citations omitted). In this case, application of the statute does much more.

Here, the District Court stated that “there is a great likelihood that prejudice exists so that the Defendants could not receive a fair trial from an unprejudiced and impartial jury” in Cascade County. It exercised its discretion to grant defendants’ motion “in order to assure a fair trial.” Because of the location in Cascade County of the extensive physical evidence to be offered at trial, the court determined that, “as a practical matter,” it was better to bring in a jury from Kalispell than to transfer the case to another county where a fair trial could be held. If the latter option had been utilized, the usual “costs of jury service” contemplated by § 46-18-232(1), MCA, would have been incurred and assessed.

Surely it offends every notion of fair play, if not due process, to penalize these defendants for their inability to obtain a fair trial in Cascade County. Just as surely it offends such notions where the District Court chose one option rather than the other, under § 46-13-204, MCA, in ensuring a fair trial and the significantly increased expense of that option, according to the majority, can be imposed on the Fertterers. I cannot agree.

JUSTICE TRIEWEILER joins in the foregoing concurring and dissenting opinion of Justice Gray.

JUSTICE HUNT joins in the foregoing concurring and dissenting opinion of JUSTICE GRAY.


author: JUSTICE HARRISON

text:
    GLORIA J. WEAVER, Claimant and Appellant, v. BUTTREY FOOD AND DRUG, Employer/Insurer, Respondent and Cross-Appellant.
    No. 92-235.
    Submitted on Briefs September 10, 1992.
    Decided October 29, 1992.
    49 St.Rep. 897.
    255 Mont. 90.
    841 P.2d 476.

      For Appellant: Richard J. Martin, Alexander, Baucus & Linnell, Great Falls.
    For Respondent: G. Curtis Drake, Keller, Reynolds, Drake, Sternhagen & Johnson, Helena.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the Workers’ Compensation Court, the Honorable Timothy W. Reardon presiding. Claimant Gloria Weaver (Weaver) appeals the Workers’ Compensation Court judgment that she is not entitled to past and present temporary total disability benefits for certain injuries incurred during the course and scope of her employment at Buttrey Food and Drug. Respondent Buttrey Food and Drug (Buttrey) cross-appeals the Workers’ Compensation Court judgment that Weaver’s back condition is causally related to her work injury. We affirm.

Weaver was injured on June 15,1986, while working as a checker at the Buttrey store in Cut Bank, Montana. At the time of the accident she was a 46-year old high school graduate and married with two dependent children. She had been working at the same Buttrey store for approximately twenty-one years.

The accident occurred when a customer pushed a cart piled high with large canned goods through Weaver’s checkstand. When Weaver opened the front gate of the cart, the cans began to tumble out. To avoid being struck by a can, Weaver jumped backward and sideways with a twisting motion. As she did so, she felt a hot searing pain in her left thigh. She finished her shift, but by that time two large lumps had formed on her thigh. Her supervisor immediately took her to a doctor who diagnosed the injury as a hematoma and recommended elevation and ice packs.

Weaver continued to work at the Buttrey store until September 17, 1986. By then her leg was bothering her so much that she took vacation and then, on the manager’s recommendation, a leave of absence. Buttress insurer paid benefits for temporary total disability from September 17, 1986 until April 4, 1987. During this period Weaver consulted Dr. J. W. Bloemendaal, an orthopedic surgeon in Great Falls. Dr. Bloemendaal diagnosed a possible rupture of the facia around Weaver’s left quadriceps and prescribed physical therapy and exercise to strengthen the muscle. On March 18, 1987, Dr. Bloemendaal wrote to a Workers’ Compensation adjuster, stating that in his opinion Weaver could return to work. Buttrey already had terminated her employment, however, because the six-month disability leave allowed by her union contract had expired. Weaver never returned to the Buttrey store, which burned down in November 1987, though she did apply for work at the new store in 1988.

Weaver considered Dr. Bloemendaal’s letter a “release,” but she did not feel that she could return to work because her leg was weak and she still had lumps on her thigh and numbness down the side of her leg and in her foot. Buttrey’s insurer refused to extend her temporary total disability benefits, however, and after a hearing in July 1987, the Workers’ Compensation Court later denied temporary total disability benefits on the grounds that her leg injury had reached maximum healing on March 18, 1987.

On June 4, 1987, Weaver’s injured leg “gave out” while she was climbing a bleacher at a Little League game. She fell, injuring her left knee and reinjuring her left thigh. Dr. Bloemendaal saw her two weeks later. In his July 1989 deposition, he testified that she would not have fallen “if she had had a good strong quadriceps” and that even after the June 4 accident she still should be able to work if she kept that muscle “in tone and function.” Weaver continued to experience pain, weakness, and numbness in her leg, and at the time of trial in December 1991 she still limped, found it difficult to drive a car, and had curtailed her homemaking and recreational activities.

