text:
    IN RE MARRIAGE OF MAUREEN E. ORTIZ, Petitioner and Respondent, and JOSEPH J. ORTIZ, Respondent and Appellant.
    No. 96-213.
    Submitted on Briefs March 13, 1997.
    Decided May 27, 1997.
    54 St.Rep. 446.
    282 Mont. 500.
    938 P.2d 1308.

      See C.J.S. Evidence § 739.
    For Appellant: Richard J. Carstensen, Attorney at Law, Billings.
    For Respondent: Karl Knuchel, Attorney at Law, Livingston.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Maureen E. Ortiz filed a petition for dissolution of her marriage to Joseph J. Ortiz in the District Court for the Thirteenth Judicial District in Carbon County. Following a hearing, the District Court dissolved the parties’ marriage and distributed their marital property. Joseph appeals from the District Court’s valuation and distribution of the marital estate and its determination that he is hable for certain medical bills. We affirm the order of the District Court.

We address three issues on appeal:

1. Did the District Court err when it valued the parties’ ranch at $400,000 based on the testimony of an agricultural real estate broker?

2. Did the District Court err when it ordered that the parties’ranch be sold and that the proceeds be divided equally between the parties?

3. Did the District Court err when it determined that Joseph was hable for his medical debts which had been incurred prior to the parties’ separation?

FACTUAL BACKGROUND

Maureen and Joseph Ortiz were married on February 10,1962. In 1971, the parties purchased a 709 acre ranch located between Red Lodge and Billings for $72,000. The parties resided at the ranch until their separation on May 26,1994. During the parties’ marriage, they attempted to raise cattle on the ranch, but found that the operation was not economically viable. Joseph therefore continued his employment as a full-time cement contractor. Since 1992, however, Joseph has been unable to work due to physical disability.

On June 1,1994, Maureen filed a petition for dissolution of marriage in the Thirteenth Judicial District Court. In her petition, Maureen requested that the parties’ ranch be sold and the proceeds be divided equally between Joseph and her. Joseph, however, requested that the ranch be left intact, and that he be allowed to pay Maureen for her one-half interest in the property over a five-year period.

At the dissolution hearing on July 10,1995, both parties disputed the value of the 709 acre ranch. Linda Bender, a real estate broker with nine years’ experience marketing farm, ranch, commercial, and residential property in the area, testified for Maureen that the Ortizes’ 709 acre ranch was worth $400,000. To arrive at that figure, Bender performed a detailed comparative market analysis, in which she compared the Ortizes’ ranch with four properties that had sold within six months of the hearing, as well as with nine ranches that she had sold in the previous year. Based on her comparative market analysis, Bender testified that the parties’ 709 acres were worth an average of $400 per acre. To this value, Bender added the $49,953 appraised value of the Ortiz home, and the $23,310 cost of replacement for the surrounding outbuildings, for a total valuation of $398,000 to $400,000.

Bender supported her per-acre valuation by comparing the parties’ property to pending land sales on surrounding ranch properties, which ranged from $520 per acre to $1100 per acre. She testified that a farm appraisal would not be useful in determining the market value of the Ortiz property because a prospective purchaser would probably not buy the property for use as a ranch or farm. Instead, Bender testified that the highest value of the land was for a scenic retreat due to its proximity to Billings and Red Lodge.

In contrast, Joseph’s expert, Vemon Schoulte, valued the Ortiz ranch based onits utility as a workingranch. Usingthe “cost approach” method of valuation, which is based upon the economic utility of the property, Schoulte valued the parties’ ranch at $182,500. During the hearing, however, Schoulte acknowledged that during the time the of the Ortizes’ marriage, the ranch was “not a viable economic farm.”

On October 30,1995, the District Court entered its findings of fact, conclusions of law, and decree. In its findings of fact, the court determined that the parties’ ranch “has a fair market value of $375,000.00 to $425,000.00.” In its final property division, the court valued the ranch at $400,000 and ordered that the property be sold with the proceeds divided equally between Maureen and Joseph. In addition, the court ordered Joseph to assume liability in the amount of$15,100 for medical bills which he had incurred prior to the parties’ separation.

ISSUE 1

Did the District Court err when it valued the parties’ ranch at $400,000 based on the testimony of an agricultural real estate broker?

This Court reviews a district court’s factual findings related to the division of marital property to determine whether those findings are clearly erroneous. In re Marriage ofDanelson (1992), 253 Mont. 310, 317, 833 P.2d 215, 219. If the court’s findings are not clearly erroneous, this Court will affirm the court’s distribution unless the court abused its discretion. In re Marriage of Smith (1995), 270 Mont. 263, 267-68, 891 P.2d 522, 525.

On appeal, Joseph contends that the District Court’s findings of fact regarding the valuation of the parties’ ranch are clearly erroneous. Specifically, Joseph asserts that the District Court erred when it accepted the testimony of Maureen’s real estate broker, who had no experience as a property appraiser, over the testimony of his expert, who had been a certified and licensed appraiser for fifteen years. Based on his contention that Maureen’s expert did not have adequate qualifications to value the Ortiz ranch, Joseph asserts that the District Court’s valuation of the ranch, based on that testimony, was unsupported by substantial evidence.

In this case, Linda Bender testified for Maureen regarding the present market value of the Ortizes’ 709 acre ranch. Bender’s credentials, as presented at the hearing, included five years’ experience as a real estate broker and nine years’ experience as a real estate sales person and real estate associate. Bender testified that her position as a real estate associate consisted of the marketing of farm, ranch, commercial, and residential property. In addition to her experience selling property, Bender had completed 120 credit hours of training and an additional 15 hours every two years of supplemental training.

Bender based her valuation of the Ortiz property upon both her inspection of the property and upon a detailed comparative market analysis. She testified that she was familiar with the sales of comparable property in Carbon and Stillwater Counties within the past two years, and based her comparative analysis on four similar properties that had sold within six months of the date of the hearing, as well as on nine properties that she had sold in the previous year. In addition, Bender testified that on the day before the hearing she had found one pending sale and several listings “right in the neighborhood” that supported her comparative market analysis. Based on her experience as a real estate broker in the area, Bender testified that she could sell the Ortiz ranch for between $360,000 and $430,000.

In contrast, Joseph’s expert, Vernon Schoulte, testified that he had appraised the Ortiz ranch at $182,500 based on its “highest and best use” as a farm or ranch. Schoulte had experience as both an appraiser and a real estate broker; however, his testimony regarding the value of the Ortizes’ranch was based solely on his appraisal of the property. He did not express an opinion regarding the amount the Ortizes could expect to receive from a sale of their property. Furthermore, although Schoulte testified that the property’s best use, pursuant to the cost approach method of valuation, was as a working farm or ranch, he admitted at the dissolution hearing that the property was “not a viable economic farm” during the time of the Ortizes’ management.

Whether an adequate foundation has been established for the admission of expert opinion testimony is an issue largely within the discretion of the district court. Jim’s Excavating Serv. v. H.K.M. Assoc. (1994), 265 Mont. 494, 509-10, 878 P.2d 248, 257.

In this case, we hold that the District Court did not abuse its discretion when it relied on the opinion testimony of Linda Bender, and that its findings based on that testimony are not clearly erroneous. We therefore affirm that portion of the District Court’s order which valued the parties’ ranch at $400,000.

ISSUE 2

Did the District Court err when it ordered that the parties’ ranch be sold and that the proceeds be divided equally between the parties?

Joseph contends that the District Court erred when it ordered the sale of the Ortiz ranch. Joseph wants to continue to five on and ranch the parties’ real property, and contends that by doing so he is capable of paying Maureen her one-half interest in the ranch over a five-year period. In support of his contention that the District Court erred when it determined that the Ortiz ranch should be sold, Joseph cites this Court’s policy “that a family farm or ranch should be kept intact and operated as a unit upon a marriage dissolution whenever there is a reasonable means of providing a wife her equitable share of the marital property short of selling the land.” In re Marriage of Bell (1986), 220 Mont. 123,127, 713 P.2d 552, 555 (quoting In re Marriage ofGomke (1981), 192 Mont. 169,172, 627 P.2d 395, 396).

This Court has held that a district court may consider Montana’s policy in favor of keeping a family farm intact when it distributes the marital property. In re Marriage of Binsfield (1995), 269 Mont. 336, 345, 888 P.2d 889, 894. “No authority is cited, however, and we have located none, in support of the proposition that a family farm must be retained intact.” Binsfield, 269 Mont, at 345, 888 P.2d at 894 (emphasis added). In fact, it is well established that “[t]he policy of keeping a family ranch intact cannot be used to deprive a spouse of his or her equitable share of the marital estate.” In re Marriage of Tonne (1987), 226 Mont. 1, 5, 733 P.2d 1280, 1283. See also In re Marriage ofGarst (1983), 206 Mont. 89, 96, 669 P.2d 1063,1067.

In this case, Maureen contends that the parties’ranch must be sold so that she can receive her equitable one-half share of the marital estate. Specifically, Maureen maintains that Joseph cannot generate sufficient income from the ranching operation and his outside employment to pay her annual installments for her $200,000 interest in the property.

Joseph’s tax returns, introduced at the district court hearing, disclose that Joseph earned an annual average income of $15,250 from 1991 through 1994. Although Joseph testified that he would be able to earn more money after an ankle operation, he introduced no evidence that he would be able to generate sufficient income to pay Maureen for her share of the marital estate. In fact, at the dissolution hearing, Joseph admitted that he would be unable to pay Maureen for her $200,000 share of the ranch and pay his own expenses as well. In addition, he admitted that he would be unable to borrow a sufficient sum to pay Maureen for her share of the estate.

