author: MR. JUSTICE SHEEHY MR. JUSTICE WEBER,

text:
    KEITH C. RENNIE, Contestant and Appellant, v. LARRY J. NISTLER, Contestee and Respondent.
    No. 86-554.
    Submitted March 18, 1987.
    Decided April 16, 1987.
    Rehearing Denied May 13, 1987.
    735 P.2d 1124.

      Manley & Smith, Brian J. Smith argued, Poison, for contestant and appellant.
    Larry Nistler argued, Poison, for contestee and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

We affirm in this case the decision of the District Court, Twentieth Judicial District, Lake County, following a contest of election that Larry J. Nistler is lawfully entitled to hold the office of county attorney of Lake County.

In the general election of November 4, 1986, the office of Lake County Attorney was to be filled. The election ballots were printed and used with the names of Keith C. Rennie, as a Democratic candidate, and Larry J. Nistler, as a Republican candidate for that office.

After the election polls were closed, the election judges counted the ballots and the Board of County Canvassers canvassed the returns and certified that Larry J. Nistler, the Republican candidate, was the winner by a margin of 8 votes.

The Democratic candidate, Keith C. Rennie, asked for a recount pursuant to Section 13-16-201, MCA. Following the recount, the recount judges determined that the election for county attorney of Lake County had resulted in a tie vote.

The Board of County Commissioners of Lake County, pursuant to Section 13-16-506, MCA, appointed Larry J. Nistler to the office of Lake County Attorney.

Keith C. Rennie appeals from the District Court order affirming the recount board. He claims that the report of the recount board that the election had resulted in a tie vote was erroneous for the reason that the election judges, the recount judges, and the recount board have failed to count a ballot (admitted in evidence as contestant’s exhibit No. 1.) as a vote for Keith C. Rennie; that the addition of this ballot would give Keith C. Rennie a plurality of one for the office of county attorney, and that accordingly he is the duly elected person and is entitled to the possession of that office.

The District Court determined essentially that the intentions of the voter casting the contested ballot were not clearly and plainly shown on the face of the ballot. Since the voter misspelled the named Rennie in writing the name on the ballot, the District Court could not determine the person for whom the voter had cast the ballot.

The District Court had before it, and we have before us, only one contested ballot. Upon the question of its validity hangs the determination as to which of the two candidates is entitled to the office of Lake County Attorney.

We do not have before us the original ballot, nor did the District Court have the original. Instead, the parties have agreed that a photocopy of the original was before the District Court and is now before us for decision. The parties also agree, and it appears from the record, that the original ballot was rejected by the election judges when the count was made after the polls were closed. Although Section 13-15-203, MCA, requires that a ballot rejected for illegality shall be marked by the election judges by writing across the face “rejected on the ground of . . .,” no such reason for rejection signed by the election judges appears on the face of the ballot. Rather the parties agree that there was an adhesive sticker affixed to the original ballot stating “counting board denied to count ballot.” Without approving that procedure for future cases, we will nevertheless proceed to determine the validity of the contested ballot based on the photocopy presented to us.

The guiding principle on the acceptance or rejection of ballots in elections is found in Section 13-15-102, MCA, which provides:

“No declaration of an election result, commission, or certificate shall be withheld because of a defect or informality in the returns of any election if it can be determined with reasonable certainty the office intended and the person elected.”

We determine that a “defect in the returns” would occur if an illegal ballot was accepted by the election judges or a legal ballot rejected.

Section 13-15-102, MCA, is the statutory embodiment of what this Court said in Peterson v. Billings (1939), 109 Mont. 390, 394-95, 96 P.2d 922, 924:

“This court, in Stackpole v. Hallahan, 16 Mont. 40, 40 Pac. 80 [28 L.R.A. 502], on page 57, 16 Mont., and page 85, 40 Pac. announces that ‘in the construction of election laws the whole tendency of American authority is towards liberality, to the end of sustaining the honest choice of the electors.’ The reason for this rule is that the paramount and ultimate object of all election laws under our system of government is to obtain an honest and fair expression from the voters upon all questions submitted to them. (Citing authority.)
“But if, from the marking of the ballot in substantial compliance with the law, the intent and choice of the voter clearly appear, then his ballot should be counted, unless the statute expressly or by clear inference forbids it; otherwise the true spirit of the election law might be violated by subordinating the essence to a mere element of detail, and substance may be sacrificed to form ...”

As a prelude to our discussion, we meet first the contention of Nistler, who appeared pro se, and who contended in briefs and in oral argument before this Court that we were bound to accept the findings of the District Court as a matter of discretion unless that discretion was abused, and that to rule otherwise would “put the Supreme Court in the election booth.” In this case, however, the findings of the District Court are based solely on that court’s examination of the photocopy of the contested ballot, the same photocopy that is now before us. The District Court also heard oral testimony, but the oral testimony was not helpful with respect to the problems presented by the contested ballot, but rather established for the record that this ballot was in fact rejected by the election judges, the board of canvassers, and the recount board. In the situation before us, we are free to make our own examination of the entire case, and to make a determination in accordance with our findings. Steadman v. Halland (1982), 197 Mont. 45, 51, 641 P.2d 448, 452; Reid v. Park County (Mont. 1981), 627 P.2d 1210, 1214, 38 St.Rep. 631, 635. Moreover, by statute, we are required in equity cases to review all questions of fact arising upon the evidence presented in the record, whether specifications of error are made or not and to determine the same as well as questions of law. Section 3-2-204(5), MCA. We are not, thereby, “putting ourselves in the election booth” anymore than did the District Court in making its determination.

We do, however, agree with the District Court that the voter’s intentions are not clearly and plainly shown on the contested ballot. In the general election of November 4, 1986, there were in Lake County 14 national, state and county offices for which candidates were to be elected. In 13 of the 14 races, the voter of the contested ballot wrote in the same name of a candidate who also appeared as a party candidate in the printed portion of the ballot for each office. For each office for which he cast a vote, the voter did not mark an “x” in the box provided, but choose instead to make a slash line slanting from right to left downward. Although the voter, for each office open on the ballot, carefully wrote in the names of the candidates already appearing on the ballot, his slash line vote appears in the box opposite his write-in for 7 of the candidates. In 5 other instances, the voter wrote in the full name of one of the printed candidates but instead of placing his mark in the boxes opposite his writing, placed his slash line mark in the boxes opposite the printed name of the persons he had written in. Yet, in the 7 constitutional amendments, referenda and initiatives which were also on the ballot, the voter clearly made a proper “x” reflecting his position for or against the 7 different constitutional and initiative propositions. This is in contrast to the slash mark that he used to cast his vote for the state, national and county offices. In the case of the county attorney, his vote appears thus:

FOR ATTORNEY
(VOTE FOR ONE)
[ ] LARRY J. NISTLER — Republican
[ ] KEITH C. RENNIE — Democrat
[ / ] (Handwritten) Keith C. Renne

The District Court also determined, from the face of the ballot for county attorney that the name “Renne” as handwritten, and for which the voter inserted a voting mark is different from the name of “Rennie,” the Democratic candidate. The principle of idem sonans would indicate that the individual written in was the same as the Democratic candidate. However, the question naturally arises, was the voter of the contested ballot expressing his intention to vote for Rennie as an individual, but not as a Democratic candidate? We can find no answer in the ballot to this question, nor in the inconsistent method he used in voting for other office candidates, sometimes opposite the handwritten names and sometimes opposite the printed names, though he had written in names for all county, state and national offices.

Section 13-13-117, MCA, provides that a voter shall cast his ballot by marking an “x” in the square before the name of the individual for whom he intends to vote. The same statute also provides that an elector may write in the name of an individual for whom he wishes to vote in the blank space and may vote for that individual by marking an “x” before the name. Here, the voter did not cast his vote by marking “x’s before the printed or handwritten name of any candidate although he voted by x’s” for constitutional amendments and initiatives. We would not, however, reject his ballot on that ground alone in view of Section 13-15-102, MCA, aforesaid. But the question of how his vote should be counted in this instance is not resolved by any state statute. If we regard the vote cast by this elector on the contested ballot as a write-in for the individual names, Section 13-15-404, MCA, requires that such write-in votes be entered in the report of the judges in the same place as the votes for other individuals for the same office but shall be identified as write-in votes. Thus, if this ballot had been accepted, the election judges’ report should show that Democratic candidate Rennie received so many votes as a Democratic candidate, and 1 vote as a write-in candidate. No state statute tells us that if the write-in vote is cast for an individual who is the same as an individual named in the printed ballot for the same office that we should add the party candidate’s vote to the write-in vote to determine the total. While it is arguable that the manner of this voter’s casting of his ballot for county attorney indicates his preference for Rennie, it is equally arguable that Rennie was acceptable to the voter as an individual, but not as a party candidate. So many questions arise from the contested ballot itself as to the intentions of the voter, and the confusion that results from attempting to find a consistency in his method of voting that it becomes clear that his ballot should be rejected, and was properly rejected by the election judges, the canvassers and the recount board. The voter’s intent and choice do not clearly appear. Peterson, supra.