In August 1988, Weaver petitioned the Workers’ Compensation Court for a determination of permanent partial disability benefits under Sec. 39-71-703, MCA(1985). At the hearing in November 1988, the former manager of the Cut Bank Buttrey store testified that Weaver had worked for him for nearly ten years, that she was an “excellent employee,” and that he would rehire her if she had a release to return to work and he had a position available. Weaver’s vocational rehabilitation counselor testified that Weaver would be physically capable of half-time work as a checker. The court found that Weaver was permanently partially disabled but held that “measurement of her post-injury earning capacity is impossible because of [Weaver’s] failure to introduce evidence necessary for such determination.”

Weaver interpreted the court’s order as a request for additional proof of disability. Accordingly, she consulted Dr. Lawrence Iwersen of the Kalispell Orthopedic Clinic in May 1989, without seeking approval from Buttrey’s insurer. Dr. Iwersen recommended “nerve testing” and referred her to Dr. John Stephens, a rehabilitation specialist in Kalispell. Dr. Stephens saw Weaver twice in June 1989, without approval from Buttrey’s insurer. He ordered magnetic resonance imaging (MRI), which showed a “moderate disk bulge” in her lower back, and conducted an electromyograph study (EMG), which showed no evidence of radiculopathy, or nerve root damage. Despite the negative EMG results, Dr. Stephens wrote in his notes for June 13, 1989 that “it is certainly possible that her work-related injury resulted in the back problem as well as it is possible that the alteration in her gait has aggravated this.”

Dr. Stephens referred Weaver to Dr. James Mahnke, a Kalispell neurologist. Dr. Mahnke performed a complete examination in August 1989 and diagnosed a “structural disease of the lower spine,” which “may respond only to surgery.” Weaver learned of this diagnosis for the first time when she saw Dr. Stephens again in May 1990. In his notes for that consultation, Dr. Stephens stated that Weaver needed further evaluation and treatment, adding, “I would feel on a more probable than not basis that her problem is related to her work-related injury.”

In August 1990, Dr. Stephens referred Weaver to another neurologist, Dr. Stephanie Herder in Great Falls. Dr. Herder recommended nerve conduction studies and another EMG, “in order to definitively rule out or rule in surgery.” Dr. Stephens did repeat the EMG in January 1991 and again found no clear evidence of radiculopathy.

In the meantime, Weaver was working at the tavern that she and her husband had bought in 1985. By 1988 she had taken over the bookkeeping function, replacing a part time employee who had been paid $6.50 an hour. This work occupied Weaver for three hours each weekday morning. During the summer of 1988, she began to assume afternoon and evening bartending duties as well. The bar was equipped with a stool at each end so that she could sit down when not waiting on customers. By 1989 Weaver had taken over the duties of three part-time bartenders, and by the time of the trial in December 1991, she and her husband were doing all the work required to rim the business, seven days a week.

In September 1991, the Weavers sold the tavern to Weaver’s sister and her husband. At her deposition in October 1991, Weaver said that the “anticipated arrangement” for running the tavern would include herself and her husband, “mainly to give us a way to earn a living until things [her Workers’ Compensation claim] are resolved.” At the time of the trial in December 1991, Weaver and her husband were paying themselves, as they had in the past, by “taking cash out of the bar.”

Weaver petitioned the Workers’ Compensation Court for the third time in May 1991, seeking reinstatement of her temporary total disability benefits retroactively and prospectively, as well as medical benefits, costs and attorney’s fees. The basis of her claim was her lower back condition, which had not been reported as an injury at the time of her accident at the Buttrey store in 1986 and therefore had not been considered when her benefits were terminated on April 4, 1987.

The court held that although Weaver was not entitled to temporary total disability benefits, Buttrey’s insurer was responsible for the medical expenses related to her “low back pain” because Dr. Stephens had related the back pain to the June 15,1986 injury. The court found that “a preponderance of the medical evidence” supported the conclusion that Weaver’s lower back injury was caused by the June 15, 1986 accident or by the change in her gait due to her left leg pain. The insurer was held hable only for future medical bills for Weaver’s lower back condition, however, because Weaver had not obtained its approval for the examinations performed by Drs. Iwersen, Stephens, Mahnke, and Herder. The court also found that because Buttrey had not unreasonably refused payment of disability benefits, Weaver was not entitled to the 20 percent penalty authorized by Sec. 39-71-2907, MCA (1985). Weaver was awarded costs and attorney’s fees on the issue of medical benefits only.

The issues on appeal are:

(1) Did the Workers’ Compensation Court err in finding that Weaver’s back condition was caused by her 1986 work injury?

(2) Did the Workers’ Compensation Court err in refusing to reinstate Weaver’s temporary total disability benefits for injuries sustained at the Buttrey store on June 15, 1986?

(3) Did the Workers’ Compensation Court err in denying Weaver medical benefits for the diagnostic work done on her lower back during the 1989-91 period?

(4) Is Weaver entitled to a penalty for unreasonably withheld temporary total disability and medical benefits?