In light of the substantial credible evidence introduced at the dissolution hearing that Joseph was without the financial resources to pay Maureen her equitable one-half interest in the parties’ ranch, we hold that the District Court did not abuse its discretion when it ordered that the ranch be sold and divided equally between the parties. We affirm that portion of the District Court’s decree.

ISSUE 3

Did the District Court err when it determined that Joseph was liable for his medical debts which had been incurred prior to the parties’ separation?

In this case, the District Court divided the parties’ marital liabilities so that Maureen assumed the entire $7,856 obligation remaining for the purchase of her automobile and Joseph assumed the entire $15,100 obligation remaining for his medical bills. Joseph contends, however, that the court erred by assigning him the entire $15,100 debt for his pre-separation medical bills. Joseph maintains that the District Court was bound by Maureen’s testimony at the dissolution hearing that it would be “fair” for her to assume one-half of those debts. In support of his contention, Joseph cites In re Marriage of Beck (1983), 203 Mont. 455, 661 P.2d 1282. The facts in Beck, however, are distinguishable from those in this case.

In Beck, the parties agreed upon and submitted a proposed finding to the district court which established liabilities in the amount of $33,668. The District Court then found that the parties’ liabilities totaled $47,616. In light of the fact that both parties had agreed upon the smaller sum, and the additional fact that the district court altered that sum without explanation, this Court directed the district court to modify its finding to reflect the sum agreed upon by the parties. We stated: “The trial court should not have disregarded a fact to which both parties agree without giving its reasons.” Beck, 203 Mont, at 461, 661 P.2d at 1286.

In this case, however, it is far from clear that the parties agreed that Maureen should be liable for one-half of Joseph’s medical bills. At the dissolution hearing, Maureen was asked:

Q. And do you think it fair that each of you should pay half of [the family bills]?
A. I think, if I am liable to pay half of these bills, then I am liable to pay half of these bills.
Q. I just asked if you thought it was fair?
A. Yes.

Maureen’s testimony did not reflect an agreement by both parties that Maureen would pay one-half of Joseph’s medical bills. Furthermore, the District Court was aware, from documents submitted to that court, that Maureen did not believe herself liable for those bills. For example, in her petition for dissolution of marriage, Maureen proposed that “[Joseph] should be solely liable for his medical bills and any other debts of the marriage.” It was clearly within the District Court’s discretion, given the lack of any formal agreement regarding liability for Joseph’s medical bills, to determine how to divide the parties’ marital liabilities. We hold that the court did not err when it decided that Maureen should assume liability for her car and Joseph should assume liability for his medical bills. We therefore affirm that portion of the District Court’s order.

Based upon our conclusions that the District Court did not err when it valued the parties’ ranch at $400,000 and ordered that the ranch be sold, and based upon our conclusion that the District Court did not err when it divided the parties’ marital liabilities, we affirm the judgment and decree of the District Court.

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


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    GREG GARRISON, Plaintiff and Appellant, v. DAN L. AVERILL, TRAILS WEST REALTY, INC., and JOHN J. GAINEY, JR., individually and as Trustee of the John J. Gainey, Jr., Trust u/t dated December 21, 1987, Defendants, Respondents and Cross-Appellants.
    No. 96-498.
    Submitted on Briefs February 13, 1997.
    Decided May 27, 1997.
    54 St.Rep. 454.
    282 Mont. 508.
    938 P.2d 702.

      See C.J.S. Trial § 36.
    For Appellant: John R. Gordon; Reep, Spoon & Gordon, Missoula.
    For Respondents: Lane K. Bennett, Attorney at Law, Kalispell (for John J. Gainey, Jr.); Gary L. Graham; Garlington, Lohn & Robinson, Missoula (for Dan Averill and Trails West Realty).
   JUSTICE GRAY

delivered the Opinion of the Court.

Greg Garrison (Garrison) brought this action seeking rescission of a land purchase agreement under which he bought property from John J. Gainey, Jr. (Gainey). He also sought damages from the real estate broker, Dan L. Averill (Averill), and Trails West Realty, Inc. After a six-day bench trial, the Eleventh Judicial District Court, Flathead County, entered its findings of fact, conclusions of law and judgment for the defendants. Garrison appeals and Gainey cross-appeals. We affirm.

Garrison presents the following issues on appeal:

1. Did the District Court abuse its discretion in denying Garrison’s motion for a mistrial?

2. Did the District Court err in finding that Averill and Gainey fully advised Garrison of the easement?

3. Are the District Court’s findings that Averill met the standard of care in disclosing his agency relationship with Gainey to Garrison and in keeping Garrison properly informed clearly erroneous?

4. Did the District Court err in determining that Garrison had assumed the risk by not reading the easement?

5. Are the District Court’s findings that Garrison was not damaged clearly erroneous?

The issue in Gainey’s cross-appeal is whether the District Court erred in failing to award him attorney fees against Garrison.

Background

In 1989, Gainey acquired Lots 4,5, and 6 (the property) in the Crag Moor Addition, a platted subdivision on Flathead Lake in Flathead County, Montana. Gainey constructed a large log home, a boat dock, and other improvements on the property. Gainey’s deed provided that the property was subject to a perpetual easement in favor of the owners of Lots 5 through 19 of Crag Moor Addition,

over and across the existing roadways on Lots 3 and 4 of Block 1 of said Crag Moor (excepting private driveways) for ingress and egress to and from FLATHEAD LAKE and the perpetual right and easement to use the existing dock, parking lot, swimming areas and swimming deck thereon, which easement is not exclusive but must be exercised with respect to the rights of other persons lawfully using said lands and facilities.

The shoreline where the easement is located has large natural rocks which prevent launching anything other than a very lightweight boat or canoe. When the easement was created, a swimming platform and a large dock existed adjacent to Lots 3 and 4. Both the swimming platform and the dock had been destroyed by the time Gainey purchased the property.

Averill is the owner of Trails West Realty, Inc. He sells real estate on Flathead and Whitefish Lakes and other recreational property in the Flathead Valley. In the spring of 1992, Averill met Garrison at the Flathead Valley home of a mutual acquaintance. Garrison, a longtime resident of California, was interested in purchasing property in the Flathead Valley.

Through Averill, Garrison submitted an offer to purchase Flathead Valley property known as the Skaggs Lake property. Subsequent negotiations for his purchase of the Skaggs Lake property were unsuccessful.

In early May 1992, Averill showed Garrison Gainey’s property on Flathead Lake. Averill did not have a listing agreement on Gainey’s property at the time, but he knew that Gainey was interested in selling it. Through Averill, Garrison made a $1.2 million offer to purchase the property in a turn-key sale which would include most of the personal property on the premises. When Averill took the offer to Gainey, Gainey counteroffered to sell for $1.25 million. He also told Averill about the easement for the other lots in Crag Moor Addition, and about the dock and swimming platform which had existed at the time of the easement but had since washed out. Gainey told Averill he had never seen any of the lot owners using the easement.

That same evening, Averill conveyed Gainey’s counteroffer and the information about the easement to Garrison. Averill told Garrison that, when Garrison received a title insurance policy, he would have an opportunity to review the easement and decide what to do about it. Averill advised Garrison that if he wanted to back out of the transaction because of the easement, he could do so. At the same time, Averill explained to Garrison that he worked for Gainey as the seller, that he had a fiduciary relationship with Gainey, and that Gainey would pay his commission. Garrison accepted Gainey’s counteroffer.

Averill and Garrison returned to the Gainey property the following day. They went through the house in detail, with Gainey pointing out items of personal property he would be taking when he left. Outside, Gainey pointed out the boundary stakes for the property and explained that the other lot owners had an easement to come onto the area where the old dock had been. The access road for the easement, although somewhat grown over with weeds, was apparent. After that visit, Garrison returned to California.

Before the closing on June 1, Averill and Garrison communicated several times about the terms of the turn-key sale, and Averill gave Garrison a written inventory of the personal property to be included in the sale. Averill read the easement language to Garrison over the telephone and advised Garrison to consult an attorney regarding the extent of the easement and whether it could be extinguished, as Garrison was interested in doing. Garrison did not want to incur the cost of an attorney and, instead, asked Averill to get an informal opinion from his attorney. When Averill’s attorney was unwilling to provide such an opinion without further research and study, Averill called the Flathead Regional Development Office. He was advised that, under local regulations, the lot owners might have difficulty in obtaining permission to build a new dock and, if they got permission, the dock would be limited in size. Averill conveyed this information to Garrison.

On June 1, just prior to the closing, Averill and Garrison again walked the property with Gainey. Averill had the copy of the deed showing the easement with him, and Gainey again informed both Averill and Garrison that, to his knowledge, the easement was not being used. The closing took place as planned.

Within a few weeks after the closing, some Crag Moor Addition lot owners held a barbeque and bonfire on the easement near the lake, placing a picnic table and stone fire circle on the easement. Garrison later discovered the evidence of this use. He also received a letter from an attorney representing the Hughes Bay Corporation, which provided water for the Crag Moor Addition lots, asserting the lot owners’ rights to use the easement.

Garrison brought this suit seeking rescission of the purchase agreement under which he bought the property and damages. He alleged fraud and failure of consideration and requested rescission against Gainey, and alleged fraud, constructive fraud, negligence and negligent representation against the other defendants.

The District Court, sitting without a jury, issued detailed findings, conclusions and judgment in favor of the defendants. The court ordered that each party bear its own attorney fees, but that the defendants recover their costs of suit.

Issue 1

Did the District Court err in denying Garrison’s motion for a mistrial?

