author: MR. JUSTICE WEBER

text:
    In re the MARRIAGE OF GERALD E. HUGHES, Petitioner and Appellant, and AUDREY ANN HUGHES, Respondent and Respondent.
    No. 88-06.
    Submitted on Briefs Feb. 9, 1989.
    Decided March 21, 1989.
    770 P.2d 499.
    Randy K. Dix, Helena, for petitioner and appellant.
    Marc G. Buyske, Anderson, Beatty & Lee, Shelby, for respondent and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Mr. Hughes appeals from an Order of Clarification issued by the District Court for the Ninth Judicial District, Glacier County, following a judgment entered in the parties’ divorce proceedings before that court. We reverse and remand for further proceedings.

The issue presented for our review is whether the District Court erred in granting Mrs. Hughes permanent maintenance in its Order for Clarification.

The parties had been married for 25 years when they separated in April of 1982. The marriage was dissolved in 1986. Three children were born of the marriage, all of whom were emancipated at the time of the divorce proceedings.

During the marriage, Mrs. Hughes was not, for the most part, employed outside the home. She raised the children and served as homemaker in the various locations in which the family lived while Mr. Hughes pursued his career as a military officer with the United States Air Force. Mr. Hughes served fourteen of his active duty years in the United Kingdom primarily because Mrs. Hughes was a British citizen and preferred to live in England. After 23 years of active service, Mr. Hughes retired in 1978, having attained the rank of major.

Following Mr. Hughes’ retirement, the parties remained in Scotland. Mr. Hughes sold automobiles and Mrs. Hughes began working as a social worker for the local government. In 1982, Mr. Hughes moved to the United States to pursue a second career in hospital administration. Mrs. Hughes chose not to accompany her husband. She remained in the family residence in Scotland and continued her employment as a social worker.

Upon his return to the United States, Mr. Hughes worked as a hospital administrator in Ekalaka, Montana, then in Cut Bank, and finally in Helena, Montana. While in the United States, Mr. Hughes continued to support his family by depositing his entire Air Force pension check in a bank account in Scotland along with other monies from his hospital employment. That assistance continued until November of 1986 when the parties’ youngest child reached the age of majority. That same month, the marriage was dissolved by the Glacier County District Court and the court ordered Mr. Hughes to keep current all of the mortgage payments, taxes, and insurance associated with the Scotland residence.

In January of 1987, Mr. Hughes was ordered to pay $300 per month temporary maintenance “until the final determination of this matter, either by Court Order or by mutually agreed upon settlement.” A final hearing was held on March 23, 1987, and the trial court issued its Findings of Fact and Conclusions of Law dated July 31, 1987. Pursuant to that judgment, Mrs. Hughes was awarded the family residence in Scotland, “40% of the Air Force pension and all personal effects and furnishings in Scotland.” She was to assume all debt incurred in Scotland. Mr. Hughes was awarded “60% of the Air Force pension, the retirement funds associated with his hospital employment, and his personal effects.” He was to assume all debts incurred in the United States.

On July 29, 1987, Mrs. Hughes filed a timely motion requesting clarification of the court’s order concerning the Air Force pension award. Specifically, she requested that the court clarify whether it intended her to receive 40% of the lump sum present value of the pension, or whether she was entitled to receive 40% of some monthly payment due to Mr. Hughes. The court issued its Order of Clarification on August 28, 1987, which is the subject of this appeal. In that order, the District Court stated:

“The Court has the authority to make the following changes to its Order of July 31, 1987. Such changes are not corrections of substantial judicial error; rather they are merely attempting to specifically state the result this Court intended to achieve by its July 31, 1987 decision. The Court can make such changes under the authority of Rule 60(a), M.R.Civ.P. (Citations omitted.) Moreover, Respondent’s motion to clarify can be easily construed by this Court to be a timely motion under Rule 60(b), MRCP, and the Court finds sufficient reasons to justify clarifying its July 31, 1987 order, specifically, the potential problem created by using the phrase “40% of the Air Force pension” vis a vis 10 U.S.C. 1408, and 32 C.F.R. § 63 (statute and regulations defining when and to what extent the military will make direct payments to a former spouse from a military pension); the potential problem of finding a present value of an asset and then intending the former spouse to receive, in effect, a maintenance payment.”

The Court then ordered that the marital assets and liabilities be divided as follows:

To Audrey Hughes:

Assets: (1) residence in Tayport, Scotland

(2) all Household furnishings and effects located in Got-land.

Liabilities: (1)all debts of the marriage in Scotland.

To Gerald Hughes:

Assets: (1) U.S. Air Force pension

(2) PERS pension

(3) personal effects

(4) Cadillac automoblie

Liabilities: all debts of the marriage in the U.S.

“Additionally, the Court awards to Audrey Hughes maintenance, payable monthly in the manner specified below, in an amount equal to $650.00 per month, or 40% of the disposable retired pay of Petitioner from his U.S. Air Force pension, whichever is greater.”

On appeal, Mr. Hughes contends that the District Court had no authority to change what was originally contemplated ás a property settlement to a maintenance award in the Order of Clarification because such relief was not requested by either party and because no findings were made to support such an award as required by statute. Both parties admit that an award of maintenance was not specifically requested, although Mr. Hughes’ petition for dissolution requested “such other and further suitable arrangements as (the District Court) may deem just and proper.”

Mrs. Hughes argues that the failure to specifically request an award of maintenance does not preclude the District Court from granting such relief as long as it is warranted by the evidence. As authority, Mrs. Hughes cites Rule 54(c), M.R.Civ.P., which states:

“. . . every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.”

The discretion granted to the District Court in Rule 54(c), however, must be viewed in light of the particular nature of this case. In a dissolution proceeding, the court’s power to grant relief is strictly statutory, and statutory guidelines are set forth to determine whether such relief is warranted in any case. Prior to granting an award of maintenance, the court is required to make specific findings under § 40-4-203, MCA:

“. . . the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:

“(a) lacks sufficient property to provide for his reasonable needs; and

“(b) is unable to support himself through appropriate employment . . . (Emphasis supplied.)”

Section 40-4-203(1), MCA. We therefore review the District Court’s findings and conclusions to determine whether an award of maintenance was justified under § 40-4-203, MCA.

The court found that Mrs. Hughes’ take home pay as a social worker was approximately $680 per month, which is somewhat less than the usual wage for a social worker of Mrs. Hughes’ experience and qualifications. The court concluded that she has reached her maximum earning capacity, subject to normal yearly salary increases, and that she has no formal training for the position she now holds or any other. The court also concluded that Mrs. Hughes’ monthly expenses exceed her monthly income if no consideration is given to the Air Force payments provided by Mr. Hughes during the time he lived in the United States prior to the divorce. Finally, the court concluded that Mrs. Hughes has no assets capable of generating income, and that the only asset located in Scotland, the family residence, is income consuming as it is still subject to a mortgage and to assessments for taxes and insurance. These findings tend to support an award.

However, the District Court made other findings and conclusions which are contradictory and would not tend to support an award of permanent maintenance. Because of Mrs. Hughes’ salary, the Scottish economy and standard of living, and the Scottish governmental benefits and military benefits to which she is entitled, the court found that Mrs. Hughes “is able to live somewhat comfortably from her own resources.” The court found that the standard of living in Scotland is not as high as in the United States, and that a divorced woman in Scotland would expect to receive a home free of any mortgages plus several years of maintenance to enable her to retrain if she were not employed or had no employment skills. Based on Mrs. Hughes’ salary, the court concluded that she is capable of maintaining house payments on a $30,000 mortgage, with associated costs and expenses.

The court also found that any maintenance payments received by Mrs. Hughes could reduce her take home pay because of Scotland’s tax structure. If she were not receiving temporary maintenance, the court found that her take home pay could be about $200 per month higher. There are no findings as to how Mrs. Hughes’ take home pay might be affected by an award of permanent maintenance.

Finally, the court noted the source of many of Mrs. Hughes’ expenses. In her claimed living expenses, Mrs. Hughes included the living expenses of the parties’ youngest daughter, Christine, who was legally an adult at the time of trial and whom the parties had no obligation to support. The court found that Christine was able-bodied and capable of employment. While she managed a wine shop in Scotland, she did not share or contribute to the expenses incurred in Mrs. Hughes’ home. Mrs. Hughes also supported the oldest daughter, Karen, up until the time of her wedding in November, 1986. Karen is involved in equestrian pursuits, and participates in jumping contests and other equestrian competitions which Mrs. Hughes actively supports. The court noted it to be an expensive hobby, and found, “If one follows such a hobby and only has middle-income means, it severely strains the budget . . . She (Mrs. Hughes) will have to, and should be expected to, more realistically approach her lifestyle in order to live within her means.”

These findings do not establish that Mrs. Hughes is entitled to permanent maintenance under the requirements of § 40-4-203, MCA. We conclude that this case should be remanded for reconsideration by the District Court after the making of new findings which meet the requirements of the statutes.

Mrs. Hughes requested that this Court reinstate temporary maintenance in the event of a remand. We note that the issue of interim maintenance is already before the District Court by way of Mrs. Hughes’ motion for enforcement of temporary maintenance orders. In light of her pursuit of an adequate remedy in the lower court, we decline to exercise appellate action in this regard in accordance with State ex rel. Kaasa v. District Court (1978), 177 Mont. 547, 551, 582 P.2d 772, 775. We reverse and remand this case for further proceedings consistent with this opinion.

