author: MR. JUSTICE WEBER HON. JUDGE BENNETT, District Judge, MR. JUSTICE MORRISON,

text:
    WILEY J. JUEDEMAN and Harold Juedeman, as Personal Representatives of the Estate of Clarice E. Juedeman, deceased, and on their own behalf, and behalf of all other heirs of Clarice E. Juedeman, deceased, et al., Plaintiffs and Appellants, v. MONTANA DEACONESS MEDICAL CENTER, a corporation, Defendant and Respondent.
    No. 85-246.
    Submitted on Briefs June 6, 1986.
    Decided Oct. 1, 1986.
    726 P.2d 301.

      HON. GORDON BENNETT, District Judge, sitting in place of MR. JUSTICE HUNT, dissented and filed opinion in which MR. JUSTICE MORRISON joined.
    Regnier, Lewis, Boland & Roberts, James M. Regnier, Great Falls, Anderson, Edwards & Molloy, A. Clifford Edwards, Billings, for plaintiffs and appellants.
    Alexander & Baucus, John D. Alexander and Neil E Ugrin, Great Falls, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiffs brought a wrongful death and survivorship action against Montana Deaconess Medical Center (hospital) in the Eighth Judicial District Court for Cascade County. Following a jury trial, a verdict was returned in favor of the hospital and judgment followed. Plaintiffs appeal. We affirm.

The issues are:

1. Did the District Court err in giving a proximate cause jury instruction?

2. Did the District Court err in giving a “mere fact of injury” jury instruction?

3. Did the District Court err in giving an alternative methods jury instruction?

4. Did the District Court err in granting the hospital a protective order that prohibited deposing the hospital’s nontestifying expert?

On May 26, 1981, Clarice Juedeman, age 71, had colon surgery. During surgery a catheter was inserted in her right internal jugular vein for the purposes of measuring pressure, withdrawing blood samples, and feeding and medicating her. Following the surgery she convalesced well and no longer required intravenous feeding or medication. Her attending physician, Dr. Mungas, wrote an order on June 5, 1981, to discontinue the IV. A nurse removed the IV that day. Shortly after removal, decedent lapsed into a coma. She died eleven days later.

The critical question was whether the nurse negligently removed the IV and allowed air to enter the jugular vein; and if that occurred, whether the air entered into the circulatory system and ultimately plugged capillaries in the brain causing damage to the brain and coma. In medical terminology, the question was whether the removal of the IV caused an air embolism.

Because the issues require a clear understanding of the complex and contradictory testimony, we review the testimony in some detail. Plaintiff Clarene Dysart, daughter of the decedent, testified essentially as set forth in this paragraph: She and the decedent were talking in the room when Nurse Abel came in and informed the decedent that she was going to remove the catheter. Prior to the removal of the catheter, Nurse Abel brought decedent and her daughter coffee. Nurse Able hesitated when she realized she didn’t know how to remove a catheter and left the room to speak with her supervising nurse. At this time, Mrs. Juedeman was sitting in a straight backed padded plastic chair. Nurse Abel returned with Celia Villanueva, her supervising nurse, who removed the IV while Mrs. Juedeman was sitting in the straight backed chair. After Nurse Villanueva dropped the catheter and left the room, Nurse Able put gauze on Mrs. Juedeman’s neck. Within 30 seconds Mrs. Juedeman experienced numbness, her eyes glazed and she started to go limp. Nurse Abel ran to get Nurse Villanueva while the daughter held her mother in the chair. When Nurse Abel returned, she attempted to administer oxygen, but had great difficulty because she was in a panic. The hospital room was in bedlam with nurses yelling at each other. Eventually a nurse and an orderly put Mrs. Juedeman back in bed. That evening after Mrs. Juedeman was removed to the intensive care unit, the daughter talked to Dr. Mungas, the attending physician. She testified that she asked, “Since it happened so soon after the removal of that catheter would that have anything to do with that?” Dr. Mungas answered, “It would certainly lead you to think so, wouldn’t it?”

Nurse Abel, who was the decedent’s primary nurse, testified essentially as set forth in this paragraph. Because she had never removed an internal jugular vein catheter, she consulted the procedure manual, which did not offer protocol as to proper positioning of the patient. Nurse Abel then called intensive care nurses. One intensive care nurse recommended that the patient sit upright and another recommended a semi-reclined position. After she obtained gauze and neosporin, Nurse Abel asked Nurse Villanueva, her supervisor, for assistance. They went into decedent’s room. Decedent was sitting in a gold cloth recliner chair and Nurse Abel reclined the chair back. Nurse Villanueva turned off the IV and clamped it down. Nurse Abel slowly removed the catheter from decedent’s neck. After holding the pressure for a good minute, Nurse Abel taped the spot where the catheter had been removed. Nurse Abel then talked to the decedent for approximately seven minutes before taking the IV equipment to the medication room and getting the family coffee. When Nurse Abel returned with the coffee, decedent appeared to be in distress and said she felt numb. Nurse Abel and Nurse Villanueva put decedent in bed and oxygen was administered without difficulty. Nurse Abel could not remember if the daughter was in the room when the IV was removed or whether she helped place the decedent in the bed. Nurse Abel had worked in a hospital in California immediately prior to trial. When asked how she would remove a jugular catheter today, Nurse Abel indicated she would recline a chair at approximately a 45 degree angle as she had done in California.