Our standard in reviewing a district court’s denial of a motion for a mistrial in a civil case is whether the district court abused its discretion. Dees v. American Nat. Fire Ins. Co. (1993), 260 Mont. 431, 443, 861 P.2d 141, 148.

Trial of this case began on March 14 and recessed on March 17, 1994, pending the setting of a date for its continuation. Trial subsequently was set to reconvene on October 31,1994, but was rescheduled with the consent of all counsel to December 21,1994. In November of 1994, Garrison moved for a mistrial because of the delay in completing the trial and because the reconvened trial would deal only with the defendants’ cases; he had completed presentation of his case-in-chief during the four days of trial in March. He argued that this delay would substantially prejudice him.

The court denied Garrison’s motion and trial resumed on December 21 and 22,1994. Post-trial briefs and proposed findings were filed approximately one month later and the District Court’s findings, conclusions and judgment were entered in April of 1996.

Garrison contends that the District Court’s grasp of the issues and evidence was dulled by the delay in completing the trial. The only factual basis he asserts for this claim is that Averill’s proposed findings and conclusions appear to have formed the pattern for the court’s ultimate findings and conclusions.

It is clear that the time lapse between the opening of trial and the entry of judgment in this case was lengthy. The only time frame relevant to Garrison’s mistrial motion, however, is the nine-month delay between the beginning and end of the trial, and Garrison contributed to, and expressly acquiesced in parts of, that delay. In its denial of Garrison’s motion for a mistrial, the District Court noted that it had relied on counsel to estimate the number of days needed for the trial and had allotted the estimated amount of time, from March 14 through March 17, accordingly. Garrison’s presentation of his case-in-chief consumed almost all of the four days originally allotted for the entire trial. In July of 1994, after the court ruled on motions presented at the conclusion of Garrison’s case, it scheduled the trial to continue on October 31, 1994, the next available date on the court’s calendar. On August 4, 1994, and with the consent of all counsel, the District Court reset trial to continue on December 21, 1994. Garrison did not move for a mistrial until November 1994.

On this record, it is clear that Garrison consented to the December date for continuation of the trial, moved unsuccessfully for a mistrial three months later based on the delayed trial date, and now seeks to put the District Court in error for denying his mistrial motion. As a general rule, we will not put a trial court in error for a procedure in which the appellant acquiesced or participated or to which no objection was made. Hando v. PPG Industries, Inc. (1995), 272 Mont. 146, 150, 900 P.2d 281, 283 (citations omitted). Yet that is precisely what Garrison seeks to do here, on a “one step removed” basis. Moreover, Garrison cites no authority under which a mistrial motion must be granted due to a delay of nine months in completing a bench trial. Nor does he establish that he was prejudiced by the delay in completing the trial. We will not join Garrison in “assuming” that the District Court’s memory was dulled as a result of this delay.

We take note of Garrison’s references to the overall delay between the opening of trial and the entry of judgment. That period of delay, however, is not relevant to the mistrial issue and is not raised as a separate issue. In any event, Garrison advances no authority requiring a mistrial in a civil case due to an overall delay in judgment such as the delay which occurred in this case. Similarly, Garrison’s contentions about the District Court’s partial adoption of Averill’s proposed findings and conclusions are not relevant to the mistrial issue and are not raised as a separate issue.

We hold that the District Court did not abuse its discretion in denying Garrison’s motion for a mistrial.

Issue 2

Did the District Court err in finding that Averill and Gainey fully advised Garrison of the easement?

Garrison claimed fraud by both Gainey and Averill for failing to disclose to him the “true facts” concerning the extent of the easement and that its owners were “actively and aggressively asserting then-right to it.” He further claimed that Averill’s failure to make full disclosure concerning the easement violated the Montana Real Estate Board’s regulations governing licensed brokers and constituted constructive fraud.

As to the adequacy of Averill’s and Gainey’s disclosures regarding the easement, the District Court found:

Averill and Gainey fully advised Garrison of the existence of the easement and Averill conveyed to Garrison all of the information Gainey had provided. None of the information Gainey provided to Averill was incorrect.

In arguing this issue, Garrison relies on the letter from the Hughes Bay Corporation as evidence that the lot owners not only claimed the right to use the easement, but claimed active rights to conduct picnics and bonfires on it. He asserts that this differed from what Gainey and Averill had told him. He also relies on testimony by two lot owners that they believed they were entitled to cross Lot 5. Garrison further cites evidence that Gainey knew about the lot owners’ claims during a Flathead County Commissioners’ meeting in March of 1990. He argues that, in order to properly support the court’s conclusion that there was no intentional misrepresentation or concealment and that the conduct of Averill and Gainey did not constitute either actual or constructive fraud, there should have been a finding that Gainey disclosed all material facts to Averill and to him. Finally, he argues that fraud findings would have been justified by the evidence he presented.

The extent of the lot owners’ rights under the easement is determined by deed, not by the beliefs of the lot owners. See Bridger v. Lake (1995), 271 Mont. 186, 191, 896 P.2d 406, 408. Although Garrison points out that easements can be modified other than by deed, such as by prescription, he cites no evidence that such modification occurred in this case. We note that the District Court found that the placement of the picnic table and fire ring on the easement was “clearly outside the scope of the use granted by the easement and was, arguably, a trespass.”

As to the argument that Gainey failed to inform Averill and Garrison of use of the easement, several lot owners testified at trial that they had planned to build a boat launch on the easement and had discussed that plan at a county commission meeting in March of 1990 which Gainey attended. Discussion of plans for future use of the easement at the 1990 meeting does not constitute actual use, however; nor did it mean that the lot owners could carry out the plans within the terms of the easement or local regulations. Further, Garrison did not produce evidence that the lot owners ever made application to the county to build a boat launch.

Gainey’s report to Averill and Garrison that, to his knowledge, the easement was not used was consistent with his testimony at trial. It also was supported by the testimony of the owner of Lots 2 and 3, Crag Moor Addition, from 1987 to 1991, who stated that he was retired and at home “three hundred sixty-four days a year,” and had not observed any use of the easement, except by Gainey, during those years. Neither post-sale use and assertions of right nor a statement of a “plan” at a 1990 meeting controverts Gainey’s statements regarding lack of any use of the easement — to his knowledge — during the time he owned the property.

This Court’s standard of review of a district court’s findings of fact is whether those findings are clearly erroneous. Rule 52(a), M.R.Civ.P. Findings are clearly erroneous if they are not supported by substantial evidence, if the court has misapprehended the effect of the evidence, or if a clear and definite mistake has been committed. Schaal v. Flathead Valley Community College (1995), 272 Mont. 443, 446-47, 901 P.2d 541, 543.

The record before us contains substantial credible evidence in support of the District Court’s findings that Averill and Gainey fully advised Garrison of the existence of the easement, that Averill conveyed to Garrison all the information Gainey provided, and that none of the information Gainey provided to Averill about the easement was incorrect. Indeed, Garrison does not contend otherwise.

Garrison argues that the facts in Parkhill v. Fuselier (1981), 194 Mont. 415, 632 P.2d 1132, are similar to those in this case. We disagree. In Parkhill, the sellers represented to the potential buyers that property in which the buyers were interested was served by a community water system. The broker assured the buyers there was no problem with the water system and promised to provide documentation, but did not do so. After the sale closed, the owner of the well shut down the water system and the buyers were forced to pay for a well, because no community well agreement existed. The buyers sued, alleging innocent misrepresentation regarding the water supply by the sellers and their justifiable reliance on the misrepresentation. At the trial, the sellers’ defense was based on an independent investigation clause in the contract for deed under which the property was sold. The district court found that the buyers had justifiably relied on the representations about the water supply and rejected the investigation clause defense. Parkhill, 632 P.2d at 1134. On appeal, we determined that substantial evidence supported the finding of justifiable reliance by the buyers. Parkhill, 632 P.2d at 1135.

Here, in contrast, the District Court found that the easement and its scope were fully disclosed to Garrison and that the information as to nonuse was correct. These findings, like the contrary findings in Parkhill, are supported by substantial credible evidence. That the record in Parkhill supported findings different from those made by the District Court here is totally irrelevant to this case.

After reviewing the record, we hold that the District Court’s finding that Averill and Gainey fiilly advised Garrison of the easement is not clearly erroneous.

Issue 3

Are the District Court’s findings that Averill met the standard of care in disclosing his agency relationship with Gainey to Garrison and in keeping Garrison properly informed clearly erroneous?

Garrison contended that he considered Averill his agent, that he relied on Averill to represent his interests and that Averill was aware of his reliance. He contended that Averill undertook to provide legal advice to him regarding the validity, extent, quality and nature of the easement and failed to advise him to seek legal advice when his interests required it. He asserts that the District Court should have found that Averill’s conduct constituted fraud and constructive fraud and that Averill negligently misrepresented the easement.

The District Court found that “Averill fully advised Garrison before Garrison was committed to the transaction that Averill was acting as the agent of Gainey and not of Garrison.” It also found that “Averill used reasonable care in his investigation of the condition of the premises and used appropriate forms for the completion of the transaction.” The court relied on the testimony of Averill and his expert, Jerry Ford, in making these findings.

As set forth above, we review a district court’s findings of fact under the clearly erroneous standard. See Rule 52(a), M.R.Civ.P.; Schaal, 901 P.2d at 543. Here, it is clear that substantial evidence supports the District Court’s findings about Averill’s disclosure of his agency relationship with Gainey and the adequacy of his performance in relation to the applicable standard of care. Indeed, Garrison does not contend that these findings are clearly erroneous. Rather, he first contends that the District Court erred by disregarding the testimony of his expert witness. He also contends that the evidence would have supported findings that Averill violated the standard of care, was negligent and proximately caused Garrison’s damages. We address his contentions in turn.

