text:
    JOHN J. D’AGOSTINO and Joann M. D’Agostino, husband and wife, Third-Party Plaintiffs and Appellants, v. BURNEAL C. SWANSON, the same person as Neal Swanson and Neil Swanson, Third-Party Defendant, Counterclaimant and Respondent.
    No. 89-116.
    Submitted on Briefs Oct. 13, 1989.
    Decided Jan. 4, 1990.
    784 P.2d 919.

      Edmund P. Sedivy, Jr., Morrow, Sedivy & Bennett, Bozeman, for third-party plaintiffs and appellants.
    H.A. Bolinger, Bozeman, for third-party defendant, counterclaim-ant and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

This appeal arises out of a real property dispute involving several parties, including appellants, John J. and Joann M. D’Agostino, and respondent, Burneal C. Swanson. The District Court of the Eighteenth Judicial District, Gallatin County, granted partial summary judgment against the D’Agostinos and dismissed their third-party complaint against Swanson. After a hearing on Swanson’s counterclaim, the court held in favor of Swanson, concluding that the D’Agostinos breached written covenants against encumbrances, committed fraud by concealing material facts in the sale of real property, breached the covenant of good faith and fair dealing and improperly joined Swanson as a party to the action. The court entered judgment against the D’Agostinos in the amount of $6,953 as attorney’s fees, $761 as costs and $5,000 as punitive damages. The D’Agostinos appeal. We affirm.

The issues are as follows:

I. Did the trial court err in granting partial summary judgment to Swanson on the ground that the claims alleged in the D’Agostinos’ third-party complaint were barred by the statute of limitations?
2. Did the trial court err in finding that the D’Agostinos improperly joined Swanson as a party to the action?
3. Did the trial court err in finding that the D’Agostinos were liable on the counterclaims brought by Swanson?

In 1977, appellants, John J. and Joann M. D’Agostino, purchased the Westwood Motel, located on Lots 3, 4, 5 and 6 of Block 26 of the Original Townsite to West Yellowstone, Montana. The motel property consisted of a large main building and several small cabins.

The D’Agostinos purchased the property from Robert and Vivian Schaap, who had owned the motel since 1974. At the time the Schaaps purchased the property, four cabins sat partially on Lot 3 and partially on Lot 4. The Schaaps consolidated these four cabins into two larger units and moved them to the west, onto Lot 4, aligning them with the east side of an existing cabin. It appears that the Schaaps believed that this consolidation and realignment completely removed the structures from Lot 3, although they did not complete a survey to determine the exact boundary line between Lots 3 and 4.

In 1979, the D’Agostinos decided to sell Lot 3. Prior to the sale, John D’Agostino and his realtor, John Costello, sought to determine the line between Lots 3 and 4 by measuring from a survey marker on an adjoining lot. They observed that the Schaap cabins were very close to the line and that some cement steps and small cupolas over the doors obviously encroached onto Lot 3. Later, D’Agostino talked to Donna Young, who had possessed the property from 1949 to 1965 and who, in 1979, still held the title to the lots. Young cautioned D’Agostino that the cabins encroached upon Lot 3.

The D’Agostinos sold Lot 3 to Swanson in 1979. The agreement for sale of the lot warranted title “free and clear of all encumbrances” and provided that the D’Agostinos would obtain title insurance “with no exceptions.” Because the contract was entered into in the winter when, due to the amount of snow on the ground, a survey was impracticable, the agreement provided that the D’Agostinos would have the property surveyed as soon as possible in the summer months. The D’Agostinos failed to undertake the survey.

Swanson paid a total of $30,000 for the lot. He put $3,000 down when the purchase agreement was executed and paid the remaining $27,000 in May, 1979. Upon payment of the entire purchase price, the D’Agostinos delivered a full warranty deed to Swanson.

At the time the parties entered into the purchase agreement, D’Agostino represented and Swanson believed that Lot 3 was a vacant lot and that, with the exception of the cement slabs and cupola overhangs, none of the cabins encroached upon it. In order to accommodate the problem of entrance to the cabins, the agreement included a two-year provision allowing the D’Agostinos and their motel guests a right of access to and from the cabins.

In early June, 1981, Swanson gave written notice to the D’Agostinos, reminding them that the right of access would expire on October 15, 1981, and asking them to inform any possible purchasers of the motel of the access problems. In response, John D’Agostino approached Swanson with a written easement grant, which provided a permanent easement and right of encroachment over Lot 3. Swanson refused to sign the grant because he wanted all of Lot 3 for development.

Shortly thereafter, Swanson and D’Agostino measured the lot line. Swanson testified that they both agreed that the cabin structures themselves encroached onto Lot 3. D’Agostino refuted Swanson’s assertion and testified that the cabins did not appear over the boundary line. The District Court specifically found that Swanson’s testimony was more credible. The court also found that this was the first Swanson knew of the actual cabin encroachment, while D’Agostino knew of the problem all along.

On June 15, 1981, the D’Agostinos sold Lots 4 through 6 to Atañas and Eileen Markov. In 1982, the Markovs hired a surveyor to check the boundary line between Lots 3 and 4. On July 6, 1982, the surveyor reported that the cabins in question encroached approximately 2 to 3 feet upon Lot 3 and the cupolas even further.

In March, 1983, the Markovs filed suit against the D’Agostinos and their realtor, Costello, alleging fraud, deceit and concealment. On February 24, 1984, the D’Agostinos filed a cross-claim against Costello and a third-party complaint against Swanson. In the third-party complaint, the D’Agostinos alleged that the encroachment was a mutual mistake and sought reformation or rescission of the contract or a declaratory judgment for an easement.

Swanson answered the D’Agostino’s third-party complaint in April, 1984. In December, 1985, he amended the answer and counterclaimed against the D’Agostinos, alleging that the D’Agostinos breached the purchase agreement, the warranty deed and the implied covenant of good faith and fair dealing, and that the D’Agostinos fraudulently concealed material facts. Swanson sought general and punitive damages as well as costs and attorney’s fees.

In February, 1987, the court granted partial summary judgment to Swanson and dismissed the D’Agostinos third-party complaint against him, holding that the D’Agostinos’ claims were barred by the statute of limitations and that the D’Agostinos did not present a justiciable claim against Swanson. The court denied the D’Agostinos’ subsequent motion to amend the third-party complaint.

On March 31, 1987, the jury trial on the Markovs’ complaint commenced. Following a week-long trial, the jury returned a verdict in the amount of $53,050 in favor of the Markovs and against the D’Agostinos. The jury held the realtor, Costello, free from liability on any claims against him by either the Markovs or the D’Agostinos. To settle the judgment, the cabins were moved off Lot 3 and onto vacant parcels that were available on the motel grounds.

