author: JUSTICE WEBER CHIEF JUSTICE TURNAGE, JUSTICE TRIEWEILER

text:
    IN RE THE MARRIAGE OF K.E.V., Petitioner, Respondent, and Cross-Appellant, and M.L.V., Appellant and Respondent.
    No. 93-427.
    Submitted June 28, 1994.
    Decided October 25, 1994.
    51 St.Rep. 1055.
    267 Mont. 323.
    883 P.2d 1246.

      For Appellant: Mark P. Yeshe, Helena.
    For Respondent: J. Richard Orizotti, Poore, Roth & Robinson, Butte.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal by the wife from an Order of the District Court of the Second Judicial District, Silver Bow County, which barred her from claiming the nonexistence of the father-child relationship for purposes of child custody. The husband cross-appealed from the portion of the District Court’s order ruling that the wife was not time-barred from asserting the nonexistence of the father-child relationship. We affirm.

The restated issues are as follows:

I. Is the mother’s claim seeking to declare the nonexistence of the father-child relationship time-barred after five years under § 40-6-108(l)(b), MCA (1983)?

II. Did the District Court err in applying the doctrine of equitable estoppel to prevent the mother from contesting the father-child relationship?

After several years of an on-again, off-again relationship between the parties in this proceeding, M.L.V. became pregnant and advised K.E.V. that he was the father of her child. K.E.V. (husband) and M.L.V. (wife) claim to have begun a common law marriage in September of 1985, prior to the birth of K.R.V. in November of the same year.

K.E.V. moved in with M.L.V. and her four children from a prior marriage, changed his lifestyle and became involved in the marriage, M.L.V.’s pregnancy and the establishment of the family unit. K.E.V. was present at the birth of K.R.V. and thereafter became an involved and loving parent, according to the testimony of numerous witnesses on his behalf. He signed papers presented to him by the attending doctor relating to the birth certificate at the time of KR.V.’s birth.

KR.V.’s birth certificate shows KE.V.’s surname but he has never been named as the father on an official birth certificate, apparently due to a mixup in recordkeeping at the Gallatin County Registrar’s office. The Gallatin County Registrar’s office wrote to M.L.V. shortly after KR.V.’s birth advising her that K.E.V. could not be listed on the birth certificate without an affidavit from M.L.V.’s former husband stating he was not the father of the child. K.E.V. testified he felt it was up to M.L.V. to correct the error because he had signed the proper documents at the time of the birth.

K.E.V. and M.L.V. later attempted to clarify the matter by contacting the Gallatin County Registrar and the Department of Health Vital Statistics Bureau in Helena. As a result, it was determined that M.L.V.’s former husband did not need to sign any documents and that K.E.V. could be listed as the father on KR.V.’s birth certificate by signing an acknowledgment of paternity. K.E.V. did not sign the document immediately and M.L.V. continued to urge him to do so. When he finally signed the acknowledgment of paternity in October of 1991, M.L.V. refused to sign it until the parties had a formal wedding. The parties never had a formal wedding and the official birth certificate still lists no father.

M.L.V. first challenged KE.V.’s paternity in KE.V.’s first petition for dissolution of the marriage filed in April of 1992 after K.E.V. was granted sole temporary custody of K.R.V. The District Court granted M.L.V.’s motion to quash this custody order on the basis that KE.V.’s name did not appear on KR.V.’s birth certificate as the father, and the District Court had no authority to award custody to a non-parent except under certain circumstances not present in this case. The court then granted sole custody to M.L.V.

After that, the parties reunited for a time, but their reconciliation was short-lived. K.E.V. filed a second petition for dissolution on December 15,1992. K.E.V. testified that because M.L.V. had continually represented to him that he was KR.V.’s natural father until she raised the issue in the first dissolution proceeding, he moved the court for an order requiring blood testing in order to confirm that he was the biological father of K.R.V. K.E.V. also obtained sole custody of K.R.V. on December 15, 1992, which was later modified to joint custody with primary physical custody with KE.V.

This was not the first time blood-testing had been done. The first tests were performed when KR.V. was a newborn infant and did not rule out KE.V. as the father of KR.V. No further testing was done although more conclusive testing could have been performed when KR.V. reached the age of six to eight months. The test results from the recent second testing, however, proved that KE.V. is not KR.V.’s biological father. KE.V. is the only father KR.V. has ever known and he has been an involved parent — an involvement encouraged by M.L.V.

After a hearing in April 1993, the District Court ruled that the doctrine of equitable estoppel and the conclusive presumption found in § 26-1-601(1), MCA, prevented M.L.V. from denying the existence of the father and child relationship between K.E.V. and K.R.V. The court had also determined that the statute of limitations in effect at the time of KR.V.’s birth had been held unconstitutional by this Court and, therefore, did not bar M.L.V. from asserting that KE.V. was not KR.V.’s father.

Issue I: Statute of Limitations

Is the mother’s claim seeking to declare the nonexistence of the father-child relationship time-barred after five years under § 40-6-108(l)(b), MCA (1983)?

Section 40-6-105, MCA, provides a rebuttable presumption of paternity for children bom dining a marriage for purposes of actions to declare the existence or nonexistence of a father-child relationship. Presently, the statute of limitations applicable to paternity actions provides that a proceeding may be brought to declare the existence or nonexistence of the presumed father and child relationship without a specific time limitation. See § 40-6-108(1), MCA.

At the time of KR.V.’s birth, however, § 40-6-108(l)(b), MCA (1983), allowed only five years for bringing such an action. The District Court determined that the five-year statute of limitations in effect at the time of KR.V.’s birth had been held unconstitutional in State of Arizona v. Sasse (1990), 245 Mont. 340, 801 P.2d 598, and thus did not bar M.L.V. from bringing an action to declare the nonexistence of the presumed father-child relationship between K.E.V. and K.E.V. K.E.V. contends that Sasse does not apply to this case as the 1983 version of § 40-6-108(1), MCA, was in effect when K.E.V. was born. He contends that Sasse found the statute unconstitutional as applied to the facts of that case and that the Montana Legislature’s subsequent change in § 40-6-108, MCA, to allow the commencement of a paternity proceeding any time does not affect the outcome of this case. K.E.V. further contends that the holding of Sasse applies only to cases brought to establish a support action. We disagree.

While it is true that a statute may be declared unconstitutional as applied to the facts of a particular case and constitutional as applied to the facts of another case, that was not this Court’s ruling in Sasse. In Sasse, the Court addressed a constitutional challenge to the five-year limitation period in the context of an action to collect child support under the Uniform Reciprocal Enforcement of Support Act (URESA). Sasse involved a discriminatory classification based on illegitimacy whereby the challenged statute on its face allowed only five years for children with presumed fathers to bring an action to establish paternity while allowing twenty years to illegitimate children to commence such a paternity action. Based on the United States Supreme Court’s holding in Clark v. Jeter, 486 U.S. 456, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988), we applied an intermediate scrutiny test to the facts presented in Sasse. Sasse, 801 P.2d at 601.

If the effect of the ruling in Sasse is anything other than one rendering the entire statute unconstitutional for all purposes, then M.L.V. may be time-barred from bringing the claim as K.R.V. was five years old on October 14, 1990. Sasse was decided on November 27, 1990. We conclude that the unconstitutional classification in Sasse, where the statute on its face created different limitation periods for children with presumed fathers and children without presumed fathers, was not limited to support questions under URESA. Sasse states:

... The effect of this decision setting aside the five-year limitations in paternity actions should not be overestimated. We have simply set aside a time-bar that may otherwise have thwarted the truth in URESA or other paternity actions. There is no restraint under this decision that prevents a court in this state from considering other issues that might arise in such actions once the time-bar is lifted .... Thus our courts are not fenced off under URESA from considering other issues than support that may affect the child, or his adoptive, natural or presumed parents.

Sasse, 801 P.2d at 602 (emphasis supplied). The District Court stated that “a close reading shows [Sasse] brooks no other interpretation but that the Montana Supreme Court declared § 40-6-108(l)(b), MCA, wholly unconstitutional.” We agree. This language clearly states that the five-year period will not limit an action which addresses issues other than support which can affect the child or even his presumed parents.

We hold the mother’s claim seeking to declare the nonexistence of the father-child relationship is not time-barred after five years under § 40-6-108(l)(b), MCA (1983).

Issue II: Equitable Estoppel

Did the District Court err in applying the doctrine of equitable estoppel to prevent the mother from contesting the father-child relationship?

Notwithstanding its ruling on the statute of limitations, the District Court refused to allow M.L.V. to further pursue an action to rebut the presumption of KE.V.’s paternity. The District Court based this decision on the doctrine of equitable estoppel.