Garrison is correct in stating that his expert, Merilynn Foss, testified that Averill had not met the standard of care applicable to a real estate broker in several regards. He is incorrect, however, in asserting that the District Court disregarded Foss’ opinion. The court specifically referenced Foss’ testimony in its findings. For example, Foss having testified that Averill breached the standard of care in failing to document his disclosure to Garrison of his agency relationship with Gainey, the court noted her subsequent admission that use of disclosure forms was not mandatory. The District Court clearly did not overlook Foss’ testimony and Garrison cites no authority under which a trial court must catalog the entire testimony of an expert witness whose testimony is controverted by an opposing expert. Nor, of course, is a trial court obligated to accept the testimony of one witness over that of another. Where there is conflicting evidence, it is within the province of the trier of fact to weigh the evidence and determine the credibility of witnesses; we will not substitute our judgment for that of the trier of fact on such matters. Rule 52(a), M.R.Civ.P.; State v. Shodair Hosp. (1995), 273 Mont. 155, 164, 902 P.2d 21, 26.

Garrison also contends that there is sufficient evidence in the record to support District Court findings, which were not made, that Averill violated the standard of care, was negligent, and proximately caused Garrison’s damages. However, the existence of evidence which might support a finding of fact does not require a district court to make that finding. Yellowstone Basin Properties v. Burgess (1992), 255 Mont. 341, 352, 843 P.2d 341, 348. Our standard of review is, in the first instance, whether the findings made are supported by substantial evidence. See Schaal, 901 P.2d at 543. As noted above, it is undisputed that the findings at issue here are supported by substantial evidence.

We hold that the findings of the District Court that Averill met the standard of care in disclosing his agency relationship with Gainey and in keeping Garrison properly informed are supported by substantial evidence and are not otherwise clearly erroneous.

Issue 4

Did the District Court err in determining that Garrison had assumed the risk by not reading the easement?

The District Court concluded that

Averill’s duty to Garrison was to disclose the existence of the easement, which he did, and by his then proceeding with the purchase of the property in spite of that knowledge, Garrison assumed the risk of any subsequent damages he allegedly sustained.

Assumption of the risk is a tort term ordinarily associated with personal injury actions. It was not pled as a defense to Garrison’s action. As a result, Garrison is correct in asserting that the District Court’s reference to assumption of the risk in this case is inappropriate and incorrect.

Not all error is reversible error, however. Reversible error is error that affects a party’s substantial rights. Woolf v. Evans (1994), 264 Mont. 480, 488, 872 P.2d 777, 782. Here, the District Court did not continue with any further analysis or conclusion based upon its reference to assumption of the risk. Nor does the erroneous reference affect the remainder of the court’s findings, conclusions and judgment. Finally, the trial court having found that Averill did not breach any duty to Garrison, and this Court having concluded above that those findings were not clearly erroneous, Garrison’s claims against Averill were effectively rejected. Any subsequent error did not affect Garrison’s substantial rights. Therefore, we hold that the District Court’s reference to assumption of the risk was harmless error.

Issue 5

Are the District Court’s findings that Garrison was not damaged clearly erroneous?

Garrison does not refer to a specific finding in arguing this issue and we observe that the District Court made three findings relating to the lack of any damages sustained by Garrison. We need not scrutinize those findings, however, since the court determined that none of the defendants was legally hable under any of Garrison’s claims and we concluded above that the District Court did not commit reversible error with regard to any liability-related matter raised on appeal. Absent liability for any damages, any error in damage-related findings would be irrelevant and harmless. Therefore, we need not reach the merits of this issue.

Cross-Appeal

Did the District Court err in failing to award Gainey attorney fees against Garrison?

Gainey contends that the District Court’s determination that he and Garrison should pay their own attorney fees is erroneous because he is entitled to a fee award against Garrison pursuant to the buy-sell agreement and the reciprocal attorney fee provision of § 28-3-704, MCA. We disagree.

The buy-sell agreement contains two attorney fee provisions. Paragraph 5 provides:

Time is of the essence of this agreement and of this clause. If any payment to be made hereunder or any other condition of this agreement is not timely made, then this contract, at the option of the party who is not in default, may be terminated and the non-defaulting party may recover damages and reasonable attorneys fees to be awarded by the court in any action for a specific performance or otherwise.

Pursuant to the plain language of this paragraph, a party bringing a successful action for default or breach of the agreement would be entitled to request attorney fees. Paragraph 6 of the agreement provides:

In the event of default by the seller, and if the purchaser elects to treat the contract as terminated, then all payments made hereunder shall be returned to the purchaser. In the event of default by the purchaser, and if the seller elects to treat the contract as terminated, all payments shall be forfeited and retained on behalf of the seller as liquidated damages. In the event, however, that the non-defaulting party elects to treat this contract as being in full force and effect, the non-defaulting party shall have the right to an action for specific performance and shall be entitled to recover damages, including a reasonable attorneys fee to be awarded by the cotut.

Pursuant to this paragraph, a party faced with a default under the agreement could sue for specific performance of the agreement and, upon prevailing, would be entitled to recover attorney fees. In the event of a successful defense against the types of actions specified in paragraphs 5 and 6 of the buy-sell agreement, § 28-3-704, MCA, would vest the defendant with the same rights to attorney fees as are expressly provided to a successful plaintiff in the agreement.

Here, however, Garrison did not sue Gainey for default or breach of any term of the agreement; nor did he sue Gainey for specific performance of the agreement following such a default. Garrison sued Gainey for rescission of the buy-sell agreement based on fraud and failure of consideration. Therefore, it is clear that the attorney fee provisions in paragraphs 5 and 6 of the buy-sell agreement do not apply to Garrison’s action against Gainey and, as a result, they cannot support a “reciprocal” right to attorney fees in Gainey pursuant to § 28-3-704, MCA.

We hold that the District Court did not err in failing to award Gainey attorney fees against Garrison.

Affirmed.

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


author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MICHAEL D. HOWARD, Defendant and Appellant.
    No. 96-196.
    Submitted on Briefs April 3, 1997.
    Decided May 29, 1997.
    54 St.Rep. 464.
    282 Mont. 522.
    938 P.2d 710.
    See C. J.S. Criminal Law § 1631.

      For Appellant: William F. Hooks, Appellate Defender Office, Helena.
    For Respondent: Joseph P. Mazurek, Attorney General, Elizabeth Griffing, Assistant Attorney General, Helena; Gerald J. Navratil, Dawson County Attorney, Glendive.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Michael D. Howard (Howard) appeals the decision of the Seventh Judicial District Court, Dawson County, denying his “Motion to Vacate Conviction.” We affirm.

Howard presents two issues on appeal:

1. Did the District Court err by construing Howard’s “Motion to Vacate Conviction” as a petition for post-conviction relief?

2. Did the District Court err by determining that Howard’s “Motion to Vacate Conviction” was time-barred?

In 1981, Howard was charged in Dawson County with one count of felony theft. The theft Howard was charged with involved the participation of two women, one of whom was also charged with felony theft. Howard’s court-appointed counsel was the same attorney who had represented Howard’s accomplice in her court appearance. The District Court, aware of a possible conflict of interest, gave the attorney time to discuss the matter with Howard. The attorney continued to represent Howard, and no further mention of a conflict of interest was made on the record. Howard subsequently pled guilty to the charge of felony theft and received a sentence of five years in prison, with two years suspended. The judgment, however, initially reflected a conviction for criminal mischief; the District Court later filed an amended judgment correcting the error and changing the crime description to felony theft.

In 1993, Howard asked the District Court for a copy of the file of his accomplice, who had died in 1983, asserting that access to her file was necessary to his own “further legal proceedings.” The District Court denied his request. Howard then filed a petition for post-conviction relief with this Court. In his petition, Howard asserted that his counsel at the plea hearing had suffered from an untenable professional conflict of interest, because the same attorney had also represented Howard’s accomplice in her plea hearing. This Court summarily dismissed his petition, stating that § 46-21-102, MCA, gave a petitioner five years from the date of judgment in which to file a petition for post-conviction relief, and noting that Howard was far past the time allowed.

Howard then filed with the District Court his “Motion to Vacate Conviction,” again asserting that his counsel at his plea hearing had been subject to a conflict of interest. The District Court construed the motion as another petition for post-conviction relief and again dismissed it as out of time. Howard appeals.

The parties agree that the issue of whether the District Court erred in construing Howard’s “Motion to Vacate Conviction” as a petition for post-conviction relief is purely a question of law which involves no factual determination. This Court reviews a District Court’s conclusions of law de novo, to ensure the court’s interpretation of the law is correct. State v. Schnittgen (1996), 277 Mont. 291, 295-96, 922 P.2d 500, 503 (citing State v. Gould (1995), 273 Mont. 207, 219, 902 P.2d 532, 540).

1. Did the District Court err by construing Howard’s “Motion to Vacate Conviction” as a petition for post-conviction relief?

Both Howard and the State agree that the District Court could not consider Howard’s “Motion to Vacate Conviction” as such; no provision of law allows a court to vacate a conviction simply upon the motion of the defendant. The parties disagree, however, in how Howard’s motion should be construed. The State contends the motion amounts to a petition for post-conviction relief, which was properly dismissed as out of time. Howard contends the motion is “similar to” a motion to withdraw his guilty plea.

In arguing that the District Court erred in construing his “Motion to Vacate Conviction” as a petition for post-conviction relief, Howard contends that his motion did not meet the technical requirements for a post-conviction petition nor was it properly verified. In contending that the motion more correctly should be construed as a motion to withdraw his guilty plea, Howard notes that a motion to withdraw a guilty plea may be made at any time before or after judgment, for good cause. Section 46-16-105(2), MCA. Since the statute governing motions to withdraw a guilty plea contains no time limit, Howard contends the District Court should have heard the merits of the motion rather than summarily dismissing it.

