text:
    IN RE DISTRICT COURT BUDGET ORDER, DATED October 1, 1997
    No. 97-677.
    Ordered January 13, 1998.
    1998 MT 4.
    55 St.Rep. 9.
    287 Mont. 137.
    952 P.2d 427.
   OPINION AND ORDER

¶1 The First Judicial District Court Judges, Jeffrey M. Sherlock, Thomas C. Honzel, and Dorothy McCarter (Judges), have, by counsel, filed their motion requesting that this Court issue an order dismissing the appeal filed by the Board of Lewis and Clark County Commissioners (Board). The Judges contend that their October 1, 1997 order is not appealable under Rule 1, M.R.App.R The Board has responded, arguing that the order is appealable.

BACKGROUND

¶2 In 1997 the Montana Legislature amended § 3-5-602, MCA, to increase the amount of salary for court reporters. The statute went into effect on October 1, 1997, and provided, in pertinent part that:

Each reporter is entitled to receive a base annual salary of not less than $28,000 or more than $35,000 and no other compensation except as provided in 3-5-604, ...

¶3 The Judges argue that the language “and no other compensation” has been contained in the Montana statute for over 100 years and that despite this language court reporters in this state, working for district Judges, have been receiving fringe benefits in addition to their salary under the statute for decades. The Judges further state that the feoard threatened to discontinue the court reporters’ fringe benefits after October 1, 1997, and that the Judges, accordingly, ordered the Board to continue paying the fringe benefits. The Judges’ order, issued October 1,1997, required the Board to provide the court reporters of the Lewis and Clark County District Court the maximum salary increase authorized by the 1997 Legislature and “all county employment benefits they received prior to October 1, 1997, including but not limited to, health insurance, PERS participation, and all other benefits said court reporters received prior to October 1, 1997.” On November 25,1997, the Board appealed this order directly to this Court.

DISCUSSION

¶4 The Judges maintain that if the Board wishes to take issue with their October 1, 1997 order, the Board is required to file an appropriate civil action — whether that be a petition for writ of mandamus pursuant to § 27-26-101, et seq., MCA; a petition for writ of prohibition pursuant to § 27-27-101, et seq., MCA; or some other action.

¶5 The Judges contend that Rule 1, M.R.App.P., is very restrictive and specifically requires a civil action or a criminal action to be filed before any party, aggrieved by an order, may appeal. The Judges argue that since the Board has failed to commence any civil action, nor has any civil action been commenced against the Board, there can be no appeal and that the Board’s appeal should be dismissed. The Judges also point out that since no civil action has been commenced there are no named parties, no case number, nor any court record which can be transmitted on appeal. They contend that their order is simply an “administrative order” from which an appeal is improper under Rule 1, M.R.App.P.

¶6 In response, the Board argues that the Judges did not issue their order as an idle act — they expected it to be obeyed unless withdrawn (which it has not been). In fact the Judges expressly provided that failure to abide by the order “will constitute a contempt of court and subject the county and its commissioners to possible fines and other penalties.” According to the Board, no further steps are needed to effectuate the Judges’ order. The Board faces a clear choice — abide by the order or face contempt of court charges.

¶7 Under these circumstances, the Board argues that the Judges’ order represents a final order for purposes of Rule 1, M.R.App.R, and it cites to our decision in Butte Silver Bow Local Gov’t v. Olsen (1987), 228 Mont. 77, 743 P.2d 564, wherein we accepted the direct appeal of a similar ex parte funding order of a Montana district court.

¶8 Moreover, the Board argues that the alternative remedy suggested by the Judges would fail to provide the Board with the requisite relief which it seeks. The Board contends that the order is a final appealable order and that the question of whether there might be an alternative approach is purely academic. Furthermore, citing Awareness Group v. School District No. 4 (1990), 243 Mont. 469, 475, 795 P.2d 447, 451, and Billings Associated Plumbing v. State Board of Plumbers (1979), 184 Mont. 249, 254, 602 P.2d 597, 600, the Board contends that a writ of prohibition would provide no relief because the Judges have already acted in issuing their order and because a district court could not order the Judges to refrain from an act that has already occurred.

¶9 Similarly, the Board contends that filing a petition for writ of mandamus would be futile since the purpose of the writ is to compel activity and to require the performance of an act which the law specifically enjoins as a duty or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and from which he is unlawfully precluded. Sections 27-26-101 and 102, MCA. The Board contends that if it opted to disobey the Judges’ order and to await a mandamus action by the affected court reporters, the Board would place itself in contempt of court, which it is not willing to do. Furthermore, the Board cites our decision in Awareness Group for the proposition that filing a petition for a writ of mandamus after the court has already issued its order would be a meaningless act. See, Awareness Group, 795 P.2d at 451. Finally, the Board points out that the Judges’ order is not one from an administrative agency but, rather, is a judicial order from the First Judicial District Court.

¶10 We have considered the arguments raised by the Judges and by the Board and conclude that there is merit in each side’s legal position. On the one hand, we tend to agree with the Judges that the order is likely not appealable under Rule 1, M.R.App.P.

¶11 In this regard, however, we note that in Olsen, the case cited by Board, we did entertain a direct appeal of the district court’s ex parte judicial order granting a salary increase to eight members of the court’s staff. As pointed out by the Board, it in fact, does not appear that there was any underlying proceeding or action from which the appeal in that case was taken. Olsen, 743 P.2d at 564-65. Notwithstanding, there was no issue or argument raised in Olsen as to whether the district court’s order was directly appealable under Rule 1, M.R.App.P, or whether an underlying civil action or proceeding was a necessary predicate to the appeal. Accordingly, Olsen is not dispositive of the precise issue raised by the Judges in their motion to dismiss.

¶12 We also tend to agree with the Board that, for the reasons it sets forth in its memorandum of law, neither a petition for writ of prohibition nor a petition for writ of mandamus would be appropriate or provide any meaningful relief given the posture of the case at bar. It would be futile to seek to either prohibit or to compel an act already accomplished. Awareness Group, 795 P.2d at 451.

¶13 Nonetheless, we are concerned that this matter is on direct appeal without any underlying record whatsoever, except for the Judges’ order, and with the potential that, even though the matter at issue appears to be primarily one of law, there may be factual matters which will be of importance to our decision.