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

MR. JUSTICE HUNT did not participate in this case.


source: Caselaw Access Project

author: MR. JUSTICE HUNT

license: Public Domain

text:
    EMPIRE DEVELOPMENT CO., d/b/a Billings Neon Co., Plaintiff and Respondent, v. BOB JOHNSON, d/b/a Rails Inn, and Clara E. Irons, d/b/a Beanery Cafe, Sidetrack Lounge, Defendants and Appellants. BOB JOHNSON, d/b/a Rails Inn, Counterclaimant and Appellant, v. EMPIRE DEVELOPMENT CO., d/b/a Billings Neon Co., Defendant and Cross-Appellant.
    No. 88-130.
    Submitted on Briefs Dec. 29, 1988.
    Decided March 21, 1989.
    770 P.2d 525.

      Calton, Hamman, Calton & Wolff, Rodd A. Hamman, Billings, for defendants and appellants.
    West & Miller, Jock B. West, Billings, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Bob Johnson, doing business as Rails Inn, appeals from a judgment of the District Court of the Thirteenth Judicial District, Yellowstone County, awarding damages of $920 to Empire Development Company, doing business as Billings Neon Company (Billings Neon), for payments and deposit due under two sign rental agreements. Billings Neon cross-appeals from that part of the judgment relieving Johnson of liability for further payments under the leases. We affirm.

Johnson raises the following issue:

Did the District Court err by failing to credit Johnson for payments made under two lease agreements?

Billings Neon puts forth an additional issue for review:

Did the District Court err in concluding that Billings Neon failed to properly install and maintain rented signs as provided in the lease agreements?

On February 28,1981, Bob Johnson, owner of the Rails Inn in Forsyth, entered into a contract with Billings Neon for the lease of one pylon display. The contract provided that, for a monthly rental of $565, Billings Neon would erect and maintain a pylon display consisting of a four-column structure on which a remote control clock and two “Rails Inn” signs were posted. The agreement also required Johnson to pay an advance deposit of $2,260.

On December 9, 1982, the parties negotiated a second lease, which expressly canceled and superseded the first. The purpose of the second lease, apparently, was to remedy some visibility problems with pylon display. The second contract covered the existing pylon display and, in addition, required Billings Neon to erect and maintain a roof display “Motel” sign. The lease called for monthly payments of $600 for 60 months, plus an advance deposit of $2,400. The parties agreed to transfer the $2,260 deposited under the first lease to the second, leaving a balance of $140 on the advance deposit. Johnson never paid the deposit balance.

On January 28, 1983, Johnson guaranteed a lease entered into between Billings Neon and Clara E. Irons. The contract required Irons, who leased the Beanery Cafe and Sidetrack Lounge from Johnson, to pay monthly rent of $260 for a “24 Hour Cafe” sign to be erected and maintained by Billings Neon. The contract also provided for an advance deposit of $1,040, which Irons paid.

The “Motel” and “24 Hour Cafe” signs were installed by approximately March 23, 1983. On July 20, 1983, a strong windstorm wrenched the motel sign off its supports, damaging the roof of the Rails Inn. Johnson’s insurance paid for all but $100 of the repairs to the roof. Billings Neon did not compensate Johnson for the $100 although the contract required the sign company to carry insurance that indemnified against property damage claims.

The windstorm also damaged the cafe sign. One day after the gale, Billings Neon was notified of the damage to the signs. Billings Neon never repaired either sign, although it retrieved the motel sign and took it to Billings, where it was later destroyed.

Neither Irons nor Johnson made any monthly payments under the cafe sign contract. Johnson did not make any payments under the motel sign lease until January 19, 1984. At that time, Johnson paid $1,000 to Billings Neon. The Billings Neon bookkeeper testified that she did not credit this payment to the motel sign lease, but instead applied the payment to the month of October 1982 and part of November 1982 under the first lease. On June 25, 1984, Johnson paid $1,500 to Billings Neon. The bookkeeper applied part of that payment to the first contract and the rest to other accounts Johnson kept with Billings Neon.

On December 5, 1984, Billings Neon notified Johnson in writing that he was in default on the motel sign lease, giving him five days to pay the balance due. Johnson failed to make the payment requested. Therefore, on December 12, 1984, Billings Neon accelerated the contract, demanding payment of $33,740. Johnson did not pay.

Both the first and second Rails Inn leases provided for a remote control clock on the pylon display. Johnson testified that he understood that the remote control box was to be installed in the motel office. His employees, however, could not locate the box, which caused a great deal of inconvenience during Forsyth’s frequent power outages.

Apparently, at some point between July 1983 and April 1985, the pylon display quit working. In April 1985, the new manager of the Rails Inn contacted Billings Neon to inquire about repairing the display. The manager was told that if he paid some money, the sign might be fixed. The manager sent a $600 payment in response. A few days later, a local electrician appeared and began to work on the display. When the motel manager discovered that the electrician thought he was working for the motel, not Billings Neon, the manager informed him that Rails Inn would not be responsible for the bill. The electrician left.

The pylon display stood unrepaired until, some time later, Johnson hired his own electrician to work on it. This electrician discovered that the control box for the remote control clock was located on one of the display poles approximately 10 or 12 feet from the ground. He was unable to repair the controls.

On October 18, 1985, Billings Neon filed a complaint against Bob Johnson, alleging breach of the second lease and claiming damages of $33,740. Billings Neon also sought damages for breach of the cafe sign lease from either Clara Irons, as primary beneficiary of that agreement, or Johnson, as guarantor. Irons, however, had filed a petition for bankruptcy on June 10, 1983, which barred any action against her.

In response to the complaint, Johnson filed a counterclaim against Billings Neon, alleging breach of the first and second leases for failure to properly construct and maintain the signs and seeking a refund of all monies paid under the leases. Johnson additionally sought $129.50 in bills incurred by Billings Neon employees at the Rails Inn. At trial, Billings Neon admitted that it had authorized these bills. Thus, the charges are not at issue in this appeal.

After a one-day bench trial on April 22, 1987, the District Court found that Billings Neon failed to properly install and maintain the signs under the two Johnson leases and to maintain the sign under the Irons lease. The court concluded that Johnson was not liable for any rentals due under the leases subsequent to such failures. The court found, however, that Johnson was liable for the months of April, May and June 1983, under the Irons’ lease, for a total of $780. It also found that Johnson was liable for the $140 advance deposit he failed to pay under the second lease. In addition, the court awarded Johnson $129.50, representing the room and meal charges incurred by the Billings Neon employees. The court refused to grant either party attorney fees. From this judgment, both parties appeal.

Johnson argues that the District Court erred by failing to credit him for rental payments made under the first and second lease agreements. At the same time we consider Johnson’s argument, we must examine the question raised on cross-appeal, that is, whether the District Court erred in ruling that “Billings Neon failed to perform its obligation to properly install and maintain the signs under the two Johnson leases and failed to maintain and repair the sign installed under the Irons lease . . .”

The facts demonstrate that the first lease was canceled and superseded by the second. By mutually canceling the initial agreement and substituting a new one in its place without expressly reserving their rights, the parties extinguished any claims they may have accumulated against each other under the first contract. Harri son Western Corp. v. United States (9th Cir. 1986), 792 F.2d 1391, 1393. Johnson therefore abandoned all claims for rental credit under the initial lease by failing to reserve his rights when he entered into the second.

The cancellation of the first lease precluded the District Court from considering whether either party had breached that agreement. Therefore, the District Court erred in finding that Billings Neon breached the first agreement. This error, however, did no harm to Billings Neon because the District Court failed to award Johnson any damages due to the alleged breach.

The trial court found that Billings Neon breached that part of the second Johnson agreement pertaining to the installation of a remote control for the pylon display clock. Billings Neon argues that this finding was in error, contending that a “remote control setting clock” as specified in the contract referred to a clock that could be reset by a means other than manually changing its hands. From this argument it follows that the installation of a remote control box at any spot away from the face of the clock adequately fulfilled the contractual term and Billings Neon complied with the agreement by installing the controls approximately 10 feet off the ground on one of the display pillars.

Both the first and second Johnson lease agreements specified that the pylon display would include a remote control setting clock. In the second contract, the directions for the installation of the clock stated only, “Remain as installed.”

A district court must interpret a contract in a manner that gives effect to the intent of the parties at the time of the execution of the contract. Section 28-3-301, MCA. The court must ascertain the parties’ intent from the language used in the writing. Section 28-3-303, MCA. When the language of the contract is unambiguous, as it is in the second lease agreement, a resort to parol evidence is unnecessary. Bunke, Inc. v. Johnson (1983), 205 Mont. 125, 137, 666 P.2d 1234, 1240. According to the plain language of the contract, at the time the parties executed the second lease, they had no quarrel with the location of the remote controls for the pylon display clock. The District Court therefore erred in allowing Johnson’s testimony that he understood that the controls for the clock would be installed in the motel office. Billings Neon complied with the terms of the second lease by leaving the remote controls in the pylon display where they were originally installed.

Billings Neon next contends that the District Court erred in finding that it breached the second Johnson lease and the Irons lease by failing to repair the motel and cafe signs after the July 20, 1983 windstorm. Billings Neon argues that the failure of either Johnson or Irons to make monthly payments under these leases relieved it of the obligation to repair the signs.

