author: MR. JUSTICE SHEEHY MR. CHIEF JUSTICE TURNAGE

text:
    DARYLE R. MURPHY, as Guardian Ad Litem for L.C., Plaintiff and Appellant, v. STATE OF MONTANA, and the Department of Institutions for the State of Montana, Defendants and Respondents.
    No. 87-178.
    Submitted on Briefs Sept. 17, 1987.
    Decided Dec. 10, 1987.
    Rehearing Denied Feb. 11, 1988.
    748 P.2d 907.
    Anderson, Edwards & Molloy; Donald W. Molloy, Billings, Terry Seiffert, Gary Wilcox, Billings, for plaintiif and appellant.
    Kim Kradolfer, Agency Legal Services Bureau, Helena, for defendants and respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Daryle Murphy in his capacity as guardian ad litem for Linda Cawley appeals from an order of the District Court, First Judicial District, Lewis and Clark County, dismissing plaintiffs claims against the State of Montana and the Department of Institutions on the grounds that the statute of limitations had run. We reverse.

The issue before this Court is whether the District Court properly dismissed the plaintiffs complaint as barred by the statute of limitations.

The plaintiff was born in 1950. In 1963, at the age of 13, plaintiff was confined to the State Hospital at Warm Springs. From 1964 until 1975, while confined at the State Hospital, plaintiff was allegedly subjected to a wide variety of tortious conduct. The plaintiff was discharged from Warm Springs in July, 1975. In August, 1976, plaintiff, using a toy gun, took a hostage and demanded to speak to the Governor of the State of Montana to complain about conditions at Warm Springs. Plaintiff was charged with aggravated assault and was subsequently acquitted by reason of insanity. During the interim between the plaintiff’s discharge from Warm Springs and the present time, the State has filed six separate formal commitment proceedings against the plaintiff on the basis of serious mental illness.

In July, 1986, the plaintiff filed a motion for appointment of a guardian and Daryle Murphy was appointed guardian ad litem. Also, in July, 1986, plaintiff filed her action against the State of Montana and the Department of Institutions for the State of Montana.

In September, 1986, the defendants introduced a motion to dismiss plaintiff’s complaint as barred by the applicable statute of limitations. On March 5, 1987, the District Court granted the defendants’ motion and dismissed the plaintiffs complaint. The plaintiff appeals from the judgment of the District Court.

The plaintiff’s complaint sounds in tort and as such the statute of limitations is delineated in Sections 27-2-204 and 27-2-401, MCA. The general rule regarding the statute of limitations for tort actions in Montana is provided in 27-2-204, MCA:

“27-2-204. Tort actions general and personal injury.
“(1) The period prescribed for the commencement of an action upon a liability not founded upon an instrument in writing is within 3 years.
“(2) The period prescribed for the commencement of an action to recover damages for the death of one caused by the wrongful act or neglect of another is within 3 years.
“(3) The period prescribed for the commencement of an action for libel, slander, assault, battery, false imprisonment, or seduction is within 2 years.”

However, there are exceptions to the general statute of limitations when the person entitled to bring the action is afflicted with singular or multiple disabilities. These exceptions are delineated in Section 27-2-401, MCA (1985), which provides:

“27-2-401. When person entitled to bring action is under a disability. (1) If a person entitled to bring an action mentioned in part 2, except 27-2-211(3), is, at the time the cause of action accrues, either a minor, seriously mentally ill, or imprisoned on a criminal charge or under a sentence for a term less than for life, the time of such disability is not a part of the time limited for commencing the action. However, the time so limited cannot be extended more than 5 years by any such disability except minority or, in any case, more than 1 year after the disability ceases.
“(2) If an action is barred by 27-2-304, any of the heirs, devisees, or creditors who at the time of the transaction upon which the action might have been founded was under one of the disabilities mentioned in subsection (1) may, within 5 years after the cessation of such disability maintain an action to recover damages. In such action he may recover such sum or the value of such property as he would have received upon the final distribution of the estate if an action had been seasonably commenced by the executor or administrator.
“(3) No person may avail himself of a disability unless it existed when his right of action or entry accrued.
“(4) When two or more disabilities coexist at the time the right of action or entry accrues, the limitation does not attach until they are both removed.” (Emphasis added.)

In construing Section 27-2-401, MCA, this Court will adhere to Montana’s well established rules regarding the construction and interpretation of statutes.

In State v. Hubbard (1982), 200 Mont. 106, 111, 649 P.2d 1331, 1333, this Court stated:

“The intention of the legislature must first be determined from the plain meaning of the words used, and if interpretation of the statute can be so determined, the courts may not go further and apply any other means of interpretation.”

See also State v. Austin (Mont. 1985), [217 Mont. 265,] 704 P.2d 55, 42 St.Rep. 1186.

Upon examining Section 27-2-401, it is apparent to us from the plain meaning of the words employed that the legislature intended to toll the statute of limitations for persons with a right of action suffering from coexisting disabilities until “both” of the disabilities cease.

It should be noted that the statute (Section 27-2-401) adopted in 1987 is not identical to the 1985 version of Section 27-2-401, MCA. For our purposes, the pertinent change occurred in the last line of Section 27-2-401(4) where the word “all” was substituted for the word “both.” The other changes involve minor alterations of the last sentence in both subsections one and two.

We must disagree with the District Court’s assertion that Subsection (1) and Subsection (4) are in conflict with each other. It is our opinion that Subsection 1 is invoked when the person entitled to bring an action is laboring under a single disability. The language utilized in the delineations of the disabilities which will invoke the tolling is in the disjunctive, indicating that Subsection (1) is to apply exclusively to those persons with single disabilities.

We hold that the last sentence in Section 27-2-401(1), MCA, should not be construed as specifying a period of ultimate repose for the whole statute, rather it is applicable only to Subsection (1).

In contrast, the language utilized in Section 27-2-401(4), MCA, is specifically directed at situations where the person entitled to bring an action is suffering from two or more coexisting disabilities at the time the right of action accrues. Further, the language and wording of Subsection (4) make it abundantly clear that the legislature intended that in such cases the statute of limitations is to be tolled until all of the disabilities existing at the time the right of action accrued are removed.

This Court has previously held that “[a] statute derives its meaning from the entire body of the words taken together.” Wyse v. District Court of the 4th Judicial District (1981), 195 Mont. 434, 437, 636 P.2d 865, 866 [38 St.Rep. 2005].

As we have previously stated there are no conflicts between the Subsections of Section 27-2-401, when the statute is taken as a whole. Subsection (1) applies to situations where the person with the right of action has a single disability. Subsection (4) comes into play if two or more disabilities are present. To interpret the statute in such a manner that Subsection (1) conflicts with Subsection (4) is to suggest that the legislature had little or no understanding of the law they were enacting. Such an interpretation would render Subsection (4) meaningless. Such a result is not reasonable.

“It is a further fundamental role of statutory construction that the unreasonableness of the result produced by one interpretation is reason for rejecting it in favor of another that would produce a reasonable result. In Re Kay’s Estate (1953), 127 Mont. 172, 260 P.2d 391.”

Johnson v. Marias River Electric Co-op, Inc. (Mont. 1984), [211 Mont. 518,] 687 P.2d 668, 671, 41 St.Rep. 1528, 1532.

In analyzing Section 27-2-401, MCA, the District Court concludes that with the exception of minority, the ultimate repose for any person entitled to bring an action, whether suffering from a singular or multiple disability is five years. Such an interpretation is inconsistent and at odds with the plain meaning of Subsection (2) as well as that of Subsection (4). Section 27-2-401(2), MCA, provides a tolling of the statute of limitations that could be far in excess of the District Court’s suggested ultimate repose of five years, as the statute is tolled for the duration of the heir’s, devisee’s or creditor’s disability plus an additional five years after such a disability ceases. As Section 27-2-401(2) clearly indicates there is not a five year period of ultimate repose and as such the District Court erred in applying such a limitation to Section 27-2-401(4).

A legislative body is presumed to have inserted every provision for some useful purpose. Under the District Court’s construction of the statute, Subsection (4) of Section 27-2-401, MCA, serves no useful purpose. In Montana Wildlife Federation v. Sager (1980), [190] Mont. [247], 620 P.2d 1189, this Court stated that it will not interpret a statute so as to defeat its obvious purpose. We further stated that the objects sought to be achieved by the legislature are prime considerations in interpreting a statute. Section 27-2-401, MCA, shows an objective on the part of the Montana legislature to afford adequate protection to those unfortunate citizens who suffer from dual or multiple disabilities when their right to bring an action accrues. The statute insures that these Montanans will have the right to seek full legal redress at a time when they or a guardian are in a position to do so.

