author: MR. JUSTICE SHEEHY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOHN E. LEE, Defendant and Appellant.
    No. 88-010.
    Submitted on Briefs April 7, 1988.
    Decided May 17, 1988.
    754 P.2d 512.
    J. Dirk Beccari, Doug Anderson, Legal Intern, for defendant and appellant.
    Mike Greely, Atty. Gen., Betsy Brandborg, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, Co. Atty., Betty Wing, Deputy Co. Atty., Missoula, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

John Lee appeals from the judgment of the District Court, Fourth Judicial District, Missoula County, finding Lee guilty of driving under the influence of alcohol. We affirm.

The following issue is presented for our review: Did the District Court err in ruling that there was sufficient probable cause to arrest the defendant for driving under the influence of alcohol?

The record discloses the following pertinent facts. On the evening of September 1, 1986, Montana Highway Patrol Officer Henry Devereaux was traveling south on Orange Street in Missoula. As Devereaux approached the intersection of Orange and Third Street North, he saw the defendant’s blue pickup truck turn in front of him. After the defendant’s vehicle passed, Devereaux attempted to continue on but was forced to stop abruptly when a sedan that was following the defendant’s blue pickup turned in front of Devereaux. When Devereaux pulled the sedan over, the defendant stopped his blue pickup as well. Devereaux then used his public address loudspeaker to instruct the white sedan to pull over to a safer stopping point. At that point, Devereaux noticed the defendant get out of his vehicle and stumble onto the street. The defendant appeared to be confused as to whom Devereaux had intended to stop. Noting the defendant’s confusion, Devereaux told the defendant to leave.

However, the defendant did not leave but instead pulled onto Grant Street (following the white sedan) and stopped his vehicle in the middle of the road. After getting out of his vehicle, the defendant headed toward the stopped sedan and the police car. As the defendant walked toward the stopped vehicles, Devereaux determined that the defendant appeared intoxicated and radioed for assistance, explaining that there was a possible DUI interfering with a vehicle stop. Devereaux then got out of his vehicle and instructed the defendant to pull his car to the curb. Devereaux noted that the defendant had difficulty understanding the instructions but eventually complied. Devereaux returned to his car and awaited assistance.

Montana Highway Patrolman Paul Grimstad arrived on the scene and was directed to the defendant by Devereaux. Upon observing the defendant’s slurred speech and unsteady balance, Grimstad decided the defendant was probably intoxicated. Consequently, Grimstad informed the defendant that he was recording the conversation. Grimstad then initiated field sobriety tests which the defendant failed. As a result, Grimstad arrested the defendant for DUI. Upon the defendant’s arrival at the police station, the defendant was subjected to several sobriety exercises as well as a breath test. The defendant was found to have a blood alcohol level of .219 milligram percent.

The defendant filed a motion to suppress the State’s evidence maintaining that the State lacked probable cause to make an investigatory stop of defendant’s vehicle and further, that there was no evidence supporting Devereaux’s suspicion that the defendant was drunk. The District Court denied the defendant’s motion stating that there was probable cause to support the defendant’s arrest. On June 8, 1987, the defendant was convicted of driving under the influence in spite of the defendant’s renewed motion to suppress the evidence. The defendant appeals.

The defendant maintains that the District Court erred in denying the defendant’s motion to suppress. However, the dispositive issue in the case at bar is whether Officer Grimstad had sufficient probable cause to arrest the defendant for driving under the influence of alcohol. We find that there was sufficient probable cause upon which to base the defendant’s arrest.

Initially, we must determine whether Officer Devereaux’s investigatory stop of the defendant was proper. We hold that it was. In Matter of Suspension of Driver’s License of Blake (Mont. 1986), [220 Mont. 27,] 712 P.2d 1338, 43 St.Rep. 143, this Court held:

“The proper test for determining whether an officer was justified in making an investigatory stop is ... ‘a particularized suspicion of some kind of wrongdoing.’ State v. Gopher (Mont. 1981), [_ Mont. _,] 631 P.2d 293, 38 St.Rep. 1078. In order to prove the existence of a ‘particularized suspicion’, the State must show: ‘(1) objective data from which an experienced officer can make certain inferences; and, (2) a resulting suspicion that the occupant of a certain vehicle is or has been engaged in wrongdoing . . .’ Gopher, 631 P.2d at 296, 38 St.Rep. at 1081.”

Blake, 712 P.2d at 1340, 43 St.Rep. at 145.

In the immediate case, the petitioner voluntarily stopped his car twice and it was only then that Officer Devereaux requested the petitioner to pull over. By the time Devereaux instructed the defendant to stop, Devereaux had observed the defendant act in what appeared to be a confused and possibly intoxicated manner. Not only did the defendant ignore Devereaux’s instructions to leave after the first stop but during the second voluntary stop he left his pickup parked in the middle of the road impeding traffic. Based on this objective data, Officer Devereaux had probable cause to infer that the defendant was a possible DUI who would interfere with the investigations stop of the white sedan and so called for assistance.

Subsequent to requesting assistance, the defendant’s actions further confirmed Devereaux’s suspicions. Devereaux observed that the defendant had difficulty walking, trouble understanding instructions, and breath that smelled of alcohol. Devereaux then instructed the defendant to move his vehicle out of the middle of the road and to await further instructions.

In light of Officer Devereaux’s three years experience as a Montana Highway Patrol officer, there were clearly sufficient objective circumstances from which he could properly infer that the defendant was under the influence of alcohol at the time he requested the defendant to pull his car over to the curb. As a result of observations which Devereaux made regarding the defendant’s condition, Devereaux suspected that the defendant, whom Devereaux had observed driving his pickup, was under the influence of alcohol. There can be no question but that the facts in this case were sufficient to demonstrate a particularized suspicion under the two step test, announced by this Court in Gopher, 631 P.2d at 296, 38 St.Rep. at 1081, and Blake, 712 P.2d at 1340, 43 St.Rep. at 145. As such, Officer Devereaux’s stop was a proper investigatory stop.

The defendant next contends that the arresting officer, Montana Highway Patrol Officer Paul Grimstad did not have probable cause to arrest the defendant for driving under the influence of alcohol. We disagree.

By the time Grimstad had arrived on the scene, the defendant had already been properly stopped by Devereaux. Grimstad’s subsequent observations clearly demonstrate objective manifestations establishing probable cause to arrest the defendant. Under similar circumstances, we have held that:

“A founded, suspicion to stop for investigative detention may ripen into probable cause to arrest through the occurrence of facts or incidents after the stop.”

State v. Sharp (Mont. 1985), [217 Mont. 40,] 702 P.2d 959, 963, 42 St.Rep. 1009, 1013; citing, United States v. Modina-Gasca (9th Cir. 1984), 739 F.2d 1451, 1453; and, United States v. Portillo-Reyes (9th Cir. 1975), 529 F.2d 844, 850.

In the instant case, Grimstad was directed to the defendant by Devereaux when he arrived on the scene. After speaking to the defendant, Grimstad found the defendant’s intoxication manifested itself as follows: very slurred speech, strong odor of alcohol on defendant’s breath, blood-shot eyes, inappropriate behavior, staggering and unsteadiness, and, general confusion as to what was occurring. After observing the defendant’s apparently intoxicated state, Grimstad performed two sobriety tests on the defendant. The defendant failed both tests. As a result of his own observations of the defendant and the defendant’s failure of the sobriety tests, Grimstad concluded that the defendant was under the influence of alcohol.

Although Grimstad did not actually witness the defendant driving the pickup truck while under the influence of alcohol, he was supplied with information to that effect by a reliable source, Officer Devereaux. Further, the defendant himself admitted to Grimstad that he had been operating a vehicle. Based on the information that Grimstad acquired through his conversations with Officer Devereaux and the defendant, his observations of the defendant and the defendant’s poor performance on the sobriety tests, we find that Grimstad properly placed the defendant under arrest for driving under the influence of alcohol.

The threshold issue for the validity of an arrest is probable cause. The probable cause requirement is satisfied at the time of arrest if the facts and circumstances within the officer’s personal knowledge, or upon information imparted to him by a reliable source, are sufficient to warrant a reasonable person to believe that the suspect has committed an offense. State v. Ellinger (Mont. 1986), [223 Mont. 349,] 725 P.2d 1201, 1202, 43 St.Rep. 1778, 1780, citing State v. Hamilton (1980), 185 Mont. 522, 528, 605 P.2d 1121, 1125; State v. Hill (1976), 170 Mont. 71, 74, 550 P.2d 390, 392. There can be no question but that Officer Grimstad had sufficient probable cause to arrest the defendant on the charge of driving under the influence in violation of Section 61-8-401, MCA. As such, the District Court correctly refused the defendant’s motion seeking to suppress the evidence gathered as a result of the arrest.

We affirm.

MR. JUSTICES HARRISON, GULBRANDSON, HUNT and Mc-DONOUGH concur.


source: Caselaw Access Project

author: MR. JUSTICE GULBRANDSON

license: Public Domain

text:
    PATRICK D. VINION, Plaintiff and Respondent, v. THE WOOD YARD, INC., a Montana corporation, Defendant and Appellant.
    No. 88-45.
    Submitted on Briefs April 21, 1988.
    May 19, 1988.
    755 P.2d 31.
    Warden, Christiansen, Johnson & Berg, Kelly M. Wills, Kalispell, for defendant and appellant.
    Douglas Law Firm, William Douglas, Libby, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

This is an appeal from findings of fact, conclusions of law and judgment of the Nineteenth Judicial District Court, Lincoln County, awarding the plaintiff/respondent Patrick D. Vinion (Vinion), $23,651 in damages. We affirm but remand to the District Court for revision of the amount awarded.

The issues presented to the Court are as follows:

1. Did the District Court err in awarding damages for reduced market value of Vinion’s building and was the award based on substantial evidence?

2. Did the District Court err by failing to deduct the salvage value of Vinion’s jukebox and records when it awarded damages?