On December 29, 1987, the District Court conducted a hearing on Swanson’s counterclaim. Both Swanson and John D’Agostino testified. After the proceeding, the District Court issued findings of fact and conclusions of law. The court held that the D’Agostinos had breached the covenant against encumbrances and the covenant of good faith and fair dealing as well as committed fraud and improperly joined Swanson as a party to the litigation. The court awarded Swanson attorney’s fees of $6,953 and costs of $761. The court reasoned that, although the written contract between Swanson and the D’Agostinos contained no provision for attorney’s fees, the award in this case was needed to make Swanson whole. The court also found that the D’Agostinos continued actions and legal proceedings against Swanson were “ill-advised, frivolous, fraudulent, malicious and oppressive,” thereby entitling Swanson to punitive damages of $5,000 to deter the D’Agostinos from such further conduct. The D’Agostinos appealed to this Court.

I

Did the trial court err in granting partial summary judgment to Swanson on the ground that the claims alleged in the D’Agostinos’ third-party complaint were barred by the statute of limitations?

The D’Agostinos’ third-party complaint alleged that they entered into an agreement with Swanson for the sale and purchase of Lot 3 for $30,000. The complaint further alleged that when they executed the agreement the parties were under the mistaken belief that three cabins were located on Lot 4 when in fact the structures partially encroached upon Lot 3. The D’Agostinos sought, by way of reformation or rescission of the contract or a declaratory judgment, an easement from Swanson to correct the “mistake.” "

The District Court granted summary judgment to Swanson and dismissed the D’Agostinos’ third-party complaint, holding that the claims alleged by the D’Agostinos were barred by § 27-2-203, MCA, which provides as follows:

“The period prescribed for the commencement of an action for relief on the ground of fraud or mistake is within 2 years, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.”

The D’Agostinos argue that the District Court applied the incorrect statute of limitations. They maintain that the proper statute to apply in this case is § 27-2-202(1), MCA, which provides an eight-year limitations period for actions on written contracts.

The D’Agostinos base their argument on Thielbar Realties, Inc. v. National Union Fire Ins. Co. (1932), 91 Mont. 525, 9 P.2d 469. In Thielbar, the plaintiff’s property was damaged by fire. When the insurance company refused to pay the resulting claim for damages because the insurance policy contained a scrivener’s error that incorrectly described the legal location of the property, plaintiff brought an action against the company. The insurance company argued that the action was barred by the two-year statute of limitations governing suits based on mistake. This Court disagreed. We held that the limitations period prescribed for actions based on written contracts applied because reformation of the drafting mistake was merely auxiliary to the action’s main purpose, which was to enforce the written contract.

The present case is distinguishable. The D’Agostinos did not commence this action to enforce the written contract. How could they? Swanson had completely performed his side of the agreement. There was simply nothing for the D’Agostinos to enforce.

The purpose of the D’Agostinos’ lawsuit against Swanson was not to enforce the agreement. Rather, the purpose of the lawsuit was to modify the agreement in order to obtain an easement over Lot 3. The D’Agostinos sought to justify the action by alleging a mutual mistake of fact. Because mutual mistake was the essence of the action, the two-year statute of limitations pertaining to actions seeking relief on the ground of mutual mistake governed the lawsuit.

The D’Agostinos next argue that, even if the two-year limitations period applied, the District Court improperly granted summary judgment because a genuine issue of material fact existed concerning the date upon which they discovered the mistake, i.e., the encroachment. The D’Agostinos maintain that they did not actually learn that the cabins encroached upon Lot 3 until July, 1982, when a professional survey of the lot was completed. Therefore, the D’Agostinos argue, when they filed their action against Swanson in February, 1984, they did so within the two-year period prescribed by the statute.

The party moving for summary judgment under Rule 56, M.R.Civ.P., bears the burden of proving that he is entitled to a judgment as a matter of law. To do this, he must demonstrate the complete absence of any genuine issue of material fact. All reasonable inferences that may be drawn from the offered proof must be drawn in favor of the party opposing summary judgment. Cereck v. Albertson’s, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 510-11.

Examining the evidence in the light most favorable to the D’Agostinos, it appears that, at the time of the motion for summary judgment, a genuine issue of material fact may have existed regarding the D’Agostinos actual discovery of the encroachment. However, the statute of limitations for actions based on mutual mistake does not depend on actual discovery of the alleged mistake before it begins to run. Rather, the limitations period begins to run when the facts are such that the party bringing the action would have discovered the mistake had he exercised ordinary diligence. Gregory v. City of Forsyth (1980), 187 Mont. 132, 136, 609 P.2d 248, 251. Therefore, when it ruled upon the statute of limitations issue, the District Court was not required to determine at what point the D’Agostinos obtained actual knowledge of the encroachment.

In the present case, the contract between the D’Agostinos and Swanson required the D’Agostinos to survey the property in the summer of 1979. Had the D’Agostinos complied with the contractual terms and completed the survey they would have discovered that the cabins sat partially on Swanson’s lot. Instead, they chose not to undertake the survey. Through their own failure to diligently perform the contract, the encroachment problem did not become universally known until 1982, when the Markovs completed a survey of the property. We hold that the statute of limitations began to run in the summer of 1979, the time when the D’Agostinos would have discovered the encroachment had they diligently complied with the contractual terms. Because the D’Agostinos did not file their third-party complaint against Swanson until 1984, the District Court correctly concluded that the action was barred by the statute of limitations.

II

Did the trial court err in finding that the D’Agostinos improperly joined Swanson as a party to the action?

The District Court found that the D’Agostinos unjustifiably joined Swanson as a party to the lawsuit. The court further found that the legal proceedings the D’Agostinos instituted against Swanson were “ill-advised, frivolous, fraudulent, malicious and oppressive.” The D’Agostinos argue that such findings constituted an improper determination of a claim for malicious prosecution when such a claim was not an issue before the court. We do not agree.

Although the D’Agostinos are correct in their contention that the common law tort of malicious prosecution was not before the District Court, the court did not err in finding that the D’Agostinos improperly joined Swanson in the action. This finding constituted an appropriate exercise of the District Court’s power to supervise litigation and to sanction parties, their attorneys or both under Rule 11, M.R.Civ.P., for bringing actions that are not well grounded in fa’ct or warranted by existing law or that are brought for improper purposes, such as harassment or delay.

With one minor exception, which is not pertinent to this opinion, Rule 11, M.R.Civ.P., is identical to Rule 11, F.R.Civ.P. The rule provides:

“Every pleading, motion, or other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed, it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.” (Emphasis added.)

Rule 11, M.R.Civ.P.

The purpose of Rule 11 is to “discourage dilatory or abusive tactics and help to streamline the litigation process by lessening frivolous claims or defenses.” Rule 11, F.R.Civ.P. advisory committee note. Although costs and attorney’s fees may be awarded to the party opposing an action that violates Rule 11, the rule must not be viewed simply as a fee-shifting device. Compensation is but one aim of Rule 11. The more important goal is punishment for wasteful and abusive litigation tactics in order to deter the use of such tactics in the future. Donaldson v. Clark (11th Cir. 1987), 819 F.2d 1551, 1556, (“Whether sanctions are viewed as a form of costshifting, compensating parties injured by vexatious or frivolous litigation by Rule 11, or as a form of punishment imposed on those who violate the rule, the imposition of sanctions pursuant to Rule 11 is meant to deter attorneys from violating the rule.”). See also Brown v. Federation of State Medical Boards (7th Cir. 1987), 830 F.2d 1429, 1438, (“An even more important purpose [than compensation] is deterrence.”); Westmoreland v. CBS, Inc. (D.C. Cir. 1985), 770 F.2d 1168, 1180, (“Rule 11 serves a dual purpose: punishment and deterrence.”).

