text:
    CONNIE S. LIVINGSTON, a/k/a Connie Wadsworth, Plaintiff and Appellant, v. WILLIAM LIVINGSTON, Edward Livingston, and Fireman’s fund Insurance Company, Defendants and Respondents.
    No. 88-42.
    Submitted on Briefs June 2, 1988.
    Decided June 28, 1988.
    756 P.2d 1172.
    Deirdre Caughlan, Dunlap & Caughlan, Butte, for plaintiff and appellant.
    Donald R. Lodders, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, James M. Kommers, Landoe, Brown, Planalp & Kommers, P.C., Bozeman, for defendants and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

The plaintiff appeals from a decision of the District Court of the Third Judicial District, Powell County, that her claim in damages was barred by the statute of limitations, Section 27-2-401(1), MCA. We affirm.

The plaintiff suffered a loss of vision in her left eye on November 12, 1977, at which time she was approximately twelve years, two months old. She was struck in the face by glass from a window broken by her brother, William, at the home of their father, Edward. The injuries not only destroyed the vision in her left eye, but also soon thereafter forced surgical removal of the eye. Plaintiff became eighteen years old on September 8, 1983.

On August 26, 1986, eight years and nine and one-half months after the injury and two years and eleven and one-half months after the plaintiff’s eighteenth birthday, she filed a complaint asking for damages from the defendants.

The defendant-insurer filed a motion for summary judgment on January 6, 1987, claiming inter alia, that the statute of limitations had expired. Defense attorneys served written notice on May 26, 1987 to clarify the record that that motion had been filed on behalf of the brother and father, not the insurance company. The District Court held a hearing on the motion on October 15, 1987, and subsequently ordered the complaint be dismissed because more than one year had passed from the time plaintiff achieved majority to filing of the complaint.

Section 27-2-204, MCA, prescribes a limitation of three years for commencement of an action for damages. At the same time, Section 27-2-401, MCA (1985), permits that period of limitation to be extended for one year after a minor attains the age of majority:

“(1) If a person entitled to bring an action ... 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.”

The issue in this case is whether a plaintiff whose ordinary period of limitations would have run completely and expired while she was under the disability of minority is allowed an additional period of limitation (not to exceed five years) upon her eighteenth birthday or is limited to an additional one year. We conclude that she is limited to one year and hence plaintiff in this case had only until September 8, 1984, her nineteenth birthday, to file a claim for damages.

Section 27-2-401(1), MCA (1985), serves to toll the applicable statute of limitations only until the plaintiff is relieved of her disability. Smith v. Sturm, Ruger and Co., Inc. (1982), 198 Mont. 47, 49, 643 P.2d 576, 577; State ex rel. Hi-Ball Contractors, Inc. v. District Court (1969), 154 Mont. 99, 105, 460 P.2d 751, 754. The second sentence of Section 27-2-401(1), MCA (1985), which included the apparently contradictory time periods, applied only if the plaintiff had been disabled for a full period of limitations. See, Smith, 643 P.2d at 577. In the present case that second sentence applied because the period of limitations is three years and the plaintiff spent nearly five years, ten months under the disability of minority.

In this case the plaintiff had only one year after the disability of minority ended to file her complaint. This result differs from Smith because in that case the damaged plaintiff had suffered his injury two years, and ten months before attaining the age of majority. Because the entire three-year period of limitations had not expired while he was under a disability, the statute afforded him a full three-year period of limitations after he reached majority. Smith, 643 P.2d at 577. A concurring opinion perhaps states the rule most clearly:

“[T]he statute of limitations applicable to a minor extends one year after that minor reaches majority qualified by the fact that the normal statute of limitations cannot be shortened. In other words, a minor is entitled to the regular statute of limitations which is applicable, but if that period of time has expired the minor is entitled to one year after reaching majority ...”

Smith, 643 P.2d at 578 (Morrison, J., concurring; Sheehy and Weber JJ., joining).

The Montana Legislature acted in 1987 to end the confusion. It amended Section 27-2-401(1), MCA, as of October 1, 1987, to remove from the second sentence the clause imposing a one-year limitation after cessation of the disability. What remains is an exception to the statute of limitations that allows extension of time for the enumerated disabilities but not for more than five additional years. Plaintiff asserts that the spirit of this amendment plus the general rule that the law favors rights of actions over limitations is sufficient to revive her claim. She fails, however, to acknowledge that periods of limitations are “the legislature’s rough approximation of ‘the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting stale ones.’ ” Thiel v. Taurus Drilling Ltd. 1980-11 (Mont. 1985), [218 Mont. 201,] 710 P.2d 33, 37, 42 St.Rep. 1520, 1524; quoting Johnson v. Railway Express Agency (1975), 421 U.S. 454, 463-64, 95 S.Ct. 1716, 1722, 44 L.Ed.2d 295, 303.

While the Legislature amended the statute in 1987 to make it clearer and less ambiguous, it is clear that the prior statute precluded this claim because the claim was not filed in the year immediately following the plaintiff’s ascension to majority. Plaintiff has not claimed any disability attending her at that date and has not argued that she was unaware of the claim until later. Indeed it would appear from the nature of her complaint that she must have known for almost nine years of her injury. The statute in existence at the time she filed her complaint and at the time the summary judgment motion was filed afforded her one year’s grace after majority to file her complaint. She failed to do so; the Legislature’s subsequent amendment of the statute will not be construed to forgive her delinquency.

Because we have decided that plaintiff’s claim is barred by the appropriate statute of limitations, we need not address her second issue dealing with interfamilial tort immunity.

Affirmed.

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


source: Caselaw Access Project

author: PER CURIAM: s/J.A. Turnage, Chief Justice s/John Conway Harrison, Justice s/Fred J. Weber, Justice s/L.C. Gulbrandson, Justice s/John C. Sheehy, “Justice s/William E. Hunt, Sr., Justice s/R.C. McDonough, Justice

license: Public Domain

text:
    In re the PETITION OF DANNY ARLEDGE.
    No. 88-234.
    Decided June 28, 1988.
    756 P.2d 1169.
    Danny A. Arledge, Deer Lodge, pro se.
    Mike Greely, Atty. Gen., Helena, Robert L. Deschamps, III, Missoula Co. Atty., Missoula, for respondents.
   OPINION AND ORDER

PER CURIAM:

Danny A. Arledge comes before this Court with a Petition for Post-Conviction Relief. He is currently serving sentences handed down by the District Court of the Fourth Judicial District, Missoula County, and the District Court of the Eleventh Judicial District, Flathead County. Arledge raises three issues in his petition:

1. “The District Court lacked jurisdiction to impose, for the first time, a dangerous offender designation at a hearing for revocation of suspension of sentence.”
2. “In the interests of justice, and in accordance with the sentencing court’s intentions, petitioner’s Fourth Judicial District and Eleventh Judicial District sentences should run concurrently.”
3. “The no-parole designation is in conflict with society’s foremost desire to rehabilitate, as well as to punish.”

The facts will be discussed below as they relate to each issue.

Issue I.

On November 8, 1983, Arledge was brought before the Fourth District Court, Missoula County, in Cause No. 6422. He pled guilty to charges of forgery and burglary, both felonies, and was sentenced to a total of 20 years in the Montana State Prison with 10 years suspended. The court specifically designated Arledge a nondangerous offender.

As will be discussed more fully below, Arledge was again brought up on criminal charges before the Fourth District Court in 1986. During those proceedings, the State petitioned the court to revoke the suspension of Arledge’s sentence in Cause No. 6422. The District Court granted the petition, and designated Arledge a dangerous offender as to Cause No. 6422. Arledge asserts in his petition that the court was without jurisdiction to do so.

Once a valid sentence has been pronounced, the court imposing that sentence has no jurisdiction to vacate or modify it, except as otherwise provided by statute. Dahlman v. District Court (Mont. 1985), [215 Mont. 470,] 698 P.2d 423, 425, 42 St.Rep. 550, 552. The District Court did not have statutory authority to designate a defendant as a dangerous offender on a subsequent petition for revocation of suspended sentence. See Smith v. State (1980), 186 Mont. 52, 55, 606 P.2d 153, 155.

We therefore declare void that portion of the sentence imposed by the Fourth District Court designating Arledge a dangerous offender as to Cause No. 6422, and order it stricken. See Lewis v. State (1969), 153 Mont. 460, 463, 457 P.2d 765, 766.

Issue II.

On April 25, 1986, Arledge was brought before the Eleventh District Court, Flathead County, in Cause No. DC-85-125B. He pled guilty to one count each of attempted deliberate homicide, robbery and aggravated burglary, all felonies. The Eleventh District Court sentenced Arledge as follows:

1. Attempted deliberate homicide, 40 years in the Montana State Prison.

2. Robbery, 20 years in prison.

3. Aggravated burglary, 20 years in prison.

4. The sentences for the above three counts will run concurrently.

5. A consecutive term of 5 years in prison for use of a weapon.

6. A consecutive term of 5 years in prison as a persistent felony offender.

7. Designation as a dangerous offender.

On May 28, 1986, Arledge was brought before the Fourth District Court, Missoula County, for the second time in Cause No. 7439. On January 9, 1987, Arledge pled guilty to one count each of arson and forgery, both felonies. A burglary count was dismissed pursuant to a plea bargaining agreement. The State petitioned the Fourth District Court during this proceeding to revoke the suspension of sentence it granted in Arledge’s prior appearance before that court in Cause No. 6422. On the basis of Arledge’s guilty plea, the plea bargaining agreement and the State’s petition, the Fourth District Court sentenced Arledge as follows:

1. Arson, 20 years in the Montana State Prison.

2. Forgery, 20 years in prison.

3. The sentences for the above two counts will run consecutively.

4. The suspension of sentence in Cause No. 6422 is revoked.

5. The sentence in Cause No. 7439 will run consecutively to the sentence in Cause No. 6422.

6. Designation as a dangerous offender as to both sentences.

Upon his incarceration, Arledge was informed by the records department at the Montana State Prison that the sentences from all three causes (Nos. 6422 and 7439 in the Fourth District and No. DC-85-125B in the Eleventh District) were to run consecutively. Arledge asserts in his petition that under Section 46-18-401(l)(a), MCA, the two sentences imposed by the Fourth District Court should run concurrently with the sentence imposed by the Eleventh District Court.

