text:
    JOHN ROOKHUIZEN, Plaintiff and Appellant, v. BLAIN’S MOBILE HOME COURT, INC., a Montana corporation, Defendant and Respondent.
    No. 88-300.
    Submitted on Briefs Dec. 9, 1988.
    Decided Jan. 27, 1989.
    767 P.2d 1331.

      Michael M. Morse, Billings, for plaintiff and appellant.
    Jarussi & Bishop, Gene R. Jarussi, Billings, for defendant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Appellant appeals the order and judgment of the Thirteenth Judicial District, Yellowstone County, granting respondent’s motion for a directed verdict at the close of plaintiff’s case-in-chief. We affirm the judgment of the District Court and award costs and assess damages in the amount of $200 against counsel for appellant.

This case arose after a fire destroyed appellant’s mobile home which was located in Blain’s Mobile Home Court, Inc. (Blain’s). Appellant had moved the mobile home into the court on or about April 1, 1982. He signed and completed an application for rental of a mobile home space, a rental agreement, and acknowledged receipt of rules and regulations governing the agreement. On the evening of August 19, 1982, appellant returned to his mobile home. Upon entering the mobile home he observed smoke and flames around an outlet in the kitchen. He left the mobile home, requesting his wife to go to the neighbors and call the fire department. He then went next door to get a garden hose with which to fight the fire. Appellant testified he almost had the fire out when the kitchen area erupted in flames, forcing him out of the home. When the neighbors called a private fire company, they were told the fire company did not cover the mobile home court anymore. They then called Blain’s office to summon the volunteer fire service.

The volunteer fire service arrived approximately fifteen minutes later. The first pump on the fire truck would not start so the second pump was started. This pump ran only a few minutes before it ran out of gas. More gas was obtained and the pumping resumed only to have the truck run out of water within a few minutes. Water was then added to the tank using garden hoses. By the time the fire was extinguished the mobile home was extensively damaged in the kitchen and living room areas with extensive smoke damage throughout.

A second fire occurred early the next morning, causing more damage to the living room, first bedroom and other areas. The volunteer fire department also extinguished this second fire. The insurance adjuster for the appellant who examined the mobile home on August 20, 1982, considered it a total loss.

Appellant contends the extent of the damage was due to negligence on the part of the mobile home court in its maintenance and operation of the volunteer fire department, and its failure to provide adequate fire protection for the residents of the mobile home court. Specifically they allege that Blain’s was negligent for:

(1) terminating the O’Donnell Fire Service;

(2) assuring the appellant that they provided their own service;

(3) providing the inadequate equipment and inadequate training of the volunteer fire service;

(4) allowing the pumps on the fire truck to be nonfunctional and the water tank nearly out of water;

(5) one of the volunteer fire fighters breaking out the windows in the mobile home causing the fire to spread faster into other areas; and

(6) the fact that the fire was not completely extinguished before the fire fighters left the scene resulting in the second fire in the early morning hours.

Prior to trial the respondent moved for summary judgment on all counts. The judge having jurisdiction over the case at that time granted the motions for summary judgment on two counts of fraudulent, malicious and oppressive conduct by the respondent in failing to deal in good faith, given the lack of equal bargaining power between the parties. The case then proceeded to trial. At the close of the appellant’s case-in-chief the respondent moved for a directed verdict on all of the remaining counts. After hearing arguments on the motion the court granted the motion to dismiss all five remaining counts. From this order and judgment granting the motion for directed verdict, appellant appeals.

Appellant presents four issues which the respondent rephrases into a single issue. We feel the respondent’s characterization of the four issues as one is proper and adopt it as the issue before this Court.

Was it error for the District Court to grant Blain’s motion for a directed verdict?

We will first consider whether the trial court committed reversible error by holding that respondent Blain owed no duty to appellant Rookhuizen to provide fire protection services.

Appellant alleges two separate claims, one in contract and one in negligence. Having examined the evidence introduced at trial this Court finds, as did the District Court, that the appellant failed to establish a prima facie case on either claim. To establish the contractual claim, appellant had to introduce evidence proving a meeting of the minds between the parties to provide fire services on the part of the mobile home court before a contractual obligation would arise. Chadwick v. Giberson (Mont. 1980), [190 Mont. 88,] 618 P.2d 1213, 1215, 37 St.Rep. 1723, 1725-1726. At trial, appellant introduced the rental agreements the parties executed when the appellant moved his mobile home onto the court. However, neither the application nor the agreement itself included a contractual obligation on the part of the court to provide fire services to the appellant. The rules and regulations, referred to in the rental agreement and introduced by respondent at trial, also did not contain any reference to fire protection services. Appellant testified that he thought the rules and regulations he received contained something dealing with fire protection. However, the appellant was unable to produce this differing version of the rules and regulations as they had been destroyed in the fire. In light of the inconclusive and unconfirmed nature of the appellant’s statements and in light of clear written evidence to the contrary, the District Court was correct in its finding that no contractual obligation to provide fire services existed between the parties.

The second claim of negligence requires appellant to prove the existence of a duty owed by the respondent, a breach of that duty and damages caused by the breach of the duty. R.H. Schwartz Construction Specialists v. Hanrahan (1983), 207 Mont. 105, 107, 672 P.2d 1116, 1117. The District Court found that appellant failed to establish a duty on the part of Blain’s to supply fire protection services. As previously stated, the rental agreements and rules and regulations did not contain a duty on the part of the mobile home court to provide appellant with fire protection services. Therefore it was necessary for the appellant to prove that the mobile home court had a duty as established by statute or by common law.

The appellant claimed the mobile home court violated the Montana Residential Landlord and Tenant Act of 1977, §§ 70-24-101 through —442, MCA, (the Act) by failing to “keep all common areas of the premises in a clean and safe condition.” Section 70-24-303(c), MCA. However, the appellant provided no justification for finding that the Act requires mobile home court owners to provide fire protection services. While § 70-24-105, MCA, does extend the principles of law and equity relating to safety and fire prevention to the Act, the appellant failed to introduce evidence showing what types of prevention or standards were applicable to the respondent.

Appellant claims the District Court erred when it refused to allow appellant’s expert witnesses to testify regarding standards it claimed the volunteer fire department was obliged to obey. The court consistently sustained the defendant’s objections regarding testimony on the National Fire Protection Association’s (NFPA) standards as irrelevant and lacking foundation. The appellant failed to lay the proper foundation showing the standards created a duty on the part of the respondent to provide fire protection. We note the transcript indicates the trial judge repeatedly attempted to aid appellant’s counsel by informing him of this necessary foundational requirement, to no avail. Upon counsel’s failure to produce authority showing the standards were applicable, the court was left with no recourse, but to exclude testimony upon the NFPA standards.