Accordingly, we affirm the District Court. No costs to either party.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES GULBRANDSON and HUNT and HON. ROBERT M. HOLTER, District Judge, sitting for MR. JUSTICE MORRISON, concur.

MR. JUSTICE WEBER,

dissenting:

I disagree with the majority conclusion that the voter’s intent and choice do not clearly appear in the ballot in question in this case.

I conclude that we must consider not only Section 13-15-102, MCA, discussed in the majority opinion, but also Section 13-15-202(3), MCA, which is the successor to Section 777, R.C.M. (1935), upon which the Peterson v. Billings (1939), 109 Mont. 390, 96 P.2d 922, case was based. Section 13-15-202(3), MCA, provides:

“A ballot or part of a ballot is void and shall not be counted if the elector’s choice cannot be determined. If part of a ballot is sufficiently plain to determine the elector’s intentions, the election judges shall count that part.”

A ballot is not to be counted if the elector’s choice cannot be determined. That is, a ballot should be counted if it is sufficiently plain to determine the elector’s intentions. That statute is entirely consistent with Peterson, which emphasized the prevailing view of authorities toward liberality in order to sustain the honest choice of the electors. In essence, if the intent of the voter clearly appears, his ballot should be counted. (See quotation from Peterson in majority opinion.)

The key point of the majority opinion appears to be that the word “Democrat” was not handwritten by the voter after the name of Keith C. Renne. That absence appears to raise a question in the majority’s mind sufficient to disqualify the ballot for this candidate. I do not agree with that conclusion.

Our essential test is whether or not the choice of the elector can be determined and if his intentions are sufficiently plain from the ballot. Simply stated, it seems entirely clear to me from the ballot that the elector intended to vote for Mr. Rennie. I do not find the presence or absence of party designation significant for this issue. As an example, if the elector had crossed out all of the party designations on the ballot but still marked the ballot in the appropriate squares, I would count those votes.

I conclude that the voter’s intention to vote for Mr. Rennie as county attorney is clear and I would reverse the District Court.

MR. JUSTICE HARRISON joins in the foregoing dissent.


source: Caselaw Access Project

author: MR. JUSTICE HUNT

license: Public Domain

text:
    In the Matter of the MENTAL HEALTH OF R.J.W., Respondent.
    No. 86-561.
    Submitted on Briefs Feb. 5, 1987.
    Decided April 16, 1987.
    736 P.2d 110.

      Allen Smith, Jr., Warm Springs, for appellant.
    Mike Greely, Atty. Gen., George M. Schunk, Asst. Atty. Gen., Helena, Arnie A. Hove, Co. Atty., Circle, for respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

RJW appeals an order from the Seventh Judicial District Court ordering his involuntary commitment to the Montana State Hospital.

We affirm the commitment.

The issues on appeal are:

1. Whether there is sufficient evidence to support the finding of the District Court that appellant is seriously mentally ill.

2. Whether the District Court’s findings are adequate under Section 53-21-127(2)(c), MCA.

Criminal proceedings were initiated in McCone County alleging RJW committed aggravated assault and carried a concealed weapon. The incident precipitating these charges occurred on May 11, 1986. The appellant, RJW, was walking down a street in Circle, Montana, when he was approached by his landlord, James Rau, and his landlord’s wife, Eileen Rau, in their pick-up truck. James Rau made an adamant demand for overdue rent money and an argument ensued. The appellant attempted to unbutton his coat to show his landlord that he had a weapon. The weapon RJW was carrying under his coat is disputed. RJW testified at his commitment hearing that it was a Bowie knife or a “folding knife.” The information filed by the county attorney charged that RJW was carrying a pistol under his coat which he reached for, causing unreasonable apprehension of bodily injury in James Rau and Eileen Rau. RJW was charged and arrested at his home later that day.

On motion of the county attorney, a psychiatric evaluation was conducted on the appellant at the Montana State Hospital. A report summarizing that evaluation was completed by Dr. John Van Hassel. That report, dated July 29, 1986, concluded:

“In summary, it is the staff’s opinion that the patient does suffer from a mental disease or defect, namely chronic paranoid schizophrenia. As a result of this disorder, it is the staff’s opinion that he does not have the capacity to understand the proceedings against him nor to assist in his own defense. Further, the staff believes that it is unlikely that he is capable of having a particular state of mind which is an element of the offense charged. That is, he is considered incapable of acting with knowledge and purpose because of the mental disorder.”

The diagnosis reached by Dr. Van Hassel was based in part on psychological observations contained in this report.

Following receipt of the report by the District Court, the county attorney petitioned that appellant be declared seriously mentally ill within the definition of Section 53-21-102(4), MCA, and the criminal charges were dismissed.

A hearing on the petition was held on August 14, 1986. Dr. John Van Hassel, McCone County Sheriff Robert Jensen and RJW testified. The report of Dr. Van Hassel was admitted into evidence.

Dr. Van Hassel, a clinical psychologist at the Montana State Hospital and licensed professional person, testified that RJW was suffering from a mental disorder, chronic paranoid schizophrenia, which “is characterized not so much by general deterioration of his thought processes, but is characterized by a very elaborate and pronounced delusional system.” Dr. Van Hassel expressed his opinion that RJW was an imminent threat to others, particularly persons who challenge his alleged delusion about a trust fund. Dr. Van Hassel testified that RJW becomes angry and verbally hostile when his delusion is challenged. Dr. Van Hassel further testified that RJW had not made “a specific threat to harm anyone.”

Robert Jensen, McCone County Sheriff, also testified at the hearing. He testified that he had served eviction papers to RJW and that RJW had a revolver in his possession when he was arrested at his home on the criminal charges. Sheriff Jensen further testified that RJW had made no specific threats against anyone on either of the above occasions.

Upon the conclusion of Sheriff Jensen’s testimony, the District Court denied RJW’s motion to dismiss the petition. RJW then testified on his own behalf.

He testified that he had not threatened any person. When questioned as to whether he would harm someone who lied to him about his finances, he replied that he would raise his voice and call the person a liar.

When questioned about the incident that precipitated his arrest, RJW testified that he did not have a gun with him. He testified that he had a knife on his belt, but that he had not threatened the landlord with it, and that he had in fact stepped back away from the landlord’s truck because the conflict was escalating. When asked to clarify his response to a hypothetical question about whether he would harm someone, RJW testified that the person “would have to be, you know, confronting me and be specific about it.”

The court questioned RJW extensively about the existence of his alleged trust fund and ranch. The court learned that the appellant had previously accused his brother of attempting to poison him with rattlesnake venom contained in a sealed beer can, that one revolver had been taken away from him while he was living in Texas, and that the appellant had purchased another pistol after he allegedly had a heer spiked with drugs or poison.

The court concluded that RJW was seriously mentally ill and posed an imminent threat to himself and others. The appellant was involuntarily committed to the Montana State Hospital following a discussion of less restrictive alternatives.

RJW appeals this involuntary commitment order. He argues that the testimony shows that while he may have become angry and verbally hostile he did not commit overt acts which harmed anyone. RJW claims that when asked specific questions pertaining to specific persons and incidents, his testimony shows no evidence of threats or attempts to harm thus no overt acts occurred as required for a finding of serious mental illness.

Appellant claims there simply was not sufficient evidence to support a finding that he was seriously mentally ill as defined in Section 53-21-102, MCA.

Section 53-21-102(14), MCA, defines “seriously mentally ill” to mean a person is suffering from a mental disorder which has resulted in self-inflicted injury or injury to others or the imminent threat thereof or which has deprived the person afflicted of the ability to protect his life and health.

Specifically, in order to commit someone, the State must prove:

“(a) the respondent is suffering from a mental disorder; and
“(b) the mental disorder has resulted in self-inflicted injury or injury to others or the imminent threat thereof or has deprived the person afflicted of the ability to protect his life or health.”

Section 53-21-126(4), MCA.

Upon review this Court must evaluate whether these statutory standards were met by the State as found by the District Court.

RJW concedes that he suffers from a mental disorder under Section 53-21-126(4)(a), MCA, but he argues the State did not produce adequate evidence that one of the three possible statutory criteria resulted because of the mental disorder.

The standard of proof is set forth in Section 53-21-126(2), MCA.

“The standard of proof in any hearing held pursuant to this section is proof beyond a reasonable doubt with respect to any physical facts or evidence and clear and convincing evidence as to all other matters, except that mental disorders shall be evidence to a reasonable medical certainty. Imminent threat of self-inflicted injury or injury to others shall be evidenced by overt acts, sufficiently recent in time as to be material and relevant as to the respondent’s present condition.”

On appeal this Court will look to the sufficiency of the evidence in reviewing this civil proceeding and will view the evidence in a light most favorable to the prevailing party. Lima School District No. 12 and Elementary School District of Beaverhead County v. Simonsen (Mont. 1984), [210 Mont. 100,] 683 P.2d 471, 41 St.Rep. 944.

We note that

“. . . the law does not require proof beyond a reasonable doubt that an injury will occur in the future . . . The law requires only proof beyond a reasonable doubt that the threat of future injury presently exists and that the threat is imminent . . .”