The Uniform Parentage Act (UPA), Title 40, Chapter 6, MCA, includes the following rebuttable presumption referred to in Issue I above:

40-6-105. Presumption of paternity. (1) A man is presumed to be the natural father of a child if:
(ft) ftp, and the- child’s natural mother are or have been married to each other and the child is bom during the marriage ...
... or
(d) while the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child; ...

The UPA provides for specific procedures to be followed in an action to determine, among other things, the nonexistence of the presumed parent-child relationship.

The presumption of paternity provided for in § 40-6-105(1), MCA, may be rebutted “in an appropriate action by a preponderance of the evidence.” Section 40-6-105(2), MCA. M.L.V. contends that the presumption is rebutted in this case by uncontroverted medical tests which prove that K.E.V. is not the biological father of K.R.V. While this may be true, we need not address the medical evidence as we are here concerned with the question whether M.L.V. is equitably es-topped from bringing the appropriate action to rebut the presumption. As discussed below, we agree that M.L.V. is estopped from challenging KE.V.’s paternity and, therefore, her contentions pertaining to KE.V.’s alleged status as a non-parent and its effect on custody in this case are not germane.

In essence, what M.L.V. has tried to do here is to deny K.E.V. is the father of K.R.V. so that she might have sole custody; she has not pursued any procedures to declare that another man is the child’s father. K.E.V. correctly maintains that the presumption of legitimacy of a child bom during a marriage is one of the strongest and most persuasive known to the law. The New York court of appeals has eloquently described the effect of the presumption as follows:

Rooted in the common law, its force was so potent that neither spouse was competent to testify to non-access during wedlock. Thus, “[i]f a husband, not physically incapable, was within the four seas of England during the period of gestation, the court would not listen to evidence casting doubt on his paternity.” ...
In Goodright v. Moss (2 Cowp. 591), the court outlined the principle which has come to be known as Lord Mansfield’s Rule:
“The Law of England is clear that the declarations of a father or mother cannot be admitted to bastardize the issue bom after marriage. * * * It is a rule founded on decency, morality, and policy that they shall not be permitted to say after marriage that they have had no connection and therefore that the offspring is spurious....

State ex rel. H. v. P. (N.Y. App. Div. 1982), 457 N.Y.S.2d 488, 490-91. (Emphasis in original.) As quoted above, Montana codifies this presumption as part of the UPA with certain provisions for rebutting it. It is further codified in § 26-1-602(31), MCA: “A child bom in lawful wedlock, there being no divorce from bed and board, is legitimate.”

With changing societal views concerning divorce and illegitimacy over the years, we have seen an increase in the number of families which are not the “traditional” family composed of mother, father and their biological children. Family law courts have used several theories to reach an equitable result when there are children involved and where there are established parent-child relationships including persons other than their biological parents. These include equitable estoppel, equitable parentage, in loco parentis, de facto parent and “psychological parent” theories. See, e.g., Annotation, Parental Rights of Man Who is Not Biological or Adoptive Father of Child but was Husband or Cohabitant of Mother When Child was Conceived or Born, 84 A.L.R. 4th 655 (1991); A. Haralambie, 1 Family Law Series: Handling Child Custody, Abuse, and Adoption Cases § 10.11 (2d ed. 1993); H. Clark, Jr., 2 The Law of Domestic Relations in the United States § 20.6 (2d ed. 1987); and J. McCahey, M. Kaufman and C. Kraut, 1 Child Custody & Visitation Law and Practice § 1.03 (1994).

In this case, the District Court concluded that equitable estoppel applies to estop the mother from denying the presumed paternity of K.E.V. Estoppel has been used in other parentage cases as well, with perhaps the most common application being that of preventing a presumed father from denying paternity for purposes of a support obligation. In many cases, the estoppel runs in favor of the child, not the spouse. For a good general discussion of this topic, see W. Simpson, The Power of Positive Parenting: Equitable Estoppel in Paternity Cases, 4 Divorce Litigation 95 (May 1992).

As with the presumption of legitimacy, equitable estoppel has long been recognized in Montana and is used to prevent injustice and to promote justice, honesty and fair dealing. It is founded in equity and good conscience and its object is to prevent a party from taking unconscionable advantage of his or her own wrong while asserting a strict legal right. In the Matter of Shaw (1980), 189 Mont. 310, 316, 615 P.2d 910, 914. We conclude that it is appropriate to apply the doctrine of equitable estoppel in this case.

In Dagel v. City of Great Falls (1991), 250 Mont. 224, 234-35, 819 P.2d 186, 192-93, we clarified the Montana law concerning estoppel, reaffirming and readopting the six elements of estoppel as previously set forth in Sweet v. Colborn School Supply (1982), 196 Mont. 367, 639 P.2d 521. In addition, we stated that the conclusive presumption from § 26-1-601, MCA, applied to the facts of that case as well. Section 26-1-601, MCA, provides in pertinent part:

26-1-601. List of conclusive presumptions. The following presumptions are conclusive:
(1) the truth of a declaration, act, or omission of a party, as against that party in any litigation arising out of such declaration, act, or omission, whenever he has, by such declaration, act, or omission, intentionally led another to believe a particular thing true and to act upon such belief;

In this case, K.E.V. has demonstrated that M.L.V. led him to believe he was the father of K.R.V., that M.L.V. encouraged him to act upon that belief and that he acted upon that belief. We conclude this satisfies the criteria of § 26-1-601(1), MCA.

We next consider the six essential elements of equitable estoppel:
(1) there must be conduct, acts, language, or silence amounting to a representation or a concealment of material facts; (2) these facts must be known to the party estopped at the time of his conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to him; (3) the truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel at the time it was acted upon by him; (4) the conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party, or under the circumstances that it is both natural and probable that it will be so acted upon; (5) the conduct must be relied upon by the other party, and, thus relying, he must be led to act upon it, and (6) he must in fact act upon it in such a manner as to change his position for the worse. (Citations omitted.)

Dagel, 819 P.2d at 192.

In the present case, the Court concludes that K.E.V. has demonstrated these elements by the required clear and convincing evidence. See Berglund and Berglund, Inc. v. Department of Labor and Indus. (1990), 241 Mont. 49, 53, 784 P.2d 933, 936. Estoppel theories must rest on representation of facts. Minervino v. University of Montana (1993), 258 Mont. 493, 497, 853 P.2d 1242, 1245. Equitable estoppel is a term used where a party is denied the right to prove an otherwise important fact because of something which the party has done or omitted to do. Norman v. State (1979), 182 Mont. 439, 443-44, 597 P.2d 715, 718.

The facts which M.L.V. represented or omitted to tell to K.E.V. are as follows: M.L.V. told K.E.V. she had terminated her relationship with her former husband several months prior to the time K.R.V. was conceived. Although she now claims she was raped by her former husband at approximately the time K.R.V. was conceived, she did not tell K.E.V. even though K.E.V., as an attorney, had represented her in that dissolution proceeding and had had confrontations with him on at least two occasions. In February or March of 1985, M.L.V. informed K.E.V. that she was pregnant with his child. K.E.V. told her that he would accept his obligations and responsibilities as the child’s father.

In September of 1985, K.E.V. and M.L.V. began living together in a common law marriage, according to the findings of the District Court and the testimony of each of the parties. K.E.V. purchased maternity clothing for M.L.V. and paid medical expenses pertaining to the pregnancy and KR.V.’s birth. He psychologically prepared himself for the birth and was present during the delivery. Since the child’s birth, K.E.V. has assumed the financial responsibility for K.R.V. Even before her birth, KE.V. was an involved parent — a position encouraged by M.L.V. Because of concerns raised by KE.V.’s family, mother, father and baby underwent blood tests at the end of October of1985, approximately two weeks after KR.V.’s birth. These tests did not exclude KE.V. as the biological father. M.L.V. and KE.V. were informed at that time that more conclusive testing could be performed about six to eight months after KR.V.’s birth. They did not pursue this further testing until the second dissolution petition was filed.

K.E.V. testified that he underwent the blood testing because he wanted K.R.V. to be accepted by his family. M.L.V. testified that she told K.E.V. that she had been raped by her former husband and that the child could be his or KE.V.’s child. KE.V. testified that M.L.V. never told him there was a question of paternity and never told him she had been raped. To the contrary, she reaffirmed that KE.V. was KR.V.’s father by attempting to fist KE.V. on the birth certificate and by providing KE.V.’s surname on the certificate for the child’s name. The primary reason why KE.V.’s name was not on KR.V.’s birth certificate as her father was the record mixup in the Gallatin County Registrar’s Office which showed that M.L.V. was still married despite a divorce granted five years previously.