Section 46-18-401, MCA, is Montana’s merger statute. In relevant part, it reads,

“Unless the judge otherwise orders:
“(a) whenever a person serving a term of commitment imposed by a court in this state is committed for another offense, the shorter term or shorter remaining term shall be merged in the other term

Section 46-18-401(l)(a), MCA. The Fourth District Court judge did not mention the sentences imposed in the Eleventh District, nor were the existing or pending sentences in the Fourth District mentioned by the Eleventh District Court judge. There was thus no judge’s order to the contrary, and we hold that the sentences imposed by the Eleventh District Court in Cause No. DC-85-125B “shall be merged” with the consecutive sentences imposed by the Fourth District Court in Cause No. 6422 and Cause No. 7439, and shall run concurrently with them in accordance with Section 46-18-401(l)(a), MCA.

Issue III.

In Cause No. 7439, the Fourth District Court also designated Arledge as ineligible for parole. Arledge asserts in his petition that this designation conflicts with society’s desire to rehabilitate him. Because the minimum term Arledge will serve under this designation will be 40 years, he asserts he will be a permanent public charge, will not be encouraged to pursue education or develop skills, and will suffer a withering of his religious faith.

The State points to Section 46-18-202(2), MCA, which grants a district court authority to impose the restriction that the defendant shall be ineligible for parole during his term, if this is necessary for the protection of society. The State maintains that the District Court properly exercised its authority to designate Arledge ineligible for parole. We agree.

The District Court determined that the violence associated with Arledge’s crimes, and the frequency of their commission necessitated the restriction of his opportunity for parole in order to protect society. The determination to impose this restriction is in the province of the district court, and no fundamental rights of the defendant are abridged by the court’s decision. See Cavanaugh v. Crist (1980) 189 Mont. 274, 615 P.2d 890, cited by the State. We therefore deny that portion of the petition seeking removal of the “no-parole” designation.

On the Petition for Post-Conviction Relief brought by Danny A. Arledge, this Court rules as follows:

1. The portion of the sentence imposed by the District Court of the Fourth Judicial District designating Arledge a dangerous offender in Cause No. 6422 is void and shall be stricken.

2. The sentences imposed by the District Court of the Eleventh Judicial District shall run concurrently with the sentences imposed by the District Court of the Fourth Judicial District in Cause No. 6422 and Cause No. 7439.

3. The portion of the Petition seeking removal of the “no-parole” designation imposed by the District Court of the Fourth Judicial District is denied.

DATED this 28th day of June, 1988.

s/J.A. Turnage, Chief Justice

s/John Conway Harrison, Justice

s/Fred J. Weber, Justice

s/L.C. Gulbrandson, Justice

s/John C. Sheehy, “Justice

s/William E. Hunt, Sr., Justice

s/R.C. McDonough, Justice


author: MR. JUSTICE SHEEHY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. FRED LEE PERRY, Defendant and Appellant.
    No. 87-469.
    Submitted on Briefs May 10, 1988.
    Decided June 30, 1988.
    758 P.2d 268.

      Bell & Marra, Antonia P. Marra and Barbara E. Bell, argued, Great Falls, for defendant and appellant.
    Mike Greely, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, and Patrick L. Paul, County Atty., Stephen Hudspeth, Deputy County Atty., Great Falls, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Following trial by jury in the District Court of the Eighth Judicial District, Cascade County, Perry was convicted of second degree murder in connection with the death of 14 year old Vicki Renville in 1971. Perry appealed his judgment of conviction to this Court alleging, inter alia, ineffective assistance of counsel, insufficient corroboration of accomplice testimony, and improper failure to grant a new trial. Justice John C. Harrison wrote the opinion which affirmed the conviction. See State v. Perry (1973), 161 Mont. 155, 505 P.2d 113.

On April 21, 1987, Perry moved for an indigency determination, appointment of counsel, and a new trial or other appropriate relief based on the alleged recantation of his accomplice, Michael Stillings. Perry later argued that the State had also failed to provide his counsel with exculpatory evidence during the initial trial. Following a hearing on the matter, the District Court of the Eighth Judicial District, Cascade County, entered findings of fact, conclusions of law and an order denying relief. Perry appeals from the District Court’s judgment. We affirm.

The issues before this Court are:

1. Is the failure to provide Perry with exculpatory evidence res judicata?

2. Did the District Court correctly determine that Stillings’ 1971 trial testimony was presumed truthful?

3. Did the District Court accord Perry a full and fair hearing?

FACTS

The body of Vicki Renville was discovered by a motorcyclist on a county road near Great Falls on February 24, 1971. Following an autopsy, Dr. Jack Henneford, the pathologist who examined the body, determined that Vicki Renville had died from multiple blows to the left side of the head, resulting in fractures of the skull and extensive bleeding within the cranial cavity. Dr. Henneford also ascertained two recent disruptions of the hymen; that Renville had been dead at least eight hours when discovered; and that she had lived an hour or more after the blows had been inflicted. He testified that the fatal injury could have been inflicted by a tire iron and that she had several wounds on her hands consistent with her possible attempt to block the blows.

When initially interviewed about his whereabouts on the night of the murder, Perry stated he had been at home all evening, watching television and had later gone to bed. However, he subsequently contacted the Cascade County Sheriff’s Office from the Missoula County jail and indicated he had information concerning the death of Renville. Following his transfer to the Cascade County Jail, he informed Cascade County law enforcement officials that Michael Stillings might be responsible for the death.

Stillings was subsequently apprehended in Seattle, Washington. When questioned about the Renville murder by Cascade County Deputies, Stillings gave a confession in which he stated that he had accidentally struck the victim with a stick when Renville startled him. Stillings also indicated that he was under the influence of drugs at the time of the murder and was attempting to retrieve some cached drugs when Renville came upon him. The Stillings confession was used in support of leave to file an information against him.

Following his transportation to Great Falls, Stillings was placed in the Cascade County Jail. While incarcerated, Cascade County jailers intercepted four notes from Stillings to family and friends. The notes indicated that the death was an accident and requested that various people help him establish an alibi. However, the final letter, in essence, indicated that Stillings was not willing to keep quiet and take the fall for someone else “this time.” Shortly thereafter, Stillings informed law enforcement officials that Perry had murdered Renville with a tire iron after both men had raped her.

At the initial trial of Perry, Stillings testified that he first encountered Renville at 9:00 p.m. on February 23, 1971. Following a brief conversation, Stillings and Renville went “cruising up and down the drag,” and then to the Great Northern train depot where he bought two hits of LSD. At approximately 10:00 p.m., Renville was dropped off at Sandy’s Drive-In. The testimony of Chris Shatto confirms that Renville was alive and with Stillings at this time.

Stillings then picked up Dick Maxwell and proceeded to Perry’s residence, where a number of people were watching a movie entitled “The Eye of the Cat.” Renville was not with them.

Following the movie, Perry, Stillings, Chris Shatto and Joanne Kimbell motored to a house located on the north side of Great Falls, where Shatto and Kimbell were dropped off. Perry and Stillings then headed toward down-town Great Falls.

Stillings testified that he and Perry observed Renville walking about a block from Sandy’s Drive-In. Following their offer of a ride, Renville entered the car with Perry and Stillings. The group then proceeded to an area known as Wadsworth Park.

Upon reaching Wadsworth Park, Stillings informed Renville that he wanted to have intercourse. When Renville refused, Stillings testified that he placed a knife against her throat and said “or else.” Both Stillings and Perry raped Renville. Following the attacks, Renville exited the car. When she threatened to “rat,” Stillings witnessed Perry strike her on the head repeatedly with- a tire iron. Perry and Stillings then fled the scene. Shortly thereafter (12:30 a.m.), they picked up Mike Baldwin and Jim Duvall in an attempt to establish an alibi. Stillings later changed his car tires and disposed of the tire iron.

The State at trial also presented evidence that the coat worn by Perry on the night of the murder was spotted with human blood. In addition, JoAnn Wittke testified that Perry had informed her that a big guy and a small guy had killed Renville and then had thrown some car tires in the river. Perry and Stillings could be described as a big guy and a small guy.

Although his counsel vigorously cross-examined Stillings concerning his confession, Perry did not take the stand during the 1971 trial, nor did he present evidence in support of his alibi defense. However, Perry had earlier given a statement to the officers in which he indicated that he was at home all evening and went to bed at midnight. He later gave a sworn statement, in the presence of counsel, in which he stated he was with Stillings and Renville just prior to the murder but had been dropped off at Debbie Phillip’s house. Pursuant to this version of the night in question, Perry was alleged to have been making love during the time of the murder. He was then picked up by Stillings while walking home. They encountered Mike Baldwin and Jim Duvall shortly thereafter.

Neither Debbie Phillips nor her mother confirmed Perry’s story nor testified at trial. They did, however, before Perry’s trial, give sworn statements which contradicted Perry’s story. When informed of this state of affairs, and the fact that his counsel had a copy of the statements, Perry, surprised, responded “what?” Due to the passage of time, the original sworn statements by Debbie Phillips and her mother could not be found. However, Perry and his counsel acknowledged that the second explanation of the night of the murder was a fabrication.