Appellant also fails to produce any case law which would extend a duty to the mobile home court’s owner to provide fire protection services. Appellant does cite case law which establishes a duty for landlords in general to exercise ordinary care in the management of the premises to avoid exposing persons thereon to unreasonable risk of harm. Corrigan v. Janney (Mont. 1981), [192 Mont. 99,] 626 P.2d 838, 841, 38 St.Rep. 545, 549. Also when a property owner’s affirmative acts increase an existing hazard or create a new hazard, that property owner may be held liable. Cereck v. Albertsons’ Inc. (Mont. 1981), 195 Mont. 409, 637 P.2d 509, 511, 38 St.Rep. 1986, 1989. Appellant claims the prior case of Parrish v. Witt (1977), 171 Mont. 101, 555 P.2d 741, extends this theory to the mobile home park situation. Unfortunately, appellant, hinges this duty upon Blain’s alleged affirmative action of canceling the prior professional fire service and implementing another fire service under Blain’s exclusive control.

The evidence which appellant introduced at trial failed to prove such an affirmative action was taken by Blain’s. Here evidence showed Blain’s acquiesced to the will of the majority of the tenants to terminate the existing professional services in favor of a volunteer service. While Blain’s did contribute the storage shed, parts of the fire truck, and paid for some of the truck’s repairs, it did so as the owner of 25 of the 217 mobile homes in the park. No evidence showed it exercised exclusive control over the service. As the appellant failed to prove Blain’s was responsible for the service, the District Court was justified in holding that evidence did not indicate any duty owed, and thus respondent could not have been negligent.

The law with regard to directed verdicts in this state is well established. The court shall view the evidence presented by the opponent to the motion, in a light most favorable to the party opposing the motion. In light of that consideration of the evidence, it must follow as a matter of law that the only result possible is the result sought by the moving party. Lawlor v. County of Flathead (1978), 177 Mont. 508, 513, 582 P.2d 751, 754.

“Generally directed verdicts are not favored by the courts. LaVelle v. Kenneally (1974), 165 Mont. 418, 529 P.2d 788. A cause should never be withdrawn from the jury unless the conclusion from the facts advanced by the moving party follows necessarily, as a matter of law, that recovery can, as here, or cannot be had under any view which can reasonably be drawn from the facts which the evidence tends to establish. [Citations omitted.] A corollary rule is that where reasonable men might differ as to the conclusions of fact to be drawn from the evidence viewed in the light most favorable to the party against whom the motion is made, a jury question is presented, and resolution by way of a directed verdict is improper. Parini v. Lanch (1966), 148 Mont. 188, 418, P.2d 861.”

Lawlor, 582 P.2d at 754. As this Court has previously stated regarding the related Rule 50(b), M.R.Civ.P., motion for judgment notwithstanding the verdict:

“If a prima facie case is made out, the motion should be denied. Motions made pursuant to Rule 50(b), M.R.Civ.P., cannot be granted if there is substantial conflict in the evidence. Like any form of directed verdict it rests on a finding that the case of the party against whom it is directed is unsupported in some necessary particular.”

Nicholson v. United Pacific Insurance Co. (Mont. 1985), [219 Mont. 32,] 710 P.2d 1342, 1345, 42 St.Rep. 1822, 1826, citing Jacques v. Montana National Guard (1982), 199 Mont. 493, 649 P.2d 1319. Having previously found appellant failed to prove a duty existed to establish a prima facie case, we find the District Court was correct in granting respondent’s motion for directed verdict.

Attorney’s Fees

Respondent seeks attorney’s fees from appellant’s counsel for this appeal pursuant to Rule 32, M.R.App.P. That Rule allows this Court to award damages when the Court is satisfied from the record and the presentation of the case on appeal that the appeal was taken without substantial or reasonable grounds. It is not the position of this Court to place hurdles in the appeal process which discourage a party from taking a valid appeal. However, this case presents several reasons for imposing sanctions. Here, counsel for appellant was repeatedly informed by the trial judge of the need to establish a duty owing to him by the respondent. Upon failing to present evidence of such a duty, the trial judge was left with no alternative but to grant the defendant’s motion for a directed verdict.

We further note that appellant’s brief does not contain a statement of the case (Rule 23(a)(3), M.R.App.P.), citations to authority for numerous contentions (Rule 23(a)(4), M.R.App.P.), nor citations to pages of the record relied upon (Rule 23(e), M.R.App.P.). In addition we note a failure to accurately quote case law, commissioners’ comments and the record, as pointed out in the respondent’s brief. For the foregoing reasons, we assess damages in the amount of $200 to the respondent.

Affirmed and remanded for further proceedings in compliance with this opinion.

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


source: Caselaw Access Project

author: MR. JUSTICE HUNT

license: Public Domain

text:
    In the Matter of L.W.K., D.E.K., A.J.K., Youths in Need of Care.
    No. 88-413.
    Submitted on Briefs Dec. 9, 1988.
    Decided Jan. 27, 1989.
    767 P.2d 1339.

      Jeffrey T. Renz, Billings, for appellant.
    Marc Racicot, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Harold Hanser, County Atty., Greg S. Mullowney, Deputy County Atty., Damon L. Gannett, Olsen, Christensen & Gannett, Billings, for respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

The District Court of the Thirteenth Judicial District, Yellowstone County found that the best interests of L.W.K., D.E.K., and A.J.K., minor children, were to terminate their natural father’s parental rights. George K., the father, appeals. We affirm.

The issues raised on appeal are:

(1) Whether the District Court erroneously placed the burden of proof on the natural father when determining whether the court-approved treatment plan was successfully completed.

(2) Whether the court-approved treatment plan devised for the natural father, George K., was inappropriate as a matter of law because of allegations that the State failed or refused to perform its tasks under the plan.

George K. and Norma H. were married May 6, 1969 and are the natural parents of five children. Two of the five children were emancipated prior to this appeal. Throughout the marriage, George worked primarily as a musician and as a laborer as the opportunities arose. He was generally unemployed during the winter months. George managed the finances for the family, which generally lived in varying degrees of poverty and in homes that ranged from untidy to filthy.

In November, 1978, George pled guilty to aggravated assault of his two youngest children who were then three and four years of age. After this incident, Norma left the family residence with the five children and filed for dissolution of her marriage. In October, 1979, George’s and Norma’s marriage was dissolved, with Norma receiving custody of the children and George receiving reasonable visitation. Norma was not granted child support at that time because George was disabled and unemployed.

From the time of separation in May, 1978, Norma and the children moved several times and finally settled in a house without water or heat. Concern for the children emerged from several sources, including the school, the Big Brothers and Sisters program, and juvenile authorities. Norma eventually consented to place the children in foster care and to commence an evaluation of herself and the children. After the evaluations, Norma attempted to care for the children with welfare assistance and supervision. She worked two jobs in an effort to support herself and the children, but after a trial period, she concluded that the situation was not in the best interests of the children. The Montana Department of Social and Rehabilitation Services (SRS) sought and was granted, with Norma’s consent, temporary custody of the children.