(5) Is Weaver entitled to reasonable costs and attorney’s fees for the disability issue as well as for the medical benefits issue?

I

The first issue is whether the Worker’s Compensation Court erred in finding that Weaver’s lower back injury was caused by her accident at the Buttrey store in June 1986. We will not substitute our judgment for that of the Workers’ Compensation Court when substantial, credible evidence supports the court’s conclusion, as it does here. McIntyre v. Glen Lake Irrigation Dist. (1991), 813 P.2d 451, 455, 48 St.Rep. 579, 581; Anderson v. Hammer (1992), 826 P.2d 931, 934, 49 St.Rep. 165, 167.

The immediate, visible consequences of Weaver’s accident had to do with her left leg. Because she told the physicians who examined her during the next several months that her leg hurt, they focussed exclusively on the leg. Not until May 1989, after Weaver had experienced pain and weakness in her leg for three years, did a doctor suspect that she might have a back problem. The medical evidence accumulated since then establishes that she has a damaged disc in her lower spine but does not establish what caused this injury. It may have been a pre-existing condition that was aggravated by the accident itself or by the fact that the pain in her left leg caused her to limp. Whether it was caused or merely aggravated by the accident, however, it is a compensable disability. Belton v. Carlson Transport (1983), 202 Mont. 384, 386, 658 P.2d 405, 407 (“An accident is compensable if the traumatic event or unusual strain aggravates a pre-existing injury.”). See Jones v. St. Regis Paper Co. (1981), 196 Mont. 138, 639 P.2d 1140 (claimant injured his back while working as a logger in 1976 but was entitled to benefits for subsequent disability caused by bending and lifting activities in his work as a lumber grader). We hold that substantial, credible evidence supports the Worker’s Compensation Court’s award of medical benefits for Weaver’s lower back condition.

II

Given that Weaver’s back injury is compensable, the second question is whether she is entitled to temporary total disability benefits for that injury. To be entitled to temporary total disability benefits, a claimant must meet the requirements of Sec. 39-71-116(19), MCA (1985), which defines temporary total disability as:

a condition resulting from an injury as defined in this chapter that results in total loss of wages and exists until the injured worker is as far restored as the permanent character of the injuries will permit.

To demonstrate “total loss of wages,” a claimant must establish what jobs constitute her normal labor market and prove complete inability to perform the duties associated with those jobs. Metzger v. Chemetron Corp. (1984), 212 Mont. 351, 355, 687 P.2d 1033, 1035. Here, Weaver failed to meet her burden of proving a complete inability to perform the jobs within her normal labor market. She had been working for at least three years as a bookkeeper and bartender, and she had applied for a job as checker in the new Cut Bank Buttrey store. At the trial in December 1991, she stated that she thought she could work as a checker and would “give it a good try,” but that she was waiting for a resolution of her Workers’ Compensation claim before applying at the new Cut Bank IGA store. As the Workers’ Compensation hearing examiner put it, “[t]he evidence of her ability to work is overwhelming.”

Weaver asserts that she has not been “gainfully employed” since her temporary benefits were terminated in March 1987. She is paid no money as a direct wage for her work at the tavern, she says, and receives no benefits. This Court, however, has adopted the “economic gain” standard for determining eligibility for total disability benefits. Anderson v. Hammer (1992), 826 P.2d 931, 936, 49 St.Rep. 165, 168. Under the Workers’ Compensation Act, “wages” simply means gross earnings, or “anything of value received as consideration for work ... constituting real economic gain to the employee.” Scyphers v. H & H Lumber (1989), 237 Mont. 424, 426, 774 P.2d 393, 394.

Here, Weaver and her husband took a “draw” on the tavern income to meet their living expenses. Weaver’s contribution to the effort that generated this income was at least equal to her husband’s. In her October 1991 deposition, for example, she stated that she worked in the bar “three or four nights a week” in addition to her daily bookkeeping duties, and that “I can’t handle it by myself, but my husband is not a bookkeeper and he’s not a bartender. He don’t like it and he’s not good.” Whether Weaver’s share of the tavern receipts is described as a “draw” or “wages,” it has covered her living expenses for at least four years. Indubitably, it is “real economic gain.”

The Workers’ Compensation Court also based its denial of temporary total disability benefits on its previous finding that Weaver had reached maximum healing with respect to her leg injury. That finding was based on Dr. Bloemendaal’s “release” of March 18, 1987. Weaver argues that Dr. Bloemendaal’s opinion referred only to her leg injury, that further evaluation and treatment was needed for the back injury that was discovered in 1989, and that she therefore has not reached maximum healing and is entitled to temporary total disability benefits. We do not address this issue because we hold that Weaver’s earnings from the tavern alone disqualified her for those benefits.

