author: JUSTICE HUNT JUSTICE WEBER,

text:
    RAYMOND G. BECKY and Margaret K. Becky, Husband and Wife, individually; and DAVID GLAUS AND RAMONA GLAUS, Husband and Wife; and Warren G. Glaus and Rosamond F. Glaus, Husband and Wife; individually and d/b/a/ 76 Ranches, an Idaho Partnership, Plaintiffs and Appellants, v. THE NORWEST BANK DILLON, N.A., formerly the First Northwestern National Bank of Dillon, Robert Mountain and Ronald Johnson, individually and in their capacities as Agents or Officers of Northwest Bank Dillon, N.A., Defendants and Respondents.
    No. 89-583.
    Submitted March 16, 1990.
    Decided Sept. 20, 1990.
    798 P.2d 1011.

      James E. Purcell, Henningsen, Purcell, Vucurovich & Richardson, PC., Butte, Phillip D. Tawney, Mullendore and Tawney, Missoula, and Peter M. Meloy, Meloy Law Firm, Helena, for plaintiffs-appellants.
    Donald C. Robinson, Poore, Roth & Robinson, Butte, for Norwest Bank Dillon.
    Gregory C. Black, Corette, Smith, Pohlman & Allen, Butte, for Mountain and Johnson.
   JUSTICE HUNT

delivered the Opinion of the Court.

Plaintiffs and appellants, Raymond and Margaret Becky, David and Ramona Glaus, and Warren and Rosamond Glaus, partners in the 76 Ranches, appeal from an order of the Fifth Judicial District Court, Beaverhead County, dismissing their claims against defendants, Norwest Bank Dillon, Robert Mountain and Ronald Johnson. We reverse.

The sole issue raised on appeal is whether the District Court abused its discretion by dismissing plaintiffs’ lawsuit for failure to prosecute.

On July 12,1984, plaintiffs filed this action against Norwest Bank Dillon and its officers, Mountain and Johnson, individually and as agents for the bank, as well as against William Ballard, another of the bank’s officers, and Norwest Corporation, the principal shareholder of the bank. The complaint alleged bad faith, fraud, commercially unreasonable sale of collateral, conversion, tortious interference with contract, breach of fiduciary duty, deceit, negligent misrepresentation and constructive fraud, all arising from loan transactions made from 1980 through 1982.

Defendants responded with pro forma motions to dismiss. When the motions were denied, they filed their answers and counterclaims. The bank and Ballard counterclaimed for breach of promissory notes, monies due and owing on a foreign judgment, bad faith, malicious prosecution and abuse of process. In addition, Ballard alleged intentional or negligent infliction of emotional distress. Mountain and Johnson obtained separate counsel and filed their own counterclaims, alleging malicious prosecution as well as intentional or negligent infliction of emotional distress.

Plaintiffs had employed a Boise, Idaho, law firm as lead counsel and Henningson & Purcell of Butte as local Montana counsel. In October, 1984, the Boise firm withdrew from the suit because of the difficulty of conducting the case from Idaho. On December 6, 1984, Thomas A. Budewitz of the firm of Hooks & Budewitz in Townsend replaced the Boise firm as lead counsel.

In December, 1984, plaintiffs moved to amend their complaint to consolidate the counts against the defendants, add a claim for emotional distress and drop Norwest Corporation and Ballard as party defendants. After briefing, the District Court granted the motion. Defendants answered the amended complaint, reasserting their previous counterclaims.

On May 2, 1985, plaintiffs moved to dismiss the counterclaims alleged by defendants. The question was briefed by both sides but was never ruled upon by the District Court.

In the meantime, both sides had commenced discovery. From October, 1984, through December, 1986, all parties served and answered requests for production. They also engaged in extensive oral discovery, deposing a large number of parties and witnesses. During this time, some depositions were interrupted or discontinued for various reasons, several were postponed because of scheduling difficulties, and at least one was unable to take place because the witness failed to appear. It does not appear that the blame for these inconveniences can be laid at the feet of one side or the other, both were responsible for the delays, cancellations and postponements.

The last formal discovery effort engaged in by either side occurred on March 10, 1987, when Mountain and Johnson served plaintiffs with another round of interrogatories and requests for production. Although plaintiffs failed to respond, Mountain and Johnson did not follow up on the requests nor did they avail themselves of other formal remedies, such as moving to compel a response.

While discovery was taking place, the action was set for trial on two different occasions. The first trial date of January 5, 1987, was vacated upon stipulation of counsel and reset for April 6, 1987. Subsequently, the District Court vacated the April trial date because of scheduling conflicts of its own.

Other than the filing of depositions on July 15,1987, and counsels’ February 29, 1988, stipulation to a discovery deadline of November 1, 1988, no further action is recorded in the file until June 29, 1989, when the District Court ordered a case status conference for August 7,1989. The attorneys for both sides stipulated to reset the conference for August 14,1989.

On July 12, 1989, attorney Budewitz forwarded a consent to withdraw as attorney of record form to plaintiff Raymond Becky. Becky, in turn, forwarded the form to the Glauses, who resided in Oregon. The form had not been returned by the Glauses prior to the status conference.

The status conference was conducted by telephone on August 14, 1989. During the conference, Budewitz moved to withdraw as counsel for plaintiffs and defendants moved to dismiss plaintiffs’ claims for failure to prosecute. The District Court granted Budewitz’s motion to withdraw and relieved both Budewitz and James Purcell of the firm of Henningson & Purcell as counsel of record, even though Purcell, who did not participate in the conference, had made no such request of the court. The court also granted the motion to dismiss for failure to prosecute, even though plaintiffs had not been notified that such a motion would be presented at the conference. The court did, however, give plaintiffs 30 days to employ other counsel and have the case reinstated.

Upon learning of the withdrawal and dismissal orders, Purcell advised plaintiffs that he would stay on the case until the matter was resolved. He began looking for new counsel. On his recommendation, plaintiffs consulted with two other attorneys. One was unable to take the case, however, because of a conflict of interest. It is unclear why the other attorney declined the case.

In September, 1989, plaintiffs moved the court to reinstate their claims. Defendants objected to the reinstatement, alleging that the lengthy lawsuit had prejudiced them because they were forced to list the suit as a contingent liability on their financial statements.

The trial court set a hearing for October 2,1989, ordering plaintiffs to show cause why the case should be reinstated. Plaintiffs personally attended and testified at the hearing. In addition, they presented to the corut their new lead counsel, who assured the court that he would attempt to bring the case to trial in the spring of 1990.

During the reinstatement hearing, plaintiffs refuted the allegations made by Budewitz in his affidavit supporting his motion to withdraw as counsel of record. According to Budewitz, he delivered the complete case files to Raymond Becky in October, 1988, with the understanding that Becky would give the files to a Billings attorney, who would then be substituted for Budewitz as lead counsel. Becky acknowledged that he received the case files from Budewitz but stated that he delivered them to an agricultural financial consultant who was to analyze the transactions at issue in the case. He also acknowledged meeting the Billings attorney in the financial consultant’s office. He understood, however, that the reason for consulting with another attorney was because Budewitz desired assistance from an additional law firm not because Budewitz had decided to withdraw from the case. Becky also understood that the Billings attorney declined the case because the attorney believed that the suit required two full-time lawyers, and Budewitz could no longer devote full time to the action.

After the Billings attorney declined his assistance, plaintiffs contacted a Great Falls attorney about becoming involved in the case, who in trun contacted Budewitz. The record does not disclose why the Great Falls attorney decided not to take the case.

Becky testified that he had been informed by Budewitz that discovery had been delayed because of the difficulty of getting three sets of attorneys together to attend depositions, many of which were to take place outside of Montana. As Becky had attended many of the depositions that had already taken place, he had personal knowledge of the difficulties the attorneys had encountered in attempting to conduct oral discovery.

Budewitz stated in his affidavit that he had not spoken to any of the plaintiffs since October 28, 1988, an assertion that Becky flatly denied during the reinstatement hearing. Warren Glaus also testified at the hearing that his wife had attempted to contact Budewitz after October, 1988, but that the attorney never returned her phone call.

In an order entered October 16, 1989, the trial court denied plaintiffs’ motion to reinstate, finding a total absence of any cause for the requested reinstatement. Pursuant to Rule 54(b), M.R.Civ.P, the court entered final judgment, dismissing plaintiffs’ complaint with prejudice and expressly preserving defendants’ counterclaims. Plaintiffs subsequently filed this appeal.

The sole issue is whether the District Court abused its discretion in dismissing plaintiffs’ complaint for failure to prosecute.

Aparty who has not exercised due diligence in bringing his case to a conclusion may be in danger of having his claims dismissed by the district court. Shackelton v. Neil, 207 Mont. 96, 100, 672 P.2d 1112, 1114 (1983). The Rules of Civil Procedure authorize the district court to dismiss an action for failure to prosecute. Rule 41(b), M.R.Civ.R, provides in pertinent part:

“For failure of the plaintiff to prosecute ... a defendant may move for dismissal of an action or of any claim against him....Unless the court in its order or dismissal otherwise specifies, a dismissal under this subdivision... operates as an adjudication upon the merits.”