Nurse Villanueva testified essentially as set forth in this paragraph. When asked for assistance by Nurse Abel, she was aware Nurse Abel had consulted the procedure manual. She was not aware Nurse Abel had called the intensive care unit. When Nurse Villanueva went in the room, decedent was in a yellow or gold recliner chair, in a semi-reclined position. Nurse Villanueva shut off the IV tubing with a clamp. Nurse Villanueva then instructed Nurse Abel to remove the catheter slowly while applying moderate pressure, and after removal, to continue pressure for another minute and finish by taping the spot. Nurse Villanueva left shortly after she watched Nurse Abel perform the procedure. Approximately five minutes after Nurse Villanueva left the room, she saw Nurse Abel go inside the medication room and get a cup of coffee. The next time Nurse Villanueva saw Nurse Abel was when Nurse Abel asked her to check the decedent, about ten minutes after the removal. When Nurse Villanueva entered the decedent’s room, the decedent was in distress. Both nurses tried to transfer decedent to the bed but she was too heavy and transfer was completed only after a male orderly arrived. Once transferred she was given oxygen. Nurse Villanueva testified that prior to coming to Deaconess Hospital, she had worked in a San Francisco hospital where she was specially trained as an intravenous nurse. During her six week course at the San Francisco hospital she received no instruction as to how a patient should be positioned when a jugular catheter was removed. However, during the three and a half years she was employed in California, she removed catheters about twelve times, and the patients were either stretched out on a bed, in a reclined position, or sitting. Based upon her experience, she concluded that position didn’t matter.

Dr. Mungas, who practiced both general and vascular surgery, testified by deposition as set forth in this paragraph. The catheter was inserted at the time of the colon surgery. Dr. Mungas ordered the catheter removed on June 5, 1981. He was called at home by one of the nurses and was informed that the decedent was having trouble. The nurse stated over the phone that Mrs. Juedeman was sitting in a chair when the nurse removed the IV; that after the IV was removed, the patient complained of feeling dizzy or weak and asked to be put back in bed and then became unresponsive. After returning to the hospital that evening, Dr. Mungas examined the patient and talked with her daughter and a nurse. His discussions led him to believe that it was not seconds but minutes after the IV was removed before the patient felt numb. Later Dr. Mungas consulted with Dr. Brenton, whose diagnosis was air embolism. Dr. Mungas questioned Dr. Brenton’s diagnosis of air embolism but yielded to him as the specialist in neurology. However, after a series of tests failed to confirm Dr. Brenton’s diagnosis, Dr. Mungas concluded the decedent could have died from thrombotic stroke, embolic stroke, or cardiac arrhythmia, with the most likely cause being cardiac arrhythmia. Air embolism was a very, very remote possibility. Dr. Mungas described the decedent’s predisposition as follows:

“She is elderly. She is diabetic. Diabetics have accelerated development of atherosclerosis. Atherosclerosis is one of the more common causes of stroke. She has hypertension, which is one of the predisposing causes of stroke. And she has atherosclerotic heart disease manifested by a previous history of congestive heart failure. And if I remember right, she has had some problems with tachycardia in the past, which is a manifestation of atherosclerotic heart disease. So all of these things I would say might predispose her to have a stroke: her age, diabetes, hypertension and heart disease.”

On June 16, 1981, the date of decedent’s death, Dr. Mungas wrote a letter to the Director of Nursing suggesting that a new protocol be adopted for removing a jugular catheter. Dr. Mungas recommended that central venous catheters should only be removed when a patient was in a flat position.

Mercedes Strain, Director of Nursing at the hospital in June, 1981, testified as set forth in this paragraph. On the date of the operation there was no protocol or instruction regarding the proper position of the patient when a catheter of this type was removed. Prior to receiving Dr. Mungas’ letter suggesting a recumbent protocol, she was conducting an investigation regarding the position decedent was in when the catheter was removed. The investigation revealed that decedent was in a reclining chair but did not specify the position of the reclining chair. On June 19, after some research, Mercedes Strain wrote Dr. Mungas that some surgeons did not suggest positioning in a flat position, and research of medical literature was not helpful. On June 24, 1981, a protocol was distributed which suggested that as an added safety precaution to the patient before discontinuing jugular IV’s the patient should be placed in bed in a recumbent or flat position.

Mary Valacich, Director of Nursing Services at the other hospital in Great Falls testified that prior to 1983 there was no written protocol as to the positioning of a patient when such a catheter was removed. However, since 1975, the policy in their hospital had been to place the patient in a flat position.

Dr. Brenton, who previous practiced in Great Falls as a neurologist, testified as set forth in this paragraph. He examined the patient on June 6, 1981 and his impression was that she suffered an air embolism and that this accounted for her neurological state. His diagnosis was based on the close-in-time relationship between the discontinuation of the catheter and the patient’s clinical appearance. Dr. Brenton stated that an air embolism is more likely to occur if a patient is sitting upright than lying down. He pointed out that for an air embolus to occur there has to be a vacuum effect in the vein, which means a negative pressure in the vein. If a patient is sitting upright, there is the possibility of air being sucked into the vein. However, if the patient is lying down, the vein will be distended by blood and will tend to be bleeding which will not allow air to enter. He did point out that if there was an air embolus, the symptoms would be manifested in a relatively few seconds with an outside limit of one minute. Dr. Brenton admitted that his diagnosis represented a rare condition, but he stood by his diagnosis. On cross-examination, Dr. Brenton stated he was not familiar with any reported cases in medical literature which corresponded to his diagnosis. He also testified that the time between the removal of the IV and the symptoms was less than a minute, and that his understanding was that decedent was sitting upright.

Dr. Anderson, a practicing physician specializing in pulmonary and internal medicine testified that he examined decedent on June 5, 1981. His impression was that possible causes of death were carotid occlusion, cerebral embolus, thrombotic air embolus and cerebral hemorrhage. However, in his records he listed air embolus first. Dr. Anderson was convinced that a patient should be in a flat position when a catheter was removed. On cross-examination, Dr. Anderson testified that the only possibility of air embolus occurring was if the decedent had anatomic malformation, and that the medical records showed no such malformation. He also testified that he had not found this type of air embolus listed in medical literature. He pointed out that decedent did suffer from atheroscopic disease and hypertension, both life threatening conditions predisposing a person to a stroke.

