author: CHIEF JUSTICE TURNAGE JUSTICE GRAY,

text:
    LLOYD BACHE and VIRGINIA BACHE, Plaintiffs and Respondents, v. MARK OWENS, d/b/a MARK OWENS LOGGING, Defendant, Counterclaimant, Third-Party Plaintiff and Appellant, v. TITLE U.S.A. INSURANCE CORPORATION, Third-Party Defendant and Respondent. LLOYD BACHE and VIRGINIA BACHE, Plaintiffs, Third-Party Plaintiffs and Respondents, v. DESHAZER RYAN REALTY, and its agent/employee, COLLEEN MONCUR, Third-Party Defendants and Respondents.
    No. 93-533.
    Submitted on Briefs August 25, 1994.
    Rehearing Denied Nov. 21, 1994.
    Decided October 19, 1994.
    51 St.Rep. 1001.
    267 Mont. 279.
    883 P.2d 817.

      For Appellant: I. James Heckathorn, Murphy, Robinson, Heckathom and Phillips, P.C., Kalispell.
    For Respondents: Lon J. Dale, Milodragovich, Dale and Dye, Missoula,(Bache); Gary Kalkstein, Quane, Smith, Howard & Hull, Missoula, (DeShazer Ryan Realty); John K. Tabaracci, Sullivan and Tabaracci, Missoula, (Mont. Assoc. Realtors).
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Mark Owens, doing business as Mark Owens Logging, appeals from an order of the Nineteenth Judicial District Court, Lincoln County, granting partial summary judgment to Lloyd and Virginia Bache and denying his motion for partial summary judgment. We affirm the decision of the District Court.

The issue is whether the District Court erred in ruling that the Baches retain an easement on the land they sold to Owens.

Lloyd and Virginia Bache owned a 34-acre tract of land in Lincoln County, Montana. Mark Owens, doing business as Mark Owens Logging, purchased 2.42 acres of the Baches’ property (Tract 2) in July, 1988. The Baches retained the remainder of the property (Tract 1). The instruments of conveyance are: (1) the Agreement to Sell and Purchase, dated April 16,1988; (2) the Contract for Deed, dated July 8,1988; (3) the Warranty Deed, dated July 6,1988; and (4) Certificate of Survey No. 1657 (COS), which was filed on July 6,1988.

The Agreement to Sell and Purchase, dated April 16, 1988, required the Baches to convey the property by warranty deed free of all encumbrances except those described in the title insurance provision. That provision required title insurance to be obtained insuring merchantable title free and clear of all liens and encumbrances except “encumbrances hereinabove mentioned, zoning ordinances, building and use restrictions, reservations in federal patents, beneficial utility easements apparent or of record, easements of record, and no others.” The Agreement did not refer to the easement which the Baches now claim. However, the policy of title insurance which was required under the Agreement provided:

PRIOR TO THE ISSUANCE OF TITLE INSURANCE, a complete legal description must be placed of record in the office of the Lincoln County Clerk and Recorder.

Both the Warranty Deed and the Contract for Deed first describe the property being conveyed by metes and bounds. Both documents then refer to the property conveyed as

being Tract 2 shown on Certificate of Survey No. 1657, records of the Lincoln County Clerk and Recorder.
SUBJECT TO the provisions contained in that certain Certificate of Subdivision Plat Approval executed by the State of Montana, Department of Health & Environmental Sciences, File No. 27-88-S30-765, records of Lincoln County, Montana.
SUBJECT TO easements, reservations, covenants and restrictions apparent or of record.

The COS provides legal descriptions and a scaled drawing of the boundaries of Tracts 1 and 2. In addition, the COS depicts a dotted line thirty feet east of the western boundary of Tract 2 and running parallel thereto. The area between the dotted line and the western boundary of Tract 2 is labeled “P.R.E.” and “P.U.E.,” which the legend identifies as “private roadway easement” and “public utility easement.” The relevant part of the COS is reprinted as an appendix to this opinion. Attached to the COS are documents that are a part of the Department of Health and Environmental Sciences’ certification of subdivision plat approval.

During 1991 and 1992, Owens erected a shop building on Tract 2. The Baches filed this action seeking removal of the building, alleging that it obstructs their access easement parallel to the western border of Tract 2. Owens answered, contending that no such easement exists. He also counterclaimed against the Baches and asserted a third-party complaint against the title insurance company. The Baches later added their realty company and its employee as third-party defendants.

Owens asked the District Court for partial summary judgment that, as a matter of law, the transaction instruments did not create an access easement for the Baches. The Baches filed a cross-motion for partial summary judgment asking the court to conclude, as a matter of law, that the instruments created an easement by express reservation in their favor.

The District Court granted partial summary judgment to the Baches, denied Owens’ motion, and certified its order to this Court as a final judgment under Rule 54(b), M.R.Civ.R The court subsequently denied Owens’ motion for reconsideration.

Owens appeals. Neither his counterclaim nor the third-party actions are part of this appeal.

Did the District Court err in concluding that the Baches retain an easement on the land they sold to Owens?

Our standard for reviewing a grant of summary judgment is the same as that used by the district court. Wild River Adventures v. Bd. of Trustees (1991), 248 Mont. 397, 399-400, 812 P.2d 344, 345. 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. Rule 56(c), M.R.Civ.P.

In this case, the material facts are not in dispute. As to the issue of law, the District Court ruled:

By including the Certificate of Survey number as part of the legal description in the Contract for Deed and Warranty Deed, said certificate is regarded as incorporated in its entirety into said instruments of conveyance as a matter of law.

The court cited § 76-3-304, MCA. That statute, which is part of the Montana Subdivision and Platting Act, provides:

The recording of any plat made in compliance with the provisions of this chapter shall serve to establish the identity of all lands shown on and being a part of such plat. Where lands are conveyed by reference to a plat, the plat itself or any copy of the plat properly certified by the county clerk and recorder as being a true copy thereof shall be regarded as incorporated into the instrument of conveyance and shall be received in evidence in all courts of this state.

Pursuant to the above statute, reference in documents of conveyance to a plat which describes an easement establishes the easement. See Benson v. Pyfer (1989), 240 Mont. 175, 179, 783 P.2d 923, 925.

In divisions of land subject to its surveying requirements, the Montana Subdivision and Platting Act requires that either a “plat” or a “certificate of survey” be filed. Section 76-3-302, MCA. The statute further requires that descriptions of the parcel or tract in instruments of transfer must describe the parcel or tract by reference to the filed certificate or plat. Subdivisions, as defined under the Act, must be surveyed and “platted.” Section 76-3-402, MCA. Other divisions of land must be surveyed and “a certificate of survey” must be prepared. Sections 76-3-401 and 76-3-404, MCA. The division of land in this case was an “occasional sale” as defined at § 76-3-207(l)(d), MCA (1987), which was excepted from most subdivision requirements other than surveying. Therefore, a “certificate of survey’ was required to be filed before the instruments transferring title from the Baches to Owens could be recorded.

“Plat” is defined for purposes of the Act at § 76-3-103(9), MCA:

“Plat” means a graphical representation of a subdivision showing the division of land into lots, parcels, blocks, streets, alleys, and other divisions and dedications.

“Certificate of survey’ is defined at § 76-3-103(1), MCA:

“Certificate of survey’ means a drawing of a field survey prepared by a registered surveyor for the purpose of disclosing facts pertaining to boundary locations.

Owens argues that, as a “certificate of survey” and not a “plat,” the COS filed in this case does not establish an easement pursuant to § 76-3-304, MCA. He cites State ex rel. Swart v. Stucky (1975), 167 Mont. 171, 536 P.2d 762. In that case, a county clerk and recorder refused to accept for filing a survey of a tract of land, on the basis that the survey had not been inspected and approved by the city county planning board. The district court refused to issue a writ of mandamus compelling the clerk to file the document. This Court reversed, ruling that the survey was a “certificate of survey,” not a subdivision “plat” as defined by the Act, and that subdivision review by the city county planning board was,not required before the “certificate of survey” could be filed. Swart, 536 P.2d at 765. In so doing, this Court discussed the difference between a “plat” and a “certificate of survey”:

The terms “certificate of survey,” “plat,” and “subdivision” have important technical meanings that are established by the definition section of the Act. ...
The classification of the instrument as a subdivision “plat” or as a “certificate of survey’ is important since the Act requires different treatment, depending upon the classification....
There is no doubt that appellant’s document is a “certificate of survey” and not a subdivision “plat” as defined by the Act. Its purpose is to establish boundaries and the property description for a deed on an entire single parcel which contains an area greater than the 10 acre requirement established by section 11-3861(12), [R.C.M.,] prior to its amendment to 20 acres in 1974. Furthermore, the proffered document contains no “graphical representation of a subdivision showing the division of land into lots, parcels, streets, and alleys, and other divisions and dedications” within the meaning of section 11-3861(6), [R.C.M.,] which sets forth the definition of a “plat.”