“The non-payment of an installment of money when due will always create a right of action for that money but it will not always be a total breach. A partial breach by one party . . . does not justify the other party’s subsequent failure to perform; both parties may be guilty of breaches, each having a right to damages.” 4 Corbin on Contracts § 946 (1951). Whether the default of an installment payment constitutes a total breach thereby relieving the non-breaching party of its obligation to perform depends on the facts of each case. Gramm v. Insurance Unlimited (1963), 141 Mont. 456, 461, 378 P.2d 662, 664.

In the present case, both Johnson and Irons failed to remit the monthly rent on their respective leases as the payments came due. Both leases provided that, in the event of default in payment by the lessees, Billings Neon could, at its option and with notice to the lessees, call the entire balance due. Although the leases were in default as of April 1983, Billings Neon failed to exercise the acceleration option until December 12, 1984, over one and one-half years later. In the meantime, the cafe and motel signs were each damaged by the July 20, 1983, windstorm. Billings Neon failed to repair either sign, even though it had actual knowledge of the damage.

The acceleration clause gave Billings Neon the ability to treat the lessees’ failure to pay as a total breach. Billings Neon, however, failed to exercise that option until December 12, 1984. Therefore, prior to the exercise of the acceleration option, Billings Neon treated the non-payment of installments as a partial breach. Hence, as of July 20, 1983, the date on which the signs were damaged, Billing Neon was not excused from performing under the contracts. By failing to comply with the contractual duty to maintain the signs, Billings Neon breached the agreements.

Consequently, as of July 1983, both parties were in breach — Johnson for failing to pay rent, Billings Neon for failing to repair. Accordingly, each was entitled to damages. Under the contracts, Johnson’s remedy for Billings Neon’s breach was a credit on all rentals due after July 1983. Thus, by failing to repair the signs, Billings Neon limited its damages to the three months the motel and cafe signs were in operable condition.

The District Court found Johnson liable, as guarantor of the Irons lease, for three months rent. Johnson does not contest this finding. He does, however, take issue with the District Court’s computation of damages under the second motel sign lease. Johnson contends that he should be liable at most for the three months the motel sign stood atop the Rails Inns. If his liability is calculated in this manner, the damages suffered by Billings Neon equaled only $1,800 — three months rent at $600 per month. However, Johnson paid Billings Neon $3,100 — $1,300 more than $1,800. Johnson argues that the District Court erred by failing to give him credit for the excess amount. We do not agree.

The record reflects that Billings Neon applied $600 of the total $3,100 paid by Johnson to the second sign contract and split the remaining $2,500 between the first sign lease and other accounts Johnson retained with the company. Clearly, Billings Neon erred by applying any of the payments remitted by Johnson after the execution of the second contract to the first lease. As we have stated previously in this Opinion, the failure of the parties to expressly reserve their rights when canceling the initial contract extinguished all claims either party had under that contract. Billings Neon abandoned any right to payments it may have had under the first lease when it signed the second.

We do not hold, however, that the District Court erred by failing to credit Johnson with any monies paid over and above the $1,800 due under the second lease. The record reflects that Johnson kept other accounts with Billings Neon. The checks paid by Johnson do not indicate to which account the payments were directed. When a debtor who owes several obligations to a creditor fails to manifest an intent that he wishes payment to be applied to a particular account, the creditor may apply it to the account of the creditor’s choosing. Section 28-1-1106(3)(d), MCA. Since Johnson did not indicate which account he was paying when he remitted the checks, Billings Neon acted fully within its rights by applying the checks to other service accounts Johnson held with the company.

Johnson also argues that the District Court erred by failing to credit him with the $100 he paid as deductible on his insurance when the windstorm tore the motel sign off its supports and damaged the Rails Inn roof. Under the lease, Billings Neon agreed to carry insurance to indemnify Johnson against claims for damages to property caused by the signs. The evidence demonstrated, however, that the severity of the storm, caused the damage to the roof, not any failure on the part of Billings Neon to properly erect the sign. Therefore, the District Court did not err by failing to credit Johnson with the $100 deductible.

Lastly, Billings Neon maintains that it prevailed in the action because it was awarded a net judgment by the District Court. As the prevailing party, Billings Neon argues, it should have been awarded a reasonable attorney fee as provided by the contract.

Generally, the party who receives the net judgment in an action involving a counterclaim will be considered the prevailing party for purposes of an award of attorney fees. However, this is not always the case. While the award of money is an important factor to consider when determining which party prevailed, it is not the sole focus of the inquiry. E.C.A. Envtl. Management Services, Inc. v. Toenyes (1984), 208 Mont. 336, 345, 679 P.2d 213, 217-18. In a case such as this, where the parties have mutually breached the same contract, the District Court did not err by refusing to grant either party attorney fees.

We affirm the District Court.

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


author: MR. JUSTICE SHEEHY

text:
    The CITY OF MISSOULA, a Montana Municipal Corporation, Plaintiff and Appellant, v. MOUNTAIN WATER CO., a Montana Corporation, Defendant and Respondent, Warren A. Bache, LaMarr Baldwin, Jacqueline D. Beck, Linda D. Dunn, Dennis L. Falk, Sharon R. Fraser, Gary L. Frey, Georgette Gerlack, Shirley S. Guy, Bradley E. Hafar, Diane R. Hamilton, Arvid M. Hiller, M. Susan Hunt, Jerry E. Kirkpatrick, Gerald L. Lukasik, Louis F. McConaughey, Edmond L. Magone, Gary M. Mitchell, Ray W. Mitchell, Richard A. Morse, Michael L. Ogle, Susan L. Ori, Timothy J. Schwenk, Julie K. Stanley, Robert B. Ward and Bonita L. Wilder, Intervenors and Respondents.
    No. 88-148.
    Submitted on Briefs Sept. 23, 1988.
    Decided March 23, 1989.
    771 P.2d 103.

      Dexter Delaney, Mulroney, Delaney & Scott, and Jim Nugent, City Atty., Missoula, for plaintiff and appellant.
    William Evan Jones and Sherman V. Lohn, Garlington, Lohn & Robinson, Missoula, for defendant and respondent.
    William H. Coldiron, Helena, for intervenors and respondents.
    Dan Caderberg, Missoula, for amicus curiae.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

The City of Missoula appeals from a judgment entered January 19, 1988, against the City in which the District Court, Fourth Judicial District, Missoula County, determined that the City had failed to meet its burden of proving by the preponderance of the evidence that it is necessary that the City operate the water system now owned by Mountain Water Company, and that “it is more necessary that the City take over” the Mountain Water Company operation. We affirm the District Court.

The underlying action is an eminent domain proceeding commenced by the City of Missoula to acquire by condemnation the water distribution business conducted in the Missoula area by Mountain Water Company.

This same cause was before us on appeal in City of Missoula v. Mountain Water Co. (Mont. 1987), [288 Mont. 404,] 743 P.2d 590, 44 St.Rep. 1633, where the City was also the appellant. In that cause we affirmed in part, reversed in part, and remanded the cause to the District Court for reconsideration of certain pertinent factors.

Following the remand, the District Court determined that to comply with the order of remand, in further hearings, it would take up the following specific issues and no others:

1. Non-economic factors involved in whether public ownership as compared to private ownership, is necessary and, as a corollary, is more necessary.

2. What consideration must be given to out of state ownership of Mountain Water as opposed to local ownership.

3. The vote of the people and council of Missoula and related questions raised thereby. Specific sub questions:

A. The exact question which was submitted to the voters.

B. How many of the people who voted are users of Mountain Water.

C. Conversely, how many people who voted were not users of Mountain Water.

D. Whether water users outside of Missoula support the City or Mountain Water.

4. Whether ownership by City of Rattlesnake water rights is necessary for future water use and to protect the use of such rights.

Following the foregoing determination of specific issues by the District Court, the City of Missoula petitioned this Court for a writ of supervisory control, objecting to the limitations. This Court denied the issuance of such a writ. Thereafter, the matter came on for trial before the District Court on December 9, 1987.

At the December 9, 1987 hearing, the District Court received evidence from both parties and denied evidence offered by the City which the City preserved by means of offers of proof. On January 19, 1988, the District Court entered its “additional findings of fact, conclusions of law and judgment, after remand” and entered a judgment thereon. From that judgment the City has appealed.

The findings and conclusions of January 19, 1988, include matters taken in evidence at the December 9, 1987 hearing, and also from the first trial of this cause in the District Court. A resume of the facts from the first trial are found in the first Opinion of this Court, 743 P.2d at 591-592. For the purposes of the reader here, it is enough to say that Mountain Water Company is a Montana corporation operating a water distribution system serving 11,720 customers within the Missoula city limits and 4,481 outside of the city limits. Mountain Water Company acquired the Missoula water system from Montana Power Company in 1979. On August 6, 1979, the City passed a resolution declaring its intent to acquire the water system. Five years later, in 1984, the City adopted a further resolution affirming its 1979 resolution and its interest in acquiring the water system. In late 1984, the City brought this condemnation proceeding against Mountain Water. In September, 1985, the question of co-ownership of the water system was approved by the citizens of Missoula as a ballot initiative.

We will state other facts where necessary in connection with the issues discussed hereafter.

DID THE DISTRICT COURT ERR AS TO THE RELEVANCE AND ADMISSIBILITY OF EVIDENCE ON REMAND?