Ill

Next, we must decide whether Weaver is entitled to medical benefits for the diagnostic work done on her back during the 1989-91 period. The Workers’ Compensation Court found that Buttrey’s insurer is not responsible for Weaver’s medical expenses during this period because Weaver neither requested nor obtained authorization from the insurer for her visits to Drs. Iwersen, Stephens, Mahnke and Herder. Rule 24.29.1403, ARM, requires authorization from the insurer for changing a worker’s treating physician or referring a worker to a medical specialist. Carroll v. Wells Fargo Armored Service Corp. (1989), 240 Mont. 151, 783 P.2d 387.

Weaver argues that under Rule 24.29.1403 the injured worker selects the initial treating physician; that Drs. Iwersen and Stephens were the “initial treating physicians for her back injury;” and that under Sec. 39-71-704(1), MCA (1985), Buttrey’s insurer is required to pay for reasonable services provided by those doctors. Further, Weaver argues, because Drs. Mahnke and Herder were neurological consultants for Dr. Stephens, Buttrey’s insurer should pay for their services too.

Weaver did not, however, consult Dr. Iwersen about her back problem. Her purpose in calling him was to find support for her Workers’ Compensation claim, for which Dr. Bloemendaal was the initial treating physician. It is undisputed that she did not ask for authorization to consult Dr. Iwersen or Dr. Stephens and that she also did not seek approval for Dr. Stephens’ subsequent referrals to other doctors. We hold that the Workers’ Compensation Court applied Rule 24.29.1403 correctly in denying medical benefits for the 1989-91 period while awarding future benefits for medical expenses incurred in compliance with the rules.

We distinguish our holding here from our holding in Chapman v. Research Cottrell (1991), 248 Mont. 353, 811 P.2d 1283. In Chapman, the Workers’ Compensation Court denied medical benefits to a claimant who had consulted a neurologist without authorization from her employer’s insurer. We reversed on the grounds that the doctor designated by the insurer as the initial treating physician was not selected by the claimant and had performed no treatment other than to prescribe medication, while the neurologist was selected by the claimant and was the first doctor to diagnose her injury correctly. Here, Dr. Bloemendaal, who was considered by Buttrey’s insurer to be Weaver’s initial treating physician, treated Weaver’s leg extensively from October 1986 through June 1987. His letter of March 18,1987 was regarded by both Weaver and the insurer as a “release” indicating that her leg was healed enough for her to return to work. Moreover, Weaver waited nearly two years after her last visit to Dr. Bloemendaal to consult Dr. Iwersen, while the claimant in Chapman consulted the neurologist within a month after her accident. We held, therefore, that the Chapman claimant had only one initial treating physician, for whom the insurer’s authorization was not required. Here, Weaver changed her treating physician, which does require authorization.

IV

Next, we consider whether Weaver is entitled to a penalty for unreasonably withheld benefits. Section 39-71-2907, MCA (1985), provides that the Workers’ Compensation Court may increase a claimant’s benefit by 20 percent if it finds that payment of compensation has been unreasonably delayed or refused by an insurer. Unreasonableness is a question of fact, and we will not overturn the trial court’s finding if it is supported by substantial evidence. Milender v. Carpenter (1987), 230 Mont. 1, 6, 748 P.2d 932, 935.

Here, Weaver argues that Buttrey’s insurer unreasonably withheld payment of disability and medical benefits for her back injury. We disagree. Since it was not self-evident that this injury was caused by Weaver’s accident at Buttrey’s in June 1986, and since the medical evidence linking the injury to the accident was submitted at least three years after the accident occurred and was somewhat equivocal, denial of the claim was not unreasonable. We hold, therefore, that substantial credible evidence supports the Workers’ Compensation Court’s denial of the 20 percent penalty.

V

Finally, we address the issue of costs and attorney's fees. Under Sec. 39-71-611, MCA (1985), an insurer who denies liability for a claim that is later adjudged compensable by the Workers’ Compensation Cotut is hable for reasonable costs and attorney’s fees. Here, Buttrey’s insurer has consistently denied liability for Weaver’s back injury, which the Worker’s Compensation Court and now this Court have adjudged compensable. Weaver argues that she therefore is entitled to all costs and attorney’s fees incurred in connection with this claim for a back injury. The court awarded costs and attorney’s fees for litigating the issue of medical benefits only.

We held in Buckman v. Montana Deaconess Hospital (1989), 238 Mont. 516, 521, 776 P.2d 1210, 1213, that attorney’s fees should not be awarded for issues on which the claimant did not prevail, for the same reason that an attorney would not receive attorney fees in a case where he did not prevail on any issue. Here, Weaver is not entitled to attorney’s fees and costs associated with the issue of disability benefits because the Workers’ Compensation Court found that she is not entitled to disability benefits at this time. Although, as the court pointed out, Weaver might be entitled to permanent partial disability benefits if she were to apply for them, she is not entitled to attorney’s fees on this issue now. At present, the court has found only the medical benefits to be payable. Therefore, Weaver is entitled to costs and attorney’s fees only for that claim.

Affirmed on all issues.