In the immediate case, Linda Cawley was suffering from two statutorily-defined disabilities, mental illness and minority. These disabilities coexisted at the time the allegedly tortious conduct occurred and her right of action accrued. Although the plaintiff is no longer a minor, the statute of limitations is still tolled as the evidence indicates that since the plaintiff’s right of action accrued she has been and continues to be seriously mentally ill.

The plain meaning of the words used in Section 27-2-401(4) clearly indicate that the statute of limitations on Linda Cawley’s claim has not expired and will not expire so long as she suffers from mental illness.

Reversed and remanded for proceedings consistent with this Opinion.

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

ORDER ON RECONSIDERATION

MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The State of Montana, as respondent, petitions this Court of reconsideration to clarify language in our opinion in this cause to the effect that it may be construed as a determination by us the L.C. has been and continues to be severely mentally ill since she attained her majority. No such determination or construction is intended by this Court. Whether L.C. meets that conditions of Section 27-2-401(4) to avoid the application of limitations under that statute remains for determination in the District Court.

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


source: Caselaw Access Project

author: MR. JUSTICE HARRISON

license: Public Domain

text:
    In re the MARRIAGE OF ROBERT H. ROULLIER, Petitioner and Appellant, and ERICA LEE ROULLIER, Respondent and Respondent.
    No. 87-95.
    Submitted on Briefs Sept. 10, 1987.
    Decided Dec. 10, 1987.
    746 P.2d 1081.

      Jon E. Ellingson, Ellingson & Moe, Missoula, for petitioner and appellant.
    Datsopoulos, MacDonald & Lind, Ronald B. MacDonald, Missoula, for respondent and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is a dissolution case heard before the Honorable Douglas Harkin without a jury in May of 1986. The petitioner-husband, Robert H. Roullier (hereinafter, Robert), appeals the District Court decision. The respondent-wife is Erica Roullier (hereinafter, Erica). We modify the portion of the judgment ordering a payment from Robert to achieve the purpose of equalizing the division of the marital estate, and affirm in all other respects.

Robert and Erica were married September 24, 1977 and remained married for approximately seven years. One child, a daughter named Rikki, was born to the marriage on September 15, 1978. Robert filed for dissolution February 26,1985. At that time, Robert was 38 years of age and Erica was 34 years of age.

A decree of dissolution was entered December 30, 1985. The parties were unable to agree on the issues of child custody, support, maintenance, and the division of the marital estate, and these matters were reserved for trial. Pending trial, the parties stipulated to joint custody with Erica as the primary custodial parent, child support of $350 per month, and temporary maintenance of $1,000 per month beginning May 15, 1985.

Robert is president and chairman of the board of Davis Transport, Inc., a trucking corporation, and controls 57.16% of the corporate stock. He also controls the same percentage interest in a related partnership, Trade Street Enterprises. Previously, Robert worked as an accountant. His current salary is approximately $18,000 per month. A large portion of that salary is utilized to amortize stock purchase obligations resulting from his purchase of his interest in Davis Transport, and his take-home pay after the payment of this obligation is approximately $4,112.97 per month. Erica holds a college degree in elementary education but has never held a full-time position in that field. Erica held the primary responsibility of maintaining the household and caring for their daughter Rikki. At the time of trial, Erica was attending paralegal training classes in Billings and earning approximately $600 per month as a part-time file clerk.

A bench trial began on May 14, 1986 and the District Court issued findings of fact and conclusions of law October 2, 1986, and a judgment on October 7, 1986. After subtracting certain assets owned by Robert prior to the marriage, the marital estate was divided in an equal fashion. Joint custody was granted with Erica as the primary custodial parent. Child support in the amount of $450 per month was ordered. Erica is to receive maintenance of $1,000 per month for four years, and $500 per month for the following two years. Erica was awarded attorney fees in the amount of $8,622.22.

Robert raises eight issues on appeal:

(1) Did the District Court properly value Robert’s interest in Trade Street Enterprises?

(2) Did the District Court properly value assets owned by Robert prior to the marriage?

(3) Did the District Court correctly calculate the amount that Robert must pay to Erica to achieve an equal division of the marital estate?

(4) Did the District Court correctly find that Robert agreed to pay for all costs of a four-year college curriculum for his minor daughter?

(5) Was the award of maintenance excessive in amount and duration?

(6) Was the award of child support excessive in amount?

(7) Did the District Court properly award attorney’s fees?

(8) Did the District Court commit error by ordering Robert to indemnify Erica for joint debts he was ordered to assume?

I. THE VALUATION OF TRADE STREET ENTERPRISES.

Robert holds a 57.16% interest in a partnership entity referred to as Trade Street Enterprises (T.S.E.). The District Court found the partnership had no positive or negative value for the purposes of determining the property distribution and therefore assigned a zero valuation to Robert’s interest. T.S.E. is a partnership created by the owner-managers of Davis Transport, Inc. The sole source of income for T.S.E. comes from Davis Transport. At trial, Robert chose to serve as his own expert witness. Robert testified that T.S.E. was operating at a loss and valued the fair market value of his interest in this entity at negative $299,745. Robert’s contention is that Erica failed to present any evidence as to the value of T.S.E. and that his negative valuation must therefore be accepted.

The District Court refused to find Robert’s valuations sufficiently credible and stated,

“[G]iven the discrepancies in [Robert’s] preparation of financial documentation for various purposes, his apparent willingness to create values for his own purposes, the Court is unable to adopt his assessment evaluation . . . [of] Trade Street Enterprises.”

The record sufficiently supports this finding. Accordingly, the District Court properly refused to accept Robert’s valuation and we will not order the District Court to accept a valuation which is not credible.

The District Court’s task of valuing T.S.E. was complicated by the fact that Erica’s expert witness was not retained to specifically value T.S.E. Erica’s expert witness clearly stated he was not rendering a specific opinion as to the value of T.S.E. and its assets. Erica contends the following testimony by her expert supports a valuation of zero:

“Q. You have not been retained to do an appraisal of the equipment in Trade Street, have you?
“A. No, I have not.
“Q. You did render an opinion in direct examination that with regard to Trade Street where they are able to acquire in excess of $3,000,000 worth of trucks in late ‘84 and ‘85 and experience a two hundred plus thousand dollar cash shortfall, which was handled by Davis, and still render Davis profitable that, as I understand it, Trade Street was more or less operating at a wash; is that correct?
“A. Yes.
“Q. So do you have an opinion as to the value based on just that phenomenon of Trade Street Enterprises as of December 31, 1985?
“A. Not specifically, because it is a lot more complex than to just say off the top of my head.
“Q. All right. If we assume for a moment that the value of Trade Street is zero, assuming that —
“A. Okay.
“Q. Taking the December 31, 1985, balance sheet or financial statement, did you, during the recess, calculate the value of Davis Transport for the purpose of coming to an asset valuation based on your figures?
“A. Yes. What I did was, taking like you mentioned, Davis Transport at zero, putting in 236,787 as an asset, eliminating the debt, you end up with a net worth of approximately four hundred seventy to $500,000.
“Q. Do you feel it appropriate to assume that Trade Street Enterprises has a value of zero for this purpose?
“A. It seems reasonable.”

Although this testimony may indicate Erica’s expert suspected T.S.E. was operating “at a wash,” it fails to offer sufficient evidence alone to support the zero valuation.

The District Court was faced with a situation where one party suggested a valuation which was not credible and the other party failed to provide a specific valuation. The problem was compounded because the determination of a value for an entity such as T.S.E. is complex. Still, the District Court heard and considered an extensive amount of evidence regarding the value of T.S.E.: gross revenues of T.S.E. for 1984 and 1985; the source of those gross revenues (i.e. Davis Transport, Inc.); recent truck acquisitions for 1984 and 1985, and the truck values; state and federal tax “write-offs” associated with T.S.E.; tax benefits passing from T.S.E. in interest expenses and depreciation; the condition and resale value of trucks owned by T.S.E.; the ability of T.S.E. to meet operating expenses, amortize capital acquisition debts, and other debt obligations; documents demonstrating the cash flow analysis for T.S.E. for 1981 to 1985; federal tax document returns for 1984 and 1985; T.S.E. depreciation schedules; and the T.S.E. partnership agreement. Although Erica’s expert did not give a specific value for T.S.E., he did offer a significant amount of testimony regarding the general financial status of T.S.E. and its relationship with Davis Transport. Finally, there was a large amount of evidence as to the worth of Davis Transport, Inc., an entity which is significantly related to T.S.E. There is a lack of an arms-length relationship between the entities and Robert testified he did not believe they could operate on an independent or separate basis. The consideration of the value of Davis Transport inevitably involved considerations of the value of T.S.E. In In Re Marriage of Johnston (Mont. 1986), [223 Mont. 383,] 726 P.2d 322, 325, 43 St.Rep. 1808, 1812, we stated:

“In valuing the assets in a marital dissolution case, it must be noted that the District Court has broad discretion to determine net worth.”