Swart, 536 P.2d at 764-65.

In the case at bar, the COS does more than to establish boundaries and a property description of a single parcel of land. It establishes the division of the land into two parcels, Tract 1 and Tract 2. The COS shows a right of way thirty feet wide along the western boundary of Tract 2 for a “private roadway easement” and a “public utility easement.” Additionally, the COS and attached documents establish that the sale of Tract 2 underwent subdivision review as an “occasional sale” pursuant to § 76-3-207(1)(d), MCA (1987). In contrast to the certificate of survey in Swart, the COS in the present case meets the definition of a “plat” set forth at § 76-3-103(9), MCA.

Moreover, the idea that a map or plat incorporated into an instrument of conveyance can establish an easement predates the definition of “plat” in § 76-3-103(9), MCA. In Majers v. Shining Mountains (1986), 219 Mont. 366, 711 P.2d 1375, the documents at issue were filed before the effective date of the Montana Subdivision and Platting Act. In that case, we cited with approval the following language from Ute Park Summer Homes Ass’n. v. Maxwell Land Gr. Co. (N.M. 1967), 427 P.2d 249, 253:

[W]here land is sold with reference to a map or plat showing a park or like open area, the purchaser acquires a private right, generally referred to as an easement, that such area shall be used in the manner designated.

Majers, 711 P.2d at 1378 (emphasis added).

The purpose of the Montana Subdivision and Platting Act is to promote the public health, safety, and general welfare by regulating the subdivision of land; to prevent overcrowding of land; to lessen congestion in the streets and highways; to provide for adequate light, air, water supply, sewage disposal, parks and recreation areas, ingress and egress, and other public requirements; to require development in harmony with the natural environment; and to require uniform monumentation of land subdivisions and transferring interests in real property by reference to. plat or certificate of survey.

Section 76-3-102, MCA. This purpose would not be furthered by elevating form over substance and ruling that the COS does not establish a road easement because it is denominated as a certificate of survey instead of as a plat.

Owens also relies on this Court’s opinion in Wild River. The bases for our holding in Wild River were that (1) “subject to” language in a document of conveyance does not create an easement, and (2) no easement could be created on the owner’s own land. Wild River, 812 P.2d at 346-47. In the present case, the Baches rely primarily upon incorporation of the COS into the instruments of conveyance, not upon “subject to” language, for creation of the easement. Further, the conveyance from the Baches to Owens results in division of the land into two parcels with two different owners. Our holding in Wild River is therefore inapplicable here.

The COS identifying the easement in this case was filed with the county clerk and recorder, as required by law. The COS identifies the easement clearly and specifically. In addition to the dotted lines showing the scaled location of the easement, the easement is labeled in two places on the COS as “P.R.E.” and “P.U.E.” Those acronyms are defined in the legend of the COS to mean “private roadway easement” and “public utility easement.” Additionally, the easement is labeled in two places as being thirty feet wide.

We conclude that identification of the establishing document as a “plat” pursuant to § 76-3-103(9), MCA, is not a critical element in the creation of an easement through incorporation of a map or plat into documents of sale. We hold that the transaction documents concerning the Baches’ sale of land to Owens establish an easement in favor of the Baches along the western edge of the property sold to Owens, as described in the COS. We therefore affirm the summary judgment entered by the District Court.

JUSTICES HARRISON, TRIEWEILER, HUNT and WEBER concur.

JUSTICE GRAY,

dissenting.

I respectfully dissent from the Court’s opinion which is, in my view, contrary to existing Montana statute and case law. For purposes for clarity, I first set forth the appropriate legal analysis and resolution of the issue presented in this case; that analysis will reflect my overall disagreement with the approach and resolution adopted by the Court. I then focus in on more specific errors in the Court’s reliance on certain authorities.

This case involves an interest in real property which the sellers assert they created in themselves, during the transaction, to the detriment of the purchasers. Given the importance of real property interests, it is imperative that we be both clear and focused in setting forth the issue before us. Here, the narrow issues are these:

(1) Whether showing an easement on a certificate of survey creates, in and of itself, the easement; and
(2) Assuming that it does not, whether such a certificate of survey can be incorporated into the transaction documents via § 76-3-304, MCA, with the result that the incorporation creates the easement.

The Court does not analyze the first issue but apparently answers it in the affirmative through its holding that “the transaction documents ... establish an easement in favor of the Baches along the western edge of the property sold to Owens, as described in the COS.” It so holds at the end of an opinion which primarily addresses and applies the statute at issue here, § 76-3-304, MCA. Thus, despite the quoted holding, the Court appears to answer the second issue in the affirmative as well. Notwithstanding my disagreement with the entirety of the Court’s opinion and result, my biggest concern is with the Court’s lack of analysis and clarity in this important area of property rights.

An easement is a nonpossessory interest in real property. Kuhlman v. Rivera (1985), 216 Mont. 353, 358, 701 P.2d 982, 985. While the definition of an easement has remained constant, this Court has stated the recognized methods of creating an easement by several different means. In Prentice v. McKay (1909), 38 Mont. 114, 118, 98 P. 1081, 1083, we stated that an easement “cannot be created, granted, or transferred except by operation of law, by an instrument in writing, or by prescription.” We recently reiterated that principle in Wild River Adventures v. Bd. of Trustees (1991), 248 Mont. 397, 400, 812 P.2d 344, 346-47. We also have stated that easements can be created by grant, reservation, exception or covenant, by implication or by prescription. Kuhlman, 701 P.2d at 985. In addition, we have recognized the creation of easements by necessity, describing such easements as a subspecies of easements by implication or, as they are sometimes called, implied easements. Graham v. Mack (1985), 216 Mont. 165, 175, 699 P.2d 590, 596.

The thrust of the Prentice/Wild River approach is that easements can be created by an instrument in writing or by operation of law. Of the types of easements recognized in Montana through the Kuhlman/Graham line of cases, easements created by an instrument in writing are those created by express grant, reservation, exception or covenant. Because such easements involve interests in real property, they must be in writing to comply with the statute of frauds. Bruce and Ely, The Law of Easements and Licenses in Land, par. 3.01 (1988 & Supp. No. 1 1994). As is generally the case in construing instruments in writing, the parties’ intentions regarding the creation of an easement should be determined from the language of the instruments; only where that language is ambiguous or uncertain may all of the circumstances surrounding the transaction be considered. See, 25 Am. Jur. 2d Easements & Licenses § 23 (1966); Wild River, 812 P.2d at 346-47.

Easements which are created by operation of law, on the other hand, rather than through instruments in writing, have arisen and been recognized in order to meet particular needs and circumstances. Easements created by operation of law and recognized in Montana are easements by prescription; by implication (sometimes called implied easements or implied easements by reservation; see Woods v. Houle (1988), 235 Mont. 158, 162, 766 P.2d 250, 253); and by necessity. These easements created by operation of law are not favored by courts because they result in depriving people of the use of their property by imposing a servitude based on considerations not constrained by the “instrument in writing” requirement for creating interests in real property; each has specific requisite elements which must be proved before such an easement is established. See, e.g., Woods, 766 P.2d at 252-53.