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


author: JUSTICE WEBER

text:
    REVO SOMERSILLE, Plaintiff and Appellant, v. COLUMBIA FALLS ALUMINUM COMPANY, a Montana corporation, JEROME BROUSSARD and BRACK DUKER, Defendants and Respondents.
    No. 91-485.
    Submitted on Briefs March 12, 1992.
    Decided November 4, 1992.
    Rehearing Denied December 15, 1992.
    49 St.Rep. 904.
    255 Mont. 101.
    841 P.2d 483.

      For Plaintiff and Appellant: Allan M. McGarvey, McGarvey, Heberling, Sullivan & McGarvey, Kalispell.
    For Defendants and Respondents: Donald C. Robinson, Poore, Roth & Robinson, Butte.
   JUSTICE WEBER

delivered the Opinion of the Corut.

Plaintiff, Revo Somersille, appeals from an order by the District Court of the Eleventh Judicial District, Flathead County, granting summary judgment to defendants, Columbia Falls Aluminum Company (CFAC). We affirm in part and reverse in part.

We state the issues as follows:

1. Was the “Termination Agreement” between plaintiff and CFAC a valid enforceable agreement?

2. Was the plaintiff barred under the Termination Agreement from claiming any additional share of profits for distribution after his termination from employment?

This case arose as a wrongful discharge action brought under the provisions of the Montana Wrongful Discharge from Employment Act, Sec. 39-2-901, et seq., MCA. Plaintiff is a certified public accountant, and was the chief financial officer for CFAC. In September 1989, one year prior to the filing of the present action, CFAC furnished a proposed “Termination Agreement” to plaintiff for his consideration. During the next four weeks plaintiff reviewed such Agreement with his attorney and with his wife. He also negotiated several changes in the agreement. On September 29, 1989, he executed the revised Termination Agreement. The Termination Agreement included the following provisions:

1. Termination. Somersille’s employment with the Company will be terminated effective September 30, 1989.
2. Compensation. Somersille shall be entitled to receive as severance pay:
(1) his present salary through June 30, 1990; such salary to be paid in three equal installments on November 15,1989; February 15, 1990, and May 15, 1990, and
(2) an amount equal to the profit sharing distribution to which Somersille normally would be entitled under the Company’s profit sharing plan based on his employment from January 27, 1989 to September 30,1989. This profit sharing distribution will be made to Somersille at the time profit sharing distributions for 1989 are made to all employees, currently contemplated for January 1990.
3. Medical Insurance. For the eighteen months ended March 31, 1991, Somersille will be provided medical insurance under the Company’s medical insurance policy in force at the time. The cost of this insurance will be reimbursed to Somersille within two weeks of his paying the monthly premium due for such insurance. In the event Somersille obtains medical insurance under another insurance plan, the Company’s obligation to provide the aforesaid insurance will terminate upon the effective date of Somersille’s new insurance.
4. Medical Insurance for Wife. At the end of the above eighteen-month period (March 31, 1991) and without limitation as to time, the Company will provide medical insurance to Somersille’s current wife, Carmen, under the Company’s medical insurance policy in force at the time. The Company will reimburse Somersille within two weeks of his paying the monthly premiums due for each insurance up to the cost of Plan 1, High Option Major Medical $500 deductible as provided for in the medical plan in effect at the time. The Company’s obligation to provide this insurance will terminate at the time of either his wife’s death or at the effective date of new medical insurance coverage for Carmen Somersille.
7. Waiver of Claims. Both parties hereby waive and relinquish any and all claims, known and unknown, and do hereby mutually release and forever discharge one another, including all stockholders, directors and officers of the Company, from any and all actions, suits, debts, agreements, obligations, costs, expenses and other liabilities relating to Somersille’s employment relationship with the Company. The foregoing shall include, but not be limited to, any claim for past salary, wrongful termination or profit sharing.
Each party represents that it has had the opportunity to consult with an attorney, and has carefully read and understands the scope and effect of the provisions of this Agreement. Neither party has relied upon any representations or statements made by the Agreement. The parties agree that this Agreement is the result of a compromise . . .

In accordance with the Termination Agreement, plaintiff’s employment terminated September 30, 1989. CFAC paid plaintiff in excess of $48,000 as his present salary through June 30, 1990, under paragraph 2(1). In addition, on January 3,1990, CFAC paid plaintiff $49,710 as the profit sharing distribution provided for under paragraph 2(2). Plaintiff also was reimbursed $4,320 for the cost of medical insurance under paragraph 3. As a result, plaintiff received over $102,000 under the terms of the Termination Agreement, and $15,000 relocation allowance remained available if he chose to relocate by June 30, 1991.

Approximately one year after his termination in September 1989, the plaintiff filed the present action. After CFAC filed a motion for summary judgment, plaintiff filed an amended complaint, alleging wrongful discharge, fraud, breach of contract, and other common law tort and contract claims. He also alleged that CFAC had breached its obligations under the profit sharing plan with its employees, and sought losses of profit sharing to which he was entitled both before and after his termination from employment date. With regard to the waiver of all claims set forth in paragraph 7 of the Termination Agreement, plaintiff contends the waiver should be set aside because it was fraudulently induced, in violation of public policy, and unconscionable. On August 13,1991, the District Court granted defendants’ motion for summary judgment. Plaintiff appeals.