Matter of F.B. (Mont. 1980), 189 Mont. 229, 615 P.2d 867, 869, 37 St.Rep. 1442, 1445.

A careful review of the record indicates there was sufficient evidence on which the lower court could base a finding of serious mental illness. Among other evidence, the psychologist’s report and defendant’s own testimony are very revealing. The statute does not require a court wait until a person such as RJW takes the next step in a paranoid delusional scheme of reality and actually uses weapons owned by him against others.

The trial court had the benefit of observing the demeanor and weighing the credibility of all the witnesses at the hearing. Since sufficient evidence existed on the record, this Court will defer to the decision of the District Court on this issue and uphold the finding that RJW is seriously mentally ill.

Appellant next contends that the District Court erred by not entering into the record a detailed statement of the facts upon which it found the appellant to be seriously mentally ill.

The statute governing civil commitment states that “[t]he court shall enter into the record a detailed statement of the facts upon which it found the respondent to be seriously mentally ill.” Section 53-21-127(2)(c), MCA. The Montana Rules of Civil Procedure state that “the court shall find the facts specially” by oral statement and recording thereof in open court or by adopting the proposed findings of any party. Rule 52(a), M.R.Civ.P.

In this case the court found that “the respondent is seriously mentally ill and is an eminent (sic) threat to himself and especially others.” The findings of fact signed by the District Court state “[t]hat based upon the testimony and the reports and pleadings on file [RJW] is seriously mentally ill.”

We do not believe this finding was a detailed statement of the facts as contemplated by Section 53-21-127(2)(c), MCA. No particular testimony or facts were referenced. Even though the transcript indicated the mental disorder resulted in imminent threat to appellant and others, the findings of fact failed to indicate which particular portion of Section 53-21-126(4) (b) was relied on for its determination of “seriously mentally ill.”

Given the detail in the record as a whole, we find that this was harmless to appellant under the facts here. Future findings of fact should more carefully detail the factual basis on which a finding of serious mental illness is premised.

The decision of the District Court is affirmed.

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


text:
    The STATE OF MONTANA, Plaintiff and Appellant, v. RICHARD LYLE PROVINCE, Defendant and Respondent.
    No. 86-494.
    Submitted on Briefs Jan. 29, 1987.
    Decided April 17, 1987.
    735 P.2d 1128.
    Mike Greely, Atty. Gen., Robert F.W. Smith, Asst. Atty. Gen., Helena, A. Michael Salvagini, Co. Atty., Bozeman, Duke R. Wolf, Deputy Co. Atty., for plaintiff and appellant.
    Leanne M. Schraudner, Bozeman, for defendant and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

The State appeals from an order from the Eighteenth Judicial District, Gallatin County, Montana, dismissing a DUI charge for failure of the State to give notice of appeal from justice court to the defendant. We affirm.

The issue raised on appeal is whether the State is required to serve notice of its appeal from the justice court on defendant.

The defendant, Richard Lyle Province, was arrested for driving under the influence of alcohol on March 7, 1986. The defendant plead not guilty and trial was set for July 15, 1986.

Defendant made several requests to the State to provide the written report from the arresting officer. The report was never provided to him. On July 9, 1986, the defendant moved to dismiss the case for failure of the prosecution to comply with the court’s discovery rule. The justice court granted the motion. Neither side raised the issue of the justice court’s jurisdiction and dismissal of the charge under these circumstances and we do not rule on that question. The State promptly filed a notice of appeal in the justice court, but neglected to serve notice of this appeal on the defendant or his counsel. On July 23, 1986, the defendant received a District Court minute entry requesting the defendant to make an initial appearance before the District Court. The minute entry provided no information with respect to the charges against the defendant, nor was there any indication that the minute entry was a reference to an appeal from justice court.

Defendant made a motion to dismiss for failure of the State to perfect its appeal. The District Court granted the motion. The state appeals.

In their arguments, both parties dissect and attempt to interpret Section 46-17-311, MCA, which provides for an appeal from justice court. The parties discuss what “giving written notice of his intention to appeal . . .” means, citing case law and commission comments to the Code, none of which is compelling.

Until recently the State was not allowed to appeal a ruling in favor of the defendant. Consequently, much of the history and case law is in reference to the defendant appealing from an unsatisfactory judgment in favor of the State. Now, under Section 46-17-311, MCA, amended in 1985, either party can appeal certain actions. Regardless of which party is appealing, this Court has consistently held that compliance with the statute is required to perfect an appeal because it is exclusively a statutory right.

The State cites cases supporting its contention that strict complianee with the statutory requirement of “giving written notice of his intention to appeal” means no more than giving the justice court written notice. State ex rel. Ross v. Mallory (1979), 184 Mont. 29, 601 P.2d 385; State v. Mortenson (1978), 175 Mont. 403, 574 P.2d 581. These decisions are distinguishable. In Mallory the defendant failed to file his notice of appeal with justice court. In Mortenson the defendant did not file his appeal within the time allowed by statute.

We hold that “giving written notice of an intention to appeal” under Section 46-17-311, MCA, requires that defendant receive notice. In the case at hand the State failed to perform that which was required. Namely, the State failed to serve notice of appeal upon defendant. The rationale for requiring that the defendant be served with notice of an appeal by the State was best summarized by the District Court judge in this case.

“It is patently unfair to permit the state to appeal against a defendant who has no idea that the case is still alive and that he still faces criminal sanctions.”

Notice was not, nor has it ever been served upon the defendant, Richard Province, or counsel for the defendant. The State cannot be allowed to circumvent procedural due process by relying on a clerk’s minute entry as adequate notice of appeal to the defendant. The record shows that an unsigned certificate of service upon the defendant at the bottom of the notice of appeal indicating that the State failed to comply with that which it knew to be a mandatory requirement. The failure to serve notice of appeal on the defendant lies solely with the appellant.

The decision of the District Court dismissing the appeal is affirmed.

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


author: MR. JUSTICE GULBRANDSON

text:
    JESSE CUELLAR, Claimant and Respondent, v. NORTHLAND STEEL, Employer, and Royal Insurance Company, Defendant and Appellant.
    No. 86-361.
    Submitted on Briefs Jan. 22, 1987.
    Decided April 21, 1987.
    736 P.2d 130.

      Herndon, Harper & Munro, Donald R. Herndon, Billings, for defendant and appellant.
    John S. Yoder, Billings, for claimant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Royal Insurance Company appeals a Workers’ Compensation Court decision that claimant is eligible for temporary total disability benefits and entitled to attorney fees from the date of judgment rather than the date of injury. Two issues are presented on appeal:

(1) Whether there is substantial evidence to support a finding that claimant is eligible for workers’ compensation benefits.

(2) Whether claimant’s attorney fees are to be determined under the statute in effect at the date of injury or the date of judgment.

We affirm in part and reverse and remand in part.

Claimant injured his back in May 1983 while working for North-land Steel in Billings, Montana. Northland’s insurance carrier, Royal Insurance, (hereinafter insurance company) paid workers’ compensation temporary total disability benefits from June 1, 1983 to June 30, 1984. Claimant’s treating orthopedic surgeon rendered a 3% impairment rating and released claimant to return to work. Pursuant to the surgeon’s report, the insurance company terminated the payment of benefits to claimant. Claimant made further complaints about his physical condition from September to December, 1984. On December 6, 1984, the orthopedic surgeon referred claimant to a neurologist who in turn referred claimant to Dr. William Wilson, a rheumatologist. On March 28, 1985, Dr. Wilson diagnosed the symptoms of arthralgias and myalgias (arthritic changes) which were, in his opinion, precipitated by claimant’s accident at work. During the intervening period of September 10, 1984, to June 3, 1985, claimant received 38 weeks of unemployment insurance benefits at a rate of $148 per week, or a total of $5,624. Claimant certified to the state that he was able and actively seeking work and signed a form promising to repay any unemployment benefits upon subsequent receipt of workers’ compensation benefits. On September 6, 1985, the insurance company agreed to pay temporary total disability benefits but refused to pay benefits for the 38 weeks during which claimant received unemployment benefits. The Workers’ Compensation Court reviewed the medical evidence and found that the decision to release claimant to work was incorrect. The court cited testimony from the doctor granting the release that claimant had not reached maximum healing by July 1984, the date on which the doctor gave claimant an impairment rating of 3% of the whole person. Dr. Wilson concurred in this opinion and ultimately concluded that claimant’s physical problems were caused by the industrial accident. It was shown that the doctor granting claimant’s release relied upon the job analysis of a rehabilitation supervisor who had concluded that the physical demands of the job were within claimant’s post-injury abilities. The court found claimant to be entitled to temporary total disability benefits for the 38 weeks he received unemployment benefits, ordered claimant to repay the unemployment benefits to the state and awarded claimant reasonable attorney fees under Section 39-71-612, MCA, as amended in 1985.

The standard of review is whether there is substantial evidence to support the findings and conclusions of the Workers’ Compensation Court. We cannot substitute our judgment for that of the trial court as to the weight of the evidence on questions of fact. Where there is substantial evidence to support the Workers’ Compensation Court, this Court cannot overturn the decision. Coles v. Seven Eleven Stores (Mont. 1985), [217 Mont. 343,] 704 P.2d 1048, 42 St.Rep. 1238.