Perry was subsequently convicted of second degree murder. He then moved for, and received, the appointment of new counsel immediately following the conviction.

Replacement counsel, Mr. Randono, thereafter moved for a new trial, alleging, inter alia, that the State failed to provide, pursuant to a discovery motion, the defense with exculpatory evidence, specifically, Stillings’ Seattle confession and a letter from Stillings to Mona Brown which indicates the death was accidental. The motion was subsequently denied and the issue of exculpatory evidence was not raised on the initial appeal. The record is generally unclear as to which documents Perry received pursuant to the motion. However, Perry’s trial counsel stipulated that the State had complied with the discovery request the day of trial and Stillings was cross-examined on the basis of his confession. In addition, Perry did not call his former attorneys to the witness stand during the 1987 hearing.

For a period of 15 years, Stillings was content to abide by his trial testimony. However, in 1986, Stillings learned that he and Perry would be incarcerated in the same prison for the first time. Shortly after Perry arrived, Stillings determined that his new found faith demanded that he come forward with the truth in order to relieve his conscience. Stillings contacted Perry through an intermediary and gave a sworn statement recanting his trial testimony shortly thereafter. Although Stillings indicated he originally confessed out of fear for his safety, he contends that his recantation was not motivated by similar concerns.

Following Stillings’ recantation, Perry immediately filed a motion for an indigency determination, appointment of counsel, and a new trial or other appropriate relief. However, he did not raise the issue of the State’s failure to provide exculpatory documents in his pleading nor was the pleading ever amended to include such a claim. Counsel indicates that the exculpatory documents were not discovered until shortly before the hearing.

Stillings’ recantation testimony is that he encountered Renville between 6:00 and 9:00 p.m. as she was walking to a store. Shortly thereafter, she and Stillings drove to the train depot where they parked and talked to some friends. Stillings then drove to Wadsworth Park with the avowed purpose of raping Renville.

Upon reaching the desired location, Stillings claims that he displayed a knife and told Renville to get undressed. Following the rape, both parties dressed and exited the car. Stillings testified that he then struck Renville with a tire iron and fled the scene. He went to Perry’s residence immediately thereafter in order to establish an alibi. However Stillings’ recantation conflicts with the testimony of Chris Shatto. She testified that she saw Renville and Stillings together after the time Stillings had allegedly killed her. In addition, the recantation also conflicts with Perry’s second version of the murder.

Perry also took the stand. Under this version of the night in question, he remained at his home all evening except for 30-45 minutes sometime between 11:00 p.m. and midnight. At that time, he and Stillings had given Chris Shatto and Joann Kimbell a ride to another residence. Perry then returned home and worked on a .30 caliber machine gun until 3:00 or 4:00 a.m.

Although additional witnesses testified or submitted affidavits, the last major witness was Rande Branden, a long time friend of Stillings who is currently incarcerated with Stillings on an unrelated homicide conviction. Branden testified that he had encountered Stillings three times on the evening in question. One occasion, Branden said, was when Stillings appeared at his home, at approximately 7:30 p.m., in a dazed and confused mental state. At that time, Stillings rambled incoherently, but Branden was able to decipher the word “dead” at least twice. Stillings then removed his pants for no apparent reason and was given another pair of pants by Branden.

Approximately two days later, Branden claims he surmised that Stillings may have committed the Renville murder. Upon examining Stillings’ pants, he observed dark spots he suspected to be blood. He then cut the pants into pieces and flushed them down a toilet. Stillings has never indicated that he had contact with Branden on the night of the murder. Stillings did testify, however, that he had washed his own clothes and a letter was introduced into evidence in which Stillings asked Branden to testify that he had been with Stillings. The District Court labeled the testimony “incredible.”

PROCEDURE

The State initially argues that although denoted a motion for new trial or other appropriate relief, Perry’s pleading is a petition for post-conviction relief. Consequently, Perry’s claims would be barred pursuant to the five year statute of limitations imposed by Section 46-21-102, MCA. However, upon examination of Perry’s motion, we find that Perry alleges, in essence, that he is being unlawfully detained in violation of his constitutional rights, put bluntly, that the State of Montana has unjustly incarcerated an innocent man for a period of 17 years on the basis of a flawed conviction.

Although Perry could not have brought his claim until the recantation occurred in 1986, the State would have us find that Perry’s only means of redress is a petition for post-conviction review and that the statutory clock on such petitions ran in 1978. We decline to do so. Under the interpretation urged by the State, a defendant held in violation of his constitutional rights would be deprived of a method of redress regardless of his diligence or the justness of his claim. We do not believe such a result to be the intent of the legislature nor consistent with our State Constitution. See 1972 Montana Constitution, Article II, Section 17.

The central function of the courts is the achievement of justice. However, like all endeavors of man, the search for justice is not without occasional flaws. From the time of the Magna Charta, the Great Writ of Habeas Corpus has been liberally employed as a means of guaranteeing that this judicial goal be accomplished and that a miscarriage of justice will be remedied. See 3 Blackstone Comm. at 129 et. seq. For at its heart, the writ represents an acknowledgment of the principle that the rights of freedom of the individual are worthy of protection.

Whereas Perry’s motion for a new trial cannot technically be denoted a petition for habeas corpus, nor do we treat it as such, the claim nevertheless sounds in the nature a petition for habeas corpus. We determine that in this case, the single issue is whether Perry is entitled to a new trial based on the proffered evidence of another person doing the criminal act for which Perry was convicted.

The burden of proof in such cases is stringent. In order to receive a new trial Perry must demonstrate that he has been the victim of an unjust conviction which has resulted in his unlawful detention. We conclude that he has failed to do so.

EXCULPATORY EVIDENCE

The first specification of error concerns the State’s alleged failure to provide Perry with exculpatory evidence in violation of his right to due process of law, as guaranteed by the Fourteenth Amendment, and his Fifth Amendment right to a fair trial. More precisely, that the mandate of Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 and State v. Craig (1976), 169 Mont. 150, 545 P.2d 649, demands that a new trial be granted because the State’s negligent failure to provide Perry with the letters and confession of Michael Stillings was of such a material and substantial nature as to have changed the verdict of the jury. However, the District Court found the issue to be res judicata. We agree.

While the mandate of due process and Article II, Section 16 of the Montana Constitution guarantees every person access to the courts, it cannot be said that such rights grant a person license to relitigate a cause or to burden the resources of the court with successive claims which could have been brought in one action. As one court has stated: “judicial economy dictates restrictions on reruns.” Coleman v. State (Mont. 1981), [_ Mont. _,] 633 P.2d 624, 630, 38 St.Rep. 1352, 1359, cert. den. (1982) 455 U.S. 983, 106 S.Ct. 1492, 71 L.Ed.2d 693, citing United States ex rel. Townsend v. Twomey (7th Cir. 1971), 452 F.2d 350, 357, cert. den. (1972) 409 U.S. 854, 93 S.Ct. 190, 34 L.Ed.2d 98.

Similarly, the public interest in finality of judgments also weighs heavily against serial litigation. See Murray v. Carrier (1986), 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397. The doctrine of res judicata is an embodiment of both principles. See Wellman v. Wellman (1982), 198 Mont. 42, 643 P.2d 573. It stands for the proposition that there must be an end to litigation at some point. First Bank v. Fourth Judicial Dist. (Mont. 1987), [226 Mont. 515,] 737 P.2d 1132, 1134, 44 St.Rep. 861, 864. Consequently, once a party has had full opportunity to present a claim or issue for judicial decision in a given proceeding, the judgment of that court will be deemed final as to all claims or issues which have been raised or which fairly could have been raised. Wellman, 198 Mont. at 45-46, 643 Mont. at 575.

In Taggard v. Rutledge (D. Mont. 1987), 657 F.Supp. 1420, the Court examined the nature, as well as this Court’s treatment, of the doctrine of res judicata. It stated:

“Res judicata principles embody two concepts. ‘Issue preclusion’ refers to the preclusive effect of a judgment in foreclosing litigation of a matter that has been litigated and decided. [Cite omitted.] In contrast, ‘claim preclusion’ refers to the preclusive effect of a judgment in foreclosing litigation of matters that should have been raised in an earlier suit ....
“The Montana Court has recognized the distinction between claim preclusion and issue preclusion, though not always articulating the precise definitions thereof. [Cite omitted.] When directly confronted with the issue, however, the Court clearly has followed the general rule governing claim preclusion. As early as 1935, the Court has recognized that a judgment is “binding and conclusive between the parties to the suit and their privies and successors in interest, as to all matters adjudicated therein and as to all issues which could have been properly raised, irrespective, of whether the particular matter was in fact litigated.” [Citation omitted.]

657 F.Supp. at 1428, 1430.

In the instant case, Perry does not contend that the prosecuting attorney purposely suppressed exculpatory evidence. Rather, the alleged suppression is said to have been the result of good faith negligence. Unfortunately, the record is generally silent as to which documents Perry did or did not receive from the State as neither the prosecuting attorney nor any of Perry’s three attorneys from 1971 testified. However, the record does disclose that Perry’s trial counsel informed the court that the State had complied with Perry’s discovery request; that Stillings was cross-examined concerning his earlier confession; and that replacement counsel Randono moved for a new trial on the basis of the State’s failure to provide Perry with Stillings’ Seattle confession and the letter from Stillings to Mona Brown, but failed to raise the claim during the 1973 appeal. The State contends that Perry’s failure to raise the exculpatory evidence claim on the initial appeal following the District Court’s denial of the motion for new trial is sufficient to invoke the claim preclusion facet of res judicata. Upon examination, we find the State to be correct.