The rule provides two grounds for sanctions. The first is found in the “frivolousness clause,” which requires the imposition of sanctions if a pleading or other paper is not 1) well grounded in fact; or 2) warranted by existing law or a good faith argument for the extension, modification or reversal of existing law. The standard for determining whether a pleading has a sufficient factual or legal basis is reasonableness under the circumstances. State ex rel. Sorenson v. Roske (Mont. 1987), 229 Mont. 151, 745 P.2d 365, 368, 44 St.Rep. 1854, 1857; Zaldivar v. City of Los Angeles (9th Cir. 1986), 780 F.2d 823, 830-31; Eastway Constr. Corp. v. City of New York (2nd Cir. 1985), 762 F.2d 243, 254.

The second ground for imposing sanctions is found in the “improper purpose clause.” If a pleading or other paper is interposed for an improper purpose, such as harassment, delay or increasing the cost of litigation, sanctions must be imposed. The standard for determining whether a party acted with an improper purpose is also an objective one, that is, reasonableness under the circumstances. Brown, 830 F.2d at 1436; Zaldivar, 780 F.2d at 831; Eastway, 762 F.2d at 254.

The federal courts have adopted divergent standards of review for Rule 11 cases. Some apply a clearly erroneous standard to the district court’s findings of fact but subject the conclusions of the law to de novo review. Brown, 830 F.2d at 1434; Zaldivar, 780 F.2d at 828. Others review the district court’s findings of fact under an abuse of discretion standard, while reviewing de novo those questions involving the legal sufficiency of a plea or motion. Donaldson, 819 F.2d at 1551; Westmoreland, 770 F.2d at 1174-75. Still others utilize an abuse of discretion review of both findings of fact and conclusions of law. Kale v. Combined Ins. Co. of America (1st Cir. 1988), 861 F.2d 746, 758; Thomas v. Capital Sec. Services, Inc. (5th Cir. 1988), 836 F.2d 866, 872.

This Court will give the district courts wide latitude to determine whether the factual circumstances of a particular case amount to frivolous or abusive litigation tactics, for, as noted in Westmoreland, 770 F.2d at 1174, “[t]he district court has tasted the flavor of the litigation and is in the best position to make these kinds of determinations.” We therefore adopt a standard of review that combines the standards utilized by the federal courts. A district court’s findings of fact will be overturned if clearly erroneous. The court’s legal conclusion that the facts constitute a violation of Rule 11 will be reversed if the determination constitutes an abuse of discretion. We will review the case de novo only if the violation is based on the legal sufficiency of a plea or motion.

Once the district court determines that a case has no merit or has been commenced for an improper purpose, the mandatory language of the rule requires the court to impose sanctions on the offending party, his counsel or both. Thomas, 836 F.2d at 876; Brown, 830 F.2d at 1434 n.3; Westmoreland, 770 F.2d at 1174-75. Failure to impose sanctions when circumstances reveal that the rule has been violated will be deemed reversible error. Westmoreland, 770 F.2d at 1175.

On the other hand, the type of sanction imposed for a violation of Rule 11 is uniquely within the discretion of the district court. Thomas, 836 F.2d at 876-78; Donaldson, 819 F.2d at 1556-57; Westmoreland, 770 F.2d at 1175. Unlike Rule 37, M.R.Civ.P., which enumerates specific kinds of sanctions that may be imposed for discovery abuses, Rule 11 requires only that the district court impose “an appropriate sanction.” Thus, the court is accorded great flexibility in tailoring sanctions so that it may prescribe the most effective disciplinary action warranted by the circumstances of each case. Rule 11, F.R.Civ.P. advisory committee note. We will overturn the form and amount of the sanction imposed by the district court only if the court has abused its discretion. Brown, 830 F.2d at 1434; Zaldivar, 780 F.2d at 828.

The federal courts have fashioned a myriad of sanctions to deal with Rule 11 violations. Sanctions have not been limited to the payment of attorney’s fees and costs, but have included fines to the court, Roberts v. McCrory (W.D.Okl. 1987), 693 F.Supp. 998; or a combination of attorney’s fees and fines, Dominguez v. Figel (N.D.Ind. 1986), 626 F.Supp. 368. Sanctions have also been somewhat creative, including ordering the offending attorneys to appear at a hearing to show cause why they should not be suspended from practice, Kendrick v. Zanides (N.D.Cal. 1985), 609 F.Supp. 1162; ordering payment of interest on a judgment delayed by frivolous filings, Davis v. Veslan Enters. (5th Cir. 1985), 765 F.2d 494; directing the distribution of a copy of the opinion ordering sanctions to every member of the offending attorneys’ firm, Huettig & Schromm, Inc. v. Landscape Contractors Council (N.D.Cal. 1984), 582 F.Supp. 1519, aff’d (9th Cir. 1986), 790 F.2d 1421; and directing the distribution of a copy of the order to all U.S. District Court judges, magistrates and bankruptcy judges in the district in which the offending conduct occurred, Roberts, 693 F.Supp. at 1011.

In the present case, the District Court found that the D’Agostinos acted in bad faith when they joined Swanson as a third-party defendant in the present action. This finding is not clearly erroneous but is supported by substantial credible evidence. These facts are best summed up in the following findings:

“16. Notwithstanding Swanson had nothing to do with the motel dispute, and that D’Agostinos had been told and had repeatedly observed themselves that the cabins were over or very close to the boundary line, and that D’Agostinos had failed to ever obtain a survey, and that Swanson had gratuitously permitted D’Agostinos to use lot 3 for access to said cabins and to plow snow onto it for several years and even extended the time, D’Agostinos sued Swanson via a third party complaint . . .
“21. D’Agostinos knew long before filing the third party complaint against Swanson that there was no mutual mistake as to encroachment of the cabins onto lot 3, because the truth was D’Agostinos were to obtain an accurate survey to determine such fact, and if there was [an] encroachment, to correct it.”

Absolutely no legitimate purpose was served by joining Swanson to this lawsuit. We will not tolerate the audacity of a seller who, after warranting title free and clear of all encumbrances, believes he can, without impunity, bring legal action against the buyer when it is discovered that the title is not free and clear but is encumbered by an encroachment on the property. The D’Agostinos’ claim that Swanson agreed to purchase less than all of Lot 3 because, for a limited period of time, he gratuitously allowed them to use the lot for access to the cabins is specious at best. We agree with the District Court that the D’Agostinos unjustifiably dragged Swanson into this action and that such conduct was “ill-advised, frivolous, malicious and oppressive.”