Howard first argues that his motion cannot be considered as a petition for post-conviction relief because it was not presented to the District Court in the correct form nor was it verified. We note, however, that the filing was not in the correct form for a proper motion to withdraw a guilty plea, either. Further, this Court has never held that strict compliance to the prescribed form of a post-conviction petition is an absolute prerequisite to the consideration of the merits of the petition. While we of course expect all petitioners to comply with the applicable statutory requirements regarding the form of post-conviction petitions, we recognize that certain petitioners, notably those proceeding pro se, will request relief via some manner other than the properly verified post-conviction petitions. In the interests of justice and judicial economy, this Court occasionally permits such filings to be deemed as petitions for post-conviction relief even if they are not denominated as such. See, e.g., Rudolph v. Day (1995), 273 Mont. 309, 902 P.2d 1007; Blaney v. Gamble (1994), 266 Mont. 51, 879 P.2d 51; State v. Gorder (1990), 243 Mont. 333, 792 P.2d 370. The District Court, therefore, was not precluded from considering Howard’s filing as a petition for post-conviction relief merely because its form was incorrect.

Furthermore, the allegations raised in Howard’s motion were of the type properly raised in a petition for post-conviction relief. Section 46-21-101, MCA, provides in part:

A person adjudged guilty of an offense in a court of record who has no adequate remedy of appeal and who claims that a sentence was imposed in violation of the constitution or the laws of this state or the constitution of the United States, that the court was without jurisdiction to impose the sentence, that a suspended or deferred sentence was improperly revoked, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack upon any ground of alleged error available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy may petition the court that imposed the sentence or the supreme court to vacate, set aside, or correct the sentence or revocation order.

Section 46-21-101(1), MCA. In his motion, Howard asserts that his conviction should be vacated because his counsel suffered from an untenable conflict of interest which served to call into question the validity of Howard’s guilty plea. The assertion of a conflict of interest is an allegation properly addressed in a petition for post-conviction relief. See, e.g., Bishop v. State (1992), 254 Mont. 100, 835 P.2d 732; State v. Bull Coming (1992), 253 Mont. 71, 831 P.2d 578; State v. Sanders (1978), 176 Mont. 74, 576 P.2d 259.

And, in fact, Howard raised the identical issue in a petition for post-conviction relief with this Court, which summarily dismissed it as out of time. By refiling the same contentions in another form in the District Court, Howard seeks to avoid the effect of the applicable statute of limitations. If an individual believes he or she has reason to collaterally attack a sentence or conviction, however, it is reasonable to expect the challenge to be pursued in a prescribed and timely manner. This is the purpose of the post-conviction statutes, which serve:

to bring together and consolidate into one simple statute all the remedies, beyond those that are incident to the usual procedures of trial and review, which are at present available for challenging the validity of a sentence of imprisonment.

Commission Comments to § 46-21-101, MCA. It is also reasonable to expect petitioners to seek collateral relief from a sentence within a reasonable time, which is the purpose for the five-year statute of limitations on petitions for post-conviction relief. Howard, however, waited over ten years before attacking his conviction.

Howard next contends that insisting on construing his motion as a petition for post-conviction relief is tantamount to declaring that a post-conviction petition is the only means by which a defendant may raise a claim after he or she is convicted. But this Court’s expectation that those who may avail themselves of the post-conviction statutes will do so, does not mean that a petition for post-conviction relief is in all cases the only means to obtain review. In certain extraordinary cases, appellate review will be justified by exigent .circumstances, regardless of the passage of time or the inability of the defendant to term his claim as a petition for post-conviction relief.

For example, in State v. Perry (1988), 232 Mont. 455, 758 P.2d 268, this Court determined that Perry’s plea for relief deserved review despite the lapse of over fifteen years and despite the fact that his request could not properly be considered a petition for post-conviction relief, a petition for habeas corpus, or an appeal. Perry, 758 P.2d at 272. In Perry, the claim by another individual that he alone had committed the crime of which Perry was convicted raised a serious and fundamental question regarding Perry’s guilt or innocence. The fact that the individual in question had only recently claimed responsibility for the crime explained why Perry had not raised his claim at an earlier time. These extraordinary circumstances justified this Court’s review.

In the case at bar, however, Howard cannot show such extraordinary circumstances to excuse his failure to pursue post-conviction relief in a timely manner. His counsel's potential conflict of interest apparently was known to him either at the time of his guilty plea or shortly thereafter, yet Howard took no steps to change his plea, appeal his conviction, or collaterally attack his sentence. Now, over fifteen years later, he seeks to revisit the conviction and argue its validity. This is precisely the sort of attack the post-conviction statutes were designed to address, and the District Court did not err in construing Howard’s filing as a petition for post-conviction relief.

2. Did the District Court err by determining that Howard’s “Motion to Vacate Conviction,” construed as a petition for post-conviction relief, was time-barred?

Howard next argues that even if the District Court did not err in deeming his motion to be a petition for post-conviction relief, it nevertheless erred in concluding the petition was time-barred due to the expiration of the statute of limitations. We disagree. The applicable statute is unequivocal on its face and states that “[a] petition for the relief referred to in 46-21-101 may be filed at any time within 5 years of the date of the conviction.” We have previously rejected a petition for post-conviction relief filed by Howard as being out of time. His claims have not become more timely by having been refiled in a different court under a different title.

The judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, REGNIER and TRIEWEILER concur.


author: JUSTICE LEAPHART

text:
    STATE OF MONTANA, ex rel. KATHERINE JONES and TIM LIEN, Relators, v. DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT, in and for MISSOULA COUNTY, and the HONORABLE ED McLEAN, DISTRICT JUDGE, Respondents.
    No. 95-574.
    Submitted on Briefs March 20, 1997.
    Decided May 28, 1997.
    54 St.Rep. 460.
    283 Mont. 1.
    938 P.2d 1312.

      For Relators: Noel K. and Tina J. Larrivee; Larrivee & Larrivee, Missoula.
    For Respondents: Hon. Joseph P. Mazurek, Attorney General; Harley R. Harris, Assistant Attorney General, Helena; Robert L. Deschamps, Missoula County Attorney; Michael W. Sehestedt, Deputy Missoula County Attorney, Missoula.
    For Amicus: Hon. E. Gardner Brownlee, Retired District Judge, Florence; Hon. C. Bruce Loble, Chief Water Judge; Michael J. L. Cusick, Water Master, Bozeman.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

On March 28, 1996, this Court granted Katherine Jones’ and Tim Lien’s (Relators) application for supervisory control and remanded the matter to the District Court for an evidentiary hearing in order to develop a factual record regarding the contentions before the court. Hon. Ed McLean, District Judge, Fourth Judicial District, appointed Senior Water Master Kathryn L. W. Lambert to conduct the evidentiary hearing. After conducting an evidentiary hearing, Senior Water Master Lambert filed a “Master’s Report” with the court on October 30, 1996. The District Court, noting that no objections were filed to the proposed Findings of the Senior Water Master, adopted the Findings in their entirety.

The issues which are raised in the application for supervisory control and which were addressed by the Senior Water Master’s 62 Findings of Fact, are as follows:

1. The District Court exceeded its statutory jurisdiction by performing a de facto adjudication of water rights to Carlton Creek by issuing the 1989 Updated Decree.
2. None of the conditions allowing a sua sponte decree update to “fill in” clerical or descriptive deficiencies in the decree as allowed under Cate v. Hargrave, 209 Mont. 265, 680 P.2d 952, 103 P.2d 1067 (1984) and Quigley v. McIntosh, 110 Mont. 495 (1940) were present when the Order Authorizing Updated Decree was entered.
3. The District Court erred by issuing the 1989 Updated Decree without first providing notice and hearing to all interested parties. Relators’ and other Carlton Creek claimants’ water rights were altered and reduced without their knowledge until the inadvertent discovery of the 1989 Updated Decree.
4. The 1989 Updated Decree contains substantial errors and mistakes that materially affect the right of Relators.
5. Judge Brownlee had a conflict of interest in the subject matter of the Updated Decree.
6. The 1989 Updated Decree has been used as the basis for allocating Carlton Creek causing the premature shut off of water to Relators and other claimants in violation of their priority rights under the 1982 Decree, and will continue to be used unless the District Court’s November 28, 1995 Order is reversed.
7. If the Updated Decree is not set aside the Water Court will have the authority to use, and is expected to rely upon, the Updated Decree to determine the ownership (as well as other details) of Carlton Creek decreed rights pursuant to § 85-2-231, MCA.
8. The District Court violated Article II, Section 9 of the Montana Constitution by issuing the 1989 Updated Decree without public notice or hearing, thereby depriving Jones and Lien of the right to examine the documents and observe the deliberations of the Court and others involved in developing the Updated Decree.
9. Relators are entitled to attorney’s fees.

Background

Without setting forth the Senior Water Master’s findings verbatim, we provide the following factual background for purposes of placing our decision in proper context.

On February 21, 1902, the Hon. J. M. Clements entered his Findings of Fact, Conclusions of Law and Order in Cause No. 1835, Young v. Pendergrass, Fourth Judicial District in and for Missoula County (“the 1902 Decree”). Judge Clements decreed 27 water rights on Carlton Creek, specifying the then current owners’names, the flow rate, the priority date, and, in some instances, the ditch used to convey the water.