Throughout this time, George lived first with his mother, then a girlfriend, and then finally with another girlfriend, Jean Z., and her three children. George and Jean were married in February, 1984. During this time, George visited his children at random and occasionally babysat for them. George was thus aware of the conditions under which his children lived in the various locations.

In May, 1984, Norma, on her own volition and after discussing the possibility of adoptions through SRS, signed relinquishments as to the three youngest children — L.W.K., D.E.K. and A.J.K. George did not agree to such an action and therefore SRS considered granting custody of the three youngest children to George, to live in a home with him and his new wife, Jean. However, in March, 1984, one of Jean’s children, D.Z., then twelve years of age, was discovered to have a burn on his foot that SRS suspected was a result of deliberate abuse by George. SRS investigated the matter and found the home of George and Jean to be very unkempt and unclean. In an effort to make improvements, George and Jean entered a service/ treatment agreement with SRS. Neither party found the results satisfactory and, pursuant to the request of George’s attorney, the effort was discontinued.

In October and December, 1984, another social worker from SRS attempted to establish service/treatment programs with George and Jean to determine whether to recommend placement of George’s three youngest children in their home. Failure again resulted and SRS then filed a petition to secure permanent custody of the three youngest children. George opposed the petition.

The District Court found that the children were youths in need of care. In making this determination, the court relied on many factors, including the 1984 injury to Jean’s child, D.Z.; George’s failure to provide for the children even though he was aware of their dire needs and had an ability to respond; George’s lack of any real interest in having custody of the children; his psychological abuse of the children; and his lack of taking voluntary steps to improve himself or to serve the best interests of the children. The court then noted that the criteria for termination of a parent-child legal relationship are set forth in § 41-3-609(1), MCA. The pertinent portion of this statute for this case reads:

“(1) The court may order a termination of the parent-child legal relationship upon a finding that the circumstances contained in subsection (l)(a), (l)(b), or (l)(c) . . .:”

“(c) The child is an adjudicated youth in need of care and both of the following exist:

“(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and

“(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time (emphasis added).” The court then found that neither of the two treatment plans suggested by SRS were, as required by the statute, approved by the court. The court therefore held SRS’s request for permanent custody in abeyance, pending implementation of a court-approved treatment plan and receipt of evidence indicating whether George successfully complied with the plan. A court-approved treatment plan was adopted on April 14,1986 for a six month period beginning May 1, 1986.

On March 3, 1988, after a hearing was held, the District Court found that George did not successfully comply with the treatment plan implemented by the court on April 14, 1986. In making this determination, the court found that George did not comply with several of the required tasks, including meeting regularly with Dr. Dee Woolston, a therapist; meeting with Sally Brewer, D.E.K.’s therapist, on a scheduled basis; completing a series of parenting classes; visiting A.J.K. and D.E.K.; establishing contact with L.W.K.; and providing a home large enough to accommodate all the children. The District Court therefore found that terminating the parental rights of George is in the best interests of the children and granted permanent legal custody of the children to the Montana Department of Family Services with authority to assent to their adoption. The court also concluded that, if possible, the best interests of D.E.K. and A.J.K. will be served if George and Norma remain in contact with them.

The first issue raised on appeal is whether the District Court erroneously placed the burden of proof on the natural father when determining whether the court-approved treatment plan was successfully completed.

When determining that George failed to comply with the court-approved treatment plan, the District Court stated throughout its Findings of Fact and Conclusions of Law that “George failed to show that he complied ...” George argues that when terminating parental rights, the State has the burden of proof and must show its case by clear and convincing evidence. George therefore argues that the District Court erroneously placed the burden of proof on him, the natural father, as evidenced by these statements.

Procedures employed by a state, seeking to terminate the relationship between a parent and a child, must meet the requisites of the Due Process Clause of the Fourteenth Amendment. Lassiter v. Dept. of Social Services (1981), 452 U.S. 18, 24-32, 101 S.Ct. 2153, 2158-62, 68 L.Ed.2d 640. This Court also recognizes that depriving natural parents of the custody of their children constitutes an extreme invasion by the State into an individual’s privacy. In the Matter of Doney (1977), 174 Mont. 282, 285, 570 P.2d 575, 577.

The criteria for terminating parental rights in this state are set forth in § 41-3-609, MCA. The specific provision under which the court terminated George’s parental rights states that the court must find that the children are youths in need of care, the parents have not complied with an appropriate court-approved treatment plan, and the parents’ conduct or condition rendering them unfit is unlikely to change within a reasonable time. Section 41-3-609(1)(c), MCA. In the case, In the Matter of J.L.B. (1979), 182 Mont. 100, 594 P.2d 1127, this Court held the standard of proof required when terminating parental rights is “clear and convincing.” J.L.B., 182 Mont. at 116-17, 594 P.2d at 1136-37. The United States Supreme Court has subsequently held that when terminating parental rights a “clear and convincing evidence” standard of proof adequately satisfies the Due Process Clause of the Fourteenth Amendment. Santosky v. Kramer (1982), 455 U.S. 745, 769-70, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599.

The parent always has the responsibility to comply with the treatment plan. When the State petitions to terminate parental rights — a right deemed essential by the United States Supreme Court, see Meyer v. Nebraska (1923), 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 — the burden falls on the State to prove by clear and convincing evidence all the elements necessary to terminate a parent’s right under the appropriate statute. Under § 41-3-609(1)(c), MCA, the State must therefore prove by clear and convincing evidence that the child is a youth in need of care, that the parent did not comply with a court-approved treatment plan, and that the condition will not change within a reasonable time.

While the District Court suggested that the burden of proof was on the natural father, George, to show by clear and convincing evidence that he did not comply with the court-approved treatment plan, the record clearly indicates that the State carried this burden. The State submitted reports and brought forth the witnesses which testified on matters upon which the court based its finding that George did not comply with the treatment plan. We therefore hold that the State met its burden of showing that George did not comply with the treatment plan by clear and convincing evidence.

The second issue on appeal is whether the court-approved treatment plan devised for the natural father, George K., was inappropriate as a matter of law because of allegations that the State failed or refused to perform its tasks under the plan.

George notes that under the treatment plan, tasks were established for SRS as well as George. George then argues that SRS refused to carry out its tasks, and therefore the treatment plan was unrealistic. In his argument, George states that he understood that after his one meeting with Dr. Woolston, he did not need to see Dr. Woolston again; that SRS refused to assist in establishing a regular schedule of appointments with Sally Brewer and in finding a parenting course with a “more realistic schedule;” that SRS failed to keep appointments and inadequately informed George about his progress. George therefore argues that if SRS fails or refuses to perform its part of the treatment plan, contributing to the parents’ failure of the plan, then a treatment plan should be inappropriate as a matter of law.