In an attempt to straighten out the birth records, M.L.V. urged K.E.V. to sign the acknowledgement of paternity to correct the records. When he finally signed it, she refused to sign unless the parties formalized their marriage. M.L.V. also testified that she wanted KR.V. to be KE.V.’s child and that she did indeed make comments about the two having similar features. Witnesses testified that M.L.V. had made numerous comments about their likeness to one another. In a will prepared by M.L.V., she stated that she had a fifth child bom of her marriage to K.E.V. and specifically declared she was married to K.E.V. Moreover, in response to the petition for dissolution in this action, M.L.V. denied that the marriage was irretrievably broken and alleged that the welfare of KR.V. might be adversely affected by a dissolution and filed a motion for conciliation.

The District Court stated:

There was conduct, acts or language by [M.L.V.] which amounted to a representation of a material fact, viz., that [KE.V.] was [KR.V.’s] father. As the speaker of these facts, [M.L.V.] knew of them; [K.E.V.] did not know of the falsity of these facts at the time; [M.L.V.] knew that her conduct would cause [K.E.V.] to act in certain ways; [KE.V.] relied upon what [M.L.V.] told him and it led him to act upon it; and [K.E.V.] did actually change his position, in fact, his very life, detrimentally.

We conclude that M.L.V.’s conduct as partially set forth above establishes all six elements of equitable estoppel by clear and convincing evidence. We note that the reference to a “detrimental” change in position by K.E.V. in this case is not in any way to be construed to mean that K.E.V. is adversely affected by his assumption of a parental role here. It is clear from the record that K.E.V. has a close, loving relationship with K.R.V. that is a very positive part of both of their lives which he wants to continue. The term “detrimental” as used in the context of these proceedings means that K.E.V. has been required to respond to M.L.V.’s self-serving proof that he is not KR.V.’s biological father. To allow M.L.V. to assert that K.E.V. is not the presumed father of K.R.V. would be to allow her to take advantage of her own wrong. This would be both unconscionable and inequitable.

We hold the District Court properly applied the doctrine of equitable estoppel to the facts presented in this case to prevent M.L.V. from contesting the presumed father-child relationship between K.E.V. and K.R.V.

The concurring and dissenting opinion of Chief Justice Tumage states that the Court has created a father-child relátionship between K.E.V. and K.R.V. without so much as providing notice to the biological father, and has emphasized that a child cannot have two fathers at the same time. This opinion does not address the issue of the identity of the biological father of K.R.V. M.L.V. did not request a determination in this proceeding of the identity of the biological father. No evidence has been presented sufficient to establish that identity. M.L.V. testified that she had been raped by her former husband but that in itself is insufficient to constitute identification of the biological father. This opinion does not address the issue of the identity of the true biological father of K.R.V. The holding of this opinion does not in any way bar the biological father or the child, K.R.V., from commencing a proceeding to determine the identity of the biological father.

Affirmed.

JUSTICES HARRISON, GRAY and HUNT concur.

CHIEF JUSTICE TURNAGE,

concurring in part and dissenting in part:

I concur with the majority that the claim of M.L.V. is not barred by the five-year statute of limitations under § 40-6-108(l)(b), MCA (1983). However, I respectfully dissent from the majority’s conclusion that M.L.V. is barred from challenging the existence of the father-child relationship on the basis of equitable estoppel.

First, equitable estoppel is an unfavored doctrine and can only be sustained upon clear and convincing evidence. Kenneth D. Collins Agency v. Hagerott (1984), 211 Mont. 303, 684 P.2d 487. The record does not establish by clear and convincing evidence that M.L.V. misled K.E.V. about the paternity of K.R.V. There was evidence that the uncertain paternity of K.R.V. had been a subject of conjecture by M.L.V. and K.E.V. since KR.V.’s birth.

Second, and of even more concern to me, the Court has created a father-child relationship between K.E.V. and K.R.V. without so much as providing notice to the biological father. What about his rights or standing? A child cannot have two fathers at the same time, under the law. Yet there is no indication in the record that the parental rights of the biological father have been either terminated or relinquished under the procedures established in § 40-6-129 or § 40-6-135, MCA, or in Title 41, chapter 3, part 6, MCA. Assumedly, then, his parental rights still exist. How will his parental rights be reconciled with those granted to K.E.V. under the majority opinion?

Finally, we have consistently held that parental rights cannot be acquired by a non-biological parent except after following a statutory procedure. See, Henderson v. Henderson (1977), 174 Mont. 1, 568 P.2d 177; Matter of Guardianship of Doney (1977), 174 Mont. 282, 570 P.2d 575 (abuse, dependency and neglect statutes); Pierce v. Pierce (1982), 198 Mont. 255, 645 P.2d 1353 (adoption statutes); Matter of Guardianship of Aschenbrenner (1979), 182 Mont. 540, 597 P.2d 1156 (guardianship statutes); Marriage of Miller (1992), 251 Mont. 300, 825 P.2d 189 (marriage dissolution statutes). In creating, under the guise of equity, parental rights in a person who, indisputably, is not a biological parent, without first terminating the rights of the biological father and mother, we have not only totally ignored our prior case law, but we have also abrogated the very necessary function of the legislature to pass statutes authorizing the type of social engineering that we here accomplish by judicial fiat. There is truth in the old adage that, once you open a can of worms, you can never put them back, except in a larger can — if you can find a larger can.

Given the apparent identifiability of KR.V.’s biological father and the failure of K.E.V. to establish the elements of equitable estoppel by clear and convincing evidence, I would reverse the District Court’s ruling as to Issue II.

JUSTICE NELSON joins in the opinion of Chief Justice Turnage.

JUSTICE TRIEWEILER

specially concurring in part and dissenting in part.

I concur with that part of the majority’s opinion which affirms the District Court’s finding and conclusion that the doctrine of equitable estoppel precludes M.L.V. from contesting the presumed father-child relationship between K.E.V. and K.R.V.

I dissent from that part of the majority’s opinion which concludes that M.L.V.’s challenge to K.E.V.’s paternity is not barred by the statute of limitations found at § 40-6-108(l)(b), MCA (1983).

The majority’s conclusion that M.L.V.’s challenge to K.E.V.’s paternity was not barred by the statute of limitations is based on its conclusion that, in State of Arizona v. Sasse (1990), 245 Mont. 340, 346, 801 P.2d 598, 602, § 40-6-108(1)(b), MCA (1983), was found facially invalid, rather than invalid as applied to the facts in that case. Since there was absolutely no analysis of facial invalidity versus applied invalidity in the Sasse case, the majority’s conclusion is unfounded.

Conventional wisdom holds that a court may declare a statute unconstitutional in one of two manners: (1) the court may declare it invalid on its face, or (2) the; court may find the statute unconstitutional as applied to a particular set of circumstances. The difference is important. If a court holds a statute unconstitutional on its face, the state may not enforce it under any circumstances, unless an appropriate court narrows its application; in contrast, when a court holds a statute unconstitutional as applied to particular facts, the state may enforce the statute in different circumstances.
In recent years, the Supreme Court has purported to disfavor facial challenges. As the Court stated in United States v. Salerno, [481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987)], “[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”

Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 236 (January 1994) (footnotes omitted) (emphasis added). In Sasse, there was no analysis of whether § 40-6-108(1)(b), MCA (1983), could withstand a facial challenge to its constitutionality. In fact, our prior decision in Matter of W.C. (1983), 206 Mont. 432, 671 P.2d 621, indicates that it could. Under the circumstances presented in Matter of W.C., at least, we held that there were circumstances under which the statute of limitations would be valid. Although Matter of W.C. was discussed and distinguished in Sasse, it was not reversed or otherwise modified.

Furthermore, our decision in Sasse analyzed statutory classifications based on illegitimacy in the context of the equal protection clause found at Article II, Section 4, of the Montana Constitution, and the Fourteenth Amendment to the United States Constitution. There are no similar classifications affected by the statute’s application to the facts in this case. Therefore, there is not even a basis for an equal protection challenge in this case.

In Sasse, an action was commenced in Montana by a child’s mother and the State of Arizona under the Uniform Reciprocal Enforcement of Support Act to establish Alan Sasse’s paternity of that child and to recover child support from him. However, the child was bom during the mother’s marriage to another person, and more than five years had passed since the child’s birth. Since there was a statutory presumption pursuant to § 40-6-105(1)(a), MCA, that someone other than Sasse was the child’s natural father, that presumption had to be overcome before child support could be recovered from Sasse. The issue was whether the child in that case could be barred from pursuing a claim for child support based on the five-year limitation found at § 40-6-108(l)(b), MCA (1983), when a child to whom no similar presumption applied could bring a cause of action for support until two years after he or she reached the age of majority. In Sasse, there was clearly disparate treatment of child support actions based on a child’s status as legitimate or illegitimate. Because of that disparate treatment, and because of prior decisions by the United States Supreme Court in Mills v. Habluetzel (1982), 456 U.S. 91, 102 S. Ct. 1549, 71 L. Ed. 2d 770, and Pickett v. Brown (1983), 462 U.S. 1, 103 S. Ct. 2199, 76 L. Ed. 2d 372, which prohibited discrimination based on illegitimacy pursuant to the Equal Protection Clause, we concluded that an equal protection analysis was necessary. We held that:

Since the case at bar involves a discriminatory classification based on illegitimacy, it is appropriate for us under Clark to examine the equal protection issues here on the level of intermediate scrutiny.