While a finding of subjective bad faith is not required when determining the existence of a Rule 11 violation, such a finding is relevant when deciding the nature and severity of the appropriate sanction. Rule 11, F.R.Civ.P. advisory committee note; Lieb v. Topstone Industries, Inc. (3rd Cir. 1986), 788 F.2d 151, 157. In the present case, the District Court awarded attorney’s fees and costs to compensate Swanson and a $5,000 lump sum to deter the D’Agostinos from future similar conduct. Although the District Court referred to the lump sum award as punitive damages, such reference was a misnomer. The entire monetary award, including attorney’s fees and costs, constituted sanctions under Rule 11. Considering the fact that the District Court found that the D’Agostinos acted in bad faith, the form and amount of sanctions imposed were not an abuse of discretion.

Should a question arise regarding the propriety of discussing Rule 11 on appeal when it has not been discussed at the trial level, we remind the district courts, the members of the bar and their clients that the language of Rule 11 is mandatory. If a district court finds that a pleading or motion is groundless or filed for an improper purpose, the court shall impose an appropriate sanction. Here, the District Court specifically found that Swanson’s joinder was frivolous and malicious. Once the court made this finding, it was required by Rule 11 to sanction the D’Agostinos, their attorney or both.

As a final observation, we note that the D’Agostinos received adequate notice and opportunity to be heard on this question. At both the District Court and this Court, they argued the issue of the legitimacy of the legal proceedings against Swanson. No purpose would be served by remanding this case to the District Court to allow rebriefing of an issue that has already been argued.

We affirm the monetary sanction imposed by the District Court.

III.

Did the District Court err in finding that the D’Agostinos were liable on the counterclaims brought by Swanson?

Because the District Court’s monetary award to Swanson was justified under Rule 11, M.R.Civ.P., we need not discuss whether the court erred in concluding that the D’Agostinos breached the covenant against encumbrances and committed fraud in the sale of real property.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    ANNA G. REITER, Plaintiff and Respondent, v. EDWARD L. REITER, Defendant and Appellant.
    No. 89-125.
    Submitted on Briefs Sept. 21, 1989.
    Decided Jan. 4, 1990.
    784 P.2d 917.
    Edward L. Reiter, Billings, pro se.

      Fred E. Work, Jr., Billings, for plaintiff and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Anna G. Reiter, mother of defendant and appellant, filed an unlawful detainer action in Justice Court, Billings Township, Yellowstone County, seeking to remove defendant, Edward L. Reiter, from her property. The Justice Court ruled in favor of Anna and ordered Edward to vacate the premises. Edward appealed to the Thirteenth Judicial District Court, which also found in favor of Anna. Edward now appeals to this Court. We dismiss the appeal as frivolous.

It is difficult to ascertain from Edward’s rambling and incoherent brief exactly what issues he raises on appeal. It appears that his contentions are as follows:

1. Whether the District Court proceedings violated Edward’s due process rights; and
2. Whether the District Court erred in finding that Edward was a tenant at will.

Plaintiff, Anna Reiter, who is over 80 years of age, is the sole owner of agricultural property in Yellowstone County. For a number of years, she allowed her adult son Edward, the defendant in this case, to reside on the property.

In 1986, Edward placed a lien on the property. In 1988, the District Court extinguished the lien and quieted title in Anna. We affirmed that action in Reiter v. Reiter (Mont. 1989), [237 Mont. 220,] 772 P.2d 314, 46 St.Rep. 751.

On April 8, 1988, Edward was served with a Notice to Terminate Unspecified Lease, To Remove Personal Properties and To Return Production Monies. When Edward failed to comply with the notice, Anna filed this unlawful detainer action in Justice Court.

Following a hearing at which Edward appeared pro se, the Justice Court found in favor of Anna, ordering Edward to vacate the property and to pay Anna’s reasonable attorney’s fees. In July, 1988, Edward filed a timely appeal for trial de novo in the District Court.

On October 19, 1988, the District Court dismissed the appeal because Edward had failed to file an undertaking. On December 16, 1988, the court reinstated the appeal, allowing Edward to forego the undertaking due to his indigence. At that time, the Court set trial for December 28, 1988. Edward’s subsequent motion to continue the trial was denied and trial proceeded as scheduled on December 28. Edward failed to attend the hearing, choosing instead to file a document entitled Trial De* Novo Submitted on Points of Law in Absentia in which he stated that he was unable to obtain a lawyer on such short notice and he refused to be cross-examined without the presence of counsel.

The District Court found in favor of Anna and ordered Edward to leave the farm. He now appeals to this Court.

After reviewing the file, we hold that Edward was afforded adequate due process. Edward claims that he did not have adequate time to obtain an attorney or conduct discovery. These contentions stretch the imagination. Five months elapsed from the time Edward filed notice of appeal to the time of trial. Although the appeal was dismissed and reinstated during that time, these actions did not prevent Edward from procuring the services of counsel. Moreover, once the District Court granted Edward’s motion for leave to appeal without an undertaking, it was obliged to expedite the matter in order to prevent the possible destruction of Anna’s property during the pendency of the action.

Edward also complains that he was not allowed a trial by jury. The argument is frivolous. A party desiring a jury trial must file a demand before the commencement of the proceeding or the right to a jury will be waived. Section 25-31-804, MCA. At no time did Edward demand a jury trial.

Edward’s second issue also lacks merit. Substantial credible evidence supports the District Court’s finding that Edward was a tenant at will. The evidence established that Anna was the sole record owner of the property, that she allowed Edward to reside on the property for an indeterminate time without a specific lease and that he had been served with proper notice to leave the premises. As Edward elected not to attend the trial, the record is devoid of any evidence to refute these facts.

Our consideration of the record leads us to conclude that this appeal has been taken without substantial or reasonable grounds. We therefore award sanctions against Edward pursuant to Rule 32, M.R.App.P., in the amount of $500. The sanction shall be paid to the plaintiff, Anna Reiter.

Appeal dismissed.

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


author:
JUSTICE WEBER
      JUSTICE HUNT, dissenting:

text:
    ROSCOE C. COMBS, Claimant and Appellant, v. WAGAR LOGGING, Employer, and State Compensation Insurance Fund, Defendant and Respondent.
    No. 89-264.
    Submitted on Briefs Oct. 31, 1989.
    Decided Jan. 5, 1990.
    784 P.2d 928.
    David Lauridsen, Bothe & Lauridsen, Columbia Falls, for claimant and appellant.
    Rebecca Smith, Smith Law Firm, Helena, for defendant and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

This appeal arises from an order by the Workers’ Compensation Court of the State of Montana. Claimant appeals. We affirm.

The sole issue on appeal is whether the Workers’ Compensation Court’s findings of fact regarding claimant’s loss of earning capacity are supported by substantial credible evidence.

Mr. Roscoe Combs suffered a compensable industrial injury on July 7, 1986, while working as a knot bumper for Wagar Logging. A log struck him, injuring’ his back. Mr. Combs received temporary total disability benefits from July 7, 1986, through August 29, 1988, when benefits were reduced to permanent partial based on a six percent impairment rating. Claimant elected to calculate permanent partial disability benefits on an actual loss of earning capacity, pursuant to § 39-71-703, MCA (1985).