The district court is accorded broad discretion to determine whether a cause of action should be dismissed for the failure of the party seeking relief to prosecute. The court’s decision to dismiss for failure to prosecute will be overturned only upon a showing of abuse of discretion. Shackelton, 207 Mont. at 101, 672 P.2d at 1114-15; Cremer v. Braaten, 151 Mont. 18, 19-20, 438 P.2d 553, 554 (1968); State Savings Bank v. Albertson, 39 Mont. 414, 420-21, 102 P. 692, 694 (1909). However, because dismissal of an action is a harsh remedy, the district court’s discretion is not unlimited. Courts “exist primarily to afford a forum to settle litigable matters between disputing parties.” Brymerski v. City of Great Falls, 195 Mont. 428, 431-32, 636 P.2d 846, 848 (1981) (quoting Farber v. Green Shoe Mfg. Co., 596 P.2d 398 (1979)). Therefore, the district court must balance the concerns of judicial efficiency embodied in Rule 41(b), M.R.Civ.P., against a party’s right to meaningful access to the judicial system. Timber Tracts, Inc. v. Fergus Elec. Co-op., Inc., 231 Mont. 40, 43, 753 P.2d 854, 856 (1988).

There is no precise formula for determining when an action may properly be dismissed for failure to prosecute. Each case turns on its own particular set of circumstances, and lapse of time in and of itself is insufficient to justify dismissal. Kujich v. Lillie, 127 Mont. 125, 136, 260 P.2d 383, 389 (1953).

In Shackelton, 207 Mont. at 102, 672 P.2d at 1115, we adopted the following factors from State Steamship Co. v. Philippine Air Lines, 426 F.2d 803, 805 (9th Cir. 1970), to be used in considering whether the district court abused its discretion by dismissing a suit for failure to prosecute:

“(1) [T]he appellant’s right to a hearing on its claim, (2) the impairment of the appellees’ defenses presumed from the unreasonable delay, (3) the wholesome policy of the law in favor of the prompt disposition of law suits, and (4) the duty of the appellant to proceed with due diligence.”

In Cox v. Myllymaki, 231 Mont. 320, 322, 752 P.2d 1093, 1094, (1988), we restated and somewhat expanded the Shackelton factors. Quoting Hamilton v. Neptune Orient Lines, Ltd., 811 F.2d 498, 499 (9th Cir. 1987), we enumerated the following considerations:

“[T]he plaintiff’s diligence, the trial court’s need to manage its docket, the danger of prejudice to the party suffering the delay, the availability of alternate sanctions, and the existence of warning to the party occasioning the delay.”

Taking the Shackelton and Cox factors together, the elements this Court will consider when determining whether a district court has abused its discretion by dismissing an action for failure to prosecute are: 1) the plaintiff’s diligence in prosecuting his claims; 2) the prejudice to the defense caused by the plaintiff’s delay; 3) the availability of alternate sanctions; and 4) the existence of a warning to plaintiff that his case is in danger of dismissal. These elements will be considered in light of the competing concerns of the plaintiff’s right to a hearing on the merits, the trial court’s need to manage its docket and the general policy in favor of prompt disposition of lawsuits.

The party moving for dismissal must demonstrate that the plaintiff has delayed action on the claim for an unreasonable period of time. Once an unreasonable delay has been shown, the plaintiff must proffer a reasonable excuse for the delay. Calaway v. Jones, 177 Mont. 516, 520, 582 P.2d 756, 758 (1978). An unreasonable delay raises a presumption of prejudice to the defendant, and the defendant is under no obligation to demonstrate injury from the delay. Shackelton, 207 Mont. at 102, 672 P.2d at 1115. However, if the plaintiff comes forward with a reasonable excuse for the delay, the burden shifts to the defendant to show actual prejudice. “Areasonable excuse is one that is not frivolous ‘... where a plaintiff has come forth with an excuse for his delay that is anything but frivolous, the burden of production shifts to the defendant to show at least some actual prejudice.’” Cox, 231 Mont. at 322, 752 P.2d at 1094 (quoting Nealey v. Transportacion Maritima Mexicana, S.A., 662 F.2d 1275, 1281 (9th Cir. 1980)).

In the present case, the District Court file shows an absence of any formal discovery or other substantial prosecutorial activity by plaintiffs for slightly more than two and one-half years prior to the motion for dismissal. Assuming that this period of time constituted an unreasonable delay, the plaintiffs bore the burden of showing a reasonable excuse for their failure to prosecute. At the reinstatement hearing, plaintiffs offered two reasons for their failure to take any formal action during this time period. First, they had been led to believe by their attorney that further discovery efforts had been postponed due to scheduling conflicts between the three sets of attorneys involved in the case. Second, they misunderstood the scope of their lead attorney’s representation. Plaintiffs assumed that Budewitz was continuing to pursue the case while they sought assistance from other law firms. Yet Budewitz apparently ceased activity on the case after October, 1988, except to respond to inquiries from other attorneys.

In past cases involving Rule 41(b) dismissals, we have held plaintiffs at least partially responsible for the inadvertence of their attorneys. Those cases may be distinguished from the action at hand. Diversified Realty, Inc. v. Holenstein, 222 Mont. 263, 721 P.2d 752 (1986), for example, involved a delay of over eight years, as well as a previous order from the court mandating plaintiffs to proceed with due diligence. The present case, on the other hand, involves a delay of only two and one-half years with no order or other warning from the court to proceed more diligently.

Timber Tracts, 231 Mont. at 44-45, 753 P.2d at 857, and its companion case, Cook v. Fergus Elec. Co-op., Inc., 235 Mont. 173, 177, 765 P.2d 1138, 1140 (1988), involved cases in which one of the plaintiffs was also an attorney whose law firm was listed as counsel of record. Under those circumstances, we refused to absolve the plaintiffs from their responsibility to move the suit to trial. In the present case, however, none of the plaintiffs are attorneys, all are lay persons.

Furthermore, plaintiffs in this case did not sit on their claims while their attorney took no further action to prosecute. Rather, plaintiffs undertook what measures they could reasonably be expected to engage in as lay persons who believed they were being represented by counsel. They consulted with a financial expert to determine the value of their claims. They also conferred with other attorneys in an effort to get additional assistance with the suit.

Under the circumstances, plaintiffs offered reasonable excuses for the delay in the formal prosecution of their case. Because plaintiffs’ reasons were not frivolous, the burden shifted to defendants to demonstrate that they were actually prejudiced by the delay.

Actual prejudice for the purpose of a Rule 41(b) dismissal for failure to prosecute means an impairment of the ability to defend due to the plaintiff’s delay in diligently pursuing the action. An impairment of defense usually involves the loss of evidence or witnesses. In Brymerski, 195 Mont. at 432, 636 P.2d at 849, we held that the defendant had not been prejudiced since most of the witnesses were still available to testify and records and files continued to be available as evidence. Similarly, in Kujich, 127 Mont. at 135-36, 260 P.2d at 388-89, we noted that no prejudice existed when the witnesses remained available and no crucial evidence was lost as a result of the delay. On the other hand, in Chicago Title Ins. Co. v. Wheat, 216 Mont. 98, 101, 699 P.2d 597, 599 (1985), we found actual prejudice because “[witnesses have moved or forgotten the facts, records and files have been lost, one of [defendants’] former attorneys has given up the practice of law, and [a defendant] has changed ownership.”

In the present case, defendants do not allege that their defense of the action has been impaired by plaintiffs’ delay in prosecution. They do not claim that witnesses are no longer available or that evidence no longer exists. Rather, the only prejudice they allege is that they have been forced to list the lawsuit as a contingent liability on their financial statements. While we do not doubt that this constitutes a hardship for defendants, we recognize that it is a hardship suffered by many parties involved in litigation. It does not constitute prejudice for purposes of a Rule 41(b) dismissal for failure to prosecute.

Because plaintiffs proffered a reasonable excuse for their delay in prosecuting the lawsuit and defendants were unable to demonstrate that they had been actually prejudiced by the delay, we hold that the trial court abused its discretion in dismissing plaintiffs’ complaint for failure to prosecute. We therefore need not discuss the court’s failure to consider the availability of alternate sanctions or the complete absence of a warning to plaintiffs that the action was in danger of being dismissed.

Reversed and remanded for further proceedings consistent with this Opinion.

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

JUSTICE WEBER,

specially concurring:

I do agree with the reversal as required under the majority opinion. In reaching that conclusion, however, I have also considered other factors upon which the majority did not rely.

In particular, I note the complete absence of a warning to the plaintiffs that their action was in danger of being dismissed. Under the facts of this case, it would have been entirely appropriate to give a warning, granting an appropriate period of time in which to actually prosecute the lawsuit. The dismissal and giving of 30 days to respond does not appear to meet the test under these circumstances.

In addition, the record indicates the District Court did not consider any alternate sanctions. As an example, it would have been readily possible in this case to require of the plaintiffs that they be prepared to try the case in a period of time such as 3 months or 6 months and in the event of their failure to be totally prepared for trial, that the case then would be dismissed. Furthermore, under Rule 16, M.R.Civ.R, the District Court has the ability to manage and control the course of this litigation as well as consider appropriate sanctions when discovery is not completed or answered as required.

The majority accepts at face value the testimony of the plaintiffs with regard to their explanation of their actions during the one and one-half years prior to dismissal. I note the testimony contradicts the affidavit of Mr. Budewitz, their attorney. As a result, it is certainly possible that the District Court found their testimony not to be believable. Where the plaintiffs had picked up all of the files and were aware that the files had never been returned to Mr. Budewitz, it is difficult to conclude that they expected Mr. Budewitz to continue as attorney.