Temporary total disability is defined as a condition resulting from an injury that results in total loss of wages and exists until the injured worker is as far restored as the permanent character of the injuries will permit. Disability shall be supported by a preponderance of medical evidence. See Section 39-71-116(19), MCA.

The question in this case is whether claimant reached maximum healing by September 10, 1984 and remained in that status through June 3, 1985. Substantial medical testimony supports the conclusion that claimant had not reached maximum healing by June 1984, when claimant was given his release to work, or by September 1984, when claimant began receiving unemployment benefits. Dr. Wilson, claimant’s treating physician during the time in which claimant received unemployment benefits, testified that claimant’s physical problems were continuing and concluded that claimant had not reached maximum healing. The evidence supporting the lower court’s decision is substantial and therefore justifies the payment of temporary total benefits for the 38 weeks claimant received unemployment benefits. We also concur that claimant must repay the unemployment benefits he received for those same 38 weeks.

The second issue is whether claimant’s attorney fees are to be determined under the statute in effect at the date of injury or the date of judgment. We have held that the size of an attorney fee award in a workers’ compensation case is determined by the statute in effect on the date of injury. Cadwell v. Industrial Indemnity Company (Mont. 1987), [225 Mont. 423,] 732 P.2d 1352, 44 St.Rep. 370, citing Trusty v. Consolidated Freightways (Mont. 1984), [210 Mont. 148,] 681 P.2d 1085, 41 St.Rep. 973. In Trusty, we held that the statutes in effect on the date of injury determine the benefits to be received and establish the contractual rights and debts of the parties. Moreover, Cadwell says that a statute should not be applied retroactively unless the legislature clearly expresses an intention to so apply it. Cadwell, 732 P.2d at 1354, 44 St.Rep. at 372.

We hold that the statute in effect at the time of claimant’s injury in 1983 controls as to size of the attorney fee award. We refuse to retroactively apply the amended statute due to the absence of any legislative indication to do so. We therefore reverse and remand to the lower court on the attorney fee issue with instructions to apply the law in effect as stated in Cadwell.

Affirmed in part, reversed and remanded in part.

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


text:
    LAVERN GARMANN, Claimant and Appellant, v. E.R. FEGERT CO., Employer, and Employers Insurance Company of Wausau, Defendant and Respondent.
    No. 86-387.
    Submitted on Briefs Feb. 19, 1987.
    Decided April 21, 1987.
    736 P.2d 123.

      Lloyd E. Hartford, Billings, for claimant and appellant.
    L. Randall Bishop, Billings, for defendant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Claimant appeals a Workers’ Compensation Court decision denying a lump sum award of benefits and refusing to impose a 20% penalty on the insurance company. Two issues are presented on appeal:

(1) whether the Workers’ Compensation Court erred in refusing to order a lump sum award of future benefits to claimant;

(2) whether the Workers’ Compensation Court erred in refusing to impose the statutory 20% penalty on the insurance company for its actions.

We affirm.

On March 21, 1981, claimant suffered multiple injuries while working for E. R. Fegert Co. in Zortman, Montana, including fractures of the pelvis, ribs and lumbar spine. Claimant also suffered nerve injury to the upper right extremity. Employer’s Insurance Company of Wausau (hereinafter insurance company), the workers’ compensation insurer, paid claimant temporary total disability benefits from the date of injury, March 21,1981 to September 10, 1982, and again from September 11, 1982 to December 6, 1982. Claimant was paid permanent partial disability benefits from December 7, 1982 through April 28, 1983, whereupon the insurance company suspended the payment of benefits after learning that claimant had been working as a front-end alignment mechanic. Upon receiving notice that claimant was not physically able to continue the work, the insurance company on January 27, 1984 reinstated permanent partial disability benefits and then upgraded payments to permanent total disability in December 1984. Claimant was paid lump sum advances on five separate occasions from December 1981 to August 1984. Claimant’s treating physician opined that maximum healing was achieved by April 1982. An orthopedic surgeon rated claimant’s impairment at 25% of the lower extremity, and a neurologist added a 20% impairment rating for the upper extremities and cervical region. Rehabilitation tests revealed that claimant’s optimal work setting would be a gross manual task requiring only light lifting. The rehabilitation counselor recommended that claimant find work as a driver/operator of some type of “smooth riding construction vehicle.” Claimant subsequently received three and one-half days of training and worked as a front-end alignment mechanic, but as was previously stated, claimant elected to quit because of back and leg problems. Claimant did not attempt to find other work.

Further assessment of claimant’s limitations in August 1983 revealed that claimant could only lift 10-15 pounds and was restricted to occasional squatting and no climbing or bending. A vocational specialist concluded that claimant’s severe physical restrictions required future job placement in “light duty work”, defined as “frequent lifting of ten pounds with no bending, lifting, pushing, stooping, or climbing.” Claimant requested a lump sum award of future benefits for the purchase of a home, automobile and furniture. With any remaining award, claimant proposed to purchase an annuity. Claimant also requested that a 20% statutory penalty be imposed on the insurer for its actions.

The Workers’ Compensation Court reviewed the evidence and found claimant to be permanently totally disabled from the date of injury, exclusive of the time in which he worked as a mechanic. However, the court said claimant was not entitled to a lump sum award because the record was virtually barren of any evidence to support such an award under the “best interests” test of the “financial sustenance” test. The court also refused to impose the statutory 20% penalty on the insurance company, holding that the suspension of benefits for the time claimant worked as a mechanic was not unreasonable. The court said a valid dispute existed as to whether claimant was permanently totally disabled.

As to the lump sum award issue, Section 39-71-741, MCA, provides that such an award is within the discretion of the Workers’ Compensation Court. The standard of review is clear:

“Lump sum settlements are granted in exceptional circumstances. Outstanding indebtedness, pressing need, or circumstances in which the best interests of the claimant, his family and the general public are served justify such a settlement. [Citations omitted.] The decision to award or deny a lump sum settlement will not be interfered with on appeal unless there has been an abuse of discretion. The Workers’ Compensation Court will be presumed correct and affirmed if supported by substantial evidence, and reversed only if the evidence clearly preponderates against its findings. [Citations omitted.] Wide discretion will be afforded the Workers’ Compensation Court in its determination. (Citations omitted.)”

LaVe v. School Dist. No. 2 (Mont. 1986), [220 Mont. 52,] 713 P.2d 546, 547, 43 St.Rep. 165, 167; Hock v. Lienco Cedar Products (Mont. 1981), 634 P.2d 1174, 1178-79, 38 St.Rep. 1598, 1603-04.

Section 39-71-741 was amended by the 1985 legislature and we interpreted the legislative action as a means of codifying existing law. See Buckman v. Montana Deaconess Hosp. (Mont. 1986), [224 Mont. 318,] 730 P.2d 380, 43 St.Rep. 2216. We quote the following passage from Buckman:

“[c]ase law has required claimants to submit financial plans when outstanding or delinquent debt is the basis for a conversion request. Kuehn v. National Farmers Union Property and Cas. Co. (1974), 164 Mont. 303, 521 P.2d 921. Furthermore where the court has found the outstanding debt was not so significant as to necessitate a lump-sum conversion, it has been denied. Ruple v. Bob Peterson Logging Co. (Mont. 1984), [209 Mont. 276,] 679 P.2d 1252, 41 St.Rep. 704. This prior law is directly reflected in the language of Section 39-71-741(2)(c).
“Subsection 2(d) of that same statute likewise codifies prior case law requiring that a claimant show the worthiness of her business venture plan and the adequacy of her business acumen. See Bundtrock v. Duff Chevrolet (1982), 199 Mont. 128, 647 P.2d 856; Krause v. Sears, Roebuck and Co. (1982), 197 Mont. 102, 641 P.2d 458.
“Finally, Section 39-71-741(3) allows the division to order ‘financial, medical, vocational, rehabilitation, educational or other evaluative studies to determine whether a lump-sum conversion is in the best interest of the worker or his beneficiary.’ These tests reflect the historical ways in which a claimant could assert that a conversion was in her best interests other than by showing strict financial ne: cessity. Prior case law has held a conversion to be in the best interests of a claimant where medical considerations required that the claimant and his family move to a different climate. Polich v. Whalen’s O.K. Tire Warehouse (1983), 203 Mont. 280, 661 P.2d 38. Prior case law has held it to be in the best interest of the claimant where diagnosed mental instability made the award of a lump sum necessary to relieve the claimant’s abnormal anxiety. Legowik v. Montgomery Ward and Co. (1971), 157 Mont. 436, 486 P.2d 867.
“The legislative use of the term ‘best interest’ further convinces us that Section 39-71-741(3), MCA, reflects the intent of the legislature to make explicit in the statutory language the previously used best interest test for the conversion of biweekly benefits.”

Buckman, 730 P.2d at 383.