As demonstrated by this summary, there were conflicts in the evidence. By a vote of 8 to 4, the jury rendered a verdict for the hospital.

I

Did the District Court err in giving a proximate cause jury instruction?

The District Court gave the following instruction No. 19:

“The proximate cause of an injury is that cause which in a natural and continuous sequence, unbroken by any new and independent cause, produces the injury, and without which it would not have occurred.”

Plaintiffs offered the following legal cause instruction which was refused:.

“A legal cause of an injury is a cause which is a substantial factor in bringing about the injury.”

On appeal plaintiffs maintain that there were two possible concurring causes which could have brought about the death of decedent: the defendant’s negligence and the decedent’s pre-existing condition. The hospital responds that the theories presented to the jury were entirely on a competing or alternate cause: the decedent died either from negligent removal of the catheter or from a stroke caused by a pre-existing condition.

In Kyriss v. State (Mont. 1985), [218 Mont. 162,] 707 P.2d 5, 42 St.Rep. 1487, the above legal cause instruction offered by the plaintiff was given along with additional instructions describing legal cause. In Kyriss, the plaintiff suffered from a pre-existing condition of arteriosclerosis of the blood vessels of the right leg. In the course of medical treatment following the removal of a toenail on the right leg, gangrene developed and it was necessary to amputate the lower portion of plaintiff’s right leg. Citing Rudeck v. Wright (Mont. 1985), [218 Mont. 41,] 709 P.2d 621, 628, 42 St.Rep. 1380, 1388-89, the Court stated in Kyriss:

“[I]f two or more causes concur to bring about an event, and any one of them, operating alone, would have been sufficient to cause the identical result, some other test is needed. In such cases it is quite clear that each cause has in fact played so important a part in producing the result that responsibility should be imposed upon it; and it is equally clear that neither can be absolved from that responsibility upon the ground that the identical harm would have occurred without it, or there would be no liability at all.
“The ‘substantial factor’ rule was developed primarily for cases in which application of the ‘but for’ rule would allow each defendant to escape responsibility because the conduct of one or more others would have been sufficient to produce the same result . . .”

The Court then concluded that there were two concurring causes so that a proximate cause instruction failed to properly instruct the jury. The doctor defendants argued that the pre-existing condition of arteriosclerosis caused the condition which required the amputation. The plaintiff argued that the improper medical treatment of the infection in the leg following removal of the toenail was the cause of the condition requiring amputation. The evidence demonstrated that the pre-existing condition of arteriosclerosis could have concurred with the negligent medical treatment and resulting infection in bringing about the condition requiring the amputation. The Court concluded in Kyriss that because the two causes could have concurred to bring about the injury, a proximate cause instruction was not appropriate.

The plaintiffs in the present case contend that the damage to the brain resulting from the defendant’s negligence and the decedent’s pre-existing condition were possible concurring causes. Our review of the record demonstrates that this is not a case in which two causes concurred or might have concurred to bring about the condition of the patient and in which either one of them operating alone would have been sufficient to cause the identical result.

The diagnosis of Dr. Brenton, neurologist, set forth the essence of plaintiffs’ contentions regarding cause:

“[M]y diagnosis is that a small air embolus gained its way into her circulation, due to anatomic peculiarities on her part, found its way through the pulmonary circulation into the arterial circulation and lodged in the brain. Only perhaps five or ten milliliters of air would have been required . . .”

In lay terminology the substance of the diagnosis is that a small quantity of air, approximately five or ten milliliters, entered into Mrs. Juedeman’s veins; and due to an abnormality in her lung area, the air found its way through the lungs and connecting circulation into arteries and lodged in the brain. It is critical to understand that if a small quantity of air gets into the brain through an artery the effect is immediate. As further testified by Dr. Brenton:

“Q Okay. With regard to your opinion regarding air embolus, I believe you said the effects in a situation such as the one you believe occurred with Mrs. Juedeman would be immediate. Did I understand you correctly?
“A Well, they would occur within the time frame that it takes for the air to make its transit through the circulation which is going to be in a matter of seconds, you know, 30, 40, seconds, something like that, maybe less.
“Q Oh, I see. In other words, is this a very, very quick happening?
“A Very rapid. It’s almost instantaneous, but you know, it does take a short span of time. But it’s not something that’s going to develop a half hour, 45 minutes later. It’s going to happen right at that time.
“Q Would it be in my understanding — would it be appropriate to say that this mechanism would occur within a minute?
“A I would think so. A minute would be the outside limit I would place on this sort of thing.”

Plaintiff’s contention was that the hospital negligently allowed a small quantity of air to get to Mrs. Juedeman’s brain. Plaintiffs maintained the damage to the brain was within a matter of seconds and in less than one minute. The hospital contends that there were no symptoms of any type for a period of seven to ten minutes, and that this proves clearly that no air ever gained access to the patient’s brain. As a result, the time between the removal of the catheter and the onset of Mrs. Juedeman’s symptoms became critical. As previously summarized, this time was somewhere between a few seconds and approximately ten minutes, depending upon which of the witnesses were believed. Of course, the determination of the time issue was for the jury, the trier of fact.

In Kyriss, this Court adopted the substantial factor test as it appears in the Restatement (Second) of Torts, Section 431. To date, this Court has not addressed the other Restatement sections on legal cause. While it was not argued by counsel, our review of the Restatement shows that Section 434 is pertinent to the issue now before us. At Section 434, the Restatement describes the roles of the court and the jury in the use of legal cause instructions:

“(1) It is the function of the court to determine
“(a) whether the evidence as to the facts makes an issue upon which the jury may reasonably differ as to whether the conduct of the defendant has been a substantial factor in causing the harm to the plaintiff;
“(b) whether the harm to the plaintiff is capable of apportionment among two or more causes; and
“(c) the questions of causation and apportionment, in any case in which the jury may not reasonably differ.
“(2) It is the function of the jury to determine, in any case in which it may reasonably differ on the issue.
“(a) whether the defendant’s conduct has been a substantial factor in causing the harm to the plaintiff, and “(b) the apportionment of the harm to two or more causes.”