For me a controlling factor is stated in Cox v. Myllymaki (1988), 231 Mont. 320, 322, 752 P.2d 1093, 1094, where the Court stated that a judge’s discretion is not unlimited and it must be remembered that courts “exist primarily to afford a forum to settle litigable matters between disputing parties. (Citations omitted.)” I find the facts to be very close in this case, but for these reasons I conclude that we may properly say that there was an abuse of discretion in the dismissal of plaintiffs’ complaint.

JUSTICE BARZ concurs in the foregoing special concurrence.


source: Caselaw Access Project

author: JUSTICE McDONOUGH

license: Public Domain

text:
    ROBERT C. LINCOLN and MEGAN LINCOLN, Husband and Wife; Jack Noland and Beth Noland, Husband and Wife, Plaintiffs and Respondents, v. WESLEY J. PIEPER and FAYE E. PIEPER, Husband and Wife, Defendants and Appellants.
    No. 90-095.
    Submitted on Briefs Aug. 9, 1990.
    Decided Sept. 20, 1990.
    798 P.2d 132.

      Thomas W. Frizzell, Tipp, Frizzell & Buley, Missoula, for defendants and appellants.
    Richard DeJana, Kalispell, for plaintiffs and respondents.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

The defendants Wesley J. Pieper and Faye E. Pieper appeal the order of the Montana Eleventh Judicial District Court, Flathead County, granting partial summary judgment to plaintiffs Robert C. and Megan Lincoln and Jack and Beth Noland, holding that the Lincolns and Nolands have a right to use a water system passing through the defendants’ and the plaintiffs’ properties. We affirm.

The Piepers raise the following issues on appeal:

(1) Did the District Court err in holding that a conveyance of land and a water right “with appurtenances” from the parties’ common grantor created and transferred an easement for the plaintiffs to conduct water across the defendants’ property and deliver it to the plaintiffs’ properties?

(2) Did the District Court err in concluding that there were no genuine issues of material fact in this case that would preclude a grant of summary judgment?

The parties in this case are all owners of residential properties located along the western shore of Flathead Lake near Lakeside, Montana. The properties containing the disputed water conveyance system were once completely owned by Charles S. Bennett. In 1921 Bennett filed for domestic use water rights to serve approximately ten acres, including the three parcels currently owned by the Piepers, Lincolns and Nolands. In 1945 and 1946 Bennett subdivided the acreage conveying land with appurtenances as well as one-sixth and one-third interests in this domestic use water right to the Lincolns’ and Nolands’ predecessors, respectively. At some time, as to which the record is unclear, Bennett constructed a system of pipes, pump, and tank for the purpose of drawing water from Flathead Lake and conveying it to the property. This system passed through properties that ultimately became the defendants’ and both plaintiffs’, to a tank located on property now outside the three parcels. The defendants drew water from that tank up until October, 1983.

The Piepers’ predecessor Herlick conveyed the property on which the Pieper residence is located to the Piepers in 1977, “subject to easements for existing underground water lines.” Property immediately surrounding the tank was transferred to the Piepers in 1984, from a predecessor, Sheffield, who also derived his title from Bennett, “subject to a permanent easement for the maintenance, repair, and replacement of the existing water tank and water pipelines, including the right of ingress and egress for such purposes (said water tank and pipelines are a part of a water distribution system, said system not serving the premises hereby conveyed.)”

The Piepers’ predecessors maintained and repaired the water tank and system; some predecessors charged the other users a small fee to offset electrical costs of pumping, others chose not to charge. Ten to twelve families jointly used the water system in question along with the Piepers’ predecessors in interest. The Lincolns’ predecessors, the Morrisons, were receiving water through the system in 1959. Likewise, the Nolands’ predecessor, Shea, used a spigot attached to the water pipe system for drinking and household water beginning in 1968. The Nolands were verbally informed by Shea that drinking water was obtained via that spigot when they purchased from Shea in 1978.

The Piepers purchased their property in 1977 at a time when the spigot on the adjoining property was freely used by Shea. Shortly before the Lincolns purchased their property on April 2, 1982, the Piepers became aware that the Nolands had access to and used the water system. The Piepers also knew that the Lincolns had connected their new house to the pipe running through the Lincolns’ property. After purchasing their property, the Piepers made no changes to the water system until approximately October 13,1983, when the Piepers disconnected the water pipe leading from their property to the plaintiffs’ properties, prohibiting any potable water from reaching either of the plaintiffs’ properties. The Piepers refused the plaintiffs’ demands to reconnect the pipes and refuse to allow the plaintiffs access to reconnect the pipes.

The plaintiffs filed for a preliminary injunction on July 17, 1984, requesting that the Piepers be restrained from interfering with the re-connection of water lines. The plaintiffs further requested that the injunction be made permanent. On April 26,1985 the plaintiffs moved for partial summary judgment on the issue of whether the Piepers were hable for interfering with the plaintiffs’ property rights. On April 10, 1986, the court entered its findings of fact and conclusions of law granting partial summary judgment to the plaintiffs on the issue of liability. The Piepers’ subsequent motion to reconsider was denied. Eventually after a trial the jury returned a verdict for the plaintiffs of $8,000 in actual damages and $10,000 in punitive damages. The Piepers now appeal the findings of fact and conclusions of law granting partial summary judgment on liability.

I.

The Piepers primary contention on appeal is that the conveyance of a partial interest in a water right does not create ownership or a right to use the water system, pipes, pump, and tank, and further does not create an easement for maintenance and repair of the system by the plaintiffs. They essentially argue that while a conveyance of land with “appurtenances” includes a conveyance of a water right it does not include the transfer of the water conveyance system. This argument is based on the principle that a water right and a right to carry water across another’s land, an easement, (most often in a ditch and thus often referred to as “ditch rights”), are distinct, separate rights of property. Harrer v. Northern Pacific Ry. Co. (1966), 147 Mont. 130, 134, 410 P.2d 713, 715. Because such rights are separate and distinct they may be conveyed separately and the loss of one does not necessarily require loss of the other. Connolly v. Harrel (1936), 102 Mont. 295, 300, 57 P.2d 781, 783. However, the rule that these property rights are separate and distinct and may be severed from one another does not affect the long standing rule that if a water right passes as an appurtenance, the means of conveyance of the water, unless in someway severed, likewise passes:

“[I]t is a rule, in accordance with natural justice and reason, that, where one sells a house or a farm, every right will pass to the purchaser which is necessary to the complete use and enjoyment of the property conveyed, unless expressly reserved. Easements or servitudes are either personal or real, as, for instance, when a right of way is granted in favor of a particular person or persons, the sale of the estate will not carry with it the right which is confined to the persons; but where, by destination a right of way attaches to and in favor of a certain house, farm, ranch, or plantation or a certain right of drainage exists in favor of the farm, or the use of a certain ditch and water for irrigating of a farm, they will pass by the deed, even without the use of the word ‘appurtenances’; for the acquisition of the easement or servitude was intended for the benefit of the estate, and by destination is to be considered as incidental to the use of and as part and parcel of the realty.”

Tucker v. Jones (1888), 8 Mont. 225, 231, 19 P. 571, 573. Thus, this Court has held that the conveyance of a tract of irrigated land with its appurtenances also conveys the ditch, as well as the water right, necessary to the cultivation, use, and enjoyment of the land, just as fully as though the grantor had described it in express terms in the deed itself. Musselshell Valley Farming and Livestock Co. v. Cooley (1929), 86 Mont. 276, 294, 283 P. 213, 218; see also Castillo v. Kunnenmann (1982), 197 Mont. 190, 196, 642 P.2d 1019, 1024; Sections 70-17-101(11), 70-15-105, MCA. Clearly, use of the water conveyance system in this case is necessary for the plaintiffs to exercise their water rights and thus should be “considered as incidental to the use of and part and parcel of the realty.” Tucker, supra. Furthermore, examination of the chain of title and inspection of the property upon purchase by the Piepers would have revealed the existence of plaintiffs interest in the water system, and a reasonable inquiry would have disclosed that the Piepers’ land was “burdened with easements, in favor of Plaintiffs, for access to the water system, pipe, pump and tank, for maintenance and repair and use for pumping water from a jointly-held water appropriation.” (Conclusion of Law No. 2). Thus, the Piepers had at least constructive, if not actual, notice that they took their property subject to easements in favor of the plaintiffs. See, e.g., Otero v. Pacheco (1980), 94 N.M. 524, 612 P.2d 1335. The deeds indicate that the grantors intended the plaintiffs’ predecessors in interest to have an easement in the water system necessary for the beneficial enjoyment of their property, thus these easements were appurtenant to the premises conveyed.

II.

Finally, the Piepers claim in their brief that there are genuine issues of material fact regarding whether the plaintiffs’ predecessors use of the water system was permissive that would preclude summary judgment. See Rule 56(c), M.R.Civ.P. We note that in the proceedings below the Piepers also moved for summary judgment, thereby acknowledging that no genuine issues of material fact existed. More importantly, any facts regarding permissive use are only relevant toward the issues of whether the plaintiffs had acquired either a prescriptive right in the use of the water system, see e.g. Thomas v. Barnum (1984), 211 Mont. 137, 684 P.2d 1106, or whether the plaintiffs had a mere license to use the system as opposed to an easement by implication. Because we have ruled above that the use of the water system is an easement appurtenant to the water right and the land conveyed, any issue of permissive use is rendered immaterial to the case.