Here, the Court dispenses entirely with any reference to the type of easement it determines was created in this case. While one might surmise from the lack of analysis that the Court agrees that the easement was not created through the transaction documents on a stand-alone basis and that its result requires the application of § 76-3-304, MCA, its holding suggests otherwise. In any event, the District Court at least implicitly rejected the Baches’ “easement by express reservation” (that is, solely through instruments in writing) theory in concluding that a private roadway easement was created in their favor by “operation of law” via the application of § 76-3-304, MCA. To the extent the District Court rejected that theory, it was correct. Importantly, in this regard, the Baches have abandoned that theory on appeal and argue in support of the District Court’s “operation of law” conclusion. This Court does not bother to state the actual basis of its determination that an easement was created here.

Existing law simply does not support the result reached by the Court. As discussed above, we have recognized only three kinds of easements created by operation of law: easements by prescription, by necessity and by implication. The requisite elements and proofs necessary to establish the creation of such easements, as summarized in Woods, relate in large part to non-writings-related facts and circumstances not discussed or relied on by either the District Court or this Court in resolving the limited issues presented in this case. See Woods, 766 P.2d at 252-53.

The Court’s determination that an easement was created here at least implicitly establishes a new species of easement not supported by Montana law. It is an easement which does not fit within the categories of creation by an instrument in writing or creation by operation of law, as we have recognized those concepts. Rather, the Court appears to establish — its “holding” notwithstanding — a “combined” version of these recognized methods of creating an easement by relying on written instruments and then applying a statute to — or, stated differently, having the “law operate upon” — those instruments. Even assuming our willingness to recognize such an easement, the premise for such an approach necessarily would require the existence of a statute applicable to such facts and intended by the legislature to accomplish such a result. No such statute currently exists.

The simple fact is this: § 76-3-304, MCA, has no application here. Section 76-3-304, MCA, is part of Montana’s Subdivision and Platting Act (the Act). It provides in pertinent part:

Effect of recording complying plat. The recording of any plat ... shall serve to establish the identity of all lands shown on and being a part of such plat. Where lands are conveyed by reference to a plat, the plat itself... shall be regarded as incorporated into the instrument of conveyance ....

We previously have determined that plats and certificates of survey are not the same. In Dep’t of Health v. Lasorte (1979), 182 Mont. 267, 270, 596 P.2d 477, 480, we observed that the Act separately defines the terms “certificate of survey” and “plat.” A certificate of survey is a “drawing of a field survey prepared by a registered surveyor for the purpose of disclosing facts pertaining to boundary locations,” whereas a plat is a “graphical representation of a subdivision showing the division of land into lots, parcels, blocks, streets, alleys, and other divisions and dedications.” Section 76-3-103(1) and (9), MCA. In addition, the purposes and use to be made of the two are different. Lasorte, 596 P.2d at 480-81. Based on these distinctions between a certificate of survey and a plat, we declared void an administrative regulation equating the two. Lasorte, 596 P.2d at 481. Thus, it is clear from the Act and case law that certificates of survey and plats are different instruments. Without so much as a fond farewell, the Court bids adieu to both the legislature’s enactment of separate and distinct definitions and purposes relating to certificates of survey and plats, and its own case law. I cannot agree.

More specifically, I disagree with the Court’s reliance on Benson v. Pyfer (1989), 240 Mont. 175, 179, 783 P.2d 923, 925, for any purpose whatsoever in this case. Benson is factually and legally irrelevant to the case now before us. It involved a seller’s use of representations in a plat, regarding roadways and open common areas, as inducements to purchasers of lots and whether such representations were enforceable by the purchasers against the seller. Neither the facts nor the legal issues of that case have any bearing here. Benson clearly involved a plat to which § 76-3-304, MCA, was indisputably applicable.

Moreover, our reliance in Benson on Majers, also relied on by the Court here, is equally without relevance. The Court correctly reiterates our Majers statement that the reservation of an easement in a subdivision plat creates a covenant enforceable against the seller. Again, the case before us does not involve a plat. Furthermore, the Court concedes the more fundamental irrelevance of Majers here by conceding that Majers predated the legislature’s enactment of the statutory definition of a plat.

Throughout its opinion, the Court focuses on refuting Owens’ arguments. Via this focus, the Court may hope that the reader will miss the total lack of authority to support what it does here. The lack of authority is too clear to be missed.

In this case, the Court ignores both statute and case law to reach its result. While we are free to “amend” our own cases where the law allows or requires it, we ought never to ignore it. Doing so creates enormous difficulties for district courts and practicing lawyers. More importantly, we are not free to ignore valid legislative enactments or twist them beyond recognition to suit ourselves in reaching a result in a particular case.

Finally, the effects of the Court’s decision today will be far-reaching with regard to the confusion it produces in the vitally important area of property rights and the creation of interests in real property. The Court here creates a situation where whether a certificate is a certificate of survey or a plat necessarily will be decided by courts on a case-by-case basis, rather than clearly and cleanly determined pursuant to rules established by the legislature. I cannot agree. I dissent.

JUSTICE NELSON joins in the foregoing dissent of JUSTICE GRAY.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    EDWARD L. HOFMANN, JR., Plaintiff and Respondent, v. DAVID E. GEORGE and MARJORIE F. GEORGE, Defendants and Appellants.
    No. 93-465.
    Decided Oct. 20, 1994.
    51 St.Rep. 1007.
    267 Mont. 292.
    883 P.2d 826.

      For Appellants: Leo Graybill, Jr., Graybill, Ostrem & Crotty, Great Falls.
    For Respondent: Pierre L. Bacheller, Pierre L. Bacheller, Inc., Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

David E. George and Marjorie F. George (the Georges) appeal from a decision of the Thirteenth Judicial District Court, Yellowstone County. The court ruled that a buy and sell contract, wherein the Georges agreed to sell land to Edward L. Hofmann, Jr., was valid; the court farther ordered specific performance of the contract. We affirm.

The dispositive issue on appeal is rephrased as whether the District Court erred in determining that the parties’ buy and sell contract was specifically enforceable.

During 1992, the Georges sought to sell a tract of land they owned which is located between Billings and Laurel, Montana. The land was listed with area realtors, and realtor James Hoffman, located Edward L. Hofmann, Jr. (Hofmann), as an interested buyer in June 1992.

Hofmann made the Georges an offer to purchase the land for $160,000, and the Georges rejected the offer. Approximately one month later, however, the Georges approached Hofmann at Hofmann’s business address and asked if he was still interested in purchasing their land for $160,000. The Georges explained that their contract with the realtors had terminated, and they could now sell the land to Hofmann, avoiding $11,200 in realtor fees.

Hofmann agreed to purchase the land under these conditions. Maijorie George picked up a buy and sell agreement at a local business, typed it out, and both parties signed it on July 29, 1992. The agreement provided, in relevant part, that payment was due as follows:

$1,000.00 earnest money to be applied at closing .. $159,000.00 balance of the purchase price will be paid as follows:, proceeds from loan buyer is acquiring from First Federal Savings and Loan. Sale contingent upon buyer being able to obtain financing.

The parties signed another, supplemental agreement on July 30, 1992, which provided:

DAVID D. and MARJORIE F. GEORGE (Sellers) agree to split with EDWARD L. HOFMANN, Jr. (buyer) any part of the $11,200 that is not paid to the realitors [sic] as commission at time of closing of the property at:
4316 Christinson Rd., Billings, Montana. 59101.
/s/ Mafyorie F. George
/s/ David D. George
/s/ Edward L. Hofmann, Jr.

Hofmann presented the Georges with a $1,000 personal check dated August 1, 1992. He asked the Georges to notify him when they planned to cash it in order to ensure that sufficient funds would be in his personal checking account. The Georges attempted without success to reach Hofmann; they did not cash the check.

Instead, after the Georges had learned that realtors had initiated court proceedings to recover the $11,200 fee, the Georges asserted that the buy and sell agreement was invalid because the check was not valid earnest money. Additionally, the Georges asserted that the contract was not specifically enforceable because it was dependent upon Hofmann obtaining financing, and Hofmann’s lending institution had yet to finalize the financing procedures.

Hofmann asserted that the $1,000 check was valid earnest money and that the only reason financing had not been completed was because his lender’s appraisal agent could not contact the Georges to make an appraisal appointment. Hofmann asserted that the appraiser felt he was “being avoided” by the Georges. The District Court agreed with Hofmann and ordered specific performance of the contract. The Georges appeal.

Did the District Court err in determining that the parties’ buy and sell contract was specifically enforceable?