When, as in this case, this Court on appeal affirms in part the judgment of the District Court, and remands for reconsideration other parts of the appeal, those parts of the judgment which are affirmed become the law of the case and are binding upon the trial court and the parties in subsequent proceedings on remand. In Re Stoian’s Estate (1960), 138 Mont. 384, 357 P.2d 41; Ivins v. Hardy (1950), 123 Mont. 513, 217 P.2d 204; Lake v. Emigh (1948), 121 Mont. 87, 190 P.2d 550. In our first Opinion in this cause, this Court found that certain findings were supported by the evidence and included “findings on public savings, on rates and charges, on cooperation between Mountain Water and the City, and on the effect of having Mountain Water’s home office in Missoula.” 743 P.2d at 596. With respect to the Mountain Mater employees, this Court said;

“. . . The undisputed record shows that the City would make reductions in the number of personnel and also reductions in the pay scale of the remaining employees in order that the employees would be paid salaries comparable to other City employees. We do not agree with the District Court conclusion that the ‘City’s calloused plan for Mountain Water’s twenty-six employees, standing alone, is enough to defeat a finding of public necessity.’ We hold that the effect on Mountain Water employees is one factor to be considered in determining whether the acquisition is necessary, but that factor alone is not dispositive.”

743 P.2d at 595.

On remand, the District Court denied the City’s offer of resolution No. 4737, from the city council of Missoula, which stated “it is desirous of retaining the current Mountain Water Company employees living in Missoula County and employed in Missoula as city employees at their current wage or salary compensation with equivalent fringe benefits as established pursuant to Montana state law.” (Emphasis added.)

The offered resolution represents a change in direction of 180 degrees from the evidence offered in the trial preceding our Opinion as to the effect on the Mountain Water Company employees. In that trial, part of the savings claimed by the City, if it were allowed to condemn the water company, came from specified cuts in the wages of each position held at the Mountain Water Company. The City contended that the City could reduce the pay of 20 people employed by Mountain Water by $117,656.00, and replace six Mountain Water employees at a savings of $162,983.00. It was this evidence that this Court held was “undisputed” as to reductions in the number of personnel and reductions in the pay scale. The directive of this Court on remand was that the District Court should consider the effect on Mountain Water employees as one factor to be considered. The District Court was correct in denying the admission of the offered resolution, for its admission would change in part the law of the case established in the Opinion of this Court where we found that the evidence supported the findings on public savings on rates and charges and recognized the effect of having Mountain Water’s home office in Missoula.

On remand, the District Court did, in fact, as directed by us, weigh the effect on employees as one factor in determining public interests. The court found:

“City claims there will be substantial savings to the City resulting in the reduction in the employees’ salaries and the termination of certain other employees. The Court finds City has made assumptions in arriving at these alleged savings which are unrealistic. Nor has the City proved that there will be any savings of any consequence to the City by the proposed reduction in the number of employees and the salaries of the employees remaining at Mountain Water. On the other hand, these proposals would work substantial and severe hardships upon the employees for no real gains. The employees are loyal to Mountain Water and their morale is high. They provide water to the consumers in an exemplary and economical fashion. Rather than being overpaid, the salaries that the employees now receive provide them with a reasonable standard of living. The public interest would not be served by such a detrimental impact upon these employees.”

The City of Missoula does not attack the foregoing finding of fact on this appeal from the judgment on remand. Findings of fact may not be set aside by us unless clearly erroneous. Rule 52(a), M.R.Civ.P.

The City, however, points to two other paragraphs in this Court’s Opinion before remand on which the City relies to open, in effect, the remand to a full blown new trial:

“We also do not agree with the conclusion of the District Court that the ‘prejudicial issues’ of profit and out-of-state ownership ‘demeans the whole process.’ We do not find any legal basis for excluding these facts from consideration on the issue of necessity. We conclude these issues are pertinent to the determination of whether the public interest requires the taking under § 70-30-111, MCA, as it has been broadly drafted and defined. In the absence of a declared policy by the Legislature giving greater or lesser weight to public ownership as compared to private ownership of a water system, these issues must be considered and weighed by the trial court on remand.

“We reverse the judgment of the District Court and remand for reconsideration of all relevant factors, including the vote by the people and the City’s resolution and ordinance.”

743 P.2d at 596.

Purporting to act in accordance with the foregoing paragraphs, the City of Missoula offered to prove, and the District Court denied, on remand, that Mountain Water had received a rate increase from the public service commission following the first trial; that Mountain Water was engaged in litigation with the Public Service Commission for further rate increases; that under City ownership $1,737,951.00 in rate increases by Mountain Water would have been avoided; that under City ownership the City would have realized $1,896,621.00 in surplus over a six year study without Mountain Water’s increases; that if Mountain Water prevails in its pending Lewis and Clark County litigation, the cost to Missoula ratepayers would be an additional $350,000.00 per year; and, that testimony from its experts Howell and Young that the District Court in the first trial “incorrectly and erroneously misunderstood the City’s economic proof’ in certain particulars. At an oral hearing before the Court’s order determining the specific issues, the City also proposed to have its witness testify as to the effect of the 1986 Federal Tax Reform Act on the ratepayers in the system.

Once again the proposed offers of proof from the City would expand the hearing on remand to a new trial and ignore the law of the case as announced in the Opinion of this Court where we sustained the Court’s findings on public savings, on rates and charges, and like material. 743 P.2d at 596.

We uphold the court’s decisions on the admissibility of these types of evidence.

DID THE DISTRICT COURT ERR IN ITS APPRECIATION OF THE NATURE OF A CONDEMNATION PROCEEDING AT THE NECESSITY STAGE?

City of Missoula contends under this caption that the District Court did not appreciate that this cause involved an “evolving economic factual situation” which must be viewed in light of all circumstances which transpired from the original economic analysis of the City which culminated in their expert’s report of October, 1985, and facts which occurred up to the time of remand.

It is on this basis that the City contends that it had the right to prove the elements of evidence to which we have already averred. The argument, however, does not take into account what we have already stated in this matter: those findings of the District Court from the original trial which we found to be supported by the evidence have become the law of the case and need only be considered as factors in connection with the other factors which this Court outlined in its. 1987 Opinion.

The question is novel, and we find no direct authority; but we are guided by the statutory language involving eminent domain proceedings. If the Court in this case had found that the public interest had required the taking of the interest of Mountain Water and its real property, then a preliminary condemnation order, that the condemnation may proceed, would be proper. Section 70-30-206, MCA. For the purposes of assessing just compensation thereafter, the right of the City to take the property would be deemed to have accrued at the date of the service of the summons, and its current fair market value as of that date is the measure of compensation for all property to be actually taken and the basis for depreciation in the current fair market value of property not actually taken but injuriously affected. Section 70-30-302, MCA. Thus, if a condemnation order had issued in this case, Mountain Water would not be allowed to utilize its rate increases subsequent to the date of the service of summons in computing its market value. The factors, therefore, that affect the issue of necessity should, in fairness, be determined as of the same date. Principally, however, we hold here that the effort of the City to reopen the cause ignores the law of the case as established by the prior Opinion of this Court, and was properly denied.

In another instance the City offered evidence that the City claims demonstrated a lack of cooperation between the City and Mountain Water. That, too, was properly denied by the District Court because the first Opinion of this Court found the evidence supported cooperation between Mountain Water and the City. 743 P.2d at 596.

THE DISTRICT COURT OBEYED THE MANDATE OF THIS COURT IN CONSIDERING OTHER FACTORS RELATING TO THE NECESSITY OF THE ACQUISITION

We have already set forth above the weighing by the District Court of the effect on the employees of Mountain Water. The District Court considered that effect as one of the factors, but not as the sole dispositive fact.

Another factor that this Court remanded for reconsideration by the District Court was the effect of the adoption of the resolution by the Missoula City Council, and the vote of the electorate in connection with the condemnation. This Court said:

“. . . However, we hold that upon remand the public interest as expressed in these votes must be considered and weighed with the other factors in determining whether City acquisition of the water system is necessary. In considering the weight to be given to the votes, the court properly may consider that users outside the City could not vote or express their opinion, if those are the facts. The court may also compare the number and identity of voters with the number and identity of the water users.”

743 P.2d at 596.

On remand, the District Court made extensive findings respecting the actions of the city council and of the ballot issue.

In tracing the history of the condemnation, the Court found that when the Montana Power Company, in 1979, decided to dispose of its water system, a power company representative and a representative of the holding company of Mountain Water, and the Mayor of Missoula, and members of his staff, met. The purpose was to determine if the City was interested in purchasing the company. The Court found that the City then did not express any interest in purchasing the system and eventually the other buyer acquired the system. On August 6, 1979, the City passed a resolution declaring its intent to acquire the system. No further official action was taken on the resolution until October, 1984. The evidence clearly showed knowledge by the city commission of the acquisition of the Water system by Mountain Water. During the period to 1984, Mountain Water engaged in long deferred maintenance of the system. In 1984, the city council reaffirmed by resolution its intention to acquire the system and commence condemnation proceedings.

