author: JUSTICE SHEEHY

text:
    BURLINGTON NORTHERN, INC. and Burlington Northern Railroad Company, Plaintiffs, v. MONTANA DEPARTMENT OF REVENUE, Defendant and Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY EMPLOYEES, Intervenor Plaintiffs and Appellants.
    No. 89-170.
    Submitted on Briefs Aug. 3, 1989.
    Decided Oct. 24, 1989.
    781 P.2d 1121.

      Martin John Elison, Hardin, William J. Powell; Powell & Morris, Spokane, Wash., for intervenor plaintiffs and appellants.
    R. Bruce McGinnis, Dept, of Revenue, Stanley T. Kaleczyc, Browning, Kaleczyc, Berry and Hoven, Helena, for defendant and respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Under 49 U.S.C. § 11504(a)(2), an interstate rail carrier is required to withhold state income tax from thé pay of its employees only (1) if the employee earns from the employer more than 50 percent of his pay in the particular state or (2) if the employee is a resident of the particular state, but does not earn more than 50 percent of his pay in any one state.

Under 49 U.S.C. § 11504(d), an interstate rail carrier “shall file income tax information returns and other reports only with” (1) the state of residence of the employee and (2) the state in which the withholding of income tax is required under § 11504(a)(2).

We hold in this case that the Montana Department of Revenue may obtain by administrative subpoena information relating to Montana earnings from an interstate rail carrier respecting its employees although the carrier is not obliged to withhold Montana state income tax, and is not required to file Montana state income tax information returns or other reports under 49 U.S.C. § 11504.

On August 25, 1988, the Department of Revenue issued an administrative subpoena to the tax manager of Burlington Northern Railroad Company, requesting Pay Report 830A for all its employees who worked in Montana for the years 1986 and 1987.

Burlington Northern refused to supply informational pay reports for all such employees claiming exemption from providing tax information under 49 U.S.C. § 11504. On September 29, 1988, Burlington Northern filed an action for declaratory and injunctive relief in the District Court, First Judicial District, Lewis and Clark County. The Department of Revenue filed an answer to the complaint and counterclaimed for an order from the District Court directing Burlington Northern Railroad to comply with the administrative subpoena issued by the Department.

On October 24, 1988, 62 Burlington Northern employees moved to intervene. The District Court allowed intervention but limited the scope of the iritervenor plaintiffs’ action to the issue of whether the administrative subpoena should be quashed pursuant to 49 U.S.C. § 11504. On December 8, 1988, the District Court granted a motion for joinder of 65 additional Burlington Northern employees as intervenors.

On February 22, 1989, the District Court rendered judgment, denying Burlington Northern’s and the intervenors’ motion to quash the administrative subpoena duces tecum, granting Department’s motion for judicial enforcement of the administrative subpoena, and dismissing the complaint for declaratory and injunctive relief. From this judgment, the intervenor plaintiffs only have appealed.

From the agreed facts in the pleadings, it is shown that Burlington Northern, Inc. is a corporation doing business in Montana through one or more of its wholly owned subsidiaries. Burlington Northern Railroad Company is a corporation doing a rail carrier business in interstate commerce. Burlington Northern employees, both trainmen and maintenance persons, work both within and outside Montana. These employees are residents of various states.

On August 25, 1988, the Department of Revenue issued an administrative subpoena duces tecum to Burlington Northern, directing it to produce “Pay Report 830A for 1986-1987.” The subpoena was returnable on September 30, 1988. In response, Burlington Northern filed its complaint as above stated.

The single issue presented for review is whether 49 U.S.C. § 11504 prohibits the state of Montana from requiring Burlington Northern under an administrative subpoena duces tecum to provide Pay Report 830A concerning the intervenor plaintiffs, who are residents of Washington, and who do not work more than 50 percent of time or track miles in Montana. Burlington Northern employees base their argument on the Supremacy Clause, and the Commerce Clause of the United States Constitution.

The state of Montana levies a state income tax upon the taxable income of its residents. Section 15-30-103, MCA. A like tax is imposed upon every person not a resident of the state on his or her net income from every business, trade, profession or occupation carried on in the state. Section 15-30-105, MCA. The Montana Department of Revenue is authorized to make such rules and to require such facts and information to be reported as it may deem necessary to enforce the provisions of the state income tax laws. Section 15-30-305, MCA.

On the other hand, 49 U.S.C. § 11504(a)(2), provides:

“A rail. . . carrier providing transportation subject to the jurisdiction of the Interstate. Commerce Commission . . . shall withhold from the pay of an employee . . . only income tax required to be held by the laws of a state . . .
“(A) in which the employee earns more than 50 percent of the pay received by the employee from the carrier; or
“(B) that is the residence of the employee (as shown on the employment records of the carrier), if the employee did not earn in one state or subdivision more than 50 percent of the pay received by the employee from the carrier during the preceding calendar year.”

With respect to filing reports, 49 U.S.C. § 11504(d), provides:

“A rail . . . carrier withholding pay from an employee under [§ 11504(a)(2)] shall file income tax information returns and other reports only with —
“(1) the state ... of residence of the employee; and
“(2) the state ... in which withholding of pay is required under [§ 11504(a)(2)].”

Burlington Northern employees contend that state laws or regulations permitting the issuance of an administrative subpoena to obtain state earnings information for nonresident employees are in direct conflict with the provisions of § 11504 and therefore under the Supremacy Clause of the United States Constitution, the administrative subpoena has no validity.

The Supremacy Clause of the United States Constitution, Art. VI, Clause 2, reads:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges of every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

When there is a conflict between federal law and the application of an otherwise valid state enactment, the Supremacy Clause requires that the federal law prevail. Hamm v. City of Rock Hill (1964), 379 U.S. 306, 311-312, 85 S.Ct. 384, 389, 13 L.Ed.2d 300, 305.

Burlington Northern relies on the holding in Hamm and also the statement in Aloha Airlines v. Director of Taxation of Hawaii (1983), 464 U.S. 7, 12, 104 S.Ct. 291, 294, 78 L.Ed.2d 10, 15, where the United States Supreme Court said:

“[w]hen a federal statute unambiguously forbids the States to impose a particular kind of tax on an industry affecting interstate commerce, courts need not look beyond the plain language of the federal statute to determine whether a state statute which imposes such a tax is pre-empted.”

Burlington Northern employees also rely on the legislative history of § 11504 when it was before Congress, contending that the legislative history indicates a clear intent on the part of Congress to preclude states from obtaining such tax information.

There is a basic flaw in the Supremacy Clause argument posed by Burlington Northern employees in this case. It presupposes that the provisions of § 11504 and the state income tax laws, rules and regulations are in direct conflict. That is not the case. Section 11504 directs itself to two subjects of state income taxation: when states can require interstate rail carriers to withhold taxes from their employees for application of the particular state’s income tax laws; and, when the rail carrier can be required by state law to file with the state income tax information returns respecting its employees.

The language of § 11504 and its legislative history clearly indicate the purpose of Congress to relieve carriers engaged in interstate commerce from the burden of withholding income taxes and providing income tax information returns to every jurisdiction over which the carrier operated regardless of the size of those earnings. Congress set out to provide, and did provide, certain minimums under which the rail carriers were not obliged to withhold income taxes for states or other governmental entities, or obliged to file income tax information returns.

In setting those minimums, Congress did not intend to, and the language of the statute of § 11504 shows that it did not prohibit the states or other governmental entities from levying income taxes on earnings by employees of interstate carriers within the jurisdiction of the various governmental entities. Section 11504 directs itself only to the problem of withholding state income taxes and of filing mandatory reports by the carrier. Neither of these have a direct bearing on the power of a state or other governmental entity to levy income taxes. We hold, as did the District Court, that § 11504 does not preclude a state from obtaining payroll information through the use of a properly issued administrative subpoena. There is, therefore, no conflict to which the Supremacy Clause of the United States Constitution would apply.

The intervenors also argue that enforcement of the administrative subpoena duces tecum issued by the Department of Revenue is an unreasonable burden on interstate commerce.

The Commerce Clause of the United States Constitution (Art. 1, Section 8, Clause 3) provides:

“That Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes; . . .”

Again, the intervenors rely on the legislative history of 49 U.S.C. § 11504, wherein the Senate report stated that the legislation was addressed to the problem of those employees who were required by the nature of their employment to work in more than one state on a regular basis. S.Rep. No. 91-1261, 91st Cong. 2d Sess. (1970).

We agree that under the Commerce Clause of the United States Constitution, a state may not enact a law or adopt procedures which unreasonably imposes a direct burden on interstate commerce or discriminates against it. Union Pacific Railroad Company v. Woodahl (D. Mont. 1970), 308 F.Supp. 1002, 1009. Senator Prouty, speaking in favor of the adoption of § 11504 stated on the floor of the Senate on December 3, 1970 :

“Nonetheless, Mr. President, the bill which you have before you, and which was agreed to in conference, is a very great step toward solving the unique tax problems of the employees of interstate common carriers and, I might add, of the carriers themselves. While it does not limit the liability of such employees, it does limit the number of states which may require withholding from the compensation paid to an interstate carrier employee to not more than one, and the number of states which may require the filing of information returns with respect to the compensation of such employees to not more than two.”

Cong. Record, December 3, 1970, at 40313.

While § 11504 fixes the mandatory duties of employers engaged in interstate commerce to withhold taxes and to file reports respecting earnings in any particular state, the statute does not prohibit the furnishing of earnings information at the request of the state, or under a properly issued administrative subpoena. Since the furnishing of such information is necessary for the Department of Revenue properly to administer and apply the Montana state income tax on nonresident employees, the requirement that Burlington Northern furnish such information pursuant to the administrative subpoena cannot be an unreasonable burden on interstate commerce. We so hold, because for one reason, such employees, while in Montana, enjoy the comfort and protection of Montana’s civil and criminal laws, and so must share a proportionate burden of the cost of such protections. Washington Rev. Dept. v. Stevedoring Ass’n. (1978), 435 U.S. 734, 748, 98 S.Ct. 1388, 1398, 55 L.Ed.2d 682, 695.