Reviewing this civil case tried by the court without a jury, we examine whether the court’s findings of fact are clearly erroneous and whether its conclusions of law are correct. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

The Georges make two attacks on the validity of the buy and sell agreement. First, they maintain that Hofmann’s $1,000 earnest money check was insufficient because the check was not cashed, because Hofmann’s personal checking account at times did not have sufficient funds to cover the check and because the check was not tendered at the time the parties signed the contract. Second, the Georges assert that the contract could not be specifically performed because Hofmann’s lending institution failed to finalize the financing process by not performing an appraisal of the property. The Georges’ arguments are without merit.

A personal check is valid consideration. See § 28-2-801, MCA. Here, where the contract stated that “$1,000 earnest money” was due “to be applied at closing,” Hofmann’s check, rendered after the contract was signed, constituted valid consideration.

The courts look to substance over form. Section 1-3-219, MCA. While normally the conditions of a contract which can be instantly performed are to be performed upon the signing of the contract unless otherwise specifically stated, see § 28-3-601, MCA, here we conclude that the District Court did not err in determining that the parties intended to enter into a valid, binding contract at the time Hofmann tendered the $1,000 earnest money check to the Georges. See generally, Ragland v. Sheehan (1993), 256 Mont. 322, 326-27, 846 P.2d 1000, 1003; Keesun Partners v. Ferdig Oil Co. (1991), 249 Mont. 331, 816 P.2d 417. Whether the Georges actually cashed the check is irrelevant to our review of its adequacy.

Concerning their second argument, the Georges essentially attack the validity of the contract itself by attacking the court’s authority to order specific performance. There is no dispute that the equitable remedy of specific performance may be had on a valid contract for the purchase and sale of real property. Section 27-1-411(2), MCA; see also Keaster v. Bozik (1981), 191 Mont. 293, 623 P.2d 1376.

Hofmann asserts that he obtained adequate financing and the only remaining event to occur in order to finalize the financing process is an appraisal of the Georges’property. The appraiser, stated Hofmann, had tried to perform an appraisal with no success.

In its findings of fact, the court noted that

[a]fter execution of the agreement to sell and purchase, [Hofmann] made application for a loan through First Federal Savings and Loan Association; as part of his loan application, he was requested to provide a profit and loss statement for his business; he employed an accountant to prepare such a statement at the cost of Six Hundred and No/100ths Dollars ($600.00); he understood that the only thing left to be done with his loan application was to obtain an appraisal of the property; the appraiser employed by the lending institution called him and asked that he help make an appointment to appraise the property because the appraiser was unable to make arrangements for an appointment with the [Georges] for purposes of the appraisal.

After reviewing the record, we conclude that Hofmann was “able to obtain financing” as required by the buy and sell agreement. We therefore hold that the District Court did not err in determining that the contract was valid and specifically enforceable. See Larson v. Undem (1990), 246 Mont. 336, 805 P.2d 1318.

Affirmed.

JUSTICES HARRISON, WEBER, NELSON and HUNT concur.


author: JUSTICE GRAY

text:
    IN THE MATTER OF THE DENIAL OF THE APPLICATION FOR ISSUANCE OF ONE ORIGINAL (NEW) ON-PREMISES CONSUMPTION BEER/WINE LICENSE, TOWN PUMP OF WOLF POINT, 401 CASCADE, WOLF POINT, ROOSEVELT COUNTY, MONTANA, APPLICANTS: E-Z SUPPLY, INC., Appellant.
    No. 94-096.
    Submitted on Briefs June 24, 1994.
    Decided October 25, 1994.
    51 St.Rep. 1029.
    267 Mont. 298.
    883 P.2d 833.

      For Appellant: Thomas E. Richardson, Attorney at Law, Butte.
    For Respondent: Lawrence G. Allen, Tax Counsel, Montana Department of Revenue, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

E-Z Supply, Inc. (E-Z), an affiliate of Town Pump, Inc., appeals from an order of the First Judicial District Court, Lewis and Clark County, denying its petition for judicial review. We reverse, concluding that the Montana Department of Revenue (DOR) incorrectly interpreted and applied § 16-4-413, MCA, in denying E-Z’s application for an on-premises beer and wine license (liquor license).

On December 22, 1988, E-Z applied to the Liquor Division of the DOR (Liquor Division) for a liquor license for use at Town Pump’s Wolf Point convenience store and filling station. Following a hearing at which protesters testified against the application because of the impact it would have on the community, the hearing examiner issued a proposed decision denying E-Z’s application. E-Z withdrew the application.

On September 15, 1991, E-Z submitted another application for a liquor license for use at the Wolf Point location. In September, 1992, the Liquor Division notified E-Z that the application would be denied pursuant to § 16-4-413, MCA. E-Z requested, and was granted, a hearing. The hearing examiner issued findings of fact, conclusions of law, and a proposed order denying the 1991 application pursuant to § 16-4-413, MCA. The DOR subsequently adopted the findings, conclusions, and proposed order as its final decision.

E-Z petitioned the District Court for judicial review of the DOR’s decision. The District Court denied the petition, concluding that the DOR correctly interpreted and applied § 16-4-413, MCA. E-Z appeals.

The issues before us relate to the interpretation and application of § 16-4-413, MCA. The interpretation and application of a statute to a particular set of circumstances are matters of law. See Minervino v. University of Montana (1993), 258 Mont. 493, 497, 853 P.2d 1242, 1245. An administrative agency’s conclusions of law are reviewed by district courts and this Court to determine whether those conclusions are correct. GBN, Inc. v. Montana Dep’t of Revenue (1991), 249 Mont. 261, 264, 815 P.2d 595, 597; Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

The first issue raised by E-Z is that the DOR erred by retroactively applying § 16-4-413, MCA, to its application filed September 15,1991, prior to the statute’s effective date. Because our holding on the second issue clarifies that a correct interpretation of § 16-4-413, MCA, results in no detriment or prejudice to E-Z, we decline to address this issue, assuming for purposes of this opinion that § 16-4-413, MCA, is applicable to the liquor license application presently before us.

The second issue raised by E-Z is that the DOR’s denial of the 1991 application was based on an incorrect interpretation of § 16-4-413, MCA. E-Z asserts that, under § 16-4-413(1), MCA, the DOR’s determination that E-Z’s application did not present a “substantially different use” precluded further consideration and required the DOR to simply return the application to E-Z. We agree.

Our function in interpreting statutes is to effectuate the intent of the legislature. Minervino, 853 P.2d at 1244. “Our primary tool for ascertaining the legislature’s intent is the plain meaning of the words used.” Sagan v. Prudential Insurance Company of America (1993), 259 Mont. 506, 509, 857 P.2d 719, 722 (citation omitted). “If the legislature’s intent can be determined from the plain meaning of the words used in a statute, we will go no further.” State ex rel. Neuhausen v. Nachtsheim (1992), 253 Mont. 296, 299, 833 P.2d 201, 204.

Section 16-4-413, MCA, sets forth procedures governing the DOR’s processing of certain reapplications for liquor licenses. The procedures are applicable in the event of a previous denial of a liquor license application for the same premises pursuant to § 16-4-405, MCA. Section 16-4-413(1), MCA. Moreover, “[i]f an application is withdrawn after a hearing... in which testimony is received regarding any reason for denial provided in 16-4-405, the effect of the withdrawal is the same as if a final decision had been made denying the application....” Section 16-4-413(2), MCA. In this case, E-Z withdrew its 1988 application following such a hearing and, pursuant to § 16-4-413(2), MCA, the effect of the withdrawal was the same as if the 1988 application had been denied. Thus, the DOR’s processing of E-Z’s 1991 application is governed by the provisions of § 16-4-413, MCA.

Once a previous application has been denied, § 16-4-413(1), MCA, provides that “the department may not consider an application ... for those premises for 5 years unless the department... determines that the proposed use is substantially different from the use that was rejected.” Given the manner in which the statute is structured, it is clear that the “unless” clause in subsection (1) constitutes a condition precedent to the DOR’s further processing of a reapplication filed within five years of the previous denial. Therefore, the DOR must first determine whether the application presents a substantially different use from that rejected in the previous application. In the present case, the DOR determined that E-Z’s 1991 application did not present a substantially different use from that contained in the 1988 application. Thus, the condition precedent to the DOR’s further processing of E-Z’s 1991 application was not satisfied.