We disagree with George’s assertion that SRS failed or refused to perform its tasks under the treatment plan. The District Court had the advantage of observing the demeanor of the witnesses and assessing their credibility and therefore was in the best position to resolve conflicts in the evidence. Weyler v. Kaufman (1981), 196 Mont. 132, 136, 638 P.2d 393, 396. While conflicting evidence may exist, this Court will not set aside the District Court’s findings of fact unless they are shown to be clearly erroneous. Rule 52(1), M.R.Civ.P.

In the present case, the District Court noted the conflicting evidence between George and Dr. Woolston, and found that George felt, after one meeting with Dr. Woolston, that he did not need therapy with Dr. Woolston. Likewise, the court found that George attended only twenty-three of the thirty-five scheduled meetings with Sally Brewer, George’s son’s therapist, but did not, as required by the plan, inform Sally Brewer that he would be missing any meetings nor did he provide a reasonable excuse. The court also found that George did not seek nor require any assistance in setting up the appointments with the therapists, but rather showed a general lack of interest in attending these meetings and in providing his children with the necessities of life. The agency’s counter task for this provision stated that the agency is “to assist in establishing a regular schedule of appointments . . . with the therapists ...” (Emphasis added.) While the State was responsible to assist George, the State was not required to force George to attend therapy with Dr. Woolston or to attend meetings with his son’s therapist.

In light of the above, we conclude that George’s basic premise, that the State failed or refused to perform its tasks under the treatment plan, lacks merit. We therefore need not determine whether a court-approved treatment plan is inappropriate as a matter of law when the State fails or refuses to perform its tasks and affirm the District Court’s decision to terminate George’s parental rights in regards to L.W.K., D.E.K. and A.J.K.

Affirmed.

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


author: MR. JUSTICE GULBRANDSON

text:
    MARION LORASH, Plaintiff and Appellant, v. LARRY D. EPSTEIN, and James C. Nelson, d/b/a Werner, Nelson & Epstein, Defendants and Respondents.
    No. 88-494.
    Submitted on Briefs Dec. 16, 1988.
    Decided Jan. 27, 1989.
    767 P.2d 1335.

      Sweeney & Healow, Kevin T. Sweeney, Billings, for plaintiff and appellant.
    Floyd D. Corder, Alexander & Baucus, Great Falls, for defendants and respondents.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Appellant appeals the order of the Ninth Judicial District Court, Glacier County, Montana, granting the defendant’s motion for summary judgment upon finding plaintiff presented no material facts proving that the defendants committed legal malpractice. We affirm.

Appellant, Marion Lorash, the owner of a glass business in Cut Bank, Montana, entered into a partnership with one Chad Standish to operate an auto repair business in Browning, Montana. The partners contacted Wilbur Werner, a law partner in the firm of Werner, Nelson and Epstein, for the purpose of drafting a partnership agreement. The partnership agreement was prepared and executed in March of 1982. The partners constructed a building, in which they intended to operate the auto repair business, on land owned by Standish. The partnership began using the building for the auto repair business in August, 1982. By December, 1982, the partners were aware that the business was not going to succeed. They discussed ways in which the appellant could protect his interest in the partnership. They decided that the best way would be for the appellant to file a lien against the building and the land on which the building stood. In December of 1982 or January of 1983, appellant contacted defendant Epstein for the purpose of securing his interest in the labor and materials contributed to the building. Defendant Epstein agreed to prepare a mechanic’s lien which would secure plaintiffs interest. Mr. L'orash provided a schedule of the labor and materials he supplied for the building and a property description. After appellant supplied the necessary data, defendant Epstein drafted the mechanic’s lien which was then filed on March 18, 1983. Nothing further happened regarding the mechanic’s lien until December, 1984, when the appellant was contacted regarding an incorrect legal description on the mechanic’s lien which affected another person’s property. Appellant contacted the defendant Epstein, who determined from an examination of the mechanic’s lien statute and conversations with the title company manager that there was no problem regarding the validity of the lien. This information was communicated to the appellant.

In March or April of 1985, appellant was notified that Mr. Standish had filed bankruptcy. Concerned with the effect of the bankruptcy on the mechanic’s lien, appellant then contacted defendant Epstein. After consultation with his partner Mr. Nelson, defendant Epstein informed the appellant that due to a conflict of interest he was unable to represent him in foreclosing the lien. The conflict arose due to defendant Nelson’s position as the county attorney and Mr. Epstein’s position as deputy county attorney, and the fact the county attorney’s office was conducting an investigation in which the appellant was involved.

The appellant then contacted another attorney in Cut Bank to attempt to foreclose the mechanic’s lien and protect his claim in Mr. Standish’s bankruptcy. That attorney was unsuccessful in establishing a priority claim based upon the mechanic’s lien, due to the running of the statute of limitations under Montana law. As a result, appellant was only able to establish an unsecured claim in the bankruptcy action and received nothing when the bankruptcy court discharged his claim.

Appellant then brought this legal malpractice action seeking the value of the lien, approximately $24,000, lost due to the alleged: (1) negligent withdrawal of counsel from representation, and (2) defendants’ negligent failure to foreclose the mechanic’s lien.

Defendants filed a motion for summary judgment citing five independent and separate grounds for dismissing the action. The District Court, having reviewed the entire file and heard oral arguments, held there was no relevant factual matters in dispute and that defendants were entitled to judgment as a matter of law on both counts.

Rule 56(c), M.R.Civ.P., provides that summary judgment is appropriate when “[t]he pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Generally negligence issues will not be susceptible to summary judgment because of the factual issues involved in such cases. See Brohman v. State of Montana (Mont. 1988), [230 Mont. 198,] 749 P.2d 67, 69, 45 St.Rep. 139, 141, and cases cited therein. In a summary judgment proceeding, plaintiffs are entitled to all reasonable inferences which may be drawn from the offered proof and which indicate any issue of fact which would thereby defeat the summary judgment motion. Brown v. Merrill, Lynch, Pierce, Fenner and Smith, Inc. (1982), 197 Mont. 1, 640 P.2d 453. However, an issue of negligence cannot be inferred merely from the fact that a loss has occurred. Carlson v. Morton (Mont. 1987), [229 Mont. 234,] 745 P.2d 1133, 44 St.Rep. 1929. To establish a professional negligence action “the plaintiff must prove that the professional owed him a duty, [and] that the professional failed to live up to that duty, thus causing damages to the plaintiff.” Carlson, 745 P.2d at 1136.

In pursuing a negligence or breach of contract action against an attorney, the plaintiff must initially establish the existence of an attorney-client relationship. The plaintiff must then establish that the acts constituting the negligence or breach of contract occurred, proximately causing damages to the plaintiff. The final requirement for the plaintiff is the need to establish “[t]hat ‘but for’ such negligence or breach of contract the client would have been successful in the prosecution or defense of the action.” Christy v. Saliterman (1970), 288 Minn. 144, 179 N.W.2d 288, 293-294.