Stelling v. Rivercrest Ranches, Inc. (Mont. 1986), [224 Mont. 313,] 730 P.2d 388, 390, 43 St.Rep. 2212, 2214, decided the same day as Buckman, states that the 1985 amendments to Section 39-71-741 “merely expand the methods by which a claimant proves entitlement to a lump-sum award. The threshold test remains that of the best interests of the claimant.” (Emphasis added.) This is the standard by which the Workers’ Compensation Court must adjudge a claimant’s request for a lump sum award.

The claimant bears the burden of justifying departure from periodic payments. Legowik v. Montgomery Ward & Co. (1971), 157 Mont. 436, 486 P.2d 867. The purpose of the periodic payment method is to preclude the possibility of an imprudent employee or dependent wasting the means of support and thereby becoming a burden upon society. Polich v. Whalen’s O.K. Tire Warehouse (Mont. 1981), 634 P.2d 1162, 38 St.Rep. 1572. Lump sum settlements are an exception to the usual mode of payment contemplated by the Workers’ Compensation Act. Utick v. Utick (1979), 181 Mont. 351, 593 P.2d 739.

Claimant requested a lump sum award of future benefits for the purchase of a home, automobile and furniture. The problem with claimant’s argument is that age, health, or other pressing needs have not been shown to necessitate the purchase of the requested items. See Belton v. Carlson Transport (Mont. 1986), [220 Mont. 194,] 714 P.2d 148, 43 St.Rep. 286. We find no abuse of discretion by the Workers’ Compensation Court.

The second issue is whether the Workers’ Compensation Court erred in refusing to impose the statutory 20% penalty on the insurance company for its actions. Section 39-71-2907, MCA, is the statute at issue:

“When payment of compensation has been unreasonably delayed or refused by an insurer, either prior or subsequent to the issuance of an order by the workers’ compensation judge granting a claimant compensation benefits, the full amount of the compensation benefits due a claimant, between the time compensation benefits were delayed or refused and the date of the order granting a claimant compensation benefits, may be increased by the workers’ compensation judge by 20%. The question of unreasonable delay or refusal shall be determined by the workers’ compensation judge, and such a finding constitutes good cause to rescind, alter, or amend any order, decision, or award previously made in the cause for the purpose of making the increase provided herein.”

The standard of review is whether there is substantial evidence to support the findings and conclusions of the Workers’ Compensation Court. Steffes v. 93 Leasing Co., Inc. (1978), 177 Mont. 83, 580 P.2d 450.

There are several reasons justifying the delayed payment of compensation such as the existence of a bonafide controversy or genuine doubt from a medical or legal standpoint that any liability exists. Holton v. F.H. Stoltze Land & Lumber Co. (1981), 195 Mont. 263, 637 P.2d 10. In Metzger v. Chemetron Corp. (Mont. 1984), [212 Mont. 351,] 687 P.2d 1033, 41 St.Rep. 1788, the claimant received partial lump sum advances of $6,000 plus overpayments of $7,287.97. The lower court found, and we agreed, that no basis existed for the consideration of a penalty.

Here claimant is arguing that the insurance company’s suspension of benefits in April 1983 was unreasonable and therefore justifies the imposition of the statutory penalty on all accrued benefits from April 1983 to December 1984 and on all future total permanent disability benefits. This position is untenable in light of the fact that an insurance company may terminate benefits if it has knowledge that a claimant has returned to work. See Section 39-71-609, MCA. Here the insurance company had knowledge that claimant had returned to work as a mechanic. A valid dispute existed as to whether claimant was permanently totally disabled therefore justifying the suspension of benefits for the time claimant worked as a mechanic. Once the insurance company was notified that claimant could no longer work in that capacity, it reinstated payment of permanent partial benefits and upgraded payment to permanent total benefits. We agree with the lower court that there is no evidence of unreasonable delay or refusal to pay compensation on the part of the insurance company. The Workers’ Compensation Court found claimant to be permanently totally disabled from the date of injury excluding the nine months claimant worked as a front-end mechanic. We find substantial evidence to support the ruling of the Workers’ Compen sation Court.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRI SON, WEBER, SHEEHY and HUNT concur.


text:
    BERNIE A. SWIFT, pro se spokesman; Charles F. Treece, pro se; May Vallance, pro se; Adelbert E. Reynolds, pro se; Ella Sharp, pro se; Victor H. Warner, pro se; and Dean L. Walrod, pro se, Plaintiffs and Appellants, v. STATE OF MONTANA, DEPARTMENT OF NATURAL RESOURCES & CONSERVATION, and Daly Ditches Irrigation District, Defendants and Respondents.
    No. 86-454.
    Submitted on Briefs Feb. 13, 1987.
    Decided April 21, 1987.
    736 P.2d 117.

      Judith A. Loring, Hamilton, for plaintiffs and appellants.
    Loble & Pauly, Lester H. Loble, II, Helena, Larry Persson, Hamilton, for defendants and respondents.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Appellants appeal an order of the District Court of the Fourth Judicial District in and for Ravalli County, Montana, dismissing with prejudice a complaint filed in that court. We affirm.

The pertinent facts are those in In re Petition for Organization and Establishment of an Irrigation District in Ravalli County (Mont. 1984), [209 Mont. 218,] 680 P.2d 944, 41 St.Rep. 658, the Daly Ditch case. Briefly, at the turn of the century the Ravalli Land and Irrigation Company included water users who had rights to use water from the Bitterroot River and users with rights to use water from Skalkaho Creek. Water from the river is diverted primarily by way of the Republican Ditch and the Hedge Ditch, both of which cross Skalkaho Creek. Because of geography it is impossible to irrigate certain lands with water from the ditches. The owners of land below the ditches who owned rights to the use of Skalkaho Creek water permitted a diversion of these waters to lands above the ditches in exchange for the use of water from the ditches. A transfer of right, title and interest of the Ravalli Land and Irrigation Company to the State Conservation Board in 1942 continued this exchange. The Montana Department of Natural Resources and Conservation (DNRC) is the successor to the State Water Conservation Board.

Because of significant financial losses and the need for extensive and costly repairs, the 1979 legislature directed the DNRC to dispose of the project by sale or abandonment. See Section 85-1-401 et seq., MCA. An action was brought in the District Court to organize the Daly Ditches Irrigation District (DDID) for the purpose of taking over from DNRC operation and maintenance of the Daly Ditch project. The DNRC had attempted unilaterally to revoke its consent to the exchange agreements by sending letters of cancellation and refused to deliver ditch water in exchange for Skalkaho Creek water.

In its order establishing the DDID, the District Court found that certain Skalkaho Creek exchange water users had been damaged by refusal of the DNRC to deliver water. The District Court said:

“It is fair and equitable that the Skalkaho Creek Exchange water user individuals having tenth or superior water rights will receive water from the Daly Ditch Water Project on the exchange basis and receive a credit against the cost allocable to them for the operation, maintenance, replacement or reconstruction of Republican or Hedge diversions as well as on account of the purchase of water from Painted Rock Water Project. This credit should exist for a fixed number of years.”

We affirmed the District Court in the Daly Ditch case, supra, and remanded to allow the District Court to determine the rights of the parties or other interested persons.

The District Court issued an order January 24,1986, which made a preliminary determination of those rights which fell within priorities one through ten and those rights which fell within priorities eleven through seventeen. The Court specifically advised anyone who had a disagreement with its decision to present supporting evidence, and set a trial date of April 1 and 2 for people owning rights one through ten. Appellants filed a pro se complaint February 6,1986, which the District Court characterized as a collateral attack on the Daly Ditch decision and an interlocutory appeal of the April trial before the court announced its decision. On June 6 the court dismissed the complaint, with prejudice. The District Court’s findings of fact, conclusions of law and judgment relative to the April hearing were issued August 4, 1986. A notice of appeal to this Court was filed August 7. The appeal is directed to the dismissal of the complaint and not to the findings of the court relative to the April hearing.

The appellants state they filed their pro se complaint in an attempt to invoke the lower court’s jurisdiction to hear and determine questions having to do with the continuing validity of certain water exchange agreements. We agree with the District Court that the complaint does not state a claim upon which relief may be granted. It is a collateral attack on the final judgment of the District Court establishing the DDID. This Court affirmed the District Court’s decision in the Daly Ditch case, which established the DDID.

The general rule is that a judgment is not subject to collateral attack where the court has jurisdiction of the subject matter and of the parties.

“By ‘collateral attack’ is meant ‘every proceeding in which the integrity of a judgment is challenged, except those made in the action wherein the judgment is rendered or by appeal, and except suits brought to obtain decrees declaring judgments to be void ab initio.’ [Citing cases.]”

Daly Bank v. State (1957), 132 Mont. 387, 395, 318 P.2d 230, 236. The court’s jurisdiction is not questioned. The appellants did not oppose establishment of the District. Insofar as paragraph one of the complaint is an attack (and this is unclear) on the establishment of the District, such an attack is a collateral attack on a final judgment and cannot be heard.

Appellants argue they should be permitted to amend their complaint rather than having it dismissed with prejudice. We have long supported the general proposition that claims ought to be decided on their merits. See Prentice Lumber Co. v. Hukill (1972), 161 Mont. 8, 504 P.2d 277.