We adopt the law as stated in Section 434 of the Restatement. We conclude that there is no evidence in the record to support the plaintiffs’ argument that the hospital’s negligence was a substantial cause of Mrs. Juedeman’s death, along with her preexisting condition. This case is in direct contrast to Kyriss where the evidence demonstrated the presence of two causes which could have concurred in the resulting injury to the plaintiff. The District Court correctly exercised its, function of making this determination and declining to offer a legal cause instruction to the jury.

We conclude that it was proper to give the proximate cause instruction in this case and to refuse the legal cause instruction.

II

Did the District Court err in giving a “mere fact of injury” jury instruction?

The court’s Instruction No. 18 stated:

“The mere fact of injury, standing alone, is not proof of negligence against the defendant in a malpractice action.
“The law does not require that for every injury there must be a recovery of damages, but only imposes liability for a breach of a legal duty by the defendant proximately causing injury to the plaintiff.”

Plaintiffs note that this instruction has been ruled improper in simple negligence causes. Sampson v. Snow (Mont. 1981), 632 P.2d 1122, 38 St.Rep. 1441. Plaintiffs also recognize that in a professional negligence action, the mere fact of injury instruction has been held proper. Hunsaker v. Bozeman Deaconess Foundation (1978), 179 Mont. 305, 588 P.2d 493. Plaintiffs contend Hunsaker should be overruled.

We decline to overrule Hunsaker. Here, the mere fact that the decedent lapsed into a coma within a matter of seconds or minutes after removal of the IV should not be classed as proof of negligence of itself. The instruction directed that the burden of proving the negligence of the hospital remained on the plaintiffs. We conclude that this instruction was appropriate under the facts of this case.

III

Did the District Court err in giving an alternative methods jury instruction?

The court’s Instruction No. 16A stated:

“The fact that other nurses might have adopted other methods does not necessarily render the attending nurse liable nor show negligence or want of skill or care. If the method adopted has substantial medical support, it is sufficient. And, where there is a difference of opinion among physicians and nurses as to the practice to be pursued in certain cases, a nurse may exercise his or her own best judgment, employing the methods his or her experience may have shown to be best, and a mere error of judgment will not make a nurse liable in damages, in the absence of a showing of want of care and skill.”

Plaintiffs do not dispute the use of this instruction when evidence supports alternative methods of diagnosis or treatment, but contend that the hospital’s theory was not supported by medical evidence.

We will not again refer at length to the medical testimony submitted on behalf of the hospital. We point out that Nurse Abel, Nurse Villanueva, and Mercedes Strain, Director of Nursing, all testified in a manner supporting the hospital’s theory. While there certainly was evidence presented to the contrary, there is substantial credible medical evidence to support the theory of the defendant. While the instruction is subject to some question because it is a comment upon the evidence, we conclude that it was not reversible error to have given the instruction.

IV

Did the District Court err in granting the hospital a protective order that prohibited deposing the hospital’s nontestifying expert?

In deciding whether the case should go before the Montana Medical Legal Panel, defendants had Dr. Pratt study the records, research the case, obtain a pathologist’s opinion, and prepare a report. Dr. Pratt, a nontestifying expert, made his report in anticipation of litigation. Later, a disinterment issue was presented to the court, and Dr. Pfaff filed an affidavit stating an autopsy might reveal the cause of death. When Dr. Pfaff was deposed, in response to a subpoena duces tecum, he produced Dr. Pratt’s report. In substance, the report concluded that “this is an almost impossible case to defend.” After reading the report, plaintiffs sought to depose Dr. Pratt. The District Court granted defendants a protective order pursuant to Rule 26(b)(4)(B), M.R.Civ.P., which states:

“A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.”

Plaintiffs contend that technical legal rules should not cloud the search for truth. Because plaintiffs do not dispute that Dr. Pratt was a nontestifying expert specially employed in anticipation of litigation, his opinions are discoverable only upon a showing of exceptional circumstances. We note that Dr. Pratt spent a sum total of 3 hours studying the records, researching the case, obtaining a pathologist’s opinion and preparing the report. We find no reason to believe it was impracticable for plaintiffs to study the record, research the case, obtain a pathologist’s report, and draw their own conclusions. We conclude there were no exceptional circumstances which justified ordering Dr. Pratt’s deposition.

Plaintiffs also maintain that hospital waived its privilege when it presented Dr. Pratt’s report to Dr. Pfaff for purposes of filing an affidavit in favor of disinterment. Waiver is the voluntary relinquishment of a known right, and response to court process does not constitute waiver. Kuiper v. Dist. Court of Eighth Judicial Dist. (Mont. 1981), 632 P.2d 694, 698, 38 St.Rep. 1288, 1292-93. Here, an intraparty communication was discovered by court process. We conclude there was no waiver. We hold the District Court did not err in granting a protective order.

We affirm.

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

HON. JUDGE BENNETT, District Judge,

sitting in place of MR. JUSTICE HUNT, dissenting:

Because I cannot agree with the conclusion reached as to the first question, I must respectfully dissent.