On January 16,1987, a truck belonging to defendant/appellant The Wood Yard, Inc. (Wood Yard), which was being operated by a Wood Yard employee, backed into a building owned by Vinion. The accident occurred as the truck was being positioned to unload a number of logs at the building owned by Vinion which is located next to U.S. Highway 2 in Libby, Montana. The logs dislodged as the truck hit the building and damage occurred to the cement block building and certain pfersonal property of Vinion.

A complaint was filed by Vinion on January 30, 1987. Wood Yard admitted damaging the building and the personal property but disputed the extent and amount of damage claimed by Vinion. The amount of damage Wood Yard admitted totaled $2,446. At trial, held October 27, 1987, a number of claims for damages were left for determination by the District Court.

After hearing testimony from Vinion, a number of experts, and parties who had sold Vinion some of the personal property, along with two witnesses for Wood Yard, the District Court determined that Vinion was entitled to $600 for replacement of the block walls; $18,500 for diminution in value of the building; $1,425 for damage to a jukebox and records; and $680 for the value of an unsalvageable damaged sofa. Wood Yard contends the District Court erred in the award of $18,500 for the diminution in value to the building and in failing to deduct $100 as salvageable value from the jukebox and record award.

The standard for review in this case is clear that this Court will not reverse the District Court absent a showing that its determinations were clearly erroneous. Rule 52(a), M.R.Civ.P. On appeal, the findings of the trial court are presumed to be correct if supported by substantial evidence and we refuse to substitute our judgment for that of the District Court where the District Court is acting as the trier of fact and there is substantial evidence to support its decision. Department of Revenue v. New Life Fellowship of Montana, Inc. (Mont. 1985), [217 Mont. 192,] 703 P.2d 860, 862, 42 St.Rep. 1129; Robinson v. Schrade (Mont. 1985), [215 Mont. 326,] 697 P.2d 923, 925, 42 St.Rep. 401.

The filed complaint requested $20,000 for the diminution of value of the building. Vinion first stated at trial that he believed $50,000 was a proper recovery but upon advice of his attorney stated he would accept $20,000. In its findings of fact, the District Court found the following:

“Diminution in value of building. Plaintiffs building is constructed of concrete blocks which typically after completion show some small cracks between the blocks because of settling. There were no such cracks in the walls which were affected by the collision. As a result of the collision, large portions of the south and west walls of the building were knocked down. When the support of these walls was taken away, three continuous cracks in the structure occurred in the immediate area of physical damage. These cracks started in the bottom portion of the walls and went to the second floor of the building, passing through bond beams. These cracks are unsightly and are inconsistent with the appearance of the remainder of the building. While the cracks are probably not of a nature to greatly affect the structural soundness of the building, they do affect its [aesthetics]. To prospective buyers of the building, they represent defects which will diminish the attractiveness, hence the value of the building. The building in its intact condition had a reasonable value on the local market of $185,000.00, and the damage to the building by Defendant reasonably reduces that value by $18,500.00. While the cracks can be cosmetically hidden, they represent a defect which cannot reasonably be removed and which, if cosmetically cured, would become a hidden defect in the building.”

Wood Yard argues the evidence presented at trial failed to conclusively establish that Vinion suffered an actual loss in the market value of the building and that Vinion failed to present evidence of the amount of damage with as much precision as possible. Wood Yard’s initial argument rests on the claim that “a judgment for damages must be supported by substantial evidence that is not the product of mere guess or speculation.” Lenz Construction Company v. Cameron (Mont. 1984), 207 Mont. 506, 674 P.2d 1101, 1103, 41 St.Rep. 106.

However, when there is strong evidence of the fact of damage, the defendant should not escape liability because the amount of damage cannot be proven with precision. Albers v. Bar ZF Ranch, Inc. (Mont. 1987), [229 Mont. 396,] 747 P.2d 1347, 44 St.Rep. 2081; Jarussi v. Board of Trustees of School Dist. No. 26, Lake County (1983), 204 Mont. 131, 136-137, 664 P.2d 316, 318. Jarussi, supra, is instructive in this case because it involved a jury award of damages based on the claimant’s own testimony. Jarussi testified that he lost between $16,000 and $17,000 when he was forced to hastily sell most of his personal property to move to Alaska for work. He also testified that his moving expenses were $2,901.50. The jury awarded $16,500 for losses on the sale of Jarussi’s personal property and $2,900 for moving costs. This Court affirmed. Of significance is the fact that the defendant in Jarussi presented no evidence refuting Jarussi’s claimed damages.

In the case at bar, the damage award was based largely on the testimony of Vinion himself who claimed $20,000 was the minimum required to compensate him for diminution in value. The District Court awarded $18,500. Although Vinion’s expert testified, he could not place a dollar value on the loss without further investigation. This is the gravamen of the second reasonable argument presented by Wood Yard that the best evidence available under the circumstances should be produced to support the plaintiff’s claim. Sack v. A.V. Design, Inc. (Mont. 1984), [211 Mont. 147,] 683 P.2d 1311, 1314, 41 St.Rep. 1272. Nonetheless, it is important to note that the expert that Wood Yard produced also did not, or could not, dispute the dollar value expressed by Vinion.

Wood Yard admitted that it caused the damages in this case. If it is reasonably certain that damages were sustained by the wrongful act or breach of the defendant, then reasonable damages rationally supported by the evidence will be upheld. Castillo v. Franks (Mont. 1984), [213 Mont. 232,] 690 P.2d 425, 431, 41 St.Rep. 2071. The District Court clearly set out the basis upon which it found diminution in value in this case and this basis was grounded on substantial credible evidence.

It is undisputed that the owner of property may testify as to its value. Cremer v. Cremer Rodeo Land and Livestock Co. (Mont. 1981), [_ Mont. _,] 627 P.2d 1199, 1202, 38 St.Rep. 574. Under the circumstances of this case, where Wood Yard did not offer any contrary amount to the actual figures presented by Vinion, we have no alternative than to affirm the District Court’s award. The law requires only that the trier of fact exercise calm and reasonable judgment, and the amount of award rests of necessity in the sound discretion of the trier of fact. Johnson v. Murray (1982), 201 Mont. 495, 506, 656 P.2d 170, 175.

As to the failure on the part of the District Court to deduct from the reasonable value of the jukebox and records the $100 salvage value, we note that this appears to be a mere mathematical error. Vinion admits the error and we therefore remand to the District Court to enter a revised judgment reflecting the $100 salvage value. We affirm and remand for entry of a revised judgment.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DONOVAN KEITH HURLBERT, Defendant and Appellant.
    No. 87-427.
    Submitted on Briefs March 24, 1988.
    Decided May 23, 1988.
    756 P.2d 1110.

      Daniel Donovan, Great Falls, for defendant and appellant.
    Mike Greely, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, John C. McKeon, Co. Atty., Malta, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Donovan Keith Hurlbert (Hurlbert) appeals his conviction in Phillips County District Court of attempted deliberate homicide. We affirm.

Hurlbert was found guilty by a twelve person jury of attempted deliberate homicide in connection with a shooting incident in the parking lot of the Miner’s Club Bar near Zortman, Montana on May 14, 1986. On May 13, 1986, twenty-eight year old Rex Martin (Martin) completed his work shift at a nearby mine and drove to the Miner’s Bar to celebrate his birthday. Martin arrived at the bar shortly after four o’clock that afternoon and proceeded to consume beer and some schnapps. Twenty-two year old Hurlbert arrived at the Miner’s Club Bar at approximately eight o’clock that same evening.

During the course of the evening at the Miner’s Club Bar, Martin and Hurlbert argued several times about an incident that occurred in April of 1986 at the D-Y Bar located near Landusky, Montana. The April incident occurred while Hurlbert was working as a bartender at the D-Y Bar and involved Martin, Hurlbert, and several other bar patrons. The events of that April evening at the D-Y Bar culminated with Hurlbert and a bar patron forcibly evicting Martin from the bar. Martin’s fingers were apparently severely smashed when a bar patron slammed the bar doors shut on one of Martin’s hands. Martin re-entered the D-Y Bar long enough to accuse Hurlbert of causing the hand injury and to threaten retaliation. Martin’s actions that April evening prompted the D-Y Bar’s owner to ask Martin not to patronize the bar for thirty days. Martin later learned that Hurlbert was not responsible for the injury to his hand.

Sometime after one o’clock in the morning of May 14, 1986, and after more than five hours of drinking for both men, Hurlbert and Martin appeared to have settled their differences. The two men shook hands and each drank a beer purchased by Hurlbert. Martin then purchased a six-pack of Rainier, his favorite beer, for the road and the two men left within minutes of each other. Conflicting trial testimony was presented as to what happened outside of the bar. Martin testified that he walked to his pickup truck and was “fumbling” for his keys when he noticed Hurlbert motion for him to come over to Hurlbert’s pickup truck. Martin testified that as he approached, Hurlbert entered his pickup, grabbed a twelve gauge shotgun from the seat, exited the pickup, turned and pointed the shotgun at Martin’s abdomen. Martin contends that, as he turned to his right to flee, his flight was obstructed by the driver’s side door of Hurlbert’s pickup truck. Martin testified that Hurlbert fired the shotgun before he could turn around to run in the opposite direction.

Hurlbert testified that Martin followed him to the driver’s side of Hurlbert’s pickup where the two men resumed their argument about the D-Y Bar incident as Hurlbert unlocked and opened the driver’s side door. According to Hurlbert, Martin grabbed Hurlbert, threw him aside, and reached in and grabbed Hurlbert’s shotgun from the gun rack in the back window of Hurlbert’s pickup. In the ensuing struggle for control of Hurlbert’s shotgun, Hurlbert contends that the shotgun accidentally discharged.