The Workers’ Compensation Court determined that Mr. Combs was entitled to 500 weeks of permanent partial disability benefits at the rate of $34.68 per week, pursuant to § 39-71-703, MCA (1985), which states in pertinent part:

“Compensation for injuries causing partial disability. (1) Weekly compensation benefits for injury producing partial disability shall be 66%% of the actual diminution in the worker’s earning capacity measured in dollars, subject to a maximum weekly compensation of one-half the state’s average weekly wage.”

The Workers’ Compensation Court found that Mr. Combs’ post-injury earning capacity was $3.34 per hour. Comparing this to his preinjury earning capacity of $4.65 per hour, the court determined he had a loss of earning capacity of $1.30 per hour, or $52.00 per week. The court then found that Mr. Combs was entitled to % of that loss, or $34.68 per week.

On appeal, Mr. Combs contends that the Workers’ Compensation Court erred in its findings regarding his earning capacity. He claims his pre-injury earning capacity was $16.55 per hour, and that the court’s finding that his pre-injury earning capacity was $4.65 per hour is not supported by substantial credible evidence.

This Court’s standard of review is to determine whether substantial credible evidence supports the findings of the Workers’ Compensation Court. Sharkey v. Atlantic Richfield Co. (1989), [238 Mont. 159,] 777 P.2d 870, 872, 46 St.Rep. 1169, 1171.

The documented evidence of Mr. Combs’ work history includes only three brief jobs in the three years prior to this injury. In 1983 Mr. Combs worked for Doug Henry as a knot bumper, earning $400 total for the year. In 1984 Mr. Combs worked as a construction laborer for Hugh Louden, earning a total of $638.48. He worked approximately 50 hours for Mr. Louden; thus his hourly wage was about $12.96. In May 1986 Mr. Combs began working for Wagar Logging. He was injured on July 7, 1986. He had worked 414 hours and had earned $1925.00; thus his average hourly wage was $4.65. The Workers’ Compensation Court found that Mr. Combs’ work history prior to 1983 had not been documented or presented in a consistent manner and could not be considered by the court. The court determined the amount of $4.65 to be Mr. Combs’ pre-injury earning capacity.

Claimant contends the court should have determined his pre-injury earning capacity to be $16.55. He bases this assertion on deposition testimony from Mr. Hugh Louden, a previous employer. Mr. Louden testified that in 1984 Mr. Combs worked for him as a laborer in government construction jobs which paid wages of $12.69 per hour, according to Davis-Bacon scale. Claimant asserts that in the current market these wages would amount to $16.55 per hour, assuming Mr. Combs was at the top of the scale.

Claimant also relies on testimony from Mr. Charles Schloss, a vocational rehabilitation expert, who testified that in his opinion Mr. Combs could have been trained to be a sawyer. He testified that as a construction worker, Mr. Combs would not reach his maximum earning capacity until age 30. Claimant contends that had he not been injured he would have eventually earned $8.00 per hour as an experienced knot bumper. Additionally, Mr. Combs asserts that had he not been injured he would have been promoted to sawyer, or skidder operator, earning a possible $13.75 per hour.

We have previously stated the following standards in determining earning capacity:

“Impairment of earning capacity has been defined as ‘the permanent diminution of the ability to earn money in the future.’ Additionally, we have stated that earning capacity is not only determined by a comparison of pre-injury and post-injury wages but also by age, occupational skills, education, previous health, remaining number of productive years and degree of physical or mental impairment.” (Citations omitted.)

Hurley v. Dupuis (1988), [233 Mont. 242,] 759 P.2d 996, 998-99, 45 St.Rep. 1457, 1461.

In Hurley, this Court faced a similar issue. In that case the Workers’ Compensation Court calculated pre-injury earning capacity at $12.44 per hour, which was an amount claimant earned working one or two weeks on a part time basis. This Court reversed, stating:

“Here, although Hurley was thirty years old at the time of filing this claim, he has no real occupational skills; he dropped out of school in the tenth grade and obtained a G.E.D. Due to his back injury he is basically removed from any manual labor employment. The most important fact is that he never maintained a job for an extended period of time so that he could establish higher earnings.
“Granted, McIntosh testified that in the Denver area, current labor market earnings for concrete workers ranged up to $517.20 per week which translates to approximately $13.00 per hour in a 40-hour work week. However, due to Hurley’s previous work history it is extremely unlikely that he would be able to obtain one of these jobs or remain employed.”

Hurley, 759 P.2d at 999.

In Hurley we also noted that the claimant had not been able to verify his claimed previous employment with either a W-2 or income tax return.

Although in the present case Mr. Combs attempts to distinguish Hurley, we conclude that the facts are analogous and the same rationale applies. Mr. Combs is 25 years old, single, and has a ninth grade education. Because he is dyslexic, his ability to read is minimal. He is an unskilled laborer. Since dropping out of school, Mr. Combs has worked at various construction jobs, logging jobs, and other jobs requiring manual labor. His work history demonstrates an inability to stay at one job for more than a few weeks or months. Mr. Combs has filed no tax returns since 1977, and he has been unable to document most of his past wages.

At the hearing, testimony was received by deposition from Dr. Trontel, a clinical psychologist who examined Mr. Combs. His testimony indicated that Mr. Combs has a low level of reliability and responsibility. He has difficulty getting along with people and in accepting authority. He testified that Mr. Combs would not perform well in any job requiring close supervision. Dr. Trontel testified that Mr. Combs has been incarcerated over 15 times, indicating severe interpersonal difficulties. He also testified that Mr. Combs stated that he had been fired several times.

Although claimant urges that in 1984 he earned wages according to DavisrBacon scale, the testimony from his employer indicated that he only earned these amounts for one to two weeks on four or five separate occasions. Mr. Combs also earned $12.00 to $14.00 per hour as a truck driver for Mr. Louden in 1984, but this was only for 3 or 4 days.

Claimant’s contentions regarding his potential to become an experienced knot bumper, or his future potential of becoming skidder operator, are speculative and unlikely based on his previous work history. Mr. Combs has been unable to keep a job for more than two months. As stated by Dr. Trontel, he is neither persistent nor responsible. Testimony by Dennis Wagar, his employer at the time of his injury, demonstrated that Mr. Combs was not being trained for the job of skidder operator.

The Workers’ Compensation Court considered testimony by claimant, three vocational rehabilitation consultants, Dr. Trontel, and Mr. Combs’ previous employers, Mr. Hugh Louden and Mr. Dennis Wagar. The court considered not only pre-injury wages, but also other relevant factors as stated in Hurley. However, applying other factors such as claimant’s age, skills, and education is unhelpful to claimant in this case. As in Hurley, from claimant’s previous work history, it is unlikely that he would remain employed long enough to be trained for a higher-paying position. The court’s finding that Mr. Combs’ pre-injury earning capacity of $4.65 per hour was based on documented evidence of claimant’s actual wages at the time of injury. We conclude that substantial credible evidence supports the finding of the Workers’ Compensation Court that claimant’s pre-injury earning capacity was $4.65 per hour. We affirm the Workers’ Compensation Court on this issue.