In order for res judicata to bar reconsideration of a claim, four elements must be present:

“(1) the parties or their privies must be the same; (2) the subject matter of the action must be the same; (3) the issues must be the same, and must relate to the same subject matter; and (4) the capacities of the persons must be the same in reference to the subject matter and to the issues between them. [Citation omitted.]” Coleman, 633 P.2d at 630, 38 St.Rep. at 1358.

Although Perry argues that the “new” discovery of the existence of exculpatory evidence precludes satisfaction of the second, third, and fourth elements of the Coleman test, we do not find the allegedly “new” evidence to be controlling. The fact remains that the claim pits the same plaintiff and defendant against each other on the basis of a claim that Perry is entitled to a new trial because the State failed to provide exculpatory evidence, part of which was listed in the 1971 motion. While Perry may not have been aware of all the documents at that time, he was unquestionably aware of the existence of two documents and could have raised the claim on his initial appeal. The Coleman test is clearly satisfied.

THE RECANTATION

The second specification of error concerns the District Court’s failure to grant a new trial on the basis of Stillings’ recantation. Perry does not attack the District Court’s factual findings that Stillings was not credible; that Stillings’ recantation could not be true because it conflicted with the testimony of other witnesses; that Stillings recanted out of fear for his life; that Perry lied on the stand; or that the testimony of Rande Branden is incredible. Rather, he contends that the District Court improperly applied the presumption of truthfulness to Stillings’ 1971 testimony but not the subsequent recantation. As a result, Perry claims he was forced to shoulder the undue burden of proving the 1971 testimony was false.

The District Court’s reference to the presumption of truthfulness surrounding Stillings’ 1971 testimony, in effect, adopts the prevailing judicial attitude that recanted testimony is to be viewed with great suspicion. State v. Tharp (Iowa App. 1985), 372 N.W.2d 280; State v. Norman (1982), 232 Kan. 102, 652 P.2d 683; In Re Weber (1974), 11 Cal.3d 703, 114 Cal.Rptr. 429, 523 P.2d 229; Thacker v. Commonwealth (Ky. 1970), 453 S.W.2d 566; People v. Nash (1967), 36 Ill.2d 275, 222 N.E.2d 473; State v. Wise (1966), 101 Ariz. 315, 419 P.2d 342. We believe the rule to be well reasoned.

On its face, recanted testimony demonstrates the unreliability of a witness. In addition, it also raises other inquires: what motive would cause a person to subject himself to a potential perjury prosecution? In many cases, the answer is fear. See e.g., State v. Sena (1987), 105 N.M. 686, 736 P.2d 491 (defendant’s family intimidated recanting witness with threats and acts of physical violence). Perry argues, however, that Stillings’ recanted testimony is also entitled to a presumption of truthfulness and that the recantation per se mandates a new trial. Accord, State v. York (1985), 41 Wash.App. 538, 704 P.2d 1252. However, to grant a person of questionable credibility and motive carte blanche to overturn the determination of a jury operating within the bounds of our constitutional protections is not conducive to the sound administration of justice. People v. Shilitano (1916), 218 N.Y. 161, 112 N.E. 733; Accord, State v. Miller (Mont. 1988), [231 Mont. 497,] 757 P.2d 1275, 45 St.Rep. 790; State v. Greeno (1959), 135 Mont. 580, 342 P.2d 1052.

In light of the inherent suspicion surrounding recanted testimony and the public interest in swift and sure justice, we believe the better reasoned approach to be that adopted by the Supreme Court of Kansas:

“When a new trial is sought on the basis of recanting testimony of a prosecution witness, the weight to be given such testimony is for the trial judge passing on the motion for a new trial to determine. [Citations omitted.] The trial judge is required to grant a new trial only when he [or she] is satisfied the recantation of the witness is true.”

Norman, 652 P.2d at 689; see also, Thacker, 453 S.W.2d at 568; Nash, 222 N.E.2d at 478. We accordingly adopt the same. Absent a clear abuse of discretion, the decision of the District Court will be upheld.

In the instant case, Stillings’ recantation appears to be newly discovered perjury, not newly discovered evidence. As the District Court noted, the current versions of the night in question do not conform to the testimony of the other witnesses; the evidence presented at trial; Perry’s prior statements; nor does it account for Perry’s whereabouts at the time of the murder. It does strain the imagination, however. We conclude that Perry has failed to demonstrate the 1971 testimony was false.

ADEQUACY OF THE PROCEEDING

Finally, it is argued that the court improperly relied on affidavits submitted after the hearing in violation of Rule 59, M.R.CÍV.P.; refused to accept the proffered affidavits of two witnesses; and improperly relied on Perry’s unsigned statements. We disagree.

Rule 59(c), M.R.Civ.P. provides that the party opposing a motion for new trial has ten days in which to file affidavits. However, Perry’s pleading cannot be denoted a motion for new trial within the meaning of Rule 59 as the ten day filing deadline expired in 1971. See 59(b), M.R.Civ.P. Rather, the pleading sounds of a petition for habeas corpus. The crucial question is therefore whether the fact finding procedure employed by the District Court was adequate to afford Perry a full and fair hearing. See, Townsend v. Sain (1963), 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770; Little Light v. Crist (9th Cir. 1981), 649 F.2d 682.

Perry’s allegation that the District Court’s acceptance of two affidavits immediately following the hearing is reversible error is not convincing. The record discloses that Perry was provided two highly capable and diligent attorneys; that he was provided the services of a court reporter to take depositions at no expense; that he was provided adequate notice; that he was allowed to confront and cross-examine witnesses; that he presented witnesses in his behalf; that he was personally present and took the witness stand; and that exhibits offered on his behalf were admitted into evidence. In addition, Perry did not request a continuance nor did he submit additional evidence following notice of the affidavits. Perry clearly had a full and fair hearing.

Similarly, Perry’s contention that the District Court improperly refused to accept the affidavits of two witnesses is equally without merit. A review of the record indicates that the court did not refuse to accept the affidavits of Shatto and Kimbell. Rather, the court offered to accept counsel’s offer of proof in lieu of the affidavits. Perry’s decision not to submit the affidavits will not now be heard to constitute error.

Finally, it is contended that the court’s acceptance of Perry’s sworn statement from 1971 was error because the statement was not signed by him as required by Rule 30(e), M.R.Civ.P. However, we note that district courts are not strictly bound by all the rules of civil procedure in this type of proceeding. See generally, Coleman, supra (although post-conviction review is civil in nature, not all civil procedures are applicable); In Re Hart (1978), 178 Mont. 235, 583 P.2d 411 (habeas corpus may be either civil or criminal in nature); Schlanger v. Seamans (1971), 401 U.S. 487, 91 S.Ct. 995, 28 L.Ed.2d 251 (although habeas corpus is generally a civil action, it is not automatically subject to all the rules governing civil actions); Harris v. Nelson (1969), 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (characterization of habeas corpus proceeding as “civil” is gross and inexact, the proceeding is essentially unique). The crucial question is again whether the procedure employed by the District Court comports with Perry’s right to a full and fair hearing. See, Townsend, supra; Little Light, supra. We find that it did.

In the instant case, Perry contended that Stillings’ recantation, in conjunction with his latest version of the night in question, demonstrated that the State of Montana was unlawfully detaining him on the basis of an unjust verdict. Under such circumstances, it is clearly relevant, and fair, for the District Court to examine Perry’s prior explanation of the night of the murder. Particularly, when such statements were originally obtained in the presence of Perry’s counsel and Perry had an opportunity to explain the statements at the 1987 hearing.

In light of our discussion above, it is clear that Perry has failed to demonstrate that he is being unlawfully detained. The judgment of the District Court is affirmed.

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


text:
    LARRY L. HANNAH, Mark Whipple, Robert C. Slack, et al., Plaintiffs and Respondents, v. RANDY L. MARTINSON, John Nichols, Lowell Klatt, and Valley Bank of Belgrade, et al., Defendants and Appellants.
    No. 88-60.
    Submitted on Briefs June 2, 1988.
    Decided July 7, 1988.
    758 P.2d 276.

      Morrow, Sedivy & Bennett, Terry Schaplow, Bozeman, for defendants and appellants.
    Moore, Rice, O’Connell & Reffing, Dorothy L. Brownlow, Bozeman, for plaintiffs and respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Plaintiffs brought an action seeking to quiet title to certain real property located within Gallatin County. Following a hearing on the parties’ motions for summary judgment, the District Court of the Eighteenth Judicial District, Gallatin County, issued a judgment and decree quieting title in plaintiffs. This appeal followed. We affirm.

Although the parties argue extensively as to whether a judgment lien is an “encumbrance” within the meaning of Section 70-21-304, MCA; whether a judgment lienholder is an “encumbrancer”; and whether a judgment lien takes priority over an unrecorded deed, we conclude there is but one issue. Does a judgment lien attach to real property which has been transferred to another party by means of an unrecorded deed prior to the docketing of the judgment?

Plaintiffs are the original owners of Tract 17 of Certificate of Survey 471, Gallatin County. Plaintiffs subsequently sold the property to Byron G. Pride by written contract for deed. Pride in turn sold the property to defendant Martinson by a separate contract for deed dated January 30, 1979. A notice of Martinson’s interest was recorded by the Gallatin County Clerk and Recorder shortly thereafter.

When Pride defaulted on his contract, plaintiffs honored the agreement with Martinson, who thereafter made contract payments directly to plaintiffs.

On January 15, 1981, Martinson executed and delivered a quit claim deed conveying his interest in the property to defendant Nichols. Martinson also executed a warranty deed to Nichols of the same real property on January 15,1981. However, the quit claim deed was not recorded until October 22, 1982, and the warranty deed was not recorded until June 14, 1983. In the meantime, Nichols had made the contract payments directly to the plaintiffs until he defaulted on April 13, 1983. Upon his default, plaintiffs repossessed the property and brought the instant action.

