text:
    IN RE THE MARRIAGE OF COLLEEN MARIE STRIZIC, Petitioner and Respondent, and DANIEL J. STRIZIC, Respondent and Appellant.
    No. 93-100.
    Submitted on Briefs August 26, 1993.
    Decided January 20, 1994.
    51 St.Rep. 11.
    263 Mont. 193.
    867 P.2d 386.

      For Petitioner and Respondent: Mark A. Vucurovich, Henningsen, Vucurovich & Richardson, Butte.
    For Respondent and Appellant: Bernard J. “Ben” Everett, Knight, Dahood, McLean & Everett, Anaconda.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant, Daniel Strizic, appeals from a final decree of dissolution of the Second Judicial District Court, Silver Bow County, awarding Respondent, Colleen Strizic, monthly maintenance for four years and primary custody of their two children, and dividing the marital estate.

We affirm in part and remand in part.

We consolidate the issues as follows:

1. Did the District Court err when, during the trial, it awarded Colleen $4200 and one-half the parties’ 1991 income tax refund as retroactive temporary maintenance?

2. Did the District Corut err when it awarded the parties joint custody of the children, designating Colleen as the primary custodial parent?

3. Did the District Court err when it determined and apportioned Daniel’s inheritance as part of the marital estate?

4. Did the District Court err when it determined and apportioned Daniel’s premarital Montana Power Company stock dividends as part of the marital estate?

5. Did the District Court err when it determined and apportioned Daniel’s premarital certificates of deposit as part of the marital estate?

6. Did the District Court err in computing Daniel’s monthly income?

7. Did the District Court err in awarding Colleen maintenance?

The parties were married September 24,1983, in Butte, Silver Bow County. At the time of dissolution, Colleen was 34 years of age and Daniel was 35. During the marriage, the parties enjoyed an above-average standard of living. Daniel acquired substantial premarital property and inherited substantial property during the marriage. He is employed by the Montana Power Company in Butte as an analyst. Colleen is a student in the Public Health Program at Montana Tech in Butte and has no independent source of income. Two children were born as issue of the marriage. At the time of the dissolution, the children resided with Colleen.

ISSUE 1

Did the District Court err when, during the trial, it awarded Colleen $4200 and one-half the parties’ 1991 income tax refund as retroactive temporary maintenance?

A maintenance award is proper if the court finds that the spouse seeking maintenance:

(a) lacks sufficient property to provide for his reasonable needs; and
(b) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

Section 40-4-203, MCA.

Daniel argues that the District Court acted arbitrarily and erred when, during the trial, it ordered him to make available to Colleen retroactive temporary maintenance in the amount of $4200, plus one-half the parties’ 1991 income tax refund. At trial, the court found that during the seven months between their separation and the trial, Daniel had not provided Colleen with maintenance. Further, the court found that Colleen had not received one-half the parties’ $1620 income tax refund. Although the court acted on its own motion in awarding temporary maintenance, it properly exercised its discretion when making the award. We hold that the court did not act arbitrarily or err when it awarded Colleen retroactive temporary maintenance and we affirm the District Court on this issue.

ISSUE 2

Did the District Court err when it awarded the parties joint custody of the children, designating Colleen as the primary custodial parent?

Daniel argues that the issue of child custody should be reversed and remanded because the court rejected custody recommendations given by the children’s court-appointed counsel.

Recently in In re Marriage of McLean / Fleury (1993), 257 Mont. 55, 59, 849 P.2d 1012, 1014, we restated that our standard of review in child custody matters is whether the District Court abused its discretion and whether the court took into consideration the best interests of the children, (citing § 40-4-212(a)-(g), MCA). The findings of fact and conclusions of law reveal that the court used the best interests test in § 40-4-212, MCA. The court found:

[t]hat pursuant to Section 40-4-212, M.C.A., the Court finds that it would be in the best interest of the minor children if they were placed in the joint custody of the parties with Petitioner [Colleen] being designated as primary physical custodian and Respondent [Daniel] having reasonable rights of visitation.

The court then listed numerous considerations, pursuant to the statute, that supported its custody determination.

In addition, it is clear from the record that the court considered all the custody recommendations of the parties’ experts. The court considered the court-appointed counsel’s recommendation that would have required the children to reside on an alternating monthly basis with each parent. The court also heard from a licensed clinical therapist, called by Colleen, who offered a different custody recommendation, and testified as follows:

I believe that she [Colleen] is an exceptionally good parent. I think she provides an appropriate degree of nurturing for the children. I believe that she provides mental stimulation and she is very cognizant of their physical safety, all of which children need. I also believe that she provides appropriate limits and boundaries for those children.
Q. Would the plan proposed by [the court-appointed counsel], require a great deal of adjusting by the children?
A. I just think its an impossible plan.... [I]t might serve the parents in some way, it does not serve the children.
Q. Do you have any concerns about securities that the children or insecurities that the children might develop as a result?
A. [I]ts my belief that children need predictability and consistency and reliability. ... My fear would be that the children would be in such emotional turmoil from month-to-month waiting for the exchange to happen, moving to another house, moving to live with another parent that they may just shut down their feelings altogether. And that could have severe impairment on them for the rest of their lives.

While Daniel raises the issue of custody, he does not discuss the reasons that the court has erred, but rather discusses all of the custody concerns set forth in the court-appointed counsel’s conclusions, which the court heard and rejected.

We hold that the District Court did not abuse its discretion when it determined child custody and we affirm on this issue.

Because of the conflict in the testimony and record as to the remaining issues in this case, we are unable to make a final determination as to any of those issues, and therefore, we remand to the District Court for further proceedings on issues 3, 4, 5, 6, and 7 to determine the bases upon which the court made its decision and to develop a record upon which this Court can review these five issues.

Affirmed in part and remanded.

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


source: Caselaw Access Project

author: JUSTICE NELSON

license: Public Domain

text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. GREGORY JOHN MERGENTHALER, Defendant and Appellant.
    No. 93-167.
    Submitted on Briefs December 22, 1993.
    Decided January 20, 1994.
    51 St.Rep. 13.
    263 Mont. 198.
    868 P.2d 560.

      For Defendant and Appellant: William F. Hooks, Appellate Defender, Helena.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Elizabeth Griffing, Assistant Attorney General, Mike McGrath, Lewis and Clark County Attorney, Carolyn Clemens, Deputy County Attorney, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

Gregory Mergenthaler (Mergenthaler) appeals from a Judgment and Commitment of the First Judicial District Court, Lewis and Clark County, based on a jury verdict convicting him of negligent homicide. We affirm.

The issues on appeal are as follows:

1. Did the District Court err in denying Mergenthaler’s motion to dismiss at the conclusion of the State’s case?

2. Did the District Court err in allowing autopsy slides and a photograph of the victim, while alive, to be presented to the jury?

Mergenthaler began dating Donna Weinzetl (Donna) in November, 1991. Donna was the mother of Ashley Weinzetl (Ashley), who was born on November 29,1990. Mergenthaler was convicted of negligent homicide in connection with the death of thirteen-month old Ashley on January 23, 1992.

A few weeks prior to her death, on the evening of January 12,1992, Ashley was hospitalized because of the flu, which caused diarrhea and dehydration. She also suffered a febrile seizure, a common seizure which occurs in young children suffering from a fever or febrile illness. At the time she was hospitalized, she was placed on an I.V. and tested for meningitis. Dr. John Reynolds, the admitting doctor, saw no bruises or other injuries on Ashley. Dr. Reynolds testified that Ashley responded to treatment well, and by the morning of January 13, 1992, appeared to be a “nice normal happy baby.” Ashley stayed in the hospital until January 15,1992, in order to allow Dr. Reynolds time to complete testing of her urine, blood, and spinal fluids. When she was discharged, Dr. Reynolds instructed Donna to feed the child Pedialyte, an oral electrolyte solution, and prescribed amoxicillin for an ear infection.

On January 18, 1992, Carole Keele, Donna’s mother, babysat Ashley while Donna worked. Ms. Keele testified that Ashley ate normally that day. When Ms. Keele bathed Ashley, she noticed that Ashley had a bruise on her foot from where the I.V. had been placed, but testified that there were no other bruises on Ashley. She also testified that Ashley did not appear to be ill that day.

The next day, Ashley ate a normal breakfast, then Donna and Ashley attended church. Church members testified at trial that Ashley was not as active that day as she usually was, but that she appeared healthy and had no bruises or marks on her face. After church, Ashley ate lunch, took a nap, and played in the afternoon.

Later that afternoon, Mergenthaler called Donna and said he would come and pick Donna and Ashley up to visit at Mergenthaler’s house. A short time after arriving there, Donna went to the grocery store to pick up fixings for dinner, and to rent a video. When Donna left the house, Ashley was asleep on top of Mergenthaler’s bed. When Donna returned, Mergenthaler was holding Ashley and she was undressed except for a diaper. Mergenthaler told Donna that Ashley had vomited on the sheets and that he put her on the couch to run a bath. When he came out of the bathroom, Ashley was lying on the floor; Mergenthaler told Donna that Ashley fell off the couch. At this time, Donna noticed that Ashley had a bruise on the right side of her head.

Mergenthaler did not like what Donna had purchased for dinner, so she went back to the store and left Ashley with him. She also went to her apartment to get pajamas for Ashley. Upon her return to Mergenthaler’s apartment, she prepared dinner and they watched the video. She also fed Ashley, who then went to sleep around 9:00 p.m. Donna then made another trip to her apartment to pick up blankets for Ashley. Upon her return, she decided to stay the night at Mergenthaler’s apartment, so she returned to her apartment a last time to pick up her work clothes and curling iron.

Mergenthaler, Donna, and Ashley were sleeping in the same bed and, between 10:00 and 11:00 p.m., Ashley woke up crying and appeared to be having trouble breathing. Donna got up and dressed herself and Ashley in order to go to the emergency room. At that time, Donna noticed the bruises on Ashley’s head were swollen. Mergenthaler asked to hold Ashley, which Donna allowed him to do. Within about five minutes, Ashley began breathing normally. At that time,-Mergenthaler convinced Donna not to take Ashley to the emergency room.