A. Duty to Foreclose the Mechanic’s Lien

The plaintiff in the case at bar has simply failed to establish an attorney-client relationship which would require the defendants to foreclose the mechanic’s lien. Montana has not recognized the doctrine of continuous representation, which may have required the defendants to continue to represent plaintiff regarding the mechanic’s lien. Schneider v. Leaphart (Mont. 1987), [228 Mont. 483,] 743 P.2d 613, 617, 44 St.Rep. 1699, 1703. To establish a duty owed to continue to represent the plaintiff, the plaintiff would need to show the existence of a retainer agreement or a specific agreement between the parties that the defendants would foreclose the mechanic’s lien. We note that neither party cites any specific authority on the question of whether or not an attorney who drafts a mechanic’s lien has a duty to foreclose that lien.

Appellant claims he had used defendants’ law firm for various dealings over a period of several years, both before and after the mechanic’s lien was drawn. However, the appellant’s deposition states he was not sure he “had call” to have an attorney prior to the drafting of the partnership agreement. Further, the first time he met defendant Epstein on a professional basis was when he contacted him regarding the drafting of the mechanic’s lien. The appellant stated in his deposition he had no further contact with Mr. Epstein from the time he signed the lien, until he contacted him regarding the error in the property description, in early 1985.

Also, appellant’s deposition shows a retainer agreement did not exist between himself and the law firm.

“Q. The law firm of Werner, Nelson & Epstein were not on retainer to you or anything; it was just simply when you needed work done you called and asked if they could do it for you?”

“A. Yes. That’s correct.”

Even under the continuous representation doctrine, such an on and off history of representation would not establish a duty on the part of an attorney to monitor the activities of their clients. See, Shapero v. Fliegel (1987), 191 Cal.App.3d 842, 236 Cal.Rptr. 696, 699. This is particularly so where the attorney had acted as a scrivener in preparing documents which a client inferred they did not intend to use.

“Q. When you filed this Mechanic’s Lien did you intend to foreclose on the lien?

“A. As a last resort, yes, I did.

“Q. Why did you wait until March of 1985 to begin any action on the foreclosure of the lien?

“A. Because I didn’t want to use — I didn’t want that to keep him from being able to borrow the money to pay me off.”

Based upon the foregoing deposition testimony which the District Court had before it, we find the order granting summary judgment was proper. Appellant failed to establish the existence of a duty owing by the defendants to the appellant to foreclose the mechanic’s lien.

B. Negligent Withdrawal of Counsel

Appellant contends that the defendants negligently withdrew from their representation of appellant. This contention is fatally flawed, however, in light of the fact that no representation existed. Appellant asserts that this case involved a collection action and that the defendants were obligated to pursue the collection action to a conclusion once they accepted representation. 7 Am.Jur.2d, Attorneys at Law, § 211. This contention ignores the fact that the appellant himself forestalled the foreclosure of the mechanic’s lien. Mr. Lorash acknowledges he did not intend to foreclose the lien except as a last resort. Further, he did not communicate a desire to foreclose the lien until he was notified that Mr. Standish was in bankruptcy. As Mr. Lorash had been informed of the two year statute of limitations which applied to the mechanic’s lien, and was the party who forestalled its foreclosure, we find the defendants did not have a duty to foreclose the mechanic’s lien. Further, representation had been terminated as to the mechanic’s lien, pending further action on Mr. Lorash’s part, and there could not be a negligent withdrawal.

Having found that no duty existed for the defendants to foreclose the mechanic’s lien, the parties’ arguments whether or not the mechanic’s lien involved in this case was valid and enforceable become moot.

The decision of the District Court is affirmed.

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


author: MR. JUSTICE McDONOUGH MR. JUSTICE GULBRANDSON,

text:
    ROBERT L. CRIBB and Margaret V. Cribb, husband and wife; M. Bruce Wright and Susan Wright, husband and wife; and Ron Helland and Joan Helland, husband and wife, on behalf of all other stockholders of Glasgow Publishing Company, a Montana corporation, Plaintiffs and Respondents, v. MATLOCK COMMUNICATIONS, INC., an Idaho corporation; Glasgow Publishing Company, a Montana corp., Coospapers, inc., an Oregon corp.; Idaho Bank and Trust Company, a banking corp.; and Stephen J. Matlock, individually and as President of Matlock Communications, Inc., and Glasgow Publishing Company, Defendants and Appellants.
    No. 88-304.
    Submitted on Briefs Nov. 17, 1988.
    Decided Jan. 30, 1989.
    768 P.2d 337.

      Jardine, Stephenson, Blewett & Weaver, George N. McCabe, Great Falls, Gallagher, Archambeault & Knierim; Matthew W. Knierim, Glasgow, for defendants and appellants.
    Habedank, Cumming, Best, Maltese & Savage, Peter Maltese, Sidney, for plaintiffs and respondents.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This appeal from the Seventeenth Judicial District, in and for the County of Valley, concerns the District Court’s denial of a motion to set aside an entry of default under Rule 55(c), M.R.Civ.P. The only issue is whether the lower court abused its discretion in denying the motion. We reverse.

The relevant facts are as follows: respondents Cribbs, and Wrights, (Cribbs) agreed to sell their stock in Glasgow Publishing Company, a corporation, to Matlock Communications, Inc., owned by Stephen J. Matlock. Cribbs exchanged the company’s stock for promissory notes and other consideration from Matlock. The parties placed the stock in escrow to secure the debt owed on the notes.

Cribbs regained control of the company when Matlock Communications failed to make the required payments. Cribbs then sued Matlock and Matlock Communications for money still due under the sales agreement.

Cribbs joined appellant Idaho Bank and Trust Company (I.B.& T.) because Matlock had secured a loan from I.B.& T. with assets owned by Glasgow Publishing Company. Cribbs’ complaint contended that Matlock had no authority to encumber the assets, and sought a judgment voiding the security interest claimed by I.B.& T.

On December 22, 1986, Cribbs served summons and complaint on I.B.& T.’s main downtown office in Boise, Idaho. I.B.& T. failed to answer or appear within 20 days. On February 5, 1987, the clerk entered default against I.B.& T. On March 6, 1987, before Cribbs had taken any final judgment, I.B.& T. filed a motion to set aside the default, a crossclaim, a counterclaim, and a third party complaint.

I.B.& T. also submitted affidavits explaining their failure to respond to Cribbs’ complaint. An employee in I.B.& T.’s branch office swore that he delivered the papers to another employee for transfer to the main I.B.& T. office through the Bank’s courier system. The other employee remembered receiving the papers with instructions for their delivery, but could not verify if she had channeled the papers into the courier system. The summons and complaint never arrived at the main office.