¶14 With all of this in mind, we believe that the better approach in a case such as this is that the party aggrieved by the Judges’ order file an original proceeding in this Court under Rule 17, M.R.App.R This was the sort of procedure that was utilized in Gallatin County v. Eighteenth Judicial District Court (1997), 281 Mont. 33, 930 P.2d 680. In that case the Board of Gallatin County Commissioners instituted an original proceeding in this Court by way of a petition for writ of supervisory control seeking r elief from an order of the Eighteenth Judicial District Court directing the Gallatin County Commissioners to provide and to pay for various jury room facilities at the Gallatin County Law and Justice Center.

¶15 We accepted supervisory control because of the state-wide importance of the legal issues presented and because it was clear that urgency and emergency factors existed, not the least of which was the interest of the Gallatin County taxpayers in avoiding extended litigation beginning at the trial court level. Gallatin County, 930 P.2d at 683. ¶16 Moreover, in that case, since it appeared that a factual record needed to be developed, we were able to remand the entire matter for an evidentiary hearing to a neutral district court judge for the purpose of developing a factual record and more clearly defining the legal issues. Following that hearing and entry of the neutral judge’s findings and conclusions, and with the record developed in the neutral district court, we were able to render our decision on the important legal issues raised. Gallatin County, 930 P.2d at 683-89.

¶17 We believe that a similar procedure should be followed in the case at bar. Should the Board choose to do so, it may file a petition for writ of supervisory control with this Court pursuant to Rule 17, M.R.App.P., and raise therein whatever legal questions it determines are at issue as a result of the Judges’ order of October 1,1997. In this regard, and in order to expedite our review of this matter should the Board seek supervisory control, we suggest that the Judges and Board jointly file a statement of agreed facts and attach thereto the Judges’ order and any other documents that are necessary to our review of the legal issue or issues presented. To the extent that the parties cannot agree on certain facts, those disputes can be pointed out and, if we deem it necessary, we can then remand for an evidentiary hearing in a neutral district court as we did in Gallatin County.

¶18 On this basis, we conclude that the Judges’ motion to dismiss the Board’s instant appeal should be granted without prejudice to the underlying merits of the case. Accordingly,

¶19 IT IS HEREBY ORDERED that the Judges’ motion to dismiss should be and the same is, hereby, GRANTED, and the appeal of the Board in this cause is DISMISSED WITHOUT PREJUDICE TO THE MERITS.

¶20 IT IS HEREBY FURTHER ORDERED that the Clerk of this Court give notice of this order by mail to counsel of record.

¶21 DATED this 13th day of January, 1998.

/S/J. A. TURNAGE

/S/JAMES C. NELSON

/S/JIM REGNIER

/S/ TERRY N. TRIEWEILER

/S/KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    RAYMOND KUNTZ, Plaintiff and Appellant, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Respondent/Insurer for CEREAL FOOD PROCESSORS, INC., Employer.
    No. 97-012.
    Submitted on Briefs August 7, 1997.
    Decided January 13, 1998.
    1998 MT 5.
    55 St.Rep. 12.
    287 Mont. 142.
    952 P.2d 422.

      For Appellant: James G. Edmiston, III, The Law Firm of Edmiston & Schermerhorn, Billings.
    For Respondent: Peter J. Stockstad, Garlington, Lohn & Robinson, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

¶1 Raymond Kuntz appeals from the Workers’ Compensation Court’s denial of his claim for permanent partial disability benefits for a January 1987 industrial injury. We affirm.

¶[2 The issues are:

¶3 1. Whether substantial credible evidence supports the Workers’ Compensation Court’s finding that Kuntz does not have a permanent partial disability caused by his January 1987 back injury.

¶4 2. Whether the court’s conclusion is correct that Kuntz failed to prove by a preponderance of the evidence that his January 1987 injury caused his current disability.

¶5 Raymond Kuntz worked at a flour mill in Billings, Montana, for over twenty years, most of that time as an assistant miller. The assistant miller monitors and adjusts milling machinery during the milling process, performs routine maintenance on machinery, collects and tests flour samples, puts in additives, and clears ducts of “choke-ups.” While he worked at the flour mill, Kuntz earned a degree in business administration. Although he applied for several management positions at the mill after obtaining his degree, his attempts to move into a management position were unsuccessful.

¶6 The mill was owned by Cereal Food Processors from 1984 through Kuntz’s termination from employment there in 1994. Nationwide Mutual Fire Insurance Company was Cereal Food Processor’s workers’ compensation insurer for employees at the flour mill.

¶7 Over the years, Kuntz sustained a number of injuries to his back, some work-related and others non-work related. His initial back injury occurred in 1974 and was diagnosed as a herniated disk at L5-S1. Kuntz reinjured his back in 1977,1980, and 1981. Of these, the 1981 injury was the worst, requiring him to be hospitalized for a week. That injury was diagnosed as a herniated nucleus pulposus on the right.

¶8 In the fall of 1982, Kuntz suffered a non-work related recurrence of low back pain after dragging an antelope while hunting. Dr. Peter Teal, who began treating Kuntz at that time, diagnosed Kuntz as having a herniated disc at L5-S1 on the right side.

¶9 In the incident at issue in this case, Kuntz injured his low back at work on January 20,1987, when he tried to catch a 100-pound sack of flour that slipped from a stack which he was taking up the “manlift” (the open elevator in the flour mill). Kuntz reported left leg pain to his supervisor and missed two weeks of work as a result of this injury. He went to a hospital emergency room a few weeks later complaining of left leg pain. He was not hospitalized, however, and he did not consult his treating physician, Dr. Teal, until nearly two months later. As of that time, March 1987, Dr. Teal did not note any ongoing leg pain, nor did he think further treatment was indicated.

¶10 Kuntz was again reinjured at work in November 1988, while pulling a lever. He sought treatment from Dr. Teal two weeks later, at which time Dr. Teal noted that Kuntz had reinjured his back at work “and developed aching pain mostly in the left calf.” Dr. Teal stated in his deposition that Kuntz had reached maximum healing from his 1987 injury before the 1988 injury. Kuntz sought treatment for periodic left leg pain following the November 1988 injury, once in 1989, twice in 1990, and once in 1991. Kuntz did not seek medical care for his back again until November 1994.