I

Was the “Termination Agreement” between plaintiff and CFAC a valid enforceable agreement?

Plaintiff maintains that the release provision in the termination agreement was procured through fraudulent misrepresentation, undue influence and is unconscionable. He maintains that defendants falsely promised and misled him so as to cause him to believe that he had previously received his proper share of profit sharing with the intent to induce him to release them from any claims. Plaintiff further maintains that defendants used the fact that his wife was seriously ill as leverage in inducing him to sign the Termination Agreement. In his affidavit, plaintiff averred:

30. Defendants took advantage of my confidence and revelation of my wife’s illness and the emotional and economic stresses of such illness by offering to continue my wife on the company health insurance coverage as described in the “Termination Agreement” if I would agree to sign such purported “Termination Agreement”.

The District Court concluded there was no evidence of mistake, undue influence, menace or fraud in the record. It stated:

Plaintiff Somersille consulted with an attorney and had discussed the agreement thoroughly with his wife before he signed it. Plaintiff had the agreement in his possession for review for almost a month. After he consulted with an attorney, he met and discussed the agreement again with company officials. He made specific proposals for inclusion in the agreement, some of which were agreed to by the company. Plaintiff insisted that the principal owner of the company sign the agreement, for additional security for himself. He discussed with his wife the consequences of signing the agreement. He was not under any other incapacity (drugs, physical duress, etc.) when he signed the agreement. He thoroughly read it and understood its terms. He was aware that in signing the agreement he was making a firm agreement to not bring the suit which he now seeks to maintain. (Emphasis added.)

With specific regard to the element of fraud, the District Court further stated:

The plaintiff in his affidavit has recited various facts which, he claims, give rise to an issue of fact over his claim that the Defendants engaged in fraud to induce him to sign the release agreement. However, it appears from his own deposition and affidavit that he was fully aware of the various incidents and occurrences, upon which he now relies to claim fraud, before he executed the release document... There is no evidence before the court which suggests that there was fraud on Defendants’ part in inducing the Plaintiff to sign the termination agreement. Any “discrepancies” or irregularities of either party were known to the Plaintiff and waived by him when he signed the termination agreement containing the release of all claims.

The District Court then concluded that the execution of the release agreement was knowing and voluntary and fully ratified by him, stating:

Again, to the extent that Plaintiff suggests that Defendants engaged in a violation of public policy in its pre-release conduct, those facts predated the signing of the release and were fully known to the Plaintiff when he consulted with legal counsel before signing the release.
The Plaintiff’s execution of the release document was knowing and voluntary, and was subsequently fully ratified by him when he accepted all of the monetary benefits of the Termination Agreement that were still being paid to him when he brought his suit. See Constant v. Continental Tel. Co., 745 F.Supp. 1374 (D. Ill. 1990). He should not be now allowed to engage in litigation to fully explore and develop the full dimensions of the potential claims which he was releasing when he executed the termination agreement.

Defendants maintain that plaintiff’s voluntary relinquishment of all potential claims against CFAC precluded him from pursuing this action. Defendants maintain that plaintiff read and understood the terms of the Termination Agreement; thus, it is a valid and enforceable contract entered into with the free and mutual consent of the parties. Defendants contend that the Utah Supreme Court case of Horgan v. Indus. Design Corp. (Utah 1982), 657 P.2d 751, is persuasive authority here.

In Horgan, a former employee brought an action against his former employer seeking to recover additional compensation following his termination and after he had signed an agreement by which he was paid stock redemptions, profit sharing, three months’ termination pay, vacation pay, medical and health benefits, and other miscellaneous payments. The parties also signed a release precluding either party from ever asserting any employment-related claim against the other. Horgan claimed that the release was invalid because he signed it under duress as a result of the unexpected loss of his employment, thus negating the mutual assent necessary for a valid contract.

The Utah Court defined duress as “any wrongful act or threat which actually puts the victim in such fear as to compel him to act against his will”. Horgan, 657 P.2d at 753. The Court went on to state that to constitute legal duress, the defendant must have acted against his will and have had no other viable alternative. Horgan, 657 P.2d at 754. The Court further stated that the “mere fact of an improvident or bad bargain or a feeling of latent discontent is not a sufficient basis to avoid the effect of an otherwise valid release.” Horgan, 657 P.2d at 754. Thus, the Horgan Court concluded that the plaintiff did not sign the release under duress, but rather that he was someone who after signing, and upon subsequent reflection, concluded he could have received more out of the agreement. Significantly, the Horgan Court also stated that “emotional distress is not the equivalent of duress and is inadequate to invalidate the release”. Horgan, 657 P.2d at 753.