During that night, Mergenthaler and Donna kept checking on Ashley, shining a small flashlight into her eyes every hour. Ashley slept through the night and her breathing appeared normal.

At 4:30 a.m. on January 20, 1992, Donna awoke and got ready for work. She left Mergenthaler’s house at 5:30 a.m. and discovered her car would not start. Mergenthaler assisted her in getting the car started, then Donna left for work, leaving Ashley in Mergenthaler’s care.

Mergenthaler testified that he went back to bed after helping Donna start her car, hut awoke around 6:30 a.m. when Ashley began crying. Mergenthaler then changed her diaper and tried to give her a bottle, which she refused. He testified that he did feed her three jars of baby food and that she then “passed out, just fell asleep again.” Mergenthaler then watched television and later realized he had not given Ashley the amoxicillin. When he went to give her the medicine, she was barely breathing. Mergenthaler testified that he tried to wake her up by shaking and slapping her and that he tried to pry her mouth open but her jaw was locked.

When he was unable to get Ashley to respond, Mergenthaler called his mother, who told him to call Donna. At about 9:00 a.m., Donna received a telephone call from Mergenthaler, telling her that Ashley’s jaw was locked and that her body was limp. Donna testified that she told Mergenthaler to call 911, but he denies this statement. Donna called her doctor’s office and the emergency room, then called Mergenthaler’s apartment. When Mergenthaler answered the telephone, he told Donna the paramedics were there.

Donna went to the hospital and, upon her arrival, found that Ashley was in a trauma unit in critical condition. She was in a coma and unresponsive, with severe retinal hemorrhages. A CT scan showed that there were many areas of free bleeding within her head, including subarachnoid bleeding (at the bottom of the brain) and subdural bleeding (between the covering of the brain and the brain itself). The attending physician, Dr. Reynolds, diagnosed her condition as “whiplash shaken infant syndrome.” Dr. Reynolds testified that he had never seen a child injured in that manner from revival efforts, and further testified that Ashley’s injuries were not consistent with a fall from a couch. Dr. Reynolds also testified that Ashley could not have eaten breakfast the morning of January 20,1992, let alone have eaten three jars of baby food. He believed the injuries had likely occurred within the previous twenty-four to forty-eight hours.

That afternoon, Ashley was flown to the hospital in Great Falls for specialized care. Dr. Ruggerie, a specialist in pediatric critical care, testified that, when Ashley arrived at the Great Falls hospital, his working diagnosis was child abuse. Dr. Ruggerie testified that Ashley’s brain was so swollen that it had herniated, pushing the brain out of the skull through the base of the skull. He found her eyes dilated with significant retinal bleeding, with one retina partially detached.

Dr. Ruggerie noted significant external head injuries, including swelling on the right side of her face and bruises on both sides of the face and over the ears. Ashley also had small pinpoint bruising around the base of her head. Dr. Ruggerie agreed that the injuries were consistent with those of a baby who had been severely shaken. He also opined that the injuries had occurred within twenty-four horns of presentation.

Ashley died on January 23, 1992. Dr. Henneford performed an autopsy, which showed that she had died from swelling of the brain and bleeding within the cranial vault. The autopsy revealed that Ashley had severe bleeding within the brain, hemorrhaging of her retina, and one partially detached retina. Dr. Henneford testified that the hemorrhaging and bleeding were consistent with a “shaken baby episode.” He did not believe that the injuries could be the result of a fall from a couch or from revival efforts. Dr. Henneford believed the injuries inflicted on Ashley occurred three to four days before her death on January 23, 1992.

All three doctors who testified at trial agreed that Ashley’s head injuries could not have occurred through a fall from the couch. They also agreed that the health care providers could not have caused the significant bruising, nor could the bruising have occurred through choking or retching. Dr. Reynolds and Dr. Ruggerie confirmed that the injuries had no relation to the flu symptoms Ashley had earlier in the week, and agreed that none of the injuries were indicative of a febrile seizure.

On January 28, 1992, Mergenthaler was charged by information with negligent homicide. The above evidence was presented at a trial held August 31, 1992 through September 3, 1992, and the jury returned a guilty verdict. After a hearing on December 7, 1992, Mergenthaler was sentenced to ten years in prison and was ordered to pay restitution for all of Ashley’s medical and funeral expenses as a condition of parole. From that Judgment and Commitment, Mergenthaler appeals.

I — MOTION TO DISMISS

Mergenthaler contends that the District Court erred in denying his motion to dismiss the information at the conclusion of the State’s case. Essentially, he argues that there was insufficient evidence to support the charge that he is the person who inflicted the injuries on Ashley. We disagree.

When the issue on appeal is whether there was sufficient evidence to support a jury verdict, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. McLain (1991), 249 Mont. 242, 246, 815 P.2d 147, 150. A directed verdict of acquittal is appropriate only when there is no evidence to support a guilty verdict. State v. Haskins (1992), 255 Mont. 202, 210, 841 P.2d 542, 547.

Mergenthaler was charged with negligent homicide, which is defined as negligently causing the death of another human being. Section 45-5-104, MCA (1991). “Negligently” is defined as follows:

a person acts negligently with respect to a result or to a circumstance described by a statute defining an offense when he consciously disregards a risk that the result will occur or that the circumstance exists or when he disregards a risk of which he should be aware that the result will occur or that the circumstance exists. The risk must be of such a nature and degree that to disregard it involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. “Gross deviation” means a deviation that is considerably greater than lack of ordinary care. ...

Section 45-2-101(37), MCA (1991). Thus, in order to find Mergenthaler guilty of negligent homicide, the jury had to find that he grossly deviated from the standard of ordinary care in his conduct with Ashley. After reviewing the entire record in this case in the light most favorable to the State, we conclude that the State introduced sufficient evidence to establish all the essential elements of the crime beyond a reasonable doubt.

Mergenthaler himself admitted that he shook and slapped Ashley, allegedly in an attempt to get her breathing. In addition, strong evidence was presented to show that Mergenthaler had severely injured Ashley while Donna was gone. All the doctors who testified at trial concluded that Ashley’s head injuries could not have occurred through a fall from the couch, as Mergenthaler claimed. In addition, all the doctors agreed that the injuries could not have occurred when Ashley vomited or if she was choking or retching. Rather, the evidence showed that Ashley had been severely shaken and that this shaking caused her brain to swell and ultimately caused her death.

It is clear that circumstantial evidence may be used to prove any element of an offense. State v. Lynn (1990), 243 Mont. 430, 435, 795 P.2d 429, 433. All the evidence presented at trial indicated that Ashley was normal and healthy when she went to Mergenthaler’s apartment on January 19, 1992. The evidence indicated that the injuries were acute and occurred on that day. Mergenthaler had custody and control over Ashley during the period of time when the bruises first appeared on her face. The jury could readily infer that an incident occurred where Ashley was injured during the time Donna was away from Mergenthaler’s apartment. While Mergenthaler could not be compelled to testify, he chose to do so, but did not offer any rational explanation for Ashley’s severe injuries incurred while she was in his care.

In fact, Mergenthaler’s testimony at trial was discredited by the State’s evidence. He claimed that Ashley had fallen off the couch on January 19, 1992, and likely received some facial bruises then. However, all the doctors who testified concluded that the bruises on Ashley’s face could not have been caused by falling off the couch. In addition, Mergenthaler claimed that Ashley ate three jars of baby food on January 20,1992. However, Dr. Reynolds testified that there was no possible way Ashley could have eaten that amount of food, given her condition at the time she was admitted to the hospital.

We conclude that the State provided a significant amount of evidence upon which a rational trier of fact could find Mergenthaler guilty beyond a reasonable doubt. Therefore, we hold that the District Court properly denied Mergenthaler’s motion to dismiss at the conclusion of the State’s case.

II — AUTOPSY SLIDES AND PHOTOGRAPH

Mergenthaler contends that the District Court erred in allowing the State to present autopsy slides and a photograph of Ashley, while alive, to the jury. We disagree.

Our standard of review relating to discretionary trial court rulings is whether the trial court abused its discretion. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603-04.

At trial, Dr. Henneford, the physician who performed the autopsy on Ashley, referred to slides taken during the autopsy when he was explaining the nature of the injuries to the jury. It is well established that the trial courts have wide discretion in admitting photographs. State v. Warnick (1983), 202 Mont. 120, 127, 656 P.2d 190, 194. Photographs are admissible for the purpose of explaining and applying the evidence and for assisting the court and the jury in understanding the case. State v. Johnson (1986), 221 Mont. 503, 515, 719 P.2d 1248, 1256. When considering whether photographs should be admitted as evidence at trial, the court must determine whether their probative value is substantially outweighed by the danger of unfair prejudice. State v. Gollehon (Mont. 1993), 864 P.2d 1257, 1263, 50 St. Rep. 1564, 1567.

In Gollehon, the State introduced twenty autopsy photographs taken by the medical examiner. The defendant contended that the photographs had little probative value and should have been excluded. The photographs were only exhibited during the medical examiner’s testimony, and the jury was not allowed to take the photographs into deliberations. We held that, although the photographs depicted the brutality and viciousness of the crimes committed, they were admissible. We stated that we did not believe the photographs would arouse the jurors’ passions any more than other evidence of the defendant’s conduct. “We will not demand that a trial be sanitized to the point that important and probative evidence must be excluded.” Gollehon, 864 P.2d at 1263, 50 St. Rep. at 1567.