This Court said:

“The taxing power of a state is an essential power of its sovereignty (Citing a case.) This power cannot be set aside or limited on weightless statements that a federal policy is being substantially frustrated.”

Commonwealth Edison Co., et al v. State of Montana (1980), 189 Mont. 191. 217. 615 P.2d 847, 861.

We affirm the judgment of the District Court.

CHIEF JUSTICE TURNAGE and JUSTICES BARZ, McDON-OUGH and WEBER concur.


source: Caselaw Access Project

author: JUSTICE WEBER

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. KURT McCOLLEY, Defendant and Appellant.
    No. 89-181.
    Submitted on Briefs Sept. 7, 1989.
    Decided Oct. 24, 1989.
    781 P.2d 280.
    Arthur J. Thompson, Billings, for defendant and appellant.
    Marc Racicot, Atty. Gen., Elizabeth S. Baker, Asst. Atty. Gen., Helena, Harold Hanser, County Atty., Teresa M. O’Connor, Deputy County Atty., Billings, for plaintiff and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

Defendant, Kurt McColley, was charged with one count of felony criminal sale of dangerous drugs in the District Court for the Thirteenth Judicial District, Yellowstone County. The jury found defendant guilty as charged. He was sentenced to 20 years in the Montana State Prison, with 10 years suspended. Defendant appeals. We affirm.

The sole issue on appeal is whether the conviction may stand when only one of the two sales charged as one offense has been proved by sufficient evidence?

Tim Martin, an undercover detective of the Yellowstone County Sheriff’s Office, made arrangements with Matt Andre to purchase one-half gram of cocaine on April 1,1988. Andre and Martin went to the residence of defendant in Billings, Montana. Andre entered the house alone, came out, and informed Martin that he had spoken with “Kurt,” who said he would supply the cocaine. Martin and Andre then left defendant’s home. Later that same day, Martin returned to Andre’s house and picked up a bindle containing one-half gram of cocaine.

Several weeks later, Martin arranged with Andre to purchase more cocaine. On April 28, the two men again went to the home of defendant. Surveillance of defendant’s residence was conducted by other officers. Martin himself never entered defendant’s residence, but during the course of the day Andre was observed entering defendant’s house several times. Finally, later that afternoon, Andre returned to his own residence and gave Martin a bindle of cocaine. The bindle was examined for fingerprints. Five fingerprints belonging to defendant were identified. Martin testified, that upon his arrest, Andre said that he obtained the cocaine from defendant.

At trial, Andre denied that the cocaine from either purchase came from defendant. At the close of the State’s case, defendant moved for directed verdict on the ground that there was insufficient evidence connecting the defendant to the April 1st sale. Defendant argued that since Andre was an accomplice in the drug transaction, as a matter of law, defendant could not be convicted solely upon the evidence gained from the police. The motion was denied.

Defendant testified that although Andre did visit him at his home on April 28, he did not sell any cocaine to Andre on that date or at any other time. The State called no other witnesses, and defendant was found guilty of the charged offense. He subsequently filed a Motion for Judgment Notwithstanding the Verdict (Judgment N.O.V.) or for New Trial pursuant to § 46-16-702, MCA, based on the same grounds as the Motion for Directed Verdict. The motion was denied.

Defendant maintains that since he was charged with one offense of criminal sale of dangerous drugs, committed on two separate occasions, the State must prove his connection with both sales. He contends that there is not sufficient evidence to support his conviction due to the State’s failure to prove his connection with the cocaine sale of April 1, 1988. Defendant argues that because Andre only named him on arrest but denied his involvement at trial, the evidence is insufficient. He claims that there is no evidence to corroborate Andre’s statements upon arrest that he received the cocaine from defendant. Furthermore, he contends that Andre was an accomplice to the transaction, and under § 46-16-213, MCA, a conviction based on the testimony of an accomplice cannot stand unless corroborated. Defendant relies on the case of State v. Warren (Mont. 1981), [_Mont__,] 628 P.2d 292, 38 St.Rep. 773, in which this Court concluded that testimony of an accomplice must be supported by corroborating evidence or acquittal is the only remedy. The State contends it is immaterial to defendant’s conviction whether or not there was sufficient evidence to prove defendant was involved in both sales, citing the steadfast rule that “superfluity in an Information does not vitiate.” State v. Board (1959), 135 Mont. 139, 143, 337 P.2d 924, 927. They argue that the conviction must stand because the April 28th sale is supported by substantial evidence. The State relies on United States v. Bruno (5th Cir. 1987), 809 F.2d 1097, in which the Court held that “the government need not prove all the charges contained in the indictment, but only a sufficient number of charges in each count so as to make out a violation of the statute relied upon.” We agree and expressly adopt this holding.

We hold it is unnecessary to prove independently defendant’s involvement in both sales when proof of either sale is sufficient to satisfy a prima facie case. Every charge in the information need not be proved to convict defendant of the offense for which he is charged. Corroboration of the April 1st sale is unnecessary when the April 28th sale was proven by sufficient independent evidence. We conclude the District Court was correct in denying defendant’s Motions for Directed Verdict and his Motion for Judgment N.O.V. or a New Trial.

Affirmed.

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


text:
    LESLIE D. KRIEG, Plaintiff and Appellant, v. DEWEY E. MASSEY, and Florence E. Massey, individually and d/b/a Massey Apartments; and Betty J. Young, a/k/a B.J. Young, Defendants and Respondents.
    No. 89-266.
    Submitted on Briefs Aug. 17, 1989.
    Decided Oct. 24, 1989.
    781 P.2d 277.

      K.D. Peterson, Peterson, Schofield & Leckie, Billings, for plaintiff and appellant.
    James R. Halverson, J. Dwaine Roybal, Herndon, Hartman, Sweeney and Halverson, Billings, for defendants and respondents.
   JUSTICE WEBER

delivered the Opinion of the Court.

The plaintiff, Leslie D. Krieg, brought this wrongful death action founded on negligence for failure of defendants to prevent the suicide of his 77 year-old uncle, Arthur Leslie Van Hoose. The District Court for the Thirteenth Judicial District, Yellowstone County granted defendants’ motion for summary judgment and dismissed the case with prejudice. From this judgment, Mr. Krieg appeals. We affirm.

The sole issue is: Did the District Court err in granting summary judgment in favor of defendants?

Masseys are the owners and operators of the Massey Apartments in Billings, Montana. When Mr. Van Hoose moved into the Massey Apartments, Mr. Massey introduced Mr. Van Hoose to the apartment manager, Mrs. Young, an elderly lady in her seventies.

The next day, Mr, Van Hoose told Mrs. Young he was having leg and stomach pain. Mrs. Young offered the use of her phone to Mr. Van Hoose so that he could call a doctor. He declined. She then offered to take him to the hospital to see a doctor. He accepted this offer, however, Mrs. Young told him she was expecting her daughter and would have to wait until her daughter arrived.

Later, when Mrs. Young was walking past Mr. Van Hoose’s room, his door was open and she noticed he was walking around the room holding a pistol. Mrs. Young told him not to point the gun at her. He responded with, “Guns take care of all problems ” Mrs. Young stated, “It doesn’t take care of problems, it causes problems.” She then took the pistol from Mr. Van Hoose with the intention of taking it to her apartment. When Mr. Van Hoose protested, she obtained a chair from the kitchen, climbed up on the chair and put the pistol on the top of a closet, thinking he would leave it alone. Mr. Van Hoose appeared calmer and Mrs. Young repeated that she would take him to the doctor, then left. She did nothing else about the gun incident.

Approximately an hour later, Mrs. Young heard a loud “thud.” She was not concerned about the noise until the thought occurred to her that Mr. Van Hoose may have climbed up on the chair to get the pistol, and fallen off. She then went back to his apartment and discovered he had killed himself with the pistol.

Did the District Court err in granting summary judgment in favor of defendants?

We begin by emphasizing that summary judgment is never a substitute for a trial on the merits. Kronen v. Richter (1984), 211 Mont. 208, 211, 683 P.2d 1315, 1317. It is only appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. Any inferences to be drawn from the factual record must be resolved in favor of the party opposing summary judgment. Simmons v. Jenkins (1988), [230 Mont. 429,] 750 P.2d 1067, 45 St.Rep. 328.

In its summary judgment the District Court relied on the general rule that:

“Negligence actions for the suicide of another will generally not lie since the act or suicide is considered a deliberate intervening act exonerating the defendant from legal responsibility, noted the court, but two exceptions to this general rule exist:
“a. [W]here the defendant’s tortious act causes a mental condition in the decedent that proximately results in an uncontrollable impulse to commit suicide or that prevents the decedent from realizing the nature of his act;
“b. [W]here there is a duty to prevent the suicide, the situation typically arising when someone is obligated to exercise custodial care over the eventual decedent, is in a position to know about the latter suicidal potential, and is lax with respect to taking preventive measures.”

41 ALR 4th, 353.

The District Court then found that the relationship between Mr. Van Hoose and Mrs. Young was non-custodial and that there was no evidence that Mr. Van Hoose’s suicide was a foreseeable event. The court therefore concluded that Mrs. Young owed no duty to prevent Mr. Van Hoose’s suicide.

Plaintiff contends that when Mrs. Young entered Mr. Van Hoose’s room and attempted to take the pistol away, she imposed upon herself a duty to prevent the suicide. Plaintiff urges that Mrs. Young breached this duty because she was negligent in her intervention. He claims she could have prevented the suicide of Mr. Van Hoose by removing the pistol.

It is fundamental that an action for negligence requires 1) a legal duty, 2) a breach of the duty, 3) causation, and 4) damages. Prosser and Keeton on Torts, § 30, at 164-165 (5th ed. 1984); R.H. Schwartz Const. Specialties v. Hanrahan (1983), 207 Mont. 105, 672 P.2d 1116. Traditionally, a person is not liable for the actions of another and is under no duty to protect another from harm in the absence of a special relationship of custody or control. If originally, no special relationship existed, but the defendant interjects himself into the situation so as to create a special relationship of control, a duty may be imposed. Prosser and Keeton on Torts, § 56 at 375-377, (5th ed. 1984).