Sasse, 801 P.2d at 601.

After balancing the State’s interest in the statutory classification against the countervailing interest in requiring proper support for all children, we concluded that disparate treatment of legitimate and illegitimate children did not survive middle-tier scrutiny, and therefore, held that § 40-6-108(l)(b), MCA, was unconstitutional. We did not specify that it was unconstitutional as applied to the facts in that case. However, no other conclusion can be drawn from that opinion. The entire equal protection analysis in that case was based upon the classifications presented by the facts in that case. Furthermore, there was no discussion of facial invalidity, nor any analysis that would be prerequisite to a conclusion of facial invalidity.

This case, on the other hand, presents no disparate treatment of actions to recover child support based on the status of illegitimacy. The issue in this case is simply whether a person who is presumed to be a child’s father because the child was bom during his marriage to her mother, may be assured that that presumption cannot be challenged after the child’s fifth birthday. There are no classifications involved. There is no similar class of presumed parent for children bom out of wedlock who could be treated differently than the class to which K.E.V. belongs. This case is controlled by our decision in Matter of W.C.

In Matter of W. C., Roger was presumed to be the natural father of Tara because she was bom during his marriage to her mother. After the dissolution of that marriage, Wallace filed a petition challenging Roger’s parenthood and filed blood test results indicating that he was the child’s natural father. The district court held that the petition was barred by § 40-6-108(1)(b), MCA, because it was not filed within five years from Tara’s birth. This Court affirmed. In the process, this Court rejected Wallace’s assertion that the statute of limitations was rendered unconstitutional by the Supreme Court’s equal protection decisions in Mills and Pickett. We distinguished cases where children’s rights to recover child support was affected by their status as legitimate or illegitimate. We held that:

The deprivation of equality by governmental classification that was present in Mills and Pickett is absent in the case at bar....
In the present case we are not considering the constitutionality of a statute of limitations that would bar an illegitimate child’s right to support. The child herein involved is not illegitimate because respondent has been presumed to be the father in accordance with § 40-6-105(l)(a), MCA. In addition, the action is not being brought on behalf of the minor child and there is no allegation the child is being denied support. The Montana statutes at issue in this case are not unconstitutional under Mills or Pickett because they do not differentiaté between legitimate and illegitimate children. Section 40-6-107(1), MCA. The invidious discrimination discussed in Mills and Pickett is not present here. Indeed, the Montana statute does not discriminate in any way against the appellant.

Matter of W.C., 671 P.2d at 622-23.

Likewise, § 40-6-108, MCA (1983), did not discriminate in anyway against M.L.V. Therefore, she had no standing to challenge the statute on an equal protection basis, and the District Court erred by invalidating the statute on that basis.

For these reasons, I conclude that there has never been a successful facial challenge to the constitutionality of § 40-6-108, MCA (1983); that statute is not unconstitutional as applied to the facts in this case; and M.L.V.’s challenge to KE.V.’s paternity was barred because it was not brought within five years from the date of their child’s birth. I would reverse the District Court’s failure to apply the statute of limitations as a bar to M.L.V.’s claim, and I dissent from that part of the majority opinion which affirms the District Court’s failure to do so.


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    STATE MEDICAL OXYGEN AND SUPPLY, INC., a Montana Corporation, Plaintiff and Appellant, v. AMERICAN MEDICAL OXYGEN CO., a Montana Corporation, J.C. LYNDES, GARY GOMEZ and RONALD WRIGHT, Defendants and Respondents.
    No. 94-149.
    Submitted on Briefs June 30, 1994.
    Decided October 25, 1994.
    51 St.Rep. 1063.
    267 Mont. 340.
    883 P.2d 1241.

      For Appellant: Brian L. Delaney; Mulroney, Delaney & Scott, Missoula.
    For Respondents: Michael G. Moses; Moses Law Firm, Billings.
   JUSTICE GRAY

delivered the Opinion of the Court.

State Medical Oxygen and Supply Inc. (State Medical) appeals from orders of the Second Judicial District Court, Silver Bow County, granting summary judgment in favor of American Medical Oxygen Co. (American Medical) and denying its motion for reconsideration. We affirm.

This is the fourth time the parties have been before this Court. Both are Montana corporations involved in the business of providing oxygen and associated health care products to customers in their homes and in hospitals. In 1985, State Medical filed complaints in five Montana counties against American Medical and several of its employees and directors. Generally, those actions involved allegations that American Medical had violated § 1877(b) of the Social Security Act, 42 U.S.C. § 1395nn(b), by enticing State Medical route drivers to work for American Medical, resulting in route customers switching companies. Because the lawsuits were similar, the parties chose the action in Cascade County as the ‘lead case.”

Summary judgment was granted in the lead case on the basis that a Social Security Act violation does not give rise to a private civil cause of action. On appeal, we affirmed on that issue, but remanded with instructions that the district court consider the depositions of former State Medical employees for the purpose of other issues, and allow State Medical to amend or supplement its pleadings to include a claim of tortious interference with its business. State Med. Oxygen v. American Med. Oxygen Co. (1988), 230 Mont. 456, 463, 750 P.2d 1085, 1089 (State Med. I).

State Medical subsequently amended the complaints and the litigation continued. The district court in Cascade County again granted summary judgment to American Medical, on the basis that State Medical’s nondisclosure agreement was unreasonable and unenforceable. We affirmed on appeal, concluding that the agreement was void as against public policy and unenforceable as a matter of law. State Med. Oxygen v. American Med. Oxygen Co. (1989), 240 Mont. 70, 75, 782 P.2d 1272, 1276 (State Med. II).

Following State Med. II, the parties agreed to transfer ‘lead” status to the case in Silver Bow County. In October 1991, American Medical filed motions to dismiss and for summary judgment in the Silver Bow County action based on an earlier Cascade County district court order not at issue in the previous appeals; the motions were granted and State Medical appealed. We reversed and remanded, concluding that the order of the district court in Cascade County was not a final judgment on the merits and that res judicata and collateral estoppel did not apply. We also concluded that 42 U.S.C. § 1395a, which allows an individual receiving Medicare/Medicaid benefits to obtain health services from any qualified agency or person, does not act as a bar to a state law claim of tortious interference with a business relationship. State Med. Oxygen v. American Med. Oxygen Co. (1992), 256 Mont. 38, 43-45, 844 P.2d 100, 104-105 (State Med. III).

On remand following State Med. III, the District Court scheduled trial for February, 1994. American Medical moved for summary judgment in August of 1993. Following oral argument on October 20, 1993, the District Court granted the motion in an order and memorandum dated December 1, 1993. The court subsequently denied State Medical’s motion for reconsideration. State Medical appeals.

1. Did the District Court err in concluding that no genuine issue of material fact existed and that American Medical was entitled to summary judgment as a matter of law?

Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. We review an order granting summary judgment by utilizing the same criteria as the district court, determining whether a genuine issue of material fact exists and whether the moving party is entitled to summary judgment as a matter of law. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214.

State Medical’s action against American Medical is presented as tortious interference with its business relations with former employees and with former customers. An action for tortious interference with business relations entails four elements: that the defendant’s acts: (1) are intentional and willful; (2) calculated to cause damage to the plaintiff’s business; (3) done with the unlawful purpose of causing damage or loss, without right or justifiable cause on the part of the actor; and (4) result in actual damages and loss. State Med. I, 750 P.2d at 1088-1089.

If a defendant establishes the absence of a genuine issue of material fact as to one of the elements constituting the cause of action, and the plaintiff fails to come forward with proof showing the existence of a genuine issue as to that element, summary judgment in the defendant’s favor is proper. See White v. Murdock (1994), [265 Mont. 386], 877 P.2d 474, 477-78. Disputed facts are material, therefore, if they involve the elements of the cause of action or defense at issue to an extent that necessitates resolution of the issue by a trier of fact. See Bails v. Gar (1976), 171 Mont. 342, 346, 558 P.2d 458, 461. Any inferences to be drawn from the factual record must be resolved in favor of the party opposing summary judgment. Boylan v. Van Dyke (1991), 247 Mont. 259, 266, 806 P.2d 1024, 1028. In this case, our review of the District Court’s order granting summary judgment focuses on the third element of tortious interference with business relations; namely, the existence of a genuine issue of material fact regarding whether American Medical’s acts were done without right or justifiable cause.