As in Gollehon, the autopsy slides here were only exhibited during Dr. Henneford’s testimony for demonstrative purposes. The State did not introduce the slides into evidence; therefore, the jury was not allowed to take the slides into deliberations. In addition, the District Court only allowed a few to be shown during Dr. Henneford’s testimony. Dr. Henneford testified that the slides were helpful in describing the procedures he used, and referred to the slides to describe the nature and extent of Ashley’s injuries and to show that her injuries could not have occurred through choking, gagging, or as the result of a fall or febrile seizure. We hold that the autopsy slides provided important and probative evidence in explaining to the jury how and why Ashley died, and thus were properly used for demonstrative purposes.

The State also introduced a photograph of Ashley when she was alive. Mergenthaler contends that this was prejudicial error. Again, after reviewing the transcript of trial proceedings, we find that the District Court carefully reviewed various in-life photographs in chambers and rejected a number of photographs, including one of Ashley sitting on Donna’s lap. The District Court allowed one photograph of Ashley, wearing a snowsuit, sitting on the back of a pickup truck, taken a few weeks before her death, to be introduced to the jury to show who the victim was and what she looked like.

The child’s size, age, condition, vulnerability, and health were central issues in this case. We have previously held that photographs are admissible if they are relevant to describe a person, place, or thing involved in the case. State v. Mayes (1992), 251 Mont. 358, 371, 825 P.2d 1196, 1205.

In this case, the State maintains that the photograph was relevant to show the jury how Ashley looked and what her health was a few weeks prior to the homicide. The photograph shows a happy, healthy, thirteen-month old child, taken a few weeks prior to her death. There was nothing in particular about this photograph that would inflame the passions or emotions of the jury, and Mergenthaler cannot show any prejudice. See Mayes, 825 P.2d at 1205. We hold that the District Court did not abuse its discretion in allowing the State to introduce the photograph of Ashley.

Affirmed.

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


author: JUSTICE HUNT

text:
    IN RE THE MARRIAGE OF RANAE L. BROERE, Petitioner and Respondent, and ROBERT ALAN BROERE, Respondent and Appellant.
    No. 93-354.
    Submitted on Briefs October 21, 1993.
    Rehearing Denied Feb. 17, 1994.
    Decided January 20, 1994.
    51 St.Rep. 17.
    263 Mont. 207.
    867 P.2d 1092.

      For Respondent and Appellant: Mark P. Yeshe, Helena.
    For Petitioner and Respondent: Jerrold L. Nye, Billings.
   JUSTICE HUNT

delivered the Opinion of the Court.

This appeal from the Thirteenth Judicial District, Yellowstone County, involves a marriage dissolution with property and custody issues, and the District Court’s denial to set aside an entry of default under Rule 55(c), M.R.Civ.P.

The issue is whether the District Court erred in not setting aside the default judgment.

We reverse.

On January 19, 1993, respondent Ranae L. Broere filed a petition for dissolution of her marriage to appellant Robert Alan Broere. The dissolution involved the custody and support of three minor children, marital property, a pension, and debts. Robert was served with the petition and a summons on February 8, 1993.

On February 26, 1993, Robert, acting pro se, signed a response to the dissolution petition and “telefaxed” it to Ranae’s attorney. Robert also telefaxed an acknowledgement of receipt form with a letter asking Ranae’s attorney to sign and return the form as soon as possible. Robert misunderstood from the summons that he must file his response with the District Court since the summons did not direct that the response be filed with District Court, but directed him to file his answer and serve a copy upon Ranae’s attorney. Robert believed the telefaxed response to Ranae’s attorney was sufficient.

After receipt of Robert’s response, Ranae’s attorney sent Robert a note of issue on March 17,1993, mistakenly believing Robert had filed his response with the District Court. The note of issue was captioned with the Broere dissolution heading and said that on February 26, 1993, the trial was before the court upon the filing of respondent’s response.

On March 19, 1993, Ranae’s attorney filed a praecipe for default. On March 23,1993, the District Court entered a decree of dissolution by default and ordered the following: (1) joint custody of the children, with Ranae as primary residential custodian; (2) Robert to pay $397 per month in child support and provide health insurance for the children; (3) all property in her possession awarded to Ranae; and (4) Ranae awarded one-half of Robert’s pension. On March 29, 1993, notice of entry of judgment was filed and served upon Robert. On April 8,1993, Robert obtained counsel and filed a motion with affidavits to set aside the default. The District Court did not rule on the motion within 45 days, and it was deemed denied. On June 3, 1993, Robert filed his notice of appeal.

Did the District Court err in not setting aside the default judgment?

Robert contends that given his status as a layman and the surrounding circumstances the judgment should be set aside. He assumed his response had been properly served and filed because the note of issue notified him it was filed. Ranae contends that a pro se defendant undertakes representation of himself at his own peril, and that Robert’s failure to follow the procedure requirements as provided by the Montana Rules of Civil Procedure is not excusable neglect.

When a trial court has refused to set aside a default the standard of review is that no great abuse of discretion need be shown to warrant reversal. The policy is to favor trials on the merits. Lords v. Newman (1984), 212 Mont. 359, 363, 688 P.2d 290, 293. Rule 55(c), M.R.Civ.P., for good cause shown, permits a default judgment to be set aside under Rule 60(b). Rule 60(b), M.R.Civ.P., states that a judgment may be set aside due to mistake, inadvertence, surprise, or excusable neglect. Mistake is defined as “some unintentional act, omission, or error arising from ignorance, surprise, imposition, or misplaced confidence.” Black’s Law Dictionary 1152 (4th ed. rev. 1975). Defendants prove good cause by showing: they proceeded with diligence; their excusable neglect; that the judgment will be injurious to them if allowed to stand; and they have a meritorious defense to the plaintiff’s cause of action. Blume v. Metropolitan Life Ins. Co. (1990), 242 Mont. 465, 467, 791 P.2d 784, 786.

Robert acted with diligence to set aside the default judgment when he immediately retained an attorney to represent him and timely filed a motion to set aside the default judgment ten days after notice of judgment was mailed to him. He assumed that his telefaxed response to Ranae’s attorney was sufficient. See Waggoner v. Glacier Colony of Hutterites (1953), 127 Mont. 140, 258 P.2d 1162. In Wag- goner, immediately after receiving the summons and complaint, Colony members talked with an associate at plaintiff’s attorney’s office, who said he would relay the message to plaintiff’s counsel that the wrong defendant was being sued. The Colony understood from this conversation that no further action would be taken against them, but default was entered. This Court set aside the default stating that laymen are often misled and get entirely different meanings from conversations than one trained in the legal field. Waggoner, 258 P.2d at 1166. As with the defendant in Waggoner, Robert made a mistake when he assumed that his telefaxed response to Ranae’s attorney was sufficient when they sent him the note of issue.

In Worstell v. Devine (1959), 135 Mont. 1, 335 P.2d 305, this Court found excusable neglect when the appellant’s counsel was mistaken when he assumed that the papers were served on his client on a particular day, and when he did not discover his mistake until after default was entered. Robert also assumed his response had been properly served and filed because the note of issue told him it had been filed.

The judgment is injurious to Robert who lost physical custody of his children, was ordered to pay child support, and lost one-half of his pension without having opportunity to litigate the issues. This case involves issues of physical custody and visitation and this Court has said that “custody cases present a compelling reason for a hearing on the merits .’’Duffey v. Duffey (1981), 193 Mont. 241, 245, 631 P.2d 697, 700. Robert’s proposed response and affidavit is sufficient to show a meritorious defense.

We want to point out that there is a second reason not raised or argued by the parties to reverse this case, and that is that Ranae’s attorney affirmatively, though innocently, misled Robert by sending him the note of issue, leading him to believe the case would be tried. However, on discovering the fact that Robert had not filed his response, Ranae’s attorney did nothing to rectify the misleading impression which he had left with Robert, but instead, took advantage of Robert’s misunderstanding by obtaining, without notice, a default and a default judgment. This Court disapproves of this type of practice.

The denial of the District Court to set aside the default judgment is reversed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, NELSON and TRIEWEILER concur.


text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. SCOTT MUIR, Defendant and Appellant.
    No. 93-107.
    Submitted on Briefs September 30, 1993.
    Decided January 25, 1994.
    51 St.Rep. 19.
    263 Mont. 211.
    867 P.2d 1094.

      For Defendant and Appellant: Craig Buehler, Lewistown.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Barbara C. Harris, Assistant Attorney General, Helena; Thomas P. Meissner, Fergus County Attorney, Lewistown.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Scott Muir appeals from a jury verdict in the Tenth Judicial District Court, Fergus County, finding him guilty of sexual intercourse without consent.

We affirm.

The sole issue is whether the District Court erred when it denied appellant access to the victim’s treatment counselor and the counselor’s records.

On July 6,1992, appellant was charged by information with sexual intercourse without consent, in violation of § 45-5-503(1), MCA. The State further based the charges on § 45-5-501(l)(b)(iii), MCA, that the victim could not consent to the act because she was 14 years of age when the offense occurred. Appellant was 19 years of age.

One evening in September or October 1990, the victim and a 16-year-old friend, B.L., were drinking alcohol and cruising the streets of Lewistown. At midnight, they picked up another friend, N.R., from her job at the Dairy Queen, and then stopped at the Circle K store where they saw appellant with a friend.

Appellant and his friend were on their way to the friend’s home in Forest Grove, a community approximately 25 miles from Lewistown. B.L. and N.R. both knew appellant and his friend and talked to them. The victim had never met either appellant or his friend. B.L. testified that the victim was intoxicated when they were all at the Circle K store. The victim approached appellant and his friend and was touching and flirting with them. Appellant and his friend agreed to follow the girls to the Dairy Queen where they would drop off N.R. Appellant, his friend, B.L., and the victim then rode in the friend’s pickup to the friend’s house.

The victim sat next to appellant as he drove the pickup and continued to be sexually aggressive toward him. B.L. commented to appellant that the victim was not usually that aggressive, but that she was just drunk. Appellant testified that sometime during the drive, the victim told him she was 17. Upon arriving in Forest Grove, appellant and the victim started walking down the road. B.L. testified that as they were leaving, she told appellant “not to do anything,” and that the victim was only 14 years old.