¶11 In 1993, Kuntz began suffering from severe anxiety and depression. He obtained mental health counseling, during which he was advised to stop working the rotating shifts which he was required to work as an assistant miller. Kuntz applied for a transfer to a day shift job at the flour mill, but he did not get the position for which he applied. The flour mill then offered Kuntz another day shift position, in an entry-level job which required heavy lifting. Kuntz obtained a letter from Dr. Teal stating that such a job would be inadvisable due to his back condition. The mill subsequently advised Kuntz not to report back to work because it did not have a suitable day shift job available for him.

¶12 In this proceeding, Kuntz asserts that his 1987 back injury precludes him from physically performing the assistant miller job at the flour mill. He seeks permanent partial disability benefits under §§ 39-71-705 through -708, MCA (1985), based upon his possible prospective future loss of earning capacity.

¶13 Before the hearing was held on the present claim, Kuntz settled with the insurer for his work-related injuries in 1977, 1980, and 1981. At the time of the hearing on this claim, he also had claims pending for work-related injuries in 1974 and 1988.

¶14 At the hearing, Kuntz offered Dr. Teal’s deposition testimony. Nationwide presented live testimony by Dr. William Shaw, a specialist in occupational medicine who conducted an independent medical examination of Kuntz in January 1996. Then, and at the time of trial, Kuntz was working as a custodian for the Billings public schools at about half his annual earnings at the flour mill. Kuntz testified in person at the hearing before the Workers’ Compensation Court, as did two vocational experts, five of Kuntz’s co-workers and a supervisor at the flour mill, and Kuntz’s custodial supervisor at the schools.

Issue 1

¶15 Does substantial credible evidence support the Workers’ Compensation Court’s finding that Kuntz does not have a permanent partial disability caused by his January 1987 back injury?

¶16 This Court reviews findings of fact made by the Workers’ Compensation Court to determine whether they are supported by substantial credible evidence. Kloepfer v. Lumbermen’s Mut. Cas. Co. (1996), 276 Mont. 495, 497, 916 P.2d 1310, 1311. The finding which Kuntz here disputes was that his 1987 injury “was not material or significant on a permanent basis and did not increase his disability over what existed prior to the injury.”

¶17 Kuntz asserts that the Workers’ Compensation Court erred in essentially determining that his right leg and low back pain “belonged to” the early 1980 injuries, but only the left leg pain “belonged to” the January 1987 injury. He further contends that the Workers’ Compensation Court improperly concluded that because his left leg pain decreased after 1991, the effects of the 1987 injury were completely gone. Instead, he maintains, the court should have found that his January 1987 injury was an aggravation of a previous condition and that under Belton v. Carlson Transport (1983), 202 Mont. 384, 658 P.2d 405, the risk for the entire condition passed to Nationwide as the insurer for Cereal Food.

¶18 The issue in Belton was whether the healing period from a previous injury ended for purposes of workers’ compensation only when the injured worker was “completely healed.” This Court clarified that the insurer at the time of a second injury is at risk for the injury if the previous injury covered by another insurer has reached maximum healing, maximum recovery, or a medically stable condition; complete recovery from the previous injury is not necessary for the second insurer to be responsible. Belton, 202 Mont. at 389-90, 658 P.2d at 407-08. The burden of proof is on the insurer at the time of the second injury.

¶ 19 A limitation not at issue in Belton, but clearly set forth therein, is that the second injury must be “an aggravation of a pre-existing injury.” Belton, 202 Mont. at 391, 658 P.2d at 409. In the present case, although Dr. Teal opined by deposition that Kuntz’s 1987 injury was either a “new injury” or an “aggravation of a previous condition,” and that Kuntz’s injuries of 1977, 1980, and 1981 had reached maximum healing before 1987, Dr. Shaw testified that the 1987 injury did not aggravate or materially change Kuntz’s underlying condition. In Dr. Shaw’s opinion, the 1987 incident represented an exacerbation, or temporary alteration in symptoms, but not an aggravation, or material and permanent alteration, in Kuntz’s condition.

¶20 Kuntz further alleges that the Workers’ Compensation Court ignored the legal principle set forth in Tiedeman v. Cooper Logging, Inc. (1985), 218 Mont. 312, 708 P.2d 255, that “each new compensable injury, though successive, begins a new benefit consideration beginning at zero.” Tiedeman, 218 Mont. at 316, 708 P.2d at 257. Kuntz maintains that the rule established in Tiedeman applies here.

¶21 The rule from Tiedeman applies as to “each new compensable injury.” Here, the Workers’ Compensation Court found that Kuntz did not suffer a permanent aggravation of his pre-existing back injury, and that therefore the 1987 injury was not compensable. If that finding is supported by substantial credible evidence, then the rule from Tiedeman does not apply. Thus, both Beiion and Tiedeman bring us back to the issue stated above: whether substantial credible evidence supports the finding that Kuntz does not have a permanent partial disability caused by his 1987 injury.

¶22 The Workers’ Compensation Court found that this case turned, in large part, on Kuntz’s credibility. The court did not find wholly credible Kuntz’s testimony concerning the nature and extent of his pain or the nature and extent of his disability, finding that Kuntz “is an extremely angry man driven by a desire for revenge against his former employer, and that his testimony concerning the demands of his time-of-injuryjob, the extent of his pain, and his ability to perform his time-of-injury job was exaggerated.”

¶23 The record supports the court’s determination as to Kuntz’s credibility. For example, during his deposition, Kuntz was asked if he had returned to the point where he was having some periodic low-back pain and leg pain, “the same as you’ve had ever since 1974?” Kuntz answered, “That’s correct.” The court heard testimony from Kuntz’s co-workers at the flour mill and from one of the vocational experts concerning the physical demands of the assistant miller job. Their testimony indicated that the pace and labor required for the job were not nearly as intensive as described by Kuntz. When asked if Kuntz complained about back pain at work, several of his mill co-workers responded that he did, but that “he complained about everything.” When Kuntz stopped working as an assistant miller in 1994, it was due to his depression, not his back injuries.

¶24 When he was examined by Dr. Shaw, Kuntz was pursuing benefits for his 1977, 1980, and 1981 injuries, having not yet settled those claims. Kuntz did not even report his 1987 injury to Dr. Shaw. ¶25 When Kuntz applied for work with the Billings school district, he represented that he had no physical handicap or deficit that precluded him from performing certain work, and wrote, “My back has not given me any trouble for a long time.” At the time of the hearing, he had applied for an upgraded custodial position with the school district which would involve heavier duties, including the moving of desks and file cabinets. Based upon all the information presented, the court concluded that Kuntz’s claims about his disability were exaggerated.