The majority opinion appears to turn on this sentence: “Our review of the record demonstrates that this is not a case in which two causes concurred or might have concurred to bring about the condition of the patient and in which either of them operating alone would have been sufficient to cause the identical result.” My review of the record compels a contrary conclusion. The attending physician, Dr. Mungas, testified he believed “cardiac arrhythmia” was “the most possible of all the possibilities” of the cause of injury. He elaborated by speculating that what was possible was that the cardiac arrhythmia momentarily caused deficient cardiac output which would result in inadequate cerebral perfusion. This would have occurred simultaneously or shortly after the removal of the catheter, he said. I take it this would be described as either a stroke or vascular incident. He was asked the following question by defense counsel and gave the following response:

“Q (By Mr. Ugrin) Are there any factors in your general knowledge of Mrs. Juedeman that would predispose her or make her a high risk candidate for stroke or vascular incident?
“A She is elderly. She is diabetic. Diabetics have accelerated development of atherosclerosis. Atherosclerosis is one of the more common causes of stroke. She has hypertension, which is one of the predisposing causes of stroke. And she has atherosclerotic heart disease manifested by a previous history of congestive heart failure. And if I remember right, she has had some problems with tachycardia in the past, which is a manifestation of atherosclerotic heart disease. So all of these things I would say might predispose her to having a stroke: her age, diabetes, hypertension and heart disease.”

This testimony placed the factual question of concurrency squarely and unavoidably before the jury, regardless of whether the court chose to recognize the legal question. Apparently counsel for neither plaintiff nor defendant got around to asking any witness to reach a specific ultimate conclusion that there were or were not concurrent causes. But the jury, hearing the above testimony, was most certainly entitled to consider whether the patient’s predisposition might have concurred with the catheter extraction to cause the result, or whether either factor, operating alone, could have caused the result.

The plaintiff contended the negligent removal of the catheter caused the stroke and, ultimately, the death of the deceased. The defendant contended she died of old age, diabetes, atherosclerosis, hypertension and heart disease, but not the removal of the catheter. The question becomes, then, whether the advancing of discrete theories of causation should preclude consideration by the jury of concurrent causation. To require the plaintiff to plead concurrent causation at the risk of being deprived of a concurrent causation instruction would be a return to the inane nicety of common law pleading. To in effect direct the jury to ignore the testimony suggesting a possible connection between the baneful pre-existing condition and the trauma from the catheter removal is to detach the trial from reality. To prohibit the plaintiff from arguing that the concededly discreet causes contended for by the parties could have united to cause the injury forces him to present half his case to an utterly confused jury. It is such legal strangulation of common understanding that gives the law a bad name and demeans its credibility.

Under Section 434 of the Restatement of Torts, 2nd, cited in the majority opinion, the court is required to determine “whether the evidence as to the facts makes an issue upon which the jury may reasonably differ as to whether the conduct of the defendant has been a substantial factor in causing the harm to the plaintiff.” It is, then, the proper function of the court to decide whether to give a “substantial factor” instruction. The decision is to be made on the evidence and the facts, not on the pleadings, not on the trial format, not on the primary contentions of the parties. No estoppel on the basis of what the court may see as the primary contentions is contemplated. This court is required to determine whether the evidence creates a causation issue upon which jurors may reasonably disagree. Certainly in this case there was evidence upon which the jury could reasonably disagree as to whether the alleged negligent catheter removal was a substantial cause of the injury (stroke) and death.

In making its decision as to whether substantial cause is an issue, the trial court should apply Section 433 of the Restatement (see comment “a” to that section). The section provides:

“The following considerations are in themselves or in combination with one another important in determining whether the actor’s conduct is a substantial factor in bringing harm to another:
“(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;
“(b) whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible;
“(c) lapse of time.

Here, as to Subsection (a), the number of factors, other than the catheter removal, which could have caused the harm were numerous, indeed they were detailed and vehemently argued by the defendant, as noted. It was in fact testified to and argued that these factors alone may have caused the injury. As to Subsection (b), on the evidence presented, the jury could reasonably differ as to whether the defendant set in motion a force or series of forces which continued in operation up to the time of the harm and ultimately caused the harm. And certainly the lapses of time between (1) the extraction and the stroke and (2) the stroke and the death are small enough to create a clear question of concurrency. The three factors for determination of a substantial factor question mandated consideration of that question by the jury.

The “substantial factor” or “legal cause” instruction offered by plaintiff in this case should have been given, and it should have been accompanied by Section 433 of the Restatement, or its equivalent, as set forth above, as well as by Section 432 of the Restatement, or its equivalent, which provides:

“(1) Except as stated in Subsection (2), the actor’s negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent.
“(2) If two forces are actively operating, one because of the actor’s negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor’s negligence may be found to be a substantial factor in bringing it about.”

In my view none of these instructions should be given without the other. Together they provide a composite instruction to definitively guide a jury in any case where the facts will reasonably permit a conclusion that the injury was the result of concurrent causes.

MR. JUSTICE MORRISON,

dissenting:

Judge Bennett is right as rain. I wholeheartedly concur in his dissent.


source: Caselaw Access Project

author: MR. JUSTICE WEBER MR. JUSTICE HUNT,

license: Public Domain

text:
    In the Matter of the ESTATE OF ROBERT EMERSON STONE, Deceased.
    No. 86-148.
    Submitted on Briefs Aug. 7, 1986.
    Decided Oct. 1, 1986.
    Rehearing Denied Nov. 25, 1986.
    727 P.2d 508.
    MR. JUSTICE HUNT filed dissenting opinion in which MR. JUSTICE SHEEHY concurred.

      David N. Niklas, Helena, for appellant.
    Jardine, McCarthy & Grauman, David A. Grauman, Whitehall, for respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The District Court for Madison County denied a petition to terminate the appointment of R. Thomas Garrison as the personal representative of this estate. We reverse and remand to the District Court.

The issue is whether the District Court abused its discretion by refusing to remove the personal representative.

Robert Emerson Stone died in December 1980. His will designated his attorney, R. Thomas Garrison, as personal representative for the estate and as trustee for any beneficiary who was a minor. Mr. Stone’s daughter and son, then 21 and 13, were named as devisees. The will was admitted to informal probate in January 1981. Mr. Garrison acted both as personal representative and as the attorney for the estate.