The plaintiffs have a property interest in the water system as an appurtenance to their properties, and the Piepers may not interfere with the exercise of such rights. However, this opinion does not in any way determine how any costs of maintenance and pumping should be allocated among the parties using the system as such matter was not fully addressed below.

The order of the District Court is

AFFIRMED.

CHIEF JUSTICE TURNAGE and JUSTICES HUNT, BARZ and WEBER concur.


text:
    In the Matter of the WAGE CLAIMS AND UNEMPLOYMENT INSURANCE CLAIMS OF DAVID L. SMAIL and Terry Brave, Respondents and Appellants, and THE DEPARTMENT OF LABOR AND INDUSTRY, BOARD OF LABOR APPEALS, Respondent and Respondent, v. AL'S SALES, INC., dba Oak and Brass and Dale P. Hart, Petitioner and Respondent.
    No. 90-201.
    Submitted on Briefs Aug. 9, 1990.
    Decided Sept. 20, 1990.
    797 P.2d 235.

      John W. Larson, Missoula, for respondents and appellants.
    Terry Wallace, Missoula, for petitioner and respondent.
    Melanie A. Symons, Dept, of Labor, Appeals Bureau, Helena, for amicus curiae.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from an order of the District Court of the Fourth Judicial District setting aside a default judgment entered against respondent, Dale Hart by the Department of Labor and Industry. The default judgment awarded appellants, David Smail and Terry Brave $41,844.44 in back wages and penalties. We reverse and remand for further proceedings.

The sole issue on appeal is:

Whether the District Court of the Fourth Judicial District erred when it set aside the default judgment entered against Dale Hart by the Department of Labor and Industry.

Dale Hart (Hart) was the owner and operator of Al’s Sales Inc., d/b/a Oak and Brass in Missoula, Montana. David Smail (Smail) and Terry Brave (Brave) were employees of Al’s Sales. For reasons not relevant to this appeal, Brave and Smail were terminated on May 13, 1988.

Following their termination, Smail and Brave submitted claims to the Department of Labor and Industry (Department) for overtime pay and unemployment compensation, which they alleged were owed to them by Hart. The claims for unemployment compensation have been determined and are not part of this appeal.

However, during the time that the unemployment compensation proceeding was pending, the Department sent Hart a letter informing him of the overtime wage claims. The letter further requested that Hart send all of his records relevant to Smail’s and Brave’s claims for overtime compensation.

According to Hart, bis lawyer contacted the Department and informed them that all of the requested records were tied up in the unemployment compensation proceeding and therefore were not available at that time. He further requested that he be given permission for further time to respond to the wage claim petition. Hart maintains that the Department gave him permission to file his response ten days after the decision was rendered in the Unemployment Compensation Hearing.

Apparently, the two claims were handled by different divisions within the Department. The Department states in its amicus brief that these two divisions rarely have any contact with one another. Consequently, neither division would necessarily have any knowledge of proceedings taking place in the other. This is why the state personnel handling the overtime claim were unaware of the proceedings surrounding the unemployment compensation claim.

At any rate, the hearing on the unemployment compensation claim took place on August 26, 1988, and the decision was rendered on August 29,1988. Unfortunately, notice of the decision was mailed to the wrong address, and consequently neither Hart nor his attorney knew about the decision.

Sometime in late September or early October, the Department sent a Notice of Opportunity of Hearing to Hart. This notice formally informed Hart of the overtime claims and further stated that:

“IF YOU [Hart] DESIRE TO CONTEST THE WAGE CLAIMS YOU MUST NOTIFY THE INVESTIGATIONS BUREAU OF THE EMPLOYMENT RELATIONS DIVISION, P.0. BOX 1728, HELENA, MONTANA 59624, IN WRITING WITHIN TEN (10) DAYS AFTER SERVICE OF THIS NOTICE ON YOU. CONTACT BY TELEPHONE TO THIS OFFICE DOES NOT WAIVE THIS REQUIREMENT.”

According to Hart, he didn’t answer the notice because he relied upon the Department’s oral agreement that he would have ten days following the final decision on the unemployment claim to respond. Since he didn’t know that that claim had been resolved, he did not contact the Department. After awaiting his response for twenty days, the Department entered a default judgment against Hart for $41,844.44.

Hart then appealed to the District Court. In its opinion and order, the District Court found that Hart failed to comply with the requirements of the Administrative Procedure Act when he failed to answer the notice. It further found, however, that Hart offered plausible excuses for his failure, including being misled by the state. The court also expressed its lack of knowledge concerning the circumstances surrounding Hart’s default. The court’s doubts are expressed in its order which states:

“A review of the record has raised questions which are not answered by the record. This is an action where the State may have acted hastily and failed to fulfill agreements, or the Petitioner may be lying. But the record provides no clear-cut guidance to the Court as to such matters. In any event, the least that happened herein was a failure to communicate. Such failure apparently involved inadequate communication between (1) the various divisions of the Department of Labor and Industry, (2) the Department and Petitioner, and (3) the Petitioner and Petitioner’s counsel.”

Based upon these doubts, the lower court set aáide the default judgment and remanded the case back to the Department for further proceedings in accordance with the Administrative Procedures Act. This appeal followed.

Section 2-4-704, MCA, provides the standard of review which must be utilized whenever a court reviews an agency decision. This statute provides that a reviewing court may not substitute its judgment for that of the agency on questions of fact. Findings of fact can only be reversed if the substantial rights of a party have been prejudiced because they are clearly erroneous. Section 2-4-704(2), MCA. If further evidence is required in order for the lower court to make a decision, the court may remand the case back to the agency for further fact finding. Section 2-4-703, MCA.

In the case now before us, it is clear that the lower court was not adequately informed of the circumstances surrounding the default. There was no record submitted by the Department which revealed the reasons for Hart’s failure to respond to the Department’s notice. As a result, the lower court was forced to hypothesize as to the reasons for such failure. The court’s confusion on this issue is evident by its statement that:

“This is an action where the state may have acted hastily and failed to fulfill agreements, or the Petitioner (Hart) may be lying.”

The lower court erred in reversing the default judgment when it was not adequately apprised of the reasons for Hart’s failure to respond. It should have remanded the case back to the Department for farther fact finding and decision relative to the default in accordance with § 2-4-703, MCA. We therefore reverse the order setting aside the default judgment and remand the case to the District Court for it to remand the case back to the Department for determination of the propriety of the default judgment. If the default judgment is vacated, the agency shall determine this controversy upon its merits.

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


text:
    KATHLEEN D. BREUER, as Guardian of Perian T. Breuer, Natural Mother and Guardian of Michael John Breuer, a minor child, Plaintiff and Respondent, v. JACK POE and CHARLOTTE POE, as Parents and Guardians of Jason G. Poe, a minor child, Defendants and Appellants.
    No. 90-304.
    Submitted on Briefs Aug. 23, 1990.
    Decided Sept. 20, 1990.
    797 P.2d 944.

      Timothy D. Geiszler, Geiszler and Newcomer, Missoula, for defendants and appellants.
    Dennis E. Lind, Datsopoulos, MacDonald and Lind, Missoula, for plaintiff and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from a default judgment rendered by the Fourth Judicial District, Missoula County. The judgment imposed personal liability upon Jack and Charlotte Poe, guardians of Jason Poe, in the amount of $5,010.95. We reverse.

The only issue relevant to this appeal is:

Whether the District Court erred in rendering judgment against Jack and Charlotte Poe in their individual capacities.

In 1988, Perian Breuer and Jason Poe, while minors, conceived a child in Missoula County, Montana in the year 1988. Shortly after the child’s birth, Jason Poe’s parental rights were terminated.

On July 7, 1989, Kathleen Breuer, as guardian of her daughter Perian, and grandson Michael [child of Perian and Jason] filed suit to recover medical costs incurred as a result of Michael’s birth. Jack and Charlotte Poe were named in the complaint as guardians of their son Jason.

The Poes filed a motion to dismiss the complaint. This motion was denied on December 29,1989 and the trial court gave the Poes twenty days to file an answer to the complaint. Apparently, no answer was filed and the District Court rendered a Judgment by default against the Poes individually on March 8, 1990. According to the judgment, they are personally liable for medical costs incurred by Perian Breuer in the amount of $3,709.37 together with costs in the amount of $75.00 and attorney’s fees in the amount of $1,226.58, for a total sum of $5,010.95. This appeal followed.

Both parties present several issues for our review including alleged procedural defects of the appeal, jurisdictional issues and the propriety of the award of attorney’s fees. We will not address any of these issues, however. Our decision to vacate the judgment is dispositive of this entire appeal.

As stated above Kathleen Breuer filed a complaint seeking reimbursement of medical costs incurred by her daughter Perian as a result of the birth of a child conceived by the daughter and Jason Poe. The complaint named Jason’s parents, Jack and Charlotte, defendants, as guardians of their son.

In their capacity as guardians, Jack and Charlotte Poe were charged with the duty of safeguarding Jason’s rights during the legal proceeding initiated by Kathleén Breuer. See 39 Am.Jur.2d Guardian and Ward § 1. However, this duty does not subject them to personal liability for the alleged wrongful acts of their son. Albert v. Stueber (1979), 202 Neb. 408, 275 N.W.2d 612.