Appellant and the victim walked behind a large round hay bale in a nearby field and had sexual intercourse. They returned to the pickup and the four of them drove back to Lewistown, where the victim spent the night at B.L.’s home.

In March 1991, the victim was admitted to the Yellowstone Youth Treatment Center for an alcohol abuse problem. While in treatment, she spoke with her treatment counselor about the incident, who subsequently informed the victim’s mother. On April 22, 1991, the victim’s mother filed a complaint with the Fergus County Sheriff’s Department, but because of the victim’s emotional state, an investigation was delayed. In April 1992, Deputy Rolf Danzer investigated the complaint by speaking with the victim, her mother, and her counselor. Deputy Danzer then questioned appellant, and appellant gave him a written statement which documented that he did have sexual intercourse with the victim, and that he knew she was 14 years old when the act occurred.

On July 6,1992, the appellant was charged with sexual intercourse without consent. Appellant pled not guilty, and at trial presented testimony that he reasonably believed the victim was 17 years old when the act occurred.

Appellant was found guilty by a jury on September 1, 1992, and was sentenced to a term of 10 years at the Montana State Prison. He was also required to successfully complete the sex offender program at the prison prior to his release.

Did the District Court err when it denied appellant access to the victim’s treatment counselor and the counselor’s records?

Appellant contends that the State deliberately withheld information from him which it had access to and used in its investigation of the case. Prior to trial, appellant requested by motion the right to interview the counselor at the Yellowstone Youth Treatment Center and gain access to her written records because she was listed on the information as a potential witness. The State contends that appellant received the same investigative records that it used to prepare its case in chief, and that the treatment records were privileged as communications between a psychologist and a client.

The court denied appellant’s motion pending its review, and directed the State provide the court with the records. Later, the State informed the court of its attempts to secure the records from the Yellowstone Youth Treatment Center, but reported that it was able to obtain only one report which it submitted to the court.

The court viewed the report in camera and denied appellant access to the report stating that it found no exculpatory evidence that was relevant to the issues. The court further denied appellant the right to interview the counselor because the counselor was not called as a witness at the trial. The court directed the State to continue its efforts to determine if there were more records from the treatment center that may contain exculpatory evidence.

While § 46-15-322, MCA, requires the State to provide all pertinent information within its possession or control, “the statutes have no effect until the State actually develops the knowledge of a specific act, fact or information that exculpates the defendant.” State v. Shaver (1988), 233 Mont. 438, 447, 760 P.2d 1230, 1235.

This Court recently upheld a trial court’s decision to deny a defendant access to a victim’s counselor’s information because the State did not possess the information, nor did the State use the information to prepare its case. State v. Little (1993), [260 Mont. 460], 861 P.2d 154, 50 St. Rep. 86. In Little, a defendant charged with sexual intercourse without consent, requested the victim’s counselor’s notes asserting that they might contain exculpatory information. The District Court found that the defendant was not entitled to discovery of the notes because the State did not possess the notes, did not use the counselor’s notes or opinions to prepare its case, and did not intend to call the counselor as a witness. Little, 861 P.2d at 159. See also, State v. Rhyne (1992), 253 Mont. 513, 833 P.2d 1112.

In the present case, the State reported to the District Court that no written reports were submitted by the counselor to the sheriff’s investigator. The sheriff’s investigator interviewed the victim’s counselor, the victim, and her mother. The details of these interviews were in the investigator’s report, which was provided to both the State and appellant. The State informed the District Court that it gave appellant all the information it had received from the investigative officer. The State did not view the counselor’s records, use them to prepare its case, or call the counselor as a witness. We hold that appellant failed to show that the State deliberately withheld information from him which it had access to and used in its investigation of the case.

Next, appellant contends that the District Court erred by denying him access to the victim’s counselor and her treatment records, thereby denying his right to confront witnesses and compel testimony.

The Montana Rules of Evidence allow the trial court to refuse evidence by first testing the relevance of the evidence, and then determining whether the evidence should be excluded by a provision of law. Rule 402, M.R.Evid. Rulings on the admissibility of evidence are left to the sound discretion of the trial court. State v. Mayes (1992), 251 Mont. 358, 373, 825 P.2d 1196, 1205. On appeal, this Court will not disturb such a ruling absent abuse of discretion. Mayes, 825 P.2d at 1205.

Appellant requested access to the counselor’s records several times throughout the proceedings and for several purposes. Appellant requested the right to review the counselor’s records for information with which to impeach the victim’s mother concerning the victim’s alcohol abuse, and to scan for potential witnesses for the defense. At the sentencing hearing, appellant again requested access to the victim’s treatment records to rebut the State’s assertion that all of the victim’s emotional problems resulted from appellant’s actions.

The District Court denied appellant’s requests, stating that the sexual intercourse without consent charge was grounded upon § 45-5-501(l)(b)(iii), MCA, that the victim was under the age of 16 when the alleged offense occurred and she could not give her consent. The court reasoned that no connection had been established between the incident and the victim’s alcohol abuse and emotional problems, and therefore, found the issue of the victim’s character and alcohol abuse irrelevant to these charges. Further, the court reasoned that its sentence and judgment were not based on the contents of the treatment records, but instead upon evidence submitted at trial, and that witnesses’ testimony concerning the victim’s emotional history and alcohol abuse contained the same information as did the counselor’s treatment records.

Montana protects confidential information between a psychologist and a client from disclosure. Section 26-1-807, MCA. In State v. Reynolds (1990), 243 Mont. 1, 8, 792 P.2d 1111, 1115, this Court held that the district court properly denied the defendant’s motion to obtain all medical and psychiatric records of a sexual assault victim. There, we cited the privilege stated in § 26-1-807, MCA, and our holding in State v. Thiel (1989), 236 Mont. 63, 66, 768 P.2d 343, 345.

In Reynolds, 792 P.2d at 1115, this Court reasoned that a defendant’s right to confront his accusers in pretrial discovery is not equivalent to the constitutional right of confrontation. Rather, confrontation is a trial right that guarantees an opportunity for effective cross-examination. A right to question adverse witnesses does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony. Reynolds, 792 P.2d at 1115 (citing Pennsylvania v. Ritchie (1987), 480 U.S. 39, 53, 107 S. Ct. 989, 999, 94 L. Ed. 2d 40, 54). This Court has held that an in camera inspection by the trial court pursuant to § 41-3-205(2), MCA, suffices to protect the confrontation rights of a defendant, and to protect the privacy rights of a victim. State v. Donnelly (1990), 244 Mont. 371, 376, 798 P.2d 89, 92 (overruled on other grounds in State v. Imlay (1991), 249 Mont. 82, 813 P.2d 979).

In the present case, the District Court properly examined the report in camera to determine whether exculpatory evidence was present. The court found the counselor’s report involved privileged information involving the victim’s psychological history and treatment. At trial, the appellant had opportunity to cross-examine all adverse witnesses, including his accuser, the victim. Throughout the entire trial and sentencing, appellant attempted to gain access to information concerning the victim’s alcohol and emotional problems after the incident. The court denied access, reasoning that no correlation to the information was provided at trial. The court seemingly addressed the correlation between the victim’s past emotional problems and alcohol abuse, and her consent at the time of the incident. The court also considered that the State did not establish a correlation at trial between the trauma of the incident and the victim’s current emotional problems. We agree with the court when it found that the victim’s historic emotional problems and current emotional state were irrelevant to the issue of whether appellant was guilty of sexual intercourse without consent. We hold that the District Court did not abuse its discretion when it denied appellant access to the victim’s counselor or the treatment records.

Appellant also contends that without the requested treatment records he was denied access to potential information to build the defense that he reasonably believed the victim was 17 years old.

Section 45-5-511(1), MCA, provides that:
When criminality depends on the victim being less than 16 years old, it is a defense for the offender to prove that he reasonably believed the child to be above that age. Such belief shall not be deemed reasonable if the child is less than 14 years old.

At trial, appellant offered evidence that he reasonably believed the victim was 17 years old. The State submitted evidence that appellant was aware the victim was 14 years old. The court instructed the jury on § 45-5-511(1), MCA, and the jury was not persuaded by appellant’s evidence.

Further, the jury was instructed that the State must prove that appellant had sexual intercourse with the victim, and that the victim was 14 years old at the time of the offense. The State proved its case.

We hold that the District Court did not err in denying the appellant access to the victim’s counselor or the counselor’s treatment records.

We affirm.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, NELSON and WEBER concur.


author: CHIEF JUSTICE TURNAGE

text:
    MABEL LOGAN, Plaintiff and Appellant, v. YELLOWSTONE COUNTY, METRAPARK and METRAPARK BOARD, Defendants and Respondents.
    No. 93-411.
    Submitted on Briefs December 16, 1993.
    Rehearing Denied March 3, 1994.
    Decided Jan. 26, 1994.
    51 St.Rep. 22.
    263 Mont. 218.
    868 P.2d 565.

      JUSTICE HUNT dissented.
    For Plaintiff and Appellant: Terry L. Seiffert and Gary L. Beiswanger, Billings.
    For Defendants and Respondents: Steven J. Lehman, Crowley, Haughey, Hanson, Toole and Dietrich, and Brent Brooks, Deputy County Attorney, Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

This is a claim of wrongful discharge. The District Court for the Thirteenth Judicial District, Yellowstone County, entered summary judgment for defendants. We affirm.

The decisive issues are:

1. Did the District Court err in dismissing the complaint when the motion for summary judgment did not specifically request that relief?

2. Did the court err in determining that plaintiff Mabel Logan cannot as a matter of law meet the proximate causation requirements necessary for recovery?

Mabel Logan began working for the Yellowstone Exhibition/Metra (Metra) as a switchboard operator in 1980. In May of 1987, she was informed that the switchboard position was going to be eliminated in a reorganization. Logan was discharged from employment at the Metra on June 30, 1987.