Defendant relies on Pretty on Top v. Hardin (1979), 182 Mont. 311, 597 P.2d 58, as authority that no duty arose. That case involved a custodial situation of a jailer and a prisoner. When the prisoner committed suicide the wife claimed the prison had a duty to prevent the suicide. However, in Pretty on Top this Court affirmed the district court’s grant of summary judgment in favor of defendant since the suicide of the prisoner was not foreseeable. Since foreseeability was lacking we stated that the district court was required to follow the general rule that suicide is an intentional act and grant defendant’s motion for summary judgment. Pretty on Top, 597 P.2d at 60.

The same rule applies even more forcefully in the present case. The general rule, as relied upon by the District Court, in the area of civil liability for suicide is that “[n]egligence actions for the suicide of another will generally not lie since the act or suicide is considered a deliberate intervening act exonerating the defendant from legal responsibility . . .” 41 ALR 4th, 353. Prosser and Keeton on Torts § 44 at 280-81 (4th ed. 1971); McPeake v. Cannon Esquire, P.C. (1989), 381 Pa.Super. 227, 553 A.2d 439; McLaughlin v. Sullivan (1983), 123 N.H. 335, 461 A.2d 123. We expressly adopt this rule.

There are two narrow exceptions to this rule. The first exception deals with causing another to commit suicide and is not applicable to the present case. The second exception allows the imposition of a duty to prevent suicide but only in a custodial situation where suicide is foreseeable. These situations typically involve hospitals or prisons. 41 ALR 4th at 353.

The facts of the present case clearly do not fit within this exception to the general rule. As the District Court found, Mrs. Young was not in a custodial relationship with Mr. Van Hoose. He had lived in her apartment less than two days and she had no control over him. Our research has disclosed no cases holding that a landlord tenant relationship is a custodial relationship which would impose a duty to prevent suicide. We agree with the District Court that there are no genuine issues of material fact on the existence of a custodial relationship. The fact that there was no custodial relationship or special circumstances, actually ends our inquiry because no duty can be established.

The District Court, however, went on to determine that the suicide in this case was not foreseeable. Mrs. Young testified that she did not think Mr. Van Hoose should have the gun, but that she did not think he was planning on killing himself. When asked why she put the gun on top of the closet, she said, “I figured he’d leave it alone.” She then returned to her own apartment. Plaintiff failed to present any evidence to show that Mr. Van Hoose’s suicidal tendencies had been communicated to Mrs. Young. Further, nothing indicates that she had any special training to foresee that Mr. Van Hoose intended suicide. We conclude that no genuine issue of material fact existed regarding foreseeability.

Plaintiff, however, urges that because Mrs. Young “interjected herself into the situation” by taking the gun from Mr. Van Hoose, she imposed a duty upon herself. He contends that she then breached this duty by negligently placing the gun on top of the cabinet rather than removing it. We decline to affirm plaintiff’s contention that Mrs. Young’s actions created a duty to prevent suicide since, as previously stated, the general rule is that no duty exists in this area absent a custodial relationship or special circumstances. However, even if a duty had arisen, the acts of Mrs. Young placed Mr. Van Hoose in no worse position than before she took the gun from him. We conclude that there are no genuine issues of material fact on the issue of negligence. Plaintiff failed to present the District Court with any facts which would establish either a duty or a breach. The general rule that suicide is an intentional act which forecloses civil liability is applicable, and the District Court was correct granting summary judgment in favor of defendants. We affirm the District Court’s grant of summary judgment.

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


text:
    RAYMOND R. GARCIA and Gail Garcia, husband and wife, Plaintiffs and Appellants, v. PAUL SCHELL and Caroline Schell, husband and wife, Defendants and Respondents.
    No. 89-270.
    Submitted on Briefs Aug. 17, 1989.
    Decided Oct. 24, 1989.
    781 P.2d 274.

      Bruce McEvoy, Warden, Christiansen, Johnson & Berg, Kalispell, for plaintiffs and appellants.
    Lawrence H. Sverdrup, Sverdrup & Barnes, Libby, for defendants and respondents.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Plaintiffs, Raymond and Gail Garcia, filed suit in the District Court for the Nineteenth Judicial District, Lincoln County, to rescind their contract for deed with the defendants, Paul and Caroline Schell. The court entered judgment for the defendants awarding them possession of the real and personal property, or in the alternative, allowing plaintiffs to retain the property by updating and continuing payments.

Defendants were also awarded $2,500 in attorney fees plus costs. From this judgment, plaintiffs appeal. We affirm.

The issues are:

1. May a contract for the sale of a gas station operated in violation of state law at the time of contract, and subsequently, be rescinded for either lack of consideration or mutual mistake?

2. Did plaintiffs waive any right to rescission by their conduct?

Appellants, Raymond and Gail Garcia, entered into a contract for deed with respondents, Paul and Caroline Schell, on October 16, 1985. Garcias agreed to purchase Schells’ self-service gas station, propane plant and 20-hookup RV park for $95,000.00. Garcias paid $30,000.00 down, and made 29 monthly payments of $698.49, the last payment being made on March 24, 1988.

On January 12, 1988, the “Eagle Conoco” business was inspected by the Libby Fire Chief and the Deputy State Fire Marshall. The Deputy State Fire Marshall again inspected the facility in March of 1988 and determined that several violations of the Uniform Fire Code existed. Most serious was the violation of § 79-902(c), which states “. . . Class I or Class II liquids shall not be dispensed into the fuel tank of a motor vehicle from above ground tanks.” Eagle Conoco’s tanks are above ground.

The Deputy Fire Marshall listed the corrective steps necessary. Plaintiffs were given the option of installing underground tanks conforming to UFC and Environmental Protection Agency standards within three years, or to make the existing facility as safe as possible, with the understanding that any major renovation would require full conformance with the UFC and EPA standards. The first option’s cost, changing to underground leak-resistant tanks, was determined to be approximately $26,700.00. The second option’s cost was determined to be approximately $2,000.00.

Garcias failed to make their April 16, 1988 payment, or any subsequent payments. Schells notified the Garcias of their default on June 2, 1988. Garcias’ attorney sent a letter on June 21, 1988, notifying Schells of their intent to rescind the contract for deed. On that same day, Gail Garcia obtained a loan from the First National Bank in Libby, encumbering the gas station with a Deed of Trust and Assignment of Contract for Deed. Garcias continued to use and occupy the premises up to the time of judgment, and sold some items of personal property released by Schells from the security of the contract.

On August 2, 1988, under the default provisions in the Contract for Deed, Schells would be entitled to the premises.

Garcias filed their complaint on July 15, 1988, to effect a rescission of the Contract for Deed. Garcias alleged lack of consideration, mutual mistake or, alternatively, actual or constructive fraud on the part of Schells. Garcias asked for $55,132.27 in compensatory damages, in addition to $50,000.00 in punitive damages.

I .

Did the District Court err in determining that neither the illegality of the operation nor the mutual mistake of the parties justified rescission of the contract for deed?

The District Court determined that, while failure of consideration and mutual mistake existed, neither were of such seriousness as to justify rescission.

Schells contended that the violations of the Uniform Fire Code provisions were not fatal to the contract’s consideration. The facts bear this out. Garcias bargained for, amongst other things, a working, income-producing gas station. Eagle Conoco is such a station. Schells correctly point out that Garcias are not enjoined from operating the station due to the violations. Nor must they install underground tanks to continue operation. The cost of bringing the station up to the standards acceptable to the Montana Fire Marshall Bureau is approximately $2,000.00. While this expense constitutes a burden to the Garcias, it is not so great as to justify rescission of the contract for deed. This Court has stated that a breach which goes to only part of the consideration, is incidental and subordinate to the main purpose of the contract, and may be compensated in damages does not warrant a rescission of the contract. Johnson v. Meirs (1946), 118 Mont. 258, 164 P.2d 1012; Halcro v. Moon (1987), 226 Mont. 121, 733 P.2d 1305.

Garcias’ contention that they may soon be forced to install underground tanks is not borne out by the record. The State Fire Marshall, Ray Blehm, testified that the UFC granted him discretion in allowing nonconforming facilities. He stated that his position was that above-ground tanks would be allowed to remain until replacement occurred through the operator’s own volition. Nothing in the record shows that replacement may soon be required by the Environmental Protection Agency, which has instituted new, stricter standards since the contract for deed was formed.

The District Court made its decision on the weight of this evidence, and we will not set aside findings of fact unless they are clearly erroneous. Rule 52(a), M.R.Civ.P.

II

Did Garcias waive their right to rescission?

Schells argued, and the District Court concurred, that Garcias waived any right to rescission by their conduct.

Rescission of a contract may only be undertaken under certain circumstances.

“28-2-1713. How rescission accomplished. Rescission, when not effected by consent, can be accomplished only by the use on the part of the party rescinding of reasonable diligence to comply with the following rules:
“(1) He must rescind promptly upon discovering the facts which entitle him to rescind ....
“(2) He must restore to the other party everything of value which he has received from him under the contract or must offer to restore the same, upon condition that such party shall do likewise, unless the latter is unable or positively refuses to do so.”

Garcias’ conduct following their notice of rescission was inconsistent with an intent to rescind. On the very day notice of rescission was sent to the Schells, Mrs. Garcia encumbered the property by executing an Assignment of the Contract for Deed and a Trust Indenture with the First National Bank of Libby. Further, Garcias continued in their use and occupancy of the premises from June of 1988 (when notice of rescission was given) until after the rendition of judgment in January, 1989. In addition, they disposed of a Jeep and a snowplow (items of personal property transferred under the contract) after notice of rescission. None of these acts is consistent with a rescission.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, BARZ, and McDONOUGH concur.


author: JUSTICE HARRISON

text:
    PETER J. GROSS, Plaintiff and Respondent, v. RICHARD P. GROSS, Defendant and Appellant.
    No. 89-278.
    Submitted on Briefs Aug. 17, 1989.
    Decided Oct. 24, 1989.
    781 P.2d 284.