Furthermore, the Poes were not given any notice that they were subject to personal liability. The title of the case as filed in District Court, the allegations contained in the complaint and all of the motions at trial address the Poes in their capacity as guardians. Given these facts, it is obvious that they were not notified of any likelihood of personal liability. Due process and fair play mandate against such occurrences. We therefore reverse and vacate the judgment entered against Jack and Charlotte Poe.

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


author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. SAMUEL E. MEDINA, Defendant and Appellant.
    No. 90-047.
    Submitted May 30, 1990.
    Decided Sept. 25, 1990.
    798 P.2d 1032.

      Deirdre Caughlan, Dunlap & Caughlan, Butte, for defendant and appellant.
    Marc Racicot, Atty. Gen., Elizabeth Baker, Asst. Atty. Gen., Helena, Robert M. McCarthy, County Atty., Eileen Joyce-Smith, Deputy County Atty., Silver Bow County, Butte, for plaintiff and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Defendant Samuel E. Medina appeals from the jury verdict rendered in the District Court of the Second Judicial District, Silver Bow County, which found him guilty of sexual assault. We affirm.

The issues on appeal are:

1) Whether the District Court erred in admitting evidence of defendant’s 1984 conviction of sexual assault.

2) Whether the District Court erred in admitting evidence of the victim’s prior consistent statements.

3) Whether appellant’s conviction is supported by sufficient evidence.

In early June, 1989, Carol Wold, psychologist for the Butte public school system, was visited by the defendant’s 15-year-old daughter, CM, together with two of her friends. The girls wanted to discuss a hypothetical situation in which a girl is sexually abused by her father. Wold told the girls that such abuse should be reported. The girls returned to Wold’s office shortly thereafter, and CM revealed that she had been sexually abused by her father. Terry Waldorf of the Department of Family Services was contacted immediately and interviewed CM that day. CM was interviewed several days later by Butte-Silver Bow Detective Thomas Gallagher and related the same account of sexual abuse to him.

Defendant was charged with one count of sexual assault, a felony, in violation of §§ 45-5-502(1) and (3), MCA. Defendant entered a plea of not guilty to the charge and was released on bail.

Thereafter, the State filed a notice of intent to introduce evidence of other crimes or acts. The information was also amended to expand the dates of commission of the offense to the time period between May 1987 and May 1989.

Defendant filed a brief opposing the introduction of other crimes evidence. Prior to the commencement of trial on November 7, 1989, the court ruled in open court that introduction of other crimes evidence would be permitted.

Trial was held on November 7 and 8, 1989. During trial, CM testified that on May 10, 1989, while her mother was out playing bingo and her sister was at night school, the defendant approached her from behind, put his hand down her pants and inserted his finger into her vagina; he then turned her around, lifted her shirt and fondled her breasts. She also testified that this was not the first time' that her father had touched her sexually. CM stated that on an earlier occasion in the family home, when CM had told her father to “shut up,” he turned and bit her on the breast. CM related this story to her friend, April Baker, who testified as to the existence of a red mark on CM’s breast. Further, CM testified that in May or June of 1987 her father forced her to perform oral sex on him and to stimulate him with her hand until he ejaculated. Similar incidents occurred every two or three weeks until the last episode in May 1989, which prompted her to tell authorities.

CM also related an experience of similar abuse by her father in 1984 when her family lived in Colorado. On that occasion, defendant took CM from her bedroom in the family home, pulled down her pants, and attempted unsuccessfully to have sexual intercourse with her. CM reported the incident to the police, as a result of which charges were filed and defendant entered a plea of guilty.

On cross-examination, defendant questioned CM about her possible motives for making these allegations against her father and whether she had related this sexual abuse to any members of her family. In response, the State presented testimony from various experts who had spoken with CM about the abuse. These experts included Terry Waldorf, Social Worker for the Department of Family Services.

Defendant and the rest of the family testified that, as a result of defendant’s previous conviction and the counseling thereafter received by the family, strict rules and safeguards were imposed in the home. Defendant was never allowed to be alone with either CM or her older sister, Nicole. The family testified that these safeguards were rigidly adhered to. Defendant also testified that the only improper sexual contact between himself and CM had been initiated by CM herself. The entire family testified that CM was a disruptive child. CM’s mother testified that, the night before CM reported her father’s alleged abuse, she and CM had argued about a boyfriend; CM had angrily told her mother that she would “get [them] all” and said: “It worked before and it will work again.”

The jury found defendant guilty of felony sexual assault as charged. Defendant was subsequently sentenced to a 20-year term of imprisonment and designated a nondangerous offender. Defendant filed a timely appeal.

The first issue on appeal is whether the'District Court erred in admitting evidence of defendant’s 1984 conviction of sexual assault.

The admission of other crimes evidence is governed by Rule 404(b), M.R.Evid., which states:

“(b) Other crimes, wrongs, acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

Generally, evidence of other crimes, wrongs, or acts is inadmissible to prove that a person “who commits a crime probably has a defect of character [and that] a [person] with such a defect of character is more likely than [people] generally to have committed the act in question.” 2 Weinstein’s Evidence § 404 [08], page 52 (1990). Other crimes evidence is admissible, however, for other relevant purposes such as “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Rule 404(b), M.R.Evid. The admission of such evidence is tempered by Rule 403, M.R.Evid., which requires that all evidence, even if relevant, “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice...” Rule 403, M.R.Evid.

The State must show that the other crimes evidence is relevant in proving the current charge. United States v. Mehrmanesh, 689 F.2d 822, 830 (9th Cir. 1982). In this case, the State sought to introduce other crimes evidence of defendant’s 1984 sexual assault conviction. To be convicted of sexual assault, defendant must “knowingly” commit the assault. Section 45-5-502(1), MCA. Aperson acts “knowingly” when he is aware of his conduct or is aware that his conduct created a substantial probability that a circumstance defining an offense would result. Section 45-2-101(33), MCA. Therefore, in this case the State must show that the previous conviction is relevant to prove that defendant was aware that his conduct caused the assault or created circumstances that resulted in the assault.

The State alleged that the prior conviction was relevant to prove that defendant acted “knowingly” by exposing defendant’s motive, intent, knowledge, absence of mistake or accident, and consciousness of guilt in participating in the current charge. We hold that the admission of the 1984 conviction is appropriate for the purpose of proving motive, intent, absence of mistake or accident, and knowledge.

The 1984 conviction indicated that defendant “knowingly” participated in the current charge by exposing his prior motive. Knowledge is appropriate to prove that the defendant was aware of his conduct. Also, if the defendant had committed the conduct once before, it is evidence that he knew the consequences that such action would again bring. Similarly, the previous occurrence of an assault on the same victim indicates that defendant was aware of the consequences of such conduct and that he could not claim that his actions were mistaken.

The relevancy of the other crimes evidence is farther supported under the test enumerated in the landmark case of State v. Just, 184 Mont. 262, 602 P.2d 957 (1979). Compliance with this test also lends additional support to the probative aspects of such evidence. State v. Eiler, 234 Mont. 38, 762 P.2d 210 (1988). The four factors involved in the test are as follows:

“1. The similarity of crimes or acts;
“2. nearness in time;
“3. tendency to establish a common scheme, plan or system; and
“4. the probative value of the evidence is not substantially outweighed by the prejudice to the defendant.” (Emphasis in original.) Just, 602 P.2d at 961.

In considering the first prong of this test, we have previously held that “prior acts need not be identical to the offense committed but be merely of ‘sufficient similarity’ in order to comply with this first criteria.” State v. Eiler, 762 P.2d at 216, quoting State v. Tecca, 220 Mont. 168, 714 P.2d 136 (1986). See State v. T.W., 220 Mont. 280, 715 P.2d 428 (1986), where similarity was established between the first act of defendant in which he got on top of the victim and pressed his erect penis against her buttocks, and the second act of defendant in which he fondled the victim’s breasts and pushed his hands into her pants.

Defendant’s 1984 conviction is sufficiently similar to the current charge. The 1984 conviction involved inappropriate sexual contact with his daughter, CM, who at that time was ten years old. Because defendant’s attempt at sexual intercourse was unsuccessful, defendant was convicted of sexual assault. The current charge also involved inappropriate sexual contact by defendant with the same daughter, who was fifteen at the time. Although the activities involved in each situation are not identical, it is inescapable that defendant’s conduct on both occasions was similar in that both involved sexual contact between the defendant and the same victim and occurred for purposes of defendant’s sexual gratification. We conclude that this meets the first test of similarity of acts.

With regard to nearness in time, each case must be examined in light of its unique set of facts. See State v. Hansen, 187 Mont. 91, 608 P.2d 1083 (1980), where we allowed two and one-half years; State v. Stroud, 210 Mont. 58, 683 P.2d 459 (1984), where we allowed three and one-half years; and State v. T.W., 220 Mont. 280, 715 P.2d 428 (1986), where we allowed four years when the facts indicated that defendant did not have a prior opportunity.

In this case, the three to five year period between the 1984 conviction and the charged crime is near enough in time to be considered probative. Defendant did not have an opportunity to be alone with his daughter, CM, prior to the three years. After defendant’s 1984 conviction, strict rules were imposed by the family on the defendant’s interaction with his daughters: defendant was never to be alone with either of his daughters; the daughters were to be together at all times when their mother was gone; and CM’s mother, whenever she left the house, would return and question the daughters as to whether everything was alright. In time, these rules were no longer strictly enforced. Defendant began to be left in the home with CM and her two younger brothers. As a result, when the two boys were playing elsewhere in the house, defendant would be alone in a room with CM. Defendant was given an “opportunity” three to five years after the 1984 conviction that did not exist immediately after the conviction. We conclude that the nearness in time portion of the test has been met.