After the shot, the Miner’s Club bartender, Betty Veltri (Veltri), and a patron, Dain Hathaway (Hathaway), ran outside to find Martin shuffling back into the bar with bleeding arms. Veltri testified that she heard Martin exclaim “he (Hurlbert) shot me, he shot me.” Veltri also testified that she had a short conversation with Hurlbert who, when asked what happened, exclaimed “he (Martin) tried to shoot me.” Hurlbert testified that he also told Veltri to inform the sheriff’s deputies when they arrived that he would be at the D-Y Bar. Veltri did not remember Hurlbert saying where he was going. Hathaway remembers Hurlbert and Veltri talking but does not remember what was said. All the witnesses agreed that Hurlbert left the Miner’s Club parking lot in a hurry. Martin was seriously injured by the shotgun blast and his arms are permanently impaired and disfigured.

The D-Y Bar is approximately twenty miles from the Miner’s Club Bar. Upon arriving at the D-Y Bar, Hurlbert told the bartender, Debbie Baker, that Martin had tried to shoot him and that the shotgun discharged accidentally in the struggle for control. Hurlbert then called the Phillips County Sheriff’s office to report an accidental shooting and to inform them of his whereabouts. The sheriff’s deputies investigated the crime scene for three hours before going to the D-Y Bar to arrest Hurlbert. During that time, Hurlbert telephoned the Miner’s Club Bar several times to find out when the deputies would arrive at the D-Y Bar. When arrested, Hurlbert voluntarily gave the sheriff’s deputies a statement about his involvement in the shooting incident.

Martin was severely injured in the lower portions of his left and right forearms and has incurred over $90,000 in medical expenses as a result of the shooting. In its amended information of September 3, 1986, the State of Montana (the State) accused Hurlbert of attempted deliberate.homicide with a dangerous weapon pursuant to Section 45-5-102(l)(a), Section 45-4-103, and Section 46-18-221, MCA. Hurlbert pled not guilty and gave the State notice that he intended to present evidence of justifiable use of force as a defense.

A jury trial commenced on February 9, 1987, and culminated with Hurlbert’s conviction on February 12, 1987. On June 10, 1987, the District Court sentenced Hurlbert to fifteen years confinement in the Montana State Penitentiary for attempted deliberate homicide with an additional five years to be served consecutively for the use of a dangerous weapon. The District Court suspended eight years of Hurlbert’s twenty year sentence, designated him a non-dangerous offender, and recommended that he be allowed to serve the balance of his confinement at the Montana Department of Institutions’ Swan River Forest Camp. Hurlbert appeals from the judgment and sentence imposed upon him and raises the following issues for our review:

1. Did Hurlbert receive effective assistance of counsel?

2. Did the District Court err in instructing the jury on the issue of “flight” from the scene of the crime?

In his first issue, Hurlbert alleges that his defense counsel was ineffective for the following reasons:

1. Defense counsel failed to effectively test the credibility of the State’s witnesses.

2. Defense counsel failed to offer instructions on the theory of the defense.

3. Defense counsel did not adequately prepare for the sentencing hearing.

This Court reviews issues of ineffective counsel under the standards set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. State v. Johnson (Mont. 1986), [221 Mont. 384,] 719 P.2d 771, 773, 43 St.Rep. 913, 916. The Strickland standards are that the defendant must first “show that counsel’s performance was deficient,” and then must “show that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. We have reviewed numerous claims of ineffective counsel under a myriad of circumstances and recognize that the burden is heavy on a defendant who seeks to reverse a judgment on such grounds. State v. LaValley (1983), 203 Mont. 393, 398, 661 P.2d 869, 872.

To begin with, this Court will not second guess the trial tactics of defense counsel. State v. Tome (Mont. 1987), [227 Mont. 138,] 742 P.2d 479, 482, 44 St.Rep. 1629, 1632; State v. Brown (Mont. 1987), [228 Mont. 209,] 741 P.2d 428, 430, 44 St.Rep. 1462, 1464. Furthermore, a claim of ineffective counsel must be grounded in facts found in the record, not on “mere conclusory allegations.” Tome, 742 P.2d at 482. Defense counsel’s use of objections during trial lie within his or her sound discretion and failure to object must, in addition to being error, also prejudice the defendant. Brown, 741 P.2d at 430; State v. Probert (Mont. 1986), [221 Mont. 476,] 719 P.2d 783, 786, 43 St.Rep. 988, 992.

In adopting the Strickland standards, we also recognized that any alleged error by defense counsel must be shown to prejudice the defendant before reversal will be warranted. State v. Robbins (Mont. 1985), [218 Mont. 107,] 708 P.2d 227, 43 St.Rep. 1440 (citing Strickland). Robbins sets forth what the defendant must show in order to establish prejudice:

“The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of a proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Robbins, 708 P.2d at 232.

Defense counsel’s decision not to extensively cross-examine certain witnesses in this case was a tactical decision within his discretion. Hurlbert contends that defense counsel should have cross-examined Martin as to his version of the shooting to point out improbable, inconsistent and confusing facts in Martin’s story. However, defense counsel sufficiently attacked Martin’s testimony in his closing argument. Defense counsel also solicited evidence from Hurlbert and other witnesses that tended to conflict with Martin’s story. We recognize that it is sometimes a more prudent trial tactic to indirectly attack a witness’ testimony through the testimony of other witnesses and in closing arguments rather than to put undue emphasis on one witness’ version with extensive cross-examination. Whether defense counsel consciously chose one of the above methods over the other as a trial tactic is not only subject to speculation, but is also immaterial to the issue of his performance at trial. The bottom line is that Hurlbert was not prejudiced because defense counsel did an adequate job in pointing out the difference between Martin’s testimony and Hurlbert’s testimony in his closing argument and through the testimony of other witnesses. In the final analysis, it was for the jury to decide whose story was plausible and believable. Any shortcomings in Martin’s testimony could either have been readily apparent to the jury or were sufficiently pointed out by defense counsel during the course of the trial.

Hurlbert next contends that defense counsel erred in not submitting a “justifiable use of force” or “self defense” instruction to the jury. Hurlbert gave notice before trial of his intention to submit evidence of justifiable use of force. During the settling of jury instructions, defense counsel refused to submit a proposed instruction regarding justifiable use of force even though both the State and the District Court appeared receptive to such an instruction. The record reflects that defense counsel believed that the defenses of accident and justifiable use of force were inconsistent with each other and that a justifiable use of force instruction was inconsistent with the evidence. Defense counsel again exercised his tactical discretion and elected to defend on a theory of accidental shooting.

Hurlbert argues that defense counsel was mistaken in his belief that accident and justifiable use of force are inconsistent defenses that cannot be argued simultaneously. In response, the State points out that the evidence does not support a justifiable use of force instruction and contends that defense counsel’s decision not to rely on such a defense does not constitute ineffective assistance. We agree with the State. The evidence presented at trial clearly shows that Hurlbert could not have reasonably believed that he was justified in using force likely to cause death or serious bodily harm (shooting Martin with a twelve-gauge shotgun). See Sections 45-3-101 et seq., MCA (statutes governing justifiable use of force). Defense counsel’s refusal of an instruction based on a defense not supported by the record did not deny Hurlbert effective assistance of counsel. State v. Docken (Mont. 1986), [222 Mont. 58,] 720 P.2d 679, 680, 43 St.Rep. 1058, 1061.

As to Hurlbert’s third contention of error regarding defense counsel’s lack of skill, we are not convinced that defense counsel committed any error nor are we convinced that Hurlbert was prejudiced. Hurlbert alleges that defense counsel should have challenged two members of the jury panel for cause because these people were related by marriage to one of the investigating sheriffs deputies. However, the State is correct in its assertion that this particular relationship to an investigating officer is not sufficient, absent a showing of impartiality, to challenge for cause. State v. Hendricks (1976), 171 Mont. 7, 11, 555 P.2d 743, 746; Section 46-16-304, MCA. The State’s attorney questioned each of the two individuals as to whether their relationship to the investigating officer would prohibit them from being fair and impartial jurors. Each person answered that they would be fair and impartial. One of the prospective jurors that Hurlbert now complains about was not chosen to be a juror. The other person was a juror, but Hurlbert has failed to show any impartiality or resultant prejudice associated with this person’s deliberations.

Hurlbert also questions the impartiality of a third juror who, before voir dire had commenced, indicated to the judge that she might be opinionated. This juror was cut off in mid-sentence by the judge who indicated that she should wait for voir dire. Defense counsel later questioned this woman and discovered that, while she knew Rex Martin’s parents, she still felt she could be impartial. Again, defense counsel was not ineffective in not challenging a juror for cause where no partiality or prejudice has been shown.

The remainder of Hurlbert’s assertions of error regarding defense counsel’s trial skills deal with alleged failure to object and failure to adequately cross-examine witnesses. These alleged “failures” could just as easily be classified as discretionary trial tactics. We reiterate that defense counsel’s use of objections is within his discretion as trial tactics. Brown, 741 P.2d at 430; Probert, 719 P.2d at 783. More importantly, Hurlbert has failed to show any resultant prejudice. We will not second guess defense counsel’s tactics absent a showing of prejudice.

In his final contention of ineffectiveness, Hurlbert asserts that defense counsel did not adequately prepare for the sentencing hearing. Hurlbert first alleges that defense counsel failed to marshal essential evidence to convince the District Court that Hurlbert should be sentenced to a jail-based work release sentence. The State insists that the record of the sentencing hearing indicates that defense counsel prepared extensively for the hearing and presented adequate testimony and evidence regarding a jail-based work release program. Our review of the record indicates that the State is correct and that defense counsel was not ineffective at the sentencing hearing.

Hurlbert also argues that defense counsel was ineffective at the sentencing hearing because he failed to challenge the applicability of mandatory minimum sentencing. The State argued at the sentencing hearing that the mandatory minimum sentence for the offense of deliberate homicide (ten years) applied to the offense of attempted deliberate homicide. Defense counsel challenged the State’s position in this regard on different grounds than those now argued by Hurlbert on appeal. Again, we refuse to second-guess defense counsel’s trial tactics.