In September 1985 the children and the son’s great uncle petitioned the District Court for Mr. Garrison’s removal as personal representative. They asked for an accounting and for the appointment of Sherrie Schandelmeier, the daughter, and Sam Wonderly, the great uncle, as successor co-personal representatives. The petition stated that over 4 Vi years had elapsed and the estate was not yet closed; that neither an Inventory and Appraisement nor an Application for Determination of Inheritance Tax had been filed with the State of Montana; that the personal representative had failed to provide the children’s aunt, a major creditor of the estate, with a requested accounting of the estate proceedings; that the personal representative had failed to keep the children and the aunt reasonably informed of the status of estate proceedings; and that the personal representative failed to timely file the Federal Estate tax return.

A hearing was held before the District Court. Mr. Garrison testified that the chief asset of the estate is a ranch in the Ruby Valley valued at $496,950. The ranch is without livestock or equipment and was encumbered by a renewable five year lease. There was also a bank account containing approximately six hundred dollars, and a Chrysler car. As of the date of the hearing Mr. Garrison had not mailed an inventory and appraisement to the Department of Revenue, nor mailed one to the parties interested in the estate or filed one with the Court. A personal representative is required by statute to take these steps within three months of his appointment. Section 72-3-607, MCA. Furthermore, Mr. Garrison had not filed an Application for Determination of Inheritance Tax with the Department of Revenue, as required by Section 72-16-401, MCA. Neither had he paid any portion of the Montana taxes owing. If the total amount owing is paid within 18 months, a discount of 5% of the amount owing is granted to the estate. See Section 72-16-440, MCA. No portion of the federal inheritance taxes had been paid, although Mr. Garrison had obtained an extension of time in which to pay. Interest was, and is, accruing on these unpaid taxes.

During the administration of the estate, Mr. Garrison collected approximately $100,000 in income from leasehold payments and timber sales. At the time of the hearing Mr. Garrison had expended approximately $60,000, which included among other things the discharging of a mortgage on the estate property. He had on hand approximately $40,000 in estate funds. These funds were not placed in an interest bearing account. Since the hearing, Mr. Garrison has deposited with the State the amount due as Montana inheritance tax, plus interest.

In addition to the failure to administer the estate in a timely and judicious fashion, Sherrie Schandelmeier testified that Mr. Garrison failed to provide her with written accountings though she asked him to do so several times. The son’s mother testified that she had requested financial statements on behalf of her son, and none had been provided.

Petitioners also maintain that Sherrie was deliberately misled by a letter from Mr. Garrison dated April 23, 1985. That letter stated:

“As you know further, there was no livestock upon the premises or any revenue or income except the lease he had made of the ranch to Max Miller for an annual income of $17,500. This lease, as you are well aware, was subject to a renewal this February which was exercised by Max, leasing the property until 1990 and subjecting any sale of all or part of the property to the terms of the lease.”

The letter failed to inform Sherrie that Mr. Garrison had terminated the lease by an agreement with the lessee one month before. As part of the termination agreement, Mr. Garrison conveyed approximately 75 acres of ranch land to the lessee. Following the termination of the lease, Mr. Garrison placed the ranch on the market for sale without notice to the devisees. The petitioners contend all these actions by Mr. Garrison constitute a breach of the fiduciary duty which Mr. Garrison owes to the estate and to themselves as devisees. See Section 72-3-610, MCA.

Mr. Garrison testified that the devisees wish to retain the ranch, which has been in their family for four generations, but that they have not come up with a concrete plan which would allow them to do so. He stated that the renewable lease encumbered the property and discouraged any potential mortgage or sale of the property. Mr. Garrison testified he was unable to find a mortgagor who would lend enough to pay the estate taxes and provide operating capital for a ranch devoid of cattle or equipment. He stated he didn’t put the estate’s funds in an interest bearing account because the amount had vacillated back and forth. He testified that he had prepared the inventory and appraisement in March 1981. However, through an oversight, he failed to file it with the Montana Department of Revenue. Mr. Garrison further testified he had not filed the application for determination of Montana estate taxes because the estate did not have the funds to pay the tax in full. Mr. Garrison did file an extension on the federal estate taxes owing. He testified that his office records indicate he mailed copies of these forms to the devisees. Mr. Garrison testified that although he had not provided formal written accountings to the petitioners, he had provided informal oral accountings in his office. Finally, Mr. Garrison testified concerning communication with the devisees:

“And knowing the way they felt about the ranch, not to sell it. . . or make any arrangements to discharge any of it, I didn’t think it was advisable to do so [contact or communicate with the devisees].”

The District Court found “substantial compliance by the personal representative with the probate law in the discharge of his fiduciary duties, and no omissions which in any way adversely affected the estate, or those interested therein.” It ordered Mr. Garrison to proceed with all deliberate speed with the sale of the property, subject to prior approval of the court and notice to the devisees.

The removal of a personal representative for cause is authorized “when removal would be in the best interest of the estate.” Section 72-3-526(2)(a), MCA. This Court’s review of the District Court’s decision is limited to whether the District Court abused its discretion. Matter of Estate of Counts (Mont. 1985), [217 Mont. 350,] 704 P.2d 1052, 1055, 42 St.Rep. 1243, 1246.

In examining the record, we see that the estate bank account contained at least $1700 at all times since it was opened in January 1981, and that at most times it contained much more than that amount, exceeding $18,000 in January 1983. There has been no adequate reason given for the failure to invest this money, in a period when interest rates have gone as high as 15% or more. We conclude that Mr. Garrison was not acting in the best interest of the estate in this regard.

Nonpayment for over four years of any portion of the Montana inheritance tax or the federal estate tax while money was available in the estate account has not been adequately explained. Mr. Garrison’s explanation that he was waiting until he could pay the taxes in full is unpersuasive, given the discount available for prompt payment of the Montana tax and the interest charges on both the Montana and federal taxes owing. We conclude that Mr. Garrison’s inaction was not in the best interest of the estate, and that he has not redeemed himself by paying the Montana tax subsequent to the hearing.