Appellants, however, have no complaint that has not been adjudicated on its merits. This Court in the Daly Ditch case found the DDID had an obligation to provide substitute water to the exchange water users. The District was required to take any exchange water user who joined. It was required to give a credit to all exchange water users who had priority rights one through ten for as long as they remained members of DDID. The rights of the exchange water users to obtain water on a basis that would take into account the use by the District of their appurtenant rights in the Skalkaho were recognized by granting them a credit if they joined the District. However, they will not receive use of the water on a cost free delivery basis. Those who chose not to join the DDID nonetheless retain all legal and equitable remedies to preserve their rights.

If appellants’ intent was to challenge these items, they are barred by the doctrine of res judicata.

“The criteria to be used in determining whether an action is barred by res judicata are . . .

“(1) the parties or their privies must be the same; (2) the subject-matter of the action must be the same; (3) the issues must be the same, and must relate to the same subject-matter; and (4) the capacities of the persons must be the same in reference to the subject-matter and to the issues between them.”

Fox v. 7L Bar Ranch Co. (1982), 198 Mont. 201, 206, 645 P.2d 929, 931. All four criteria are met. The parties, appellant exchange water users, the DNRC and the DDID are the same here as in the Daly Ditch case; the subject matter, the right to receive exchange water, is the same. The issue in both cases is the credit to be received by holders of Skalkaho Creek water rights junior to the tenth right. The capacities of the parties are the same in reference to the subject matter and the issues.

Appellants could not at the time their complaint was filed be heard to complain that they “[were] and will continue to be impacted and damaged by virtue of establishment of Daly Ditches Irrigation District System encroaching upon and interfering with our decreed Skalkaho Creek water rights,” because those rights had not been interfered with. If it were appellants’ intent to challenge the District Court’s determination of rights to certain credits the Complaint is an interlocutory appeal, and thus fails to state a claim on which relief may be granted.

The Order dismissing the Complaint with prejudice does not affect appellants’ water rights. Neither does it deprive them of an appeal of the decision issued by the District Court August 4. Appellants are not left without opportunity for further judicial relief.

In its Order dismissing the Complaint, the District Court also found dismissal was warranted because appellant Bernie Swift was practicing law without a license. We agree. Because Bernie Swift is not licensed to practice law in Montana he cannot act as spokesman for others before the court.

The order of the District Court is affirmed.

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


text:
    WELDON R. CURREY, Claimant and Appellant, v. 10 MINUTE LUBE, Employer, and State Compensation Insurance Fund, Defendant and Respondent.
    No. 86-470.
    Submitted on Briefs Feb. 13, 1987.
    Decided April 21, 1987.
    736 P.2d 113.

      Kelleher Law Office, Robert L. Kelleher, Jr., Billings, for claimant and appellant.
    Crowley Law Firm, William J. Mattix, Billings, for defendant and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Appellant, Currey, appeals from an order of the Workers’ Compensation Court awarding benefits, reasonable costs and attorney fees for a compensable injury, but ruling that the claimant was not entitled to temporary total disability benefits and denying his motion to submit additional evidence. We affirm.

The issues raised on appeal are:

1. Is the decision of the Workers’ Compensation Court regarding appellant’s entitlement to disability benefits under the Montana Workers’ Compensation Act supported by substantial evidence?

2. Did the Workers’ Compensation Court abuse its discretion in denying appellant’s motion for a rehearing in order to submit additional evidence?

The defendant, Weldon Currey, is an auto mechanic. He was injured on January 13, 1984, when his truck, while stopped at a stop sign, was hit from the rear by another vehicle. At the time of the accident Currey was on his way to pick up cases of oil for his employer, 10 Minute Lube. Following the collision, Currey experienced pain and discomfort in his lower back and neck. He sought treatment from a chiropractor whom he had been going to previously.

Since childhood, Currey has had congenital scoliosis which causes the spine to grow unevenly. He also has a related disorder, syringomyelia, which affects the spinal cord, creating cysts in the cord which destroy surrounding nerve tissue. Due to this condition, repetitive moving or lifting heavy objects has been difficult for Currey throughout his life.

Typically, symptoms of syringomyelia can include atrophy and weakness in the upper extremities as well as loss of sensation to temperature and pain in the affected areas. Although a naturally progressive neurological disorder, the condition can remain undiagnosed and asymptomatic throughout a person’s life. Usually the symptoms will begin to become noticeable in afflicted males between the ages of 20 through 40 years. Currey was 35 at the time of the accident. Since the accident, he has become aware of some symptoms associated with this disorder.

At the time of his industrial injury, Currey was employed as the manager of 10-Minute Lube, a Billings automotive shop which specializes in oil changes. As manager, Currey was responsible for taking inventory each night, balancing the daily books, and making a daily report to the owner, Francis Fanning. Currey informed Fanning of his injury the evening of the accident.

In April, 1984, Fanning sold 10 Minute Lube to Bill Simmons who changed the business’ name to Master-Lube. At that time, Currey lost his position as manager and was required to work faster than was previously expected of the employees under Fanning’s employ. In July, 1984, Currey left Master-Lube and became a serviceman for Hotsy Wy-Mont, a business which sells and services commercial cleaning equipment. He worked there for approximately six months, then quit with the intention of moving to California. Instead of moving, Currey remained in Billings employed for Mont-Dak Chemical as a delivery man for one month before returning to work at Hotsy Wy-Mont. As a part of all these jobs, Currey was required to lift equipment and supplies weighing from 50 to 100 pounds.

Currey filed a claim for wage benefits under Montana’s Workers’ Compensation Act on November 14,1984, ten months after the accident. He quit working for Hotsy Wy-Mont in July, 1985, after Dr. Nelson, a Billings neurologist, advised him to no longer perform activities which involved heavy lifting.

I.

The question as to whether there was substantial evidence to support the decision of the Workers’ Compensation Court must be reviewed in light of the presumption of correctness which accompanies the Workers’ Compensation Court’s findings.

“where the findings are based on conflicting evidence, this Court’s function on review is confined to determining whether there is substantial credible evidence to support the findings, and not to determine whether there is substantial evidence to support contrary findings.”

Davis v. Mountain West Farm Bureau Mutual Ins. Co. (Mont.1985), [216 Mont. 300,] 701 P.2d 351, 353, 42 St.Rep. 840, 843. The findings and conclusions will not be set aside unless they are clearly erroneous. Carlson v. Cain (Mont. 1985), [216 Mont. 129,] 700 P.2d 607, 616, 42 St.Rep. 695, 705.

The depositions of two neurologists, Doctors Peterson and Nelson, were entered at claimant’s hearing as medical evidence of the nature and extent of Currey’s injury. This Court will not substitute its judgment for that of the Workers’ Compensation Court concerning the credibility of witnesses nor the weight to be given their testimony except where critical medical evidence is entered by deposition. In cases where depositions are the evidence, “this court, although sitting in review, is in as good a position as the Workers’ Compensation Court to judge the weight to be given such record testimony, as distinguished from oral testimony, where the trial court actually observes the character and demeanor of the witness on the stand.” Shupert v. Anaconda Aluminum Company (Mont. 1985), [215 Mont. 182,] 696 P.2d 436, 439, 42 St.Rep. 277, 281-282 citing Hert v. J.J. Newberry Co. (1978), 178 Mont. 355, 360, 584 P.2d 656, 659.

An examination of the doctor’s testimony as recorded by their depositions shows contradictory opinions with regard to the relationship between Currey’s symptoms and the January 13, 1984 accident. Section 39-71-104, MCA, requires that liberal construction be given to the Workers’ Compensation Act whenever interpreted by a court. This Court has repeatedly held that such liberal construction must be in favor of the claimant. 696 P.2d at 441. However,

“This rule of liberal construction does not relieve the Court of it’s duty to carefully consider all of the evidence before determining whether the weight of the evidence presented supports the workers’ claim.”

Soelter v. St. Vincent Hospital (Mont. 1984), [211 Mont. 50,] 683 P.2d 480, 483, 41 St.Rep. 1205, 1208.

Appellant argues that because the record shows that it was medically possible that the accident aggravated his pre-existing condition he is entitled to an award for permanent partial disability benefits. He cites Viets v. Sweet Grass Co. (1978), 178 Mont. 337, 583 P.2d 1070, in support of his argument. In Viets, we stated that “evidence of what is possible is more reliable in proving aggravation of an injury or disease than cause and effect . . . proof that it was medically possible for an industrial accident to aggravate a pre-existing condition is acceptable proof of disability.” 583 P.2d at 1072. However, this evidence cannot be considered as if in a vacuum. The medical possibility that an industrial accident or injury aggravated a pre-existing condition “may together with other evidence, establish a compensable disability.” (Emphasis added.) Bykonen v. Montana Power Co. (Mont. 1985), [217 Mont. 169,] 703 P.2d 856, 858, 42 St.Rep. 1112, 1115. Liberal construction of the Act does not allow the Court to disregard some portions of the evidence before it. Soelter, 683 P.2d at 483. Claimant, Currey, still has the burden of proving his case by a preponderance of the evidence. Dumont v. Wickens (1979), 183 Mont. 190, 201, 598 P.2d 1099, 1105.