On January 31, 1989, the Hon. James B. Wheelis, the Hon. John S. Henson, the Hon. Jack L. Green and the Hon. Douglas G. Harkin, the four District Court Judges of the Fourth Judicial District, entered an Order Authorizing Updated Decree in Cause No. 1835, Young v. Pendergrass. The Order directs (1) that the title of the action be changed by adding “In the Matter of the Adjudication of Carlton Creek;” (2) that retired District Court Judge E. Gardner Brownlee be recalled to active duty to do the necessary research and prepare the updated decree; (3) that the Clerk of Court put the old decree in archives and prepare a modem file jacket for the updated decree and all subsequent filings; and (4) “[t]hat the updated decree shall supersede all prior pleadings in this action relating to the matters contained in the updated Decree.”

The Necessity for the Updated Decree

The Judges of the Fourth Judicial District were concerned about the deteriorating physical state of the 1902 Decree. Because the 1902 Decree did not include place of use or legal descriptions, it had been, and would continue to be, necessary for the water commissioners, as well as the public, to handle the 1902 Decree and the initial pleadings. As the Senior Water Master noted, the 1902 Decree is indeed very fragile; the paper is thin and very brittle, the ink is faded and pages are tattered and ripped. The 1902 Decree has been kept in a folded envelope for as many as 94 years and it is now difficult to open and use the 1902 Decree without risking more damage. Accordingly, on January 31, 1989, the Judges of the Fourth Judicial District issued an Order Authorizing Updated Decree in Cause No. 1835.

On April 27,1989, the Updated Decree Establishing Water Rights in Carlton Creek, Missoula County (“Updated Decree”) was entered by the Hon. E. Gardner Brownlee. The Updated Decree includes ownership, priority date, flow rate, place of use and ditch used for each right. The Updated Decree also notes that some of the decreed rights were not claimed by any Statement of Claim in the ongoing Montana Water Court adjudication of water rights on Carlton Creek so that no elements of those water rights were decreed in the Updated Decree.

Relators Tim Lien and Katherine Jones, husband and wife, purchased their property and water right located within the Carlton Tracts in 1986. Their water right claim 76H-W-114356-00 is for a portion of Peter Hendrickson’s second water right, in the amount of 150 miner’s inches, decreed in 1902. As of the date of the Updated Decree, ten Statements of Claim had been filed with regard to Carlton Creek based upon the Hendrickson water right. The ten Statements of Claim exceed the 150 miner’s inches of the Hendrickson right. This “overclaim” clearly evidences an existing ownership dispute which is the subject of the adjudication in the Montana Water Court.

Jones did not receive notice from the District Court, the Clerk’s office or anyone else that the Order Authorizing an Update to the 1902 Decree had been entered. Lien did not receive notice that the 1902 Decree was going to be updated or that his water right was going to be adjudicated. Neither the 1989 Order Authorizing Updated Decree or the Updated Decree had a certificate of mailing indicating notice to Relators or to any other individuals or entities.

On September 11,1995, after discovering that an Updated Decree had been entered, Relators filed a Motion to Amend and Set Aside Decree with the District Court of the Fourth Judicial District. On November 28, 1995, the Hon. Ed McLean issued an Order Denying the Motion. In its order, the District Court, referencing the on-going adjudication in the Water Court, stated that “[t]he matter of Carlton Creek has been reviewed by the Water Court in Bozeman, Montana before the Honorable Bruce Loble, Chief Water Judge. Therefore it is hereby ordered that all motions to set aside the decree of May 31, 1989 are denied as a new decree has been issued by the Water Court and that decree is controlling.”

Question Presented

The dispositive question presented by this petition is whether the substantive provisions of the Updated Decree in effect adjudicated water rights and thus exceeded the jurisdiction of the District Court.

Discussion

Section 85-2-234(6), MCA, specifies the elements of existing water rights which are to be adjudicated by the Montana Water Court. These elements are the name and address of the owner, the flow rate and/or volume as required, the priority date, the purpose (use), the legal description of the land to which the right is appurtenant (the place of use), the source, the point of diversion, the means of diversion, and the period of use each year.

The Order Authorizing Updated Decree does not specifically direct that the 1902 decreed rights be re-adjudicated. However, specific provisions of that Order state:

Finding of Fact 3 - To remedy this situation the 1902 decree should be reworked and expanded to include additional information such as the land description of the place of use, any subsequent court order defining a decreed right, the judicial knowledge of the court relating to present use of water, and information regarding ditches, lake storage water or any other information that is necessary for a water commissioner to have to properly perform his duty.
Order number 3 - That the Clerk of this Court is instructed to place the old file in the archives of the court and prepare a new file jacket of modern design for this order, the updated decree and all subsequent papers filed that a [sic] filed in this cause.
Order number 4 - That the updated decree shall supercede all prior pleadings in this action relating to the matters contained in the updated Decree.

Pursuant to the directive of the Order Authorizing Updated Decree, the Updated Decree decrees the ownership, priority date, flow rate, place of use and means of diversion of the various rights. It thus constitutes a de facto adjudication of water rights.

The Water Court is presently in the process of adjudicating the rights to Carlton Creek. A Temporary Preliminary Decree of the North End Sub-basin of the Bitterroot River (Basin 76HB), was issued in September 1992, and included 92 claims for Carlton Creek waters. After the temporary preliminary decree is modified by the objection and hearing process, a final decree will be entered and will supersede both the original 1902 Decree and the Updated Decree. Section 85-2-234, MCA. However, in light of the “over claim” status of claims on Carlton Creek in the Water Court, the Water Court’s Temporary Decree will not effectively establish rights or priorities on Carlton Creek. Rather, the Updated Decree, unless reversed, will continue to control the determination and administration of water rights on Carlton Creek.

We determine that the District Court exceeded its jurisdiction in entering the Updated Decree. It is solely within the province of the Water Court, not the District Court, to determine priority dates, flow rates, place of use and means of diversions of the Carlton Creek water rights. See § 85-2-234(6), MCA. We hold that the Updated Decree thus infringes upon the exclusive jurisdiction of the Water Court to determine these aspects of water right ownership. Mildenberger v. Galbraith (1991), 249 Mont. 161, 815 P.2d 130, involved Mildenbergers’ claim of a prescriptive easement in a water ditch. We held that, while a district court may grant injunctive or other relief which is necessary and appropriate to preserve property rights or the status quo pending issuance of a final decree, the district court lacks jurisdiction to issue a final decree with regard to the water right. “The jurisdiction to interpret and determine existing water rights rests exclusively with the water courts. Section 3-7-501, MCA.” Mildenberger, 815 P.2d at 134. This principle was reaffirmed in Baker Ditch Company v. District Court (1992), 251 Mont. 251, 255, 824 P.2d 260, 262:

By statute, the water court is vested with exclusive jurisdiction relative to all matters relating to the determination of existing water rights within the boundaries of the State of Montana.

Under certain circumstances a district court may “fill in” a pre-1973 water decree with farther delineations such as time or season of use and acreage of application. Cate v. Hargrove (1984), 209 Mont. 265, 680 P.2d 952. However, the Updated Decree in question goes beyond “filling in” when it reallocates and adjudicates water rights that did not previously exist under the original 1902 Decree.

The Chief Water Court Judge, Hon. C. Bruce Loble, has filed an amicus brief in this matter in which he asserts that the Updated Decree was not intended as an adjudication of water rights. Rather, it was designed to formalize what would otherwise be a routine administrative function; that is updating the records of Carlton Creek to reflect who has succeeded to a particular water right. He points out that such updating is necessary when, over the course of time, original owners die or they sell or subdivide their property. In order to administer the water rights at the present time, the water commissioners need to know who the present owners are. Judge Loble argues that if Relators are as dissatisfied with the manner in which the water commissioners are administering or allocating the water on Carlton Creek, then their proper remedy is found in § 85-5-301, MCA, which allows a person owning or using water from a stream and who is dissatisfied with the method of distribution of the waters by the water commissioner, to file an action in district court challenging the distribution. “If it appears to the judge that the water commissioner or water commissioners have not properly distributed the water according to the provision of the decree, the judge shall give the proper instructions for such distribution.” Section 85-5-301(2), MCA.

Relators contend that § 85-5-301, MCA, is not controlling since Relators are not dissatisfied with the manner in which the commissioner is administering the decree. Rather, they are contesting the very terms of the Decree itself; i.e., the Updated Decree. In other words, they contend that the problem lies, not with the commissioner, but with the substance of the Decree. We agree. While we acknowledge the practical problems inherent in administering a 95-year-old decree, those concerns do not change the fact that the Updated Decree purports to decree priority dates, flow rates and place of use. Section 85-5-301, MCA, assumes the decree is valid and merely allows the judge to give proper instruction for the distribution of water under the decree. If the substance of the decree itself is invalid as being in excess of the court’s jurisdiction, then § 85-5-301, MCA, affords no remedy.

For the above reasons, we vacate and set aside the 1989 Updated Decree. The jurisdiction of the District Court to supervise the distribution of water on Carlton Creek pursuant to the 1902 Decree or to address controversies as to such distribution shall be governed by the provisions of § 85-2-406, MCA, as amended by Senate Bill 108 (1997).

Having rifled that the Updated Decree exceeds the jurisdiction of the District Court, we need not discuss the other issues raised by the parties and the amicus, other than to address Relators’ request for attorney fees.

Attorney Fees

Relators contend that when the District Court issued the Order Authorizing Updated Decree without providing Relators with notice of such proceeding, that they were denied their right to know under Article II, Section 9 of the Montana Constitution and thus they are entitled to an award of fees under § 2-3-221, MCA.

Article II, Section 9 of the Montana Constitution provides as follows:

No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.