¶26 Additionally, the evidence that Kuntz’s 1987 injury caused his current disability was, at best, equivocal. As the Workers’ Compensation Court noted, it was after the 1988 injury, not the 1987 injury, that Dr. Teal noted that Kuntz had “developed aching pain mostly in the left calf.” Dr. Teal reported after his March 3, 1987 examination of Kuntz that Kuntz “has improved now and in fact he is back to his usual status of some chronic aching low back pain.” Dr. Teal’s opinion that Kuntz could not perform the job of assistant miller was based on Kuntz’s reports of the nature and extent of his pain, the nature and extent of his disability, and the requirements of the job. Unlike Dr. Shaw, Dr. Teal did not go to the flour mill and observe the assistant miller job.

¶27 Section 39-71-116(12), MCA (1985), defines permanent partial disability as a “condition resulting from injury” (emphasis added) which results in loss of earnings or earning capability. Dr. Teal assigned Kuntz a ten percent impairment rating, but he was not able to attribute that impairment rating to Kuntz’s 1987 injury. In fact, in the pretrial order, Kuntz stipulated that Dr. Teal’s impairment rating is attributable to his 1981 injury.

¶28 Dr. Shaw went to the flour mill on two occasions to evaluate the physical demands of the assistant miller job. Based upon those visits to the mill, his review of Kuntz’s medical records, his physical examination of Kuntz, and the detailed history which Kuntz provided, Dr. Shaw opined to a reasonable degree of medical certainty that Kuntz was not physically precluded from working as an assistant miller due to his back problems. He further concluded that Kuntz quit work at the mill because of his depression rather than because of problems with his lower back.

¶29 Dr. Shaw noted that Kuntz had a twenty-year history of mechanical low back pain and sciatica. He testified that Kuntz’s report of variations in pain since his 1974 injury “is really very typical of this chronic, recurrent, mechanical low back syndrome.” As to Kuntz’s claim that before his 1987 injury he had only experienced right leg pain and not left leg pain, Dr. Shaw testified that, “to me, as an examining physician, the fact that one time the pain is on the right, the other time the pain is on the left, is not so significant to me that there has been a measurable alteration of his underlying status.” Dr. Shaw opined that Kuntz suffered a physical impairment, but he could not to a reasonable degree of medical certainty attribute the impairment to Kuntz’s 1987 injury.

¶30 After reviewing the record in this case, we hold that substantial credible evidence supports the Workers’ Compensation Court’s finding that Kuntz does not have a permanent partial disability caused by his January 1987 back injury.

Issue 2

¶31 Is the court’s conclusion correct that Kuntz failed to prove by a preponderance of the evidence that his January 1987 injury caused his current disability?

¶32 The Workers’ Compensation Court concluded that “[t]he evidence preponderates in favor of a conclusion that claimant’s overall condition was not materially, permanently changed by the 1987 injury, and that his disability was not increased by the injury.” Kuntz argues that the court erred in accepting the testimony of Dr. Shaw over the testimony of Dr. Teal, his treating physician for fourteen years.

¶33 We review the Workers’ Compensation Court’s conclusions of law to determine whether that court’s interpretation of the law is correct. Kloepfer, 276 Mont. at 497-98, 916 P.2d at 1311. This Court has recently rejected the argument that a treating physician’s opinion is conclusive in workers’ compensation matters:

Nevertheless, a treating physician’s opinion is not conclusive. To presume otherwise would quash the role of the fact finder in questions of an alleged injury. The Workers’ Compensation Court, as the finder of fact, is in the best position to assess witnesses’ credibility and testimony.

Kloepfer, 276 Mont. at 498, 916 P.2d at 1312. This is especially true, where, as here, the testimony of the treating physician was equivocal and was based in large part upon subjective reports of a non-credible claimant, while the conflicting testimony of the independent medical examiner was unequivocal.

¶34 As to the deposition testimony of Dr. Teal, this Court has the same opportunity to review that evidence as did the Workers’ Compensation Court. See Smith-Carter v. Amoco Oil Co. (1991), 248 Mont. 505, 813 P.2d 405. As to that testimony, we agree with the Workers’ Compensation Court in that the testimony was equivocal and was based in large part upon Kuntz’s subjective representations of his condition and of his job duties.

¶35 As to the testimony of the witnesses who appeared live before the Workers’ Compensation Court, this Court must defer to the trial court’s assessment ofthe testimony of those witnesses. See, e.g., Walls v. Travelers Indem. Co. (1997), 281 Mont. 106, 111, 931 P.2d 712, 716. We again point out, as noted above, that Dr. Shaw’s opinion was based upon more than his physical examination of Kuntz. It was also based upon his two visits to the flour mill to assess the job requirements of an assistant miller, his review of Kuntz’s medical records, and the detailed history which Kuntz provided to him.

¶36 In his reply brief, Kuntz argues for the first time that two cases previously decided by this Court, Chaney v. U.S. Fidelity & Guar. (1996), 276 Mont. 513, 917 P.2d 912, and Walker v. United Parcel Service (1993), 262 Mont. 450, 865 P.2d 1113, control the result in the present case. Walker is cited in the Respondents’ brief, but Chaney is not.

¶37 Both Chaney and Walker recognize that the claimant bears the initial burden of establishing that he suffered a compensable injury from an industrial accident. Chaney, 276 Mont. at 518, 917 P.2d at 915; Walker, 262 Mont. at 454, 865 P.2d at 1116. As discussed above, Kuntz has failed to meet his initial burden of establishing that he suffered permanent detriment on account of his 1987 injury. Therefore, the burden does not shift to the insurer as described under Chaney and Walker.

¶38 We hold that the Workers’ Compensation Court was correct in concluding that the preponderance of the evidence indicated that Kuntz’s 1987 injury was not the cause of any permanent disability from which he suffers.

¶39 Affirmed.

JUSTICES GRAY, REGNIER, TRIEWEILER and LEAPHART concur.


author: JUSTICE LEAPHART

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOHN PARKER, Defendant and Appellant.
    No. 96-662.
    Submitted on Briefs December 18, 1997.
    Decided January 15, 1998.
    1998 MT 6.
    55 St.Rep. 16.
    287 Mont. 151.
    953 P.2d 692.