In arguing that he was unduly influenced, the plaintiff in this case contends that his wife’s illness created emotional distress and increased financial demands, enhanced his need to remain in the same community, increased bis dependence on the CFAC group health insurance plan, and enhanced the need to avoid further stress upon his family.

Plaintiffs arguments in support of undue influence parallel those made in the case of Horgan discussed above. His undue influence claim necessarily includes an argument of economic duress in this case. Thus, we will discuss the elements of both undue influence and economic duress.

Section 28-2-407, MCA, provides that undue influence consists of:

(1) the use by one in whom a confidence is reposed by another or who holds a real or apparent authority over him of such confidence or authority for the purpose of obtaining an unfair advantage over him;
(2) taking an unfair advantage of another’s weakness of mind; or
(3) taking a grossly oppressive and unfair advantage of another’s necessities or distress.

Plaintiff has failed to present facts sufficient to demonstrate -undue influence under the foregoing statute.

This Court has recently addressed economic duress in Hoven v. First Bank (N.A.)-Billings (1990), 244 Mont. 229, 234, 797 P.2d 915, 919, where we stated that the three elements of economic duress are (1) a wrongful act that; (2) overcomes the will of a person; (3) who has no adequate legal remedy to protect his interests. Plaintiff has failed to present facts demonstrating economic duress either under the Horgan test or the Hoven test.

In order to prove he was defrauded, plaintiff must prove all of the nine elements of fraud, including that he was ignorant of the falsity of any misrepresentations. See Batten v. Watts Cycle & Marine, Inc. (1989), 240 Mont. 113, 117, 783 P.2d 378, 380-81. As the District Court stated, the facts plaintiff relies on for his claims of fraud predated the signing of the release and were fully known to him when he consulted with his legal counsel before signing the release. We agree with the conclusion of the District Court that the plaintiff has failed to provide evidence of fraud sufficient to warrant a setting aside of the Termination Agreement.

Summary judgment is only proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. Any inferences to be drawn from the factual record must be resolved in favor of the party opposing summary judgment. Summary judgment is never a substitute for a trial on the merits. Boylan v. Van Dyke (1991), 247 Mont. 259, 266, 806 P.2d 1024, 1028. In granting summary judgment, the District Court held that by signing the Termination Agreement, plaintiff voluntarily relinquished all potential claims against CFAC and was precluded from bringing this action.

Plaintiff has failed to raise any issues of material fact with regard to his execution of the Termination Agreement. The District Court set forth its reasons for determining that the Termination Agreement was valid and enforceable. We agree with the District Court.

We hold that the Termination Agreement executed by plaintiff and CFAC was a valid enforceable agreement.

II

Was the plaintiff barred under the Termination Agreement from claiming any additional share of profits for distribution after his termination from employment?

Plaintiff claims an additional share of profits is due to him for distributions made prior to his termination from employment. As more folly appears in this part, we have concluded that plaintiff has failed to raise any issue of material fact with regard to such prior profit distributions, and that his claim in connection with such prior profit distributions is barred under his waiver of claims. As a result, this issue will be limited to consideration of the claimed share of profits which were to be distributed to the plaintiff after his termination from employment. Such profits were distributed during January 1990.

The record before us demonstrates that the Profit Sharing Plan covering all employees of CFAC in part provided:

— The Board of Directors of the Columbia Falls Aluminum Company will determine each year the amount of profits available for distribution. Fifty percent of the distributable profits as determined by the parent company will be distributed to employees.
— The profit sharing pool will be divided among the salaried and hourly groups based on the ratio of each group’s pay to total pay.
— The resultant salaried profit sharing will be further divided among all salaried employees who were employed on the last day of the fiscal year, using a ratio of the individual’s fiscal year-to-date pay to the total covered salaried payroll for the fiscal period.
— The salaried employees will be given a choice of cash or deferral (in 25% increments). If cash, it will be taxed as ordinary income. If deferred, tax is delayed until money is received. The deferral amounts will be held in a separate account within the new savings plan. It will be a 401(k)-type contribution: unavailable for withdrawal, 100% (sic) vested, and subject to the discrimination tests of 401(k).
— The resultant hourly profit sharing pool will be further divided among all hourly employees, in a manner to be determined by the company and the union.

Plaintiff maintains that in January 1990, he was to have received the profit sharing to which he was entitled -under the promises of the employment contract, Profit Sharing Plan and Termination Agreement. He maintains that instead, he received a profit sharing distribution payment which reflected a profit sharing declaration which was disproportionately small. He further maintains that he did not become aware that the profit sharing distribution was disproportionate to the profit sharing expected until the post-termination distribution in January 1990. In his affidavit filed in support of his opposition to summary judgment, plaintiff averred the following:

20. Contemporaneous with the calculation declaration and distribution in January and February of 1989, very large sums of money were transferred to Los Angeles, out of the control or record of my office such that I was unable to determine whether profits distributable and/or actually distributed were equally divided between employees and employers.
21. Subsequent declarations and distributions of profit sharing do not appear to be proportionate to the vast sums of money, profits and cash transferred from Columbia Falls to the Los Angeles office. 23. The only way to actually determine whether the profit sharing paid to CFAC employees is equal to the profit sharing promised would be to examine financial documents of the company that demonstrate actual profits, actual distributions (in any form) to owners, actual profit sharing payments, actual loans and interest on loans to owners or their interests and actual FICA and other tax payments, agreements and withholdings. Without such documents and evidence it would be impossible for me to give or secure an affidavit establishing the degree of discrepancy between profit sharing promised and profit sharing paid.