The failure to file the inventory and appraisement with the State of Montana within 3 months after Mr. Garrison's appointment as personal representative was explained as a clerical error. That this omission was not discovered by Mr. Garrison until this action was brought, over 4 years after his appointment, does not speak well for the diligence of his monitoring of this matter.

Also, Mr. Garrison’s misleading of the daughter in his April 1985 letter mentioning the “renewed” lease of the land has not been shown as an act even remotely in the best interest of the estate. We do not condone this apparent misrepresentation to a devisee with a half-interest in the estate.

Mr. Garrison’s argument that the devisees have not made a concrete proposal which would allow them to retain the ranch and pay the inheritance taxes is irrelevant. At issue is whether Mr. Garrison’s actions as a personal representative justify a conclusion that his termination would be in the estate’s best interest. While we do not negate the District Court’s expression of confidence in Mr. Garrison, that does not address the problems which have been disclosed in the administration of this estate.

We conclude that the District Court abused its discretion in disregarding the uncontraverted evidence before it and refusing to remove Mr. Garrison as personal representative. We therefore reverse the decision of the District Court and remand for appointment of a successor personal representative or personal representatives, and for a determination of what fee is due Mr. Garrison for his services as personal representative.

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

MR. JUSTICE HUNT,

dissenting:

I dissent. In this case the testator chose the personal representative of his estate. That act should not be annulled by this Court except under the most extreme circumstances.

“An order of removal of [a personal representative] is harsh and severe; and irregularities not directly harmful in the management of the estate will be overlooked. If the court can remedy a matter of the complaint, no removal will be ordered.”

Tice’s Estate v. Tice (1962), 140 Mont. 28, 367 P.2d 771, 774-775.

In this case, I agree with the District Court that there has been certain technical omissions, but there is no evidence of fraud, gross carelessness, or even indifference to duty. The District Court sympathized with the beneficiaries and heirs who are frustrated with the long wait, but noted that given the problems confronting the personal representative in this difficult estate, it was not shown that the estate could have been administered otherwise. The District Court held the personal representative’s plan to sell the ranch land to pay the debts of the estate is the only feasible alternative although it is not what the heirs prefer. The District Court took the only steps available to complete the administration of this estate. This Court’s action now transfers all of the problems to a new administration, not of the testator’s choosing, which has the same problems as the prior administration with no clear solution available to them.

I do not believe the District Court abused its discretion in these findings of fact and conclusions of law. The judgment of the District Court should be affirmed.

MR. JUSTICE SHEEHY concurs in the above dissent.


author: MR. JUSTICE MORRISON

text:
    THELMA WALKER, Plaintiff/Appellant, v. B. MILES LARSON, and St. Paul Fire and Marine Insurance Company, Defendants/Respondents.
    No. 86-034.
    Submitted on Briefs April 4, 1986.
    Decided Oct. 2, 1986.
    Rehearing Denied Dec. 9, 1986.
    727 P.2d 1321.
    Howard F. Strause, Great Falls, for plaintiff/appellant.
    Jardine, Stephenson, Blewett & Weaver, William D. Jacobsen, Great Falls, for defendants/respondents.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

This is an appeal from the Eighth Judicial District in and for Cascade County, Montana, granting summary judgment to defendants. We reverse and remand.

In September, 1981, St. Paul Fire and Marine Insurance Company (St. Paul) issued an errors and omissions policy to B. Miles Larson (Larson), a practicing attorney in Stanford, Montana. The policy was a renewal of a policy Larson had with St. Paul since 1971, and was to be in effect for one year. The policy was not renewed when it came due, although an application to renew had been sent to Larson in July.

St. Paul offered Larson a reporting endorsement, which had it been purchased, would have extended his coverage to include claims made or reported after the expiration date of the policy. Larson did not respond to the offer and no endorsement was issued.

Larson was retained by Thelma Walker (Walker) during the summer of 1979 to probate the estate of her late husband. In January, 1982, the Internal Revenue Service (IRS) notified Walker that Larson had computed incorrectly the amount of estate tax due and owing by the estate and had incorrectly filed the Federal Estate Tax Return. At a meeting between an IRS agent, Walker, Walker’s new attorney and her two daughters, it was determined that as a result of Larson’s mistakes Walker owed a considerable amount in unpaid taxes and interest.

Sometime before September 1, 1982, Larson was contacted by an IRS agent informing him the IRS did not agree with his computation on the estate tax returns. Larson also received a copy of a letter Walker wrote to the Commission on Practice June 1, 1982, detailing Larson’s actions. Walker spoke to St. Paul’s general agent in Stanford about Larson’s actions.

Walker’s attorney sent a letter to Larson January 31, 1983, outlining Walker’s major complaint against Larson. A copy of that letter was sent to the agency office in Stanford and was promptly forwarded to the St. Paul offices in Great Falls, along with a claim form. Shortly thereafter, St. Paul mailed a letter to Larson denying coverage on the ground the claim had not been made within the policy period.

Walker subsequently filed a complaint against Larson alleging he had committed malpractice in administering the estate of her late husband and she had been damaged. She further alleged lack of good faith in settlement negotiations and other unfair trade practices as prohibited by Section 33-18-201, MCA. Both defendants filed motions to dismiss, which were denied. Larson did not file an answer and a default judgment was taken. St. Paul then filed a declaratory judgment action, asking the court to dismiss Walker’s claim against it and to declare that her actions against Larson were not covered by any insurance policy issued by St. Paul. Several months later St. Paul moved for summary judgment on all issues relating to its liability. Walker filed a memorandum of authorities in opposition to the motion for summary judgment and affirmatively asked the court to grant summary judgment in her favor on the issue of insurance coverage. The court granted judgment in favor of St. Paul and dismissed Walker’s claim against St. Paul with prejudice. Walker appeals that order.