In September, 1985, a ballot initiative to stop the condemnation proceedings was put to a public vote. The question presented on the ballot was whether the City voters would prohibit the City from purchasing Mountain Water. The District Court, on remand, found that the ballot was not accurate because it stated the wrong owner of the water system. Only 42 percent of all the persons registered to vote voted at the election. A total of 4,006 voted to support the City and 3,474 voted against the City. In 23 precincts within the City of Missoula which exclusively used Mountain Water, 3,339 supported the City and 2,744 voted against the City’s efforts. In the 9 precincts within the City only partially served by Mountain Water, 626 supported the City and 704 supported Mountain Water. Considerable funds were spent on each side respecting the ballot issue. The District Court concluded that a turnout of 42 percent of eligible voters demonstrated that the ownership by the public was not an important issue in the minds of most city residents.

The District Court further found that it could not determine the positions of persons outside the City with certainty. It did point to a loss of substantial tax revenue to the county and the school districts as a result of the condemnation. It pointed to evidence at the first trial of a concern that the City would use the water to force annexation of areas outside the city.

Another factor which this Court directed the District Court to consider on remand was the importance of the City obtaining ownership of water rights itself, in order that the City may insure its inhabitants of long-range access to water. The District Court, in its findings on remand, found that the water from the Rattlesnake is not necessary to the system and that a more than adequate supply of water is available from existing wells. The District Court pointed to an incident in 1949 when the whole city of Missoula was without water for 11 days because the entire water system was frozen. The cause of the freezing was that the surface water from Rattlesnake Creek, which entered the water system at temperatures as low as 31 degrees fahrenheit, had the effect of freezing the entire system. Whereas, well water, pumped from a greater depth, has a higher temperature and is more desirable because it poses less danger of freezing the whole system.

With respect to public versus private ownership of the system, the District Court found that Mountain Water would spend $1.5 million on capital improvements to the system over the next five years. The city maintained that it could operate the system with less than $0.5 million each year in capital improvements. The District Court found that projection unrealistic. If the City limited itself to $0.5 million, the result would be a steadily declining water system with problems occurring more and more frequently. The Court also found that the profit realized by Mountain Water was regulated by Montana Public Service Commission which assures that utilities will not make excessive profits at the expense of the service provided to the consumer. The profit incentive is one of the reasons for the continuing efficiency of the system of Mountain Water, its annual improvements, and the overall exemplary services provided to the consumers.

As to the City’s contention that it would act in the best interests of Missoula consumers, which would not be true of an out-of-state owner of the system, the District Court pointed out that there was no evidence that Mountain Water service is less than that rendered by any other water company or that the City could give better service and that Mountain Water’s quick response to the giardia infestation demonstrates a concern for the health of the citizens of Missoula who use this water.

As to whether a privately-owned company should own the water supply for the City of Missoula and whether those rights should be controlled by the citizens themselves and their elective government, the Court found no evidence which showed that the citizens’ long-range access to supplies of water would be endangered by the continued ownership by Mountain Water. The District Court pointed to the history of the ownership after Mountain Water took over from the Montana Power Company. It rebuilt and re-equipped the water system to infuse capital into the Missoula economy. The District Court catalogued this history for the years 1979 through 1985. The Court found that the citizens long-range access to water was assured through the continued ownership by Mountain Water and that there was no substantial proof to the contrary.

None of the foregoing findings is attacked by the City as being unsupported by evidence, or clearly erroneous under Rule 52(a), M.R.Civ.P. The findings are, therefore, binding upon us.

THE CITY’S AUTHORITY TO CONDEMN IS THE SOVEREIGN’S RIGHT OF EMINENT DOMAIN

The City raises two additional issues of law respecting the City’s authority to condemn and the right of the sovereign to eminent domain. The issues are precluded, however, because they were determined by this Court in its first Opinion.

In stating the effect of the Montana statutes relating to eminent domain, this Court said:

“The District Court must determine, under part (2), whether it is ‘necessary’ that the water system be taken by the City. This Court has defined ‘necessary’ under this statute as reasonable, requisite, and proper means to accomplish the improvement. (Citing authority.) We recognize that two questions are involved: 1) Is it necessary that the City have its own water system? and, 2) Must the City take Mountain Water’s property in order to have its own system? Unlike the typical case involving condemnation of land for a highway, the first question here is not whether it is necessary to have the improvement, but whether it is necessary to have the improvement operated by the City instead of by private industry.

“Under part (3), the District Court must determine whether the proposed use is ‘more necessary’ than the present use. That the water already has been appropriated to a public use cannot be disputed given the broad interpretation of ‘appropriation to a public use’ in the eminent domain statutes. See §§ 70-30-102 and 203, MCA. (Citing authority.)

743 P.2d at 595.

On remand, the District Court followed our mandate, and based on its findings, concluded:

“1. Section 7-13-4404, M.C.A., provides:

“Before property can be taken, City must show by a preponderance of evidence that the public interest requires the taking based on the following findings:

“(1) that the use to which it is to be applied is a use authorized by law;

“(2) that the taking is necessary to such use;

“(3) if already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use.

“Considering relevant factors set out in the original findings, and these findings, including the City resolution and the public vote, the Court concludes that the City has failed to meet its burden of proving by a preponderance of the evidence that it is necessary that the City operate the Mountain Water system. Since this property is already a public utility, and hence to some degree dedicated already to a public use, it is not more necessary the City take over its operation. The public interest will be best served by the City not being permitted to condemn Mountain Water.

“2. Having failed to carry its burden of proof, the Court now denies the City relief in this proceeding.”

The decision of this Court on a former appeal, whether right or wrong, is binding alike on parties and courts in the same action. Little v. Little (1953), 127 Mont. 152, 259 P.2d 343; State ex rel. Great Northern Railway Company v. State Board of Equalization (1952), 126 Mont. 187, 246 P.2d 220; Apple v. Edwards (1949), 123 Mont. 135, 211 P.2d 138.

We hold, therefore, that the District Court properly considered the issues referred to on remand by this Court and considered those factors in determining that the City of Missoula had not established a right to condemnation of the property of Mountain Water Company. We, therefore, affirm the judgment of the District Court.

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

MR. JUSTICE HUNT did not participate.


author: MR. CHIEF JUSTICE TURNAGE

text:
    JANICE A. NILES, Plaintiff and Appellant, v. BIG SKY EYEWEAR, a/k/a Professional Eyecare, Leonard E. Vainio, an individual, and David G. Vainio, and individual, Defendants and Respondents.
    No. 88-428.
    Submitted March 7, 1989.
    Decided March 30, 1989.
    771 P.2d 114.

      Monte D. Beck argued, Bozeman, Joe Bottomly argued, Bottomly Law Offices, Great Falls, for plaintiff and appellant.
    Moore, O’Connell, Refling & Moon, Christopher L. Manos argued, Bozeman, for defendants and respondents.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Defendants appeal a $470,000 jury verdict for their former employee Janice A. Niles on her claims of defamation, negligent infliction of emotional distress, wrongful termination, and breach of the covenant of good faith. Plaintiff cross-appeals the District Court’s denial of punitive damages and its dismissal of defendant David G. Vainio in his individual capacity. We affirm the judgment in all respects.

The issues are:

1. Did the District Court err in dismissing David Vainio, a partner of Professional Eyecare, from the suit in his individual capacity?

2. Did the court err in striking the plaintiffs claim for punitive damages?

3. Did the court err in denying defendants’ motions for a directed verdict and a new trial on defamation?

4. Did the court err in denying defendants’ motions for a directed verdict and a new trial on wrongful termination?

5. Did the court err in allowing expert testimony on good faith and fair dealing and in not giving jury instructions on defendants’ actions in good faith?

6. Did the court err in denying a new trial after refusing to allow defendants to present evidence of comparable employment?

7. Did the court err in giving a jury instruction on legal cause rather than proximate cause?

8. Did the court err in denying a new trial after refusing to allow certain cross-examination of plaintiff’s expert on emotional distress?

9. Did the court err in denying defendants’ motions for directed verdict and a new trial on negligent infliction of emotional distress?

Defendants own a chain of optical stores. Dr. Leonard Vainio was responsible for the Bozeman store where, beginning in November 1984, plaintiff Janice A. Niles worked. By April 1986, Niles had received several wage increases and was acting as manager of the store.

In April 1986, Leonard Vainio told his accountant Gerry Baker that another employee had seen Niles taking money from the till at the Bozeman store. Vainio and Baker went to the police. On May 1, 1986, two police officers made an attempted “sting,” purchasing a pair of sunglasses from Niles with marked bills. They saw her put the money into the till, but noted that she did not record the sale on the “day sheet,” an omission which Leonard Vainio had led them to believe was important. Based on what they had seen and what they had been told, the officers felt they had probable cause to make an arrest.

At 4:30 that afternoon, Niles was arrested as she was leaving work. She was questioned at the police station for about two hours. The police did not find the marked bills in her possession, but Niles did have a large amount of cash. She explained that most of it was from cashing her husband’s paycheck that day and that $60 of it was from the optical store because she was on her way to UPS to pick up a C.O.D. package for the store. Niles was charged with misdemeanor theft of the $12 from the sunglasses. This charge depended upon Leonard Vainio’s statements that his records would show $12 missing.

Niles did not return to work at the optical store. Leonard Vainio promoted his girlfriend to manager of the store. The criminal proceedings were eventually dropped when defendants failed to supply the records necessary to support prosecution. Niles was forced to go through the Department of Labor and then judicially-ordered “till-taps” of the defendants’ business to get her final paycheck.