In Wheeler v. Carlson Transport (Mont. 1985), [217 Mont. 254,] 704 P.2d 49, 53-54, 42 St.Rep. 1177, 1183, this Court stated that:

“expert testimony on medical possibilities is competent evidence admissible in a worker’s compensation proceeding. It is the standard of evidence and does not affect claimant’s ultimate burden to prove his case by a preponderance of the evidence. ‘Medical possibility’ is to be weighed just as any other evidence; if supported by other, independent evidence it is ‘acceptable’ to be used by the court in making its determination. Medical possibility evidence by itself, though, does not mandate the conclusion that the claimant has met his burden of proof under the Act.”

The record shows and the Workers Compensation Court found that with respect to this injury Currey was examined by a medical doctor, Dr. Peterson, in December, 1985, eleven months after the accident. Dr. Peterson diagnosed Currey’s neurological disorder called syringomyelia. Dr. Peterson had Currey’s lifetime medical records and testified that within a reasonable degree of medical certainty the January 13, 1984 accident did not worsen or affect Currey’s condition. He felt that a more traumatic, crushing-type injury would be necessary to cause any sudden onset of syringomyelia or related symptoms.

Dr. Nelson, also a neurologist, examined Currey in July, 1985. He agreed with Dr. Peterson’s diagnosis of syringomyelia. Dr. Nelson testified that due to Currey’s spine’s abnormal curvature and posture, it was more likely that he would sustain an injury. He believed that any degree of trauma could aggravate Currey’s disorder. Dr. Nelson agreed that it was impossible to determine the extent, if any, that the accident caused Currey’s symptoms without pre-accident and post-accident studies. He admitted that he could not testify that the accident aggravated Currey’s syringomyelia, that the condition naturally progresses and that at some point it would be expected that Currey begin to notice some symptoms.

Currey testified that he has always had difficulty lifting heavy objects but that he has had an increasing problem since the January 13, 1985 accident. The record shows that he did not notice any loss of heat and pain sensation in his right shoulder until October or November, 1985 when his right shoulder became less sensitive to heat. Currey worked at several jobs after the accident. The record reflects that he left none of these positions due to his physical problems until July, 1985, when Dr. Nelson advised him to stop lifting heavy objects. Dr. Peterson, on the other hand, testified that Currey’s condition will not prevent him from working and that he doubts that it will result in any permanent disability.

Taken as a whole, the evidence presented in this case does not establish a preponderance of the evidence in favor of Currey’s claim for temporary total disability benefits. The Workers’ Compensation Court carefully considered all the evidence and concluded that the evidence did not prove that Currey’s industrial injury either caused or aggravated his pre-existing syringomyelia’and that defendant is therefore not liable to Currey for wage benefits due to this condition and related symptoms. We find that there is substantial credible evidence to support the Workers’ Compensation Court’s decision.

The second issue raised by appellant is whether the Workers’ Compensation Court abused its discretion in denying appellant’s motion for a rehearing for the purpose of admitting additional evidence.

Following the September 12, 1985 Workers’ Compensation Court hearing, appellant was examined by a third neurologist, Dr. Cahill. This examination was done pursuant to a request made by defense counsel to a collateral civil action concerning the same accident as is the subject of Currey’s present compensation claim. Currey argues that Dr. Cahill’s medical report should be admitted as additional evidence in a rehearing.

The Workers’ Compensation Court hearing examiner determined that the evidence presented at hearing was insufficient to prove Currey’s claim for temporary total disability benefits. That decision will not be overturned as an abuse of discretion. No opinion is expressed on claimant’s right to submit additional medical reports to the Division of Workers’ Compensation requesting a determination of his medical condition based on the entire record, including the new evidence.

The decision of the Workers’ Compensation Court is affirmed.

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


author: MR. JUSTICE HARRISON

text:
    ROBERT A. HILLSTROM and Patricia A. Hillstrom, Plaintiffs and Respondents, v. STEVEN J. O’NEIL, Defendant and Appellant.
    No. 86-495.
    Submitted on Briefs March 12, 1987.
    Decided April 21, 1987.
    736 P.2d 127.

      Peter M. Meloy, Helena, for defendant and appellant.
    J. Robert Planalp, Bozeman, for plaintiffs and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Defendant Steven O’Neil appeals the October 29, 1985, order of the Eighteenth Judicial District Court granting summary judgment in favor of plaintiffs Robert and Patricia Hillstrom. We affirm.

This case involves breach of a buy-sell contract. Robert and Patricia Hillstrom were the sellers and Steven O’Neil the buyer. Hillstroms desired to sell a ten acre tract of land located in Gallatin County, Montana. O’Neil sought land in the area for development purposes. On June 2, 1983, O’Neil executed a document entitled “Earnest Money Receipt and Agreement to Sell and Purchase”. Hillstroms signed the agreement on June 9, 1983.

The buy-sell agreement provided for a purchase price of $225,000 with $6,000 in earnest money due upon execution of the contract, $69,000 due at the time of closing, assumption of an $18,000 underlying contract, and the balance of $132,000 due in monthly installments with interest accruing from the date of closing at 10%. The contract further provided for two partial releases. Upon Hillstroms’ receipt of $100,000 of principal from O’Neil, Hillstroms would “deed property east of road and west of river” to O’Neil. Upon receipt of $50,000 of the principal amount, Hillstroms were required to deed property west of the road to O’Neil. O’Neil had choice of first release and was required to pay for all costs of releases and surveys.

The buy-sell contract was drawn by O’Neil’s real estate agent and contained wording in large print, “THIS IS A LEGALLY BINDING CONTRACT, IF NOT UNDERSTOOD, SEEK COMPETENT ADVICE”. Closing was set for August 1, 1983. O’Neil wired a telegram to Hillstroms stating, “Your acceptance on June 9, 1983, is considered by me to create a valid and binding agreement.”

Prior to closing O’Neil became concerned about securing the necessary approval of county authorities regarding his subdivision plans. The closing date was extended to August 4, 1983, by agreement of the parties. On August 4, 1983, O’Neil refused to close. O’Neil proposed that closing be postponed until a survey of the tract could be performed. O’Neil also requested documents showing consent by Corcoran and Spain to O’Neil’s assumption of the contract, and transferring all appurtenant water rights to O’Neil.

Hillstroms provided O’Neil with Corcoran and Spain’s consent to assignment but refused to delay closing to allow survey as requested by O’Neil. The parties were unable to come to terms and Hillstroms filed an action for specific performance August 19, 1983. Following discovery, both parties filed motions for summary judgment. Hearing was held and the District Court entered its order October 30, 1985, granting summary judgment in favor of Hillstroms. O’Neil appeals and raises the following issues:

1) Whether the District Court erred in granting summary judgment?

2) Whether the District Court erred in granting specific performance?

3) Whether rescission was proper for failure of Hillstroms to permit surveying to be completed?

4) Whether there was a mutual mistake of fact as to subdivisibility of the land covered by the contract?

5) Whether the District Court erred in granting specific performance of the buy-sell agreement without reference to the proposed closing agreement?

O’Neil contends there were genuine issues of material fact precluding summary judgment in this case. Pursuant to Rule 56(c), Mont.R.Civ.P., summary judgment is proper where the record discloses no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. All reasonable inferences that may be drawn from the offered proof are to be drawn in favor of the party opposing summary judgment. Abell v. Travelers Insurance Co. (Mont. 1983), 204 Mont. 156, 663 P.2d 335, 40 St.Rep. 738. A review of the record in this case reveals no genuine issue of material fact and supports the summary judgment in favor of Hillstroms.

O’Neil next contends that specific performance should not have been granted because Hillstroms had not fully complied with their obligations under the contract. Section 27-1-416, MCA, requires a party to perform all material conditions precedent before specific performance may be enforced. O’Neil claims Hillstroms failed to satisfy 3 conditions prior to closing: 1) failure to allow O’Neil to perform a survey; 2) failure to secure a consent to assignment from Corcoran and Spain; 3) failure to provide title insurance.

As noted by the District Court, none of these provisions are listed in the contract as conditions precedent. Of these 3 items only title insurance is mentioned but there is no requirement that it be due upon closing. In fact, it was O’Neil’s real estate agent who was involved in securing-title insurance and it was completed July 29, 1983, and delivered to O’Neil August 5,1983. We find no support for O’Neil’s contention that failure to have title insurance in hand on August 4, 1983, excused his performance nor were there any conditions precedent which Hillstroms failed to perform.

Section 27-1-411(4), MCA, provides that specific performance may be compelled when the parties to a contract have expressly agreed in writing that specific performance shall be an available remedy. The buy-sell agreement signed by the parties expressly provided for a remedy of specific performance and Hillstroms were entitled to pursue this remedy.

The third issue is whether O’Neil was entitled to rescission due to Hillstroms’ refusal to permit survey prior to closing. O’Neil asserts that subdivisibility of the tract is a contractual condition implied by the partial release clause of the buy-sell agreement. The release clause allows O’Neil to acquire deed to a portion of the land upon payment of a percentage of the entire principal owing to Hillstroms. However, before partial release can occur, state law requires the land to be surveyed, platted, and approved for subdivision.