Under that circumstance, § 16-4-413(1), MCA, directs that the DOR “may not consider” E-Z’s 1991 application. The plain meaning of the word “consider” is “[t] o fix the mind on, with a view to careful examination .... To deliberate about and ponder over.” Black’s Law Dictionary 306 (6th ed. 1990). By utilizing the word “consider,” the legislature clearly intended to relieve the DOR of the necessity of carefully deliberating over an application filed within five years of a previous denial where the application does not present a substantially different use. Thus, the plain meaning of the phrase “may not consider” is that, once the DOR determines that a subsequent application submitted within the five-year period does not present a substantially different use, it may not further process or evaluate the application.

We conclude that the plain language of § 16-4-413, MCA, precluded any further action on E-Z’s 1991 application after the DOR determined that it did not present a substantially different use. The only action available to the DOR at that point was to return the application without further consideration.

The DOR interpreted § 16-4-413, MCA, as authorizing it to deny E-Z’s 1991 application. It argues that the legislative history of the statute supports its interpretation.

As set forth above, if we can determine the legislature’s intent from the plain language of a statute, we will go no further. Nachtsheim, 833 P.2d at 204. We resort to legislative history only where legislative intent cannot be derived from the plain language of the statute. State ex rel. Roberts v. Public Service Commission (1990), 242 Mont. 242, 246, 790 P.2d 489, 492 (citation omitted). Having concluded that the plain language of § 16-4-413, MCA, does not permit the DOR to further consider or act on a subsequent application absent a “substantially different use” determination, we decline to review the legislative history.

The DOR’s interpretation that § 16-4-413, MCA, authorized it to deny E-Z’s 1991 application was incorrect as a matter of law. As a result, we hold that the District Court erred by denying E-Z’s petition for judicial review.

Reversed and remanded to the District Court for entry of an order directing the DOR to return E-Z’s application.

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


author: JUSTICE HARRISON

text:
    SCOTT A. SANTEE, Petitioner and Appellant, v. THE STATE OF MONTANA, DEPARTMENT OF JUSTICE, MOTOR VEHICLE DIVISION, Respondent and Respondent.
    No. 94-174.
    Submitted on Briefs September 15, 1994.
    Decided October 25, 1994.
    51 St.Rep. 1034.
    267 Mont. 304.
    883 P.2d 829.

      For Appellant: Joseph T. Swindlehurst; Huppert & Swindlehurst, Livingston.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Brenda Nordhmd, Assistant Attorney General, Helena; Jon M. Hesse, Park County Deputy Attorney, Livingston.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Scott A. Santee (Santee) appeals an order of the District Court of the Sixth Judicial District, Park County, suspending his driver’s license. We affirm.

The issues raised on appeal are:

1. Did the District Court err when it held that the State established reasonable grounds to arrest Santee for Driving Under the Influence?

2. Did the District Corut err when it found that the American Bank parking lot is a way of the state open to the public?

At approximately 8:15 p.m. on August 25, 1993, Officer Glen Farrell of the Livingston Police Department was dispatched to investigate a complaint, unrelated to the present case, at the Livingston Bar and Grill. After Officer Farrell investigated the complaint, he was stopped inside the Livingston Bar and Grill by a man who reported that he had seen an extremely intoxicated man walking across the street whom he feared was going to drive away. While Officer Farrell and the witness walked toward Officer Farrell’s police car, the witness pointed out Santee as the intoxicated man he had seen earlier. At that time, Santee was walking towards a truck parked in the American Bank parking lot. As Officer Farrell continued toward his patrol car, two women waved him down and said that the individual getting into the truck in the American Bank parking lot was extremely intoxicated and about to drive away.

Officer Farrell drove his patrol car to the American Bank parking lot where he stopped Santee. Santee had backed his truck out of his parking spot and was starting to pull forward when Officer Farrell stopped him. Officer Farrell arrested Santee for driving while under the influence of alcohol, a violation of § 61-8-401, MCA. Officer Farrell requested Santee to take a breathalyzer test, but Santee refused. Pursuant to Montana’s implied consent law, Officer Farrell confiscated Santee’s driver’s license. See § 61-8-402, MCA.

On September 2, 1993, Santee petitioned the District Court to determine if his driver’s license should be restored. The court set a hearing date for October 12,1993, and ordered that Santee retain his driver’s license and driving privileges prior to its ruling. On October 12,1993, the District Court heard the parties’ arguments. On January 18,1994, the court entered its order suspending Santee’s driver’s license for 90 days. From this order, Santee appeals.

I

Did the District Court err when it held that the State established reasonable grounds to arrest Santee for Driving Under the Influence?

Upon notification of suspension of driver’s license for refusal to submit to a breath, blood, or mine test to detect the presence of alcohol, the defendant may petition the district court for a hearing to determine whether the suspension is proper. See § 61-8-403, MCA. The issues at the hearing are limited by § 61-8-403, MCA, to:

(1) whether the arresting officer had reasonable grounds to believe the following:
(a) that the petitioner had been driving or was in actual physical control of a vehicle;
(b) that the vehicle was on a way of this State open to the public; and
(c) that the petitioner was under the influence of alcohol;
(2) whether the individual was placed under arrest; and

(3) whether the individual refused to submit to a chemical test. Jess v. State, Dept. of Justice, MVD (1992), 255 Mont. 254, 258-59, 841 P.2d 1137, 1140; citing Gebhardt v. State (1989), 238 Mont. 90, 95, 775 P.2d 1261, 1265. The hearing is a civil proceeding, and the petitioner has the burden of proving that the State’s actions were invalid, rather than requiring the State to justify its act of revocation. Jess, 841 P.2d at 1140.

We have determined that for an arrest to be valid, an officer must have probable cause to make an arrest. Jess, 841 P.2d at 1141. We have stated that probable cause is analyzed by determining “if at the time of the arrest the facts and circumstances within the officer’s personal knowledge, or upon information imparted to him by a reliable source, are sufficient to warrant a reasonable person to believe that the suspect has committed an offense.” Jess, 841 P.2d at 1141; citing State v. Ellinger (1986), 223 Mont. 349, 352, 725 P.2d 1201, 1202.

Santee contends that Officer Farrell did not have probable cause since there was no evidence presented at the hearing that Officer Farrell corroborated reports that Santee was intoxicated. In support of this proposition, Santee cites State v. Lee (1988), 232 Mont. 105, 754 P.2d 512, and State v. Sharp (1985), 217 Mont. 40, 702 P.2d 959. In Lee, an officer called for assistance after he pulled two vehicles over and suspected that Lee, the driver of the second vehicle, was intoxicated. A second officer (Officer Grimstad) arrived, performed sobriety tests on Lee, and arrested him for driving under the influence. Lee, 754 P.2d at 513. Lee argued that Officer Grimstad did not have probable cause to arrest him. We held that Officer Grimstad had probable cause because: 1) after performing the sobriety tests, Officer Grimstad personally knew that Lee was intoxicated; and 2) Officer Grimstad obtained knowledge that Lee was driving from a rehable source (the first officer), and this information was corroborated by Lee, who admitted that he had been driving. Lee, 754 P.2d at 515.

In Sharp, an anonymous caller informed the highway patrol that an intoxicated person had driven away from a local bar. The caller gave a description of the vehicle, its license number, and the direction it was travelling. When the responding officer discovered the car stopped in the road with 57 feet of skidmarks behind the car, it started to pull away so the officer pulled the car over. The officer gave the driver a field sobriety test which the driver passed. The officer noticed that Sharp, the passenger, appeared intoxicated. The driver said that he had just taken over the driving for Sharp before the officer stopped the car. The officer contacted the anonymous caller who then identified herself and stated that Sharp was the intoxicated person driving the vehicle when it left the bar. Sharp, 702 P.2d at 962.