At trial, Niles presented testimony by several former employees of Professional Eyecare that she was a good and respected employee and that defendants’ money-handling and record-keeping practices were shoddy and haphazard. The optical shop employee who Leonard Vainio claimed had reported seeing Niles take money from the till testified by deposition. She emphatically denied that she ever made such a report to Leonard Vainio. Niles presented evidence of her emotional and economic suffering as a result of this ordeal. In a general verdict, the jury awarded Niles $470,000 in damages.

ISSUE I
Did the court err in dismissing David Vainio, a partner of Professional Eyecare, from the suit in his individual capacity?

At the close of Niles’ case-in-chief, the trial court granted directed verdicts for defendant David Vainio on the issue of his individual liability. Niles argues on appeal that this is error under partnership liability law in Montana.

Under Montana law, a partnership is liable for any wrongful acts of its partners performed in the course of business activity. Section 35-10-305, MCA. Partners are jointly and severally liable for everything chargeable to the partnership under § 35-10-305, MCA. Section 35-10-307, MCA. It was undisputed at trial that David and Leonard Vainio were doing business as a partnership.

There was no evidence that David Vainio was personally involved with any of the wrongful acts claimed by plaintiff. This does not affect his liability as a partner. We hold that the court did not err.

ISSUE II
Did the court err in striking the plaintiff’s claim for punitive damages?

Niles argues that the evidence presented at trial would support submitting the issue of punitive damages to the jury based on the misrepresentations and false information Leonard Vainio gave to the police. She also contends that various other testimony could support a finding of the malice, oppression, and fraud necessary to support punitive damages.

Section 27-1-221, MCA (1985), governs the award of punitive damages in this case. It provides at Subsection (1) that punitive damages may be awarded in a noncontract action where the defendant has been guilty of oppression, fraud, or malice, actual or presumed. At Subsection (2) it provides that “[t]he jury may not award exemplary or punitive damages unless the plaintiff has proved all elements of the claim for exemplary or punitive damages by clear and convincing evidence.” At Subsection (4), the statute provides that the plaintiff may not present to the jury evidence of defendant’s financial affairs or net worth unless the judge rules that the plaintiff has presented a prima facie claim for punitive damages.

The court made its ruling striking Niles’s claim for punitive damages at the close of trial, just before jury instructions were settled. The court stated:

“Our major problem is punitive damages. I don’t see a punitive damage case here. You’ve got a real question of fact to show that there has been actual damages. You have to convince the jury there is a discharge. She hadn’t say [sic] she was fired. We didn’t hear anybody else say that. See my point? The evidence I have heard here indicates there is some serious question of fact for the jury has to resolve as to what happened. Certainly, you are restricted to what happened up until the time of the firing. The evidence after that time has nothing to do with it. Do you agree with that?

“That is a point you can argue. I don’t think it’s a punitive damage case and I am granting the motion, punitive damages are out.”

In ruling on a motion for directed verdict, the trial court must view the evidence in the light most favorable to the nonmoving party. Mydlarz v. Palmer/Duncan Const. Co. (1984), 209 Mont. 325, 345, 682 P.2d 695, 705. After reviewing the evidence, we cannot say that the District Court erred in ruling that Niles had not presented a prima facie case including clear and convincing evidence of all elements of her claim, as required under the statute. We therefore hold that the court did not err in striking the claim for punitive damages.

ISSUE III
Did the court err in denying defendants’ motions for a directed verdict and a new trial on defamation?

Defendants contend that Leonard Vainio’s statements to the police which are claimed to be defamatory are qualifiedly privileged because they were made in good faith. They argue that the District Court erred in denying their motions for a directed verdict and a new trial on this issue.

Citing the Restatement of Torts and case law from Alaska and Kansas, defendants assert that a qualified privilege exists for a statement made by an employer about an employee for the protection of a lawful business. However, the qualified privilege is waived if it is abused. Restatement (Second) of Torts, Section 599 (1977). Abuse of a qualified privilege is an issue of fact to be decided by the jury. Restatement (Second) of Torts, Section 619 (1977). Defendants did not offer a jury instruction on qualified privilege, instead using the defense that the statements made were true.

This Court has held that an unsolicited complaint to the police is not privileged under § 27-1-804, MCA. Shors v. Branch (Mont. 1986), [221 Mont. 390,] 720 P.2d 239, 245, 43 St.Rep. 919, 925. Moreover, the record contains substantial evidence that Leonard Vainio waived any conditional privilege to which defendants were entitled by making his statements without good faith. We hold that there was no error on the issue of defamation.

ISSUE IV
Did the court err in denying defendants’ motion for a directed verdict and a new trial on wrongful termination?

Defendants argue that there was no issue of fact regarding any actual termination of Niles and that reliance on a theory of constructive discharge is misplaced because the totality of the circumstances do not support such a claim. However, a doctrine of constructive discharge has been recognized in Montana. Snell v. Montana-Dakota Utilities Co. (1982), 198 Mont. 56, 643 P.2d 841. It is a question of fact whether by action or inaction an employer has rendered working conditions so oppressive that resignation is the only reasonable alternative. Snell, 643 P.2d at 846.

The jury heard the testimony that Leonard Vainio and his accountant were the instigators of the criminal charge filed against Niles which led to her arrest at her place of work. No speculation is required for the jury to conclude that when an employer causes the arrest of his employee on a charge of theft from the employer that the employee has been constructively fired. It defies human experience to believe that Niles would reappear for work the next workday following her arrest. We hold that the record supports submitting to the jury the question of whether Niles was effectively discharged from employment.

ISSUE V
Did the court err in allowing expert testimony on good faith and fair dealing and in not giving jury instructions on defendants’ actions in good faith?

Defendants maintain that it was error to allow expert testimony on good faith and fair dealing. Their position is that this invaded the province of the jury. However, this Court has explicitly approved of expert testimony on breach of the covenant of good faith and fair dealing. Crenshaw v. Bozeman Deaconess Hosp. (1984), 213 Mont. 488, 502, 693 P.2d 487, 494. “Fault arising from breach of implied covenant of good faith and fair dealing is not easily comprehensible to the average person.” Crenshaw, 693 P.2d at 494.

The defendants also argue that, when read in combination, the instructions given on good faith and fair dealing effectively rendered a directed verdict on the issue. They mention instruction No. 14, which sets forth the elements of proof of breach of the implied covenant of good faith and fair dealing, instruction No. 16, which states that a covenant of good faith and fair dealing existed between Niles and defendants, and instruction No. 26, which describes unjustifiably withholding wages from an employee as against public policy. We find no error. The court properly instructed the jury on the reciprocal duty of good faith and fair dealing between employer and employee.

Finally, defendants argue that the court should have given instructions on whether they acted in good faith in discharging Niles. In instruction No. 21, the jury was properly instructed that:

“[a]ny employment may be terminated at anytime by an employer in the event of any willful breach of duty by the employee in the course of employment or if the employee habitually neglects or is incapable of performing the duties of the employment. However, an employer has a duty to act in good faith and deal fairly in discharging an employee.”

We find no error.

ISSUE VI
Did the court err in denying a new trial after refusing to allow defendants to present evidence of comparable employment?

This issue refers to the court’s exclusion of evidence about defendants’ offer to re-employ Niles. The offer was made in February or March of 1987, before litigation had commenced but while the complaint was being drafted. The evidence was excluded pursuant to Niles’s motion in limine. Defendants argue that because the offer was made prior to the filing of the lawsuit, it was not part of compromise negotiations. They claim that the trial court abused its discretion in prohibiting testimony on the offer of re-employment.

Rule 408, M.R.Evid., provides that offers or acceptances in compromise of a disputed claim are not admissible into evidence to prove liability for or invalidity of the claim or its amount. The rule does not clarify whether litigation must be in progress before it takes effect. In this case, at the time the job offer was made, both parties had hired attorneys and a draft of the complaint had been sent to defendants’ attorney. It was certainly clear at that time that Niles had a claim against defendants. We conclude that this offer in compromise was within the purview of Rule 408, M.R.Evid. Therefore, the court did not err in excluding evidence about it.

ISSUE VII
Did the court err in giving a jury instruction on legal cause rather than proximate cause?

Instruction No. 11 to the jury stated that “[a] legal cause of the injury is a cause which is a substantial factor in bringing it about.” Defendants argue that the jury should have been instructed on the “but for” test instead of the “substantial factor” test because only one defendant remained after David Vainio was dismissed as a defendant.

It was defendants’ position at trial that this was a joint tortfeasor situation involving both defendants and the police. They argued that Niles’s damages were caused by her arrest. The “substantial factor,” or legal cause, test is appropriate where the acts of each of several persons acting separately might have been sufficient to produce the result. Young v. Flathead County (Mont. 1988), [232 Mont. 274,] 757 P.2d 772, 777, 45 St.Rep. 1047, 1053. We conclude that giving the instruction on legal cause was not error.

ISSUE VIII
Did the court err in denying a new trial after refusing to allow certain cross-examination of plaintiff’s expert on emotional distress?

Dr. Seitz, a clinical psychologist, examined Niles one month prior to trial. He testified on the issue of her emotional and mental distress resulting from defendants’ actions. The court prohibited defendants from cross-examining Dr. Seitz on a portion of his notes which indicated that Niles had told him that the daughter of Baker, the accountant, had tried to get into Niles’s house twice. Defendants argue that Dr. Seitz ‘s notes on the subject of Baker’s daughter go to the bases for his conclusion and to Niles’s credibility.