Hurlbert also requests that we remand for resentencing on the grounds that the District Court erred in believing that a mandatory minimum sentence applied. We note that perpetrators of attempt crimes may be sentenced up to the máximums provided for the offense attempted. Section 45-4-103(3), MCA. We review sentences for legality only and will not disturb a District Court’s sentencing decision absent a showing that the District Court abused its discretion. State v. Almanza (Mont. 1987), [229 Mont. 383,] 746 P.2d 1089, 1090-91, 44 St.Rep. 2064, 2067. Hurlbert’s sentence is well within the legal limits for the offense charged and we will not remand for resentencing as he has asked on this appeal. Having found no evidence of defense counsel’s ineffectiveness or prejudice to Hurlbert, we hold that Hurlbert received effective assistance of counsel.

In his final issue, Hurlbert argues that the District Court erred in giving the following jury instruction:

“You are instructed that you may take into consideration any testimony showing, or tending to show, flight or concealment by the defendant. The testimony may be considered by the jury as a circumstance tending to prove a consciousness of guilt, but is not sufficient of itself to prove guilt. The weight to be given to such a circumstance and the significance, if any, to be attached to it, are matters for the jury to determine.”

Defense counsel objected to the use of this instruction at trial on the grounds that the uncontradicted evidence was that Hurlbert made no attempt to leave or conceal his whereabouts for the purpose of evading arrest.

The above instruction is almost identical to the instruction this Court approved in State v. Walker (1966), 148 Mont. 216, 225, 419 P.2d 300, 305. As in Walker, the evidence in the instant case was sufficient to support the giving of the instruction on flight. Hurlbert contends that he did not attempt to evade arrest as evidenced by his telling Betty Veltri where the sheriff’s deputies could find him and by his repeated telephone calls to the Miner’s Club Bar from the D-Y Bar. However, as was the case in Walker, it was a matter for the jury to decide whether it believed Hurlbert’s explanation for leaving the scene of the crime. Walker, 419 P.2d at 306. Hurlbert admitted leaving the Miner’s Club Bar after the shooting and several witnesses testified that he left in a hurry. We hold that the District Court did not commit reversible error in giving the instruction on “flight” based on the evidence in this case.

Hurlbert has failed to show that defense counsel was ineffective according to the standards set forth in Strickland. His sentence was within the legal limits for the offense and was not an abuse of the District Court’s discretion. The evidence tended to show that Hurlbert left the scene of the crime and the jury was properly instructed on the issue of “flight.” Accordingly, we affirm the District Court’s judgment and sentence as to all issues presented on this appeal.

Affirmed.

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


author: MR. JUSTICE WEBER

text:
    KELLY W. SCHILKE, Plaintiff and Respondent, v. RAYMOND P. BEAN, Defendant and Appellant, and JOHN McRAE, Third-Party Defendant/Respondent.
    No. 87-433.
    Submitted on Briefs April 14, 1988.
    Decided May 24, 1988.
    755 P.2d 565.

      Christopher Daly, Missoula, for defendant and appellant.
    Jeffrey H. Langton, Hamilton, William R. Baldassin, Missoula, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.,

This is an action for rescission of a contract for deed of real property. The District Court for the Fourth Judicial District, Ravalli County, allowed Mr. Schilke to rescind the contract. It awarded him damages for sums paid under the contract, for expenses of improving the property, and for attorney fees and costs. Mr. Bean appeals. We affirm.

The issues are:

1. Did the District Court err in failing to grant the seller a directed verdict?

2. Did the court err in refusing to amend its findings and conclusions?

3. Did the court err in failing to grant a new trial because of newly discovered evidence?

4. Did the court err in absolving attorney Mr. McRae from liability?

In 1979, defendant Mr. Bean (seller) acquired an interest in undeveloped property through an unrecorded contract of sale. His intent was to subdivide the property through the use of occasional sales under Section 76-3-207, MCA. Toward that end, he had attorney Mr. McRae prepare fill-in-the-blank contract forms.

In January 1980, the seller and Mr. Schilke (buyer) entered into a written agreement on one of the prepared contract forms whereby the buyer would purchase a 2-acre tract of the property. They paced out the tract selected, but no survey was done. Buyer paid $1,000 down, with monthly payments for 5 years on the balance of the $8,000 purchase price. Payments were made directly to the seller. The contract provided that title would remain in the seller until the full purchase price was paid and that the seller would have 16 months to provide title to the tract through warranty deed. The contract further provided that if the 16-month deadline were not met, the buyer would receive an undivided interest in the whole property upon payment of the contract price. Also, the contract provided that if seller breached the agreement or refused to complete the sale, the agreement would be rescinded.

In January 1985, the buyer made the final payment due under the contract. For a variety of reasons, both personal and relating to the county’s approval process for occasional sales, seller did not convey the property to the buyer by a warranty deed before or at that time. In fact, the only deed to buyer ever filed by the seller was a quitclaim deed filed in September 1985.

In February 1985, Ravalli County adopted subdivision evasion criteria which prohibited use of occasional sale exemptions for divisions of land adjacent to prior occasional sales. This affected the 2-acre tract desired by the buyer. The seller then began the proceedings for approval of his property as a minor subdivision, but that process had not been completed at the time of trial. In January 1986, the buyer filed this suit. The seller filed a third-party complaint against Mr. McRae, who had drafted the form contracts for him. After a three-day trial, the District Court entered extensive findings and conclusions. The court entered judgment that the buyer was entitled to rescind his contract with the seller. It ordered seller to pay buyer all sums paid for the property, with interest, plus expenses paid for improvements to the property and costs and attorney fees. The seller appeals.

I

Did the District Court err in failing to grant the seller a directed verdict?

The buyer’s complaint contained seven counts against the seller. They were violation of the Montana Subdivision and Platting Act, fraud, breach of fiduciary duty, breach of duty as trustee of buyer’s land payments, constructive fraud, breach of the duty to act in good faith, and a claim for attorney fees. At the close of the buyer’s case-in-chief, the seller moved for directed verdicts on all seven counts of the complaint. The court denied each of the motions. The seller contends that the buyer failed to prove that he was entitled to any of the relief sought.

Since this case was tried to the court, the motions for directed verdict were not appropriate. A motion for directed verdict is only proper in a jury trial. We will treat this issue as if the motions had been for involuntary dismissal under Rule 41(b), M.R.Civ.P. That rule provides, in relevant part:

“After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.”

In his case-in-chief, the buyer presented evidence that the seller failed to reveal at the time the contract was signed that he did not have clear title to the property. He also presented evidence that the seller accepted and used all of buyer’s payments for the 2-acre tract without providing the buyer with a warranty deed to the tract. Many of the elements of the counts against the seller could arise as a matter of law, e.g., existence of fiduciary or trustee status, duty as a fiduciary or trustee, or could be implied by the testimony, e.g., fraudulent intent. We conclude that the buyer presented sufficient evidence to support his claims. The District Court properly refused to grant an involuntary dismissal of the complaint.

II

Did the court err in refusing to amend its findings and conclusions?

The seller objects to 35 specific findings of the trial judge. Rule 52(a), M.R.Civ.P., provides that “[f]indings of fact shall not be set aside unless clearly erroneous.” Without listing all of the specifics cited by the seller, we have reviewed them and in only two instances have found clear error on the part of the District Court.

Finding No. 52 states that the seller took no action to collect default fees owing when the buyer was late on contract payments. The seller introduced into evidence copies of two letters he wrote to buyer demanding late fees. Despite seller’s statement at trial that buyer had paid all sums due under the contract, those letters disprove finding No. 52. For that reason, we hold that finding No. 52 must be deleted. Such deletion does not require any change in the judgment.

Finding No. 69 describes the buyer’s expenses in improving the 2-acre tract. The finding states that buyer did 24 to 30 hours of backhoe work on the property, at a rate of $10 per hour. The actual testimony in the transcript was that the rate was $40 per hour. The finding also states that buyer put in 50 hours of additional labor at $8 per hour. The transcript of that testimony shows that the rate was $8.50 per hour. The buyer also estimated the total value of his backhoe work at $960 and the total value of his labor at $450. We order that finding No. 69 be amended to show that the rate for backhoe work was $40 per hour and the rate for labor was $8.50 per hour.

As to the other findings, the changes suggested by the seller are in some cases clarifications, and in other cases additions to the findings of the court. The testimony and other evidence at trial supports each of the challenged findings. We conclude that the court did not err in refusing to amend its findings and conclusions, other than in the two instances noted above.

Ill

Did the court err in failing to grant a new trial because of newly discovered evidence?

The newly discovered evidence is a letter dated January 3,

1980, from third-party defendant Mr. McRae to the seller. The seller apparently had this letter in his files but did not discover it until after trial.

A new trial will be granted because of newly discovered evidence only when 1) the evidence has come to the petitioner’s knowledge since the trial; 2) it was not through want of diligence that the evidence was not discovered earlier; 3) the evidence would probably produce a different result upon retrial; 4) the new evidence is not merely cumulative; 5) the evidence is supported by affidavit; and 6) the purpose of the new evidence is not merely to impeach the character or credit of a witness. Kerrigan v. Kerrigan (1943), 115 Mont. 136, 139 P.2d 533.

In the letter, Mr. McRae thanks the seller “for entrusting your legal matters to me.” We fail to see how this would change the result on retrial, because it had already been shown that Mr. McRae was the attorney who drafted the form contract for the seller. Further, since the letter was in the seller’s possession since it was received, element (2) has not been met. We hold that the District Court did not err in denying the motion for new trial.

IV

Did the court err in absolving attorney Mr. McRae from liability?