Claimant also contends that the hearing examiner erroneously calculated permanent partial benefits by calculating a weekly wage of $186.00 ($1925.00 amount earned, divided by 414 hours worked multiplied by 40 hours per week). He contends that the insurer previously based temporary total benefits on a weekly wage of $214.30. Claimant does not contend that the numbers used by the hearing examiner are incorrect; rather he contends the weekly wage determined by the hearing examiner is inconsistent with the weekly wage determined by the claims examiner. We conclude that the hearing examiner did not err in his calculation and affirm this portion of the order by the Workers’ Compensation Court.

Affirmed.

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

JUSTICE HUNT, dissenting:

I dissent.

The majority correctly notes that decisions of the Workers’ Compensation Court must be based on substantial credible evidence and yet it makes the assumption that Combs’ future work potential is speculative and unlikely. Such rationale is itself speculative.

The majority states that Combs’ contentions concerning his preinjury earning capacity are undocumented. Combs, however, did present a witness who testified that Combs had worked for him at a rate of $12.69 per hour (Combs asserts this rate would be $16.55 on the current market). Nonetheless, this testimony was ignored by the court when establishing Combs’ loss of earning capacity. As noted in Beck v. Flathead County (1988), 230 Mont. 294, 749 P.2d 527, 45 St.Rep. 215, loss of earning capacity is defined as “a loss of ability to earn in the open labor market.” Certainly, Combs’ injury has significantly reduced his ability to earn.

The majority refused to consider the factors set forth in Beck, 749 P.2d 527, including age, occupational skills, education, previous health, remaining number of productive years and degree of physical or mental impairment when arriving at the loss of earning capacity amount. Even if the court properly calculated the differences between Combs’ pre-injury and post-injury wages, the difference is but one factor to consider among many. See, Beck, 749 P.2d at 529.

I would reverse for a recalculation of Combs’ pre-injury earning capacity.

JUSTICE SHEEHY concurs in the foregoing dissent of JUSTICE HUNT.


text:
    MARY JO GASS, Plaintiff and Appellant, v. ALICE HILSON, Defendant and Respondent.
    No. 89-358.
    Submitted on Briefs Dec. 1, 1989.
    Decided Jan. 5, 1990.
    784 P.2d 931.
    Robert W. Gabriel, Gabriel Law Offices, Great Falls, for plaintiff and appellant.
    Keith Keller, Keller, Reynolds, Drake, Sternhagen & Johnson, Helena, for defendant and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Mary Jo Gass, plaintiff and appellant, appeals from the denial of her motion for a new trial entered by the District Court of the Eighth Judicial District, Cascade County, pursuant to Rule 59(d), M.R.Civ.P. We affirm.

The issue raised on appeal is whether the District Court properly denied plaintiff’s motion for a new trial based on plaintiff’s contention that damages awarded were inadequate when viewed in the light of the evidence submitted.

On September 2, 1984, Mary Jo Gass, a 37-year-old buyer for a diversified agricultural business, was approaching a red light in a Great Falls intersection when her vehicle was hit from behind by Alice Hilson, defendant and respondent. Hilson’s vehicle was traveling at a speed of 20-25 miles per hour when impact occurred. Gass’s vehicle was forced through the intersection and struck a utility pole.

Shortly after the accident, Gass was taken to an emergency room of a local hospital where X-rays were taken of her neck and back. She was diagnosed as suffering from multiple lacerations and contusions superficial in nature and from acute whiplash strain. She was treated and released. Gass was off work the next scheduled working day but returned to work the following day.

Gass was subsequently treated by an orthopedic surgeon, an internist, a rheumatologist, a physiatrist and two chiropractors. She also received physiotherapy and medications. She complained, up to the time of trial, of neck and back injuries, bruises and swelling in her legs (edema) and the development of a lump in her left arm (a calcification). Gass asserts that her medical services, pharmacological supplies and lost wages totaled $11,790.64 to the date of trial.

Hilson was negligent and admitted legal liability for Gass’s injuries proximately caused by the accident. On January 9, 1989, a jury trial commenced in which Gass sought to recover damages for personal injuries sustained in the September 2, 1984, accident. Evidence submitted included exhibits and the testimony of two chiropractors, five physicians and a clinical social worker, all of whom treated Gass in their perspective specialties. Gass also testified.

The evidence at trial revealed that Gass had suffered from medical and psychological problems unrelated to the accident. Gass had a twenty year history of back injuries. In the early 1960’s, Gass injured her back riding a horse and saw a chiropractor for the resulting injuries. In July of 1979, she went through a course of physical therapy for the problem. In January of 1980, Gass fell down some stairs, resulting in back strain, and in June of the same year, she was hospitalized for chronic back pain for which she received physical therapy. Gass then went through another course of physical therapy following her hospitalization. From 1980 to 1982, she regularly saw chiropractors for her condition. In July of 1984, she took a fall and saw an orthopedic surgeon for treatment on elbow and knee injuries.

The accident in question occurred in September of 1984. Approximately two months later, Gass once again injured her back lifting a garage door for which she again visited a chiropractor.

Also, at the time of the accident, Gass was going through a divorce and was experiencing financial difficulties. In January of 1985, she went through psychological counseling where she was diagnosed as suffering from adjustment disorder with depression and anxiety.

One of Gass’s physicians testified that, when he examined her subsequent to the accident, he found no signs to her neck or back to indicate injury and that the only abnormality he detected was swollen triceps. Another physician testified that the only abnormality he found was a small area of calcification in Gass’s left arm. He also stated that the calcification did not impair motion. There was, however, testimony that the calcification could possibly be permanent.

The testimony of Gass’s treating physicians conflicted as to whether the swelling in her legs (edema) was related to injuries sustained in the accident. It was uncontroverted that Gass had no medical history of edema but there was testimony by one of Gass’s own physicians that it was possible that the edema was a previous condition.

Further, testimony was undisputed that Gass’s sprain to the cervical and lumbar spine was indeed proximately caused by the accident. There was also testimony that the sprain probably aggravated Gass’s pre-existing back injuries.

Gass testified that she spent up to $2 per day on .medication and testified as to her condition and the pain she experienced. One of her physicians testified that her complaints of pain were consistent with injuries received and that the pain might be reduced by physical therapy and exercise.

On January 13, 1989, the jury awarded damages to Gass in the amount of $20,270. After judgment was entered on the verdict, Gass moved the District Court for a new trial based on her contention that, in light of evidence submitted, the damage award was inadequate. The District Court did not rule on the motion within 45 days and, consequently, under Rule 59(d), M.R.Civ.P., the motion was deemed denied. From the denial, Gass appeals. >

Granting or refusing a motion for a new trial rests in the trial court’s discretion. O’Brien v. Great Northern R.R. Co. (1966), 148 Mont. 429, 421 P.2d 710, cert. denied (1967) 387 U.S. 920, 87 S.Ct. 2034, 18 L.Ed.2d 974. Under Rule 61, M.R.Civ.P., the trial court must determine whether a refusal to grant the motion would appear inconsistent with substantial justice.