Although it may be true that the District Court was not given the best possible evidence to value the partnership, the value determination will stand unless clearly erroneous. In Re Marriage of Laster (1982), 197 Mont. 470, 477, 643 P.2d 597, 601. We affirm the District Court’s valuation of T.S.E.

II. THE PREMARITAL ASSETS.

Robert contends the District Court incorrectly calculated the amount and number of assets owned by him prior to the marriage. The District Court determined that two premarital assets should be awarded outright to Robert: (1) stock in Junkermier, Clark, Campanella, and Stephens; and (2) a duplex located at 1005 Rollins. Robert contends the court ignored a long list of personal assets owned by Robert prior to the marriage:

Cash on hand $ 3,669.96
Bonus receivable 7,091.00
Investments 1,065.00
Art works (cost) 2,250.00
Personal residenct 68,500.00
Real estate investments
Duplex-2312 55th Street 70,000.00
Miller Creek land 24,000.00
Park Drive partnership 1,500.00
Personal property 29,330.00
Robert’s added assets, allegedly unaccounted for by the Court, which existed prior to
the marriage $207,405.96

Following a decree of dissolution of marriage, the District Court shall,

“[E]quitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both.”

Section 40-4-203(1), MCA. Further, in dividing property acquired before the marriage:

“[T]he court shall consider those contributions of the other spouse to the marriage, including:
“(a) the non-monetary contribution of a homemaker;
“(b) the extent to which such contributions have facilitated the maintenance of this property; and
“(c) whether or not the property division serves as an alternative to maintenance arrangements.”

Section 40-4-203(1), MCA.

We have been faced with similar issues on prior occasions. In In Re Marriage of White (Mont. 1985), [218 Mont. 343,] 708 P.2d 267, 269, 42 St.Rep. 1634, 1636, we stated:

“This Court has recognized that when property acquired by one party prior to marriage is subject to division in a dissolution proceeding, the District Court must consider the origin of the property. Herron v. Herron (1980), 186 Mont. 396, 608 P.2d 97. But the property acquired prior to marriage is still subject to division. In re the Marriage of Keepers (1984), [213 Mont. 350,] 691 P.2d 810, 41 St.Rep. 2163. Equitable apportionment does not require the parties be returned to their premarital status. Id.”

Robert claims the District Court failed to consider that the listed assets were owned by him prior to the marriage. This contention is without merit. The District Court specifically addressed and considered this issue regarding the personal residence, the duplex at 2312 55th Street, and the Miller Creek land. Additionally, the District Court heard and considered testimony regarding many of the other items on the list. For example, during Robert’s testimony the following exchange took place:

“Q. Now, I assume you don’t know what happened to the cash on hand in terms of where that money went?
“A. No.
“Q. And I assume that bonus receivable was intended at some point in time?
“A. That’s right.
“Q. It went into the marriage, is that true?
“A. I would say so.
“Q. And I note that you indicate that you had personal property worth $29,330.1 realize it’s some time ago, but what did that consist of?
“A. It would have been consisting of our automobiles, boat, furniture, personal effects.
“Q. Same boat which you have now?
“A. No.
“Q. Same furniture that you have now?
“A. Probably not, some of it may still exist.
“Q. Can you identify any of the personal property that you had then that you have now that has a value of say in excess of say $2,000?
“A. Okay. You’re asking for the value —excuse me, the personal property that I had then that I still have now?
“Q. Right.
“A. We don’t have any of the vehicles. I can’t think of anything off the top of my head.”

The record demonstrates that the District Court heard and considered evidence regarding the premarital assets. Additionally, the list of premarital assets proposed by Robert is actually taken from an unaudited balance sheet prepared several months after the marriage. Finally, the District Court did actually award Robert two significant assets outright on the basis that they were premarital assets. For all these reasons, we affirm the District Court’s determination of which assets should be awarded outright as premarital assets.

III. PAYMENTS REQUIRED TO ACHIEVE AN EQUAL DIVISION.

After awarding certain premarital assets to Robert, the District Court intended to equally divide the remainder. To achieve this goal it was necessary that Robert make a payment to Erica. Under the initial division, Robert received property valued at $184,485.33 and Erica received property valued at $131,753. The total difference equals $52,732.33, and the District Court ordered Robert to pay Erica this amount. Robert is correct in asserting that only one-half that amount should have been awarded to achieve the goal of equalizing the division.

Robert filed a motion to amend the District Court’s judgment on October 17, 1986, and in a subsequent supporting brief he requested that this calculation be amended so that he would pay only one-half, $26,366.17. Erica now appears to agree with this position by stating in her brief that the District Court judgment “should be amended to provide for a transfer from Husband to Wife of one-half the difference in properties held before transfer or $26,366.16.” There is some confusion on this matter because the District Court previously amended its decision and directed Robert to make a payment of $28,866 in an order dated December 1, 1986 and filed on December 4, 1986. Since both parties now essentially agree that the correct amount of the payment should be $26,366.16, the District Court decision and order shall be modified to reflect such an amount.

IV. COLLEGE EXPENSES.

The District Court found that Robert testified:

“[H]e will pay for the costs of secondary education for the minor child of the parties, and the court finds that based upon his agreement he shall be responsible for the costs of books, room, board, tuition, and fees for a four year college curriculum acceptable to the parties.”

This finding is based on the following testimony by Robert:

“Q. Do you have any commitment that you’re willing to make with regard to college education for your child?
“A. Well, I have maybe strange and different ideas on college education. I feel like I put myself through school. I feel like I really accomplished something. I didn’t get any help at all. I would like to help my children. I don’t want to see them get a full ride and be able to goof off during the summer and really not get any kind of a self satisfaction of having completed school.
“Q. Do you have a commitment that you’re willing to make in terms of defining what you are willing to do with regard to college education?
“A. I’m going to help my children through school.
“Q. Is there any agreement that you’re willing to reach with regard to your minimum requirements?
“A. Well, I hate to place a minimum requirement on me from the standpoint that I don’t even know what my financial capabilities are going to be, but if I’m in a position where I can pay for basically all the books, tuition and the kids end up having to, depending on where they’re living, if they’re living out of town or whatever if they’re going to come up with their own spending monies and stuff like that, that’s the kind of arrangement that I would like to see; but I’m hesitant to say, fine, go ahead and sign on the dotted line where I’m going to provide that they’re going to go to school. What would happen if I said that and I had no input, for example, on where Rikki went to school and all of a sudden she’s going to school in Italy and it’s costing me $2,000 a month and I can’t afford it. Believe me, I want to take care of my children.”

Parties to a dissolution may agree to an obligation of support for their children beyond the age of eighteen. See, Herrig v. Herrig (1982), 199 Mont. 174, 182, 648 P.2d 758, 762. Robert contends his testimony does not represent an agreement to pay for his daughter’s college education.

The cited testimony demonstrates a desire to assist in paying for college expenses. Additionally, Robert indicates his assistance ought to have reasonable limitations and expresses an understandable concern that, depending upon his future income and the costs of education, he may not be able to afford this expense. We believe these potential problems were adequately addressed by the District Court’s judgment

“In lieu of maintenance beyond the time set forth herein, the Husband shall be responsible for all costs of secondary college education of the minor child including, but not limited to, costs of books, room, board, tuition, fees, and travel, for a four year college curriculum acceptable to the parties.” (Emphasis added.)

The District Court made it clear that the college curriculum must be “acceptable to the parties.” Therefore, both Robert and Erica must find the curriculum acceptable. Also, if Robert’s future circumstances render him unable to pay this obligation he may petition for modification pursuant to Section 40-4-208, MCA.

V. MAINTENANCE

The District Court ordered maintenance in the amount of $1,000 per month to commence on July 1, 1986 and end on June 1, 1990. Thereafter, payments of $500 per month were ordered for an additional two years. Robert contends the maintenance order is excessive in duration and amount. Robert states he began maintenance payments of $1,000 per month on May 15, 1985 pending trial, and that the four year period of maintenance in that amount should have begun at that time. Additionally, he states that this amount of maintenance carries no reasonable relationship to the time it will take Erica to complete paralegal training, since she could finish that training at her current rate in less than four years.