Determination of relevance of testimony, including expert testimony, is subject to the trial court’s discretion. Cash v. Otis Elevator Co. (1984), 210 Mont. 319, 332, 684 P.2d 1041, 1048. In examining the record, we do not find that the District Court abused its discretion in prohibiting the question about the statement regarding Baker’s daughter. Neither Baker’s daughter nor Baker were defendants. The statements about attempted entries were not brought up in direct examination nor did defendants’ counsel make an offer of proof of what the evidence would show.

Defendants also argue that they should have been allowed to cross-examine Dr. Seitz on the effect on Niles if she had been reemployed by them. That matter is disposed of in the discussion under Issue VI above. We hold that the lower court did not err in refusing to allow the desired cross-examination of Dr. Seitz.

ISSUE IX
Did the court err in denying defendants’ motions for directed verdict and a new trial on negligent infliction of emotional distress?

Defendants argue that emotional distress is not a distinct cause of action in this case and that the conduct of Leonard Vainio does not form an adequate basis for compensation for emotional distress. They maintain that the court should have allowed a directed verdict on this issue. They also argue that the tort of negligent infliction of emotional distress can only be claimed by a plaintiff other than the victim. Defendants are mistaken in their understanding of the law of negligent infliction of emotional distress.

Where there is evidence of substantial invasion of a legally protected interest which causes a significant impact upon the person of the plaintiff, emotional distress is compensable without showing of physical or mental injury. Johnson v. Supersave Markets, Inc. (1984), 211 Mont. 465, 473, 686 P.2d 209, 213. Niles presented evidence that she was depressed and withdrawn after this incident. Dr. Seitz testified that he diagnosed her as suffering from post-traumatic stress disorder. Niles’s husband testified that her personality had changed and that their marriage had suffered as a result of defendants’ actions. We conclude that the District Court did not err in denying defendants’ motions on the cause of action for negligent infliction of emotional distress.

We affirm the judgment on the verdict against Leonard E. Vainio as an individual and the partnership of Leonard E. Vainio and David G. Vainio under the name of Big Sky Eyewear, a/k/a Professional Eyecare.

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


author: MR. JUSTICE McDONOUGH

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WILLIAM LEE SEAMAN, Defendant and Appellant.
    No. 88-439.
    Submitted on Briefs Feb. 16, 1989.
    Decided March 30, 1989.
    771 P.2d 950.

      Deirdre Caughlan, Dunlap & Caughlan, Butte, for defendant and appellant.
    Marc Racicot, Atty. Gen., Kathy Seeley, Asst. Atty. Gen., Helena, Robert M. McCarthy, Co. Atty., William O’Leary, Deputy Co. Atty., Butte, for plaintiff and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This appeal arises from the conviction for possession of dangerous drugs of appellant William Seaman in the Second Judicial District, Silver Bow County. We affirm.

Issues

(1) Whether the police lacked probable cause to search Seaman’s residence?

(2) Whether the search of Seaman’s residence was overly intrusive?

(3) Whether police testimony constituted grounds for declaring a mistrial?

(4) Whether the speed with which the jury delivered its verdict demonstrates the jury did not follow or read the instructions, consider the evidence or follow their charge?

Facts

Undersheriff Joe Lee told Detective John Walsh that three reliable informants had provided information indicating a probability that Seaman was engaged in illegal activity. All three informants told Lee that Seaman was selling heroin in Butte for $40.00 a “bag”. One of the informants gave police a list of individuals who had purchased heroin from Seaman. Another of the informants provided a description and address for Seaman’s residence, and stated that Seaman currently possessed a quantity of heroin and opium at that residence.

The first informant gave information on Seaman’s activities on December 29, 1987. The second informant revealed information on Seaman on January 7, 1988. The third spoke to police on January 21, 1988, concerning the sale of heroin by Seaman.

Lee communicated the information from the informants to Detective Walsh. Walsh incorporated this information in his Application for Search Warrant to Justice of the Peace M. A. Bartholomew on January 21, 1988. The application also included sworn statements by Detective Walsh that: the informants had provided reliable information to law enforcement officials in the past; that the activities described were consistent with information possessed by Butte officials on the drug trade currently and for the past ten years in Butte; and that a check with Mountain Bell Telephone Company and Montana Power Company indicated the presence of Seaman’s wife, Lorraine Seaman, at the residence on 1117 Maryland Avenue, Butte, Montana.

On January 21, 1988, Justice of the Peace Bartholomew found from the application that probable cause existed for issuing a warrant authorizing a search of the residence on 1117 Maryland Avenue, Butte, Montana. On the same day Detective Walsh and several other officers went to the home and executed the warrant. Lorraine Seaman and her seven year old son answered to Walsh’s knock on the door, and Walsh and the other officers entered after informing Mrs. Seaman that they possessed authority to search.

Evidence presented at trial revealed the following: Walsh “secured” the area by walking through the house with his gun drawn and pointed at an angle toward the floor. He first encountered Mrs. Seaman’s father, Harry Nygard, who had come to the house that day to perform repairs on the freezer. Mr. Nygard and the Seaman youngster were ordered by police to sit on a bed located in the house while police continued the search. Walsh discovered the defendant in the bathroom after hearing the toilet flush. He ordered Seaman out of the bathroom and searched the area. In a basket on top of the washing machine Walsh found syringes filled with a brownish liquid. Walsh also found a small container holding a dark tar-like substance in an open towel cabinet in the bathroom. Both substances were identified at trial by a state’s witness as heroin. Walsh also found items suspected to be drug paraphernalia.

Seaman asked Walsh what he was looking for directly after or during the time Walsh searched the bathroom. Walsh replied, “heroin,” and Seaman responded, “you got me.”

During the search Mr. Nygard collapsed from an apparent heart attack. Police officers called for an ambulance and attempted to revive Mr. Nygard. Mr. Nygard was taken to the hospital and died later that night.

I.

Seaman contends that under the constitutional requirements prohibiting unreasonable searches and seizures, and under § 46-5-202(1)(b), MCA, requiring facts sufficient to demonstrate probable cause prior to issuance of a warrant, the District Court erred in denying his suppression motion. There are several contentions advanced by Seaman under this issue. First, he contends Undersheriff Lee rather than Detective Walsh should have sworn to the information in the application. See State ex rel. Sanford v. District Court (1976), 170 Mont. 196, 551 P.2d 1005. In Sanford this Court ordered suppression of evidence generated through a warrant issued to “any Peace Officer of this State.”

Seaman also contends that the totality of the circumstances fails to support a finding of probable cause. Seaman further argues that the lower court should have ordered the State to reveal the identities of the informants, and that the search was overly intrusive because abusive police conduct resulted in the death of Harry Nygard.

A. The applicability of Sanford: Seaman contends that Sanford mandated exclusion of the evidence from the search. The warrant was defective in Sanford because § 95-703 R.C.M. 1947, now § 46-5-201, MCA, requires that a search warrant be directed to a peace officer. As explained in State v. Snyder (1975) (Daly, J., concurring), 168 Mont. 220, 231, 541 P.2d 1204, 1210, the mandate that the warrant be directed to a particular officer accords with the plain language of the statute, and with the mandate of another statute; § 95-707 R.C.M.1947, now § 46-5-205, MCA, that the warrant be served by one of the officers mentioned in its direction. In this case, Walsh applied for the warrant, the warrant named Walsh, and Walsh served the warrant. Thus, the police in this case followed the statutory procedure, and Sanford is inapplicable.

B. The totality of the circumstances: In State v. Sundberg (Mont. 1988), [235 Mont. 115,] 765 P.2d 736, 45 St.Rep. 2235, this Court discussed the requirements for finding probable cause from an application for a warrant:

“In [State v. ]Jensen, (1985), 217 Mont. 272, 704 P.2d 45, 42 St.Rep. 1191], this court decreed that the test for determining probable cause for issuance of a search warrant is the ‘totality of the circumstances’ test set forth in Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527.

“Probable cause to justify search warrants is a sufficient showing that incriminating items, namely items reasonably believed to be connected with criminal behavior, are located on the property to which entry is sought. It does not require that the occupant be guilty of any offense and need only be supported by probable cause to believe that the items sought will be found in the place to be searched and that these are seizable by being adequately connected with criminal behavior. [Citation omitted] Probable cause, defining the point at which the individual’s interest in privacy must yield to the governmental interest in investigating criminal behavior by searching for incriminating items, is a practical, nontechnical concept of criminal procedure . . . ‘Probable cause’ is not a prima facie showing of criminal activity, but only its probability. [Citation omitted.] Considerably less evidence is required for the issuance of an arrest or search warrant than for conviction; and legally unimpeachable findings of probable cause can rest upon evidence, for instance hearsay, which is not legally admissible at the criminal trial itself.” Sundberg, 765 P.2d at 738.

Under the totality of the circumstances test, the veracity, reliability, and basis of knowledge of informants remains highly relevant to determining probable cause from the reports of such informants. Gates, 462 U.S. at 230, 103 S.Ct. at 2328. Seaman contends that the double hearsay nature of the information contained in the application, coupled with the lack of information on the reliability of the informants, demonstrates lack of probable cause under the totality of the circumstances test.