The trial court’s discretion to grant a new trial for insufficiency of the evidence as provided for in § 25-11-102(6), MCA, is “exhausted when it finds substantial evidence to support the verdict.” Lindquist v. Moran (1983), 203 Mont. 268, 274, 662 P.2d 281, 285. This Court will not overturn the trial court’s decision absent a showing of manifest abuse of discretion. Feller v. Fox (Mont. 1989), [237 Mont. 150,] 772 P.2d 842, 46 St.Rep. 694. See also Tope v. Taylor (Mont. 1988), [235 Mont. 124,] 768 P.2d 845, 45 St.Rep. 2242. In making our determination on sufficiency of the evidence, we are constrained to view the evidence in a light most favorable to the prevailing party. Feller, 772 P.2d at 845.

In the present case, the jury heard the testimony of several physicians, chiropractors, a physiotherapist, a clinical social worker, and Gass herself. Exhibits supporting the testimony were also presented to the jury. The evidence shows that while Gass did suffer from injuries sustained in the accident, she also had a history of pre-existing injuries and had suffered mental trauma from events in her personal life. The jury viewed the exhibits, heard and viewed the witnesses and entered its verdict accordingly. While the testimony concerning Gass’s injuries may have been conflicting, the jury is free to adopt the testimony it finds more credible or to disregard all such testimony if it so chooses. Tompkins v. Northwestern Union Trust Co. (1982), 198 Mont. 170, 181, 645 P.2d 402, 408. As we stated in Lindquist, 662 P.2d at 285:

“Where conflicting evidence is present, it is an abuse of the trial court’s discretion to grant a new trial.”

See also Ferguson v. Town Pump, Inc. (1978), 177 Mont. 122, 128, 580 P.2d 915, 919, overruled on the other grounds, Bohrer v. Clark (1978), 180 Mont. 233, 590 P.2d 117.

Here, as in Lindquist, 662 P.2d at 285, we will not substitute our judgment for that of the jury’s where the evidence is sufficient. We conclude that substantial evidence existed to support the jury verdict. The District Court did not abuse its discretion in denying Gass’s motion for a new trial pursuant to Rule 59(d), M.R.Civ.P.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, Mc-DONOUGH and WEBER concur.


author: JUSTICE WEBER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DONALD CONRAD, Defendant and Appellant.
    No. 89-198.
    Submitted on Briefs Oct. 25, 1989.
    Decided Jan. 8, 1990.
    785 P.2d 185.

      Larry Jent, Bozeman, for defendant and appellant.
    Marc Racicot, Atty. Gen., Elizabeth Griffing, Asst. Atty. Gen., Carol A. Donaldson, Legal Intern, Helena, Wm. Neis Swandal, County Atty., Tara Depuy, Deputy County Atty., Livingston, for plaintiff and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

Defendant, Donald Conrad, was charged with one count of arson and one count of criminal mischief in the District Court for the Sixth Judicial District, Park County. The District Court granted the State’s motion to dismiss the count of criminal mischief, leaving only one count of arson for the jury. The jury found defendant guilty as charged. He was sentenced to six years in the Montana State Prison. Defendant appeals. We affirm.

Defendant presents the following issues:

1. Was there sufficient corroboration of the accomplice testimony?

2. Did the District Court err in allowing questioning from an inventory list which it had deemed an inadmissible document?

3. Did the District Court err in admitting the propane burner into evidence?

4. Were the defendant’s due process rights violated by the questioning of Mel Pond prior to his taped statement?

5. Was the State’s reference to uncharged misconduct and prior convictions reversible error?

Defendant financed the purchase of a trailer home through First National Bank Bozeman, and moved it to a lot on Wineglass Mountain in Park County, Montana. With his family, he lived in the trailer for about five months. After the trailer had been seriously vandalized, he testified he then moved out of the trailer in order to protect his family. The family moved back into town and stayed there until the house they were renting was put up for sale. The landlord then asked them to move out. Defendant did not move out as requested. He testified he was making improvements on the trailer so he could not move back up there at that time and had no where else to go. Shortly thereafter, defendant hired Mel Pond to assist him in remodeling his trailer.

On March 18, 1988, Pond and defendant were together at defendant’s trailer. The testimony of Pond and defendant conflict as to what happened next. Pond testified that defendant threw matches through the window of the trailer. He further testified that defendant then went back inside the trailer, came back outside and the two drove off down the mountain. Pond testified that defendant told him he lit the element on the propane heater and put it face down in the mattress.

Defendant testified that he lit the propane heater in the trailer when he first arrived in order to warm the trailer. He stated he then left the trailer for awhile to help the Yellowstone Basin Properties representative find the property lines. According to defendant, when he returned to the trailer, Pond was coming out and insisted on returning to town, so defendant “slammed” the trailer door and took Pond to town. The trailer burned down.

The fire marshall, Walter Adams, testified that the fire was started by the propane burner which was found lying face down on a mattress. He further testified that there was nothing else in the trailer that could have started the fire. After a jury trial, defendant was found guilty of arson. He appeals.

I

Was there sufficient corroboration of the accomplice testimony?

Defendant maintains that there was insufficient corroboration of the testimony of accomplice, Pond. He urges that a conviction based on such testimony violates § 46-16-213, MCA.

The State asserts that corroborating evidence need not make out a prima facie case by itself, citing State v. Kemp (1979), 182 Mont. 383, 597 P.2d 96. It further maintains that corroborating evidence need only tend to connect the defendant with the crime charged and that this was done in this case. It points out that First National Bank in Bozeman held a lien on defendant’s trailer; the trailer was worth less than the lien, giving defendant a motive to set it afire; and both a fireman and the fire marshall testified that the propane burner was found face down on a bedspring after the fire. The State urges that these facts satisfy the requirements of § 46-16-213, MCA. We agree.

Section 46-16-213, MCA, provides:

“A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense, as defined in 45-2-301, unless the testimony is corroborated by other evidence which in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”

Corroborating testimony is viewed in a light most favorable to the State. State v. Holzapfel (1988), 230 Mont. 105, 748 P.2d 953, 958, 45 St.Rep. 53, 59.

“Whether evidence is sufficient to corroborate the testimony of an accomplice is a question of law. The evidence must do more than show the crime was committed or the circumstances of its commission .... However, it need not be sufficient, by itself, to support a prima facie case against the defendant. The independent evidence need not extend to every fact to which the accomplice testifies. Further, the evidence may be circumstantial and it may come from the defendant or his witness.”

State v. Ungaretti (Mont. 1989), [239 Mont. 314,] 779 P.2d 923, 925, 46 St.Rep. 1710, 1713. (Citations omitted.) “Without corroboration, an innocent man could be convicted by the testimony of one with a strong motive for seeing that such a conviction occurred.” State v. Warren (Mont. 1981), [_Mont._,] 628 P.2d 292, 38 St.Rep. 773.