Our next requirement is to determine whether the defendant was acting upon a common scheme, plan, or system at the time of the current charge. A common scheme, plan, or system is indicated by other crimes evidence when, compared with the current charge, the crimes possess a unique similarity which supports a plan to carry out a scheme. Just, 602 P.2d at 961.

The 1984 acts are so similar to the 1989 acts as to indicate that defendant was acting in accordance with a common pattern of behavior. Just, 602 P.2d at 961. This common pattern of behavior is indicated by the following facts: all the acts testified to occurred between the defendant and the same victim; all transpired when defendant was allowed to be alone with the victim; all involved essentially identical behavior by defendant; and all occurred for defendant’s sexual gratification. Just, 602 P.2d at 961. See Eiler, 762 P.2d at 216; T.W., 715 P.2d at 430. We conclude that the facts establish a common scheme or plan.

The evidence of the 1984 actions meets the first three Just factors and is, therefore, probative. However, in compliance with Rule 403, M.R.Evid., and the fourth Just factor, this probative value must still be balanced against the prejudicial effect this evidence may have on defendant.

Any evidence of other crimes will have prejudicial implications on the defendant. Just, 602 P.2d at 961. As a result, this Court adopted certain procedural safeguards to decrease these prejudicial implications. Just, 602 P.2d at 963-64. Although these procedural safeguards do alleviate some of the prejudice to defendant, they still do not replace the court’s ultimate task of weighing the probative value of the other crimes evidence against its prejudicial effect.

Defendant used the 1984 conviction to support the argument that CM concocted the current charge to be removed from the family home. The defense argued that CM knew from this prior experience that, if she accused defendant of sexual assault, she would be removed from the family home; she, therefore, concocted the story in order to get away from her parents with whom she was angry for the restrictions they imposed upon her relationship with her boyfriend.

Based upon the above discussion, the 1984 conviction was found to be relevant and its probative value outweighed its prejudicial effect. The District Court properly admitted the 1984 conviction into evidence.

The second issue on appeal is whether the District Court erred in allowing a prosecution witness to testify as to out-of-court statements made to her by the victim.

During trial, prosecution witness Terry Waldorf testified regarding an interview she had with the victim, CM. Defendant challenges this testimony to the extent that Waldorf repeated statements made to her by CM during this interview. This testimony is admissible under the prior consistent statement exception to the hearsay rule.

Hearsay is defined in Rule 801(c), M.R.Evid., “as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Certain out-of-court statements are not considered to be hearsay. Rule 801(d), M.R.Evid. One such example is prior statements made by a witness when: 1) the declarant testifies at trial, and 2) is subject to cross-examination concerning her prior statements; 3) the statements to which the witness testifies must be consistent with the declarant’s testimony, and 4) the statement must rebut an actual or implied charge of fabrication. Rule 801(d)(1), M.R.Evid.; State v. Mackie, 191 Mont. 138, 144, 622 P.2d 673, 676 (1981). “An attack on general credibility satisfies the recent fabrication element.” State v. Tafoya, 105 N.M. 117, 729 P.2d 1371, 1376 (Ct.App. 1986).

Clearly, the first three factors have been complied with: the declarant, CM, testified at trial; she was subject to cross-examination concerning her statement; and the witness Waldorf’s testimony was consistent with CM’s testimony. The defense argues, however, that these consistent statements are still not admissible because they were not being used to rebut an allegation of fabrication, or, if admissible for such purpose, should only have been used during the State’s rebuttal and not its case-in-chief.

This Court has previously addressed these arguments in a similar case. In State v. Hibbs, 239 Mont. 308, 780 P.2d 182 (1989), this Court held that the use of prior consistent statements made by the victim and testified to by certain prosecution witnesses would be allowed when defendant had attacked the victim’s credibility during opening and cross-examination. These witnesses were allowed to testify after the victim’s credibility had been attacked and after the victims themselves had testified. There was no requirement that these witnesses only be allowed to testify during the State’s rebuttal.

In this case, defendant attacked CM’s credibility during his opening statement and during CM’s cross-examination. In his opening statement defendant indicated that the sexual contact alleged by CM “did not happen” and that the defense would “present reasonable doubt” as to the truth of CM’s allegations. Further, when CM was cross-examined she was questioned repeatedly about alleged inconsistencies in her statements. These attacks on CM’s credibility justify the State’s use of prior consistent statements by Waldorf for rebuttal purposes. The State’s use of these statements could have occurred at any time after CM had testified.

The third issue on appeal is whether defendant’s conviction is supported by sufficient evidence.

The standard of review regarding the sufficiency of the evidence was well established in the case of State v. Brown, 239 Mont. 453, 781 P.2d 281 (1989). This standard of review is:

‘Whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Brown, 781 P.2d at 284, quoting State v. Tracy, 233 Mont. 529, 761 P.2d 398 (1988).

Defendant was charged with sexual assault on his daughter, CM. In order to prove defendant’s guilt, the State had to establish that defendant knowingly subjected his daughter, CM, a person less than 16 years old and not his spouse, to sexual contact without her consent. Section 45-5-502(1), (3), MCA. Sexual contact is defined in § 45-2-101(60), MCA, as “any touching of the sexual or other intimate parts of the person of another for the purpose of arousing or gratifying the sexual desire of either party.”

The uncorroborated testimony of the victim is sufficient to support a conviction of sexual assault provided that such testimony is consistent with other evidence. State v. Howie, 228 Mont. 497, 503, 744 P.2d 156, 159 (1987). In this case, CM testified as to sexual assault by the defendant. Her testimony was consistent with the testimony of other witnesses. The jury weighed her testimony and concluded that she was telling the truth. This testimony is sufficient to support the jury’s decision.

Defendant claims that even when the evidence is viewed in a fight most favorable to the State, such evidence is so fraught with inconsistencies that it is not sufficiently credible to support the verdict. These inconsistencies stem from variations in testimony between CM and other witnesses.

During review, this Court must not decide the weight of the evidence. “If the evidence conflicts, it is within the province of the trier of fact to determine which shall prevail.” State v. Brown, 239 Mont. 453, 781 P.2d 281 (1989). In Brown, we addressed a similar situation and stated:

“The issue of sufficiency of the evidence boiled down to the credibility of the State’s witnesses vis-a-vis the defendant’s testimony. The jury by its verdict resolved this conflict in favor of the State.” Brown, 781 P.2d at 284, quoting State v. Roberts, 633 P.2d 1214, 38 St.Rep. 1551 (Mont. 1981).

The jury in this case, sitting as the trier of fact, weighed the conflicting evidence and chose to believe the State’s witnesses. We will not disturb this conclusion.

Affirm.

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


text:
    CITY OF HELENA, Plaintiff and Respondent, v. ROBERT PATRICK BARRETT, Defendant and Appellant.
    No. 90-223.
    Submitted on Briefs Aug. 23, 1990.
    Decided Oct. 3, 1990.
    798 P.2d 544.

      Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena, for defendant and appellant.
    Robert J. Wood, Asst. City Atty., Helena, for plaintiff and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

The Defendant Robert Patrick Barrett appeals the judgment and order of the Montana First Judicial District Court, Lewis and Clark County, convicting him of the offense of driving under the influence of alcohol or drugs. We affirm the conviction.

Barrett raises the following issue on appeal:

Did the District Court err in refusing to give the Defendant’s proposed instructions nos. 3 and 4?

Officers testified that on February 21, 1989, Barrett’s vehicle was observed driving down the wrong side of the roadway, drifting back across the roadway, and weaving. When stopped, Barrett refused to take any field sobriety tests. After he was arrested, he continued to refuse to take any tests, including a chemical breath test. He was given a ticket for driving on the wrong side of the roadway and for driving under the influence, and his driver’s license was revoked pursuant to Montana’s implied consent law, § 61-8-402, MCA, for refusing to take a breath test to determine the alcohol content of his blood.

A jury trial was held in Helena City Court on August 10,1989, and a mistrial was declared when the jury failed to reach a verdict. The case was tried again on October 24, 1989. The charge of failure to drive on the right side of the roadway was dismissed and the jury found Barrett guilty of driving under the influence. The case was appealed and tried de novo in district court on February 5, 1990. At this trial, the court refused to give two of Barrett’s proposed instructions, and the jury subsequently found Barrett guilty. Barrett now appeals arguing that the failure to give these instructions was reversible error.

We disagree. The first instruction proposed by Barrett and refused by the court is as follows:

‘You are instructed that, if a person refuses to submit to a test of their breath, blood or mine, such refusal is admissible evidence. However, you may not draw any inference from the fact that he refused such a test.”