      For Appellant: Jeffrey G. Michael, Deputy Public Defender, Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Micheál S. Wellenstein, Assistant Attorney General, Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 John Parker (Parker) appeals from the decision of the Thirteenth Judicial District Court, Yellowstone County, denying his motion to suppress evidence obtained during a consensual search of an automobile and denying his motion for directed verdict based on a variance between the State of Montana’s (State’s) affidavit in support of leave to file the information and the evidence it presented at trial. We affirm.

Factual and Procedural Background

¶2 On November 22,1995, Officer Joseph Campbell (Officer Campbell) was patrolling traffic on Interstate 90 near Billings, Montana. Officer Campbell was driving in the passing lane when he observed a red Audi with three adult occupants. Charles Parker (Charles), Parker’s brother, was driving the automobile. Suzanne Surber (Suzanne) sat in the front passenger seat and Parker sat directly behind Suzanne in the right, rear, passenger seat. Officer Campbell later discovered that a toddler was seated in a child restraint in the left, rear, passenger seat.

¶3 As Officer Campbell approached and proceeded to pass the Audi, he noticed what he described as unusual behavior. Officer Campbell testified that the individuals exhibited an unusual amount of interest in the patrol car and that Suzanne seemed to be transporting something from the front seat to the backseat in what he described as “furtive” movements. As a result of the occupants’ unusual behavior, Officer Campbell ran a check on the vehicle’s license plates and discovered that the plates were registered to a 1984 Pontiac 600, not an Audi. While Officer Campbell requested the dispatcher to run a second check on the license plate, he exited the interstate, allowed the Audi to pass, then reentered the highway behind the Audi. The Audi exited the interstate at Laurel Road, and Officer Campbell followed. When the dispatcher confirmed the license plate information, Officer Campbell activated his patrol lights indicating that he wanted the car to pull over. The Audi did not stop, but continued onto Parkway Road and finally stopped in a truck stop parking lot.

¶4 Officer Campbell approached the Audi and explained that the license plates were not registered to the Audi. Charles indicated that he did not know anything about the plates and that Suzanne owned the vehicle. Suzanne also denied knowing about the license plates, but agreed that she owned the Audi. Officer Campbell asked for identification and learned that Charles did not have a valid driver’s license. Suzanne, however, produced a valid driver’s license. Officer Campbell then asked Suzanne why she was reaching around in the vehicle. She explained that she was taking care of the toddler in the back seat. Officer Campbell indicated that the movements seemed to be in the direction of Parker rather than the child.

¶5 Officer Campbell then asked Suzanne if she would accompany him to the patrol car to answer further questions. She agreed. Officer Campbell asked if the car contained any weapons, drugs or drug paraphernalia. Suzanne indicated that it did not. Officer Campbell explained that he suspected that the car contained such items because of Suzanne’s suspicious movements which he claimed were not explained by her taking care of the child. Officer Campbell then asked Suzanne if he could search the vehicle. She consented to the search.

¶6 When Officer Campbell approached the vehicle to conduct the search, Parker was still seated in the vehicle. Officer Campbell explained to Parker that he had consent from Suzanne to search the vehicle and asked Parker if he had any objections to the search. Parker indicated that he did not, and exited the Audi. Before Officer Campbell began the search, he asked Parker if any of the items belonged to him. Parker indicated that a box on the left passenger floor belonged to him and that it contained some books and video tapes.

¶7 Officer Campbell began his search by opening a purse located on the front passenger floor. Inside the purse he found a small clear plastic cosmetic case containing Zigzag rolling papers and Visine eye drops. He also found a leather pouch containing a small mirror, an orange-colored hand-carved pipe and a film container covered in iridescent contact paper. The pipe contained a burnt residue and Officer Campell testified that he could smell the odor of burnt marijuana. The film container contained a straight glass pipe with white powdery residue, a razor blade, a hairpin with tarry residue and a small brown glass bottle. The small brown glass bottle had a black cap to which a small spoon hinged. The bottle also contained white powdery residue.

¶8 Officer Campbell discovered a black fanny pack on the rear deck of the Audi. The fanny pack was located near Parker’s seat. Officer Campbell began to search the pack and asked the three occupants of the vehicle whom it belonged to; Suzanne indicated that it belonged to Parker. However, Officer Campbell testified that Charles, Suzanne and Parker all denied owning the fanny pack. The main compartment of the fanny pack contained three packages of temporary tattoos, a notebook, and a business card which said “John F. T.J.’ Parker, Computer Consulting and Chemistry.” The business card did not indicate an address or phone number. Officer Campbell testified that, when he found the business card, he believed the fanny pack belonged to Parker.

¶9 The notebook contained chemical formulas. On one page, a long chemical formula appeared with the word “meth” written at the end. Another compartment of the fanny pack contained a calculator and more business cards. In the rear compartment of the fanny pack, Officer Campbell found a blue nylon pouch containing a small pipe, two small Ziplock bags with powdery residue, two syringes, a razor blade, four Ziplock bags, three small plastic bindles, a teaspoon with a broken handle and a small glass bottle containing a clear liquid. Upon finding what he believed to be drug paraphernalia, Officer Campbell placed Charles, Suzanne and Parker under arrest. Officer Campbell informed them of their Miranda rights then asked Suzanne if he could continue searching the vehicle; Suzanne revoked her consent at this point. Officer Campbell transported them to the Yellowstone County Detention Facility where they were booked. Parker was charged with felony criminal possession of dangerous drugs and misdemeanor criminal possession of drug paraphernalia.

¶ 10 Subsequent testing of the items at the crime lab indicated that the pipé found in the fanny pack tested positive for tetrahydrocannabinol (THC), the active ingredient in marijuana. The glass bottle from the fanny pack tested positive for methamphetamine.

¶11 Prior to trial, Parker moved to suppress evidence seized from the fanny pack asserting that Suzanne’s consent to search the vehicle was not a valid consent as to the fanny pack, therefore the search, conducted without a warrant, did not fall within a recognized exception to the warrant requirement. The District Court held a suppression hearing and denied the motion. In its findings of fact and conclusions of law, the court determined that Officer Campbell had a particularized suspicion warranting the investigative stop of the vehicle. Additionally, the District Court concluded that Suzanne, as the owner of the vehicle had authority to consent to the search and that her consent was voluntary. Finally, the court determined that Parker did not have standing to challenge the search of the vehicle.