The District Court found that:

“64. Bean seeks indemnification for his damages, if any, from his former attorney, McRae, on a theory of negligence. Bean had the burden to prove (1) the existence of the relationship of attorney and client with McRae with regard to the contract; (2) acts constituting the alleged negligence; (3) that the negligence was the proximate cause of his injury; and (4) the fact and extent of the injury alleged. Bean has completely failed to meet his burden of proof as to elements 2 and 3. Bean alleges that but for the negligence of his former attorney he would not be in breach of contract. In fact, Bean’s own failure to do what he undertook to do and had the ability to do is the proximate cause of his present injury.
“65. Bean did not present any evidence that would establish that McRae breached any standard of care expected of attorneys, either in the area of McRae’s practice or in a similar locality and under similar circumstances.
“66. The Agreement prepared by McRae was prepared with a reasonable degree of care and skill for the purposes requested and based upon the information provided by Bean. McRae was acting solely as attorney for Bean and said contract has a legal purpose. Bean does not allege that the contract does not conform to the specifications he required of it.
“67. McRae acted in good faith and in the honest belief that his acts were well founded and in the best interest of his client and furthermore that his client would in fact perform the agreement so as not to harm others. There is no evidence that McRae guaranteed by express agreement, the validity of the instrument he was engaged to draft and in such absence an attorney is not held to be an insurer or guarantor of such validity.”

The seller (Mr. Bean) argues that he presented evidence of negligent conduct on the part of Mr. McRae and that this conduct was the cause of the seller’s damages.

If we followed, the seller’s logic, we would be holding Mr. McRae liable for the damages resulting from the seller’s delay in filing the deed to buyer. As indicated in the District Court’s findings, the evidence was that Mr. McRae was asked to prepare fill-in-the-blank contracts, with no knowledge of the specifics of each deal for which the contracts would be used. There is nothing in the record to indicate that the occasional sale to the buyer would have been disallowed had the deed been filed prior to the February 1985 adoption of new subdivision evasion criteria by Ravalli County. Rather, the problems arose from the delay in filing a deed to this tract. We conclude that the District Court correctly absolved Mr. McRae from liability.

The buyer points out that under section 22 of the parties’ contract, he is entitled to his attorney fees on appeal. We agree. We remand to the District Court for determination of reasonable attorney fees on appeal. In all other respects, with the exception of the two modifications to findings under Issue II, we affirm the judgment of the District Court.

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


author: MR. JUSTICE HUNT

text:
    L.R. BRETZ, Plaintiff and Appellant, v. MILAN R. AYERS, Milan R. Ayers, Personal Representative of the Estate of Yvonne Ayers, Shirley M. Brown, Richard C. Pachek, Zollie Kelman, George L. Campanella, et al, Defendants and Respondents.
    No. 87-473.
    Submitted on Briefs April 7, 1988.
    Decided May 24, 1988.
    756 P.2d 1115.

      L.R. Bretz, in pro per.
    Conklin, Nybo & LeVeque, William Conklin, Graybill, Ostrem, Warner & Crotty, George R. Crotty, Great Falls, Anderson, Beatty & Lee, Drawer D, Shelby, Douglas Anderson, Co. Atty., William Sherman, Conrad, for defendants and respondents.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Plaintiff, L.R. Bretz, appeals the decision of the Ninth Judicial District Court, Pondera County, to convert defendants, Milan R. Ayers; Milan R. Ayers, personal representative of the Estate of Yvonne Ayers; Shirley M. Brown; Richard C. Pachek; Zollie Kelman; George L. Campanella; George R. Crotty, Jr.; Ayers Oil and Gas, Inc.; Paul A. Fink; Evelyn Kelman; Sidney Kelman; Sol Berkowitz; John F. Pachek; Kenneth K. Knight; Lynn M. Seelye; Gene D. Todd; Eugene S. Hufford; William N. Walden; Russel Walden; World Wide Petroleum and Exploration Co.; Roger W. Kornder; The Village Bank; Petrox Petroleum Co.; Graybill, Ostrem, Warner & Crotty; Jerry Joy; Pati J. O’Reilly; Junkermier, Clark, Stevens, & Campanella; and Thornton G. Dewey [defendants], motions to dismiss on a quiet title action into a summary judgment for the defendants. We affirm.

The following issues are raised on appeal:

1. Whether the District Court erred when it converted motions to dismiss, Rule 12(b)(6), M.R.Civ.P., into motions for summary judgment, Rule 56, M.R.Civ.P.?

2. Whether the District Court erroneously made findings of facts contrary to the evidence?

3. Whether the District Court erred when it dismissed this action with prejudice?

On July 25, 1973, Milan R. Ayers and Thornton G. Dewey formed an equal partnership for purposes of dealing in oil, gas and other minerals. The partnership agreement specifically stated that the “partnership and Dewey’s relationship thereto remain as secret and silent as possible, and that business affairs be carried on in the name of MILAN R. AYERS . . On January 21,1980, Ayers acquired for the partnership, but in his own name, a 320 acre oil and gas lease located in Pondera County, known as the Aakre lease. Ayers and Dewey dissolved their partnership on December 22, 1980. Neither the partnership agreement nor the dissolution of the partnership agreement were recorded.

The plaintiff-appellant, Bretz, brought this action in July, 1985, to quiet title to a 21.875% working interest in the Aakre lease. Bretz claims part of this interest by relying upon an assignment of 97% of Dewey’s supposed 21.875% working interest. Bretz recognizes that defendant Shirley M. Brown received an interest in the Aakre lease, but argues that she did not receive the entire interest to the lease, but rather only Ayers’ 50% interest. Bretz argues that the partnership agreement, which gave each partner equal rights in the management of the partnership, and the dissolution of the partnership agreement between Ayers and Dewey established that Dewey was an owner of record of 50% of the Aakre oil and gas lease. Bretz further argues that even though the partnership agreement and the dissolution agreement were not recorded, the defendants knew of Dewey’s 50% interest and therefore had the requisite notice that would bar the defendants from purchasing Dewey’s 50% interest from Ayers.

The defendants brought motions to dismiss under Rule 12(b)(6), M.R.Civ.P. In response to these motions to dismiss, Bretz attached eleven documents to his brief opposing those motions to dismiss and argued the contents of those documents throughout his brief. The District Court deemed the defendants’ motions to dismiss as motions for summary judgment and found that Bretz’s quiet title action is barred by the statutes of limitations set forth in Sections 70-19-401 and -402, MCA. Bretz appeals.

The first issue raised on appeal is whether the District Court erred by converting defendants’ motions to dismiss under Rule 12(b)(6) into motions for summary judgment? Bretz alleges that summary judgment was not appropriate in this instance because he was not given reasonable opportunity to present all material pertinent to the case and further that genuine issue of material fact exists. We disagree.

The applicable rule in this instance is Rule 12(b), M.R.Civ.P., which states:

“[i]f, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not ex-eluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56.”

The language found in Rule 12(b) and 12(c) addressing converting the respective motion to dismiss and motion for judgment on the pleadings into a motion for summary judgment are identical. Likewise, the result is identical when matters beyond the pleadings are presented and considered by the court. In both cases, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. See Clayton by Murphy v. Atlantic Richfield Co. (Mont. 1986), [221 Mont. 166,] 717 P.2d 558, 560-61, 43 St.Rep. 717, 719; Matthews v. Glacier General Assurance Co. (1979), 184 Mont. 368, 375, 603 P.2d 232, 236-37.

In this instance, Bretz attached eleven documents to his brief opposing defendants’ motions to dismiss. The record reveals that the court considered these documents and did nothing to exclude any material presented to it. The court thus converted the motions to dismiss into motions for summary judgment. Bretz did not appear for the oral hearing and now claims that he did not have a reasonable opportunity to present material pertinent for a motion for summary judgment.

This Court has not previously considered when a party has a reasonable opportunity under Rule 12(b) to present material pertinent for a motion for summary judgment, however, the Court of Appeals for the Ninth Circuit addressed this issue in Grove v. Mead School Dist. No. 354 (9th Cir. 1985), 753 F.2d 1528. In Grove, the plaintiff submitted matters outside the motion to dismiss and invited consideration of them by the court. The court held that a formal notice that the court intended to treat a motion to dismiss as a motion for summary judgment was unnecessary under these circumstances because the party is “fairly apprised” that the court will look beyond the pleadings. Grove, 753 F.2d at 1532-33. Likewise, Bretz himself introduced the extra documents and invited a consideration of them by the court. Bretz thus was “fairly apprised” that the court could treat the motions to dismiss as motions for summary judgment. We hold that in this case Bretz, by his own actions, had a reasonable opportunity to, and did, present pertinent material to the court.

Bretz also argues that genuine issue of material fact exists because he contends that all defendants knew of the partnership, its dissolution, and the agreement between Ayers and Dewey regarding Dewey’s interest in the lease. In ordering summary judgment for the defendants, the District Court first recognized that a lessee’s interest in an oil and gas lease constitutes an interest in real property, Stokes v. Tutvet (1958), 134 Mont. 250, 255, 328 P.2d 1096, 1099; Rist v. Toole County (1945), 117 Mont. 426, 428-29, 159 P.2d 340, 343; Willard v. Federal Surety Co. (1932), 91 Mont. 465, 472, 8 P.2d 633, 635, and that under Sections 70-19-401 and -402, MCA, a quiet title action to real property cannot lie unless “the plaintiff, his ancestor, predecessor, or grantor was seized or possessed of the property in question within 5 years before the commencement of the action” (Emphasis added.) Section 70-19-401, MCA. The District Court then found that Dewey, and thus Bretz, were complete strangers to the record title of the Aakre oil and gas lease and thus barred by the statutes to bring a quiet title action.