American Medical came forward with evidence to meet its burden of demonstrating that no genuine issue of material fact exists on this element regarding State Medical’s customers or employees. Concerning the relationship between State Medical and its customers, American Medical’s evidence indicated that State Medical supplied customers with oxygen and other medical supplies by running an ordinary route service, in a certain area, on a regular basis. The business relationship between the customers and State Medical was noncontractual and each party was free to terminate the relationship without future obligation. Affidavits also indicate that, after beginning employment with American Medical, the drivers contacted their former State Medical customers from memory. The customers were not approached in any unusual way, but merely informed that the route driver had switched companies and asked if they wanted to purchase oxygen and supplies from the new provider. Some, but not all, of the customers made the change to American Medical with the route drivers.

Similarly, American Medical’s evidence regarding State Medical’s relationship with former employees established that State Medical route drivers first initiated contact with American Medical in 1983 and 1984. The drivers were working for State Medical without a contract; they were dissatisfied with their employment and looking for greater opportunity. In August and September, 1984, American Medical negotiated with, and ultimately hired, these route drivers who immediately began servicing customers on American Medical’s behalf in the Butte area.

Whether American Medical’s evidence demonstrates the absence of a genuine issue of material fact regarding whether it acted without right or justifiable cause can be determined by applying factors we have adopted from the Restatement (Second) of Torts § 767 (1965). State Med. I, 750 P.2d at 1088. Considering the facts, circumstances, and evidence presented in this case, two of those factors are particularly probative: first, the nature of the relationship between State Medical and its former employees and customers; and second, the nature of American Medical’s conduct.

American Medical’s evidence establishes that the relationship between State Medical and its customers was informal, voluntary and noncontractual. The customers were free to terminate their relationship with State Medical at any time and find another provider for any reason or no reason at all.

Based on the record before us, State Medical’s relationship with its employees also was noncontractual and without a specified term. Indeed, State Medical’s relationship with the employees at issue here can be characterized as “at will” employment under § 39-2-503, MCA. “At will” generally refers to the employer’s and the employee’s ability to terminate the employment relationship for any reason or no reason. Scott v. Eagle Watch Investments, Inc. (1991), 251 Mont. 191, 195, 828 P.2d 1346, 1349.

Notwithstanding the voluntary nature of the relationships at issue here in determining whether American Medical acted without right or justifiable cause, however, a genuine issue of material fact could still exist regarding whether American Medical acted without right or justifiable cause based on the nature of American Medical’s conduct. Indeed, that factor was important in the context of noncontractual business relationships in Daniels v. Dean (1992), 253 Mont. 465, 474, 833 P.2d 1078, 1084.

In Daniels, the defendant’s acts in interfering with the plaintiff’s relationships with his customers were of an egregious and outrageous nature. They included threatening and harassing patrons, obstructing entrance to the business and interfering with customer parking spaces. Daniels, 833 P.2d at 1080-81.

By contrast, no evidence in the present case suggests that American Medical’s acts in hiring State Medical’s employees and soliciting its customers were in any way unusual, wrongful, or unjustified. We conclude, therefore, that American Medical met its burden on summary judgment with regard to establishing the absence of a genuine issue of material fact on the “without right or justifiable cause” element of State Medical’s cause of action.

State Medical contends that the record establishes the existence of five broad issues of material fact. These alleged issues include: (1) whether American Medical had a firm employment agreement with State Medical’s key employees prior to 1984; (2) whether American Medical first contacted State Medical’s employees or the employees first contacted American Medical; (3) American Medical’s intent; and (4) whether American Medical employees were using State Medical’s proprietary information. The fifth alleged issue is merely an aggregation of the first four.

None of these alleged factual issues relate to the “without right or justifiable cause” element of State Medical’s action for tortious interference with business relations. The first two “issues” relate to the nature of State Medical’s relationship with its employees. Because that relationship was voluntary and noncontractual and none of the acts suggested by these “issues” was even inferentially tortious, these factual questions do not raise an issue of material fact regarding whether American Medical acted without right or justifiable cause. Similarly, questions involving American Medical’s intent relate to the first element of the cause of action, but do not raise a genuine issue of material fact with regard to the “without right or justifiable cause” element.

Finally, with regard to the fourth “issue” asserted by State Medical, no evidence of record suggests that the drivers involved in this Silver Bow County action used State Medical’s written customer lists. Moreover, we conclude that the District Court did not abuse its discretion in refusing to consider affidavit evidence relating to the Missoula County action and the drivers at issue therein; even assuming the admissibility of that evidence in that action, the evidence is not relevant to the case presently before us.

We conclude that none of the disputed factual issues alleged by State Medical raises a genuine issue of material fact regarding whether American Medical acted without right or justifiable cause. No genuine issue of material fact exists on the record before us on this necessary element of State Medical’s claim for tortious interference with business relations; we hold, therefore, that the District Court did not err in granting American Medical’s motion for summary judgment.

2. Did the District Court err in denying State Medical’s motion for reconsideration or relief from judgment?

State Medical moved for reconsideration of the District Court’s summary judgment order pursuant to Rule 59(g) or, alternatively, for relief from that order pursuant to Rule 60(b), M.R.Civ.P. Its Rule 59(g), M.R.Civ.P., argument — that the District Court erred in determining that no genuine issue of material fact existed — is addressed and resolved by our conclusion on the first issue.

Rule 60(b)(l)-(6), M.R.Civ.R, sets forth the reasons for which a court may reheve a party from a final judgment, order or proceeding. Rule 60(b)(2), M.R.Civ.P., provides for relief in the event of “newly discovered evidence” which could not have been discovered with due diligence. The District Court denied State Medical’s Rule 60(b)(2) motion on the basis that the evidence presented was not “newly discovered.”

The “newly discovered” evidence State Medical submitted to the District Court in support of its motion consisted of two sets of records. The first was American Medical’s patient records, allegedly indicating that American Medical agreed to accept assignment of Medicare payments in violation of federal law. The second consisted of telephone records, allegedly showing that an American Medical employee was in Butte several times prior to the opening of American Medical’s Butte office.

State Medical concedes this evidence was in its possession before the October 20, 1993, oral argument on American Medical’s motion for summary judgment. Indeed, the record reflects that most, and perhaps all, of this evidence was available to State Medical in June of 1987. Consequently, the evidence in question cannot be characterized as newly discovered under Rule 60(b)(2), M.R.Civ.P. Moreover, in the context of litigation which has been ongoing since 1985, State Medical’s assertions that it had insufficient time to review the available records and, in any event, that it “thought” the records related to the issue of damages rather than liability, are less than compelling.

We agree with the District Court that State Medical had sufficient time to find, review, analyze and present the evidence it characterizes as “newly discovered” before and during the summary judgment process. The record reflects neither an effort by State Medical to bring the evidence to the court’s attention nor a request for additional time prior to the resolution of the summary judgment motion.

Rule 56(f), M.R.Civ.P., provides the party opposing a summary judgment motion with a means of establishing, by affidavit, that it “cannot for reasons stated present by affidavit facts essential to justify the party’s opposition. ...” In this case, State Medical could have followed this procedure, requesting time to analyze the evidence in its possession insofar as that evidence might have been relevant to its opposition to American Medical’s motion for summary judgment. It did not do so.

The evidence State Medical submitted in support of its Rule 60(b)(2) motion does not meet the “newly discovered” evidence standard set forth in Rule 60(b)(2), M.R.Civ.P. We conclude, therefore, that the District Court did not err in denying State Medical’s motion for relief from judgment under Rule 60(b)(2), M.R.Civ.P.

Affirmed.

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


author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MICHAEL EUGENE SKROCH, Defendant and Appellant.
    No. 94-001.
    Submitted on Briefs August 4, 1994.
    Decided November 1, 1994.
    51 St.Rep. 1092.
    267 Mont. 349.
    883 P.2d 1256.

      For Appellant: James A. Haynes, Attorney at Law, Hamilton.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena; George H. Com, Ravalli County Attorney, Hamilton.
   JUSTICE HUNT

delivered the opinion of the Court.

Defendant Michael Eugene Skroch appeals from an order of the Twenty-first Judicial District Court, Ravalli County, denying his motion to withdraw his guilty pleas to two counts of sexual assault.

Affirmed.

The sole issue on appeal is whether the District Court abused its discretion in denying defendant’s motion to withdraw his guilty pleas.

On July 8,1992, defendant was charged by information in Ravalli County with two counts of sexual intercourse without consent, two counts of sexual assault, two counts of misdemeanor unlawful restraint, one count of felony assault, one count of misdemeanor assault, and two counts of unlawful transactions with children. The two female victims were ages 13 and 14.

On July 21, 1992, defendant appeared with counsel and entered pleas of not guilty to all charges.

On October 27,1992, defendant appeared with counsel and entered into a plea agreement prior to a scheduled omnibus hearing. Defendant withdrew his not guilty pleas and entered a guilty plea to two counts of sexual assault under § 45-5-502(3), MCA. In exchange, the remaining charges were dismissed on 12 conditions.