      Walter S. Murfitt, Luxan & Murfitt, Helena, for defendant and appellant.
    Gene A. Picotte, Clancy, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Peter J. Gross (the father) initiated this action to have three deeds that conveyed an interest in property to Richard P. Gross (the son) declared null and void. The District Court of the First Judicial District, Lewis and Clark County, granted summary judgment in favor of the father. The District Court held that the father presented sufficient evidence to overcome the presumption of delivery raised by the father’s recording of the deeds. We reverse and direct entry of judgment for the appellant.

Appellant raises the following issue for review:

Did the District Court err in holding that the plaintiff presented sufficient evidence to rebut the presumption of delivery arising from the recording of the deeds?

Appellant, Richard Gross, is the son of respondent, Peter Gross. Peter’s wife (Richard’s mother) died in 1980. Peter was 80 years old at the time. Sometime after her death, the father suffered a stroke which prompted a discussion between father and son concerning the father putting his affairs in order. Shortly after this discussion, the father executed and recorded three warranty deeds that transferred property from the father to the father and son as joint tenants. The father retained the deeds in his possession, continued to occupy and maintain the property and to pay all expenses associated with the property.

After the father executed and recorded the deeds, he told his son that he had put the property into a joint tenancy with him. It is undisputed that the father executed the deeds to avoid probate. Subsequently the father asked the son to reconvey the property, but the son refused. The father has since remarried.

Several conflicts between the father’s affidavit and deposition and the son’s deposition appear in the record. The father maintains that the son requested that his name be put on the deeds while the son testified that he had no knowledge of his father’s actions until after the deeds were executed. Also, the father contends that the son promised that he would not interfere with his control of the property or object to any disposition of the property he wished to make. The son denies that the subject of control ever arose and that he ever made any such assurances.

In Roth v. Palutzke (1960), 137 Mont. 77, 350 P.2d 358, this Court found that, based on what is now § 70-1-509, MCA, when a deed is executed a presumption arises that delivery occurred and that recording the deed strengthens that presumption. We conclude that this presumption can only be overcome by clear and convincing evidence. 23 Am.Jur.2d, Deeds § 172; Controlled Receivables v. Harmon (1966), 17 Utah 2d 420, 413 P.2d 807.

In assessing whether the grantor has presented clear and convincing evidence, the general rule is that the grantor’s self-serving statements are not enough to overcome the presumption of delivery. See, 23 Am.Jur.2d, Deeds § 172; Controlled Receivables, 413 P.2d at 810. Also the fact that the grantor has retained possession of the deeds and continued to occupy and control the land will not rebut the presumption when a close relationship exists between the grantor and grantee. Roth, 350 P.2d at 360.

The father testified that he did not intend to create a present interest and argued in essence that his actions subsequent to recording the deeds were inconsistent with an intention to create a present interest. The District Court held that the father had presented sufficient evidence to overcome the presumption of delivery. In reaching its conclusion, the District Court relied on the father’s dominion and control of the property along with his paying all of the expenses such as taxes and insurance.

We do not agree that the father presented the kind of clear and convincing evidence required to rebut the presumption of delivery. The District Court felt that the father’s intent was the crucial factor and stated that it found no evidence in the record that the father intended to create a present interest. However, the evidence relied on by the District Court to determine that the father did not intend to create a present interest in the son cannot be used to rebut the presumption of delivery given the close relationship between father and son.

This Court has held that subsequent acts of a grantor identical to those of the grantor in this case “do not meet the burden of going forward with the evidence imposed by virtue of the presumption of delivery.” Roth, 350 P.2d at 360. In Roth, the grantor had retained control of the deeds after recording and continued to manage and control the property. The grantee was the grantor’s wife. After the grantor’s death, the grantor’s daughter argued that such subsequent acts showed that the “deceased had not a present intention to divest himself of his property, and that therefore the presumption of delivery is overcome.” Roth, 350 P.2d at 360. Nonetheless, this Court affirmed the district court’s finding of delivery. The Roth case signifies that evidence of these particular subsequent acts is not sufficient to rebut the strong presumption of intent to create a present interest raised by recording deeds when a close relationship exists between the grantor and grantee.

The District Court’s opinion indicates that it interprets the parent-child relationship referred to in Roth as meaning parent-minor child. However, a review of the cases relied upon by the Roth Court discloses cases where subsequent acts of dominion and control by a parent granting to an adult child were held not to overcome the presumption of delivery. Roth makes no distinction between minor and adult children in defining close relationships.

Unlike Roth, the grantor in this case is alive and has testified regarding his intent. But, as noted above, a grantor’s self-serving statement will not overcome the presumption of delivery raised by recording. No independent third party testimony exists to corroborate the father’s testimony regarding his intent. See Curtis v. Ferris (1969), 168 Colo. 480, 452 P.2d 38.

The undisputed evidence in the record establishes that the father intended to avoid probate. As to his property, he chose to accomplish that purpose by executing and recording deeds that granted his son a joint tenancy in the property. This intentional act constituted unrebutted evidence of his intention to create a present interest in the son which upon the death of the father would automatically pass full title to the son. The father testified that he did not intend to pass a present interest to the son and that he retained deeds and controlled the property. But, as discussed above, the father’s self-serving statements and those particular subsequent acts, by law, cannot rebut the presumption.

The father must present clear and convincing evidence other than his own statements and other than those particular subsequent acts. He has not presented any other clear evidence. The District Court erred in concluding that the father presented clear and convincing evidence sufficient to overcome the presumption of delivery raised by his recording of the deeds.

We reverse the District Court and direct entry of judgment for the appellant.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, GULBRANDSON and WEBER concur.


author: JUSTICE McDONOUGH JUSTICE SHEEHY,

text:
    In re the MARRIAGE OF KERRIAN T. GARNER, Petitioner and Respondent, and MARGARET S. GARNER, Respondent and Appellant.
    No. 89-177.
    Submitted on Briefs Aug. 17, 1989.
    Decided Oct. 25, 1989.
    781 P.2d 1125.

      Camille T. Ventrell, Harris & Ventrell, Billings, for respondent and appellant.
    Mark Parker, Parker Law Firm, .Billings, for petitioner and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

The parties’ marriage was dissolved by decree dated February 1, 1989, in the District Court for the Thirteenth Judicial District, Yellowstone County. Wife appeals various aspects of the decree and the findings of fact and conclusions of law contained therein. We affirm.

The issues in this case are:

1. Whether the District Court abused its discretion in failing to award interest on property settlement payments?

2. Whether the District Court erred in finding that appellant was not entitled to maintenance?

3. Whether the District Court erred in failing to award attorney’s fees?

Margaret S. Garner (Margaret) and Kerrian T. Garner (Kerrian) married on March 18, 1966 in Pueblo, Colorado. Two children were born during the marriage. Both children had reached the age of majority before this action was filed.

During the course of the marriage, Kerrian was continuously employed outside the home. Margaret was a homemaker, raised the children and assisted Kerrian in his various employments. She also attended Eastern Montana College and obtained a degree in psychology.

In 1978, Kerrian and Margaret opened up a business which eventually became Kerrian’s, Inc., a retail shoe store. During the first year of operation, Kerrian and Margaret were the only employees for the business. In 1980, the family business was incorporated. Kerrian was issued 51% of the outstanding shares and Margaret was issued 49% of the outstanding shares. For seven years, until 1985, they were both active participants in the business, involving themselves in the daily managerial activities.

In 1985, Margaret moved to San Francisco, California to attend law school at Hastings School of Law. During her absence, Kerrian continued to operate the business. While at law school, she relied upon Kerrian for financial support. At the time of trial she was on academic suspension due to a low grade point average. It was her intention to return to school and complete the requirements necessary for her degree which were estimated to take approximately one year.

Kerrian filed the petition for dissolution in December of 1987. The issues at trial were distribution of the marital estate, maintenance for Margaret and attorney’s fees for Margaret.

The District Court addressed the distribution of the marital estate in two parts: first, the assets and liabilities of the parties, excluding, the family business; and second, the family business. In part one the District Court found that the net distribution to each party should be on a 50-50 basis. In part two, the District Court found that the value of Kerrian’s, Inc. should be divided on the basis of stock ownership, a 51-49 percentage basis.

Because animosity between the parties made it impossible for Kerrian and Margaret to continue in a business relationship, the court ordered Kerrian to buy Margaret’s interest in the business and to pay her a total of $97,785.00. The court valued Margaret’s share of the corporation at $85,970.50. In order to equalize the property distribution, the court further ordered Kerrian to pay $11,814.50. Thus, the total amount owed Margaret equaled $97,785.00. Kerrian was to pay her $3,000 per month until the debt was paid. This plan did not provide any provision for interest. The court also found that Margaret was not entitled to maintenance and further ordered both parties to pay their own attorney’s fees and costs in the action. This appeal followed.

I

Margaret argues that the trial court abused its discretion in the distribution of the marital estate by failing to award interest on the property settlement payments. According to the lower court’s judgment, Kerrian must make monthly payments of $3,000.00, without interest, for 32.59 months until Margaret’s cash award of $97,785.00 is fully paid. Margaret contends that this method of payment has the effect of devaluing her equity in the marital estate, and thus is an abuse of discretion on the part of the trial court. We disagree.

At the outset, we note that it is the stated objective of this Court to “pay a great amount of deference to the judgment of the District Court regarding property divisions.” In re Marriage of Burleigh (1982), 200 Mont. 1, 8, 650 P.2d 753, 756. The standard of review of a lower court’s judgment is whether the district court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. In re Marriage of Rolfe (1985), 216 Mont. 39, 45, 699 P.2d 79, 83.