Erica’s testimony supports the contention that it will take three to four years to complete her paralegal training. More importantly, pursuant to Section 40-4-203, MCA, the District Court considered a variety of factors including Erica’s financial resources, the standard of living established during the marriage, and Robert’s ability to meet his needs while meeting the maintenance requirement. All these factors were specifically considered by the District Court in addition to the time Erica will need to complete her training. Maintenance is “a matter of judgment essentially within the broad discretion of the District Court which we may not set aside unless the District Court is clearly erroneous.” In Re the Marriage of Schenck (Mont. 1984), [213 Mont. 310,] 692 P.2d 6, 9, 41 St.Rep. 2137, 2139. We find no abuse of discretion.

VI. CHILD SUPPORT

The District Court found the needs of the minor child to amount to an expense of $590.33 per month and ordered Robert to pay $450 per month in child support. The District Court arrived at this amount by using as a guideline the formula suggested in In Re the Marriage of Carlson (Mont. 1984), [214 Mont. 209,] 693 P.2d 496, 500, 41 St.Rep. 2419, 2423. Robert contends the order is excessive in amount because the figure $4,112.97 was incorrectly used as his net income. Robert argues that his monthly maintenance payment of $1,000 should be deducted from his income and added to Erica’s income before the formula is applied.

Additionally, Robert argues that monthly child support of $500 owing on two children from a prior marriage should be deducted in calculating his net income. Robert cites virtually no authority in support of his position. We note however that a consideration of other child support obligations may be appropriate. See, Uniform Child Support Guidelines (Mont. 1987), [227 Mont. 1,] 44 St.Rep. 830, 835. Without doubt, Robert has the duty to provide for his children of a previous marriage. Still, we find no evidence that the District Court did not consider this matter. If Robert’s income was reduced by $500 and the Carlson formula were strictly applied, his support obligation would equal a greater amount than that ordered by the District Court.

This Court has stated that the Carlson formula does call for the use of a net income rather than a gross income. See, In Re Marriage of Revious (Mont. 1987), [226 Mont. 304,] 735 P.2d 301, 304, 44 St.Rep. 674, 678. However, the ultimate answer as to the proper amount of child support is not calculated with the exact precision suggested by these terms and must ultimately depend on the facts in each case. The Carlson formula was clearly presented as a guideline, and not as a strict formula to be precisely followed in all cases. Carlson specifically stated that the figures representing the earnings of the parents “must realistically reflect what the parents are capable of earning using their actual earnings as a guideline.” (Emphasis added.) Carlson, 693 P.2d at 500. See also, In Re the Marriage of Isaacs (Mont. 1986), [224 Mont. 218,] 728 P.2d 1345, 1347, 43 St.Rep. 2145, 2148. The record reflects that the District Court used the Carlson formula as a guideline and we find no abuse of discretion.

There is an additional reason why we affirm the District Court on this issue. Robert fails to suggest how to take into account that the maintenance payments at the current level will last four years and an additional two years at a lower level, while the child support payments represent an obligation extending until his daughter achieves the age of majority in the year 1996. Similarly, he fails to state the time length of his previous child support obligations. It is uncertain when Robert will be relieved of those payments.

Robert’s income is significant. Erica’s income however, is quite modest and expected to remain so. Their daughter probably would have continued to experience an upper-middle class lifestyle had the marriage remained intact. All of these present relevant factors which must be considered. Section 40-4-204, MCA. We find no abuse of discretion by the District Court.

VII. ATTORNEY’S FEES

Robert contends the District Court improperly awarded Erica attorney’s fees in the amount of $8,622.22 The District Court found that Erica’s income level was low and Robert’s cash flow levels were more adequate to pay attorney’s fees. The award of attorney’s fees in such situations is addressed by Section 40-4-110, MCA, which states:

“The court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under chapters 1 and 4 of this title and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.”

We have stated that the above section, “Allows the District Court to award attorney fees after considering the financial resources of both parties. An award of attorney fees under the statute is ‘largely discretionary with the District Court and we will not disturb its judgment in the absence of an abuse of that discretion.’ ” (Citations omitted.)

In Re the Marriage of Shirilla (Mont. 1987), [225 Mont. 106,] 732 P.2d 397, 399, 44 St.Rep. 75, 78. See also, In Re the Marriage of Johnston (Mont. 1986), [223 Mont. 383,] 726 P.2d 322, 326, 43 St.Rep. 1808, 1812-1813; and, In Re the Marriage of Milanovich (Mont. 1985), [215 Mont. 367,] 697 P.2d 927, 929, 42 St.Rep. 436, 439. The record indicates that the financial resources of both parties were considered. We find no abuse of discretion in the award of attorney’s fees.

VIII. INDEMNIFICATION ORDER

Robert alleges the District Court abused its discretion by ordering him to indemnify Erica for the joint debts he was ordered to assume, while not requiring a reciprocal order directed toward Erica. The District Court entered an order December 1, 1986 which added the following to the judgment: “Respondent shall hold Petitioner harmless for all debts she incurs pursuant to the Judgment.” This amendment clearly solves any possible problem which may have resulted from this contention by Robert.

For the foregoing reasons, we affirm the decision of the District Court, except for the modification relating to the payment by Robert to equalize the division of the marital estate.

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


author: MR. JUSTICE HUNT

text:
    GORDON JULIAN, Plaintiff and Appellant, v. MONTANA STATE UNIVERSITY, Dennis G. Brown, and Edwin H. Abbott, individually, Defendants and Respondents.
    No. 87-173.
    Submitted on Briefs Sept. 10, 1987.
    Decided Dec. 11, 1987.
    747 P.2d 196.

      McKinley Anderson, Bozeman, for plaintiff and appellant.
    Roger N. Flair, Legal Counsel, MSU, Bozeman, for defendants and respondents.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal from the District Court, Eighteenth Judicial District, Gallatin County. Appellant was awarded the sum of $6,978 as installments due him under an early retirement contract with the defendants. Both parties were denied attorney fees and costs.

Affirmed.

The issues on appeal are as follows:

1. Did the District Court err in concluding that the Montana Wage Protection Act, Section 39-3-201 et seq., MCA, did not apply to the summer appointments given the plaintiff?

2. Did the District Court err in finding that no breach of the August 9, 1984 contract occurred?

3. Did the District Court, by requiring that both parties perform according to the contract, err by requiring specific performance of a contract for personal service?

4. Did the court err in finding that the defendants acted in good faith and with fair dealing?

The following facts are undisputed.

At all times relevant to this action plaintiff Gordon Julian was employed as a professor of chemistry in the chemistry department of defendant Montana State University. Plaintiff Julian and defendants entered into an agreement dated August 9, 1984 concerning plaintiff’s early retirement. The agreement provided Julian with summer appointments for the three years preceding his retirement on June 30, 1987; appointed him chairman of the search committee employed in filling his vacancy; and assured him that subject to funding and need, the Chemistry Department would try to hire him on a “one-third time, temporary” basis after his retirement. On August 21, 1984 defendant Abbott, head of plaintiff’s chemistry department, sent plaintiff a memo assuring him that every effort would be made to see that plaintiff was given post retirement employment as specified in the August 9 agreement.

Plaintiff was given summer appointments for 1984 and 1985 and was paid. He received a similar appointment in 1986. In July, 1986, defendant Dean Brown requested that Julian write a draft resignation letter as required by University policy. The letter Julian tendered was substantially different than the agreement of August 9, 1984. In a memo dated August 4, 1986 defendant Brown requested that plaintiff resubmit a letter that would better reflect the terms of the August 9, 1984 agreement. Plaintiff responded by requesting clarification of University policy. In reply to this request Dr. Abbott sent the following to appellant:

“The purpose of this memo is to clarify the spirit in which'our agreement of August 9, 1984 was reached. While I am not able to promise you post-retirement employment, the department has been hiring temporary instructors every year for quite a long time. I expect that such money will continue to be available and I will make every effort to see to it that you have at least three years of part-time post-retirement employment.”

Receiving the draft letter, defendant Brown, being concerned that if he paid plaintiff for July, 1986, he would be accepting the new terms, stopped payment on plaintiff’s July pay.

Plaintiff did not discover his check was being withheld until August 11, 1986, the normal payday. Plaintiff immediately telephoned Dean Brown who informed him that he was holding plaintiff’s pay until the resignation problems could be worked out. When Dean Brown tried unsuccessfully to set up a meeting with the plaintiff, he continued to withhold plaintiff’s pay. Plaintiff made no effort to meet with or otherwise contact Dean Brown or Dr. Abbott but instead filed this lawsuit on September 11, 1986.