Defendant Klatt is the only person who disputes plaintiffs’ claim to title. Klatt had obtained a judgment against Martinson on September 24, 1981. The judgment was subsequently docketed on September 28,1981, after the time Martinson had delivered deeds of his interest in the property to Nichols, but before the deeds were recorded. This appeal followed the District Court’s determination that Klatt’s judgment lien did not attach to the real property.

Section 25-9-301(2), MCA, provides, in pertinent part:

“From the time the judgment is docketed, it becomes a lien upon all real property of the judgment debtor . . . owned by him at the time or which he may afterward acquire until the lien ceases.” (Emphasis added.)

We note at the outset that Martinson never “owned” the property in fee simple. A vendee purchasing real property pursuant to a contract for deed holds an equitable title. Estate of Wooten (1982), 198 Mont. 132, 643 P.2d 1196; Kern v. Robertson (1932), 92 Mont. 283, 12 P.2d 565. Legal title remains vested in the vendor until such time as the contractual provisions are fully performed. Kern, supra; Wooten, supra. Our first task is therefore to determine whether the holder of an equitable title is an “owner” of real property within the meaning of Section 25-9-301, MCA. Upon review of the applicable statutes, we conclude that an equitable ownership interest is sufficient.

In the instant case the phrase “all real property of the judgment debtor . . . owned by him at the time” does not, on its face, indicate whether the legislature intended to include fee simple title, legal title, equitable title or other interest in the property. However Section 25-13-501, MCA, which provides for execution against the real property interests of a judgment debtor other than ownership in fee simple, clearly demonstrates a legislative intent to make a judgment lien operative against all real property interests. Equitable title is, therefore, an ownership interest which is subject to judgment liens. Accord, Fulton v. Duro (1985), 108 Idaho 392, 700 P.2d 14; Cascade Sec. Bank v. Butler (1977), 88 Wash.2d 777, 567 P.2d 631; Mutual Building & Loan Assoc. of Las Cruces v. Collins (1973), 85 N.M. 706, 516 P.2d 677. Consequently, we now turn to the issue at hand.

The issue of the legal effect of judgment liens is not unknown to Montana jurisprudence.

In the case of Vaughn v. Schmalsle (1890), 10 Mont. 186, 25 P. 102, the court was asked to determined the legal position of a prior unrecorded mortgage and judgment lien obtained pursuant to a statute substantially identical to Section 25-9-301, MCA. The court held:

“A judgment is not a specific lien on any particular real estate of the judgment debtor, but a general lien upon all his real estate, subject to all prior liens, either legal or equitable, irrespective of any knowledge of the judgment creditor as to the existence of such liens
“. . . the judgment creditor acquires thereby no higher or better right to the property or assets of the debtor than the debtor himself had when judgment was rendered, unless he can show some fraud or collusion to impair his rights. Correct statement of the rule is that the lien of a judgment creates a preference over subsequently acquired rights, but in equity it does not attach to the mere legal title to the land as existing in the defendant at its rendition, to the exclusion of a prior equitable title in a third person. Guided by these considerations, the court . . . will protect the equitable rights of third persons against the legal lien, and will limit that lien to the actual interest which the judgment debtor has in the estate at the time the judgment was rendered.” (Emphasis added.)

10 Mont. at 194-195, 25 P. at 103. See also Rockefeller v. Dellinger (1899), 22 Mont. 418, 56 P. 822; Clack v. Clack (1935), 98 Mont. 552, 41 P.2d 32.

Application of the Vaughn rationale demonstrates the error of Klatt’s contention that his judgment lien attached even though Martinson’s interest had been transferred. A judgment lien can only attach to the actual interest of the judgment debtor. Vaughn, supra. See also Short et al. v. Karnop et al. (1929), 84 Mont. 276, 275 P. 278 (attaching creditor is neither a bona fide purchaser nor an encumbrancer of the attached property and therefore succeeds to and acquires only the rights of his debtor.) It can not attach to an interest which does not exist, nor can a judgment lien claim superiority as against a valid prior transfer.

A judgment lien can only bind an interest in real property when the debtor himself, during the existence of the judgment lien, could voluntarily transfer or alienate the interest. See Clack, 98 Mont. at 567, 41 P.2d at 37. As a matter of fact, the subsequent default by Nichols of the contract for deed, which caused a termination by Hannah, on April 13, 1983, itself would wipe out any lienable interest of Martinson in the property.

In light of our determination that the judgment lien failed to attach, the issue whether a judgment lien is an encumbrance, and the lien holder an encumbrancer within the meaning of the recording statutes, is moot.

The judgment is affirmed.

MR. JUSTICES WEBER, GULBRANDSON, HUNT and Mc-DONOUGH concur.


text:
    MONTANA DEACONESS MEDICAL CENTER, a non profit corporation, Plaintiff and Respondent, v. CARL E. JOHNSON, Defendant and Respondent. CITY OF GREAT FALLS, Montana, Defendant, Third-Party Plaintiff and Appellant, v. COUNTY OF CASCADE, Montana, Third-Party Defendant and Respondent.
    No. 88-91.
    Submitted on Briefs May 26, 1988.
    Decided July 7, 1988.
    758 P.2d 756.

      David V. Gliko, City Atty., Great Falls, for defendant, third-party plaintiff and appellant.
    Sharon M. Anderson, Patrick L. Paul, Co. Atty., Great Falls, for third-party defendant and respondent.
    David J. Patterson, MACO, Missoula, James T. Harrison, Jr. Sheriff, Helena, Jim Nugent, Mont. League of Cities & Towns, Missoula, for amicus curiae.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

In this case we are asked to determine whether the City of Great Falls (City) or the County of Cascade (County) is ultimately responsible for medical costs incurred by a person in the custody of City Police Officers as a result of a felony arrest. The District Court of the Eighth Judicial District, Cascade County, determined that the controlling factor was the City’s custody over Johnson at the time the medical expenses were incurred and issued an order dismissing the City’s third party complaint against the County. We reverse.

The facts, as stipulated by the parties, are as follows:

1. On January 4, 1987, Johnson was arrested by City Policemen.

2. The officers immediately determined Johnson’s life was in jeopardy as a result of his ingestion of a quantity of prescription pills.

3. The officers requested an ambulance which arrived at the scene of the arrest and transported Johnson to Montana Deaconess Medical Center (Deaconess).

4. Deaconess was advised Johnson was under arrest when Johnson arrived.

5. Johnson incurred reasonable medical charges from January 4, 1987, until his release on January 5, 1987, in the amount of $2,193.13, after two days in Deaconess’s Intensive Care Unit.

6. Deaconess made demand for full payment to Johnson and Third Party Plaintiff City, and to Third Party Defendant County.

7. The City and County have refused to pay said bill.

8. Johnson admits liability for Deaconess’s claim but he is indigent and has no present or future means to pay the charges.

9. Johnson was “booked in” in absentia at the Police Department on January 4, 1987.

10. Johnson was released by Deaconess on January 5, 1987, and transported to the City Police Department.

11. Johnson was detained at the City Police Department until his initial appearance on January 6, 1987, before the County Justice of the Peace and subsequently detained in the County Jail. The County Jail is operated and managed by the County Sheriff’s Department.

12. Initial charges of aggravated assault, aggravated kidnapping and sexual intercourse without consent, all felony offenses under the Montana Criminal Code, were filed in the County Justice of the Peace Court (later transferred to the District Court) and accepted by the County Attorney. No misdemeanor or felony charges of any kind were filed with the City Court.

Generally, persons under official detention have a constitutional right to adequate medical care, regardless of their ability to pay. City of Revere v. Massachusetts General Hospital (1983), 463 U.S. 239, 103 S.Ct. 2979, 77 L.Ed.2d 605 (due process demands that persons detained by government agencies receive adequate medical care; responsibility for costs is a matter of state law). Consistent with the mandate of the United States Supreme Court, the Montana Legislature has adopted legislation providing for the care of prisoners. Section 7-32-2222, MCA, provides:

“Health and safety of prisoners. (1) When a county jail or building contiguous to it is on fire and there is reason to believe that the prisoners may be injured or endangered, the sheriff, jail administrator, or private party jailer must remove them to a safe and convenient place and there confine them as long as it may be necessary to avoid the danger.
“(2) When a pestilence or contagious disease breaks out in or near a jail and the physician thereof certifies that it is likely to endanger the health of the prisoners, the district judge may by a written appointment designate a safe and convenient place in the county or the jail in a contiguous county as the place of their confinement. The appointment must be filed in the office of the clerk and authorize the sheriff, jail administrator, or private party jailer to remove the prisoners to the designated place or jail and there confine them until they can be safely returned to the jail from which they were taken.
“(3) If in the opinion of the sheriff, jail administrator, or private party jailer any prisoner, while detained, requires medication, medical services, or hospitalization, the expense of the same shall be borne by the agency or authority at whose instance the prisoner is detained when the agency or authority is not the county wherein the prisoner is being detained. The county attorney shall initiate proceedings to collect any charges arising from such medical services or hospitalization for the prisoner involved if it is determined the prisoner is financially able to pay.”

Although the City contends that Section 7-32-2222(3), MCA, when viewed in its entirety, indicates that persons charged with violations of state law occurring within a county are the financial responsibility of that county, we do not find the statute to be controlling. By its terms, Section 7-32-2222(3), MCA, is not triggered until such time as “the sheriff, jail administrator, or private party jailer” determines that a detained person requires medical care. In addition, the statute, when read as a whole, assumes incarceration in the county jail at the time the need for medical care arises. Such is clearly not the situation in the instant case.

Moreover, Section 7-32-2222(3), MCA, is obviously designed to fix financial responsibility for medical costs on the agency for which the prisoner is being detained in the county jail. This section recognizes that frequently county jails in Montana are used to house federal prisoners or persons held for violations of municipal laws.