In making this finding, the court first noted that possession of an oil and gas lease is established only by undertaking oil and gas operations upon the land covered by such lease, see Lehfeldt v. Adams (1956), 130 Mont. 395, 400, 303 P.2d 934, 937, and that Bretz never alleged and no evidence exists that either Dewey nor himself ever undertook oil and gas operations under the Aakre lease. The court next examined whether Bretz or his predecessor in interest, Dewey, were seised of the oil and gas lease within the five-year period required by the statutes. As the court recognized, “seisin” is defined by this Court as “perfect and complete title.” Stephens v. Hurly (1977), 172 Mont. 269, 274, 563 P.2d 546, 549-50. The court found that both Dewey and Bretz were complete strangers to the record title of the Aakre oil and gas lease and thus were not seised of the lease. The court based this finding on paragraphs 4 and 6 of the dissolution agreement. Paragraph 4 of the dissolution agreement states:

“Milan R. Ayers shall have and own, and Thornton G. Dewey hereby sells, conveys, assigns, and transfers unto Milan R. Ayers subject to the provisions of paragraph 6 hereof, all of his interest in and to, all of the remaining oil and gas properties of the partnership in the State of Montana not being sold . . ., which oil and gas properties shall include . . . those oil and gas properties generally set forth and described on exhibit C [the Aakre oil and gas lease was set forth in exhibit C]. As part of the consideration therefor, Ayers agrees to assume and to pay and all remaining debts of the partnership arising from the oil and gas operation in Montana . . . and Ayers hereby specifically agrees to hold Dewey free and harmless from any and all damages, loss, or expense of any kind whatsoever which Dewey might suffer from non-payment of said debts by Ayers.”

Paragraph 6 of the same agreement states:

“Ayers hereby covenants and agrees with Dewey to give, grant, and assign to Dewey Vi of any interest retained by Ayers in the properties discribed [sic] on exhibit C, provided, however, that in the case of a working interest retained by Ayers, Dewey’s Vi interest therein shall be converted to a ‘carried working interest,’ carried ‘free of all costs in the ratio of 4 to 1 ... .”

The court found that paragraph 4 of the dissolution agreement constituted a present conveyance by Dewey to Ayers of all of Dewey’s interest in the partnership’s oil and gas properties, and that paragraph 6 constitutes an executory promise to convey the described interest in the future. The court concluded that neither Dewey nor Bretz were seised of the oil and gas lease within the five-year period as required by the statutes. The court thus entered summary judgment for the defendants.

We hold that the District Court accurately accounted for the facts and applied the appropriate law. Paragraph 4 of the dissolution agreement clearly indicates that Dewey conveyed all of his right, title, and interest in the partnership assets to Ayers. Paragraph 6 merely imposes upon Ayers, at some time in the future, an obligation to convey to Dewey a small “carried working interest” of any interest Ayers might retain in the property. Bretz’s argument that the defendants knew of the partnership between Ayers and Dewey, its dissolution, and any supposed interest Dewey held is irrelevant, since Ayers did not retain the Aakre lease and Dewey did not retain a 21.875% interest in the Aakre lease. The District Court correctly found that no genuine issue of material fact existed and properly entered summary judgment for the defendants.

The second issue Bretz raises on appeal is whether the District Court erroneously made findings of facts contrary to the evidence. Bretz argues that the District Court overlooked the language in the dissolution agreement, specifically paragraph 6. According to Bretz’s interpretation of the dissolution agreement, Dewey conveyed all his 50% interest to Ayers in paragraph 4 and Ayers reconveyed a 50% interest to Dewey in paragraph 6.

As we have noted above, the District Court carefully examined the partnership and dissolution agreements. The court made findings of facts consistent with the language of the dissolution agreement. When interpreting a contract, the contract “must receive such an interpretation as will make it lawful, operative, definite [and] reasonable . . Section 28-3-201, MCA, and “[Repugnancies in a contract must be reconciled, if possible, by such an interpretation as will give some effect to the repugnant clauses, subordinate to the general intent and purpose of the whole contract.” Section 28-3-204, MCA. Bretz’s interpretation would render both paragraphs meaningless, since the effect of his interpretation would nullify each paragraph and place each party in their original 50-50 position. Such an interpretation of the two paragraphs is repugnant and not favored by our statutes. In finding that paragraph 4 of the dissolution conveyed a present interest and paragraph 6 constituted an executory promise to convey the described interest in the future, the District Court interpreted these paragraphs of the dissolution agreement so as to give effect to both paragraphs. We thus hold that the District Court made findings of facts consistent with the evidence.

The third issue raised by Bretz on appeal is whether the District Court erred when it dismissed this action with prejudice. Bretz contends that when a statute of limitations is the basis for dismissing an action, then the action should not be dismissed with prejudice when the passage of time obviates the defense. Bretz thus argues that even if the District Court correctly found that his predecessor in title, Dewey, did not have “constructive seisin” for five years prior to filing the complaint, he nonetheless should have been entitled to refile and start again.

Bretz’s basic contention is not applicable in this instance. As previously noted, Section 70-19-401, MCA, requires that Bretz or Dewey be possessed or seised of the Aakre lease within five years before the commencement of the action. The District Court found, and the record and evidence supports, that neither Bretz nor his predecessor in interest, Dewey, were seised of the Aakre lease at the time Bretz brought the quiet title action or at any time prior to the bringing of the action. The mere passage of time will not cure this defect and thus bars Bretz from refiling a quiet title action. If Bretz, however, obtained title to an interest in the lease in the future through a new assignment executed by someone having title and his new title was not recognized, Bretz could then commence a new action to quiet title. But that is not the case here. We hold that under the present set of facts the District Court did not err when it dismissed this action with prejudice.

We affirm.

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


text:
    In re the MARRIAGE OF DONNA J. GEERTZ, Petitioner and Appellant, and KEITH D. GEERTZ, Respondent and Respondent.
    No. 87-551.
    Submitted on Briefs May 6, 1988.
    Decided May 24, 1988.
    755 P.2d 34.

      Mary E. Westwood, Billings, for petitioner and appellant.
    Christopher P. Thimsen, Billings, for respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Donna Geertz appeals from the judgment and order of the District Court of the Thirteenth Judicial District, Yellowstone County, which determined the parties had not entered into a common law marriage. We affirm.

The issues before the Court are:

1. Did the District Court properly bifurcate the proceeding in order to determine whether a common law marriage existed before addressing other issues?

2. Is there substantial credible evidence to support the District Court’s findings of fact?

3. Did the District Court erroneously conclude that Donna failed to establish that the parties assumed a marital relationship by consent and agreement?

Donna and Keith Geertz were married on May 24, 1980. A son was later born of the union.

Like many young couples starting a new life, Donna and Keith soon purchased a home. The title to the home was held jointly. The couple also filed a joint income tax return, held joint insurance policies, held joint bank accounts and held other property jointly.

On July 10, 1981, Donna and Keith’s marriage was dissolved. At that time the parties entered into a separation agreement, which was adopted by the court, whereby Keith was awarded custody of their son. The parties concede that the controversy at hand arises in large part due to the placement of the custody of the child with Keith. Donna was not represented by counsel during the initial divorce and apparently was led to believe that an unemployed parent could not receive custody.

Following the divorce and division of the marital estate, Donna obtained her own residence. However, the couple soon resumed living together. On or about November 8, 1981, Donna moved back into the family home. The nature of the renewed relationship is hotly contested. Donna filed a dissolution petition alleging common law marriage on February 5, 1984. Keith denied the existence of the marriage.

Donna testified that the couple resumed a marital relationship upon returning to the family home. In support of her contention, she introduced an automobile loan agreement which was co-signed by Keith as well as the joint title to the automobile. Donna also presented evidence that Keith had occasionally introduced her as his wife.

Keith testified that Donna returned to the family home on an experimental basis, in order to attempt to work out their differences. He acknowledged that although he had introduced Donna as his wife on a few occasions, he did so merely to avoid embarrassment. In his opinion, the parties had not renewed the marital relationship at any time.

The evidence revealed that following the 1981 divorce, both parties filed tax returns designating themselves as single individuals. In addition, following the divorce, the parties maintained separate bank accounts; with the exception of Donna’s car, held property separately; applied for several loans in which each party listed themselves as single or divorced; and maintained separate insurance. The parties also agree that Donna had asked Keith to remarry her on more than one occasion during the course of the cohabitation.

Following a hearing solely on the issue of the common law marriage, the District Court determined that Donna had “failed to show the parties assumed a marital relationship by consent and agreement.” This appeal followed.

The first specification of error concerns the District Court’s bifurcation of the proceedings in order to determine whether there was a common law marriage before hearing evidence on custody, property distribution and maintenance. Donna contends that Section 40-4-104(l)(d), MCA, prohibits bifurcation of the proceeding in the instant case. We find Donna’s argument is without merit.

The legislative intent, as demonstrated by the plain language employed, clearly indicates that Section 40-4-104(l)(d), MCA, was designed to consolidate, expedite, and finalize dissolution proceedings. In the ordinary case, the prohibition of bifurcated and compartmentalized dissolution proceedings fulfills the legislative design. However, the statute presumes, and the parties generally do not contest, the existence of a lawful marriage. Such is not the case here. We therefore conclude that Section 40-4-104(l)(d), MCA, is inapplicable.

The district courts of this state are charged with the duty of achieving substantial justice. A necessary prerequisite to the performance of this judicial function is the authority to fashion rules and procedures commensurate with the task at hand. The district courts have therefore been vested with wide discretion in the manner of the performance of their office. See Sections 3-1-111, -113, MCA. Inherent in this grant of discretion is the authority to bifurcate a proceeding when equity, sound legal reasoning, and judicial economy so dictate. See Section 3-1-113, MCA.

In the instant case, the court lacked the authority to grant the relief requested until a determination of the marital relationship of the parties was completed. Put simply, a court can not dissolve or equitably distribute the fruits of that which does not exist. The court’s decision to bifurcate the proceedings with a view towards conserving the time and resources of the parties, as well as those of the court, was not an abuse of discretion.

Donna next contends that the District Court’s findings of fact, specifically Nos. 6, 8, and 9, are clear error. However, a review of the record demonstrates that the court’s findings of fact Nos. 8 and 9 accurately summarize the testimony. We therefore confine our discussion to finding of fact No. 6.

Finding of fact No. 6 states that the parties “did not hold property in joint ownership” during the course of their post divorce cohabitation. In light of the evidence that Donna and Keith held joint title to her automobile, the District Court’s finding is in error. However, we find the error to be harmless.