The division of the marital prop.erty in a dissolution action is governed by the provisions of § 40-4-202, MCA. This statute dictates that a court take the needs and characteristics of the parties into account. The statute does not, however, mandate that the marital property be divided equally. Equity, not equality, guides a court’s discretion in dividing the marital, estate. In re Marriage of Fitzmorris (Mont. 1987), [229 Mont. 96,] 745 P.2d 353, 354, 44 St.Rep. 1809, 1811.

Margaret argues that the method of payment, dictated by the court below, has the effect of devaluing her share of the marital estate. It is her contention that the cash award is necessarily devalued because it is paid over time. In order to accurately divide the estate, according to the stated goal of a 51-49 percentage, she should be awarded interest payments.

This argument, however, ignores the fact that the allowance of interest is within the discretion of the District Court. In re Marriage of Jacobson (1979), 183 Mont. 517, 600 P.2d 1183; In re Marriage of Wessel (1986), 220 Mont. 326, 715 P.2d 45.

A review of the facts does not support Margaret’s contentions that the District Court abused its discretion. Personal property, acquired during the marriage, was split on a 50-50 basis. Kerrian’s, Inc., was split according to stock ownership, or on a 51-49 percentage basis. In making this apportionment, the District Court made extensive findings with regard to the parties’ needs and potentialities. It found that because of her employment skills, acquired through experience gained as assistant manager of the family business, and her education, including future graduation from a prominent law school, Margaret has an excellent opportunity for future acquisition of capital assets and income.

We do not disagree with these findings. A Juris Doctorate degree is a valuable income producing asset. Margaret testified that the top graduates from Hastings earn on the average of $40,000 to $65,000 a year. In contrast, Kerrian has only one year of college. He has worked in the family business for all of his adult life while Margaret received a college education at Eastern Montana College and two years of law school at Hastings. In light of these facts we hold that the trial court’s property division was not an abuse of discretion.

II

Margaret next argues that the District Court erred by refusing to award her maintenance. Again, we disagree.

An award of maintenance is appropriate if the spouse seeking maintenance “lacks sufficient property to provide for [her] reasonable needs; and is unable to support [herself] through appropriate employment. . .” Section 40-4-203, MCA. Margaret maintains that the court failed to take these principles into account when it refused to award her any maintenance. At trial, she requested maintenance until she completed her law school degree and gained admission to the bar. It was her contention that after distribution of the marital estate, she lacked “sufficient property” to provide for her reasonable needs. She further argued that she is unable to obtain appropriate employment until she is qualified to practice law.

Margaret was awarded the following property, at her request: a cabin at Flathead Lake, the liabilities against which exceed the value; the cash value of a life insurance policy; an IRA; her interest in a retirement/profit sharing plan; personal property; and the cash award of $97,785.00. She maintains that none of this property is income producing. Therefore, it cannot provide for her “reasonable needs.”

According to the record, the cabin at Flathead Lake is subject to two separate mortgages of $84,769.00 and $22,315.00 each. The monthly payments on these liabilities total approximately $1500.00. These payments, it is argued, render the cabin an income-consuming piece of property, which will force Margaret to consume her property settlement payments to meet her financial needs. Therefore, the award of the cabin is not “sufficient property” as that term is used in § 40-4-203(l)(a), MCA.

We agree that the cabin is not income producing property. However, we also take note that Margaret insisted upon receiving the cabin during the entire dissolution proceeding. Kerrian wanted to sell the cabin to reduce the drain on the family cash. Our review of the court file reveals that Kerrian asked the court for an order allowing him to sell the property so that neither party would be faced with meeting the cabin’s payments. Margaret resisted this motion. Therefore, in light of these facts, we hold that the trial court did not abuse its discretion in failing to order maintenance payments which are not necessitated by Margaret’s “reasonable” needs but rather through her voluntary decision to choose a piece of property which consumed income.

Margaret also contends that she is entitled to maintenance because she cannot support herself through appropriate employment until she completes her law degree and gains admission to the bar. During the divorce proceeding, Margaret testified that prior to the filing of this action, she required approximately $3,000.00 a month to live on. Her expenses included $800.00 for apartment rent, and $110.00 to park her car. During separation and preceding the termination of the marriage, Kerrian paid Margaret $1500.00 a month maintenance. In the final judgment, however, the trial court did not award any maintenance.

The court based its decision, in part, on its determination that Kerrian was unable to pay any maintenance after meeting his own needs. Evidence at trial established that his disposable income averaged approximately $2,350.00 a month. We agree with the trial court that Kerrian would not be capable of providing Margaret with $3,750.00 a month maintenance.

The lower court also found that, contrary to Margaret’s contentions, she is capable of supporting herself through appropriate employment. Margaret argued that because of her low grades and her disqualified status (i.e. academic suspension), she is incapable of supporting herself. However, the record clearly shows and she testified that she could work as a law clerk for $10.00 an hour. Additionally, it was revealed, that at one point she received $800.00 a week while clerking for a San Francisco law firm.

This Court finds, therefore, that the District Court did not abuse its discretion in refusing to award Margaret alimony. As stated earlier, she received roughly fifty percent of the marital property after distribution. As part of this property distribution, the court ordered Kerrian to pay Margaret $3,000.00 a month for a period of over two and a half years. This income, realized from the property settlement, together with the excellent employment opportunities available to her as a result of her attendance at a law school, is adequate to supply her “reasonable needs. “

III

Finally, Margaret maintains that the court erred in failing to award her attorney’s fees and costs pursuant to the provisions of § 40-4-110, MCA. We find that the court’s determination in this matter was reasonable and within its discretion. We affirm.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON and WEBER concur.

JUSTICE SHEEHY,

concurring and dissenting:

I concur with all of the majority opinion, except that part which denies the wife interest on the deferred payments to be made by the husband to her.

There is an internal conflict in the order of the District Court and in the majority opinion on the subject of interest. The District Court found, and the majority agree, that the value of Kerrian’s, Inc., should be divided between husband and wife in the ratio of 51-49. Then the District Court provided that the husband should pay wife the 49% amounting to $97,785 over a period of time (calculated at 32.59 months) at the rate of $3000 per month without interest. Thus the husband will have the use of the wife’s funds over a 2!4 year period interest-free. I do not think the District Court, nor any member of the majority would see anything but injustice in such an arrangement if anyone of them were forced to the small end of the same deal. The value of the wife’s award has been decreased by at least $7,500 under the District Court’s order, and to me that is substantial enough to require fixing. I would reverse and remand for that single purpose.


author: JUSTICE HUNT

text:
    In re the MARRIAGE OF DAVID L. McFATE, Petitioner and Respondent, and ROBERTA L. McFATE, Respondent and Appellant.
    No. 89-185.
    Submitted on Briefs Aug. 3, 1989.
    Decided Oct. 25, 1989.
    781 P.2d 759.
    Joan Meyer Nye, Nye & Meyer, Billings, for respondent and appellant.

      Kevin T. Sweeney, Sweeney & Healow, Billings, for petitioner and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant, Roberta L. McFate, appeals from an order of the Thirteenth Judicial District Court, Yellowstone County, denying her motion to modify the parties’ decree of dissolution to require respondent, David R. McFate, to pay support for the parties’ adult children. We affirm.

The sole issue raised on appeal is as follows:

When a motion for modification of child support is brought after a child turns 18 years old, does the district court have jurisdiction to modify the decree of dissolution to require child support to continue past the age of 18 if the separation agreement incorporated into the original decree provides that support shall terminate once the child reaches the age of majority or is otherwise emancipated?

At the time of the dissolution of the marriage of Roberta and David McFate, the parties’ twin son and daughter were 12 years old. The dissolution decree awarded custody of the two children to the mother and required the father to pay child support as follows:

“That petitioner [father] shall pay respondent [mother] the sum of ONE HUNDRED & NO/lOOTHs DOLLARS ($100.00) per month per child for the support, maintenance and education of the minor children of the parties until three years from the date of this decree, at which time said amount is increased by TWENTY-FIVE DOLLARS ($25.00) per month per child.”

In addition to the foregoing provision for monthly support payments, the parties’ separation agreement, which was incorporated into the decree, provided that support would “continu[e] until said minor children reach the age of majority or are otherwise emancipated.”

On November 18, 1988, the twins turned 18. Both were in high school at the time, one a senior and the other a junior. After the children’s birthday, the father remitted the child support payment for November, 1988, prorating the payment through November 19, 1988. The father indicated that the prorated November payment would be his final remittance. He has not made any support payments since.

On January 31, 1989, the mother filed a motion to clarify and modify child support, requesting the District Court to (a) require that the father’s child support obligation for each child continue through June of each child’s graduation from high school; (b) require the father to pay necessary dental work of the children; and (c) increase the amount of child support. After a hearing, the District Court denied the motion, concluding that the court lacked jurisdiction to modify the decree. The wife appealed.

The statute governing modification and termination of support provides as follows:

“Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child are terminated by emancipation of the child . . .”

Section 40-4-208(5), MCA.

Under the statute, if provisions regarding the duration of child support are not contained in either the dissolution decree or the separation agreement, jurisdiction over child support automatically terminates when the child becomes emancipated. If, however, the separation agreement or the dissolution decree provides that child support payments shall terminate at a specific age or time, such a provision is controlling and the district court retains jurisdiction over questions of support until the terms of the agreement or decree are fulfilled. Chrestenson v. Chrestenson (1979), 180 Mont. 96, 99-100, 589 P.2d 148, 150. Once the party who owes the duty of support fulfills that obligation according to the terms of the agreement or the decree, the district court loses jurisdiction over the matter and can no longer entertain motions for modification or continuation of support.