I.B.& T discovered their failure to answer or appear approximately one week after the clerk entered the default. One month after the entry of default I.B.& T. filed its motion, answer, crossclaim, counterclaim and third party complaint.

I.B.& T. contends that the District Court abused its discretion in refusing to set aside the entry of default because I.B.& T. made the showing of good cause required by Rule 55(c), M.R.Civ.P. Cribbs respond that Rule 55(c)’s good cause should be equated with “excusable neglect” in Rule 60(b), M.R.Civ.P., and that I.B.& T. has failed to excuse its late response. The parties also disagree on whether I.B.& T.’s tardy response prejudiced Cribbs.

First, Cribbs mistakenly contend good cause under Rule 55(c), M.R.Civ.P., equates to excusable neglect under Rule 60(b), M.R.Civ.P. Rule 55(c), M.R.Civ.P., provides that:

“For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).”

The majority view holds that:

“the ‘good cause’ standard for setting aside a default entry is more flexible and lenient than the Rule 60(b) standard for setting aside a default judgment. 6 J. Moore, Moore’s Federal Practice paragraph 55.10[1] and [2] (2d ed. 1983); . . . The default entry is simply an interlocutory order than in itself determines no rights or remedies, whereas the default judgment is a final judgment that terminates the litigation and decides the dispute.”

Hertz v. Berzanske (Alaska 1985), 704 P.2d 767, 770. We agree that the good cause standard under Rule 55(c), M.R.Civ.P., should be applied more flexibly and leniently than the excusable neglect standard under Rule 60(b), M.R.Civ.P.

Second, we hold the I.B.& T. made a sufficient showing of good cause in the lower court. To determine the existence of good cause, courts should consider:

“(1) whether the default was willful, (2) whether the plaintiff would be prejudiced if the default should be set aside, and (3) whether the defendant has presented a meritorious defense to plaintiffs claim. The court must also balance the interests of the defendant in the adjudication of his defense on the merits, against the interests of the public and the court in the orderly and timely administration of justice.”

6 J. Moore, Moore’s Federal Practice paragraph 55.10[2], at 55-50 (2d ed. 1988), and see Sony Corp. v. Elm State Electronics, Inc. (2nd Cir. 1986), 800 F.2d 317, 320 (in addition to three factors above, courts may consider whether there was a good faith mistake, whether a harsh or large judgment would result, the strong preference of adjudication on the merits, and resolution of doubts in favor of granting motion to set aside).

I.B.& T. submitted affidavits that its failure to respond resulted from clerical error. Facing similar facts, one U.S. District Court agree to set aside an entry of default stating:

“The Court, of course, is not condoning the filing of a late answer, yet it is reluctant to enter a default judgment where, as here, there was not willful abuse of its process nor apparent prejudice to the plaintiff”

Wallace v. De Werd (D.V.I. 1969), 47 F.R.D. 4, 5. Here there is also a lack of willful abuse of the lower court’s process and a lack of apparent prejudice. Cribbs argue that prejudice exists because reversal will further delay the case. We reject this contention. Prejudice from delay should be measured at the time the party moves to set aside an entry of default.

Weighing the third factor in this case presents more difficulty. Cribbs contend I.B.& T. has failed to show a meritorious defense because Matlock could not have had authority to encumber the assets of Glasgow Publishing Company.

I.B.& T. contends that the documents creating the security interest are regular on their face, and that Matlock provided documentation demonstrating that he was authorized to borrow for Glasgow Publishing Company as the Corporation’s sole director. I.B.& T. also contends that the security agreement may be validated by the allegation that Glasgow Publishing Company received a monetary benefit from loans authorized by Matlock.

Cribbs have responded to these contentions by arguing that Mat-lock never properly became sole director of the corporation, and that none of the proceeds of the loans benefited Glasgow Publishing Company.

Cribbs have presented evidence supporting their position. However, resolution of doubt in finding a meritorious case should be resolved in favor of I.B.& T. Meehan v. Snow (2nd Cir. 1981), 652 F.2d 274, 277. I.B. & T has alleged facts which, if proven, provide a defense.

Appellate courts reverse refusals to set aside entries of default on a showing of slight abuse of discretion by the lower court. 6J. Moore, Moore’s Federal Practice paragraph 55.10[2], at 55-59. Given the lack of willfulness, prejudice, and the presence of factual allegations supporting a defense, we hold that the District Court abused its discretion in denying the motion. We reverse and remand for further proceedings.

MR. JUSTICES SHEEHY, WEBER and HUNT concur.

MR. JUSTICE GULBRANDSON,

dissenting.

In my view, the appellant failed to present a meritorious defense. Even a cursory examination by the appellant of the documentation provided by Matlock, as the purported sole director of the Glasgow Publishing Company, would have revealed non-compliance with the requirements of the pertinent Montana statues, including § 35-1-413 and § 35-1-08, MCA.

I would affirm the District Court’s order.


author: MR. JUSTICE HARRISON

text:
    JAMES THOMAS and Linda Thomas, Plaintiffs and Appellants, v. KENNETH R. WILSON, Defendant and Respondent.
    No. 88-327.
    Submitted on Briefs Dec. 22, 1988.
    Decided Jan. 30, 1989.
    767 P.2d 1343.
    Patten Law Firm, James A. Patten, Billings, for plaintiffs and appellants.
    Crowley, Haughey, Hanson, Toole & Dietrich, Sherry S. Matteucci, Billings, for defendant and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

James and Linda Thomas appeal from a judgment of the Sixteenth Judicial District, Custer County, Montana. Appellants’ legal malpractice action against respondent Kenneth R. Wilson was dismissed with prejudice for failure to prosecute under Rule 41(b), M.R.Civ.P. We affirm.

Appellants filed a complaint and jury demand on September 9, 1985, against attorney Wilson. The complaint alleges Wilson committed legal malpractice in his representation of the appellants in a civil suit filed against them in Richland County, Montana. Appellants alleged Wilson failed to respond properly to discovery; failed to resist a motion for partial summary judgment, which eliminated the appellants’ counterclaim; and failed to keep the appellants informed of the progress of the matter and misled them as to the status of the case. Appellants alleged these failures constituted malpractice which forced them into an unfavorable settlement of the suit.

On September 9, 1985, appellants also filed two motions for substitution of judge. Upon these motions, Judge Sorte accepted jurisdiction of the action on September 12, 1985.

On October 25, 1985, respondent filed an answer and counterclaim in which he denies the allegations of malpractice and sought attorney’s fees and expenses for his representation of the action. On November 5, 1986, respondent filed requests for admission and production, and interrogatories. On December 3, 1986, appellants responded to the request for admission only. On March 9, 1987, respondent filed a second request for production and a second set of interrogatories. No further responses were made. On July 6, 1987, respondent filed a brief in support of motions to compel answers to the interrogatories and to dismiss for failure to prosecute pursuant to Rules 41(b) and 37(d), M.R.Civ.P., although the District Court file does not reveal whether these motions were made.