Relators cite to Associated Press v. State (1991), 250 Mont. 299, 820 P.2d 421 (overruled in part on other grounds), for the proposition that Article II, Section 9 applies to officers of the district court. In Associated Press, this Court held that a statute which required the trial judge to keep under seal all affidavits filed in support of motions for leave to file charges or warrants was unconstitutional under Article II, Section 9’s guarantee of the right to know. Although we held that there was a violation of the right to know, we denied attorney fees under § 2-3-221, MCA, because the statute only allows fees to a plaintiff who “prevails in an action brought in district court....” Since the plaintiffs in Associated Press had bypassed district court and proceeded with an original action in the Supreme Court, we denied fees. Associated Press, 820 P.2d at 423.

In the present case, Relators did present their claim for attorney fees under § 2-3-221, MCA, to the district court. However, their reliance on Associated Press is misplaced for substantive reasons. In this matter, unlike Associated Press, there were no statutes or court orders preventing Relators from examining documents or observing deliberations of public bodies. Rather, the court proceeded to update a water rights decree without notifying affected parties. While such a procedure may raise questions of denial of due process of law under Article II, Section 17, it does not constitute a denial of the right to know under Article II, Section 9. Accordingly, we hold that Relators are not entitled to an award of attorney fees under § 2-3-221, MCA.

We reverse the District Court order and hereby vacate and set aside the 1989 Updated Decree.

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


author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. DAVID MATTHEW OKLAND, Defendant and Respondent.
    No. 96-362.
    Submitted April 22, 1997.
    Decided May 29, 1997.
    54 St.Rep. 467.
    283 Mont. 10.
    941 P.2d 431.

      For Appellant: Hon. Joseph P. Mazurek, Attorney General; Cregg W. Coughlin (argued), Assistant Attorney General; Helena; Kim Christopher; Lake County Attorney; Mitchell A. Young; Deputy County Attorney; Poison.
    For Respondent: Matthew H. O’Neill (argued); French, Mercer, Grainey & O’Neill; Poison.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The defendant, David Matthew Okland, was charged by information, filed in the District Court for the Twentieth Judicial District in Lake County, with the offense of driving or being in actual physical control of a motor vehicle while under the influence of alcohol, in violation of § 61-8-401(l)(a), MCA. Based on his three prior convictions for DUI, the information charged him with a felony, pursuant to §§ 61-8-714(4) and -722(4), MCA. He filed a motion to dismiss the felony DUI charge, which the District Court granted. The State of Montana appeals. We affirm the judgment of the District Court.

The sole issue on appeal is whether the District Court erred when it dismissed the felony DUI charge against David Matthew Okland.

FACTUAL BACKGROUND

On January 9, 1996, David Matthew Okland was charged by information with the offense of driving or being in actual physical control of a motor vehicle while under the influence of alcohol. The charge alleged in the information, if proven, would have constituted his fourth DUI offense. He was previously convicted of DUI in Lake County in 1985, in Flathead County in 1986, and again in Lake County in 1995. Based on those three prior convictions, the information charged him with a felony, pursuant to §§ 61-8-714(4) and -722(4), MCA.

Okland filed a motion to dismiss the felony DUI charge in which he contended that, at the time he pled guilty to the prior DUI charges, he was not, in fact, represented by an attorney, he had not been adequately advised of his constitutional right to an attorney, he had not waived his right to an attorney, and he had been denied a court-appointed attorney despite his request that one be appointed. On that basis, he asserted that his prior DUI convictions were entered in derogation of his constitutional rights and cannot be used to increase the current DUI charge to a felony.

In support of his motion, he submitted an affidavit which provides, in relevant part, as follows:

3. With regard to the 08-20-85 conviction, the City Judge, Joy Francke, told me that I could not have an attorney appointed to represent me because I owned a motor vehicle. I had no basis to argue with her and no money to hire an attorney to do it for me.
4. With regard to the 09-02-86 conviction in Kalispell, I do not recall being advised of any rights at all.
5. Neither can I recall being advised of my constitutional rights in connection with my 07-24-95 conviction. My recollection is that the Judge asked only whether I contested the ticket or not.
6. I was actually incarcerated on each of the above three convictions and was not represented by counsel in any one of them. Okland also submitted the record of his 1985 Lake County DUI

conviction in Poison City Court. The record expressly states that Okland requested a court-appointed attorney; however, the record does not reflect that an attorney was provided or that he waived his right to an attorney.

In response, the State maintained that a presumption of regularity attached to Okland’s prior convictions and that he failed to establish that his prior convictions were invalid. With regard to his 1985 DUI conviction, the State produced a copy of a letter sent to Okland in July 1985, which provides, in relevant part, as follows:

On April 18, 1985, you appeared in Poison City Court....
At that time, you requested a Court Appointed Attorney. You were given a financial statement to fill out, have notarized, and then return to City Court. You have not done so.
It is most important that you comply with this procedure, or a trial date will be set, as the Court will procede [sic] with the understanding you have retained a Lawyer.

The State contends that Okland failed to submit the required financial statement.

The District Court granted Okland’s motion to dismiss the felony DUI charge. In its written order, the District Court made the following findings:

The record herein is that [Okland] was cited April 17, 1985, for D.U.I. On April 18, 1985, [Okland] requested a court-appointed attorney. The record does not reflect that an attorney was ever provided to [Okland]. On August 20, 1985, [Okland] was found guilty and was fined and sentenced to 60 days in jail.... The record is void of any waiver by [Okland] of his right to an attorney.

On that basis, the District Court concluded that:

[Okland] was neither provided an attorney for his August 20, 1985, D.U.I. conviction nor waived his right thereto and was actually sentenced to jail. His misdemeanor conviction without counsel may not be used under Sec. 61-8-714(4), MCA, to increase the D.U.I. charge to a fourth, felony offense.

DISCUSSION

Did the District Court err when it dismissed the felony DUI charge against David Matthew Okland?

When we review a district court’s conclusions of law, the standard of review is plenary and we must determine whether the district court’s conclusions are correct as a matter of law. State v. Rushton (1994), 264 Mont. 248, 254-55, 870 P.2d 1355, 1359; State v. Sage (1992), 255 Mont. 227, 229, 841 P.2d 1142, 1143. When we review a district court’s findings of fact, the standard of review is whether those findings are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906.

The Sixth Amendment of the United States Constitution, and Article II, Section 24, of the Montana Constitution, guarantee the fundamental right to the assistance of counsel. Gideon v. Wainwright (1963), 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799; State v. Craig (1995), 274 Mont. 140, 148, 906 P.2d 683, 688 (citing State v. Langford (1994), 267 Mont. 95, 99, 882 P.2d 490, 492). Indigent defendants are entitled to legal representation by court-appointed counsel at public expense. State v. Enright (1988), 233 Mont. 225, 228, 758 P.2d 779, 781. However, the fundamental right to counsel extends only to cases in which a sentence of imprisonment is actually imposed. Scott v. Illinois (1979), 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383; State v. Hansen (1995), 273 Mont. 321, 325, 903 P.2d 194, 197.

The fundamental right to counsel does not extend to defendants who waive the right. Craig, 274 Mont. at 152, 906 P.2d at 690. Waiver, however, requires a knowing and intelligent relinquishment of a known right. State v. Blakney (1982), 197 Mont. 131, 138, 641 P.2d 1045, 1049.

In Montana, it is well established that the State may not use a constitutionally infirm conviction to support an enhanced punishment. Lewis v. State (1969), 153 Mont. 460, 463, 457 P.2d 765, 766. In Lewis, the defendant was convicted of an offense punishable by five-years imprisonment. That penalty, however, was to be increased to ten years if the defendant had a prior felony conviction. Lewis alleged that his constitutional rights had been violated during his prior conviction. We concluded that the records from his prior conviction revealed that “he was not told that if he could not afford counsel then the State would provide him with one.” Lewis, 153 Mont. at 461-62, 457 P.2d at 766.

We expressly adopted the reasoning of the United States Supreme Court in Burgett v. Texas (1967), 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319, and relied on the following language from that case:

In this case the certified records of the [prior] Tennessee conviction on their face raise a presumption that petitioner was denied his right to counsel in the Tennessee proceeding, and therefore that his conviction was void. Presuming waiver of counsel from a silent record is impermissible. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense (see Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526 [1966]) is to erode the principle of that case.

Lewis, 153 Mont. at 463, 457 P.2d at 766. On that basis, we held that Lewis’s prior conviction could not be used to enhance his sentence.

The State does not dispute the constitutional standards previously discussed. In fact, the State, in its brief, expressly recognizes that, pursuant to Lewis, “[i]t is beyond dispute that the State may not use a constitutionally infirm conviction to support an enhanced punishment.”

Nonetheless, the State asserts two alternative arguments in support of its contention that the District Court erred when it dismissed Okland’s felony DUI charge. First, the State asserts that a presumption of regularity attaches to prior convictions and, therefore, that Okland — the defendant — is required to prove the invalidity of his prior DUI convictions. While the State concedes that the presumption is a rebuttable one, it asserts that the District Court erred when it required the State to prove the validity of Okland’s prior convictions. In essence, the State’s first argument is that the District Court misapplied Lewis and failed to accord a presumption of regularity to Okland’s prior convictions.

Second, the State maintains that, even if the District Court did, in fact, recognize the presumption of regularity and assign the respective burdens of proof accordingly, it erred when it: (a) determined that the evidence presented by Okland effectively rebutted the presumption and shifted the burden of proof to the State; and (b) determined that the State failed to produce sufficient evidence to satisfy its burden.