The mother points to our decision in In re the Marriage of Bowman (1987), 226 Mont. 99, 734 P.2d 197, as authority for the proposition that the jurisdiction of the trial court continues beyond the age of majority. In Montana, the age of majority is 18. Section 41-1-101, MCA. It is true that in Bowman we recognized the district court’s authority to order child support to continue past the age of majority. However, such authority exists only if the district court already has jurisdiction over the matter. In Bowman, the parties executed a separation agreement providing support for the couple’s youngest son. The agreement was to remain in effect until replaced by other formal legal documents. This agreement gave the trial court the jurisdiction to order the father to pay support even though the child was 18 at the time of trial.

In the present case, the separation agreement incorporated into the dissolution decree did not give the District Court jurisdiction to consider questions concerning child support after the children turned 18. To the contrary, the agreement specifically provided that support payments would terminate when the twins reached the age of majority. This provision divested the District Court of jurisdiction to modify child support after the twins attained the age of 18.

On appeal, the mother raises several constitutional questions, including equal protection of the law and equality of educational opportunity. This Court reserves the right to examine constitutional issues involving broad public concerns that affect the substantial rights of a litigant even if the questions are raised for the first time on appeal. Cottrill v. Cottrill Sodding Serv. (Mont. 1987), [229 Mont. 40,] 744 P.2d 895, 896, 44 St.Rep. 1762, 1763. In this case, however, we decline to address the mother’s constitutional issues. We base our refusal to examine these issues on the fact that the mother merely raises the questions in a conclusory manner; she fails to argue them. It is the duty of the parties to brief and argue the issues they raise. This Court is not obligated to make their arguments for them.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, Mc-DONOUGH and GULBRANDSON concur.


text:
    MILK RIVER PRODUCTION CREDIT ASSOCIATION, a federal instrumentality, Plaintiff and Respondent, v. BIG HOOK LAND & CATTLE COMPANY, a Montana corp.; Harold Goolsbee, Jr., Alyce Goolsbee; Sherlee T. Graybill; Graybill, Ostrem, Warner and Crotty; John H. Leeds, D.V.M., Defendants and Appellants. BIG HOOK LAND & CATTLE CO., et al., Counterclaimants and Third-Party, Plaintiffs and Appellants, v. MILK RIVER PRODUCTION CREDIT ASSOCIATION, a federal instrumentality, Counterclaim Defendants and Third-Party Defendants and Respondents.
    No. 89-240.
    Submitted on Briefs Aug. 31, 1989.
    Decided Oct. 25, 1989.
    783 P.2d 359.
    Leo Graybill, Jr., Donald L. Ostrem, Graybill, Ostrem, Warner & Crotty, Great Falls, for defendants and appellants.

      Gary S. Deschenes, John P. Paul, Alexander, Baucus & Linnell, Great Falls, Thomas Sheehy, Big Sandy, for plaintiff and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

Defendants Harold and Alyce Goolsbee appeal a grant of partial summary judgment entered against them by the Twelfth Judicial District Court, Hill County, Montana. Because the partial summary judgment was not a final order and was not certified to this Court pursuant to Rule 54(b), M.R.Civ.P., we dismiss the appeal without prejudice.

On November 14, 1985, Milk River Production Credit Association (Milk River PCA) brought a foreclosure action against Big Hook Land and Cattle Company, Harold and Alyce Goolsbee, and several other defendants. The Goolsbees filed an answer and counterclaim in February 1986, alleging a breach of the duty of good faith and fair dealing, the need for an accounting, nonconsideration for subordination of mortgage, and other assertions. On March 4, 1986, Milk River PCA moved to strike affirmative defenses and to dismiss counterclaims. This motion was granted after oral argument.

Milk River PCA then filed a motion for summary judgment against all defendants on September 29, 1986. After a hearing on this motion in October 1986, the District Court ruled from the bench that summary judgment would be granted against all defendants. The day after the hearing Big Hook Land and Cattle Company filed for bankruptcy. No written order was ever filed against any party at that time.

Over two years later, on January 18, 1989, the District Court entered partial summary judgment against defendants Harold Goolsbee and Alyce Goolsbee. No order has been entered against any defendant other than the Goolsbees. Further, the Goolsbees did not request that the District Court certify the order pursuant to Rule 54(b), M.R.Civ.P.

On appeal the Goolsbees raise issues regarding certain discovery rulings by the District Court. They also allege that the District Court erred in dismissing defendants’ defenses and counterclaims by determining that the state court did not have jurisdiction since Milk River PCA is a federal instrumentality. We do not reach these issues since we conclude that the Goolsbees’ appeal is premature.

An appeal may be taken from a “final order,” Rule 1, M.R.App.P., or the district court may certify an order for appeal pursuant to Rule 54(b), M.R.Civ.P., which states:

“Judgment upon multiple claims or involving multiple parties. When multiple claims for relief or multiple parties are involved in an action, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims or the rights and liabilities of less than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”

This Court has repeatedly emphasized that a judgment which leaves undetermined the liability of one or more defendants cannot be appealed unless it is expressly made final upon a determination that there is no just reason for delay. Roy v. Neibauer (1980), 188 Mont. 81, 85, 610 P.2d 1185, 1188.

Appellants urge that Milk River PCA has treated this as a final order in that this Montana judgment has been entered in California against the Goolsbees. They contend that Milk River PCA is therefore estopped from raising the certification issue. Appellants misunderstand the certification requirement. It is not a mere formality, as stated in the recent case of McDonald v. Unirex, Inc. (1986), 221 Mont. 153, 154-55, 721 P.2d 302, 303:

“We dismissed the appeal in Neibauer because no attempt was made to comply with the certification requirements of Rule 54(b). In that case, as an aid to practitioners, we set out the factors which we will consider in reviewing a Rule 54(b) certification. Since that time, we have refused to consider several appeals in which the certification requirements were partially, but not adequately met. Montana practitioners are held on notice that the Rule 54(b) certification requirement is not viewed by this Court as a mere formality, but as a necessary and valuable tool for preventing piecemeal litigation and waste of the resources of both litigants and the courts. (Citations omitted.)”

Accordingly, this appeal is dismissed without prejudice.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, SHEEHY and GULBRANDSON concur.


author:
CHIEF JUSTICE TURNAGE
      JUSTICE SHEEHY,

text:
    JERRY WACKER, Plaintiff and Appellant, v. PARK RURAL ELECTRIC CO-OPERATIVE, INC., Defendant and Respondent.
    No. 89-013.
    Submitted on Briefs Aug. 17, 1989.
    Decided Oct. 31, 1989.
    Rehearing Denied Dec. 28, 1989.
    783 P.2d 360.
    Karl Knuchel, Livingston, for plaintiff and appellant.
    Arnold Huppert, Jr., Huppert & Swindlehurst, Livingston, for defendant and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Prior to jury trial in this personal injury case, the District Court for the Sixth Judicial District, Park County, granted the defendant’s motion in limine preventing the plaintiffs chiropractor from testifying as to the plaintiff’s impairment rating. The plaintiff appeals that decision. We affirm.

The appellant raises the single issue of whether the District Court erred in not allowing a licensed chiropractor to give his opinion of the plaintiff’s degree of impairment based on the American Medical Association’s Guides to Evaluation of Permanent Impairment.

Appellant Wacker was injured when a shock from the respondent’s 7.2 kilo-volt electrical power line knocked Wacker from the crest of a ranch outbuilding on which he was laying tin roofing. His injuries included a concussion, a compression fracture of the lumbar vertebra, and electrical burns on his upper right arm and the hamstring area of his right leg.

Following initial treatment, physical therapy and skin graft surgery, Dr. Thiry, a licensed chiropractor, continued to treat Wacker for back problems. Dr. Thiry reported that, based on the American Medical Association’s Guides to Evaluation of Permanent Impairment, the back injury left Wacker with a thirty percent permanent impairment. The respondent moved in limine to prevent Dr. Thiry from testifying as to Wacker’s impairment rating, and the District Court granted the motion.

. During trial, Wacker testified several times that he was capable of doing twenty-five percent less work following his injury. Dr. Thiry testified in detail as to Wacker’s range of motion limitations without offering his opinion as to Wacker’s overall percentage of impairment. The respondent offered expert testimony that Wacker would probably recover fully. The jury apportioned fifty percent of the negligence to each party and determined total damages at $14,759.92.

The authority to grant a motion in limine rests within the sound discretion of the trial court and its conclusion will not be reversed unless the court has manifestly abused that discretion. Feller v. Fox (Mont. 1989), [237 Mont. 150,] 772 P.2d 842, 844, 46 St.Rep. 694, 696.

The appellant presents a close question for review.

On the one hand, Montana, like most jurisdictions, has adopted a generous policy toward the use of expert witnesses. The testimony and opinions of qualified experts are admissible whenever they will assist the jury in understanding evidence which is beyond the jury’s common experience. Rulé 702, M.R.Evid.; State v. Campbell (1965), 146 Mont. 251, 258, 405 P.2d 978, 983. Whether the witness is an expert is a question of admissibility within the discretion of the trial court, but the degree of the expert’s qualifications goes to the weight of the evidence and is a question for the jury. State v. Martin (1987), 226 Mont. 463, 466, 736 P.2d 477, 479.

On the other hand, this Court recently held that in workers’ compensation cases the legislature intended to restrict opinions on impairment ratings to licensed medical physicians. Weis v. Division of Workers’ Compensation (Mont. 1988), [232 Mont. 218,] 755 P.2d 1385, 1386, 45 St.Rep. 1004, 1006. The question before us today is whether in civil cases opinions of impairment ratings should be similarly restricted.

We believe that, for the present purposes, the difference between workers’ compensation cases and civil cases is a distinction without a difference. Public policy suggests that in both contexts only qualified physicians should be allowed to render opinions on impairment ratings based upon the American Medical Association’s Guides to Evaluation of Permanent Impairment. The American Medical Association formulated the Guides for the use of licensed medical physicians. Restricting their use to licensed medical physicians would insure reliable, authoritative opinions on which juries could depend in making their determinations.

This is not to say that chiropractors should not testify as to their patients’ injuries, or that they should never use percentages in describing their patients’ injuries. The jury can decide how much weight to give such testimony. Chiropractors should not, however, add unwarranted weight to their opinions by adopting the trappings of licensed medical physicians.