In March 1993, defendant discharged his attorney, and the court appointed new counsel. During this time the Twenty-first Judicial District for Ravalli County was established and a different District Judge assumed jurisdiction over the case.

On May 7, 1993, after learning that the charges against a co-defendant had been dismissed, defendant filed a motion to withdraw his guilty pleas. The District Court conducted a hearing on July 27, 1993, and on August 30, 1993, the court issued an order denying defendant’s motion.

On November 10,1993, defendant was sentenced to two concurrent 15-year suspended sentences with twelve conditions.

Defendant appeals the court’s denial of his motion to withdraw his guilty pleas.

Did the District Court abuse its discretion in denying defendant’s motion to withdraw his guilty pleas?

When reviewing a trial court’s refusal to allow a defendant to withdraw a guilty plea we will determine whether the trial court abused its discretion. State v. Mahoney (1994), 264 Mont. 89, 870 P.2d 65; State v. Reynolds (1992), 253 Mont. 386, 833 P.2d 153; State v. Cameron (1992), 253 Mont. 95, 830 P.2d 1284. Absent an abuse of discretion, we will not disturb the trial court’s decision. Reynolds, 833 P.2d at 155; Cameron, 830 P.2d at 1288.

A trial court may permit a guilty plea to be withdrawn and a not guilty plea substituted for good cause at any time before or after the judgment under § 46-16-105(2), MCA. This Court will consider the following three factors to determine whether good cause existed and whether the district court erred in refusing to allow a defendant to withdraw a guilty plea:

1. The adequacy of the District Court’s interrogation at the time the plea was entered as to the defendant’s understanding of the consequences of his plea;
2. the promptness with which the defendant attempts to withdraw the prior plea; and
3. the fact that the defendant’s plea was the result of a plea bargain.

Mahoney, 870 P.2d at 68-69; State v. Coggins (1993), 257 Mont. 440, 849 P.2d 1033; State v. Miller (1991), 248 Mont. 194, 810 P.2d 308; State v. Long (1987), 227 Mont. 199, 738 P.2d 487; State v. Walker (1986), 220 Mont. 70, 712 P.2d 1348.

Defendant argues that the court’s interrogation at the October 27, 1992, hearing was insufficient and should have followed the format set forth in § 46-12-210, MCA, which provides:

(1) Before accepting a plea of guilty, the court shall determine that the defendant understands the following:
(a) (i) the nature of the charge for which the plea is offered;
(ii) the mandatory minimum penalty provided by law, if any;
(iii) the maximum penalty provided by law, including the effect of any penalty enhancement provision or special parole restriction; and
(iv) when applicable, the requirement that the court may also order the defendant to make restitution of the costs and assessments provided by law;
(b) if the defendant is not represented by an attorney, the fact that the defendant has a right to be represented by an attorney at every stage of the proceeding and that, if necessary, one will be appointed to represent the defendant;
(c) that the defendant has the right:
(1) to plead not guilty or to persist in that plea if it has been already been made;
(ii) to be tried by a jury and at trial has the right to the assistance of counsel;
(iii) to confront and cross-examine witnesses against the defendant; and
(iv) not to be compelled to reveal personally incriminating information;
(d) that if the defendant pleads guilty in fulfillment of a plea agreement, the court is not required to accept the terms of the agreement and that the defendant may not be entitled to withdraw the plea if the agreement is not accepted pursuant to 46-12-211;
(e) that if the defendant’s plea of guilty is accepted by the courts, there will not be further trial of any kind, so that by pleading guilty the defendant waives the right to trial; and
(f) that if the defendant is not a United States citizen, a guilty plea might result in deportation from or exclusion from admission to the United States or denial of naturalization under federal law.
(2) the requirements of subsection (1) may be accomplished by the defendant filing a written acknowledgement of the information contained in subsection (1).

We have held that a trial court’s interrogation of a defendant seeking to enter a guilty plea is sufficient if the judge

“examines the defendant, finds him to be competent, and determines from him that his plea of guilty is voluntary, he understands the charge and his possible punishment, he is not acting under the influence of drugs or alcohol, he admits his counsel is competent and he has been well advised, and he declares in open court the fact upon which his guilt is based.”

Mahoney, 870 P.2d at 69 (quoting State v. Walker (1986), 220 Mont. 70, 72; 712 P.2d 1348, 1350) (citing State v. Lewis (1978), 177 Mont. 474, 485, 582 P.2d 346, 352).

The record demonstrates that the trial court questioned defendant as to his competence; his understanding of the implications of a guilty plea in terms of rights waived and rights retained; whether he was acting under the influence of alcohol or drugs; whether he was satisfied with counsel; and whether there was a plea bargain agreement. The terms of the agreement were read into the record. Both the court and defense counsel asked for clarifications as to the terms. The court advised defendant that a plea agreement was a recommendation that the court was not bound to follow. The court explained the maximum punishment for each of the offenses. The court established the factual basis for defendant’s guilt by first reading the allegations for the two remaining counts of sexual assault. The court then noted that the charges were very specific and asked defendant if he was pleading guilty to each and every charge in those counts. Defendant answered “yes.”

The District Court’s interrogation of defendant as to the consequences of his plea addressed the relevant portions of § 46-12-210, MCA, and satisfied the requirements of the first factor, adequacy of the interrogation.

Defendant argues that like the defendant in State ex rel. Gladue v. Eighth Judicial District (1978), 175 Mont. 509, 575 P.2d 65, he was induced to enter an involuntary guilty plea. In Gladue, the defendant filed a motion to withdraw his guilty plea to two counts of robbery. At the hearing on the motion, the defendant denied any involvement in the offenses. The defendant stated that he pled guilty at the recommendation of his attorney, and because the co-defendant was going to plead guilty. The plea bargain agreement was entered into one day prior to trial. Minutes before the time scheduled for the change of plea, the defendant informed his attorney that he did not want to go along with the plea bargain agreement. We concluded that the defendant pled guilty only after being induced to do so by his attorney for fear that he had no chance of proving his innocence at trial. As a result, we held that the defendant’s plea was involuntary.

The present case is distinguishable from Gladue. Defendant maintains that he went to court on October 27, 1992, expecting to attend an omnibus hearing. Instead, he was confronted with an “impromptu plea agreement spontaneously negotiated by the State and defendant’s attorney.” The record shows that plea bargain negotiations had begun in July 1992, and that defendant’s counsel kept him informed as the negotiations progressed. Defendant’s original counsel and the county attorney testified that only the details of the fine points were left to be resolved as of October 27,1992.

Defendant points to the lack of a written waiver of rights form, a written acknowledgement of rights form, and a written plea bargain agreement as proof of the hasty circumstances under which he pled guilty. There is no statutory requirement that any of the above be reduced to writing. Oral plea bargain agreements are subject to contract law standards and are valid and binding. State v. Dinndorf (1983), 202 Mont. 308, 658 P.2d 372; State v. Allen (1981), 197 Mont. 64, 645 P.2d 380.

Defendant also argues that like the defendant in Gladue, he has consistently maintained his innocence. However, unlike the defendant in Gladue, who denied committing the acts that formed the basis of the charges against him, defendant in the present case has never denied committing the acts that constitute sexual assault under § 45-5-502(3), MCA. In essence, defendant does not believe that the acts he committed constitute a crime.

Defendant asserts further that the court “unintentionally sidestepped some of the statutory safeguards intended to ferret out any involuntariness or confusion on the part of a criminal defendant.” In support of this assertion, defendant cites § 46-12-212, MCA, which states:

(1) The court may not accept a guilty plea without determining that there is a factual basis for the plea in charges of felonies or misdemeanors resulting in incarceration.
(2) A defendant who is unwilling to admit to any element of the offense that would provide a factual basis for a plea of guilty may, with the consent of the court, enter a plea of guilty to the offense if the defendant considers the plea to be in the defendant’s best interest and if a factual basis exists for the plea.

The court read, and defendant admitted to, the specific allegations that comprised the two counts of sexual assault and formed the factual basis of the guilty pleas. Defendant would only be required to state that the plea was in his best interest under § 46-12-212, MCA, if he was unwilling to admit to any element of the offense. The record does not reveal defendant’s unwillingness any time prior to or during the October 27, 1992, hearing. Defendant maintains that his willingness to enter a plea under North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, demonstrates his unwillingness to admit to the offense. While nothing in the record shows that an Alford plea was entered with the court or incorporated into the original plea agreement, the record does show that there were preliminary discussions between the State and defense counsel about an Alford plea. That approach was abandoned when the court indicated it would not accept an Alford plea.

To ensure voluntary pleas, § 46-12-204(2), MCA, provides that [t]he court may not accept a plea of guilty without first determining that the plea is voluntary and not the result of force or threats or of promises apart from the plea agreement. The court shall also inquire as to whether the defendant’s willingness to plead guilty results from prior discussions between the prosecutor and the defendant or the defendant’s attorney.