Defendant’s Proposed Instruction No. 3. This instruction was properly refused because the second sentence is an incorrect statement of the law. State v. Crazy Boy (1988), 232 Mont. 398, 403, 757 P.2d 341, 344. In City of Missoula v. Forest (1989), 236 Mont. 129, 133-134, 769 P.2d 699, 701-702, we again held that evidence of refusal to submit to the breathalyzer is admissible, in accordance with § 61-8-404(2), MCA, and the United States Supreme Court’s decision in South Dakota v. Neville (1983), 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748, which this Court followed in State v. Jackson (1983), 206 Mont. 338, 672 P.2d 255. These cases clearly establish the rule that neither the results of the breathalyzer test nor a defendant’s refusal to submit to the breathalyzer test are communications protected by the Fifth Amendment of the federal constitution or Article II, Section 25 of the Montana Constitution. In Neville the Court stated:

“... W]e do not think it fundamentally unfair for South Dakota to use the refusal to take the test as evidence of guilt, even though respondent was not specifically warned that his refusal could be used against him at trial. First, the right to silence -underlying the Miranda warnings is one of constitutional dimension, and thus cannot be unduly burdened. [Citations omitted.] Respondents right to refuse the blood-alcohol test, by contrast, is simply a matter of grace bestowed by the South Dakota Legislature.
“... The officers did not specifically warn respondent that the test results could be used against him at trial. Explaining the consequences of the other option, the officers specifically warned respondent that failure to take the test could lead to loss of driving privileges for one year. ... Importantly, the warning that he could lose his driver’s license made it clear that refusing the test was not a ‘safe harbor,’free of adverse consequences.
“While the State did not actually warn respondent that the test results could be used against him, we hold that such a failure to warn was not the sort of implicit promise to forgo use of evidence that would unfairly ‘trick’ respondent if the evidence were later offered against him at trial. We therefore conclude that the use of evidence of refusal after these warnings comported with the fundamental fairness required by due process.”

Neville, 103 S.Ct. at 923-924. Thus, evidence of refusal is simply another factor to be considered along with all other relevant, competent evidence in determining whether the accused is guilty or not guilty. The instruction was properly refused because it instructed the jury not to consider such evidence for any purpose.

The second instruction offered by Barrett and refused by the court is as follows:

“You are instructed that a law enforcement officer is permitted to make an investigatory stop of an individual when he has a particularized suspicion of some kind of wrongdoing. There is conflicting evidence in this case concerning whether or not the defendant was weaving across the centerline or driving down the middle of the roadway. If you believe that the defendant was not weaving or that conditions of the roadway required him to drive down the middle, then you shall disregard any evidence obtained as a result of the stop and detention including but not limited to the testimony of all witnesses who have testified for the city in this case.”

Defendant’s Proposed Instruction No. 4. The last sentence of this instruction is an incorrect statement of the law, thus this instruction was also properly refused. Crazy Boy, 757 P.2d at 344. The focus of a determination on the validity of a stop is whether the police officer had sufficient grounds for a particularized suspicion or reasonable suspicion that an offense is taking place. State v. Sharp (1985), 217 Mont. 40, 45, 702 P.2d 959, 962; State v. Stemple (1982), 198 Mont. 409, 412, 646 P.2d 539, 540-541; State v. Gopher (Mont. 1981), [_ Mont. _,] 631 P.2d 293, 296, 38 St.Rep. 1078, 1081. Under the proposed instruction, even if the defendant subjectively believed the conditions of the roadway required him to drive down the middle, a trained police officer observing such actions still could have formed a reasonable suspicion and had sufficient grounds to stop the defendant. In such a situation, it would be error to instruct the jury to disregard all evidence obtained as a result of the stop. The instruction was properly refused.

The District Court committed no error in refusing Barrett’s proposed instructions Nos. 3 and 4. The judgment is

AFFIRMED.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DELMAR BLACK, Defendant and Appellant.
    No. 88-206.
    Submitted June 28, 1990.
    Decided Sept. 7, 1990.
    Rehearing Denied Oct. 25, 1990.
    798 P.2d 530.

      F. Woodside Wright, Helena, for defendant and appellant.
    Marc Racicot, Atty. Gen., Paul Johnson, Asst. Atty. Gen., Helena, Ralph Patch, Roosevelt County Atty., Wolf Point, for plaintiff and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant and defendant Delmar Black appeals from the order of the District Court of the Fifteenth Judicial District of the State of Montana, County of Roosevelt, which accepted defendant’s plea of guilty to simple assault, a felony, and sentenced defendant to 5 years at the Montana State Prison. The sentence also required that defendant complete a sexual offender course while incarcerated. We affirm.

The issues on appeal are:

1. Whether defendant was denied his right to counsel at the evidentiary hearing ordered by this Court regarding defendant’s claim of ineffective assistance of counsel.

2. Whether defendant’s claim of ineffective assistance of counsel on direct appeal is res judicata due to the previous findings of fact and decision on this issue by the District Court and which was subsequently adopted by this Court.

3. Whether defendant’s plea of guilty was entered voluntarily and with knowledge of its consequences.

4. Whether the sentence imposed upon defendant by the District Court was.a legal sentence.

5. Whether the delay in appointing counsel for defendant on direct appeal was a denial of due process.

Defendant was charged by information with the felony offense of incest with his fourteen-year-old daughter, N.B. A jury trial was set to be held on February 8, 1988. On that date, but before the trial began, defendant’s attorney and the county attorney approached the court with a plea agreement proposal. The plea agreement contemplated amending the charge against defendant from incest to simple assault. The county attorney made a motion requesting the court to allow such amendment and the motion was granted.

The factual basis for the amended charge was that Black had physically and mentally injured his daughter in the course of soliciting her for sex and engaging her in lengthy discussions regarding sexual matters. After lengthy interrogation by the court, defendant’s plea of guilty to the amended charge was accepted, and, pursuant to the plea agreement, defendant was sentenced to five years in the Montana State Prison, subject to the condition that he enroll in and complete the sexual offender’s treatment program at the prison.

On March 15, 1988, defendant filed a notice of appeal in District Court, together with a motion for appointment of counsel. In his motion for appointment of counsel, defendant stated that he needed new counsel because he intended to pursue a claim of ineffective assistance of counsel against the attorney originally appointed to represent him. The District Court did not act on defendant’s motion to appoint counsel so, on May 4,1988, defendant filed in this Court a motion to compel the District Court to appoint counsel. This motion to compel was supported by a brief which contained, as exhibits, copies of defendant’s previous motions.

On June 14,1988, this court, after briefing by the State of Montana Attorney General, remanded the case to the District Court for an evidentiary hearing on defendant’s claim of ineffective assistance of counsel. In our order, we denied defendant’s request for appointment of counsel for the proceedings on remand.

The evidentiary hearing was held on August 31,1988. The original sentencing judge did not preside. Defendant, representing himself, attended the hearing and participated in the examination and cross-examination of witnesses.

On September 7, 1988, the District Court entered its findings of fact and decision, concluding that defendant had not been denied effective assistance of counsel. In an order dated September 20,1988, we adopted the findings and decision of the District Court denying defendant’s ineffective assistance claim.

Counsel was then appointed by the District Court. This appeal on all the issues enumerated above, including the issue of ineffective assistance of counsel followed.

The first issue is whether defendant was denied his right to counsel at the evidentiary hearing ordered by this Court regarding defendant’s claim of ineffective assistance of counsel. A defendant is entitled to assistance of counsel through the critical stages of a criminal prosecution “where potential substantial prejudice inheres in the absence of counsel.” State v. Robbins, 218 Mont. 107, 111, 708 P.2d 227, 230 (1985). See U.S. Const. Amend. VI. Direct appeals are considered to be part of these critical stages. However, petitions for post-conviction relief are collateral attacks that are civil in nature and are not governed by the Sixth Amendment requirements for counsel. See Coleman v. State, [_ Mont. _,] 38 St.Rep. 1352, 1353-54, 633 P.2d 624, 626-627 (Mont. 1981).

In this case, although defendant originally raised the issue of ineffective assistance of counsel on direct appeal, the resolution of such issue required consideration of factual matters not contained in the record thereby making it an inappropriate issue for direct appeal. Section 46-20-701, MCA; State v. Elliott, 221 Mont. 174, 178, 717 P.2d 572, 575 (1986). Because defendant’s filing failed to meet the requirements of a direct appeal, we appropriately treated such filing as a petition for post-conviction relief as provided in §§ 46-21-101 to 203, MCA. We then remanded defendant’s claim to the District Court so that an evidentiary hearing could be held that would allow defendant to present those factual matters necessary to his claim. See State v. Laverdure, 212 Mont. 31, 33, 685 P.2d 375, 376 (1984).

Our treatment of defendant’s claim is in keeping with the conclusions reached by the Ninth Circuit Court of Appeals in U.S. v. Birges, 723 F.2d 666 (9th Cir., 1984). In Birges, the court specifically stated that ineffective assistance of counsel claims raised on direct appeal and involving the consideration of facts beyond the record would more appropriately be addressed by a petition for post-conviction relief. Birges, 723 F.2d at 670. See also People v. Pope, 23 Cal.3d 412, 152 Cal. Rptr. 732, 590 P.2d 859 (1979). Because defendant’s claim of ineffectiveness involved facts beyond the record and because all of the requirements for a petition for post-conviction relief were met, defendant’s claim was appropriately classified as a petition for post-conviction relief. As a result, defendant was not constitutionally entitled to counsel.

The second issue on appeal is whether defendant’s claim of ineffective assistance of counsel on direct appeal is res judicata due to the previous findings of fact and decision on this issue by the District Court, which was subsequently adopted by this court.