We held that the officer had a reasonable suspicion to pull the car over because it matched the informant’s description and was travel-ling in the direction reported by the informant. Sharp, 702 P.2d at 962. Sharp argued that the officer did not have probable cause to continue his investigation after he performed the initial sobriety tests on the driver. We held that the officer had probable cause to arrest Sharp because: 1) the officer observed Sharp in an apparently intoxicated state; and 2) the driver stated that Sharp had been driving, and his statement was corroborated by the caller’s report that Sharp was driving the vehicle when it left the bar. Sharp, 702 P.2d at 963.

Both Lee and Sharp demonstrate that some facts necessary to establish probable cause may come from sources other than the arresting officer and may be corroborated by information from individuals other than the arresting officer. See Lee, 754 P.2d at 515; Sharp, 702 P.2d at 963. In the present case, Officer Farrell received reports from three witnesses that an individual was extremely intoxicated, and they were afraid he would drive in this condition. The information reported by the first citizen informant, that Santee was extremely intoxicated, was corroborated by the other two citizen informants who also informed Officer Farrell that Santee was extremely intoxicated. In addition, all three witnesses were in Officer Farrell’s presence when they indicated that Santee was the intoxicated individual. Information provided by citizen informants is considered presumptively reliable. Jess, 841 P.2d at 1141; citing Sharp, 702 P.2d at 962. Officer Farrell testified that he further investigated by driving to the American Bank parking lot, where Santee pulled out of his parking spot and was about to pull forward into the alley.

Facts and circumstances within Officer Farrell’s personal knowledge (that Santee was in control of his truck in the American Bank parking lot), and facts imparted to him by the three citizen informants (that Santee was intoxicated), were sufficient to warrant a reasonable person to believe that Santee was driving while under the influence of alcohol. Thus, Officer Farrell had probable cause to arrest Santee for that offense. We hold that the District Court did not err in concluding that Officer Farrell had reasonable grounds to arrest Santee.

II

Did the District Court err when it found that the American Bank parking lot is a way of the state open to the public?

Montana’s implied consent law states in relevant part:

(1) Any person who operates or is in actual physical control of a vehicle upon ways of this state open to the public shall be deemed to have given consent, subject to the provisions of 61-8-401, to a test of his blood, breath, or urine for the purpose of determining any measured amount or detected presence of alcohol in his body if arrested by a peace officer for driving or for being in actual physical control of a vehicle while under the influence of alcohol, drugs, or a combination of the two.

Section 61-8-402(1), MCA (1991). Santee was stopped after backing out of his parking space in the American Bank parking lot. He contends that the American Bank parking lot is not a way open to the public, thus he was not subject to the provisions of the implied consent law.

A Montana statute defines “ways of this state open to the public” as “any highway, road, alley, lane, parking area, or other public or private place adapted and fitted for public travel that is in common use by the public.” Section 61-8-101(1), MCA. We examined this statute in City of Billings v. Peete (1986), 224 Mont. 158, 729 P.2d 1268. In Peete, we recognized that § 61-8-101(1), MCA, was patterned after Seattle Traffic Code §§ 11.12.1020 and 11.12.715. Peete, 729 P.2d at 1269. We relied on Washington courts’ interpretations of the Seattle code in determining that the Northern Hotel’s parking garage in Billings was a way of the state open to the public. Peete, 729 P.2d at 1270-71.

Santee contends that Peete is distinguishable because the Northern Hotel parking garage was open to every member of the public who paid a fee to park there, whereas the American Bank parking lot was restricted to bank employees and bank customers. A Washington case interpreting Seattle’s traffic code is again instructive. In City of Seattle v. Tolliver (Wash. Ct. App. 1982), 641 P.2d 719, 721-22, the Washington Court of Appeals determined that a private parking lot, posted with signs declaring that unauthorized vehicles would be impounded, constituted a way open to the public since the lot was accessible to busy intersections, and the lot was often used, without authorization, by patrons of nearby taverns. Santee claims that Tolliver is distinguishable because it is not clear whether the parking lot in that case was a parking lot for hire or strictly a private lot. This distinction is unpersuasive as applied to the present case.

Here, the American Bank parking lot is posted with signs stating that it is a private lot and violators will be towed. Testimony revealed that the lot is commonly used by members of the public who are patrons of nearby taverns rather than bank customers. The only access to the lot is by an alley, but this alley and the American Bank parking lot are in the middle of an active Livingston business district. We hold that the American Bank parking lot is a parking area fitted for public travel and in common use by the public. Therefore, it is within the definition of “ways open to the public” contained in §§ 61-8-101(1), MCA, and 61-8-402(1), MCA. We hold that the District Court did not err in determining that the American Bank parking lot is a way of the state open to the public.

The judgment of the District Court is affirmed.

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


author: JUSTICE NELSON

text:
    THE STATE OF MONTANA, Plaintiff and Respondent, -v-KEITH S. STRECKER, Defendant and Appellant.
    No. 93-122.
    Submitted on Briefs August 4, 1994.
    Decided October 27, 1994.
    51 St.Rep. 1067.
    267 Mont. 311.
    883 P.2d 841.

      For Appellant: Keith Scott Strecker, Deer Lodge, (pro se).
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Billings.
   JUSTICE NELSON

delivered the Opinion of the Cotut.

This is an appeal from a Thirteenth Judicial District Court, Yellowstone County, order denying Defendant Keith S. Strecker’s (Strecker) motion to withdraw his guilty plea. We affirm.

The following are issues on appeal:

I. Did the District Court err in denying Strecker’s motion to withdraw his guiliy plea?

II. Did counsel for the defendant render ineffective assistance of counsel?

III. Was the guilty plea colloquy conducted by the trial court inadequate?

FACTUAL AND PROCEDURAL BACKGROUND

An information and affidavit and motion for leave to file an information were filed by the Yellowstone County Attorney’s Office on November 15, 1990, alleging that Strecker had committed deliberate homicide. On June 14, 1991, Strecker pled guilty to the charge of deliberate homicide, having signed an Acknowledgement of Waiver of Rights by Plea of Guilty on the previous day. The Acknowledgement of Waiver of Rights by Plea of Guilty stated that the County Attorney “has agreed to recommend to the Court a sentence of 50 years in MSP (40 years + 10 for use of a weapon) but I realize that such a recommendation is not binding upon the Court in passing sentence.”

Strecker was sentenced to 60 years for the commission of the offense of deliberate homicide and 10 years for the use of a firearm while engaged in the commission of the offense of deliberate homicide on September 13,1991. Strecker filednotice of his appeal to the Montana Supreme Court from his conviction and sentence on November 18,1991.

On January 15,1992, Strecker filed a motion for an order granting him transcripts, minutes, exhibits and documents in his case. On January 27, 1992, that motion was denied by the District Court because his appeal had not been filed within the appropriate time limitation. He filed a motion for reconsideration on February 6,1992, and that motion was denied on February 7,1992.

Strecker’s appeal to this Court was dismissed on May 5, 1992, for failure to prosecute. Strecker filed a motion to withdraw his guilty plea on June 24, 1992, and a motion for the appointment of counsel to represent him at the hearing on the motion to withdraw his guilty plea and any pending appeal. The Yellowstone County Public Defender’s Office was appointed to represent Strecker in connection with his motion on December 11,1992.

The State filed its response brief to Strecker’s motion to withdraw the guilty plea on January 22,1993, and on that same day, the District Court denied Strecker’s motion. Strecker’s notice of appeal was filed on January 28, 1993. By letter filed on March 16, 1993, Strecker stated that L. Sanford Selevy and Gary E. Wilcox were the attorneys appointed to handle his appeal for him. Wilcox also filed a letter on the same day, stating that his office was not appointed to represent Strecker and that he had advised the court that the statute upon which the defendant was relying for his appeal was not in existence at the time of the sentencing and that he, therefore, believed the trial court’s ruling was proper. This Court remanded the cause back to the trial court for a determination as to whether Strecker was in need of the appointment of counsel.

Counsel was appointed by the trial court on April 5, 1993, and at some point, Gary Wilcox took over the defense of the case. On April 20, 1993, Wilcox filed a motion in the Supreme Court of Montana to withdraw as Strecker’s counsel with a brief stating that he felt there were no meritorious issues to support the appeal. Strecker filed a response to the motion on May 14, 1993, and on June 1, 1993, this Court ordered that the cause be remanded for the appointment of counsel for Strecker in the cause. William F. Hooks, State Appellate Defender, was appointed on June 7, 1993, by the trial court.