¶12 A bench trial was held on May 20, 1996. Officer Campbell was the only witness to testify. At the conclusion of the State’s case, defense counsel moved for a directed verdict claiming a fatal variance between the proof offered by the State at trial and that contained in the State’s affidavit in support of leave to file the information. Defense counsel asserted that items found in Suzanne’s purse were improperly entered into evidence at Parker’s trial. Defense counsel further asserted that there was insufficient evidence produced at trial that Parker possessed dangerous drugs. In its findings of fact and conclusions of law, the court determined that Parker’s variance claim was without merit because any variance that existed between the State’s affidavit and the evidence it produced at trial was not prejudicial to Parker and found Parker guilty of the charges. Parker appealed the denial of his motions to suppress and for directed verdict to this Court. We review two issues on appeal:

¶13 1) Did the District Court err in denying Parker’s motion to suppress evidence obtained during a consensual search of a vehicle?

¶14 2) Did the District Court err in denying Parker’s motion for directed verdict based on a variance between the State’s affidavit and the evidence it produced at trial?

I

¶15 1) Did the District Court err in denying Parker’s motion to suppress evidence obtained during a consensual search of a vehicle?

¶16 The Fourth Amendment of the United States Constitution and Article II, section 11 of the Montana Constitution protect individuals from unreasonable searches and seizures by requiring law enforcement to obtain a warrant. Warrantless searches and seizures are considered unreasonable per se under those constitutional provisions. State v. Graham (1995), 271 Mont. 510, 512, 898 P.2d 1206, 1208. However, Montana’s statutory law and common law recognize certain exceptions to the constitutional warrant requirement. See § 46-5-101, MCA; State v. Rushton (1994), 264 Mont. 248, 870 P.2d 1355 (discussing the consent exception to the warrant requirement). The remedy for illegally obtained evidence is suppression. Section 46-13-302, MCA. Parker asserts that the evidence seized by Officer Campbell when he searched the Audi and the fanny pack should have been suppressed because the evidence was obtained without a warrant and does not fall within a valid exception to the warrant requirement.

¶17 The standard of review of a district court’s denial of a motion to suppress is whether the court’s findings of fact are clearly erroneous, and whether those findings were correctly applied as a matter of law. State v. Roberts (1997), [284 Mont. 54], 943 P.2d 1249, 1250. The District Court found that Officer Campbell had a particularized suspicion warranting an investigative stop of the Audi. In addition, the court found that after stopping the vehicle, Officer Campbell obtained valid consent from the owner of the vehicle to conduct a search. The court concluded that the valid consent obtained from Suzanne did not limit the scope of the search, and since Parker was neither the driver nor the owner of the vehicle, he lacked standing to challenge the search.

¶18 As a preliminary matter, we address the District Court’s finding that Officer Campbell had a particularized suspicion warranting an investigative stop of the Audi. The District Court concluded that: “The Officer had a particularized suspicion to stop the vehicle because the license plates were not registered to the vehicle, the occupants were making furtive gestures, and the vehicle did not stop immediately. [Section 46-5-401, MCA.] The totality of the circumstances warranted an investigative stop.” Since the fact that the license plates were registered to another vehicle was a sufficient basis upon which to stop the Audi, we need not, and do not, express any opinion as to whether the passengers’ so-called “furtive” movements formed a valid basis for an investigative stop.

¶ 19 While neither party raises the issue, we determine that the District Court erred in concluding that Parker lacked standing to challenge the search of the vehicle. In our recent decision in State v. Bullock (1995), 272 Mont. 361, 901 P.2d 61, relying on Article II, section 11 of the Montana Constitution, we held that “when the charge against the defendant includes an allegation of a possessory interest in the property which is seized, the defendant has standing to object to the prosecutorial use of that evidence based on either the unlawful search of the location where it was found, or its unlawful seizure.” Bullock, 901 P.2d at 68-69. Therefore, since Parker was charged with possession of certain items seized from the Audi, he has standing to challenge the legality of the search of the vehicle and the subsequent search of the fanny pack.

¶20 Nonetheless, we affirm a district court’s ruling if the court reaches the correct result, even if it does so for the wrong reason. Knutson v. State (1984), 211 Mont. 126, 129, 683 P.2d 488, 490. Although we reject the District Court’s conclusion that Parker lacked standing, we affirm the court’s decision to deny the motion to suppress evidence obtained during the search of the Audi; we do so on the basis of consent. Consent which is given knowingly and voluntarily by an individual with the ability to consent is a recognized exception to the warrant requirement. Rushton, 870 P.2d at 1361. Parker asserts that Suzanne could not consent to a search of the fanny pack because it did not belong to her. However, we conclude that Officer Campbell could have reasonably believed that the consent to search the vehicle extended to the items in the vehicle.

¶21 Both parties rely on Florida v. Jimeno (1991), 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297, for the proposition that “[t]he Fourth Amendment is satisfied when, under the circumstances, it is objectively reasonable for the officer to believe that the scope of the suspect’s consent permitted him to open a particular container within the automobile.” Jimeno, 500 U.S. at 249, 111 S.Ct. at 1803. In Jimeno, the issue before the United States Supreme Court was whether it is reasonable for an officer to consider a suspect’s general consent to a search of his car as including consent to examine a paper bag lying on the floor of the car. The Supreme Court found that it is not necessary for police who wish to search closed containers in a car to request permission to search each container in the car. Rather, the Supreme Court held that the basic test of objective reasonableness controls and if an individual’s consent could reasonably be understood to extend to a particular container, a more explicit authorization is not required. Jimeno, 500 U.S. at 252, 111 S.Ct. at 1804.

¶22 The facts of this case indicate that it was objectively reasonable for Officer Campbell to believe that the consent he obtained from Suzanne as the owner of the vehicle and from Charles and Parker as the passengers extended to closed items in the vehicle, including the purse and the fanny pack. In addition, the fact that all three individuals denied ownership of the fanny pack is further evidence of the legality of the search. See generally § 46-5-103(l)(a), MCA (providing that “[a] search and seizure, whether with or without a warrant, may not be held to be illegal if... the defendant has disclaimed any right to or interest in the place or object searched or the evidence, contraband, or person seized”); but see State v. Isom (1982), 196 Mont. 330, 641 P.2d 417 (holding that Miranda limitations should apply to disclaimers when the State uses them in opposition to the Fifth Amendment right against self incrimination or when used to deprive a person of Fourth Amendment standing). Finally, Parker did not object or otherwise indicate that he was revoking his consent even after Officer Campbell began his search of the fanny pack. We conclude that Officer Campbell legally searched the vehicle and the closed containers in the vehicle under the consent exception to the warrant requirement and hold that the District Court did not err in denying Parker’s motion to suppress evidence resulting from the search.