In addition, the court must inform the defendant of the consequences of the plea and of the maximum penalty which may be imposed. Section 46-16-105(1)(b), MCA. Defendant asserts that he entered his pleas under fundamental mistake and misunderstanding of their consequences. While the law does not require the trial court to educate the defendant on all aspects of the relevant law before accepting a guilty plea, if the plea is based on fundamental mistake or misunderstanding as to its consequences, the court may allow the defendant to withdraw the plea. Cameron, 830 P.2d at 1287; Benjamin v. McCormick (1990), 243 Mont. 252, 256, 792 P.2d 7, 10.

The District Court acknowledged that it did not inform defendant of the maximum sentence allowable for sexual assault under § 45-5-502, MCA, or of the mandatory two-year minimum sentence. However, the court ordered that the two-year minimum did not apply pursuant to § 46-18-222(6), MCA, because

the offense was committed under 45-5-502(3) and the court determine [d] that the treatment of the defendant in a local community affords a better opportunity for rehabilitation of the defendant and for the ultimate protection of society ....

The court’s failure to inform defendant of the maximum and the mandatory minimum was harmless error.

Defendant maintains that he misunderstood the consequences of the treatment component of his suspended sentences and the requirement that he register as a sex offender. The court was not required to inform defendant the he would be required to register as a sex offender with the Department of Corrections and Human Services until the July 27, 1993, sentencing hearing pursuant to § 46-18-254, MCA. At the October 27, 1992, omnibus hearing, defendant was informed that as a condition of the suspended sentences, he would be required to successfully complete either a sex offender program or an anger management program. At the July 27, 1993, sentencing hearing, defense counsel objected to this condition and called Dr. Scolatti, director of the Saber Program, an outpatient sex offender program, to testify as to the potential consequences of this condition. As a prerequisite, defendant would have to admit to having committed a sexual offense. Dr. Scolatti testified that defendant would probably not be accepted into the program because defendant was unable to admit that he had committed a sexual offense. Defense counsel argued that because defendant maintained his innocence, he was being set up to fail and would eventually face a revocation of his suspended sentence.

In response to this concern, the court accepted as an alternative condition that defendant successfully complete an anger management program. Dr. Scolatti testified that defendant would have a better chance of completing an anger management program, as opposed to a sex offender program. Dr. Scolatti noted that an anger management program would not be confrontational; would not question personal beliefs; and would not require an admission of guilt to a sex offense. While a sex offender program would last at least three years, an anger management program would last six months to one year. The court minimized defendant’s risk of failure and its consequences by permitting this reasonable alternative.

There is no evidence in the record to demonstrate that defendant entered his pleas under mistake or misunderstanding. We conclude that defendant’s plea of guilty was entered voluntarily.

The District Court did not address factor two, the promptness of defendant’s motion to withdraw the prior plea. In general, filing a motion to withdraw a guilty plea over a year after entry of the guilty plea is untimely. Reynolds, 833 P.2d at 155; State v. LaTray (1986), 220 Mont. 358, 363, 715 P.2d 52, 55. Defendant filed his motion to withdraw his plea approximately seven months after pleading guilty, therefore, his motion was filed promptly.

The third factor we must consider is the fact that defendant’s plea was the result of a plea bargain. We have held that this Court will not lend its assistance to an accused criminal in escaping the obligations of a plea bargain after accepting its benefits. Reynolds, 833 P.2d at 363; State v. Radi (1991), 250 Mont. 155, 162, 818 P.2d 1203, 1208; State v. Koepplin (1984), 213 Mont. 55, 64, 689 P.2d 921, 926. In exchange for pleas of guilty to two counts of sexual assault, the State agreed to dismiss charges of sexual intercourse without consent, unlawful restraint, assault, and unlawful transactions with children. In addition, defendant’s sentence was suspended with the exception of 60 days. The court noted that defendant would be given credit for the 45 days he had served. The mandatory minimum sentence was not applied, and defendant was not required to attend a sex offender treatment program that required an admission of guilt.

Finally, defendant argues that statements made by one of the victims after defendant entered a guilty plea amounts to a recantation that required the court to allow defendant to withdraw his guilty pleas. The statements were made by one of the victims to the county attorney who related the statements in a letter to co-defendant Dodson’s attorney. Shortly thereafter, the charges against Dodson were dismissed. Defendant asserts that had he been aware of the statements he would never have pled guilty.

A review of the statements contained in the letter shows that they are not exculpatory as to the charges of sexual assault under § 45-5-502, MCA, to which defendant pled guilty. Because defendant properly pled guilty, he waived all factual defenses which occurred prior to the plea. State v. Hilton (1979), 183 Mont. 13, 18, 597 P.2d 1171, 1173; State v. Turcotte (1974), 164 Mont. 426, 428, 524 P.2d 787, 788. Thereafter, defendant may only attack the voluntary nature of his plea. Hilton, 597 P.2d at 1173; State v. Pepperling (1978), 177 Mont. 464, 473, 582 P.2d 341, 346; Turcotte, 524 P.2d at 789.

After applying the three good-cause factors to the present case, we hold that the District Court did not abuse its discretion in denying defendant’s motion to withdraw his guilty plea.

Affirmed.

JUSTICES HARRISON, GRAY, NELSON and WEBER concur.


author: JUSTICE WEBER

text:
    JOSEPH SEBENA, DANIEL SEBENA and SEBENA PAVING, INC., a Montana Corp. Plaintiffs, v. STATE OF MONTANA, et al., Defendants, ROGER JONES, MARLENE JONES, and DONNA WALKER, Cross-Claim Plaintiffs & Appellants, v. STATE OF MONTANA, Cross-Claim Defendant and Respondent.
    No. 94-218.
    Submitted on Briefs August 18, 1994.
    Decided November 7, 1994.
    51 St.Rep. 1101.
    267 Mont. 359.
    883 P.2d 1263.

      For Appellants: Eula Compton, Missoula.
    For Respondent: John H. Tarlow, Landoe, Brown, Planalp and Braaksma, Bozeman; Roy H. Andes, Montana Department of State Lands, Helena.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from the grant of summary judgment to the State of Montana by the Eighteenth Judicial District Corut, Gallatin County. We affirm.

We consider the following issues on appeal:

I. Did the District Court err in granting the State’s motion for summary judgment on the Joneses’ and D. Walker’s negligence claim where the judgment was based on the court’s legal determination that the State has no duty of care to third parties in the selection of lessees of state lands?

II. Did the District Court abuse its discretion in failing to enjoin the State from re-leasing land formerly leased to M & W Enterprises?

III. Did the District Court err in granting summary judgment on the Joneses’ and D. Walker’s quantum meruit claim?

The State of Montana owns school trust land located at North 7th Avenue in Bozeman. The land is administered by the Department of State Lands (DSL). DSL leased this tract of land to M & W Enterprises (M & W) for a ten-year period beginning in April of 1989. M & W agreed to pay $3,000 yearly for the purpose of building an amusement park complete with a waterslide area.

The DSL lease was signed by Bill Metzger (Metzger) and Lonnie Walker (L. Walker), alleged general partners of M & W Enterprises, a limited partnership. Cross-Claimants in this case are Roger Jones and Marlene Jones (the Joneses) and Donna Walker (D. Walker).

The Joneses paid $50,000 to Metzger and L. Walker and signed an agreement whereby they were promised ten percent of the stock in “Adventureland”, the envisioned corporation which was to be created in connection with the DSL leased land. In a similar manner, D. Walker invested $35,000 and the agreement which she signed with Metzger and L. Walker stated that she would receive 3.5 percent of the business. The record does not demonstrate that the corporation Adventureland was ever organized. Instead, both entities were made limited partners of a registered limited partnership called M & W Investments — represented later to the Bankruptcy Court during the subsequent Bankruptcy proceedings of M & W general partners as the same entity as M & W Enterprises.

During the summer of 1989, Metzger and L. Walker installed the waterslide and made improvements to the land. During this time, M & W began to encounter financial problems, and as a result, did not proceed further in the organization of the corporation.

During the summer of 1991, the Joneses and D. Walker obtained a non-dischargeable fraud judgment in Bankruptcy Court against L. Walker and Metzger totalling $85,000. The Joneses and D. Walker had recovered approximately $55,000 of this amount at the time of the hearing.

An attorney representing the Joneses, D. Walker, and other investors approached DSL in 1991 and 1992 inquiring about assuming the lease from Metzger and L. Walker. DSL refused this course of action because of the unresolved liabilities that already surrounded the property. DSL never received a formal assignment proposal.

State lease #4586 to M & W Enterprises was canceled for non-payment of rent on April 1,1992. The lease itself provided a 60 day period in which persons with a claim against the improvements on the piece of land could file their claims. No such claims were ever filed and although DSL offered to permit the Joneses to remove and salvage the waterslide, the Joneses did not do so.