When confronted with the issue now before us, the courts of other jurisdictions have split along two lines of reasoning. Under the minority “custody and control” approach, the financial responsibility for medical costs is determined on the basis of which agency had custody at the time the treatment is provided. See e.g. Sisters of the Third Order of St. Francis v. Tazewell County (1984), 122 Ill.App.3d 605, 78 Ill. Dec. 230, 461 N.E.2d 1064. “[If] physical control is [subsequently] transferred [during the course of the treatment] the responsibility is transferred along with it and the cost of care [is] prorated.” Cuyahoga County Hospital v. City of Cleveland (Ohio App. 1984), 472 N.E.2d 757, 759. New jurisdictions have followed the lead of the Ohio and Illinois courts, however.

The majority “nature of the crime” approach determines financial responsibility not on the basis of which agency first takes a person into custody, but rather on the basis of the crime ultimately charged. See Wesley Medical Center v. City of Wichita (1985), 237 Kan 807, 703 P.2d 818; L.P. Medical Specialists v. St. Louis County (Minn. App. 1985), 379 N.W.2d 104; Zieger Osteopathic Hospital v. Wayne County (1984), 139 Mich.App. 630, 363 N.W.2d 28; Albany General Hospital v. Dalton (1984), 69 Or.App. 204, 684 P.2d 34; St. Mary of Nazareth Hospital v. City of Chicago (1975), 29 Ill.App.3d 511, 331 N.E.2d 142; Washington Township Hospital District of Alameda County v. County of Alameda (1968), 263 Cal.App.2d 272, 69 Cal.Rptr. 442. After carefully considering the arguments and authority supporting both positions, the Supreme Court of Kansas recently held:

“. . . We have concluded that a city is not responsible for the payment of medical expenses incurred by an indigent person who is arrested by city police and subsequently charged with a violation of state law and who, before being physically transferred to the county jail, is taken to a hospital for necessary medical treatment. We hold that so long as an offender is arrested for violation of a state law and in due course is charged with a state crime and delivered to the county jail for confinement, the medical and other incidental expenses incurred as a consequence of and following his arrest, and until his transfer to such facility, are chargeable to the county. We further hold that a county’s liability for charges and expenses for safekeeping and maintenance of the prisoner, including medical expenses, does not depend on which police agency happens to be called to the scene of the alleged crime or whether such expenses were incurred before or after he is placed in a county jail. The controlling factor is that the prisoner was arrested and subsequently charged with violation of a state law.”

Wesley Medical Center, 703 P.2d at 824.

We agree.

A county is the largest subdivision of the state. Section 7-1-2101, MCA. Consequently, the county is vested with the primary responsibility of enforcing the laws of the state and maintaining facilities in furtherance of that task. See, Sections 7-4-2716, 7-32-2201, MCA. Sound reasoning dictates that the performance of the county’s task necessarily includes the assumption of the associated financial burden.

We, therefore, hold that the county is financially responsible for medical costs incurred by a detained person ultimately charged with a violation of state law but who is unable to pay. The judgment of the District Court is reversed and remanded for proceedings consistent with this Opinion.

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


author: MR. JUSTICE GULBRANDSON

text:
    WESTERN MEDIA, INC., a Montana corporation, Plaintiff and Appellant, v. WILLIAM A. MERRICK, Defendant and Respondent.
    No. 88-133.
    Submitted on Briefs June 9, 1988.
    Decided July 7, 1988.
    757 P.2d 1308.

      Larry W. Moran, Bozeman, for plaintiff and appellant.
    Edmund P. Sedivy, Jr., Morrow, Sedivy & Bennett, Bozeman, for defendant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Western Media, Inc. (Western Media), plaintiff/ appellant in this case, originally brought an action against defendant/respondent William Merrick (Merrick) for breach of contract due to a violation of a covenant not to compete. That action was dismissed by the lower court but upon appeal, this Court reversed that decision which is published as Western Media, Inc. v. Merrick (Mont. 1986), [224 Mont. 28,] 727 P.2d 547, 43 St.Rep. 1991. This second appeal and cross-appeal is from an order and judgment of the Eighteenth Judicial District Court, Gallatin County, granting Western Media attorney’s fees on remand in the amount of $5,000. We affirm.

Western Media presents the following rephrased issue for our consideration:

Did the District Court abuse its discretion in granting $5,000 as attorney’s fees in this breach of contract case where the express agreement between the parties allows for recovery of attorney’s fees “as damages” and the losing party stipulated to fees in the amount of $16,338.75 but argued that the amount was unreasonable?

Merrick further cross-appeals from the same order and judgment and presents the following issue:

Did the trial court err in failing to set off the sum of $833.34 representing two monthly payments unpaid by Western Media from the $3,333.36 awarded?

The underlying facts are set out in Western Media, supra, 727 P.2d at 548-549, but will be reiterated to the extent needed for determination of this appeal and cross-appeal. The following facts are paraphrased from a stipulation between the parties dated June 3, 1987.

On May 14, 1975, Western Media and Merrick entered into an agreement for the sale of KBMN, Inc. naming Merrick as seller and Western Media as buyer. Contained in this agreement was a covenant not to compete for a ten-year period signed by Merrick in consideration of $50,000 to be paid in 120 monthly installments of $416.67 commencing September 1, 1975. On September 1, 1984, Merrick breached this covenant by taking a job with the Montana State University public television station, KUSM.

Even though Merrick had breached the contract on September 1, 1984, Western Media continued to make eight payments according to the agreement from September 1, 1984 through June 1,1985. The payments amounted to $3,333.36. Western Media was awarded this amount after the initial appeal. Merrick claims $833.34 should be deducted from the amount because he quit working for KUSM on June 30, 1985 and Western Media therefore should be liable for the amounts due July and August of 1985.

The original agreement signed by Merrick also contained an attorney’s fees clause which states:

“Attorneys Fees in Case of Breach:
“In the event either party files suit to recover for a breach of this Agreement, or to enforce against another party any of the terms and provisions hereof, the prevailing party shall be entitled to recover as damages its reasonable attorneys fees incurred in the prosecution or defense of such action.”

Both parties retained attorneys in this litigation. The District Court, in its opinion and order of January 12, 1988, stated Western Media was entitled to its attorney’s fees pursuant to the agreement. Western Media submitted an affidavit stating hourly rates charged by its attorneys amounted to $16,338.75. The court ordered, and incorporated into its judgment of January 26, 1988, that Western Media was entitled to $5,000 as reasonable attorney’s fees.

Although an hourly fee is claimed by Western Media’s attorney, we note that the attorney’s fee agreement signed by the president of Western Media and its counsel called for fees to be paid either by contingency fee or by the hour, whichever resulted in the higher fee for the attorney. The applicable clause states:

“Compensation to the attorney for representing client will be based upon a contingency fee of forty percent (40%) of any amount recovered by settlement or trial at the District Court level, and fifty percent (50%) of any amount recovered on or after appeal to the Montana Supreme Court; or, an hourly rate of eighty-five dollars ($85.00) per hour for all office time spent, and $150.00 per hour for all Court time spent by the undersigned attorney on client’s claim against Merrick, whichever calculation results in the larger compensation to the attorney.” (Emphasis theirs.)

Even though attorney’s compensation is provided for under Section 25-10-301, MCA, which allows the amount and manner to be [1]eft to agreement, express or implied . . . “ this type of clause takes away the rationality behind contingency fee contracts.

Similar to Montana case law, Rule 1.5 of the Model Rules of Professional Conduct states: “[a] lawyer’s fee shall be reasonable.” This clause is bordering on being unreasonable considering that the rationale for contingency fees is based on the theory that attorneys risking their entire fee can justify a larger recovery. Under the above clause the attorney takes no risk and enjoys a windfall.

Western Media now claims that since the attorney’s fees clause in the agreement stated the prevailing party was to recoup reasonable attorney’s fees “as damages” that the intent of the parties was to make the prevailing party whole. Western Media cites Section 27-1-311, MCA, for the proposition that the measure of damages in any breach of contract case is the amount that would compensate the aggrieved party “[f]or all the detriment which was proximately caused thereby or in the ordinary course of things would be likely to result therefrom.” Western Media contends the express language of the agreement controls and it should receive an amount that would compensate it for its actual loss sustained in employing its attorney. We disagree.

In determining attorney’s fees, a number of general rules have arisen over the years. Appropriately considered by the District Court is the rule stated in Crncevich v. Georgetown Recreation Corp. (1975), 168 Mont. 113, 119-120, 541 P.2d 56, 59, recently adhered to by this Court:

“The circumstances to be considered in determining the compensation to be recovered are the amount and character of the services rendered; the labor, time, and trouble involved, the character and importance of litigation in which the services were rendered, the amount of money or the value of property to be affected, the professional skill and experience called for, the character and standing in the profession of the attorneys; . . . the result secured by the services of the attorneys may be considered as an important element in determining their value.”

Weinberg v. Farmers State Bank of Worden (Mont. 1988), [231 Mont. 10,] 752 P.2d 719, 735, 45 St.Rep. 391, 411.

The District Court cited similar language in its opinion and order and stated it considered the above-enumerated factors in determining $5,000 was a reasonable fee in this case. The court stated it also considered the fee agreement entered into by the parties.