The hearsay nature of the link between information provided by Undersheriff Lee to Detective Walsh does not invalidate the finding of probable cause in this case:

“Observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number.”

United States v. Ventresca (1965), 380 U.S. 102, 111, 85 S.Ct. 741, 747, 13 L.Ed.2d 684. To enable the magistrate to make an independent probable cause determination, and to meet the requirement of particularity, it is:

“sufficient if the affidavit recites at the outset, or if it is clear from reading the affidavit as a whole, that it is based in part upon information obtained from other law enforcement officers.”

United States v. Kirk (11th Cir. 1986), 781 F.2d 1498, 1505. Walsh swore that the information in the application had been provided to “Butte Law Enforcement Agency Detectives”. Thus, the application demonstrates that Walsh relied on information provided by other officers.

Seaman also objects to the application on the grounds that the informants were not shown to be reliable. We hold that the application sufficiently shows the informants’ reliability and basis of knowledge. Walsh swore that the informants had provided reliable information in the past. He also stated in the application that one of the informants had extensive knowledge of the drug trade in Butte. The informants described the same criminal conduct on the part of Seaman, e.g., selling heroin in “bags” for $40.00 each over a period of three weeks prior to issuance of the warrant. The list of purchasers from Seaman, and one informant’s knowledge of Seaman’s address, also supported the application. Thus, facts in the application demonstrated the informants’ reliability and basis of knowledge for reporting the existence of criminal activity by Seaman.

C. Identities of the Informants: Seaman argues that the trial court erred in failing to order the State to disclose the identities of the informants. To support this argument, Seaman cites State v. Chapman (1984), 209 Mont. 57, 679 P.2d 1210. In Chapman, this Court refused to allow the State to claim the privilege of withholding an informant’s location and identity because the informant played a continuous and primary role in the crime, and fundamental fairness required disclosure because the informant’s testimony was relevant to the defendant’s entrapment defense. Chapman, 679 P.2d at 1215. Similarly, in State ex rel Offerdahl v. Dist. Ct. of Eighth Jud. Dist. (1971), 156 Mont. 432, 481 P.2d 338, this Court agreed with the trial court that the informant must be disclosed because the informant’s testimony would determine the defendant’s guilt or innocence. Offerdahl, 481 P.2d at 342.

Seaman makes a different argument. He contends that disclosure of the identities was necessary for determining probable cause. The lower court failed to recognize the distinction between “citizen informants” and informants who themselves are involved in illegal activity, according to Seaman. At the suppression hearing Undersheriff Lee testified that the informants had previously been involved in illegal drug activities.

Rule 502, M.R.Evid., provides the State a privilege to refuse to disclose an informant’s identity. The privilege provides confidentiality to encourage reports of criminal activity. Commission Comments, Rule 502, M.R.Evid. Where the defendant claims disclosure is necessary for presenting an effective defense, trial courts must engage in the balancing test from Roviaro v. United States (1957), 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639. The test provides no fixed rule, and in each particular case trial courts must weigh the defendant’s needs against the public’s interest in the flow of information from informants. Roviaro, 353 U.S. at 62, 77 S.Ct. at 628. Trial courts should take into consideration the crime charged, the possible defenses, the possible significance of the informant’s testimony, and other relevant factors in balancing the conflicting interests. Commission Comments, Rule 502, M.R.Evid.

We have already held here that the reliability and basis of knowledge of the informants was established within the application. If the law required disclosure of identities and locations of informants to further test

“the truth of the officer’s statement that there is an informant or as to what the informant related or as to the informant’s reliability, we can be sure that every defendant will demand disclosure .... The result would be that the State could use the informant’s information only as a lead and could search only if it could gather adequate evidence of probable cause apart from the informant’s data. Perhaps that approach would sharpen investigatorial techniques, but we doubt that there would be enough talent and time to cope with crime upon that basis. Rather we accept the premise that the informer is a vital part of society’s defensive arsenal.”

McCray v. Illinois, 386 U.S. 300, 306-07, 87 S.Ct. 1056, 1060, 18 L.Ed.2d 62, 68 (quoting State v. Burnett (1964), 42 N.J. 377, 201 A.2d 39). The Court in McCray also cited Burnett for the proposition that it should rest entirely with the judge who hears the motion to suppress to decide whether he needs such disclosure as to the informant in order to decide whether the officer is a believable witness. McCray, 386 U.S. at 308, 87 S.Ct. at 1061. This Court adopted the reasoning from McCray in State v. Sykes (Mont. 1983), [___ Mont. ___,] 663 P.2d 691, 40 St.Rep. 690. Seaman’s only argument goes to discrediting Undersheriff Lee’s assertion that the informants existed and that they provided reliable information. Under these circumstances, we hold that the District Court acted within its discretion in refusing to order disclosure.

We also reject Seaman’s staleness argument. Information provided by the application stated that Seaman’s current peddling of heroin for $40.00 a “bag” was consistent with illegal drug activities in Butte over the past ten years. The application sufficiently set forth probable cause without the assertion that the current activity resembled familiar patterns of the drug trade in Butte. The added information only supplemented the reliability of the current report.

II.

Seaman argues that the death of Mr. Nygard during the search proves the search was overly intrusive. There is very little evidence that police misbehavior precipitated Mr. Nygard’s death. Mrs. Seaman testified that she heard a struggle in the room where Mr. Nygard was seated prior to his collapse. Undersheriff Lee testified he stood in front of Mr. Nygard at the time he collapsed. Lee also stated he thought Mr. Nygard fainted, and that police immediately initiated medical procedures for reviving Mr. Nygard. Thus, this claim is unsupported and provides no basis for excluding evidence.

III.

Seaman contends that the lower court erred in refusing to grant his motion for a mistrial. The alleged grounds for the motion sprung from the testimony of Detective Walsh on finding the syringe containing heroin in a basket in the bathroom. Walsh testified as follows:

“Q Did you at any time search the wicker basket?

“A The following day, yes I did.

“Q Did you find anything at that time in the wicker basket?

“A Again, like I stated, we found the syringes. There were two syringes that were full of this brown liquid. Again, there was other drug paraphernalia there, but that’s what we observed.

“There was also another item of drug evidence, tincture of opium.

“MS. CAUGHLAN [defendant’s counsel]: Your honor, we are going to interpose an objection here.

“THE COURT: Sustained. Are you moving to strike the answer?

“MS. CAUGHLAN: I move to strike the answer.

“THE COURT: The answer is stricken. I instruct the jury to disregard his answer.”

Seaman’s counsel in moving for a mistrial contended that the mention of opium violated the trial court’s order prohibiting introduction of other bad acts or crimes, and prejudiced Seaman’s right to a fair trial. The lower court denied the motion holding it was sufficient to sustain the objection, strike the testimony from the record, and order the jury to disregard the evidence.

Trial courts properly grant mistrials when, taking all circumstances into consideration, there exists a manifest necessity to do so. State v. Scheffelman (Mont. 1987), [225 Mont. 408,] 733 P.2d 348, 44 St.Rep. 357. This Court’s review of a trial court’s denial of a motion for a mistrial is limited to deciding whether the lower court abused its discretion in refusing the motion. Scheffelman, 733 P.2d at 350. The trial court occupies the best position to gauge the reaction of jurors to inadmissible evidence for determining necessity to order a mistrial. State v. Smith (Mont. 1986), [220 Mont. 364,] 715 P.2d 1301, 43 St.Rep. 449. Mistrials may be properly granted for introduction of inadmissible evidence resulting in harmful error likely to affect the justice of the verdict. State v. LaVe (1977), 174 Mont. 401, 571 P. 2d 97. Only where there is a reasonable possibility that inadmissible evidence contributed to the conviction is there reversible error in denying the motion. State v. Brush (Mont. 1987), [228 Mont. 247,] 741 P.2d 1333, 44 St.Rep. 1495. Where the party opposing admission of evidence objects to offered evidence, and the trial court sustains the objection, strikes the evidence from the record, and instructs the jury to disregard the evidence, “error committed by its introduction is presumed cured.” Brush, 741 P.2d at 1335.

The presumption here favors finding no prejudice because the lower court admonished the jury to disregard the statement after sustaining Seaman’s objection to the testimony. Moreover, Walsh properly testified that he found substances testing out as heroin and drug paraphernalia in the basket. Testimony on the presence of tincture of opium with these items is not so prejudicial as to warrant a new trial. Thus, no error exists under this issue.

IV.

Seaman contends that the fact that the jury took so little time in reaching a verdict demonstrates they failed to consider or read the instructions, consider the evidence, or follow their charge. Seaman asserts less than 25 minutes elapsed from the time the trial court submitted the case to the jury and the time the jury brought in its verdict. No authority is provided by Seaman to support reversal for this contention.

Rule 606(b), M.R.Evid., allows inquiry into the validity of verdicts. Section 25-11-102, MCA, provides for investigation of jury misconduct to reveal grounds for a new trial. Seaman has invoked neither the statute nor the rule in his claim on the jury’s verdict.

The lower court, in passing sentence on Seaman, stated that the evidence for finding the defendant guilty was “way beyond a reasonable doubt.” In reviewing the record, we agree with the lower court. Overwhelming, substantial evidence supports the verdict, and there appears no error of law in the record. Thus, we reject the argument that the jury spent too little time considering the law and facts in this case, and we affirm on all issues.

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