In considering the execution of the Termination Agreement with the release contained in paragraph 7, the District Court in its Order stated:

Plaintiff’s signature on the Termination Agreement represents his consent and agreement to enter into a valid and enforceable contract. For the valuable and considerable consideration of over $100,000 in compensation and benefits plaintiff agreed that he would “waive and relinquish any and all claims ...” (Emphasis supplied) that he had against the defendant. He further agreed to “release and forever discharge” the defendant “from any and all actions, suits ... and other liabilities relating to his employment relationship” with the company. Specifically, it was agreed that such release included a release of all claims arising from “wrongful termination” as well as past salary and specifically including “profit sharing.”
Plaintiff’s voluntary relinquishment of all potential claims against Defendant precludes him from pursuing this action. Because there are now no factual disputes before this Court as to any material issue, and the release affirmatively discharges any potential liability the defendant may have incurred because of Plaintiff’s termination, as a matter of law summary judgment should be granted in favor of Defendant.

We conclude that the District Court’s analysis is appropriate with regard to profit sharing to be paid for years prior to the termination of plaintiff’s employment. However, there are additional elements which the District Court did not consider with regard to the profit sharing distribution made in January 1990 to the plaintiff.

The District Court properly referred to paragraph 7 of the Termination Agreement which in pertinent part provided:

7. Waiver of claims. Both parties hereby waive and relinquish any and all claims, known and unknown, and do hereby mutually release and forever discharge one another... from all actions, suits, debts, agreements, obligations, costs, expenses and other liabilities relating to Somersille’s employment relationship with the Company. The foregoing shall include, but not limited to, any claim for past salary, wrongful termination or profit sharing.

The District Court then relied upon the foregoing waiver of claims and concluded that plaintiff’s claim for additional profit sharing to be distributed in January 1990 was clearly relinquished. In reaching that conclusion, the court did not consider the following pertinent portion of the Termination Agreement:

2. Compensation. Somersille shall be entitled to receive as severance pay:
(2) an amount equal to the profit sharing distribution to which Somersille normally would be entitled under the Company’s profit sharing plan based on his employment from January 27, 1989 to September 30, 1989. This profit sharing distribution will be made to Somersille at the time profit sharing distributions for 1989 are made to all employees, currently contemplated for January 1990.

While it is true that the waiver of all claims contained in paragraph 7 clearly applied to all profit sharing which had been made by the defendant prior to the termination of plaintiff’s employment, a different approach is required for the January 1990 distribution. In connection with that distribution, we conclude that both of the foregoing paragraphs 2 and 7 of the Termination Agreement must be considered. While it is true that the waiver is broad enough to cover all profit sharing in general terminology, we have the companion agreement by the defendant to pay Somersille an amount equal to the profit sharing distribution he normally would have been entitled to for his employment from January 27,1989 to September 30,1989, the date of his termination. The paragraph on waiver of claims should not be construed to include the consideration specifically provided for him under paragraph 2. By signing the Termination Agreement plaintiff should not be considered to have foreclosed his right to sue for the consideration he claims was to be furnished to him under paragraph 2.

The amount to be paid under paragraph 2 of the Termination Agreement was unknown to both the plaintiff and the defendant on the date of employment termination. Clearly the intent of the parties was that by January 1990, several months after plaintiff’s termination of employment, the defendant would calculate and pay the profit sharing payment to the plaintiff. In substance the Profit Sharing Plan required that 50 percent of the distributable profits as determined by the parent company, be distributed to the employees, with the division to be made among the various groups based upon the ratios of each group’s pay to the total pay. By his affidavits plaintiff has raised an issue of fact as to whether the profit sharing distribution actually made was incorrectly calculated and therefore disproportionately small. Plaintiff has also raised an issue of fact as to his contention that he did not become aware of the disproportionate nature of the profit sharing distribution until the actual distribution in January of 1990.

We conclude that plaintiff has raised issues of material fact with regard to the January 1990 profit distribution to the plaintiff. We therefore reverse the judgment insofar as it precluded the claim for profit sharing distribution contemplated for January 1990, and covering the period of plaintiff’s employment in 1989.

We therefore affirm on Issue I holding that the Termination Agreement was a valid enforceable agreement, and reverse and remand on Issue II for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, McDonough, hunt, gray and honorable Jeffrey SHERLOCK, District Judge, sitting for JUSTICE TRIEWEILER concur.