On October 28,1993, Hooks filed a motion with this Court for leave to withdraw as counsel, contending that he had been “unable to find any nonfrivolous issue to raise on appeal, after review of the entire record and discussions with appellant Strecker.” Hooks filed the requisite Anders brief. Strecker filed a response to counsel’s motion to withdraw on December 30,1993, and on March 1,1994, this Court granted Hook’s motion to withdraw as counsel.

ISSUE I

Strecker asserts in his motion to withdraw his guilty plea that the District Court failed to apply § 46-12-211(4), MCA, which requires that the court inform the defendant that the court is not bound by the plea agreement; afford the defendant the opportunity to withdraw his guilty plea; and advise the defendant that the disposition of the case, if he persists in the guilty plea, may be less favorable to the defendant than contemplated by the plea agreement. Section 46-12-211(4), MCA (1991). However, the statute cited in Strecker’s motion to withdraw his guilty plea was not in effect at the time that Strecker pled guilty.

The statute provides as follows:

(4) If the court rejects the plea agreement, the court shall, on the record, inform the parties of this fact and advise the defendant that the court is not bound by the plea agreement, afford the defendant an opportunity to withdraw the plea, and advise the defendant that if the defendant persists in the guilty plea, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.

Section 46-12-211(4), MCA. Section 46-12-211, MCA, was enacted during the Legislative Session of 1991. The effective date of the statute was October 1,1991. See 1991 Legislative Review at 405. Strecker pled guilty on June 14,1991, approximately three and one half months before the statute went into effect. Therefore, the statute upon which Strecker bases his argument was not in existence at the time he pled guilty and thus, it can have no bearing whatsoever upon his case.

The applicable statute in effect at the time Strecker pled guilty, § 46-12-204(3)(a) and (b), MCA, provides in pertinent part:

(3)(a) A plea bargain agreement is an agreement between a defendant and a prosecutor that in exchange for a particular plea the prosecutor will recommend to the court a particular sentence. A judge may not participate in the making of, and is not bound by, a plea bargain agreement. If a judge does not impose a sentence recommended by a prosecutor pursuant to a plea bargain agreement, the judge is not required to allow the defendant to withdraw a plea of guilty.
(b) Before a judge accepts a plea of guilty, he must advise the defendant:
(i) of all the provisions of subsection (3)(a);
(ii) of the punishment as set forth by statute for the crime charged;
(ni) that prior to entering a plea of guilty, the defendant and his counsel should have carefully reviewed Title 46, chapter 18, and considered the most severe sentence that can be imposed for a particular crime; and
(iv) that the judge may impose any sentence allowed by law.

Section 46-12-204(3), MCA, specifically states that “the judge is not required to allow the defendant to withdraw a plea of guilty.” The specific purpose of the legislature enacting subsection (3) of § 46-12-204, MCA, was to overturn State v. Cavanaugh (1983), 207 Mont. 237, 673 P.2d 482. State v. Buckman (1989), 236 Mont. 37, 768 P.2d 1361. In Cavanaugh, we concluded that if a trial judge accepts only a portion of a plea bargain, he must allow the defendant an opportunity to withdraw the guilty plea he made. Cavanaugh, 673 P.2d at 485. When the legislature amended § 46-12-204, MCA, by adding subsection (3), it insured that the District Court is not bound by the plea agreement and that if the trial court does not follow the plea bargain, it is not required to allow the defendant to withdraw his guilty plea. Buckman, 768 P.2d at 1364.

This was the State of Montana law at the time Strecker pled guilty in June of 1991, as regards the withdrawal of a guilty plea if the plea bargain was not followed. Section 46-12-211(4), MCA, on which Strecker relies was not in effect at the time that he pled, so his argument that the trial court did not apply the statute is without merit and cannot stand. The District Court did not err in denying Strecker’s motion to withdraw his guilty plea.

ISSUES II AND III

Strecker also argues that his trial counsel was ineffective and that the District Court’s plea bargain colloquy was inadequate. However, these arguments were not presented to the District Court in Strecker’s motion to withdraw his guilty plea and are, therefore, not properly before this Court at this time. We decline to address these issues. State v. Webb (1992), 252 Mont. 248, 251, 828 P.2d 1351, 1353.

AFFIRMED.

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


author: JUSTICE TRIEWEILER

text:
    RON STANLEY, Plaintiff & Appellant, v. ALLAN G. HOLMS, d/b/a GREAT NORTHERN LEASING COMPANY and GARDEN CITY RECONDITIONING; and NEWCO, a corporation, d/b/a GREAT NORTHERN LEASING COMPANY and GARDEN CITY RECONDITIONING, Defendants & Respondents.
    No. 94-245.
    Submitted on Briefs September 8, 1994.
    Decided October 27, 1994.
    51 St.Rep. 1082.
    267 Mont. 316.
    883 P.2d 837.

      For Appellant: Richard Ranney, Williams & Ranney, Missoula.
    For Respondents: Milton Datsopoulos and Michael G. Black, Datsopoulos, MacDonald & Lind, Missoula.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Plaintiff Ron Stanley was hired by defendant Allan G. Holms as manager of two of Holms’ businesses, which for simplicity will be referred to as Great Northern. After Stanley was terminated, he brought this action in the District Court for the Fourth Judicial District in Missoula County to recover wages allegedly due, based on the parties’ alleged agreement to share profits. The District Court granted Great Northern’s motion to dismiss for lack of subject matter jurisdiction because Stanley failed to exhaust administrative remedies. Stanley appeals the District Court’s order dismissing his complaint. We reverse.

The issue on appeal is:

Can a Montana worker sue a former employer in District Court to collect unpaid wages, statutory penalties, and attorney fees, or must the worker first exhaust administrative remedies by filing a claim with the Commissioner of Labor and Industry?

FACTUAL BACKGROUND

Stanley’s complaint alleges that he was hired by Allan G. Holms, d/b/a Great Northern Leasing Company and Garden City Reconditioning; and Newco, a corporation, d/b/a Great Northern Leasing Company and Garden City Reconditioning, as manager of two of the Great Northern businesses on or about June 1,1993, and that Holms agreed to pay Stanley a wage that was to include 20 percent of the businesses net profits, subject to a minimum of $5000 per month. Stanley managed the businesses in June, July, August, and September 1993.

At the end of September, Stanley indicated he was uncomfortable with Great Northern’s business practices and desired to terminate his employment. Great Northern discharged Stanley, effective the end of September 1993.

According to Stanley, even though the 20 percent of profits for June, July, August, and September exceeded $5000, during each month Great Northern paid Stanley only the $5000 minimum. Stanley demanded the profit share, but Great Northern would not pay him.

Stanley filed suit in District Court in which he claimed back wages, a statutory penalty pursuant to § 39-3-206, MCA, and attorney fees and other costs, pursuant to § 39-3-214, MCA.

On February 9,1994, Great Northern moved to dismiss pursuant to Mont. R. Civ. P. 12(b)(1), on the basis that the District Court lacked subject matter jurisdiction. On March 28, 1994, the District Court granted Great Northern’s motion to dismiss. Stanley appeals from the District Court’s order.

DISCUSSION

Can a Montana worker sue a former employer in District Court to collect unpaid wages, statutory penalties, and attorney fees, or must the worker first exhaust administrative remedies by filing a claim with the Commissioner of Labor and Industry?

Here, the relevant inquiry is whether the complaint states facts that if true would vest the district court with subject matter jurisdiction. United States Natl. Bank of Red Lodge v. Montana Dept. of Revenue (1977), 175 Mont. 205, 209, 573 P.2d 188, 190. This is a question of law, therefore, we must determine whether the District Court’s interpretation of the law was correct. In re Marriage of Barnard (1994), 264 Mont. 103, 106, 870 P.2d 91, 93 (citing In re Marriage of Burris (1993), 258 Mont. 265, 269, 852 P.2d 616, 619).