Logan was between jobs for about three weeks. On July 28,1987, she began working as a control operator at the Yellowstone County Jail. Her new job at the jail paid ninety cents more per hour than her former job.

While working at the jail, Logan suffered a repetitive motion injury to her hands. She filed this action in 1988, claiming that defendants breached the implied covenant of good faith and fair dealing and negligently breached their employment contract in terminating her employment at Metra. She also claims that the Metrapark Commission-Board is an illegal entity whose void acts entitle her to recovery. She seeks compensatory damages including loss of PERS, health insurance, and other benefits of employment as a result of her repetitive motion injury. She also requests punitive damages. Beginning in September 1991, she has received temporary total disability benefits through workers’ compensation for her repetitive motion injury.

Defendants moved for summary judgment based upon the record, which included excerpts from depositions. After briefing and oral argument, the court entered summary judgment for defendants on all counts. The court ruled, as a matter of law, that Logan’s discharge from employment at Metra was not the proximate cause of her injuries, nor were her injuries foreseeable. The court also ruled that Logan cannot recover for her damages because of the exclusive recovery doctrine of workers’ compensation law. Further, the court ruled that neither the dual capacity doctrine nor the intentional tort exception to the exclusivity doctrine applies.

On the claim of negligent discharge, the court noted Logan’s concession that she does not have a claim due to case law developments since she filed her complaint. In denying the claim that the Metrapark Commission-Board is an illegal entity, the court cited § 7-21-3451, MCA, and this Court’s opinion in Koch v. Yellowstone County (1990), 243 Mont. 447, 795 P.2d 454. The court denied the punitive damages claim against Yellowstone County on the basis that Yellowstone County is a governmental entity.

Issue 1

Did the District Court err in dismissing the complaint when the motion for summary judgment did not specifically request that relief?

The brief in support of the motion for summary judgment concluded: Plaintiff’s Complaint fails on all of its counts because Plaintiff cannot establish that she suffered any damages that were proximately caused by her discharge from the Yellowstone County Metra in 1987. The damages she is trying to claim arose three years later when she suffered a repetitive motion injury at her job running the Yellowstone County jail control board. She has recovered damages through Montana’s workers’ compensation law for that repetitive motion injury. She cannot as a matter of Montana law establish any proximate cause connection between her discharge from employment in 1987 and the damages suffered in her repetitive motion injury in 1990 and after.

Logan cites cases setting forth the rule that a district court does not have jurisdiction to grant relief outside the issues presented. See, e.g., In re Custody of C.S.F. (1988), 232 Mont. 204, 755 P.2d 578. However, in this case, the motion for summary judgment on all issues put squarely before the court the issue of whether the complaint should be dismissed. We hold that the court did not exceed the relief requested when it dismissed the complaint.

Issue 2

Did the court err in determining that Logan cannot as a matter of law meet the proximate causation requirements necessary for recovery in tort law?

Our standard of review of a summary judgment is the same as that of the trial court: Based on the record, are there genuine issues of material fact, and is the moving party entitled to judgment as a matter of law? Rule 56(c), M.R.Civ.P.; Knight v. City of Missoula (1992), 252 Mont. 232, 243, 827 P.2d 1270, 1276-77. In this case the parties do not disagree on issues of material fact; instead, their arguments address application of the law to the facts. Therefore, we proceed to consider whether the defendants are entitled to judgment as a matter of law.

Logan argues that defendants should have foreseen that she could lose her PERS, health insurance, and other benefits as a result of the termination of her employment at Metra. She states that, had she not been wrongfully discharged from her job as a switchboard operator at Metra, she never would have taken the Yellowstone County Jail job and suffered a repetitive motion injury. She therefore claims defendants are obligated for all damages she has suffered that have not been paid by Yellowstone County’s workers’ compensation carrier. She maintains that the question of foreseeability is, at minimum, one for a jury.

Because Logan’s discharge from employment preceded the effective date of the Wrongful Discharge from Employment Act, Title 39, Ch. 2, Part 9, this action was brought under common law theories. Breach of the duty to deal fairly and in good faith in the employment relationship is a tort. Gates v. Life of Montana Ins. Co. (1983), 205 Mont. 304, 307, 668 P.2d 213, 215. A tort is comprised of three basic elements: (1) existence of a legal duty from defendant to plaintiff, (2) breach of that duty, and (3) the damage as a proximate result. Joseph v. Hustad Corporation (1969), 153 Mont. 121, 124, 454 P.2d 916, 918. Proximate cause is analyzed in terms of foreseeability. “A defendant is hable for his wrongful conduct if it is reasonably foreseeable that plaintiff’s injury may be the natural and probable consequence of that conduct.” Thayer v. Hicks (1990), 243 Mont. 138, 155, 793 P.2d 784, 795.

Whether or not there is substantial evidence to raise an issue of fact is a question of law for the court and not an issue of fact for the jury. Federal Land Bank of Spokane v. Snider (1991), 247 Mont. 508, 513, 808 P.2d 475, 478; Flansberg v. Montana Power Co. (1969), 154 Mont. 53, 60, 460 P.2d 263, 267. We agree with the District Court that the causal connection between Logan’s discharge from employment and her repetitive motion injury is so remote that the injury cannot reasonably be described as a foreseeable result of the discharge from employment three years earlier. There is insufficient evidence in the record to support a reasonable inference that Logan’s injuries were caused by defendants’ act in discharging her from employment at Metra.

We conclude the court properly entered summary judgment for defendants on the claim of wrongful discharge, due to insufficient evidence on the causation element. Because we so conclude, we need not rule on the issues relating to the exclusivity doctrine of workers’ compensation or the legality of the Metrapark Board. Nor is it necessary that we rule on the correctness of the court’s separate conclusion that punitive damages are not available against Metrapark as a government entity.

Affirmed.

JUSTICES HARRISON, NELSON and WEBER concur.

JUSTICE HUNT dissents from the foregoing opinion.


author: JUSTICE GRAY JUSTICE TRIEWEILER CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DARREN JAMES BROWN, Defendant and Appellant.
    No. 92-494.
    Submitted on Briefs October 28, 1993.
    Decided January 27, 1994.
    51 St.Rep. 24.
    263 Mont. 223.
    867 P.2d 1098.

      JUSTICE TRIEWEILER filed a special concurrence in which JUSTICE HUNT joined.
    CHIEF JUSTICE TURNAGE filed a dissenting opinion.
    For Appellant: Mark P. Yeshe, Helena.
    For Respondent: Joseph P. Mazurek, Attorney General, Michael Wellenstein, Assistant Attorney General, Helena; and Richard J. Llewellyn, Jefferson County Attorney, Boulder.
   JUSTICE GRAY

delivered the Opinion of the Court.

On January 29,1992, Darren J. Brown (Brown) pled guilty to one count each of felony criminal endangerment, negligent homicide and obstructing justice. The charges stemmed from Brown’s participation in an incident in Whitehall, Montana, during which he lost control of his vehicle and struck two pedestrians. Mona Ness was killed instantly and Theresa Wilkinson was injured severely.

The District Court sentenced Brown to terms of imprisonment, partially suspended, and conditioned the suspended portion of his sentence on payment of restitution to the victims and/or their families. Because we identify a number of errors in the restitution condition, we reverse that portion of the sentence, and remand for further proceedings.

In sentencing Brown, the District Court found that, although the husbands and families of Mona Ness and Theresa Wilkinson had all incurred staggering financial losses, the exact dollar amount of those damages was unclear. It also found that Brown had been employed as a prison guard, had marketable skills and owned a car, a number of guns and $2,580 in a Public Employees’ Retirement System (PERS) account. Based on these findings, the District Court subjected Brown’s suspended sentence to the following condition:

7. The Defendant shall pay restitution to the victims of his said offenses. However, the determination of the exact amount of such restitution, due each victim and/or victim’s family (comprising the estate of Mona Ness and/or her husband and family, and Theresa Wilkinson and/or her husband and family) shall not be made by the Court until civil remedies have been exhausted and the Court retains jurisdiction over the restitution issues and any all [sic] issues pertinent thereto. Further, pending an ultimate determination of such restitution issues by the Court, the Adult Probation and Parole Bureau is authorized and directed to withdraw the proceeds of the Defendant’s account with the Public Employees’ Retirement System, to sell the Defendant’s 1979 Trans Am, to sell all of the Defendant’s firearms... and to equally divide the proceeds of all such withdrawals and sales between (the estate of) Mona Ness and Theresa Wilkinson ... All such distributions to victims shall be applied to the total restitution amount which is ultimately determined....

Section 46-18-201(l)(b), MCA, expressly authorizes a district court to condition a suspended sentence on payment of restitution to the victim. Other statutes provide detailed procedures and requirements for imposing restitution as a condition of a sentence under § 46-18-201, MCA. See §§ 46-18-241 through 250, MCA. We agree with the parties that, in large part, these procedures and requirements were not met here when the District Court imposed restitution as a condition of Brown’s suspended sentence.

When a court believes restitution may be a proper condition of a sentence, the presentence investigation report must include:

(a) documentation of the offender’s financial resources and future ability to pay restitution; and
(b) documentation of the victim’s pecuniary loss. ...

Section 46-18-242, MCA.

The presentence investigation report prepared in this case contains no documentation of the pecuniary loss of either victim as required by § 46-18-242(2), MCA. Section 46-18-243(1), MCA, defines pecuniary loss as:

(a) all special damages, but not general damages, substantiated by evidence in the record, that a person could recover against the offender in a civil action arising out of the facts or events constituting the offender’s criminal activities, including without limitation the money equivalent of loss resulting from property taken, destroyed, broken, or otherwise harmed and out-of-pocket losses, such as medical expenses; and
(b) reasonable out-of-pocket expenses incurred by the victim in filing charges or in cooperating in the investigation and prosecution of the offense.