This Court has applied the issues of res judicata and law of the case to preclude an appellant from raising issues on appeal which were previously resolved by this Court. State v. Perry, 232 Mont. 455, 463-65, 758 P.2d 268, 273-74 (1988); State v. Smith, 220 Mont. 364, 372, 715 P.2d 1301, 1306 (1986). The principle is that an issue that has been finally decided cannot again be relitigated. State v. Zimmerman, 175 Mont. 179, 185, 573 P.2d 174, 177 (1977). “[WJhere a decision has been rendered by the Supreme Court on a particular issue between the same parties in the same case, whether that decision is right or wrong, such decision is binding on the parties and the courts and cannot be relitigated in a subsequent appeal.” Zimmerman, 175 Mont. at 185, 573 P.2d at 177. Two important policy rationales underlie these principles: judicial economy and the need for finality of judgments. Perry, 232 Mont. at 463, 758 P.2d at 273. They stand “for the proposition that there must be an end to litigation at some point.” Perry, 232 Mont. at 464, 758 P.2d at 273.

In this case, an evidentiary hearing was held on the issue of ineffective assistance of counsel. The District Court rendered a decision which we reviewed and subsequently affirmed. To afford defendant additional review of the same issue between the same parties would negate the intent of the doctrines of res judicata and law of the case. Defendant’s claim of ineffective assistance has been fully litigated and reconsideration of that claim is barred.

The third issue on appeal is whether defendant’s plea of guilty was entered voluntarily and with knowledge of its consequences. We have already disposed of defendant’s ineffective assistance of counsel claim and will not discuss defendant’s assertion that his guilty plea was involuntary due to ineffective assistance of counsel.

Section 46-16-105, MCA, governs a district court’s acceptance of a guilty plea and provides that:

“(1) Before or during trial, a plea of guilty may be accepted when:
“(a) the defendant enters a plea of guilty in open court; and
“(b) the court has informed the defendant of the consequences of his plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea.”

A guilty plea is presumed to be provided voluntarily and with full knowledge of its consequences when:

“the District Court carefully... examines the defendant, finds him to be competent, and determines from him that his plea of guilty is voluntary, he understands the charge and his possible punishment, he is not acting under the influence of drugs or alcohol, he admits his counsel is competent and he has been well advised, and he declares in open court the facts upon which his guilt is based ...”

State v. Docken, 222 Mont. 58, 62-63, 720 P.2d 679, 682 (1986) citing State v. Lewis, 177 Mont. 474, 582 P.2d 346 (1978). “[A] plea of guilty accepted by the District Court on the basis of that examination will be upheld ...” Docken, 222 Mont. at 63, 720 P.2d at 682, citing Lewis.

In State v. Martz, 233 Mont. 136, 760 P.2d 65 (1988), we added that the district court must also inform the defendant of the following before accepting his or her guilty plea:

“1) [the defendant’s] constitutional rights;
“2) the consequences of a guilty plea;
“3) the possible maximum penalty involved; and
“4) that the court could not involve itself in the plea agreement and was not obligated to accept the recommended sentence.”

Martz, 233 Mont. at 143, 760 P.2d at 69.

In this case, it is evident from the record that the District Court properly examined defendant and correctly determined that defendant’s plea was entered voluntarily and with full knowledge of its consequences. Defendant’s assertion that he was never informed by the District Court that he would have to attend a sexual offender’s program is directly contrary to the record as set forth in the transcript of the sentencing hearing where, when directly questioned by the court defendant specifically acknowledges such requirement:

“THE COURT: But you -understand that ... if you entered a plea here of guilty, you would be sentenced to five years in the state prison and that you will undergo 72 weeks or 73 weeks of sexual offenders therapy?
“DEFENDANT: Yes.”

Defendant also asserts that his plea was not entered with full knowledge because his hearing loss and the medication he was taking for his arthritis interfered with his ability to fully understand the consequences of his plea. The record fails to support defendant’s assertion. During the questioning by the District Court, defendant answered all questions without hesitation and without request that the court repeat itself.

Defendant’s plea of guilty was entered voluntarily and with full knowledge. The court informed defendant of the consequences of his plea and of the possible maximum penalty which may be imposed. There is nothing in the record to suggest that defendant was unable to hear or understand what the court asked or that he was not in full control of his faculties.

The fourth issue on appeal is whether the sentence imposed upon defendant by the District Court was a legal sentence.

Defendant argues that the District Court did not have the authority to require the defendant to complete a sexual offender’s course while incarcerated. Defendant is mistaken.

In imposing the appropriate sentence, the district court must comply with the requirements set forth in §§ 46-18-201 through - 261, MCA. Under § 46-18-202(l)(e), MCA, the district court is given broad discretion in imposing restrictions upon a defendant beyond those specifically required by statute:

“The district court may also impose any of the following restrictions or conditions on the sentence provided for in 46-18-201 which it considers necessary to obtain the objectives of rehabilitation and the protection of society:
“(e) any other limitation reasonably related to the objectives of rehabilitation and the protection of society.”

In imposing additional limitations there must be a correlation established between the additional limitations and either the rehabilitation of the offender or the protection of society. In State v. Sullivan, 197 Mont. 395, 642 P.2d 1008 (1982), the District Court found that the burglary committed by the defendant was significantly influenced by excessive alcohol use. This connection between the crime committed and alcohol justified the District Court’s sentence prohibiting defendant’s use of alcohol while on parole. This Court reasoned that failure to restrict defendant’s alcohol use “would not aid in his rehabilitation nor would it be conducive to the protection of society.”Sullivan, 197 Mont. at 403, 642 P.2d at 1012.

In this case, the District Court properly included within defendant’s sentence the condition that defendant complete a sexual offender’s course while incarcerated. Defendant was convicted of assault upon his fourteen year old daughter. There is ample support in the record, based upon the examination of defendant at the plea hearing, that the assault took the form of both bodily injury and invitations or solicitations concerning sexual intercourse which resulted in mental and emotional impairment to the daughter. The sexual nature of the assault established a significant connection between the crime and the need for defendant to attend the sexual offender’s program. In order to protect society and to promote rehabilitation of the defendant, the District Court properly determined that defendant needed to attend the sexual offender’s program. The sentence was proper.

The fifth issue on appeal is whether the delay in appointing counsel for defendant’s direct appeal was a denial of due process.

Defendant alleges that the 21 month delay between the date of filing his notice of appeal and request for appointment of counsel to the date counsel was appointed was a denial of due process. We disagree.

Due process protection under both the United States Constitution and the Montana Constitution requires that a defendant be given a fair and meaningful appeal. U.S. Const. Amend. XIV; Mont. Const., Art. II, § 17. Because each case revolves around a unique set of facts, “consideration of the facts and circumstances of each case” must be evaluated to determine whether that particular defendant has been afforded a fair and meaningful appeal. Hankins v. Wicker, 582 F.Supp. 180, 182-183 (W.D. Pa. 1984).

This Court has not specifically dealt with this issue. Therefore, we look to the line of cases originating with United States v. Alston, 412 A.2d 351 (D.C. 1980), for support. See State v. Chapple, 660 P.2d 1208 (Ariz. 1983); State v. Hall, 145 Vt. 299, 487 A.2d 166 (1984); Lopez v. State, 769 P.2d 1276 (Nev. 1989).

Alston held that a delay in the processing of an appeal rises to the level of a due process violation only upon a showing of prejudice to the defendant. Alston, 412 A.2d at 357. Prejudice to the defendant is the sole determining factor in assessing whether a defendant was given a fair and meaningful appeal. Alston, 412 A.2d at 357; Chapple, 660 P.2d at 1226; Hall, 487 A.2d at 171. In alleging prejudice due to appellate delay, defendant must show that: 1) he is “unable to present an adequate appeal because of the delay, or 2) that he will be unable to defend adequately in the event a retrial is ordered.” Hall, 487 A.2d at 171, citing Chapple, 660 P.2d at 1225-1226 and Alston, 412 A.2d at 356-357.

In this case, defendant has failed to show that the delay in hearing his appeal and in the appointment of counsel prejudiced his appeal. Delay alone is not adequate to raise a due process concern absent some proof of prejudice occasioned by the delay. Chapple, 660 P.2d at 1226 (15-month post-conviction incarceration without appeal does not, absent a showing of prejudice, violate due process). See also Alston, (3314-month delay did not result in prejudice); Hall, (17 -month delay did not result in prejudice).

Defendant has only presented general allegations concerning prejudice resulting from denial of appointment of counsel. It has already been determined that defendant was not entitled to counsel at the evidentiary hearing on remand. Immediately after the hearing, counsel was appointed to represent defendant isssn his current appeal. Defendant has failed to show that subsequent appointment of counsel was prejudicial.

Additionally, the time period defendant refers to as a delay is questionably labeled. Defendant filed his notice of appeal on March 15, 1988. After briefing, this Corat issued an order remanding the case to the District Court and denying defendant appointment of counsel on remand. The District Court heard the remand on August 31,1988, and issued its order on September 7,1988. Upon review of the District Court’s order, this Court issued its order adopting the District Court’s findings on October 7, 1988. Counsel for defendant was then appointed and the appeal was briefed by both parties. Based upon the above it is evident that this Court proceeded in an orderly, timely, and legally proper fashion to review and dispose of the case.

Affirmed.

JUSTICES HARRISON, BARZ, SHEEHY and McDONOUGH concur.