Great Northern argues that when considering the District Court’s jurisdiction to entertain claims for wages we should distinguish between wage claims brought pursuant to Title 39, Chapter 3, Part 2, MCA, and those brought pursuant to Title 39, Chapter 3, Part 4, MCA. Great Northern claims that the plain language found in Part 2 establishes administrative remedies with the Department of Labor, and without exhausting those remedies, an employee may not file a complaint in district court. In support of its argument, Great Northern relies on § 39-3-209, MCA. That section provides as follows:

It shall be the duty of the commissioner of labor to inquire diligently for any violations of this part and to institute actions for the collection of unpaid wages and for the penalties provided for herein in such cases as he may deem proper and to enforce generally the provisions of this part.

Great Northern adds that as a matter of law it is not necessary for an employee to sue when administrative remedies are available but not exhausted. Therefore, Stanley is not entitled to attorney fees or costs, nor are the penalties applicable. Finally, Great Northern contends that because the statutory scheme was amended in 1989 to increase rights in administrative proceedings, the remedy must be exclusive. See §§ 39-3-216 and -217, MCA.

In response, Stanley relies on language found in several sections of Part 2. Section 39-3-206(1), MCA, states:

An employer who fails to pay an employee as provided in this part or who violates any other provision of this part is guilty of a misdemeanor. A penalty must also be assessed against and paid by the employer to the employee in an amount not to exceed 110% of the wages due and unpaid.

(Emphasis added.)

Section 39-3-207, MCA, states:

Any employee may recover all such penalties as are provided for the violation of 39-3-206 which have accrued to him at any time within 18 months succeeding such default or delay in the payment of such wages.

(Emphasis added.)

Section 39-3-208, MCA, states:

Any contract or agreement made between an employer and an employee the provisions of which violate, evade, or circumvent this part is unlawful and void, but the employee may sue to recover the wages earned, together with the penalty specified in 39-3-206 or separately to recover the penalty if the wages have been paid.

(Emphasis added.)

Section 39-3-214, MCA, states:

(1) Whenever it is necessary for the employee to enter or maintain a suit at law for the recovery or collection of wages due as provided by this part, a resulting judgment must include a reasonable attorney’s fee in favor of the successful party, to be taxed as part of the costs in the case.
(2) Any judgment for the plaintiff in a proceeding pursuant to this part must include all costs reasonably incurred in connection with the proceeding, including attorneys’ fees.
(3) If the proceeding is maintained by the commissioner, no court costs or fees are required of him nor is he required to furnish any bond or other security that might otherwise be required in connection with any phase of the proceeding.

(Emphasis added.)

Stanley contends that §§ 39-3-206 and -208, MCA, clearly allow an employee to sue directly in district court since the statutes do not mention the Commissioner of Labor. Also, § 39-3-214, MCA, indicates that the Commissioner’s role is discretionary and cumulative. Stanley also relies on the history of the wage enforcement statutes which did not originally provide for administrative action. We agree with Stanley’s statutory interpretation.

To determine whether or not Stanley must exhaust administrative remedies, we look first to the statutory language, and where that is unclear, to legislative intent. See Boegli v. Glacier Mountain Cheese Co. (1989), 238 Mont. 426, 429, 777 P.2d 1303, 1305.

The language in § 39-3-206(1), MCA, states that a penalty is to be assessed against and paid by the employer to the employee if the employer violates statutory provisions; for example by failing to pay the employee his or her wages. This provision suggests that an employee may sue the employer in district court. If the department pursues an administrative proceeding, it collects the wages and attempts to pay the wages to the entitled claimant. In administrative proceedings, the employer does not pay the employee directly. See § 39-3-213, MCA.

In addition, the statutes do not expressly restrict suits to the administrative process. Rather, § 39-3-209, MCA, provides that the Commissioner shall inquire diligently for violations of this part and sue for collection of unpaid wages and penalties “in such cases as he may deem proper and to enforce generally the provisions of this part.” Section 39-3-211, MCA, states that if the Commissioner determines that employees have wage claims, he shall, if the employee files a written request, take an assignment of the claim in trust for the employee and may maintain any proceeding to enforce the claim. This language indicates that an employee can, but is not required to, seek redress through the Department of Labor and Industry, and the Commissioner’s duty to file suit is discretionary.

The legislative history of Part 2 supports these inferences drawn from the statutory language.

In testimony found in Chapter 40 of the 1967 Session Laws, Mr. Emmons, then Commissioner of Labor and Industry, requested statutory amendments to increase the Commissioner’s power. At a committee meeting, he was asked what, authority the proposed amendment gave him, and he responded that it would grant him the authority to sue the employer. Mr. Emmons stated that he had numerous complaints from unpaid workers, and mentioned that the law was clear regarding when wages should be paid, but did not grant the Commissioner power to enforce the law. He pointed out that, therefore, many cases were dropped because workers could not afford an attorney to file a civil suit. The committee minutes indicate that the remedy was cumulative, i.e., the amendment was designed to grant the Department authority so it could sue on behalf of employees who could not afford an attorney. See Minutes, Legislative Hearing S.B. 27, February 6,1967, at 1. As a result, under the current statutes, the Commissioner, in cases he “deems proper,” may sue to collect unpaid wages. Section 39-3-209, MCA.

The other statutory provisions and administrative rules that Great Northern claims require a claimant to exhaust administrative remedies deal mainly with the Commissioner’s powers once the administrative process is pursued. None of the statutes expressly state that administrative proceedings are exclusive. Sections 39-3-209, -211, -213, -216, and -217, MCA, set forth the procedures and powers of the Commissioner to collect and dispose of wages. Great Northern claims that recent amendments to §§ 39-3-216 and -217, MCA, provide additional administrative remedies, indicating they must be exclusive. However, neither do we find any language in the statutory amendments or their legislative history to suggest that the administrative remedies provided by Part 2 are exclusive.

Great Northern cites numerous decisions for the proposition that where administrative remedies are expressly provided, a claimant must exhaust them before seeking judicial review. Stanley, on the other hand cites several cases in which wage claims were filed in district corut and considered without apparent exhaustion of administrative remedies. However, neither the exhaustion cases cited by Great Northern, nor the prior wage claim cases cited by Stanley, dealt with the precise issue presented here.

More on point, is our decision in Boegli, 777 P.2d 1303. In Boegli, the plaintiffs sued the defendant for overtime hours pursuant to § 39-3-405, MCA. The issue in that case was whether plaintiffs who were denied overtime compensation must seek relief exclusively from the Commissioner of Labor under Title 39, Chapter 3. The defendant moved to dismiss on the basis that the plaintiffs had failed to exhaust their administrative remedy. The district court granted the defendant’s motion and dismissed the case. We reversed, and concluded that § 39-3-408, MCA, was clear and unambiguous in its designation of cumulative remedies. Boegli, 777 P.2d at 1305-06.

In Boegli, we relied on the cumulative language of § 39-3-408, MCA, for our conclusion that administrative remedies are not exclusive. For that reason, Great Northern argues that the cumulative remedy language has no bearing on this case which is brought under Part 2.

Although Boegli dealt with Part 4, this Court did not make an express distinction between Part 2 and Part 4. Nor is any distinction warranted when the entire statutory scheme in Title 39, Chapter 3, is considered. For example, § 39-3-408, MCA, which provides for cumulative remedies, refers to the remedies provided for in Part 4 at § 39-3-407, MCA. That section provides that:

Enforcement of this part shall be treated as a wage claim action and shall be pursued in accordance with part 2 of this chapter, as amended. This part may also be enforced in accordance with part 5 of this chapter for the benefit of certain employees in the mineral and oil industry. The commissioner may enforce this part without the necessity of a wage assignment.

In other words, the only remedies provided for in Part 4 are those set forth in § 39-3-407, MCA, which incorporates those remedies established in Part 2. Therefore, when § 39-3-408, MCA, refers to •cumulative remedies, it necessarily refers to the remedies provided for in Part 2.

Based on the statutory language of Title 39, Chapter 3, its legislative history, and our decision in Boegli, we conclude that a wage claimant pursuant to Title 39, Chapter 3, Part 2, may either seek administrative remedies through the Department of Labor and Industry or file his or her claim directly in district court. Therefore, the District Court’s order dismissing Stanley’s claim is reversed and this case is remanded to the District Court for further proceedings consistent with this opinion.

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