The Joneses and D. Walker procured a purported assignment of Metzger’s and L. Walker’s interests in state lease #4586 in November of 1992. However, the record is devoid of any evidence that this assignment proposal was ever submitted to DSL for approval, nor were the regulatory procedures followed in the attempt to make the assignment.

DSL did not lease this land for two years following the cancellation of M & W’s lease. In 1994, DSL leased the land for $28,200.

This case was originally filed by Sebena Paving as a construction lien foreclosure against a state lessee, M & W Enterprises. Sebena sued anyone with an interest in the property, including the State, the Joneses, D. Walker, and other creditors and investors in the project. Sebena Paving and the other parties plaintiff were dismissed as parties to the current action. They were not involved in any manner in this appeal.

In February of 1992, the Joneses and D. Walker filed a two-count cross-claim against the State seeking to recover their losses as investors. They subsequently added a third count in quantum meruit. The State moved for summary judgment on all counts. The District Court granted summary judgment and dismissed the cross-claims.

From these orders the Joneses and D. Walker appeal.

I

Did the District Court err in granting the State’s motion for summary judgment on the Joneses’ and D. Walker’s negligence claim where the judgment was based on the court’s legal determination that the State has no duty of care to third parties in the selection of lessees of state lands?

Appellants argue that the State is responsible for the negligence of its employees and that employees of DSL were negligent in not investigating the background of Metzger and L. Walker. Appellants argue that the State has a duty to lease its land to the best lessee it can find.

The respondent State contends that it has no duty to third persons such as appellants in this action. The State argues that injury alone does not create a liability; there must be a legal duty imposed on the State that has been breached in order for negligence to he. The State concedes that it must act prudently with regards to leases of state lands; however, the prudence required, according to the State, exists to favor the State and not the lessee.

The court granted summary judgment because it determined that the State had no duty to the Joneses or D. Walker. Summary judgment is appropriately granted when there is no genuine issue of material fact and the moving party is due judgment as a matter of law. Mogan v. Cargill, Inc. (1993), 259 Mont. 400, 856 P.2d 973.

While some of the facts in this case are disputed by the parties, the material facts are not. The record shows that the lease to M & W was automatically canceled in April of 1992. The record also shows that the automatic cancellation provision is listed in the signed lease at paragraph 3 — the provision is typed in capital letters; the lease is signed by both parties. When a contract is clear on its face, the only responsibility that this Court has is to enforce the contract as the parties intended. First Sec. Bank of Anaconda v. Vander Pas (1991), 250 Mont. 148, 818 P.2d 384. The parties clearly provided that the lease automatically expire April 1, 1992, if the yearly payment was not received by DSL.

We affirm the conclusion of the District Court that the lease automatically terminated April 1,1992, as a result of the nonpayment of rent. We further conclude that the purported assignment of that lease in November 1992, was ineffective as the lease had already been cancelled.

Appellants would have us interpret § 77-6-205(2), MCA, as imposing upon the State a duty to the public to investigate potential lessees. While DSL has a statutory “duty,” that duty is to the State of Montana:

The board shall accept the highest bid. If the lessee exercises the preference right and believes the bid to be excessive, the lessee may request an administrative hearing. ... The department shall grant the request for a hearing if it determines that the statement indicates evidence that the bid may not be in the state’s best interests. ... It is the duty of the board to secure the best lessees possible, so that the state may receive the maximum return possible with the least injury occurring to the land. (Emphasis added.)

Section 77-6-205(2), MCA. The statutory obligation on the part of the State Land Board is to secure the maximum return to the State with the least injury to the land. The statute does not create any obligation to third parties.

Appellant cites Jeppeson v. State Dept. of State Lands (1983), 205 Mont. 282, 667 P.2d 428, for the proposition that DSL has a duty to exercise due care in its handling of leases. DSL admits that they must act prudently. However, a thorough reading of Jeppeson also reveals that this Court will not reverse a DSL decision unless it finds the decision arbitrary or capricious:

This Court will not disagree with the proposition that the department should act as prudently as possible with respect to the handling of lease assignments. But we find no evidence suggesting even a hint of arbitrary and capricious behavior on the part of respondent or its employees.... this Court will not compel a state agency to make a particular decision with respect to a matter when that agency exercises its own judgment and discretion, and has not violated any statutory provisions or engaged in fraudulent action.

Jeppeson, 205 Mont. at 292-293, 667 P.2d at 433. The record contains no evidence that the State acted imprudently, arbitrarily, or capriciously when it leased the land to M & W.

We conclude that the State is correct in its contention that the lease was canceled on April 1,1992. We further conclude that there was no genuine issue of material fact which precluded summary judgment. We hold the District Court correctly granted the State’s motion for summary judgment on the Joneses’ and D. Walker’s negligence claim where that judgment was based on the court’s legal determination that the State has no duty of care to third parties in the selection of lessees of State lands.

II

Did the District Court abuse its discretion in failing to enjoin the State from re-leasing land formerly leased to M & W Enterprises?

The complaint in this action was filed in September of 1991 and the Joneses’ and D. Walker’s cross-claims were filed on February 1, 1992. The Joneses and D. Walker allege that at sheriff’s sale they purchased 100 percent of the issued and outstanding shares of Metzger Real Estate, Inc., and this purchase, along with their prior investments in the M & W partnership, entitles them to an interest in the DSL lease which was still in force in February of 1992.

Because of their claimed interest in the lease with DSL, the Joneses and D. Walker petitioned the court for an injunction against DSL to prevent DSL from re-leasing the property until DSL fully compensated persons for the improvements made to the leased property. The Joneses and D. Walker contend that their interest in M & W entitles them to the injunction. They argue that the court should have granted the injunction until such time as the parties had been compensated completely for the improvements to the land that had been made with their money.

The State argues that M & W “Investments” is not the party that is the lessee in this case. DSL leased land to M & W “Enterprises,” a different legal entity. Further, DSL claims that it provided an opportunity for persons with an interest in the improvements on the land in question to file claims for removal of the improvements. No claims were filed, and as a result, DSL argues that this question of compensation for improvements is moot.

The lease signed by Metzger and L. Walker for M & W calls for improvements to be removed within 60 days of the lease cancellation. The record indicates that despite this 60 day limit, DSL informed the appellants’ counsel by letter on September 17,1992, that the Joneses and D. Walker could remove improvements traceable to her clients within 60 days after the date of the letter. Therefore, the record indicates that appellants had seven months within which to remove the improvements or make claims for compensation. No one made an attempt to remove anything from this leased property nor file a claim for compensation. We conclude that the appellants cannot now claim that DSL failed to provide an opportunity for such removal when the record is clear that they had more than the contractually required time in which to remove such improvements or make a claim.

Based on these facts, the District Court denied the appellants’ request for an injunction stating that no basis existed for such remedy. The grant or denial of an injunction is a discretionary ruling of the corut and we will not reverse that ruling absent an abuse of discretion. Gabriel v. Wood (1993), 261 Mont. 170, 862 P.2d 42. The party seeking an injunction must prove his right to the injunction. Lewis v. Hanson (1951), 124 Mont. 492, 227 P.2d 70. The record clearly demonstrates that the State provided more than the contractually required amount of time for interested persons to make a claim upon the improvements and remove the same. We conclude that the plaintiffs failed to prove their right to an injunction.

We hold the District Court did not abuse its discretion in denying the issuance of an injunction to stop the State of Montana from re-leasing its land.

Ill

Did the District Corut err in granting summary judgment on the Joneses’ and D. Walker’s quantum meruit claim?

The Joneses and D. Walker argue that the State has been unjustly enriched at their expense because of the improvements remaining on the leased land and they are, therefore, entitled to restitution by virtue of the theory of quantum meruit. Further, appellants contend that the State has a statutory duty to ensure that the new lessees of the property compensate the parties whose money went to create the improvements to the land. Appellants claim that the State received the benefit of $16,547.99 for improvements directly and also is receiving $28,200 for the same leased property which DSL leased to M & W for $3,000.

Unjust enrichment is an equitable doctrine wherein the plaintiff must show some element of misconduct or fault on the part of the defendant or that defendant somehow took advantage of the plaintiff. Randolph v. Peterson, Inc. v. J.R. Simplot (1989), 239 Mont. 1, 778 P.2d 879.

The District Court granted summary judgment to the State because it found no element of fraud or misconduct on the part of the State. Following a careful review of the record, we do not find any indication of misconduct or fault on the part of the State. Appellants’ bald assertions create no genuine issues of material fact. The State is entitled to summary judgment as a matter of law. We hold that the District Court did not err in granting summary judgment to the State on the Joneses’ and D. Walker’s quantum meruit claim.

Affirmed.

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