On July 8, 1987, Judge Sorte ordered appellants to file exceptions or objections to respondent’s first interrogatories no later than July 21, 1987. Only July 27, 1987, appellants filed answers to respondent’s first interrogatories. Because appellants’ attorney would be called to testify at trial, he moved to withdraw from the case, and the motion was granted, on October 21, 1987.

Only April 6, 1988, respondent renewed his motion to dismiss for failure to prosecute. After the motion to dismiss was set for hearing, appellants filed a motion for trial setting on May 2, 1988. While there is no transcript of the hearing on the motion to dismiss, Judge Sorte considered the evidence and heard the parties by way of a telephone conference call. On May 18, 1988, Judge Sorte entered a judgment of dismissal for appellants’ failure to prosecute pursuant to Rule 41(b), M.R.Civ.P.

The parties agree that it is within the sound discretion of the District Court whether to dismiss a case for failure to prosecute. While no precise rule or formula sets forth what period of inactivity is necessary to find a failure to prosecute, it is well established that the court’s decision will not be disturbed on appeal absent a clear abuse of discretion. Cook v. Fergus Electric Cooperative, Inc. (Mont. 1988), [235 Mont. 173,] 765 P.2d 1138, 45 St.Rep. 225; Timber Tracts, Inc. v. Fergus Electric Cooperative, Inc. (Mont. 1988), [231 Mont. 40,] 753 P.2d 854, 45 St. Rep. 415.

Conspicuously missing from this case is any reasonable excuse for the appellants’ lack of prosecution. Although appellants argue they have diligently pursued prosecution of this action, the facts reveal that very little activity followed the filing of the complaint. Appellants conducted no discovery and delayed response to nearly all of the discovery requests. While a plaintiff is not required to use discovery, he or she must respond to those requests filed by the defendant. If appellants’ were ready to proceed against the respondent, they should have attempted to bring this case to trial long before their motion for trial setting was filed on May 2, 1988. As stated in Cook, supra:

“[W]e note that no discovery had been conducted ... If the discovery had been completed, plaintiffs had a duty to pursue the prosecution and bring the case to trial. If discovery was not complete, it was their duty to see steps were taken to ensure it was conducted. Rule 41(b), M.R.Civ.P. The plaintiffs pursued neither course of action, showing the court no indication of their desire to bring the case to trial.”

Cook, 765 P.2d at 114, 45 St.Rep. at 2288.

Finally, appellants argue their delay should be excused because they were without counsel since October 21, 1987, when their counsel withdrew from the case. Although there is some evidence the appellants were still being advised by their first attorney when the motion to dismiss was filed, the appellants were notified, as unrepresented parties, that they should either obtain new counsel or proceed pro se and make a personal appearance. The appellants chose to proceed pro se and may not now complain they were without counsel.

Since no abuse of discretion has been shown, the judgment of the District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES McDON-OUGH, HUNT and WEBER concur.


text:
    The STATE OF MONTANA, Plaintiff and Respondent, v. JOSEPH RUBEN BUCKMAN, a/k/a/ Joshua Buckman, Defendant and Appellant.
    No. 88-034.
    Submitted on Briefs Dec. 9, 1988.
    Decided Feb. 1, 1989.
    768 P.2d 1361.

      E. June Lord, Great Falls, for defendant and appellant.
    Marc Racicot, Atty. Gen., George Schunk, Asst. Atty. Gen., Helena, Patrick L. Paul, Cascade County Atty., Stephen E. Hagerman, Deputy Cascade County Atty., Great Falls, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

In the Eighth Judicial District Court, Cascade County, defendant Joseph Ruben Buckman pleaded guilty to one count of deceptive practices, a felony. He received a 10-year sentence in the Montana State Prison and was designated a dangerous offender for purposes of parole eligibility. From the part of the sentence designating him a dangerous offender, Buckman appeals. We affirm.

Two issues are presented for our consideration.

(1) Did the District Court abuse its discretion by designating Buckman a dangerous offender for purposes of parole eligibility?

(2) Did the District Court violate the terms of the plea agreement by designating Buckman a dangerous offender?

During the night of July 2 or early morning of July 3,1987, a car owned by Milton J. Merrick was broken into and Merrick’s wallet, containing several credit cards, was stolen. On July 3, 1987, Joseph Buckman unsuccessfully attempted to use Merrick’s VISA card to purchase beer and gasoline from two Great Falls area Circle K stores. Three days later, Buckman successfully purchased items from a Sinclair gas station and a Payless Shoe Store by using Merrick’s Mastercard and forging his signature. On July 7, 1987, Buck-man was apprehended in a stolen motor vehicle with Merrick’s wallet and credit cards in his possession.

Buckman was charged with one count of deceptive practices, a felony, in violation of § 45-6-317(1)(d)(i), MCA, and one count of forgery, a felony in violation of § 45-6-325(1)(a), MCA. Pursuant to a plea bargain, the State agreed to drop the forgery charge in exchange for Buckman’s plea of guilty to the charge of deceptive practices. Although the State reserved the right to recommend sentencing, it agreed not to pursue a designation of persistent felony offender.

At sentencing, the State recommended that Buckman receive ten years, the maximum sentence allowed by law, and that he be designated a dangerous offender for purposes of parole eligibility. The Honorable John M. McCarvel accepted this recommendation and sentenced Buckman accordingly. Buckman appeals the designation of dangerous offender.

Buckman first argues that the District Court abused its discretion by designating him a dangerous offender. He contends that a defendant convicted of a nonviolent property crime does not represent a substantial danger to society and cannot, therefore, be considered a dangerous offender.

A dangerous offender is not eligible for parole until he has served one-half of his full sentence. A nondangerous offender, in contrast, is eligible for parole after he has served one-quarter of his full sentence. Section 46-23-201(l)(a), MCA. The statute governing the designation of an offender as dangerous or nondangerous is § 46-18-404, MCA, which reads as follows:

“(1) The sentencing court shall designate an offender a nondangerous offender for purposes of eligibility for parole under part 2 of chapter 23 if:

“(a) during the 5 years preceding the commission of the offense for which the offender is being sentenced, the offender was neither convicted of nor incarcerated for an offense committed in this state or any other jurisdiction for which a sentence to a term of imprisonment in excess of 1 year could have been imposed; and

“(b) the court has determined, based on any presentence report and the evidence presented at the trial and the sentencing hearing, that the offender does not represent a substantial danger to other persons or society.

“(2) A conviction or incarceration may not be considered under subsection (l)(a) if:

“(a) the offender was less than 18 years of age at the time of the commission of the present offense; or

“(b) the offender has been pardoned for the previous offense on the grounds of innocence or the conviction for such offense has been set aside in a postconviction hearing.