Keith testified that while he had agreed to co-sign the automobile loan, he was not aware that he held an ownership interest in the automobile. In addition, the remainder of the parties property was held separately. The court’s failure to provide that Keith did not “knowingly” hold property in joint ownership with Donna does not constitute a denial of substantial justice, nor would an isolated instance of joint ownership have a significant impact on the result. Under such circumstances, we conclude the error was harmless.

The third specification of error concerns the District Court’s determination that Donna failed to establish a common law marriage. Although Donna argues that the issue is the District Court’s failure to apply the presumption of marriage contained within Section 26-1-602(30), MCA, and that the court’s decision is in violation of the public policy of this state, the real issue is whether Donna carried her burden of proof.

In order to establish the existence of a common law marriage, the party asserting the marriage must show (1) the parties are competent to enter into a marriage; (2) assumption of such a relationship by mutual consent and agreement; and (3) cohabitation and repute. Stevens v. Woodmen of the World (1937), 105 Mont. 121, 141, 71 P.2d 898, 905. Although the public policy of this state, as demonstrated by the presumption contained within Section 26-1-602(30), MCA, generally favors a finding of a valid marriage, the burden of proof remains upon the person asserting a common law marriage. The District Court found that Donna failed to carry her burden of proof.

Contrary to Donna’s assertion, the District Court did not find that the parties had failed to consent to a common law marriage solely on the basis of Keith’s denial of the marital relationship. The record demonstrates that the majority of the property was held separately; that both parties filed single income tax returns; that Donna asked Keith to get remarried after they had allegedly assumed a common law marriage; that both parties maintained separate insurance and bank accounts; that Keith generally referred to Donna as his ex-wife; and that Keith listed himself as single on various loan applications. The evidence presented demonstrates that the parties’ actions did not manifest an understanding that they had entered into a contract of common law marriage. The evidence is also sufficient to rebut any statutory or common law presumption of marriage.

The judgment of the District Court is affirmed.

MR. JUSTICES HARRISON, WEBER, HUNT and McDON-OUGH concur.


text:
    DAVID TURNER and Patricia M. Turner, Plaintiffs and Appellants, v. STEVE W. FERRIN and Debra A. Ferrin, Defendants and Respondents.
    No. 88-30.
    Submitted on Briefs March 31, 1988.
    Decided May 24, 1988.
    757 P.2d 335.

      J.B. Wheatcroft, Miles City, for plaintiffs and appellants.
    Bruce Brown, Brown & Huss, Miles City, for defendants and respondents.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

This is an appeal from a judgment and final order denying plaintiffs/appellants David and Patricia Turners’ (Turners) motion to amend findings of fact and conclusions of law issued by the District Court of the Sixteenth Judicial District Court, Custer County, Montana. Following a bench trial, the court disallowed rescission of a contract for deed entered into by the Turners with defendants/respondents Steve and Debra Ferrin (Ferrins). We affirm.

Appellants raise two issues for our review:

1. Whether the District Court erred in failing to find the Turners were entitled to rescission?

2. Whether the court erred by declaring a forfeiture when Ferrins could not provide title?

In the judgment, issued on October 21, 1987, the District Court found that the sale of property involved in this case was a sale in gross with an approximate six percent acreage variation that was not a material nor substantial lack of consideration that would entitle the Turners to rescission. The court found the Turners guilty of laches, and that the Ferrins had given due notice of default that was not cured. Finally, the court ordered the Turners to cure the default within thirty days of entry of the judgment at which time the Ferrins were to deliver a deed to the Turners and that failure would result in termination of the contract with the Ferrins entitled to immediate possession of the property.

The Turners filed consolidated post-trial motions moving for amendment of the findings of fact, conclusions of law and judgment or in the alternative, a new trial on October 30, 1987. It is from this final order denying these motions and the judgment that the Turners appeal.

Steve and Debra Ferrin owned an irrigated ranch near Miles City, Montana. The size of the parcel is in dispute, either approximately 96 acres or, as the Turners claim, as small as 90 acres. A buy-sell agreement, prepared by Steve Ferrin, who is also a real estate broker, was signed by the Turners on September 13, 1982. The total purchase price was $230,000 with a $100,000 down payment paid previous to the closing on October 12, 1982. A contract for deed was executed by all parties. The Turners were represented by counsel. Attached to the contract for deed as Exhibit “A” was a description of the real property as follows:

“Township 8 North, Range 48 East, M.P.M. “Section 5;
“NVfeSWVi and NW Vi SE Vi, LESS that portion described as Tract 3, containing 19.26 acres, more or less, in accordance with the Certificate of Survey filed for record as Document No. 60202 in Envelope No. 191 of the Plat Cabinet, records of Custer County, Montana, and LESS that portion of the NWViSWti which lies north and west of the right-of-way of the Burlington Northern Railroad (formerly Northern Pacific Railroad Company).
“Section 6:
“That portion of the NEVASE Vi which lies south and east of the right-of-way of the Burlington Northern Railroad (formerly the Northern Pacific Railroad Company).
“Containing 96.73 acres, more or less.”

This description was exactly the same as that contained in the buy-sell agreement. Paragraph nine of the contract for deed referred to title insurance and stated the property was subject to easements and rights of way of record and other visible easements. However, the warranty deed placed in escrow from the Ferrins to the Turners contained no reservations or exceptions for any servitudes. The warranty deed did contain the exact description of the property as in the contract for deed and the buy-sell agreement.

The Turners moved onto the property in October of 1982 and Patricia Turner testified that they thereafter spent $26,815.69 on improvements on the property. Both annual payments of $16,133.97 were timely made in 1983 and 1984, however, the 1985 payment was not made. The Turners and Ferrins entered into an accommodation agreement on December 24, 1985 extending the time to make the annual payment but the default was not cured.

Prior to the scheduled date of forfeiture, the Turners filed an action for declaratory judgment attempting to have the contract declared a mortgage thereby entitling them to a right of redemption and occupancy. The Ferrins were granted summary judgment on this issue. The Turners then filed for relief under Chapter 11 in Bankruptcy Court. The Turners pursued rescission of the contract in Bankruptcy Court but the cause was remanded to the Montana State District Court because of mandatory abstention under Section 28 U.S.C. 1334(c)(2).

An amended complaint was filed March 19, 1987 in which it was alleged for the first time that an acreage shortfall was present in the sale of the property. The Turners employed a survey company to survey the property and the company’s report disclosed that less than 96.73 acres existed. The amended complaint alleged that no exceptions were made in the warranty deed for a right of way. It was alleged that a portion of the property actually contained a right of way for a state highway and this easement was “on file and of record.” The complaint also alleged that due to the fact the premises described in the warranty deed did not describe the property as “an aliquot part as defined by the subdivision laws of the State of Montana and is otherwise not subject to a certificate of survey” the deed was “ineligible for filing for record if the warranty deed were delivered to plaintiffs.”

A bench trial was held September 18, 1987 and both parties presented testimony and exhibits. Although the Turners presented the survey they had recorded, they did not call the surveyors themselves. The Ferrins also presented two unofficial surveys that were not recorded and did not call a surveyor. The Turners’ survey shows the tract contained 90.73 acres. This survey gave the recorded right of way for U.S. Highway 10 as a boundary rather than the Burlington Northern Railroad right of way stated in the description.

The Ferrins’ exhibits were also admitted into evidence. These exhibits show, and Steve Ferrin testified to, the possible mistake that occurred in this case. The Ferrins’ exhibit number two shows the property involved as an undivided 115.99 acre tract, only a portion of which was subject to the contract for deed. The Ferrins’ exhibit number one shows tract three as a 19.26 acre plot that had been sold earlier by the Ferrins. The remainder of the property, 115.99 minus the 19.26 acres, is the unit that was sold to the Turners. It was in this manner that the figure, 96.73 acres, was determined.

The District Court adopted the Ferrins’ proposed findings of fact and conclusions of law. The court stated that the sale was one “in gross” because the contract provided for the sale of 96.73 acres “more or less” and the six percent acreage variation was not material. Further, the court concluded, the Turners did not prove “by a preponderance of the evidence that there was in fact any acreage discrepancy.”

This Court’s standard of review of a lower court’s findings of fact is whether the findings are supported by substantial evidence. Where conflicting evidence is presented, the trial court will not be overturned unless there is a clear preponderance of the evidence against the findings. Taylor et al. v. Cannaday (Mont. 1988), [230 Mont. 151,] 749 P.2d 63, 66, 45 St.Rep. 102, 105. We have held numerous times that a trial court’s verbatim adoption of all proposed findings and conclusions is acceptable if they are comprehensive and detailed, are supported by the evidence before the court, and are not clearly erroneous. Olsen v. McQueary (Mont. 1984), [212 Mont. 173,] 687 P.2d 712, 716, 41 St.Rep. 1669; R.L.S. v. Barkhoff (Mont. 1983), [207 Mont. 199,] 674 P.2d 1082, 1085, 40 St.Rep. 1982.

The Turners’ argument that the District Court erred is based on two theories. First, that the presence of the easement not referred to in the warranty deed entitles them to the equitable remedy of rescission of the contract for deed and return of all the money they have paid. Secondly, the Turners contend forfeiture was not properly granted and they are entitled to rescission because the title to be conveyed by the Ferrins was unmerchantable as it was unrecordable.

Initially, we note that this sale indeed seems to be for a “sale in gross.” The Ferrins appropriately point out that this Court has stated in Hardin v. Hill (1967), 149 Mont. 68, 74, 423 P.2d 309, 312, that “[generally when land is sold in gross, a variation in acreage from what the parties had contemplated is not grounds for rescission or other relief.” There was sufficient evidence to support the finding of the District Court that the property was a sale in gross. However, not only does this rule require determination of whether the property in question is sold in gross, where the relief requested is equitable in nature as is rescission, we should also consider whether the acreage shortfall is material.