Merrick contends the $5,000 award was excessive because it exceeds the amount of recovery actually received by Western Media. Merrick relies on the “result secured” language of Crncevich, and Weinberg, for the proposition that the attorney’s fees received in this case are unreasonable. In Morris v. Nationwide Insurance Company (Mont. 1986), [222 Mont. 399,] 722 P.2d 628, 43 St.Rep. 1363, cited by both parties, the prevailing attorney presented evidence that he had expended 352 hours of time on the case amounting to $29,992.25. The jury returned an award to the claimant in the case in the amount of $19,994.64. An agreement which had been signed by the attorney stated he would receive 33V3% of any recovery and an addendum excepted the first $6,000. We affirmed the district court’s ruling that the attorney was entitled to $4,664.88 based on the contract entered into by the parties but stated “a contingent fee contract is not controlling in demonstrating the ‘reasonableness’ of an attorney fee” Morris, 722 P.2d at 631.

Although no contingent fee is claimed in this case, it is . axiomatic that, within the guidelines established in Crncevich, and restated in Weinberg, “the amount fixed as attorney fees is largely discretionary with the District Court.” Carkeek v. Ayer (1978), 188 Mont. 345, 347, 613 P.2d 1013, 1015. Merrick further cites to Johnson v. Tindall (1981), 195 Mont. 165, 635 P.2d 266, for the proposition that offers of settlement should be considered in determining reasonable attorney’s fees. Merrick claims he made an offer to settle the case early in the litigation which was rejected by Western Media. This offer was allegedly for the same amount Western Media received. We note however, that Johnson, supra, was not determined solely on the settlement offer and refuse to accept Merrick’s contention that it is gravamen in this case.

Here, the District Court did not abuse its discretion in granting $5,000 as reasonable attorney’s fees. See generally, Shors v. Branch (Mont. 1986), [221 Mont. 390,] 720 P.2d 239, 43 St.Rep. 919; Donnes v. Orlando (Mont. 1986), [221 Mont. 356,] 720 P.2d 233, 43 St.Rep. 890. The District Court properly considered the contractual relationship between the parties and analyzed the reasonableness of the fees under the Crncevich guidelines. The statement of attorney’s fees as “damages” in the agreement is not sufficient to reverse the District Court in this case in light of the District Court’s considerations.

We also affirm the District Court’s decision not to reduce the award from $3,333.36 to $2,500.02 based on the $833.34 claimed due for the months of July and August in 1985. The District Court stated in its opinion and order of January 12, 1988:

“It is the position of this Court that once a contract has been breached, its terms may not be unilaterally resumed. A non-breaching party has no duty to perform the terms of the contract once it has been breached. The agreement is then broken and regardless of whether the breaching party ceases those activities constituting the breach, he has no basis upon which to demand performance from the non-breaching party . . .”

We agree with this statement. Western Media disputes Merrick’s citations to Havre Daily News v. Floren (1973), 163 Mont. 131, 515 P.2d 673; and Lieman-Scott, Inc. v. Holmes (1963), 142 Mont. 58, 381 P.2d 489. In both cases, the covenant not to compete was involved in the overall sale price and separate consideration was not paid. The Lieman-Scott Court held that a non-breaching party may affirm the contract and seek damages or rescind the contract and recover the sum paid, but the party could not rescind and recover damages. In this case we previously stated: “Western Media did not sustain any damages prior to the breach by Merrick, but is entitled to return of payments made subsequent to such breach plus any other losses incurred due to Merrick’s employment at KUSM.” Western Media, supra, 727 P.2d at 550. The sum paid is recoverable and the contract was rescinded. Merrick’s employment or non-employment at any time after breaching the contract is not material.

It is a maxim of jurisprudence that “[n]o one can take advantage of his own wrong.” Section 1-3-208, MCA. A party who breaches a contract cannot claim entitlement to that contract’s benefits after such breach. Merrick’s claim here is that he should benefit from his own breach. A party to a contract cannot take advantage of his own act or omission to escape liability thereon. Gramm v. Insurance Unlimited (1963), 141 Mont. 456, 462, 378 P.2d 662, 665; see also, Roundup Cattle Feeders v. Horpestad (1979), 184 Mont. 480, 603 P.2d 1044, (party could not recover for performance rendered before the breach where the breaching party completely breached an entire, nonservable contract without justification or excuse). Merrick’s breach may not have been willful or intentional. However, the breach occurred and the contract was severed.

The District Court is affirmed on the appeal and cross-appeal in this case.

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


author: MR. JUSTICE HUNT

text:
    JAMES NATHAN BIEBER, Plaintiff and Appellant, v. BROADWATER COUNTY and William Duede as County Commissioner and Individually, Defendants and Respondents.
    No. 88-19.
    Submitted on Briefs May 19, 1988.
    Decided July 8, 1988.
    759 P.2d 145.

      Reynolds & Motl, David K.W. Wilson, Jr., Helena, for plaintiff and appellant.
    Jardine, Stephenson, Blewett & Weaver, Sue Ann Love, Great Falls, for defendants and respondents.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Plaintiff appeals from a summary judgment of the District Court, First Judicial District, County of Broadwater. We affirm.

Appellant Bieber lists the following as issues on appeal:

1. Does Section 2-9-111(2), MCA, grant Broadwater County immunity for the actions of one of its commissioners in firing appellant Bieber?

2. Does Section 2-9-111(3), MCA, grant County Commissioner Duede immunity for his actions in firing Bieber?

Following is a summary of the pertinent facts of this case. More facts will be revealed as needed within the body of the opinion. We wish to note that County Commissioner Duede has died since this case was submitted to the Court for appellate review. Since no motion for substitution of his personal representative has been made pursuant to Rule 37(a), M.R.App.P., we will assume he has none and will proceed with rendering this opinion as if Duede were still living. We are given this authority pursuant to Rule 37(a).

Bieber was hired by Broadwater County as a seasonal member of the road crew in September, 1983. This position became full-time in April, 1984. The county road crew repairs and maintains county roads under the direct supervisory control of the County Commissioners. Commissioner Duede became the primary supervisor of the road crew partly because of his physical proximity to the county shop. He was primarily responsible for assigning work, disciplining and hiring and firing of employees. It was Duede who hired Bieber in 1983. Bieber was apparently performing satisfactorily until Duede discovered that county equipment was being damaged by Bieber. On February 28, 1986, Duede fired Bieber. There is some dispute whether Bieber had been forewarned that his alleged abuse of county equipment could cost him his job. Duede did not consult with the other two commissioners but later told them of his action with which they both concurred. Bieber now claims that the commissioners violated their own personnel policy as well as their contractual obligations and obligation to deal in good faith.

Bieber filed suit alleging breach of the employment contract, bad faith and violation of the employment at will statute. He later added a- wrongful discharge count. When respondents filed a motion for summary judgment on the grounds that they were immune from suit under Section 2-9-111, MCA, the court dismissed the action on those grounds. Bieber appeals from this judgment.

Bieber initially argues that the District Court incorrectly assessed the meaning of Section 2-9-111, MCA, and its applicability to the Commissioners’ action. He asserts that the statute represents a narrow exception to the constitutionally mandated rule of no sovereign immunity and as such its protection is limited to purely “legislative” acts and excludes day to day “administrative” responsibilities such as the firing of a county employee.

The statute reads in pertinent part:

“2-9-111. Immunity from suit for legislative acts and omissions. (1) As used in this section:
“(a) the term ‘governmental entity’ includes the state, counties, municipalities, and school districts;
“(b) the term ‘legislative body’ includes the legislature vested with legislative power by Article V of The Constitution of the State of Montana and any local governmental entity given legislative powers by statute, including school boards.
“(2) A governmental entity is immune from suit for an act or omission of its legislative body or a member, officer, or agent thereof.
“(3) A member, officer, or agent of a legislative body is immune from suit for damages arising from the lawful discharge of an official duty associated with the introduction or consideration of legislation or action by the legislative body.”

It is clear that the Broadwater County Commissioners are a legislative body of the governmental entity of Broadwater County under the language of the statute. The decision to fire Bieber, although initially made by only one Commissioner, Duede, was later ratified by the rest of the commission. It was an act of a member of a legislative body and is covered under the express language of the statute. We have previously held that acts of a County Commission are immune under Section 2-9-111, MCA and do so again in this case. See, Barnes v. Koepke (Mont. 1987), [226 Mont. 470,] 736 P.2d 132, 44 St.Rep. 810; W.D. Construction, Inc. v. Bd. of County Commissioners (Mont. 1985), [218 Mont. 348,] 707 P.2d 1111, 42 St.Rep. 1638.

Appellant asks that we recognize the distinction between administrative acts which should not be protected and legislative acts which should be protected. We decline to give credence to appellant’s argument because the plain language of the statute makes no such distinction. As we have stated, this Court will not delve outside the plain meaning of the words used in a statute. See, W.D. Construction, 707 P.2d at 1113 and Barnes, 736 P.2d at 134.

Appellant contends, as his second issue that Duede, as an individual defendant, is not protected under Section 2-9-111(3) because Duede was not discharging an official duty associated with “the introduction or consideration of legislation or action by the” County Commissioners. We disagree. Duede clearly had an official duty to oversee and administer the maintenance and repair of county roads in his capacity as a County Commissioner. Within this responsibility is the ability to fire and hire road crew members. In firing Bieber, Duede was discharging his lawful duty as commissioner. He cannot be sued for that action under the current law.

As a final point of argument, Bieber challenges the constitutionality of Section 2-9-111, MCA. In response, the County argues that this issue was not raised at trial and thus cannot be heard by the Court upon appeal. We find sufficient reference to the issue in Bieber’s plaintiff’s brief in opposition to defendant’s motion for summary judgment. Thus, we will address this issue.