“(3) If the court determines that an offender is not eligible to be designated as a nondangerous offender, it shall make that determination a part of the sentence imposed and shall state the determination in the judgment. Whenever the sentence and judgment do not contain such a determination, the offender is considered to have been designated as a nondangerous offender for purposes of eligibility for parole.”

Subsection (1) of this statute delineates a two-part test. If the district court finds that the defendant was neither convicted of nor incarcerated for a felony offense within the five years preceding the crime for which he is being sentenced and that the defendant does not represent a substantial danger to society, the court must designate the defendant nondangerous. However, if the defendant satisfied only one prong of this two-part test, the district court, in its discretion, may apply the dangerous offender label. See State v. Dahl (Mont. 1980), 620 P.2d 361, 365, 37 St.Rep. 1852, 1857.

When using its discretion to determine offender status, the District Court “may consider persistence in criminal conduct and failure of earlier discipline to deter or reform the defendant.” State v. Nichols (Mont. 1986), [222 Mont. 71,] 720 P.2d 1157, 1163, 43 St.Rep. 1068, 1076. The District Court must articulate the reasons for designating a defendant as dangerous; “more than a mere recital of the statutory language is required.” In re McFadden (1980), 185 Mont. 220, 222, 605 P.2d 599, 600.

In the present case, the District Court did indeed articulate the reasons for designating Buckman a dangerous offender. The court stated:

“The defendant, since he was 18 years old, has been involved with the criminal law. In 1979, he was given a three (3) year deferred sentence for auto theft. In 1980, he was convicted, by a jury, of Aggravated Assault and Aggravated Kidnapping, felonies, and was given two ten (10) year terms which ran concurrently and was designated a Dangerous offender. He was released from the Montana State Prison in February, 1987 and committed the crime of Deceptive Practices, a felony, by stealing and using stolen credit cards.

“The defendant has demonstrated no evidence or effort to rehabilitate himself and is addicted to alcohol and drugs. His incarceration is necessary for long term in-patient treatment for alcohol and drugs and for the protection of the public.”

Buckman had been released from prison only five months prior to the commission of the crime leading to the present conviction. Thus, even though the instant offense was of a nonviolent nature, the District Court was not required by statute to designate Buckman a nondangerous offender. Furthermore, Buckman had been previously convicted of aggravated assault and kidnapping for holding a gun to a hostage’s head. The District Court considered this prior offense as well as Buckman’s failure to rehabilitate himself when it found that the dangerous offender status applied. Under the circumstances, the District Court did not abuse its discretion.

Buckman next argues that the District Court violated the terms of the plea agreement when it designated him a dangerous offender. He apparently contends that because he was not advised by the State of the possibility that it might seek to have limitations placed on his parole eligibility, he did not enter the agreement with an understanding of the consequences of his guilty plea.

Buckman relies on State v. Cavanaugh (1983), 207 Mont. 237, 673 P.2d 482, a case very similar to his own, to support his theory. In Cavanaugh, the State agreed to drop two felony charges if the defendant pleaded guilty to two other charges. At sentencing, the trial judge gave Cavanaugh maximum penalties allowed by law and, in addition, ordered that he was ineligible for parole or for participation in the defender furlough program. We held that, as Cavanaugh was never advised of the possibility that he might be ineligible for parole, he did not enter into the agreement knowingly and voluntarily. We stated:

“ [Defendant knew when he pled guilty that he could be sentenced to a maximum of one-hundred years for aggravated kidnapping and twenty years for aggravated assault. He did not know that he might be found ineligible for parole. A flat sentence of one-hundred years is far different than the sentence anticipated by a defendant who knows he might be sentenced on one-hundred and twenty years, but presumes he that parole will be possible. Because of the disparity between the anticipated and actual sentence, the plea bargain into which defendant thought he was entering was not the plea bargain accepted by the trial judge.”

Cavanaugh, 207 Mont. at 241, 673 P.2d at 484. We concluded that a trial judge who accepts only a portion of a plea agreement must allow the defendant the opportunity to withdraw his guilty plea. Cavanaugh, 207 Mont. at 243, 673 P.2d at 485.

At the time of the Cavanaugh decision, the statute governing plea agreements, § 46-21-204, MCA (1981), read as follows:

“(1) The defendant shall enter a plea of guilty or not guilty to the indictment, information, or complaint. If the defendant refuses to plead to indictment, information, or complaint, a plea of not guilty must be entered.

“(2) The court may refuse to accept a plea of guilty shall not accept the plea of guilty without first determining that the plea is voluntary with an understanding of the charge.”

In 1985, the legislature amended the statute, adding Subsection (3).

“(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 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;

“(in) 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. The express purpose of the amendment was to overturn the Cavanaugh decision. Hearing on HB 700 before the House Com. on the Judiciary (Feb. 18, 1985) 49th Cong. 7.

The amendments make it clear that plea bargain is an agreement between the prosecutor and the accused only. The district court is not bound by the agreement. If the court chooses not to follow the prosecutor’s recommendation pursuant to the plea bargain, it is not required to allow the defendant to withdraw his plea of guilty. Section 46-12-204(3)(a), MCA.

The plea agreement in issue stipulated only that the State reserved the right to recommend sentencing and that the State would not seek to designate Buckman a persistent offender. It made no reference to the fact that the State might seek to limit Buckman’s parole eligibility by recommending that the court declare him a dangerous offender. Buckman argues that the District Court, therefore, was required to apprise him of the possibility that his parole could be limited if the court chose to designate him as dangerous.

Section 46-16-105(l)(b), MCA, requires the district court to advise the defendant of the consequences of his guilty plea and the maximum sentence which may be imposed. Other statutes flesh out § 46-16-105(b), MCA, by outlining specific items of which the defendant must be advised by the court. They provide that the defendant must be informed that the court is not bound by the plea agreement; that sentencing is governed by Title 46, chapter 18; that the defendant should consider the most severe punishment allowed by law; and that the judge may impose any sentence allowed by law. Sections 46-12-202 and 46-12-204(3)(b), MCA. These statutes do not require the District Court to advise the defendant of any possibility of limitations of his parole eligibility.

Buckman testified at his change of plea hearing that he understood that sentencing was solely the discretion of the District Court; that he could receive a maximum of 10 years for his crime; that he entered the plea voluntarily; and that he was satisfied with counsel. Furthermore, as he had been declared a dangerous offender for his previous conviction, Buckman was aware of the fact that such limitation on parole exist. We cannot say, under these circumstances, that Buckman did not understand the consequences of his plea. The District Court did not err by failing to inform Buckman, before it accepted his guilty plea, of the possibility that he could be designated a dangerous offender.

We affirm the District Court.

MR. JUSTICES HARRISON, SHEEHY, GULBRANDSON and McDonough concur.