The District Court determined that the contract involved was not an employment contract covered under the Montana Wage Protection Act, 39-3-201 et seq., MCA, but was instead a contract in which the summer appointments were consideration for the plaintiff’s early retirement. The District Court also found that defendant Brown’s actions in withholding plaintiff’s pay were reasonable and in good faith and that they did not breach the contract. The District Court held that no cause of action lay against Dean Brown or Dr. Abbott as individuals but only against Montana State University. Julian appeals.

Although not presented formally as an issue in the appellant Julian’s brief, it appears that Julian contends the Court erred in not deciding the case under the provisions of. the Montana Wage Protection Act (MWPA). We hold that there was no error. The pertinent code section reads as follows:

“(1) Every employer of labor in the state of Montana shall pay to each employee the wages earned by such employee in lawful money of the United States or checks on banks convertible into cash on demand at the full face value thereof, and no person for whom labor has been performed may withhold from any employee any wages earned or unpaid for a longer period than 10 business days after the same are due and payable . . .
“(3) Provisions of this section do not apply to any professional, supervisory, or technical employee who by custom receives his wages earned at least once monthly.” (Emphasis supplied.)

Section 39-3-204, MCA.

Appellant argues that the monies received by him for his summer appointments were clearly wages paid to him as an employee of Montana State University. The term wages is defined by Section 39-3-201(5), MCA, as “any money due an employee from the employer . . . and shall include . . . gratuities of any kind.” Appellant argues that if this compensation was not wages in the traditional sense, it was certainly a gratuity thus falling within the definition in the statute.

This argument is not compelling. The record shows that the summer appointments were intended by both parties to be consideration in support of appellant’s promise to retire early. It was certainly not a gratuity. The District Court found that the appellant was not under any obligation to perform services in addition to those he would normally have performed as a tenured professor at the University. When a district court finding is supported by substantial credible evidence, this Court will not overturn it. Searight v. Cimino (Mont. 1986), [221 Mont. 277,] 718 P.2d 652, 653, 43 St.Rep. 810, 812; Rose v. Rose (1982), 201 Mont. 86, 91, 651 P.2d 1018, 1020.

Dr. Abbott testified that the University did not expect any services from Julian outside those normally required of a tenured professor, nor was Julian given any. All that was expected was Julian’s retirement. Appellant testified that he felt an obligation to be on campus but his contract did not require it. We agree with the District Court’s finding that appellant was under no obligation to perform services for respondent.

The District Court was correct in not applying the MWPA. The statute specifically states that “no person for whom labor has been performed” may withhold wages from an employee. Section 39-3-204(1), MCA. No labor was performed by the appellant here. Appellant’s summer appointments were not ordinary contracts for services within the meaning of the MWPA. The appointments were consideration supporting the retirement contract. The summer appointments cannot be focused upon to the exclusion of the rest of the contract. The whole of a contract is to be taken together so as to give effect to every part if reasonably practicable. Bender v. Rookhuizen (Mont. 1984), [211 Mont. 366,] 41 St.Rep. 1418, 1422, 685 P.2d 343, 346. Under the specific facts of this case, the District Court was reasonable in construing the contract as it did.

Appellant argues vigorously that if we affirm the District Court on this point we effectively overturn our decision in Hammill v. Young (1975), 168 Mont. 81, 540 P.2d 971. In Hammill, this Court held that Section 41-1301(2), R.C.M. 1947, now Section 39-3-201(3), does not exclude professionals from protection of the Act but only excludes them from the section that requires bi-monthly payments of wages. Since disposition of this issue does not hinge upon the interpretation of a wage contract under the MWPA but rather upon a contract for early retirement, we are not disturbing the Hammill decision.

Appellant additionally contends that if he was not employed during his summer appointments as defined in the MWPA then he could not use those appointments to increase his retirement páy under the Teachers Retirement Act, Section 19-4-101, et seq., MCA. Thus the purpose of the contract would be defeated. Because we are not interpreting the Teachers Retirement Act we need not decide whether appellant was employed for purposes of his retirement plan.

Appellant next challenges the sufficiency of the evidence upon which the District Court found that there was no breach of the contract by the respondents. We affirm the District Court on this issue.

The District Court in its conclusion of law stated that Dean Brown was acting reasonably when he temporarily withheld Julian’s July and August, 1986, installments until he received a resignation letter more similar to the 1984 agreement. The court also found that this action did not constitute a breach of the 1984 contract.

Appellant argues that respondents breached the contract when they did not pay appellant for his 1986 summer appointment. Because their actions touched the fundamental purpose of the contract, appellant argues, they committed a material breach. See Rogus v. Relyea (1979), 184 Mont. 1, 8, 601 P.2d 37, 41.

Although the nonperformance of a material contractual obligation is generally a breach, there are instances where such nonperformance is justified or excused. Section 251 of the Restatement (Second) of Contracts (1979) states the following:

“(1) Where reasonable grounds arise to believe that the obligor will commit a breach by non-performance that would of itself give the obligee a claim for damages for total breach under Section 243, the obligee may demand adequate assurance of due performance and may, if reasonable, suspend any performance for which he has not already received the agreed exchange until he receives such assurance.”

This rule was developed to give a party recourse in instances where the other party’s actions give rise to a reasonable belief that he will not perform but do not rise to the level of anticipatory repudiation. See Restatement (Second) of Contracts Section 251 comment a (1979). In Montana, the standard for anticipatory breach is high. “A repudiation or renunciation must be entire, absolute and unequivocal to support an action for anticipatory breach.” S.T.C., Inc. v. City of Billings (1975), 168 Mont. 364, 373, 543 P.2d 374, 379. The District Court found that appellant’s actions did not rise to the level of an anticipatory breach and we agree. But we also agree with the District Court that appellant’s actions caused a reasonable belief in respondents that he may not have performed on the contract.

Several jurisdictions have adopted Restatement (Second) of Contracts Section 251 comment a (1979). See, e.g., L. E. Spitzer Co., Inc. v. Barron (Alaska 1978), 581 P.2d 213; Carfield & Sons, Inc. v. Cowling (Colo. Ct. App. 1980), 616 P.2d 1008; Jonnet Develop. Corp. v. Dietrich Industries (1983), 316 Pa. Super. 533, 463 A.2d 1026; Juarez v. Hamner (Tex. Ct. App. 1984), 674 S.W.2d 856. We find L. E. Spitzer Co. to be directly on point. In that case Spitzer and Barron had entered into a joint venture on a construction project. Spitzer presented Barron with a handwritten document ostensibly containing terms of an earlier oral agreement. Both agreed the document should be reduced to proper legal form and signed. Barron was later presented with the written agreement but which contained terms materially different from the oral contract. Barron shut down the construction and later talked to Spitzer who denied any difference between the oral and written contract. The Alaska Supreme Court held that Spitzer’s material alteration of the contract indicated an unwillingness to perform that gave Barron reasonable grounds to suspend performance until he received adequate assurances from Spitzer. L. E. Spitzer Co, 581 P.2d at 217.

In the instant case appellant Julian returned a resignation letter containing terms substantially different from those in the 1984 agreement. Respondent Dean Brown then sent a memo requesting a letter that better reflected the August, 1984, language. He also put a hold on appellant’s third contract installment. Appellant was informed on August 11, 1986 that his pay was being withheld because of the resignation letter. Although Dean Brown made efforts to discuss the problems, appellant made no effort to contact respondents, nor did he submit a new resignation letter but instead filed this lawsuit. Even though the District Court found no anticipatory breach on the part of appellant, respondents were justified in withholding his pay until they could be assured he would comport with the 1984 agreement. We hold that there was sufficient evidence to find that respondents did not breach the contract.

Appellant’s third issue on appeal is not meritorious. Appellant argues that because his contract was one for personal services the District Court could not enforce it through specific performance. Section 27-1-412(1), MCA, states:

“The following obligations cannot be specifically enforced: (1) an obligation to render personal service or to employ another therein;”

Appellant specifically attacks items 2 and 3 of the 1984 agreement. Item 3 of the contract would require the respondent to offer post-retirement employment to the appellant if feasible. This provision does not obligate Julian to accept any such position if he does not wish. No personal service is actually required of the appellant.

Item 2 appears to require some service as chairman of the search committee for his replacement, but is more difficult to interpret. The clause states:

“2. During the third and final year of this agreement you will serve as chairman of the search committee for the biochemistry vacancy created by your retirement.”

Appellant essentially argues that the word “will” equals “must,” therefore requiring appellant’s personal service as chairman. It is clear on the record, however, that this provision was never meant to obligate the appellant in any way. Instead it only allows the appellant an opportunity or gives him a right to serve as chairman. It does not require it. We therefore affirm the District Court on this issue as well.