In support of its contention that a presumption of regularity attaches to prior convictions, the State cites State v. Farnsworth (1989), 240 Mont. 328, 783 P.2d 1365. In Farnsworth, the defendant asserted that, because the State failed to establish the constitutional validity of his prior conviction, the district court erred when it designated him a persistent felony offender. We rejected his claim and held that “the State is not required to prove that the prior conviction offered for purposes of the persistent felony offender determination is constitutionally valid.” Farnsworth, 240 Mont. at 334-35, 783 P.2d at 1369. Pursuant to Farnsworth and its recognition of the presumption of regularity, the State maintains that Okland has the burden of proving the invalidity of his prior convictions and that until he presents evidence to the contrary, proof of the fact of his prior convictions is sufficient to enhance the pending DUI charge tó a felony offense.

As the State recognizes, tension exists between: (1) Farnsworth’s presumption of regularity; (2) Lewis’s mandate that a constitutionally infirm conviction may not be used to enhance a sentence; and (3) Burgett’s principle that waiver of a constitutional right may not be presumed from a silent record.

The State asserts, however, that the United States Supreme Court resolved any potential conflict when it decided Parke v. Raley (1992), 506 U.S. 20, 113 S. Ct. 517, 121 L. Ed. 2d 391. In that case, the defendant challenged the enhancement of his sentence pursuant to the State of Kentucky’s persistent felony offender statute. He claimed that because the records of his prior convictions did not contain transcripts of the plea proceedings and, therefore, did not affirmatively reveal that his guilty pleas were voluntarily and knowingly entered, his prior convictions could not be used to enhance his sentence. As authority for his position, he relied on Boykin v. Alabama (1969), 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274.

In Boykin, the U.S. Supreme Court held that when the record fails to affirmatively reveal that a guilty plea was both voluntarily and knowingly entered, then the acceptance of that guilty plea constitutes reversible error. The Court reasoned: “Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer.” Boykin, 395 U.S. at 242, 89 S.Ct. at 1711-12 (citing Carnley v. Cochran (1962), 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70).

In Raley, the persistent felony offender statute at issue required the State of Kentucky to prove the existence of a defendant’s prior convictions upon which it intended to rely. Once that was accomplished, a presumption of regularity attached to the prior convictions and a burden was then imposed on the defendant to produce evidence to show that, in the prior proceeding(s), his rights had been violated. Raley challenged this scheme and moved to suppress the evidence of his prior convictions. He testified that he could not remember whether the trial judge specifically informed him regarding the rights he waived by pleading guilty. The motion to suppress was denied and his punishment was increased by an additional five-year term.

The U.S. Supreme Court concluded that a presumption of regularity attaches to prior convictions during a collateral attack. The Court concluded that, once a state proves the fact of a prior conviction, due process is not offended when the state then imposes the burden of proving the invalidity of the prior conviction on the defendant. The Court gave the following rationale:

We see no tension between the Kentucky scheme and Boykin. Boykin involved direct review of a conviction allegedly based upon an uninformed guilty plea. Respondent, however, never appealed his earlier convictions. They became final years ago, and he now seeks to revisit the question of their validity in a separate recidivism proceeding. To import Boykin’s presumption of invalidity into this very different context would ... improperly ignore another presumption deeply rooted in our jurisprudence: the “presumption of regularity” that attaches to final judgments, even when the question is waiver of constitutional rights. Johnson v. Zerbst, 304 U.S. 458, 464, 468, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).

Raley, 506 U.S. at 29, 113 S.Ct. at 523 (emphasis added).

The Court also addressed its prior holding in Carnley v. Cochran (1962), 369 U.S. 506, 82 S. Ct. 884, 8 L. Ed. 2d 70, also cited in Boykin and Burgett, which states that a waiver of constitutional rights may not be presumed from a silent record. The Court concluded that Carnley and its progeny do not preclude the presumption of regularity from attaching to final judgments during a collateral attack. The Court opined:

There is no good reason to suspend the presumption of regularity here. This is not a case in which an extant transcript is suspiciously “silent” on the question whether the defendant waived constitutional rights. Evidently, no transcripts or other records of the earlier plea colloquies exist at all. ... The circumstance of a missing or nonexistent record is, we suspect, not atypical, particularly when the prior conviction is several years old. But Boykin colloquies have been required for nearly a quarter-century. On collateral review, we think it defies logic to presume from the mere unavailability of a transcript (assuming no allegation that the unavailability is due to governmental misconduct) that the defendant was not advised of his rights. In this situation, Boykin does not prohibit a state court from presuming, at least initially, that a final judgment of conviction offered for purposes of sentence enhancement was validly obtained.
... Our precedents make clear, however, that even when a collateral attack on a final conviction rests on constitutional grounds, the presumption of regularity that attaches to final judgments makes it appropriate to assign a proof burden to the defendant. See, e.g. Johnson, supra, at 468-469 [58 S.Ct. at 1024-25].

Raley, 506 U.S. at 30-31, 113 S.Ct. at 523-24.

Without necessarily agreeing that Raley is totally consistent with the Supreme Court’s prior decisions, we conclude that Raley is persuasive and that, in Montana, a presumption of regularity attaches to prior convictions during a collateral attack. Therefore, even in the absence of a transcript or record, a prior conviction is presumptively valid and a defendant who challenges the validity of his prior conviction during a collateral attack has the burden of producing direct evidence of its invalidity.

We further conclude that the presumption of regularity is a rebuttable presumption. Accordingly, while this presumption does operate, at least initially, to establish the validity of a prior conviction, it can be rebutted by a defendant who produces direct evidence that his constitutional rights were violated in a prior proceeding. Once a defendant has made such a showing, the burden then shifts to the State to produce direct evidence and prove by a preponderance of the evidence that the prior conviction was not entered in violation of the defendant’s rights.

As the U.S. Supreme Court recognized in Raley, this particular allocation of the parties’ respective burdens of proof has been adopted by a number of other states:

In recent years state courts have permitted various challenges to prior convictions and have allocated proof burdens differently. ... Several, like Kentucky, take a middle position that requires the defendant to produce evidence of invalidity once the fact of conviction is proved but that shifts the burden back to the prosecution once the defendant satisfies his burden of production. See, e.g., Watkins v. People, 655 P.2d 834, 837 (Colo. 1982) (guilty plea); State v. O’Neil, 91 N.M. 727, 729, 580 P.2d 495, 497 (Ct. App. 1978) (uncounseled conviction); State v. Triptow, 770 P.2d 146, 149 (Utah 1989) (same). This range of contemporary state practice certainly does not suggest that allocating some burden to the defendant is fundamentally unfair.

Raley, 506 U.S. at 32-33, 113 S.Ct. at 524-25. Additionally, the Court recognized that “state courts that impose the ultimate burden on the government appear to demand proof ranging from preponderance, see Triptow, supra, at 149; Watkins, supra, at 837, to beyond a reasonable doubt, see [State v.] Hennings [100 Wash. 2d 379, 382, 670 P.2d 256, 257].” Raley, 506 U.S. at 35, 113 S.Ct. at 526.

Pursuant to that procedural framework, we must first determine whether Okland presented direct evidence in support of his claim that his constitutional rights were violated in a prior proceeding. Okland submitted an affidavit in which he states, in relevant part, as follows:

3. With regard to the 08-20-85 conviction, the City Judge, Joy Francke, told me that I could not have an attorney appointed to represent me because I owned a motor vehicle. I had no basis to argue with her and no money to hire an attorney to do it for me.
6. I was actually incarcerated ... and was not represented by counsel....

Okland’s affidavit was accompanied by the record from his 1985 Lake County DUI conviction in Poison City Court. The record expressly states that Okland requested a court-appointed attorney; however, the record does not reflect that an attorney was provided or that he waived his right to an attorney.

The evidence presented by Okland establishes that: (a) he could not afford to hire an attorney; (b) despite his request, he was not provided a court-appointed attorney; (c) he was convicted without the assistance of counsel; and (d) he was actually imprisoned for his uncounseled conviction. We, therefore, conclude that Okland’s direct evidence of a constitutional infirmity in the 1985 proceeding is sufficient to rebut the presumption of regularity and to shift the burden of proof to the State.

Next, we must determine whether the State presented direct evidence which affirmatively proves that Okland’s 1985 conviction was not entered in violation of his constitutional rights. The State submitted a copy of a letter sent to Okland in July 1985, which provides, in relevant part, as follows:

On April 18, 1985, you appeared in Poison City Court. ...
At that time, you requested a Court Appointed Attorney. You were given a financial statement to fill out, have notarized, and then return to City Court. You have not done so.
It is most important that you comply with this procedure, or a trial date will be set, as the Court will procede [sic] with the understanding you have retained a Lawyer.

The State contends that Okland failed to submit the required financial statement; however, the record is silent regarding what occurred after the letter was sent. Therefore, the letter is not inconsistent with, and does not rebut Okland’s affidavit.

Although the July 1985 letter reveals that Okland was aware of his constitutional right to an attorney and recognizes that he did, in fact, request an attorney, it does not establish that he waived his right to an attorney, especially in light of Okland’s assertion that “the City Judge, Joy Francke, told me that I could not have an attorney appointed to represent me because I owned a motor vehicle.” An equally plausible explanation is that Okland’s ownership of a vehicle was disclosed to Judge Francke in response to her letter, and that she concluded, on that basis, that he did not qualify for court-appointed counsel.

We conclude that, based on Okland’s direct evidence that he was convicted without the benefit of counsel and that he did not waive his right to counsel, the burden shifted to the State to present direct evidence that Okland’s prior conviction was not entered in violation of his right to counsel and that the State failed to meet that burden. Accordingly, we hold that the District Court did not err when it dismissed the felony DUI charge against David Matthew Okland. The judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT, LEAPHART, NELSON and REGNIER concur.