To convict defendant of arson, the State must prove that by using fire or explosives, he knowingly or purposely damaged or destroyed his trailer, which is property of another. See § 46-6-103, MCA. Because there was a lien on the trailer, it was “property of another”. The evidence presented by the State in this case was sufficient to corroborate Pond’s testimony. The propane burner was found lying face down on a mattress. It was the only thing that could have started the fire. The trailer was insured; defendant testified that he lit the propane burner when he arrived; within one half hour after defendant and Pond left the trailer, smoke was observed coming from the trailer; and few remnants of items of value were found in the trailer after the fire.

Defendant also contends that Pond exonerated himself by convicting defendant, thus he had a strong motive for convicting defendant. He maintains that this factor renders Pond’s testimony suspect, prejudicing defendant.

Defendant is correct in contending that Pond’s testimony is suspect. The jury was specifically instructed on how to view such testimony and were told they were the judges of the witness’ credibility. Instruction #2 states in part:

“You are the sole judges of the credibility of all the witnesses testifying in this case, and of the weight to be given their testimony. In' judging the effect of evidence you must be fair and impartial and not arbitrary. While you have discretion in judging the effect of evidence, you must exercise that discretion in accordance with these instructions.”

Accomplice testimony is addressed in Instruction #14:

“Testimony had been presented that the witness Melvin Pond may be an accomplice in this case. In this respect, you are to be guided by the following rules of law:
“1. An accomplice is one who knowingly and voluntarily, with common intent with the principal offender, unites in the commission of a crime. One may become an accomplice by being present and joining in the criminal act, by aiding and abetting, with criminal intent, another in its commission, or in being present by advising and encouraging its commission, but knowledge and voluntary action are essential in order to impute guilt.
“2. It is a question of fact for the jury to determine from the evidence and from the law as given you by the court whether or not in this particular case the witness Melvin Pond was or was not an accomplice within the meaning of the law.
“3. The testimony of an accomplice ought to be viewed with distrust. (Emphasis added.)
“4. A conviction cannot be had on the testimony of an accomplice unless he is corroborated by other evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”

We conclude that the foregoing instructions properly set forth the law regarding accomplice testimony. We hold there was sufficient corroboration of the accomplice testimony.

II

Did the District Court err in allowing questioning from an inventory list which it had deemed an inadmissible document?

State’s Exhibit 2 was an inventory list of defendant’s belongings allegedly in the trailer at the time of the fire. Defendant maintains the District Court refused to admit it into evidence. Thus, defendant contends it was prejudicial error to allow questioning from a document not admitted into evidence, and that such questioning violates the Best Evidence Rule, 1002, M.R.Evid.

The State correctly notes that the list was admitted in evidence when the District Court specifically overruled defendant’s objection. Nonetheless, the State urges that the Best Evidence Rule was not violated because the aim of the questioning was to impeach defendant, not to identify the drafter. The State sought to show the contradiction between defendant’s detailed claim of what was in the trailer and the physical evidence remaining after the fire.

Since the record is clear that Exhibit 2 was admitted, defendant’s contention is without merit. We hold the District court did not err in allowing questioning from an inventory list, the admission of which was originally denied and subsequently allowed.

III

Did the District Court err in admitting the propane burner into evidence?

Defendant maintains that the propane burner was not in substantially the same condition at the trial as when the crime was committed. The fire marshall testified that during his investigation of the burned trailer, he found a propane burner lying face down on a bed-spring. He picked up the burner and found a small piece of cloth underneath the burner that had not been burned. He testified that the piece of cloth indicated that the fire started on the mattress. The piece of cloth was lost somewhere between the date of the investigation and the trial. Defendant contends the loss of the piece of cloth constituted a failure on the part of the State to maintain the burner in the same state as it was at the time of the fire, constituting prejudicial error. The State points out that the piece of cloth was a separate piece of evidence, not part of the propane burner, or in anyway attached. Therefore, it maintains that the burner was in substantially the same condition.

Montana recognizes two methods of identifying physical evidence: ready identification and chain of custody. Ready identification is applicable when the article has a unique characteristic that makes it readily identifiable. Chain of custody is used when the evidence is common and non-unique or when the witness has failed to observe its uniqueness. See State v. Fox (1984), 212 Mont. 488, 689 P.2d 252. Because the propane burner here is not unique, the chain of custody method is applicable. The burden is on defendant to show that tampering had taken place before the prosecution acquired it. State v. Walton (1986), 222 Mont. 340, 722 P.2d 1145. The piece of cloth is not part of the burner. Thus, defendant failed to show any tampering took place prior to the acquisition of the burner by the State.

The burden shifts to the State to prove there has been no substantial change in the evidence after the State acquired it. It is not necessary for the State to prove that it would be impossible to tamper with the burner. State v. Wells (1983), 202 Mont. 337, 658 P.2d 381. A continuous chain of possession must be established after the acquisition by the State, not before. See Walton, [222 Mont. 340,] 722 P.2d at 1147. The State established the chain of custody. Fireman Yager testified that when he entered the trailer after the fire, he saw the propane burner lying face down on the bedspring. He further testified that the burner remained there until County Fire Marshall Adams investigated the fire and picked up the burner. Adams testified he picked up the burner and then locked it in a cupboard at the Fire Station until the Deputy Sheriff picked it up. At trial, Adams testified the burner was in the same condition as it was the day of the fire. We hold that the State made a prima facie showing that there had been no substantial change in the burner after it was acquired by the prosecution, and that defendant failed to subsequently meet his burden of proving tampering. Thus, we hold that the District Court did not err in admitting the propane burner into evidence.

IV

Were the defendant’s due process rights violated by the questioning of Mel Pond prior to his taped statement?

Defendant contends that the Deputy Sheriff told Pond their version of what happened and then asked him his story. Defendant maintains that Pond then told the Deputy Sheriff that defendant admitted setting the fire in the very manner described to Pond by the Deputy Sheriff. Defendant urges that this “suggestive questioning” by the Deputy Sheriff deprived defendant of due process of the law.

The record reveals that before he was questioned, Pond was told by the Deputy Sheriff that the burner was found on the bed. He then gave his taped statement. Pond personally testified and was cross examined. It is up to the trier of fáct to decide who and what to believe after consideration of all the facts and circumstances collectively. See State v. Buckingham, (Mont. 1989) [240 Mont. 252,] 783 P.2d 1331. We hold that defendant’s due process rights were not violated by the questioning of Mel Pond prior to his taped statement.

V

Was the State’s reference to uncharged misconduct and prior convictions reversible error?

During the cross-examination of Pond, counsel questioned him regarding other charged or uncharged misconduct by defendant of which he may be aware. Defendant maintains that such questioning violated Rule 609 and Rule 404(b), M.R.Evid., which deal with character evidence. However, as the State correctly notes, the District Court properly struck the testimony and admonished the jury to disregard it. An error in the admission of evidence may be cured if the jury is admonished to disregard it. See State v. Smith (1986), 220 Mont. 364, 715 P.2d 1301. In view of the District Court’s admonishment of the jury here, we hold the State’s reference to uncharged misconduct and prior convictions did not constitute reversible error.

Affirmed.

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