In Parcel v. Myers (Mont. 1985), [214 Mont. 225,] 697 P.2d 92, 93, 42 St.Rep. 352, the words “in gross” were not actually used in the sale document but we held the district court properly found a bulk real estate transaction occurred and the property was sold “in gross.” The purchaser in Parcel, “looked at the property at least three (3) times;” walked the property boundary which was fenced on its borders; and was told “you are looking at what you get.” No conversation about price per acre occurred and negotiations centralized around the total purchase price and buildings. Here, the Ferrins fixed a purchase price of $240,000 and the Turners bargained for and received a unit price of $230,000. At trial, no evidence was ever presented that a per acre price was negotiated. Most importantly, David Turner admitted that he inspected the premises at least three times and that he was shown the boundaries.

The Ferrins’ counsel has directed the Court to an annotation in 1 A.L.R.2d 9 dealing with relief to be granted when there is a mistake in the quantity of land sold. This annotation suggests a number of factors to be used to determine whether a sale is “in gross” or by the acre. The importance of making this determination is that the general rule calls for refusal of relief, in the absence of fraud, where the sale is in gross. 1 A.L.R.2d at 19.

The annotation suggests a sale in gross is favored where the statement of price is a lump sum as in this case, rather than a statement of price as a specified rate per acre. 1 A.L.R.2d at 28-38.

“Some courts even go so far as to say that the presence of the words ‘more or less’ makes a prima facie showing or raises the presumption that the sale is one in gross.

“The reason for this tendency is very easy to detect. The use of the words ‘more or less’ excludes the assumption of an exact number of acres and makes it clear that the precise dimensions of the property are not of the essence of the contract, the parties either not knowing themselves the exact number of acres in the land, or purposely not intending to state it.”

1 A.L.R.2d at 47-48. Finally, and this is applicable to the case at bar due to the wording of the description, use of the term “more or less” tends to show the sale is “in gross.”

Although we do not hold that the use of the language “more or less” alone creates a “sale in gross,” we do hold that it is sufficient, combined with the observation of the property by the Turners, the sale price as a negotiated lump sum, and the lack of a statement of price per acre, to create a “sale in gross.”

We next look to determine whether the alleged variation of acreage in this case was sufficiently material or substantial to hold that the District Court erred in denying rescission. Under Section 28-2-1711, MCA, rescission may occur only in certain circumstances:

“A party to a contract may rescind the same in the following cases only:
“(1) if the consent of the party rescinding or of any party jointly contracting with him was given by mistake or obtained through duress, menace, fraud, or undue influence exercised by or with the connivance of the party as to whom he rescinds or of any other party to the contract jointly interested with such party;
“(2) if, through the fault of the party as to whom he rescinds, the consideration of his obligation fails in whole or in part . . .” Section 28-2-1711, MCA.

In this instance, the District Court stated in its order that there was not a “material or substantial lack of consideration by the [Ferrins].” No fraud, duress, menace, or undue influence was alleged or proven by the Turners. In Carey v. Wallner (Mont. 1986), [223 Mont. 260,] 725 P.2d 557, 44 St.Rep. 1778, we discussed the grounds for rescission under this statute. As in Carey, the resolution of this issue turns on whether there was a mistake and/or failure of consideration. Consideration is defined as:

“[a]ny benefit conferred or agreed to be conferred upon the promisor by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered or agreed to be suffered by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor is a good consideration for a promise.”

Section 28-2-801, MCA. Here, the Turners received the property. There was never any statement that they needed exactly 96.73 acres or that this was the most important object, the essence, of the sale. At any rate, the District Court properly determined there was no lack of consideration.

In Carey, we held that rescission of the contract was proper because the Careys had purchased the property with the express intention of operating an adult foster care home. Upon further investigation, it was discovered that the area in which the property was located was zoned such that a foster home would violate the zoning ordinances. Therefore, we stated the Careys did not receive what they bargained for. The Turners received what they bargained for, 96.73 acres more or less. It is important to note that this property was both irrigated and dry land and the acreage discrepancy could have been a mistake due to the differences in acreage stated on surveys Steve Ferrin had and the survey done for Dave Turner. The Turners’ survey, although recorded, is only important if he could have proved the mistake was material.

We stated in Carey, that rescission of the contract was proper because of material mistake. The Court considered Section 28-2-409, MCA, which states:

“[m]istake of fact is a mistake not caused by the neglect of a legal duty on the part of the person making the mistake and consisting in.
“(2) belief in the present existence of a thing material to the contract which does not exist or in the past existence of such a thing which has not existed.”

We went on to state:

“A mistake is an unintentional act or omission arising from ignorance, surprise, or misplaced confidence. (Citation omitted.) The mistake must be material, or, in other words, so substantial and fundamental as to defeat the object of the parties. (Emphasis added.)”

Carey, 725 P.2d at 560-561.

In this case, assuming the alleged discrepancy exists, the missing acreage was approximately six percent of the total sale as the District Court noted. Equity will provide a remedy when by mutual mistake the land contains materially more or less acreage than the parties believed. A slight disparity will justify equitable relief if the sale is by the acre, but, if the sale is in gross a great disparity must exist to authorize relief. Steward v. Jones (Tex. Ct.App. 1982), 633 S.W.2d 544, 546. In Steward, the court granted rescission of the contract when the sellers discovered that the property they sold contained forty-eight percent more property than what they believed.

Ordinarily, when a sale of land is in gross, deficiencies of ten to twenty percent and even more than thirty percent have not been considered sufficiently material to entitle a buyer to relief. Seyden v. Frade (1972), 88 Nev. 174, 494 P.2d 1281, 1283, citing 1 A.L.R.2d 9. The annotation states that rescission is granted only where the acreage deficiency is material:

“In a number of jurisdictions the general rule appears to be that equity will rescind a contract for the sale of land in gross because of a mutual mistake of the parties as to the quantity of the land, where the deficiency is a material one, even if the statement as to area is followed by the term ‘more or less.’ Generally, such material deficiency has been said to exist only where the discrepancy closely approached, or exceeded, 50 percent, though this rule is not uniform.” 1 A.L.R.2d at 127.

In this case, we find that the District Court did not err in denying the Turners a rescission on grounds there was not a material or substantial lack of consideration.

Further, it is clear that the Turners were put on notice to look for easements of record and visible easements by paragraph nine of the contract for deed. The agreed facts in the pretrial order state that the right of way for U.S. Highway 10 is a property interest of record and on file with the Custer County Clerk and Recorder. David Turner admitted that he was aware of the road and that he was shown the property boundaries. Under these circumstances this statement is sufficient to at least put the Turners, who were represented by counsel, on notice to inquire as to possible easements.

Finally, the Turners argue they are entitled to rescission, or at a minimum that the District Court erred in granting a forfeiture under the contract for deed because merchantable title could not have been conveyed by the Ferrins due to failure to have a proper description according to the cases of McCarthy v. Timberland Resources, Inc. (Mont. 1985), [219 Mont. 278,] 712 P.2d 1292, 1294, 42 St.Rep. 2016; and Timberland Resources, Inc. v. Vaught (Mont. 1987), [227 Mont. 247,] 738 P.2d 1277, 44 St.Rep. 1054. These cases turned on interpretation of Section 76-3-401, MCA, which requires a survey prior to the recording of property “one thirty-second or larger aliquot parts of a United States government section.” We will not address the above interpretation as was attempted in both McCarthy, and Vaught. However, both cases are distinguishable because there was a refusal to record by the county in McCarthy and a challenge by the county attorney as to the recording practice in Vaught.

No challenge to or refusal of recording has occurred in this case. The Turners allege that the warranty deed could not be recorded but have not proven this as fact and the allegation alone does not make the title unmerchantable. As was said by this Court, “[t]he crux of the issue is whether the property is identifiable. ‘[D]eeds . . . must contain an adequate description of the property to be conveyed.’ ” Vaught, 738 P.2d at 1279.

In Sharbono v. Darden (Mont. 1986), [220 Mont. 320,] 715 P.2d 433, 436, 43 St.Rep. 400, we held that a vendee is excused from failure to make a balloon payment because the vendor might never be in the position to convey title because the vendor had a condition precedent of satisfaction of a mortgage of the property prior to receiving clear title. We recently reiterated this standard in Stark v. Borner (Mont. 1987), [226 Mont. 356,] 735 P.2d 314, 318, 44 St.Rep. 717:

“This Court is concerned, however, about the lack of any findings regarding the sellers’ ability to convey title after they accelerated payment. The established rule of law is that a vendor cannot, while unable to tender good title, enforce a forfeiture provision of a contract on default of the vendee. (Citation omitted.)
“ ‘. . . the mere failure of the purchasers to make the deferred payments did not ipso facto entail a forfeiture of their rights under the contract, and, when the vendor elected to give the notice which would effect that result, the forfeiture could only be declared if, at the time she demanded final payment, she could convey marketable title. (Citations omitted.)’ Silfvast v. Asplund, 93 Mont. at 595, 20 P.2d at 636.
“This rule was enunciated most recently in Sharbono v. Darden (Mont. 1986), [220 Mont. 320,] 715 P.2d 433, 43 St.Rep. 400, where we agreed with the Fourth Judicial District’s finding that the vendee’s ‘failure to make the balloon payment when due is excused by Sharbono’s [vendors] inability to convey title.’ ”•

Stark, 735 P.2d at 318.

The Turners admit “[a] survey such as was undertaken by [the] Turners, at their own expense, might enable [the] Ferrins to be able to deliver a recordable deed ...” The District Court noted that the Ferrins were willing to pay for the cost of the survey in its findings of fact and conclusions of law. It was not shown by a preponderance of the evidence to the District Court that the deed involved was truly defective and that title was not merchantable. Absent proof of the fact that the Ferrins did not have merchantable title, the District Court did not err in granting a forfeiture in this case.

The judgment and order of the District Court are affirmed.

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