The report states only that Mr. Wilkinson estimated Theresa’s medical expenses in excess of $150,000 and further notes that Mona Ness was earning $10 per hour at the time of her death. As the statute indicates, pecuniary loss must be documented by evidence in the record. Clearly, these minimal assertions do not comply with the statutory requirements.

Additionally, the presentence investigation report contains inadequate documentation of Brown’s financial resources. While it listed Brown’s current assets, it only assigned a monetary value to his PERS retirement account. Further, although the report noted that Brown was suspended without pay from his job as a prison guard, it provided no documentation regarding Brown’s future ability to pay restitution after his release from prison.

We conclude that the presentence investigation and report in the case before us did not comply with § 46-18-242, MCA. Without the documentation required by the statute, a district court is unable to make a meaningful determination of the propriety or amount of a restitution provision in a sentence.

As a probable consequence of the lack of information in the presentence investigation report, the District Court’s actual order of restitution also is deficient. Section 46-18-244(1), MCA, requires the court to specify the amount, method and time of payment of restitution to the victim. None of these requirements was met in this case. Furthermore, § 46-18-244(2), MCA, requires the court to consider the defendant’s financial resources and future ability to pay restitution when determining the amount, method and time of payment. Under Montana’s statutory scheme, district courts are not authorized to order restitution until all such statutory requirements are satisfied.

Additionally, the parties agree that the District Court improperly contemplated restitution to the victims’ families. Restitution is statutorily limited to the “victim” of the crime, who is defined as “a person who suffers a loss of property, bodily injury, or death as a result of criminally injurious conduct.” Section 46-18-243(2)(a), MCA. As conceded by the State, the individual family members cannot be considered victims because they have not suffered a “loss of property, bodily injury, or death” as a result of Brown’s conduct.

We hold that the District Court did not comply with §§ 46-18-242 through 244, MCA, in conditioning Brown’s suspended sentence on restitution to the victims and their families. As detailed above, the presentence investigation report and the District Court’s order of restitution did not meet the statutory requirements for the imposition of restitution on a suspended sentence.

Brown asserts additional error in the asset forfeiture portion of the District Court’s restitution condition, arguing that the court was without any statutory authority to order the sale of his assets. The State argues, on the other hand, that the asset forfeiture is authorized as a “limitation reasonably related to the objectives of rehabilitation and the protection of society” pursuant to § 46-18-202(l)(e), MCA. We conclude that Brown is partially correct in his assertion.

Section 46-18-201(l)(b), MCA, allows a sentencing court to impose reasonable restrictions or conditions such as restitution only during the period of the suspended sentence. In Brown’s case, only ten years of his thirty-year sentence were suspended. Thus, no condition, including the asset forfeiture portion of the restitution provision, can commence until the suspended portion of Brown’s sentence begins — after he has served his time in the state prison. In an analogous situation in State v. Klippenstein (1989), 239 Mont. 42, 46, 778 P.2d 892, 895, even though we interpreted a different time-related limitation on the sentencing court’s authority, we concluded that a present order to sell the defendant’s assets was improper. Here, § 46-18-201(l)(b), MCA, is clear — conditions, including restitution in general and the asset forfeiture portion in particular, may only be imposed on Brown during the period of his suspended sentence.

The State argues that § 46-18-202(l)(e), MCA, authorizes the asset forfeiture provision. We conclude that § 46-18-202(l)(e), MCA, is inapplicable here; therefore, we do not address whether an asset forfeiture could come within the parameters of the catch-all provision in § 46-18-202, MCA, under other circumstances.

Here, the District Court unambiguously imposed the asset forfeiture provisions as part of the restitution condition of Brown’s suspended sentence pursuant to § 46-18-201(l)(b), MCA. Section 46-18-201(l)(b), MCA, allows the court to impose, as a condition of a suspended sentence, any condition listed in § 46-18-201(l)(a), MCA, including the catch-all “any other reasonable conditions considered necessary for rehabilitation or for the protection of society’ contained in § 46-18-20l(l)(a)(xii), MCA. The language of the catch-all provisions of §§ 46-18-201(l)(a) and 46-18-202(l)(e), MCA, is nearly identical. Had the court actually relied on § 46-18-201(l)(a)(xii), MCA, in imposing an asset forfeiture separate from the restitution requirement, it would have been bound by the “during the period of suspended sentence” limitation in § 46-18-201(l)(b), MCA. Therefore, § 46-18-202(l)(e), MCA, cannot be utilized to avoid the terms of the specific statutory limitations relating to suspended sentences in § 46-18-201(l)(b), MCA; namely, the District Court may impose conditions on Brown as part of his suspended sentence only during the period of the suspended sentence.

We conclude that the District Court erred in ordering the present sale of Brown’s assets because of the specific limitations in § 46-18-20 l(l)(b), MCA, and the inapplicability of § 46-18-202(l)(e), MCA to the suspended sentence before us. At this juncture, it would be premature to assume that restitution will be ordered again and that an order to sell Brown’s assets will be included in any future order. As such, we decline to rule on the actual merits of whether an asset forfeiture provision can be part of an otherwise appropriate restitution order.

As a final matter, Brown urges this Court to simply vacate the restitution portion of his sentence rather than remanding for further proceedings, arguing that a further hearing will not establish his future ability to pay. We decline to do so. As explained earlier, the presentence investigation and report are devoid of evidence of Brown’s future financial ability to make restitution payments. On the basis of the existing record, this Court is in no better position to conclude that Brown is or is not able to make future restitution payments than was the District Court. Therefore, we remand this case for further proceedings with regard to the restitution portion of Brown’s sentence and, in the event restitution is again ordered, for entry of appropriate findings.

Reversed and remanded for further proceedings consistent with this opinion.

JUSTICES HARRISON, WEBER and NELSON concur.

JUSTICE TRIEWEILER

specially concurring.

I concur with the result of the majority opinion, but not all that is said therein.

I would hold, as a matter of law, that there is no statutory basis for ordering forfeiture of the defendant’s property in order to satisfy a restitution order. Section 46-18~202(l)(e), MCA, allows for the imposition of conditions on a sentence when it is “related to the objectives of rehabilitation and the protection of society.” For the same reasons that I dissented in State v. Bourne (Mont. 1993), 856 P.2d 222, 50 St. Rep. 791, I conclude that taking property from a person who has already been imprisoned for his conduct is the antithesis of rehabilitation. To suggest that people coming out of prison are more likely to obey the law because their means of transportation and retirement income has been taken from them is absurd. Just the opposite is true. A person who has been stripped of his only means of transportation and all other worldly possessions is more likely to break the law again in order to catch up for lost time.

Therefore, I disagree with the majority’s reluctance to address the State’s unfounded contention head-on. I conclude that there is no statutory basis for the District Court’s forfeiture order, and won’t be in the future.

JUSTICE HUNT joins in the foregoing special concurrence.

CHIEF JUSTICE TURNAGE

dissenting:

I respectfully dissent from the majority opinion.

During the day of July 25, 1991, appellant Darren James Brown, his brother Jeff Wayne Brown, and Gerald Mullaney traveled in a 1989 Jeep pickup from Butte, Silver Bow County, Montana, into Jefferson County, apparently to go fishing. During the day they all did some serious drinking.

During the early evening hours of that day, this trio stopped at the Two Bit Saloon in Whitehall, Montana, owned and operated by J. R. Stanley, who was then tending bar. The bar was occupied by at least three other patrons. The trio soon started a disturbance resulting in Stanley ordering them to leave.

Upon leaving, appellant Darren James Brown got behind the driver’s wheel of the Jeep pickup, Mullaney was seated in the middle, and Jeff Wayne Brown was seated on the right passenger side. Appellant backed the pickup away from the parking position, rapidly accelerating backwards. He then drove the pickup slowly forward past the side door of the Two Bit Saloon, during which time his brother Jeff Wayne Brown leaned out of the passenger door window, holding a .357 magnum pistol in two hands, and fired approximately five rounds at and into the open door of the saloon.

At this point, appellant Darren James Brown accelerated and drove the pickup truck at an excessive rate of speed, estimated by a highway patrol officer at 62.5 miles per hour, and by other witnesses at 70 to 80 miles per hour, to a point approximately four-tenths of a mile from the Two Bit Saloon. There, he crossed over the centerline of the road into the lane of on-coming traffic and beyond that to the pedestrian walkway, where he struck Mona Ness and Theresa Wilkinson, who were walking along the west side of Whitehall Street. Mona Ness was killed, and Theresa Wilkinson was seriously injured.

At the point where the victims were struck by the pickup, which was within the city limits of Whitehall, the speed limit was 25 miles per hour.

Appellant, without stopping, continued on at a high rate of speed for about another seven-tenths of a mile, until he ran into a ditch and stalled.

Four to five hours after the victims were struck, a blood sample was taken from appellant Dairen James Brown. Upon laboratory analysis it was established that he had a blood alcohol content of .17 (nearly twice the amount required for presumptive driving under the influence of intoxicants) and also that he was confirmed as having ingested THC Cannabinoid (marijuana).

Darren James Brown was charged with and pled guilty to the felony offenses of obstructing justice, negligent homicide and criminal endangerment.

The District Court sentenced appellant to imprisonment in the Montana State Prison for ten years on each of the offenses, the terms to run consecutively. The last ten years of the total of thirty years was suspended upon conditions.