Appellant lastly contends that there was sufficient evidence to find the respondents had breached the implied covenant of good faith and fair dealing by withholding appellant’s summer installment in order to coerce him into submitting a resignation letter. We do not agree. There is nothing on the record to indicate that the respondents were acting maliciously in their steps to obtain a resignation letter they thought was required by University policy.

Respondents did not breach their contract. The record shows that they dealt with each problem in a fair and reasonable manner and at all times tried to adhere to the 1984 agreement. For those reasons we affirm the holding of the District Court on this issue.

Affirmed.

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


author: MR. JUSTICE WEBER

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. PHIL SWORD, Defendant and Respondent.
    No. 87-235.
    Submitted on Briefs Aug. 27, 1987.
    Decided Dec. 15, 1987.
    747 P.2d 206.
    Mike Greely, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Ted Lympus, Co. Atty., Ed Corrigan, Deputy Co. Atty., Kalispell, for plaintiff and appellant.
    Gary A. Crowe, Kalispell, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The Eleventh Judicial District, Flathead County, dismissed charges against defendant on the basis of double jeopardy. The State appeals. We affirm.

The issue is:

Did the District Court err in concluding that the State prosecution of defendant for subscribing to a materially false statement on an application for a grizzly bear trophy license was barred by double jeopardy where defendant had previously been convicted in federal court of knowingly possessing, cárrying, and transporting a grizzly bear taken unlawfully?

The defendant, Mr. Sword, killed a grizzly bear in the Great Bear Wilderness which at that time was closed to grizzly bear hunting. Section 87-2-701(2), MCA, requires one who kills a grizzly bear to purchase a trophy license which authorizes the hunter to possess and transport the trophy. When Mr. Sword purchased his trophy license, he reported that he killed the bear in the Bob Marshall Wilderness which at the time was open to grizzly bear hunting. He then stored the hide. Approximately seven to eight months later, authorities learned through an informant that Mr. Sword had lied on his trophy license application and actually had killed the bear in the Great Bear Wilderness.

Mr. Sword was charged by information in United States District Court with two counts of violating the Endangered Species Act of 1973. As the result of a plea agreement, he pled guilty to count two of the information. Mr. Sword was then sentenced: he was fined $8,500, was placed on probation for two years, and was ordered to forfeit the grizzly hear hide and skull.

Mr. Sword then was charged in justice court for violation of Section 87-2-106(5), MCA, (1985). That subsection provides,

“It is unlawful to subscribe to any statement, on any application or license, that is materially false. Any material false statement contained in an application renders the license issued pursuant to it void. Any person violating any provision of this statute is guilty of a misdemeanor.”

The application or license referred to in this instance is the trophy license required by Section 87-2-701(2), MCA, when Mr. Sword killed the grizzly bear. Mr. Sword was found guilty in justice court so he appealed to state district court for trial de novo. The District Court granted Mr. Sword’s motion to dismiss with prejudice.

Did the District Court err in concluding that the State prosecution of defendant for subscribing to a materially false statement on an application for a grizzly bear trophy license was barred by double jeopardy where defendant had previously been convicted in federal court of knowingly possessing, carrying, and transporting a grizzly bear taken unlawfully?

Count two of the federal information alleged, “That . . . Phil Sword did knowingly possess, carry and transport a grizzly bear taken unlawfully, in violation of 16 U.S.C. Section 1538(a)(1)(G) . . .” Section 1538(a)(1)(G) provides in part,

“[I]t is unlawful for any person subject to the jurisdiction of the United States to . . . violate any regulation pertaining to any threatened species of fish or wildlife listed pursuant to section 1533 of this title and promulgated by the Secretary pursuant to authority provided by this chapter.”

The parties here propose two different readings of the statute. Mr. Sword believes that the language “any regulation” must include state as well as federal statutes which pertain to threatened species. He argues that Sections 87-2-106(5) and 87-2-701(2), MCA, the statutes which support the state charge, would constitute regulations within the meaning of Section 1538(a)(1)(G). The State District Court agreed with Mr. Sword:

“It is apparent then that it was anticipated by the Federal prosecutor and by this Defendant that when he pled guilty to the Federal charge such plea included the falsification of the Trophy Application. Accordingly, it would constitute double jeopardy to require this Defendant to answer to that offense in the State Court.”

The sentence in question reads that it is unlawful to “violate any regulation pertaining to any threatened species . . . listed pursuant to section 1533 . . . and promulgated by the Secretary pursuant to authority provided by this chapter.” The statute provides that one may not violate any regulation (1) which pertains to any threatened species, listed pursuant to section 1533, and (2) which is promulgated by the Secretary. “Regulation” as used in that statute contemplates only those regulations put into effect by the Secretary. The language of the federal statute then does not of itself bar subsequent state prosecution for violation of state statutes pertaining to threatened species.

Generally, two chargeable offenses may arise from the same transaction although Montana statute provides some exceptions to the rule. Section 46-11-502, MCA. In this case, however, we must first look to Section 46-11-504, MCA, to determine whether the prosecution in federal court is a bar to the subsequent prosecution in state court.

“When conduct constitutes an offense within the concurrent jurisdiction of this state and of the United States or another state or of two courts of separate, overlapping, or concurrent jurisdiction in this state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this state under the following circumstances:

“(1) The first prosecution resulted in an acquittal or in a conviction as defined in 46-11-503 and the subsequent prosecution is based on an offense arising out of the same transaction.

Section 46-11-504(1), MCA.

This statute requires answers to two questions: 1) Did Montana and the United States have concurrent jurisdiction? 2) Is the Montana prosecution based on an offense arising out of the same transaction?

In State v. Zimmerman (1977), 175 Mont. 179, 187, 573 P.2d 174, 179, we held, “The measure of concurrent jurisdiction is whether defendant’s conduct subjected him to prosecution in both jurisdictions.” If the conduct gives rise to an offense chargeable in both jurisdictions, concurrent jurisdiction lies regardless of the particular offense ultimately charged in each jurisdiction. Zimmerman, 573 P.2d at 179.

Zimmerman presented a legal question remarkably similar to this case. In that case the defendant’s conduct constituted embezzlement under both federal and state law. The federal prosecutors, however, prosecuted him for making false statements to secure funds rather than for embezzlement. The State then sought to charge the defendant for embezzlement. This Court concluded that the two jurisdictions need not charge and convict for the same offense for concurrent jurisdiction to exist. Rather, concurrent jurisdiction exists because both jurisdictions had authority to prosecute for the same offense — embezzlement. Zimmerman, 573 P.2d at 179.

In this case, when Mr. Sword killed the bear, transported it from the mountain, made false statements on the trophy application, and stored the hide, his conduct was a violation of 16 U.S.C. Section 1583(a)(1)(G) in that he possessed, carried, and transported a grizzly bear taken unlawfully. This was the charge in count two of the federal information which finds its source in 50 C.F.R. Section 17.40 (b)(ii)(A) (1985). Section 87-l-102(2)(a), MCA, uses virtually the same language as the federal regulation by making it a misdemeanor for “unlawfully taking, killing, possessing, transporting, or wasting of ... a grizzly bear . . . .” The United States and the State of Montana have concurrent jurisdiction by virtue of 50 C.F.R. Section 17.40(b) (ii) (A) and Section 87-l-102(2)(a), MCA, respectively.

We now turn to whether the Montana prosecution is based on an offense arising out of the same transaction as the federal prosecution.

“The term ‘same transaction’ includes conduct consisting of: a series of acts or omissions which are motivated by a purpose to accomplish a criminal objective and which are necessary or incidental to the accomplishment of that objective . . .”

Section 46-ll-501(l)(a), MCA. Mr. Sword’s conduct consisted of the possessing, carrying, and transporting of a bear taken unlawfully. This is the charge to which he pled guilty in federal court. He also made false statements on his trophy license application. The trophy license authorized him to possess and transport the trophy. Thus, his false statements as well as his other acts were motivated and necessary or at least incidental to the accomplishment of the criminal objective of possessing, carrying, and transporting of a grizzly bear taken unlawfully. Clearly the Montana prosecution is based on an offense arising out of the same transaction as the federal prosecution within the meaning of the statute.

The State argues that this Court must apply the Blockburger rule and cites State v. Pierce (1982), 199 Mont. 57, 647 P.2d 847, as authority. The State contends that Blockburger and Pierce together allow the State’s prosecution in the present case. In Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, the United States Supreme Court was asked to determine whether the defendant committed two offenses or only one offense by a single sale in violation of the federal narcotic act. The Court stated what has become known as the Blockburger rule:

“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”

Blockburger, 284 U.S. at 304, 52 S.Ct. at 182.