In the present case, the respondent moved the District Court to “prohibit . . . any and all statements about or allusions to the ‘impairment’ rating of [the] Plaintiff, as derived by Dr. David A. Thiry . . . .” After receiving briefs and oral arguments on the issue, the court granted the respondent’s motion. Dr. Thiry was properly barred from giving his opinion as to Wacker’s impairment rating. He could have given his opinion — as Wacker himself did — that the appellant could perform twenty-five percent less work after the injury. We hold that the District Court did not abuse its discretion.

Affirmed.

JUSTICES HARRISON, WEBER, GULBRANDSON and Mc-DONOUGH concur.

JUSTICE SHEEHY,

dissenting:

The majority opinion is a far too stringent limitation on the competence of a chiropractor to testify within the area of his expertise. Moreover, the majority opinion is aberrant from the weight of authority on the subject.

In Weis v. Division of Workers’ Compensation (1988), [232] Mont. [218], 755 P.2d 1385, this Court inferred that because §§ 39-71-701, -702, and -703, MCA, required in workers’ compensation cases that disability be supported a “preponderance of the medical evidence,” the use of the term “medical” meant that only licensed physicians could testify in workers’ compensation cases as to impairment ratings. From that inference, the majority now infer that the prohibition extends to civil cases as well as Workers’ Compensation cases. Thus we have a house of cards built on an inference upon an inference, which should not stand.

Chiropractors practice in Montana under licensing statutes which define “chiropractic” as a system of specific adjustment or manipulation of the articulations and tissues of the body, particularly of the spinal column, and “includes the use of recognized diagnostic treatment methods as taught in chiropractic colleges but does not include surgery or the prescription or use of drugs.” Section 37-12-101, MCA. Determining the rate of impairment is a form of diagnosis.

Further, under our statutes, “licensed chiropractors may diagnose, palpate and treat the human body by the application of manipulative, manual, mechanical, and dietetic methods, including chiropractic physiotherapy, the use of supportive appliances, analytical instruments, and diagnostic x-ray” following guidelines from state and federal regulatory agencies. Section 37-12-104(2), MCA.

It is a general rule in this country that a chiropractor may testify concerning matters within the scope of his profession. 52 ALR2d 1380, 1384; Chalupa v. Ind. Workers’ Comm. (1973), 109 Ariz. 340, 509 P.2d 610; Taylor v. Maxwell (1966), 197 Kan. 509, 419 P.2d 822.

In Line v. Nourie (1974), 298 Minn. 269, 215 N.W.2d 52, it was held that a chiropractor was competent to express expert opinion based on reasonable chiropractic certainty regarding probable effects, permanence and future medical requirements of plaintiff’s back injury, where proper foundation was laid and the matter was within the scope of his profession and the practice of chiropractic.

In this case, the majority, in holding that a chiropractor may not testify as to the rate of impairment based on AMA charts goes too far. Once a proper foundation is laid, a chiropractor should be held competent to testify in civil cases (excluding workers’ compensation cases) within the realm of his knowledge and training as licensed by the state. Chalupa, supra.

It perverts justice to let a verdict stand where the jury was foreclosed from hearing testimony about plaintiff’s impairment from the licensed health provider who principally treated the plaintiff. I would reverse and grant a new trial where the witness would be permitted to testify within the area of his expertise, upon proper foundation laid.

JUSTICE HUNT, concurs in the dissent of JUSTICE SHEEHY.


text:
    ANN LEWIS, Plaintiff and Respondent, v. JOSEPH ROSCOE LEWIS, Defendant and Appellant.
    No. 89-060.
    Submitted on Briefs July 7, 1989.
    Decided Oct. 31, 1989.
    784 P.2d 897.
    Karl Knuchel, Livingston, for Defendant and Appellant.

      Dane C. Schofield; Peterson, Schofield & Leckie, Billings; Jean S. Schanen, Schanen Law Firm, Wasilla, Alaska, for Plaintiff and Respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Ann Lewis filed an action in the District Court, Fourteenth Judicial District, Musselshell County, to enforce a default judgment entered in Alaska against her former husband, Joseph Roscoe Lewis. Eventually the District Court awarded summary judgment in favor of Ann Lewis and against Joseph Lewis in the amount of $388,405.91. From that judgment, defendant Joseph Lewis appeals. We affirm the District Court.

The central issue in this cases is whether the Alaska court had in personam jurisdiction of the defendant Joseph Lewis to render a valid judgment against him which could be enforced in the sister state of Montana.

When Ann Lewis filed this action in Musselshell County against Joseph Lewis, she obtained personal service upon him in Mussel-shell County. Through his counsel, he made a special appearance in the action, moving the court to dismiss for lack of jurisdiction in the Alaska court, and because of that lack of jurisdiction to quash the service of summons made on him in the Musselshell County action. The District Court received briefs from all parties and affidavits from Jean S. Schanen, an Alaska attorney who represented Ann Lewis in the Alaska court actions. The District Court denied the motions to dismiss and eventually Joseph Lewis filed his answer in the cause generally denying all the allegations of Ann Lewis’ complaint and praying the Montana court to hear the merits of his case and render judgment in his favor.

On September 1,1988, the plaintiff Ann Lewis moved for summary judgment in her favor. Joseph Lewis responded to the motions saying that he agreed with the position of Ann Lewis that the previous rulings by the District Court on his objections to jurisdiction were dispositive and that he wanted to make the previous rulings appeal-able to the Supreme Court of the state of Montana, after judgment.

The District Court had held a hearing on December 4, 1987, at which the Alaska attorney Jean Schanen, and Ann Lewis both testified. Joseph R. Lewis did not testify at that hearing, nor did he at any stage of the proceedings present affidavits contesting in any respect the affidavits or testimony of the plaintiff or her attorney. Accordingly, the statement of facts which we set out hereafter is unrebutted in the record.

Joseph R. Lewis and Ann Lewis were husband and wife residing primarily in Alaska during their 28 year marriage. During the course of the marriage, the Lewises acquired substantial property. Joseph R. Lewis managed the couple’s business affairs and made the important business decisions. In the latter years of the marriage, Joseph R. Lewis created a large number of foreign trusts, transferring real and personal property into them, for purposes of tax avoidance. From 1976 to 1983, Joseph R. Lewis filed no state or federal tax returns.

In 1983, Joseph R. Lewis left Alaska without disclosing his whereabouts to his wife or to others. Several months later Ann Lewis learned that he was residing in Montana. She filed an action in Alaska for divorce, serving Joseph R. Lewis personally with a divorce complaint at his domicile near Roundup, Montana. Joseph R. Lewis did not answer the complaint, although he acknowledged that he had received it. His default was subsequently entered against him.

Prior to the default hearing in Alaska, the Internal Revenue Service contacted Ann Lewis regarding delinquent tax returns from 1976 to 1983. She was informed that the foreign trust schemes undertaken by Joseph R. Lewis were fraudulent, and that a significant amount of tax, penalty and interest was owing for which she was responsible. Ann Lewis moved at the default hearing before the Alaska court for leave to amend her complaint to state additional claims against Joseph R. Lewis for the penalties, interest and professional fees that were involved.

The Alaska court granted the motion to amend, but later reversed that ruling, stating that Ann Lewis should file a separate action against her husband with respect to those matters. Ann Lewis did file a separate action to recover from her former husband the IRS taxes, penalty, interest and professional expenses. The divorce decree of September 10, 1984, which was sent to Joseph R. Lewis by mail made reference to the unadjudicated tax matters.

In the divorce action, before the Alaska court reversed itself, requiring the tax matter to be pursued as an independent action, attempts had been made to serve the amended complaint on Joseph R. Lewis at the address where the original complaint was served. Certified mail at his last known address was returned unclaimed. Efforts to locate Joseph Lewis through the Musselshell County sheriff’s office were also unsuccessful.

Jean Schanen testified in this case that with respect to the second action, she tried to serve Joseph Lewis by certified mail which was returned with an indication from the post office that he was no longer at that address. She then attempted to obtain personal jurisdiction by having Lewis served through the sheriff’s office and she received a return from the sheriff’s office indicating that he could not be found. Other information respecting Joseph Lewis’ whereabouts was unavailing. Ann Lewis learned that he had purchased a motor home and was traveling around from place to place and no one knew exactly where he was at any given time.

Counsel for Ann Lewis then made application to the Alaska court for permission to serve Joseph R. Lewis by publication as permitted under the Alaska Rules of Civil Procedure. She filed an affidavit of diligent inquiry which was required under the Alaska rules. The court held a hearing on the matter, and the presiding judge suggested that they ascertain from Joseph R. Lewis’ brother, C.R. Lewis of Anchorage, Alaska, as to his whereabouts. C.R. Lewis confirmed to Ann Lewis’ attorney’s firm that his brother was moving from place to place and C.R. Lewis did not know his whereabouts at the time. When the Alaska court learned of this additional unsuccessful attempt, it allowed service by publication upon Joseph R. Lewis in the Palmer, Alaska, area.

After Joseph R. Lewis defaulted by not appearing in the Alaska action, the Alaska court rendered a judgment of $346,183.47 against him, with interest at 10.5% per annum.

Ann Lewis then commenced her action in Montana to enforce her Alaska Judgment. By that time, Joseph Lewis had purchased a ranch and was served personally with the summons in the action to enforce the Alaska judgment.

We determine that the Alaska court had jurisdiction to render an in personam judgment against Joseph R. Lewis in the circumstances of this case.