One of the conditions imposed by the District Court and the sentencing document provided:

7. The Defendant shall pay restitution to the victims of his said offenses. However, the determination of the exact amount of such restitution, due to each victim and/or victim’s family (comprising the estate of Mona Ness and/or her husband and family, and Theresa Wilkinson and/or her husband and family) shall not be made by the Court until civil remedies have been exhausted, and the Court retains jurisdiction over the restitution issues and any [and] all issues pertinent thereto. Further, pending an ultimate determination of such restitution issues by the Court, the Adult Probation and Parole Bureau is authorized and directed to withdraw the proceeds of the Defendant’s account with the Public Employees’Retirement System, to sell the Defendant’s 1979 Trans Am, to sell all of the Defendant’s firearms (the Jennings .22 caliber weapon, the 9 mm Black semi-auto weapon, the .44 magnum Ruger revolver, the .45 caliber Smith & Wesson revolver, and the .357 magnum Ruger G.P. weapon), and to equally divide the proceeds of all such withdrawals and sales between (the estate of) Mona Ness and Theresa Wilkinson. Further, if the Defendant is a co-owner of the Jeep Cherokee vehicle utilized in the commission of his offenses, said vehicle shall also be sold and the Defendant’s equity interest in the proceeds, and/or in the proceeds from any applicable collision or other damage insurance policy, shall be equally divided between the said victims in the foregoing manner. All such distributions to victims shall be applied to the total restitution amount which is ultimately determined. The Defendant shall fully cooperate in all efforts of the Parole and Probation Bureau in regard to such sales, recoveries and distribution. Although the apparent meager assets of appellant Darren James

Brown will not in any manner presently make restitution to the family of Mona Ness and to Theresa Wilkinson, nevertheless this should not be any reason why restitution should not be required insofar as possible at the present time and not twenty years from now.

I do not believe the interpretation placed upon the statutes by the majority is either necessary or practical. Certainly after the years of incarceration that the appellant is facing until he reaches the time when his ten-year period of suspension arrives, there will not be any assets then available for any payment of restitution. These assets will disappear just as surely as quick-silver will slip through the tines of a dinner fork.

■ I also disagree with the Court’s interpretation of § 46-18-243, MCA, where the Court concludes that restitution is statutorily limited to the “victim” of the crime and thereby limiting in this case the “victim” to decedent Mona Ness.

Section 46-18-241(1), MCA, provides:
Condition of restitution. (1) As provided in 46-18-201, a sentencing court may require an offender to make restitution to any victim of the offense. [Emphasis supplied.]

The record in this case discloses that one of the victims in this crime is a family member of Mona Ness who has incurred a loss by being required to pay for counseling as a result of the death of her mother. She also is a victim.

Section 46-18-201, MCA, authorizes the District Court to include reasonable restrictions or conditions upon the defendant in passing sentence, which includes restitution.

The majority of this Court is reversing, in part, the order of restitution imposed by the District Court for the reason that § 46-18-201, MCA, contains language that provides “[t]he sentencing judge may impose on the defendant any reasonable restrictions or conditions during the period of suspended sentence.” I do not agree that this language must be interpreted to require that the appellant must serve his twenty years of imprisonment before any consideration can be given to restitution. Such interpretation is not practical or reasonable.

It must further be noted that § 46-18-202, MCA, authorizes a district court, in addition to the restrictions provided for in § 46-18-201, MCA, to require that a defendant be subjected to “(e) any other limitation reasonably related to the objectives of rehabilitation and the protection of society.” '

I submit that it must be presumed that the appellant herein can be rehabilitated, and one of the most compelling and attention-obtaining means of rehabilitation is to take his wheels away from him and require him to subject the small amount of assets that he has accumulated to payment of restitution to the family of Mona Ness and to Theresa Wilkinson.

I would affirm the District Court but would require that the question of restitution be remanded for an adequate evidentiary hearing establishing the amounts of claimed damages and the assets available for payment thereof together with the future prospects of payment by the appellant.

I invite the Montana legislature to revisit these statutes for the purpose of providing practical and meaningful provisions for restitution.


author: JUSTICE WEBER

text:
    FRANK R. SHULTZ, JR., Plaintiff and Respondent, v. PATRICK F. HOOKS, Defendant and Appellant.
    No. 93-250.
    Submitted on Briefs November 5, 1993.
    Decided February 1, 1994.
    51 St.Rep. 34.
    263 Mont. 234.
    867 P.2d 1110.
    For Appellant: John J. Cavan, Cavan, Smith & Cavan, Billings.
    For Respondent: James C. Bartlett, Hash, O’Brien & Bartlett, Kalispell.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from an order of the District Court of the Eleventh Judicial District, Flathead County, which granted a default judgment to plaintiff, awarded compensatory damages in the amount of $36,857.81, awarded punitive damages in the amount of $50,001.00 and also awarded costs to plaintiff. We reverse and remand.

The sole issue for this Court’s review is whether Ted O. Lympus, the district judge in this case, should have disqualified himself from presiding over the case.

This is an attorney malpractice action brought by plaintiff Frank R. Shultz, Jr. (Shultz) against defendant Patrick Hooks (Hooks) based on Hooks’ representation of Shultz. Shultz retained Hooks to represent him in an action against his father, Frank R. Shultz, Sr., concerning his guardianship and management of monies received on behalf of Shultz as a result of a personal injury settlement when Shultz was a minor.

Shultz filed this malpractice action against Hooks on August 7,1992. Hooks was personally served with the summons and complaint on September 27,1992. The Flathead County Clerk of Court entered Hooks’ default on October 22, 1992, for failure to plead or otherwise defend within the time allowed by the Montana Rules of Civil Procedure.

On December 30, 1992, a statement of damages was mailed to Hooks. On January 12,1993, the District Court held a hearing on the matter and granted Shultz’ motion for default judgment. The court awarded compensatory damages to plaintiff in the amount of $36,857.81 and punitive damages in the amount of $50,001.00, based on Shultz’ motion for default judgment which was supported by his affidavit, testimony and the complaint. The District Court also awarded costs in the amount of $160.00 to Shultz. Hooks did not appear.

On March 8, 1993, after three writs of execution were executed against him, Hooks filed a Motion for Relief from Judgment under Rule 60(b), M.R.Civ.P., supported by an affidavit signed by his counsel. Hooks based his motion for relief from the judgment in part on the court’s power to grant such relief for “excusable neglect” under Rule 60(b)(1), M.R.Civ.P, and in part on his contention under Rule 60(b)(6), M.R.Civ.P, that Judge Lympus should have recused himself from this case. The District Court allowed the 45 days permitted for a ruling on a Rule 60(b), M.R.Civ.P., motion to expire and the motion was therefore deemed denied under Rule 60(c), M.R.Civ.P.

In Moulding v. Hardman (1993), 257 Mont. 18, 25, 847 P.2d 292, 297, we stated:

A party is precluded from relief under subsection (6) when the facts or circumstances would bring the case under one of the first five subsections. In that instance, the party is not entitled to relief under subsection (6) based on the same facts or circumstances. Here, however, the fact that Hardman requested relief under subsections (1) and (3) and also under subsection (6) is not fatal. Our recent opinion in Koch v. Billings School Dist. No. 2 (1992), 253 Mont. 261, 833 P.2d 181, . . . where we said that the plaintiff should have chosen between subsection (5) and (6) because they are mutually exclusive, illustrates this. The plaintiff’s failure to make this choice did not prevent the District Court or this Court from determining which subsection was proper. We conclude that in this case Hardman’s motion should have been based on subsection (6), and we will analyze it under that subsection alone.

Here, too, we decline to address the appeal in relation to the court’s ruling on “excusable neglect” and base our decision to reverse the District Court on Rule 60(b)(6), M.R.Civ.P, which provides in pertinent part:

Rule 60(b). Mistakes — inadvertence—excusable neglect — newly discovered evidence — fraud, etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... or (6) any other reason justifying relief from the operation of the judgment. (Emphasis supplied.)

In the affidavit in support of Hooks’ motion for relief from judgment, Hooks’ counsel presented the argument that Judge Lympus could not preside over this malpractice action against Hooks because Judge Lympus had himself represented Shultz concerning the same matter on which the malpractice action was founded.

Judge Lympus represented Shultz as an attorney beginning in July of 1976, throughout part of 1977 and ended this representation sometime prior to December of 1979, when Shultz retained Hooks. During the time Judge Lympus represented Shultz, he attempted to locate information concerning Frank R. Shultz, Sr.’s guardianship of plaintiff and information on an accounting relating to that guardianship. Hooks subsequently represented Shultz in that same matter and that is the substance of the malpractice charges against Hooks.

We conclude that Judge Lympus was required to disqualify himself from presiding over this malpractice action, according to § 3-1-803, MCA, which provides in pertinent part:

3-1-803. Disqualification of judges — all courts.

DISQUALIFICATION OF JUDGES

This section shall, in its application, apply to all courts listed in section 3-1-101 except a court of impeachment in the state senate.

Any justice, judge, justice of the peace, municipal court judge or city court judge must not sit or act in any action or proceeding:

3. When he has been attorney or counsel in the action or proceeding for any party ....

The malpractice action here is a direct result of Hooks’representation of Shultz in the action for a guardianship accounting — an action in which Judge Lympus also represented Shultz. Although we conclude that Judge Lympus was required by § 3-1-803, MCA, to disqualify himself from presiding over the subsequent malpractice action against Hooks, we emphasize that there is absolutely nothing in the record to indicate any wrongdoing or unethical conduct on the part of Judge Lympus. Judge Lympus represented Shultz for a short period of time beginning nearly eighteen years ago and his representation did not progress to the point of filing an action against Shultz’ guardian, but rather, merely involved preliminary investigation.

A judge is not prevented from presiding over matters which involve his or her prior clients if the action involves another matter. Although this malpractice action is technically a separate action from the underlying suit against Shultz’ father relating to the guardianship, it arises from the legal representation in that lawsuit, albeit the representation by Hooks and not that of Judge Lympus.

We hold the District Court erred in not disqualifying himself in this case.

Reversed and remanded for substitution of another judge to rule on the merits of Hooks’ Motion for Relief from Judgment and redetermine damages if that motion is again denied.