In Pierce, this Court quoted Section 46-11-504, MCA, which we now consider. In Pierce the defendant caused a serious automobile accident and fled the scene. He later pled guilty in justice court to driving under the influence of alcohol. Several days after that plea, Pierce was charged in the state district court with two counts of aggravated assault and one count of failure to stop at the scene of the accident. He pled guilty to the charge of failure to stop and was found guilty of one count of aggravated assault and one count of misdemeanor assault. On appeal Pierce argued that the charges of aggravated assault arose from the same accident as the earlier DUI charge and placed him in double jeopardy. In analysis of that issue, this Court applied the Blockburger rule and allowed the subsequent prosecution. Pierce, 647 P.2d at 850.

We have concluded that Blockburger and Pierce are not controlling in the present case. Blockburger involved two charges filed in the same federal court. Pierce involved charges filed in two different courts of the State of Montana system. In contrast, in the present case the defendant was charged in a district court of the United States and in a district court of the State of Montana and so comes within the express provisions of Section 46-11-504(1), MCA, which applies when conduct constitutes an offense within the concurrent jurisdiction of Montana and the United States. That portion of the statute was not involved in either Blockburger or Pierce. We therefore distinguish both of those cases and conclude they are not binding authority in the present case.

Blockburger as rule of law applicable to double jeopardy in Montana, has been applied numerous times in the past to Section 46-11-502, MCA. In contrast, Section 46-11-504, MCA, grants the defendant greater protection from double jeopardy than provided in Block-burger. If Blockburger were applied to the portion of Section 46-11-504, MCA, which applies in the present case the result would be to strip the defendant of the statutory protection granted to him.

We have previously concluded that the federal district court and the state district court had concurrent jurisdiction and that state prosecution would be based on an offense arising out of the same transaction as the federal prosecution. We therefore hold that subsequent prosecution by the State of Montana was barred in this case by Section 46-11-504(1), MCA.

In our review of Pierce and that portion of Section 46-11-504(1), MCA, applicable to Pierce, we found the statute to be confusing. The portion of Section 46-11-504(1), MCA, which applied in Pierce states in substance as follows:

“When conduct constitutes an offense within the concurrent jurisdiction ... of two courts of separate, overlapping, or concurrent jurisdiction in this state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this state . . .” (Emphasis added.)

We are not able to determine if the intention of the legislature was to bar a felony prosecution in district court where there had been a prior misdemeanor prosecution in justice or municipal court. It would be appropriate that the Montana Legislature reconsider the wording of this code section.

We affirm the dismissal of charges against the defendant on the basis of double jeopardy.

Affirmed.

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


author: MR. CHIEF JUSTICE TURNAGE

text:
    CARL C. PAYNE, Plaintiff and Appellant, v. ALAN STRATMAN; Wesley Kroeker; Brian Kroeker; Abie W. Jansen; Jerry Herzenberg; H.H. Champlin; John Regier; All General Partners of and doing business as Golden Eagle Land Company, an Oklahoma General Partnership; Security Bank, N.A.; James Stratman, Defendants and Respondents.
    No. 87-22.
    Submitted on Briefs Aug. 27, 1987.
    Decided Dec. 16, 1987.
    Rehearing Denied Jan. 5, 1988.
    747 P.2d 210.

      Gerald J. Neely, Billings, for plaintiff and appellant.
    Wright, Tolliver & Guthals, K.D. Tolliver, Billings, for Golden Eagle Land.
    Herndon, Harper & Munro, Rodney T. Hartman, Billings, for Sec. Bank.
    Anderson, Edwards & Molloy, A. Clifford Edwards, Billings, for Stratman.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Plaintiff Carl C. Payne appeals an order from the Thirteenth Judicial District, Yellowstone County, granting summary judgment in favor of defendants. We affirm.

Two issues are presented for our review:

1. Did the District Court err when it granted summary judgment in favor of defendants Golden Eagle Land Company and Security Bank?

2. Did the District Court err when it granted summary judgment in favor of defendant James Stratman?

On November 3, 1975, Carl C. Payne, a licensed Montana real estate broker, entered into a written listing agreement with Golden Eagle Land Company, an Oklahoma general partnership (Golden Eagle), to sell the Larb Hills Ranch (Ranch). The Ranch is located in Phillips County. Upon sale, Payne was to receive a 6 percent commission. On July 7, 1976, Golden Eagle entered into a contract for deed with purchasers R. L. Nelson, Gordon B. Carlson and Melvin J. Ganshop. The contract for deed required the purchasers to buy $100,000 of certificates of deposit (certificates). The certificates were to be deposited with an escrow agent, defendant Security Bank. The escrow instructions required the bank to transfer the certificates to seller Golden Eagle in the event of default.

The escrow instructions also required the Bank to pay appellant Payne’s commission in installments contingent upon contract payments. Payne was paid $34,000 following the August 1, 1976, payment by purchasers.

In February 1977 Golden Eagle approached the Bank about securing a loan. The Bank responded favorably but required the certificates as collateral. Following negotiations, Payne and Golden Eagle entered into a written agreement subordinating their interest in the certificates.

In November 1977 the purchasers defaulted. Pursuant to the subordination agreement, appellant did not receive a commission. Appellant Payne subsequently brought an action against the Bank and Golden Eagle seeking recovery of the real estate commission.

Payne also brought an action against James Stratman. Stratman had assisted Payne in finding the purchasers. Earlier Payne had entered into a contract with Stratman to divide the commission, with $10,200 paid to Stratman. Payne claimed that Stratman falsely represented that he was a licensed Colorado real estate broker. Payne alleged fraud and false representation and sought cancellation of commission splitting agreement and return of monies previously paid and a statutory penalty. Section 37-51-323, MCA. Golden Eagle counterclaimed against appellant Payne for the return of the $34,000 real estate commission.

On October 9,1980, the District Court granted summary judgment to defendant Golden Eagle. Six years later, on August 12, 1986, the District Court granted summary judgment to James Stratman and to Payne on Golden Eagle’s counterclaim.

Issue 1

Did the District Court err when it granted summary judgment in favor of defendants Golden Eagle and Security Bank?

On May 13, 1980, Golden Eagle moved for summary judgment on Payne’s complaint. Payne failed to respond with brief or affidavit by November 9, 1980, and the District Court granted Golden Eagle’s motion. Affidavits placed on record by Golden Eagle imposed upon Payne the duty of raising a genuine issue of material fact. Kronen v. Richter (Mont. 1984), [211 Mont. 208,] 683 P.2d 1315, 1317, 41 St.Rep. 1312, 1315. We have consistently held that when the moving party adequately supports a motion for summary judgment, the burden shifts to the opposing party to present the court with evidence sufficient to raise a genuine issue of material fact. National Gypsum Co. v. Johnson (1979), 182 Mont. 209, 212, 595 P.2d 1188, 1189; Rule 56(c), M.R.Civ.P.

Rule 56(e), M.R.Civ.P., provides in pertinent part:

“. . . When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. [Emphasis added.]”

Clearly Payne failed to come forward with a material issue of fact. Earlier we held that when a party moves for summary judgment and the opposing party fails to respond, summary judgment is proper. “[A] party who ignores the judicial system and slumbers on his rights, does so at his own peril.” Bedford v. Jorden (Mont. 1985), [215 Mont. 508,] 698 P.2d 854, 856, 42 St.Rep. 589, 592.

On November 11, 1980, nearly a month after summary judgment was granted, Payne filed a responsive brief. Payne contends that affidavits in opposition were unavailable. Therefore, Payne argues the court erred when it failed to grant a continuance pursuant to Rule 56(f), M.R.Civ.P.

A review of the record does not support Payne’s argument. Payne could have, but failed to, file (1) a responsive brief, (2) an attorney affidavit or (3) affidavits pursuant to Rule 30(e), M.R.Civ.P. Further, the record clearly indicates that Payne’s commission was contingent on the failed November 1, 1977, payment and that Payne voluntarily subordinated his right to a commission. The District Court properly awarded summary judgment against Payne.

Issue 2

Did the District Court err when it granted summary judgment in favor of defendant James Stratman?

On August 1, 1976, appellant Payne paid Stratman $10,200 pursuant to a written fee-splitting agreement. On December 19, 1978, two years and four months later, Payne filed a complaint against Stratman. Payne alleged that Stratman had misrepresented himself as a licensed Colorado real estate broker in violation of Section 37-51-323, MCA. Payne sought: (1) cancellation of the fee-splitting agreement; (2) return of the commissions paid; and (3) a statutory penalty. Stratman responded by affidavit that he had not represented himself as a licensed real estate broker. Stratman also moved for summary judgment.