Bieber’s claim is that the statute creates two classes of county employees, those under the County Commissioners’ direct supervision who cannot sue the county and all other county employees who can sue the county. Thus Section 2-9-111, violates the equal protection clause, Article II, Section 4 of the Montana Constitution. For this proposition, Bieber, directs our attention to the case, Lovell v. Wolf (Mont. 1982), 197 Mont. 443, 643 P.2d 569, 39 St.Rep. 710, in which a county clerk and recorder successfully sued the city-county manager for wrongful discharge. Bieber, in essence, argues that since the city-county manager was not protected under Section 2-9-114, MCA, governing immunity for local executive officers, the county should not be immune from suits under Section 2-9-111, MCA. This argument is meritless. Nowhere in the Lovell case is the issue of governmental immunity discussed. And because it would have involved Section 2-9-114, not Section 2-9-111, the case is not relevant for the purposes of this issue.

The standard applicable to equal protection analysis can be found in the case of Small v. McRae (1982), 200 Mont. 497, 651 P.2d 982.

“Turning to the issue of equal protection, that issue is analyzed by using a two-step process. Initially, the Court must consider the nature of the classification and the individual interests affected, to determine what level of scrutiny is applicable to the classifications. Memorial Hospital v. Maricopa County (1974), 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306. Unless the classification touches on a fundamental right (such as religious freedom, freedom of speech or association, privacy or right to travel), or is drawn upon an inherently suspect distinction (such as race, religion or alienage), the constitutionality of the statutory discrimination is presumed; the only requirement being that the classification be rationally related to a legitimate state interest. New Orleans v. Dukes (1976), 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511. ‘Rationally related’ means that the classification will be upheld if it has any rational basis. See, Lindsley v. Natural Carbonic Gas Co. (1911), 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369.”

651 P.2d at 996.

Bieber argues that the fundamental right involved here is the right to full legal redress provided in Article II, Section 16 of the 1972 Montana Constitution. We disagree.

Article II, Section 16 of the Montana Constitution guarantees citizens access to the courts of this state for the redress of wrongs done to them. This Court has said that access to the courts is not an independent fundamental right. We so stated in Linder v. Smith (Mont. 1981), 629 P.2d 1187, 1190, 38 St.Rep. 912, 915 and consequently used a rational basis analysis to conclude that the Montana Medical Malpractice Panel Act did not violate Article II, Section 16. This is the appropriate standard to use for the purposes of equal protection analysis in this case. The oft articulated rationale for retaining government immunity (specifically in this case legislative immunity) is to insulate a decision or law making body from suit in order to prevent its decision or law making processes from being hampered or influenced by frivolous lawsuits. This reason satisfies the rational basis test. The County Commission is entrusted with the responsibility to supervise the maintenance and repair of county roads. This includes the power to decide whom to hire and fire. To allow suit against them for the performance of their duties would hinder this performance. We conclude that equal protection is not violated by Section 2-9-111, MCA.

Affirmed.

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


author: MR. JUSTICE WEBER

text:
    In re the MARRIAGE OF BECKY LYNN ERETH, Petitioner and Appellant, and KENNETH ARTHUR ERETH, Respondent and Respondent.
    No. 87-159.
    Submitted on Briefs June 2, 1988.
    Decided July 12, 1988.
    757 P.2d 1312.
    Nye & Meyer, Joan Meyer Nye, Billings, for petitioner and appellant.
    David L. Irving, Glasgow, for respondent and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Becky Lynn Ereth appeals the custody award and the property distribution in this dissolution of marriage entered by the District Court for the Fifteenth Judicial District, Sheridan County. We affirm.

Becky and Ken Ereth were married in 1973. They had four daughters. Becky petitioned for a dissolution of marriage in 1985. In September 1986, the court heard two days of testimony concerning custody and property distribution. The court, in January 1987, entered its Findings of Fact, Conclusions of Law, and Decree of Dissolution. The court awarded custody of the four girls to the father as sole and permanent custodian and granted the mother reasonable visitation rights.

After initial review of the decree, this Court concluded that the lower court’s findings on the question of child custody were incomplete. We therefore returned the matter to the lower court for the entry of findings of fact to address the elements set forth in Section 40-4-212, MCA. After the lower court entered additional findings, the parties were given an opportunity to brief any new questions raised by the findings. We now consider the following issues:

1. Are the court’s findings regarding custody supported by the evidence?

2. Did the court erroneously rely upon the father’s proposed findings regarding property distribution?

I

Are the court’s findings regarding custody supported by the evidence?

The mother contends that the District Court abused its discretion in awarding custody to the father because she believes there is a clear preponderance of evidence weighing against the court’s findings. When reviewing the District Court’s custody order, we first must determine whether the factors set forth in Section 40-4-212, MCA, were considered. In re Marriage of Jacobson (Mont. 1987), [228 Mont. 458,] 743 P.2d 1025, 1026-27, 44 St.Rep. 1678, 1680. Pursuant to this Court’s order, the lower court expressly considered the necessary statutory factors in its additional findings.

Once it is established that the court properly considered the statutory criteria, we must determine whether the court made appropriate findings with respect to these criteria. In re Marriage of Manus (Mont. 1987), [225 Mont. 457,] 733 P.2d 1275, 1276, 44 St.Rep. 398, 400. Section 40-4-212, MCA (1985), provided as follows:

“The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:
“(1) the wishes of the child’s parent or parents as to his custody;
“(2) the wishes of the child as to his custodian;
“(3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest;
“(4) the child’s adjustment to his home, school, and community; and
“(5) the mental and physical health of all individuals involved.” Findings of fact will not be set aside unless clearly erroneous. Rule 52(a), M.R.Civ.P. The long-standing rule in Montana is that we will not disturb findings of fact if they are supported by substantial credible evidence.

The lower court heard testimony from numerous witnesses, including experts, as to the issue of custody. The court relied heavily upon the testimony and observations of two of the experts concerning the children’s wishes, interrelationship of the children with their parents, and the mental and physical health of all individuals. Those two expert witnesses had prepared the custody report ordered by the lower court. The parties agreed at trial that Mr. Jones, one of the experts, was a psychologist. Dr. Brown, the other expert, has a doctorate degree in educational psychology. After review of the record, we conclude that the court did not abuse its discretion in relying upon the testimony of these two experts.

The court specifically found that all four children stated a preference that they wanted to live with their father, that the parents were openly hostile with each other, that each parent was assessed as possessing adequate parenting skills, that significant problems were noted in the relationship between the mother and the children, that the mother was evaluated as having poor control emotionally and being over-reactive with the children, that the mother had been described as abusive toward the children at times, that the father was described as responsible, and that he had a good relationship with each of the girls. The court also found that the girls appeared to be well adjusted to the father’s home, that two of them preferred the school closest to the father, and that the testimony established that the girls appeared to be well adjusted in the community. Further, the court found that all four children were well adjusted and healthy, with the exception of the oldest who suffers from a stress-related infection, and that the father was well adjusted and found to be without significant emotional problems. The court found that the mother is a recovering alcoholic who still drinks, that she was described as one who deteriorates with stress and is prone to anger and overreacting, and that she uses poor judgment.

A good deal of testimony was presented concerning these issues, and much of the testimony conflicted. However, the mother has failed to demonstrate that the court’s findings and conclusions were clearly erroneous. After careful review of the record, we conclude that substantial credible evidence supports the court’s findings. The mother has not shown an abuse of discretion. Therefore, we affirm the District Court’s determination of custody.

II

Did the court erroneously rely upon the father’s proposed findings regarding property distribution?

The mother argues that the District Court adopted the findings proposed by the father and, as a result, failed to make findings supported by the evidence. We answered a similar argument in Jacobson, 743 P.2d at 1029:

“The District Court can adopt a party’s proposed findings of fact and conclusions of law if they are sufficiently comprehensive and pertinent to the issues to provide a basis for a decision and are supported by the evidence.”

The findings proposed by the father were sufficiently comprehensive and pertinent to the issues. The findings dealt specifically with each item or category of property for which there was evidence presented at the hearing. The mother’s argument is that the findings are not supported by the evidence. Her position is that because the court required “compromise” findings, the court failed to give proper consideration to the facts and failed to exercise independent judgment in valuing the property. In Jacobson, 743 P.2d at 1029, we stated the applicable rule:

“The standard of review of findings made by a District Court is the same whether the District Court prepared the findings or adopted a party’s proposed findings. In Re Marriage of LeProwse (1982), 198 Mont. 357, 646 P.2d 526, 529, 39 St.Rep. 1053, 1056. Error occurs only when the proposed findings are relied upon to the exclusion of proper consideration of the facts and the failure to exercise independent judgment. In Re Marriage of Hunter (1982), 196 Mont. 235, 639 P.2d 489, 495, 39 St.Rep. 59, 67.”

The values placed on certain marital property by the parties and their experts were widely divergent. During the hearing the judge actively participated in the process. He asked the witnesses numerous questions, seeking quantities and values for the assets and liabilities. The initial proposed findings were so far apart that the judge ordered the parties to propose compromises. The findings eventually adopted by the court for the most part represented average values between the parties’ initial proposals. We have reviewed the evidence carefully and conclude that the evidence would not support the valuations, as a whole, proposed by the mother. The father’s proposals represented average values. This Court has held that it is proper for a district court to value marital property within the range of evidence submitted. In re Marriage of Johnston (Mont. 1986), [223 Mont. 383,] 726 P.2d 322, 325, 43 St.Rep. 1808, 1812. Further, a district court has broad discretion in determining net worth. Johnston, 726 P.2d at 325. We conclude that the evidence supports the findings.

We also note that the court’s findings and conclusions differed from the father’s proposals in several significant aspects beneficial to the mother. The court ordered the father to pay maintenance of $300 per month for two years. The court also ordered the father to pay the mother for her share in the balance of marital property in a payment scheme different than the father had proposed. The father also had proposed to pay interest on outstanding equity payments; however, the court rejected that proposal.

We hold that the District Court properly considered the evidence and exercised independent judgment. We affirm the findings and conclusions regarding property distribution.

Affirmed.

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