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


author: JUSTICE GRAY

text:
    BRINKMAN AND LENON, ARCHITECTS AND ENGINEERS, Plaintiff and Respondent, v. P & D LAND ENTERPRISES, a joint venture by NDI, Inc., and MINNESOTA TRUST COMPANY OF AUSTIN, a Minnesota Corp., Defendants and Appellants.
    No. 93-346.
    Submitted on Briefs December 22, 1993.
    Decided February 1, 1994.
    51 St.Rep. 36.
    263 Mont. 238.
    867 P.2d 1112.

      For Defendants and Appellants: A. Clifford Edwards, Kevin M. Funyak, Edwards Law Firm, Billings.

      For Plaintiff and Respondent: Debra D. Parker, Kendra L. Kawaguchi, Murphy, Robinson, Heckathorn & Phillips, Kalispell; Peter D. Plunkett, Warren F. Plunkett & Associates, Austin, Minnesota; and David M. Ortley, Kalispell.
   JUSTICE GRAY

delivered the Opinion of the Court.

In this case, we conclude that the District Court erred in granting summary judgment to plaintiff Brinkman & Lenon because plaintiff failed to meet its initial burden of establishing the absence of genuine issues of material fact. Therefore, we reverse and remand.

The facts necessary to our resolution of this case are straightforward. Brinkman and Lenon, Architects and Engineers (Brinkman), entered into a standard form architectural contract with P&D Land Enterprises (P&D) on May 21,1990. Pursuant to the contract, Brink-man was to perform certain architectural and engineering services in connection with improvements to real estate owned by P&D and P&D was to pay for those services. Under § 4.10 of the contract, P&D was required to give written notice of any deficiency in performance of the services. Section 8.6 required that, in the event of termination of the contract by P&D not resulting from any fault of Brinkman, payment was to be made for services performed prior to the termination date.

Brinkman filed a breach of contract action against P&D in the Eleventh Judicial District Court, Flathead County. Brinkman asserted that it performed services under the contract, and that P&D terminated the contract and then failed to pay the amount owing to Brinkman at that time, in violation of § 8.6 of the contract. In its answer, P&D admitted the existence of the contract and its termination, but denied any breach by it or that it owed Brinkman any money under the contract. P&D also counterclaimed, alleging both breach of contract and negligent failure to provide proper services which resulted in delays, unnecessary expense and lost revenue.

Prior to discovery, Brinkman moved for summary judgment and presented the contract, a letter from P&D, an affidavit and certain invoices in support of its motion. P&D responded generally that issues of fact were raised by the pleadings and not met by Brinkman in its motion and supporting materials. The District Court granted Brinkman’s motion for summary judgment via Memorandum and Order and judgment was entered.

Pursuant to Rule 59(g), M.R.Civ.P., P&D moved the court to alter or amend its judgment, on the basis that Brinkman did not meet its initial burden of establishing the absence of genuine issues of material fact. In particular, P&D argued that its answer and counterclaim required Brinkman to establish entitlement to payment under the contract by, among other things, presenting evidence that P&D failed to give written notice of deficiencies in Brinkman’s services as required by the contract. According to P&D, Brinkman offered only statements of counsel regarding the lack of written notice of deficiencies; no evidence of the lack of such required notice was provided via affidavit or otherwise. Thus, P&D contended, the question of whether such notice was given was a genuine issue of material fact raised by its answer and counterclaim and not met by Brinkman. P&D also presented correspondence to Brinkman, which it characterized as written notice of deficiencies in performance.

Brinkman responded that P&D had the burden of establishing that it had given the required notice of deficiency in response to the motion for summary judgment. Having failed to do so, Brinkman argued, P&D’s presentation of the correspondence purporting to establish that it had given the required notice was untimely. According to Brinkman, P&D was required to raise this “substantive defense” in opposition to the motion for summary judgment. Relying on Scott v. Robson (1979), 182 Mont. 528, 597 P.2d 1150, the District Court denied the motion to alter or amend on the basis that the letter was not timely offered in opposition to the motion for summary judgment and could not be considered thereafter. P&D appeals from the summary judgment which became final upon the court’s denial of its motion to alter or amend.

Did the District Court apply the correct standard to Brinkman’s motion for summary judgment?

Our standard of review in appeals from summary judgment is de novo-, we review a summary judgment utilizing the same criteria used by the District Court initially under Rule 56, M.R.Civ.P. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. We determine whether there is an absence of genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. Minnie, 849 P.2d at 214. In this case, we conclude that summary judgment was improper because the record is devoid of the required showing of proof demonstrating an absence of genuine issues of material fact and an entitlement to judgment as a matter of law. Specifically, we focus on the District Court’s determination that P&D did not notify Brinkman of any deficiency in performance.

It is clear that a party moving for summary judgment bears the initial burden of establishing the absence of any genuine issue of material fact and its entitlement to judgment as a matter of law. Rule 56(c), M.R.Civ.P. Furthermore,

[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of [its] pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

Rule 56(e), M.R.Civ.P. (Emphasis added.) Put another way, the nonmoving party has no obligation to establish that genuine issues of fact exist until the moving party has shown an absence of such issues of fact; unless that initial burden is met by the moving party, the nonmoving party may rest on its pleading. Minnie, 849 P.2d at 214.

In Mathews v. Glacier General Assurance Co. (1979), 184 Mont. 368, 603 P.2d 232, the plaintiff alleged entitlement to the policy limits under a contract for insurance as a result of fire damage. The defendant insurer generally denied the entitlement and asserted the affirmative defense of material alteration of the premises. The plaintiff moved for summary judgment, but did not present evidence from which it could be concluded that a material alteration had not taken place as was alleged in the defendant’s affirmative defense. The district court granted the motion. We noted that the matters considered were devoid of any evidence initially presented by the plaintiff to justify a conclusion that a material question of fact did not exist regarding the affirmative defense of material alteration; absent this showing, the defendant had no duty to come forward with counter-proof. Mathews, 603 P.2d at 235, 237. We reversed the district court, stating:

The order granting summary judgment was based on a determination that although plaintiff was the moving party, defendant had the initial burden to show by affidavits or other evidence, that a material question of fact existed in relation to its affirmative defense of material alteration. Because defendant did not do so, the court granted summary judgment to plaintiff. It was error to impose this initial burden on defendant, the nonmoving party....

Mathews, 603 P.2d at 236.

As was the case in Mathews, the pleadings in this case framed the issues. Brinkman alleged that he was entitled to payment under the contract; P&D alleged that Brinkman had performed deficiently. Given that the contract required P&D to give notice of such deficiencies before terminating the contract, the issue of whether notice was given was crucial to each party’s claim. Further, Brinkman does not dispute on appeal, and did not dispute at the District Court, that P&D’s answer and counterclaim raised the material factual issue of whether notice of deficiency had been given. Thus, with its motion for summary judgment, Brinkman bore the initial burden of establishing the absence of genuine issues of material fact, including the material issue of notice of deficiency in performance. Accordingly, we review the materials submitted in support of Brinkman’s motion.

Brinkman presented the contract containing the provisions referred to in this opinion. Brinkman also presented a letter from P&D referencing the contractual “terminate and pay” provision. Nothing in that letter related to notices of deficiency required by the contract. Finally, Brinkman submitted the affidavit of Tom Heinecke (Heinecke), a Brinkman stockholder, and copies of certain invoices. Heinecke stated that he was familiar with the services performed and invoices corresponding to those services and that Brinkman had not been paid for services performed in the amount of $4,751.98 as of the date of the termination of the contract. Heinecke’s affidavit did not refer to the contract provision regarding deficiency notices or assert that no such notice had been given by P&D.

Brinkman’s brief in support of its motion made numerous references to P&D’s contractual obligation to provide written notice of any alleged deficiency in performance. Brinkman’s counsel stated that “P&D never gave Plaintiff written notification of an alleged deficiency in Plaintiff’s work;” she further stated that “P&D failed to fulfill its obligation to notify Plaintiff of such defective performance, as required under Section 4.10 of the contract;” and again, she stated at some length:

Because P&D never gave Plaintiff written notification of defective performance it cannot claim that its non-payment for services performed is justified. P&D’s failure to provide Plaintiff with the prompt written notification required under the terms of the contract precludes P&D from objecting to its obligation to pay Plaintiff for services performed.

The obvious problem with these statements is just that: they are merely statements of counsel. Such statements of counsel do not meet the evidentiary basis required to support a motion for summary judgment under Rule 56(c), M.R.Civ.P. Traders State Bank of Poplar v. Mann Farms, Inc. (1992), 258 Mont. 226, 242, 852 P.2d 604, 614. As a result, counsel’s statements cannot meet Brinkman’s duty to establish the absence of a genuine issue of material fact regarding a contractually required notice of deficiency.

We conclude that Brinkman did not meet its initial burden with regard to the issue of notice of deficiency; as a result, the burden did not shift to P&D to come forward with evidence establishing the existence of that fact. It is clear from the District Court’s memorandum that the court placed the burden on P&D to present affirmative evidence that, in fact, notice was given. P&D having failed to do so, the court determined that “[tjhere is no issue of fact that P&D did not notify Plaintiff of defective performance” and that Brinkman was entitled to judgment as a matter of law. This conclusion was in error.

Absent a showing that no genuine issues of material fact existed, Brinkman was not entitled to judgment as a matter of law on its breach of contract claim. We hold that the District Court erred in applying an incorrect standard to Brinkman’s motion for summary judgment and in making a determination of the disputed and material factual issue of whether a notice of deficiency was given without evidence of record to support that determination. It follows logically, therefore, that the District Court compounded its error by denying P&D’s motion to alter or amend.

In conclusion, we observe here as we did in Mathews that, although P&D was technically correct in relying solely on its pleading because Brinkman did not meet its initial burden, “that is not to say that we recommend this procedure.” Mathews, 603 P.2d at 240. Here, as in Mathews, P&D may have been able to prevent an appeal on the summary judgment question if it had placed affidavits or other evidence in the record demonstrating that a genuine issue of material fact existed as to the contractually required notice of deficiency.

Reversed and remanded for further proceedings.

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