This issue is merely a rephrasing of O’Neil’s previous argument that survey was a condition precedent to closing. There is no language in the contract indicating completion of a survey to be a condition precedent. We find no support in the record for O’Neil’s contention that closing should have been delayed to permit a survey to be accomplished.

The fourth issue is whether there was a mutual mistake of fact as to subdivisibility of the land covered by the contract. The District Court found O’Neil’s claim of mistake of fact to be meritless because O’Neil has never attempted to have the property subdivided. We agree. Mistake of fact as found in Section 28-2-409(1), MCA, requires, “Unconscious ignorance or forgetfulness of a fact, past or present, material to the contract.” To succeed on a mistake of fact defense, O’Neil would have to show that the land cannot be subdivided. O’Neil admits he has not made such a showing.

O’Neil contends that mistake of fact is applicable because neither party understood the extent and complexity of the regulations concerning subdivision approval. While Hillstroms contend O’Neil raises this argument for the first time on appeal, we find it was presented in O’Neil’s supplemental brief filed with the District Court. At any rate, O’Neil’s argument fails on its merits.

O’Neil was under the duty to execute the buy-sell agreement with the prudence and care of a reasonable and cautious businessman. Quinn v. Briggs (1977), 172 Mont. 468, 565 P.2d 297. The record shows O’Neil is an experienced businessman who has operated 6 silver companies including the largest silver recycling company in the country, purchased and sold numerous homes, and he is the sole stockholder of a corporation which owns a ranch in Gallatin County adjacent to the land under dispute in this case.

O’Neil’s deposition testimony reveals that he was aware of the obstacles to subdivision approval because he was experiencing difficulties obtaining subdivision approval for the ranch at the time he negotiated the contract with Hillstroms. He cannot now claim that he entered the buy-sell agreement intending to develop the land yet was unaware of the requirements of subdivision approval.

The final issue is whether the District Court erred in granting specific performance of the buy-sell agreement without reference to the proposed closing agreement. We find no error. The proposed closing agreement was never signed by O’Neil and is not enforceable without his consent. Section 28-2-102, MCA. The District Court order granted specific performance of the buy-sell agreement and does not mention the proposed closing agreement.

O’Neil argues both sides on this issue, stating that he refused to sign the closing contract yet he is entitled to the protections of a closing contract. In this instance, we find the essential terms of the parties’ agreement are contained in the buy-sell agreement and it is specifically enforceable. This Court has previously upheld specific enforcement of buy-sell agreements. See Chadwick v. Giberson (Mont. 1980), 618 P.2d 1213, 37 St.Rep. 1723; Halcro v. Moon, (Mont. 1987), [226 Mont. 121,] 733 P.2d 1305, 44 St.Rep. 504.

The District Court is affirmed.

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


text:
    DAVID SIEWING and Arnold Siewing, Plaintiffs and Respondents, v. PEARSON COMPANY, a corporation, Defendant and Appellant.
    No. 86-526.
    Submitted on Briefs March 5, 1987.
    Decided April 21, 1987.
    736 P.2d 120.

      Bosch, Ruhr, Dugdale & McReon, John C. McReon, Malta, for defendant and appellant.
    Robert Hurly, Glasgow, for plaintiffs and respondents.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Pearson Company, defendant and appellant, appeals the denial of a motion to set aside a default judgment entered against it in the District Court of the Seventeenth Judicial District, County of Valley. We affirm.

David and Arnold Siewing, respondents, purchased a seed cleaning machine from Pearson Co. in April 1985. Siewings were dissatisfied with the performance of the machine. The screen through which the seed passed was allegedly warped, causing the seed to spill uncontrollably out of the machine. Siewings contacted Pearson Co. and voiced their dissatisfaction. Pearson Co. offered to replace the machine and delivered a second machine to the Siewings. After determining the machine to be identical to the first in every respect other than size of the motor, Siewings refused delivery.

On January 23, 1986, Robert Hurly, attorney for the Siewings, wrote Pearson Co. requesting an immediate, full refund on the machine and compensation for the damages suffered by Siewings. No satisfactory response was received. A second letter was sent by Hurly on April 1, 1986. This time the letter was addressed to Bob Melton, a salesman for Pearson Co., with whom Hurly had been in telephone contact. The letter stated that unless satisfaction was forthcoming within ten days, a lawsuit would be filed. A copy of the complaint accompanied the letter. No response was received.

A complaint alleging breach of warranty was filed April 22, 1986. Pearson Co. was served with a summons and a copy of the complaint on May 5, 1986. Neither a motion to dismiss nor an answer was filed by Pearson Co. Siewings moved on May 28, 1986, to enter the default of the defendant. Default was entered the same day. Evidence pertaining to damages was presented to the court on July 23, 1986. Findings of fact, conclusions of law and judgment were signed by the judge on July 29, 1986, and filed with the clerk of court on July 31, 1986.

On July 25, 1986, the defendant contacted and engaged a Montana attorney, John C. McKeon, to represent the defendant. McKeon advised the defendant that he had been present in open court on July 23, 1986, and had observed the presentation of testimony leading to the entry of the default judgment.

Thereafter, on August 21,1986, McKeon filed a motion to set aside the default judgment. The motion was accompanied by the affidavit of James L. Shook, Vice President and Assistant Secretary of Pearson Co. The affidavit contained very few pertinent facts.

“Service of the summons of this action was served to Pearsons to our mail carrier on or about May 5, 1986.

“Our mail carrier delivered said notice to our Senior Vice President. Through an oversight, our Senior Vice President did not respond and has since left our employment. Upon finding the correspondence in his desk, we immediately started proceedings.

“On July 25, 1986, we first contacted and engaged our attorney, Mr. John McKeon, ... to represent us.”

The motion to set aside the default judgment was heard September 3, 1986. At that hearing, McKeon requested leave for Shook to file a supplementary affidavit. McKeon presented the facts which would be included in the supplementary affidavit. McKeon told the court that the complaint had been received by Hárry Knupple, a Vice-President with Pearson Co. Knupple was dissatisfied with Pearson Co. and resigned on May 16, 1986. The documents in Knupple’s possession were placed in a box which was given to James Shook. Shook found the complaint in this cause on July 1, 1986. Shook was leaving on vacation so gave the complaint to Tom Davis, who had been Pearson Co.’s controller for three months. Davis was asked to immediately respond to the complaint and on July 25, 1986, he contacted attorney McKeon.

At the close of the hearing, the motions to set aside the default judgment and for supplementary affidavit were denied. The trial judge held that the motion to set aside was based on excusable neglect and that excusable neglect had not been proven by Pearson Co. He further found that had the additional facts been properly before the court, there still would be inadequate proof of excusable neglect and therefore, there was no need for the supplementary affidavit.

Pearson now appeals the denial of its motion to have the default judgment set aside. One issue is before us. Did the trial judge err in denying Pearson Co.’s motion to set aside Siewings’ default judgment? We find no error.

Rule 60(b), M.R.Civ.P., provides the trial judge with discretion to relieve a party from a final judgment when that judgment is acquired due to the party’s mistake, inadvertence, surprise, or excusable neglect. Rule 55(c), M.R.Civ.P., provides that good cause must be shown before the court may set aside an entry of default. The party seeking to set aside the entry of default has the burden of proof. First National Bank of Cut Bank v. Springs (Mont. 1987), [225 Mont. 62,] 731 P.2d 332, 335, 44 St. Rep. 44, 47.

In this case, Pearson is attempting to prove excusable neglect for its failure to appear. The only admissible evidence presented by Pearson to prove excusable neglect was the affidavit of James Shook. That affidavit is devoid of any facts which might prove excusable neglect. We do not know why Knupple did not bring the complaint to the attention of other individuals before his departure. We do not know why Shook took from May 16 to July 1 to discover the complaint. We do not know why Shook chose to go on vacation, leaving pursuance of an answer to a new employee. We do not know why that new employee took more than three weeks to contact an attorney regarding the complaint.

The proper standard of review when a trial judge denies a motion to set aside an entry of default is whether there has been a slight abuse of discretion. If the trial judge grants the motion to set aside, the standard of review is whether there has been a manifest abuse of discretion. See discussion in Lords v. Newman (Mont. 1984), [212 Mont. 359,] 688 P.2d 290, 293-294, 41 St.Rep. 1793, 1795-1796.

None of the evidence presented to the trial judge proves excusable neglect. The failure to appear due to forgetfulness and the press of other, more important business, is not sufficient to establish excusable neglect. Foster Apiaries, Inc. v. Hubbard Apiaries, Inc. (Mont. 1981), 630 P.2d 1213, 1216, 38 St.Rep. 1025, 1028-1029. Inattention to incoming mail and taking of a vacation at Christmas are insufficient proof of excusable neglect. Griffin v. Scott (Mont. 1985), [218 Mont. 410,] 710 P.2d 1337, 42 St.Rep. 1695. Likewise, a failure to appear caused by inattention to pertinent documents, the resignation of a company officer and the taking of a summer vacation by another officer do not establish excusable neglect.

We do not find an abuse of discretion and the judgment is affirmed.

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