II

¶23 2) Did the District Court err in denying Parker’s motion for directed verdict based on a variance between the State’s affidavit and the evidence it produced at trial?

¶24 The decision of whether to direct a verdict is soundly within the discretion of the district court. This Court will not disturb a district court’s decision absent an abuse of discretion. State v. Steffes (1994), 269 Mont. 214, 229, 887 P.2d 1196, 1205.

¶25 The purpose of the variance rule is to protect a defendant from being misled at trial and prosecuted twice for the same crime. See Steffes, 887 P.2d at 1205; State v. Holmes (1984), 212 Mont. 526, 533, 687 P.2d 662, 666. Therefore, to be fatal, a variance must be both material to an essential element of the offense and prejudicial to a substantial right of the accused. Steffes, 887 P.2d at 1205. Parker claims that he was denied his right to fair notice and that the variance may leave him open to the risk of double jeopardy if the State refiles its affidavit and information correcting the mistakes. Parker makes his variance claim based on facts contained in the State’s affidavit submitted in support of its motion for leave to file the information.

¶26 The State argues that Parker’s variance claim must fail because the affidavit is not a charging document. The affidavit serves as part of the process when applying for leave to file an information and is simply proof of probable cause for the court to consider in determining whether a defendant has committed an offense warranting the filing of an information. The State contends that, even if there was a variance between the affidavit and the proof at trial, it would not be considered fatal because the affidavit is not the charging document. In other words, the only variance that would matter, so contends the State, is a variance between the information itself and the proof at trial. We disagree. A criminal defendant may, in conjunction with the contents of the information, rely on facts contained in the affidavit when determining how to structure a defense to charges. The affidavit, as part of the process of filing the information, serves an important function. Therefore, the fact that the affidavit is not the charging document is not determinative as to whether the variance is considered fatal. If the contents of the affidavit, when read together with the charging document, were to mislead the defendant as to an essential element of the offense and prejudice a substantial right of the defendant, a variance between the affidavit and the proof at trial could be considered fatal. As the State points out, however, that is not the situation in this appeal.

¶27 The State contends that Parker’s claim of variance must fail because he was not denied fair notice and is not at risk for double jeopardy. The State asserts that it offered the same evidence at the suppression hearing as it offered at trial; therefore, Parker had notice of the evidence that the State intended to offer at trial. In addition, the record reveals that the variance in the affidavit was a clerical error in that the affidavit stated that the evidence found in the purse was found in the fanny pack, and vice-versa. The actual evidence presented at trial was listed in the affidavit, it simply was listed incorrectly. Moreover, the information itself charged Parker with possessing the items in the fanny pack, “a small pipe of a type commonly used to smoke marijuana, syringes, razor blades, ziplock bags, folded paper bindles, a small teaspoon and a small glass bottle.” Under a similar set of facts, we determined that a variance in the affidavit was not fatal because the charging documents (the information and the affidavit) gave the defendant adequate notice of the crimes he must defend against. Holmes, 687 P.2d at 666-67 (concluding that the variance in the State’s affidavit that VIP owned the fuel, and evidence presented at trial of ownership by possession was not fatal because “[a]ny change made by the State here did not prejudice appellant’s defense or mislead him”); see also Steffes, 887 P.2d at 1205.

¶28 We determine that the facts stated in the affidavit and the information gave Parker reasonable notice so as to prevent any chance of his being misled as to the charges or any possibility of being prosecuted twice for the same offense. Therefore, we hold that the District Court did not abuse its discretion in finding that Parker’s variance claim was without merit and in denying his motion for directed verdict. Affirmed.

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


author: CHIEF JUSTICE TURNAGE

text:
    JOE GLICKMAN, Plaintiff and Appellant, v. WHITEFISH CREDIT UNION ASSOCIATION, MOUNTAIN BANK and DAWN REISCH, Defendants and Respondents.
    No. 97-456.
    Submitted on Briefs November 20, 1997.
    Decided January 22, 1998.
    1998 MT 8.
    55 St.Rep. 27.
    287 Mont. 161.
    951 P.2d 1388.

      For Appellant: Richard Jackson, Richard Jackson & Associates, Whitefish.
    For Respondents: George D. Goodrich, Garlington, Lohn and Robinson, Missoula, William E. Hileman, Jr., Hedman, Hileman and Lacosta, Whitefish.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

¶1 Appellant Joe Glickman appeals from the order of the Eleventh Judicial District Court, Flathead County, granting the motion of Respondents, Whitefish Credit Union Association (WCU), Mountain Bank, and Dawn Reisch, to dismiss for failure to state a claim and awarding Rule 11, M.R.Civ.P., sanctions. We affirm.

¶2 Glickman raises the following three issues on appeal:

¶3 1. Were the judgments and decrees of foreclosure in the prior lawsuits entered without or in excess of jurisdiction, thereby rendering them subject to collateral attack?

¶4 2. Did the District Court abuse its discretion when it dismissed Glickman’s complaint?

¶5 3. Did the District Court abuse its discretion when it awarded Rule 11, M.R.Civ.P., sanctions?

BACKGROUND

¶6 Joe and Mary Glickman acquired two parcels of real property located in Flathead County, Montana, from Dawn and Duane Reisch by executing promissory notes to the Reisches, Mountain Bank, and WCU. The Glickmans defaulted on their obligations and two foreclosure actions, entitled Dawn H. Reisch v. Joe Glickman, Jr. et al, Flathead County Cause No. DV-95-113(B) and Whitefish Credit Union Assoc. v. Joe Glickman, Jr., et al, Flathead County Cause No. DV-95-238(A), were commenced.

¶7 In February 1996, judgments and decrees of foreclosure, subject to the right of redemption, were entered in favor of Dawn Reisch, Mountain Bank, and WCU. Glickman did not appeal either judgment. He occupied the properties when the judgments and decrees were entered and during the one-year statutory period of redemption. On March 18, 1996, and April 4, 1996, sheriff’s sales were held on the properties. Sheriff’s deeds were issued to Mountain Bank and WCU on March 18, 1997, and April 4,1997.