In Montana, the effect of a judicial record of a sister state is the same in this state as in the state where it was made, except that it can only be enforced here by an action or special proceeding. Section 26-3-203, MCA. However, any judicial record, including the record of a judgment of a sister state may be impeached by evidence of want of jurisdiction in the court or judicial officer from which the record comes. Section 26-3-105, MCA. In determining whether the judgment of the sister state based upon long-arm service or constructive service is valid, we examine the proceedings in the record of the sister state to determine if they comport with due process. Hughes v. Salo (1983), 203 Mont. 52, 659 P.2d 270; Kulko v. California Superior Court (1978), 436 U.S. 84, 91, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132. If a judgment is rendered in a sister state in violation of due process, it is void in the rendering state, and is not entitled to full faith and credit elsewhere. Pennoyer v. Neff (1878), 95 U.S. 714, 732-733, 24 L.Ed. 565.

Alaska’s Rules of Civil Procedure provide in Rule 4(e) for service by publication where personal service otherwise cannot be made outside the state:

“(e) Other service. When it shall appear by affidavit of a person having knowledge of the facts filed with the clerk that diligent inquiry a party cannot be served with process under (d) [personal service outside the state] of this rule, service shall be made by publication or as otherwise directed by the court as provided in this subdivision . . .”

The same rule also provides in subparagraph (1), as to what constitutes “diligent inquiry.” There is no question that the facts of this case match up to the diligent inquiry requirements in Alaska.

Ann Lewis’ suit was for her reimbursement of federal income taxes, penalties and expenses which she had to pay arising out of marriage of the parties in Alaska. Joseph R. Lewis’ contacts with Alaska were continuous and of long duration. His acts and omissions in Alaska gave rise to Ann Lewis’ claims against him. His contacts with Alaska met the requirements for long-arm jurisdiction over him. Hanson v. Denkla (1958), 357 U.S. 235, 76 S.Ct. 1228, 2 L.Ed.2d 1283.

In Kennecorp Mortgages, Inc. v. First National Bank of Fairbanks (Alaska 1984), 685 P.2d 1232, the Alaska court considered the question of long-arm jurisdiction in the context of a motion to set aside a default judgment. The court said at 1238:

“The primary inquiry in evaluating a nonresident defendant’s contact with a forum state is a consideration of the defendant’s purposeful activity with respect to that state. As explained by the United States Supreme Court, ‘it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. (Citing Hanson, supra.)’ ”

We determine that the judgment would be enforceable in Alaska. The Montana Rules of .Civil Procedure would not permit service by publication in like circumstances. Rule 4D(5), M.R.Civ.P. However, our inquiry under § 26-3-203, MCA, is to determine the effect of the judicial record in the sister state, and to give it the same effect in this state if it is otherwise valid.

The Alaska court has determined that its rule permitting long-arm service on nonresident defendants comports with due process. It has stated:

“It is not enough that the legislature has asserted jurisdiction over appellee in the circumstances of this case. The constitutional requirements of due process of law must also be satisfied before jurisdiction will exist. Before a binding judgment in personam could be made against appellee, the due process clause of the federal constitution requires that appellee have sufficient contact with Alaska so as to make it reasonable and just, according to our traditional conception of fair play and substantial justice, to permit the state to enforce the obligations which appellee has allegedly incurred.”

Northern Supply, Inc. v. Curtiss-Wright Corporation (Alaska 1965), 397 P.2d 1013, 1017.

The presence of Joseph R. Lewis in Alaska during his marriage, during which time he performed the acts which gave rise to his eventual liability to his former wife constitutes sufficient contact with Alaska to make the binding judgment reasonable and just and in conformance with notions of fair play and substantial justice. International Shoe Company v. Washington (1945), 326 U.S. 310, 320, 66 S.Ct. 154, 160, 90 L.Ed. 95, 104.

Joseph R. Lewis also contends in this appeal that a copy of the judgment was not mailed to him as required by the Alaska Rules of Civil Procedure. However, the same rule also provides that such mailing must be made if the address of the defendant is known. In this case, his address was not known. Moreover, this is an issue that is raised for the first time on appeal. Wyman v. DuBray Land Realty (Mont. 1988), [231 Mont. 294,] 752 P.2d 196, 45 St.Rep. 621.

We affirm the District Court.

JUSTICES BARZ, HUNT, WEBER and McDONOUGH concur.


author: JUSTICE HUNT JUSTICE McDONOUGH

text:
    VIOLET LIVINGSTON, Plaintiff and Appellant, v. TREASURE COUNTY, a political subdivision of the State of Montana, Defendant and Respondent.
    No. 89-121.
    Submitted on Briefs July 7, 1989.
    Decided Nov. 6, 1989.
    781 P.2d 1129.
    John J. Cavan, Cavan, Smith, Grubbs & Cavan, Billings, for plaintiff and appellant.
    Calvin J. Stacey, Keefer, Roybal, Hanson, Stacey & Walen, Billings, Lee Kerr, Treasure County Atty., Hysham, for defendant and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Plaintiff Violet Livingston appeals from a judgment of the District Court of the Thirteenth Judicial District, Yellowstone County, dismissing her complaint against defendant Treasure County. We reverse and remand.

The sole issue raised on appeal is whether the District Court erred in dismissing the complaint because the return of service was not filed with the clerk of court within three years after the commencement of the action.

On November 27, 1985, plaintiff filed a complaint against defendant, alleging personal injuries due to the negligence of defendant’s employees. Summons was issued on the same day.

Three years later, on November 27, 1988, plaintiff delivered the summons and complaint to the sheriff, who served defendant on that day. Plaintiff filed the summons and return with the District Court on December 20, 1988.

On December 14, 1988, defendant filed a motion to dismiss. The District Court granted the motion, concluding that under Rule 41(e), M.R.Civ.P., the action could not be prosecuted because the summons and return were not filed with the clerk of court within three years after commencement of the action. Plaintiff appealed to this Court.

At issue in this case is Rule 41(e), M.R.Civ.P., which provides in pertinent part:

“No action heretofore or hereafter commenced shall be further prosecuted as to any defendant who has not appeared in the action or been served in the action as herein provided within 3 years after the action has been commenced, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have been issued within 1 year, or unless summons issued within one year shall have been served and return made and filed with the clerk of the court within 3 years after the commencement of said action, or unless appearance has been by the defendant or defendants therein within said 3 years. (Emphasis added.)”

The literal language of the rule requires an action’s dismissal if the plaintiff fails to serve the defendant and file the return within three years of the commencement of the lawsuit. We do not believe, however, that such a harsh result is warranted in a case such as this, where plaintiff has served defendant on the last permissible day but has failed to file the return with the clerk of court until approximately one month after three years have elapsed.

The purpose of Rule 41(e), M.R.Civ.P., is to ensure that actions are timely prosecuted. See State ex rel. Equity Supply Co. v. District Court (1972), 159 Mont. 34, 494 P.2d 911. Indispensable to the timely prosecution of an action is the service of the summons and complaint. Service of the summons is the means by which the district court acquires personal jurisdiction over the defendant. Clinton v. Miller (1951), 124 Mont. 463, 478, 226 P.2d 487, 495; Haggerty v. Sherburne Mercantile Co. (1947), 120 Mont. 386, 392, 186 P.2d 884, 889. Service is also essential to due process as it notifies the defendant of the pendency of an action against him thereby giving him the opportunity to defend himself or his property. Clinton, 124 Mont. at 478, 226 P.2d at 495; Haggerty, 120 Mont. at 396-97, 186 P.2d at 891.

Filing the return, on the other hand, is simply a ministerial act. The return itself is merely evidence of service of the summons and complaint. Clinton, 124 Mont. at 479, 226 P.2d at 495. It is filed with the court only to document on the record the fact that service has been completed.

In this case, the plaintiff’s failure to file the return neither hindered nor delayed prosecution of the action. Nor did it affect the validity of service.

We note that other rules governing proof of service provide that “[f]ailure to make proof of service does not affect the validity of the service.” Rules 4D(8)(e) and 5(f), M.R.Civ.P. In Big Spring v. Blackfeet Tribe (1978), 175 Mont. 258, 573 P.2d 655, we discussed the failure to file the return within 10 days after service as mandated by Rule 5(f), M.R.Civ.P. We stated that failure to file the return within the time limits of that rule may be excused only upon a showing of good cause. Big Spring, 175 Mont. at 263, 573 P.2d at 658. The facts in the present case demonstrate that good cause has been shown.

The rules of civil procedure are to be construed in a manner that secures the just, speedy and inexpensive determination of lawsuits on their merits. Larango v. Lovely (1981), 196 Mont. 43, 47, 637 P.2d 517, 519. Summary dismissal of this lawsuit for failure to file the return is not appropriate. We conclude that it is appropriate here to excuse the failure to file the return.

The provision of Rule 41(e), M.R.Civ.P., is a departure from the federal rule on the same subject in requiring the return of service to be filed with the clerk of the court within the three-year period. See Rule 41, F.R.Civ.P. Since our objective in adopting rules of procedure is uniformity of procedural practice in Montana in state and federal practice as far as possible, thig provision of our rule will be referred to the Commission on Rules of Procedure for amendment in conformity with this opinion.

Reversed and remanded to the District Court for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, SHEEHY, GULBRANDSON and WEBER concur.

JUSTICE McDONOUGH

dissenting:

The language of the rule clearly and unequivocally requires the dismissal of lawsuits when the return of service fails to be “filed with the Clerk of Court within three years after the commencement of said action.” Such words should be given their plain and ordinary meaning. Section 1-2-106, MCA, Rierson v. State (1980), 188 Mont. 522, 614 P.2d 1020.

The purpose of the rule is to allow district judges by examining the court file to dismiss actions in which proof of service has not been entered without further red tape. Dockets are cleared without delay.

The appellant has not stated or alleged any excuse or reason to invoke the equity of a court for her failure to file the return in the time frame required. In fact the situation is just the opposite. The summons was issued on the day of the filing of the action. The defendant, Treasure County, was always available for over one thousand days for service of process. Our Federal Constitution was debated and approved by the Convention, and debated and ratified by the States in less time when communication and transportation was done by horse and buggy. Yet in this case no service was made until the last day and it was incumbent on the appellant to have proof of service filed. The majority opinion fosters delay which is the opposite of just, speedy and inexpensive determination of lawsuits.

I would affirm the District Court.