Following hearing, the District Court, on December 13, 1983, granted Stratman’s motion for summary judgment. The court held the applicable statute of limitations for a cause of action under the Real Estate Licensing Act is two years, pursuant to Section 27-2-211, MCA. The court found that Payne’s complaint was filed over two years after the alleged tort.

Payne contends that Stratman’s alleged misrepresentation constitutes an active concealment of a material fact. Therefore, the statute of limitations should be tolled. Much v. Sturm, Ruger & Co. (D.Mont. 1980), 502 F.Supp. 743, 745.

We have consistently held that in non-malpractice tort actions, the statute of limitations begins to run on the date of plaintiff’s injury. Kerrigan v. O'Meara (1924), 71 Mont. 1, 7, 227 P. 819, 821. “[T]he fact that a party with a cause of action has no knowledge of his rights, or even the facts out of which the cause arises, does not delay the running of the statute of limitations until [the party] discovers the facts or learns of his rights under those facts.” Bennett v. Dow Chemical (Mont. 1986), [220 Mont. 117,] 713 P.2d 992, 994, 43 St.Rep. 221, 224, citing Carlson v. Ray Geophysical Division (1971), 156 Mont. 450, 454, 481 P.2d 327, 329. In a non-malpractice negligence action, there must be an affirmative act committed by the defendant and the affirmative act must be calculated to obscure the existence of a cause of action. Much, 502 F.Supp. at 745.

We do not agree that Stratman’s alleged misrepresentation is an affirmative act calculated to obscure Payne’s cause of action. A review of the record reveals that Stratman denied, by affidavit, making such a representation to Payne. Secondly, Payne made no attempt to corroborate Stratman’s alleged representation. Clearly, Payne’s allegations do not constitute evidence sufficient to toll Section 27-2-211, MCA. See, Yellowstone Conference of the United Methodist Church v. D.A. Davidson, Inc. (Mont. 1987), [228 Mont. 288,] 741 P.2d 794, 798, 44 St.Rep. 1528, 1532.

Finally, but not determinative to this issue, Payne himself was in violation of the Real Estate Licensing Act. “It is unlawful for a licensed broker to employ or compensate, directly or indirectly, a person for performing the acts regulated by this chapter who is not a licensed broker or licensed salesman . . .” Section 37-51-306(1), MCA. We have long held that one cannot benefit from his own wrong. Roundup Cattle Feeders v. Horpstad (1979), 184 Mont. 480, 485, 603 P.2d 1044, 1047; Section 1-3-208, MC

We hold the District Court properly entered judgment in favor of defendants. Affirmed.

MR. JUSTICES HARRISON, HUNT, SHEEHY and McDON-OUGH concur.


author: MR. JUSTICE GULBRANDSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CRUZ DAVID ALMANZA, Defendant and Appellant.
    No. 87-346.
    Submitted on Briefs Oct. 1. 1987.
    Decided Dec. 16, 1987.
    746 P.2d 1089.
    J. Vaughan Barron, Great Falls, for defendant and appellant.
    Mike Greely, Atty. Gen., Robert F.W. Smith, Asst. Atty. Gen., Helena, Harold Hanser, Co. Atty., Donna K. Heffington, Deputy Co. Atty., Billings, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Defendant Almanza appeals a judgment and sentence imposed upon him by the Yellowstone County District Court. Almanza, in a second amended information filed on May 20, 1987, was charged with the offenses of felony aggravated burglary and felony attempted mitigated deliberate homicide pursuant to Sections 45-6-204(2) and 45-4-103, MCA, respectively. Almanza plead guilty to the charges. The State’s affidavit and motion for leave to file an information identifies the following facts regarding Almanza’s crimes:

“Shortly after 9:00 p.m., on January 22, 1987, Billings Police Officers responded to a reported disturbance with shooting . . . They were met in the living room by a man who was identified as defendant, Cruz David Almanza; he handed them two pistols, a .22 and a .38 saying, T shot him.’ Investigation and statements taken from Wanda Almanza and Dennis Russell revealed that a doorknob had been shot off by defendant using a .12-gauge shotgun in order to gain entry to the locked house where his estranged wife was living. Defendant had not lived in the house since early fall of 1986. Defendant called the house several times the evening of January 22, 1987, to ascertain that the children were not present and that Wanda Almanza and Dennis Russell were present; he said to Wanda Almanza, ‘You pushed me too far; I’m going to do it.’ When defendant forcibly entered the house, he was carrying a .12 gauge shotgun and had a .22 pistol and a .38 pistol tucked into the back of his jeans. Wanda Almanza called 911 before defendant entered her home. When defendant shot the doorknob, she feared for her life and ran to her bedroom for a gun, a .22. As she came out, defendant pointed the shotgun at her and said, ‘Do you want to get it too?’ Wanda Almanza put the .22 away. Dennis Russell was sitting at the kitchen table. When defendant entered, he moved to a glass patio door and tried to escape. Defendant shot the .12 gauge shotgun at him, blasting a hole in the patio door and leaving several shotgun pellets in Dennis Russell’s arm. Defendant again fired the shotgun at him, this time leaving pellets in Dennis Russell’s face and damaging a basement door and carpet. Defendant then flung away the shotgun, drew both pistols and said, “I am going to kill him.” As Wanda Almanza pleaded with him to leave, defendant descended the stairs, and, from two to three feet away, fired a .38 caliber pistol directly in the face of the victim, Dennis Russell. . . Dennis Russell suffered serious and disfiguring injury to his teeth and jaw; the shell fragments and bits of tooth and filling were in such proximity to spinal cord and major arteries that they posed a serious threat to Dennis Russell’s life.”

On July 6,1987, the District Court sentenced Almanza to Montana State Prison for fifteen years on the felony aggravated burglary charge, thirty years on the felony attempt charge, two additional years for the use of a firearm in the commission of felony aggravated burglary, and an additional ten years for use of a firearm in the commission of felony attempted mitigated deliberate homicide. Almanza was designated a nondangerous offender. The District Court also ordered that the sentences be served concurrently with credit for time served in the Yellowstone County Jail. Almanza appeals the sentence and we identify the following issue: Did the District Court abuse its discretion when it sentenced Almanza to thirty concurrent years after first designating him to be a nondangerous offender?

Section 46-18-101, MCA, provides in pertinent part as follows:

“(3) (a) Sentences imposed upon those convicted of crime must be based primarily on the following:
“(i) the crime committed;
“(ii) the prospects of rehabilitation of the offender;
“(iii) the circumstances under which the crime was committed; and “(iv) the criminal history of the offender.
“(b) Dangerous offenders who habitually violate the law and victimize the public shall be removed from society and correctively treated in custody for long terms as needed. Other offenders shall be dealt with by probation, suspended sentences, or fine whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the individual.”

Almanza urges this Court to construe the above statute to require sentences of “probation, suspended sentence, or fine” for offenders found to be nondangerous. He contends that the District Court did not address whether it would be “practicable and not detrimental to the needs of public safety and welfare of the individual” to deal with him by methods other than incarceration. Almanza requests that this Court remand the case to the District Court for consideration of these factors and resentencing.

The District Court imposed the sentence for the following reasons:

“1. The defendant has a good work history, and no prior felony convictions.
“2. The Court has reviewed the presentence report, has read the letters, and has reviewed the testimony of the previous hearing in March, 1987, and reviewed the Offer of Proof submitted by the State.
“4. The crimes involved significant violence by defendant, very nearly resulting in a homicide, and placing other persons in grave fear.
“5. Defendant used deadly weapons in the commission of the crimes.
“6. The two crimes occurred as parts of one event; hence, it is appropriate that they be served concurrently.”

We have previously set forth the standard of review in matters such as presented by this appeal:

“We will not review a sentence on appeal for mere inequity or disparity. Such a review is to be conducted by the Sentence Review Division. State ex rel. Greely v. District Court (1979), 180 Mont. 317, 327, 590 P.2d 1104, 1110. Rather, this Court will only review sentences for their legality. The standard for such review is whether the court abused its discretion in the sentencing process. State v. White (Mont. 1982), [220 Mont. 123,] 650 P.2d 765, 39 St.Rep. 1619.” State v. Lloyd (Mont. 1984), [208 Mont. 195,] 676 P.2d 229, 231, 41 St.Rep. 263, 266.

The sentences imposed in this case are within the legal limits as set forth in the applicable statutes. The District Court considered the required factors as listed in Section 46-18-101(3), MCA. Accordingly, we hold that the District Court did not abuse its discretion. The foregoing decision does not effect any right to relief Almanza may have with the Sentence Review Division.

Affirmed.

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