¶8 On March 17, 1997, Glickman filed an “original petition” seeking to quiet title to the property, damages, and a declaratory judgment regarding the validity of the judgments, decrees of foreclosure, and the sheriff’s sales. Respondents moved to dismiss for failure to state a claim upon which relief could be granted and for sanctions under Rule 11, M.R.Civ.R

¶9 The District Court granted Respondents’ motion to dismiss and awarded sanctions in the form of attorney fees and costs totaling $2,025 for WCU and $1,989 for Mountain Bank and Dawn Reisch. From this order, Glickman appeals.

DISCUSSION

¶10 1. Were the judgments and decrees of foreclosure in the prior lawsuits entered without or in excess of jurisdiction, thereby rendering them subject to collateral attack?

¶11 Glickman argues the district courts acted outside or in excess of their jurisdiction by decreeing that the purchaser at the sheriff’s sale “be let into possession.” Respondents maintain that Glickman’s present action alleges issues raised in previous proceedings and is therefore barred. Respondents also argue that this action is not appropriate to set aside a judgment under Rule 60(b), M.R.Civ.R

¶12 A judgment entered by a court lacking subject matter jurisdiction is subject to attack at any time. Big Spring v. Blackfeet Tribe of Blackfeet, Etc. (1978), 175 Mont. 258, 264-65, 573 P.2d 655, 659. Therefore, we consider whether the District Court acted outside or in excess of its jurisdiction when it decreed that Respondents, as purchasers at the sheriff’s sales, “be let into possession.”

¶13 A collateral attack on a judgment is possible only if the judgment is void on its face and it appears affirmatively from the judgment roll that the court did not have jurisdiction or committed an act in excess of jurisdiction. Higgins v. Montana Hotel Corp. (1979), 181 Mont. 149, 154, 592 P.2d 930, 934.

¶14 Glickman does not provide any authority that a court of general jurisdiction may not enter a judgment in a foreclosure action. The cases he cites deal with dissimilar factual situations, such as lack of personal jurisdiction in Joseph Russell Rlty. Co. v. Kenneally (1980), 185 Mont. 496, 605 P.2d 1107, erroneous determination of heirship in Moxley v. Vaughn (1966), 148 Mont. 30, 416 P.2d 536, or determination and absence of determination of heirship, a jurisdictional prerequisite to a valid decree in In re Bell’s Estate (1958), 134 Mont. 345, 331 P.2d 517. We conclude the District Court did not act outside or in excess of its jurisdiction when it decreed that the purchasers at the sheriff’s sales “be let into possession.”

¶15 Glickman also contends that Rule 60(b), M.R.Civ.P., is not applicable to his case because the rule is grounded upon a valid final order or judgment. The residual clause of Rule 60(b), M.R.Civ.P, allows a party to file an independent action for relief from a final judgment or order under very limited circumstances: lack of personal notification, fraud upon the court, or an independent action for extrinsic fraud. Loney v. Milodragovich, Dale & Dye, P.C. (1995), 273 Mont. 506, 511-12, 905 P.2d 158, 162.

¶16 Glickman did not allege any of these causes of action in his “original petition.” We conclude there is no basis for an independent action under the residual clause of Rule 60(b), M.R.Civ.P., for Glickman to set aside the previous judgments and decrees of foreclosure.

¶17 2. Did the District Court abuse its discretion when it dismissed Glickman’s complaint? .

¶ 18 The court’s determination that Glickman’s complaint failed to state a claim upon which relief could be granted is a conclusion of law. Loney, 273 Mont. at 509, 905 P.2d at 161. We review a district court’s conclusions of law to determine whether its interpretation of the law is correct. Loney, 273 Mont. at 510, 905 P.2d at 161.

¶19 In evaluating a Rule 12(b)(6), M.R.Civ.R, motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff. A complaint should not be dismissed unless it appears that the plaintiff is not entitled to relief under any set of facts which could be proved in support of the claim. Boreen v. Christensen (1994), 267 Mont. 405, 408, 884 P.2d 761, 762.

¶20 The doctrine of res judicata prevents a party from re-litigating a matter that the party has already had an opportunity to litigate. It is based on the public policy that there must be some end to litigation. A claim is res judicata when four criteria are met: the parties or their privies are the same; the subject matter of the claim is the same; the issues are the same and relate to the same subject matter; and the capacities of the persons are the same in reference to the subject matter and the issues. Loney, 273 Mont. at 510, 905 P.2d at 161 (citations omitted).

¶21 We conclude that all four elements were satisfied as between this action and the two underlying district court actions entitled Flathead County Cause No. DV-95-113(B) and Cause No. DV-95-238(A). Therefore, the doctrine of res judicata bars Glickman from litigating his present claim. We hold that the District Court did not abuse its discretion when it dismissed Glickman’s complaint.

¶22 3. Did the District Court abuse its discretion when it awarded Rule 11, M.R.Civ.R, sanctions?

¶23 We review a district court’s legal conclusion that the facts constitute a violation of Rule 11, M.R.Civ.R, to determine whether the court abused its discretion. D’Agostino v. Swanson (1990), 240 Mont. 435, 446, 784 P.2d 919, 926.

¶24 The District Court concluded that given the timing of the filing of this cause and the lack of any allegations that would subject the prior judgments to collateral attack, Rule 11, M.R.Civ.R, sanctions in the form of attorney fees and costs were appropriate. We agree.

¶25 Glickman did not appeal either foreclosure judgment. In Cause No. DV-95-113(B) and Cause No. DV-95-238(A), Glickman stipulated that he was entitled to possession during the statutory period of redemption. He remained in possession during the redemption period, and no one tried to remove him until that period expired. Any reasonable inquiry prior to the filing of the “original petition” would have shown Glickman and his attorney that their claims were not grounded in fact, not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that unnecessary delay and needlessincreaseinlitigationandthecostthereofwouldresultfrom theclaim.

¶26 We conclude the District Court did not abuse its discretion when it awarded Rule 11, M.R.Civ.R, sanctions.

¶27 Affirmed.

JUSTICES NELSON, LEAPHART, HUNT and REGNIER concur.