Appellant presents two issues to the Court; (1) Whether it was error to grant summary judgment to defendants rather than to plaintiff and (2) whether there was a factual question as to whether or not bad faith was involved in St. Paul’s denial of coverage. The first issue is dispositive.

Summary judgment is granted only when there is no genuine issue of material fact. Rule 52(a), M.R.Civ.P. We will not reverse an order of the District Court unless it is clearly erroneous resulting in an abuse of discretion. In this case the ruling was clearly erroneous.

Larson’s policy was a “claims made policy.” Coverage was effective if a claim was made within the policy term. Both parties acknowledged the act of malpractice occurred within the policy term. St. Paul attempts to show no claim was made until after the term had expired. Walker argues, in turn, several incidents within the policy term effectively were claims. She had conversations with the agent and the secretary at the agency office in Stanford, and she wrote a letter to the Commission on Practice. She did not file a complaint in district court within the policy term.

Appellant relies upon J.P. Link and Company v. Continental Casualty Company (9th Cir. 1972), 470 F.2d 1133. In that case the Circuit Court held that in the “claims made policy” under review, the word “claim” was ambiguous. The word “claim” could include more than filing a lawsuit and there was evidence that claims of liability were being pressed against the insured although no official claim had been filed. Coverage in Link was found to exist as a matter of law because ambiguity in the term claim was construed against the insurer, who wrote the policy.

The case before us is strikingly similar to the Link case. The word “claim” is not defined in this policy and under the authority of Link it is sufficiently ambiguous to spring the rule which requires the ambiguity be construed against the insurer. There is ample evidence here to show that the plaintiff made claim against Larson, the insured, during the policy period. In fact, Plaintiff Walker filed a complaint with the Commission on Practice and advised both the insured and the insurer’s agent, that she had done so. This action was taken during the policy period.

We reverse summary judgment and hold coverage as a matter of law. The case is remanded for entry of judgment in favor of Thelma Walker.

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


author: MR. JUSTICE HARRISON

text:
    RONALD L. NORDWICK, Plaintiff and Respondent, v. GEORGE W. BERG, Defendant and Appellant. STATE CREEK MINING GROUP, Ronald Toomer, Donald Marshall, partners; R&R Prospectors, Inc., a Montana corporation, Defendants and Third Party Plaintiffs, v. SURETY TITLE COMPANY, Third Party Defendant.
    No. 86-120.
    Submitted on Briefs July 24, 1986.
    Decided Oct. 2, 1986.
    725 P.2d 1195.

      Alley & Burdett, Kelly J. Varnes, Billings, Dick A. Weber, Jr., Hamilton, Keller, Reynolds, Drake, Sternhagen & Johnson, Glen Drake, Helena, for defendant and appellant.
    Paul B. Smith, Boulder, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from an order of the Fifth Judicial District, in and for the County of Jefferson, Montana, granting partial summary judgment. We affirm.

The case involves a dispute over the ownership of potential mining claims known as the State Creek mining claims located near Boulder, Montana. Plaintiff Nordwick and defendant Berg entered into a written agreement June 3,1980, to purchase some unimproved property in Jefferson County. The agreement provided that Nordwick was to enter into an earnest money and buy/sell agreement with the owner of the property and negotiate a price not to exceed $46,500. Berg was to pay $1,500 earnest money and the balance of the purchase price.

The agreement provided that Berg would have title to the surface and exclusive right to all the timber on the property. Each party was to own one-half of all of the mineral rights. Nordwick had the “right to mine, explore, or otherwise develop mineral deposits on the property,” and an option to repurchase from Berg one-half of the surface rights on payment to Berg of one-half of the price paid for the property.

Nordwick was successful in securing a buy/sell with one Phil Marthens for a negotiated purchase price of $43,000. Berg paid Marthens the earnest money and Berg’s name was placed on a contract for deed. A warranty deed from Marthens to Berg was recorded August 7, 1984. Berg has since refused to convey to Nordwick a one-half interest in the mineral rights.

In May, 1983, Berg entered into a contract with R&R Prospectors “to mine, test and develop property” for 120 days, paying Berg 5 percent of the net mill or smelter returns of the ore concentrates. R & R moved equipment onto the property and began to work the claims. Nordwick indicated to R & R that he owned a 50 percent interest in the claims. Berg, however, assured R&R Nordwick had no interest in the property and promised to resolve the matter. In November R&R ordered a title search which did not indicate any interest or claim by Nordwick.

In March, 1984, Berg entered into an earnest money agreement and receipt with State Creek Mining Group, Ronald Toomer and Donald Marshall, partners, wherein Berg agreed to convey the subject properties to State Creek. Berg again was requested, to no avail, to clarify Nordwick’s interest in the property. Nordwick filed a complaint in September, 1984, alleging Berg had wrongfully refused to recognize his interest in the property and that both State Creek and R&R should have known of his interest, but nevertheless they entered into a contract with Berg and refused to give Nordwick an accounting or any of the proceeds.

Subsequently State Creek Mining, Ronald Toomer, Donald Marshall, and R&R Prospectors cross-claimed against Berg alleging fraudulent misrepresentation for failure to disclose any right or claim which might be asserted by Nordwick. Berg then filed a cross-claim against the other defendants alleging breach of contract. R&R filed a complaint against Surety Title Company of Helena for negligence in failing to discover the document on which Nordwick bases his claim. The action against Surety has been severed and is not germane for purposes of this opinion.

Nordwick moved the District Court for partial summary judgment as to the fact he owns one-half interest in the mineral rights on the property in question. The motion was argued orally and granted. Berg’s subsequent motion to amend the summary judgment, which requires Berg to warrant title to one-half of the mineral rights rather than execute a quitclaim deed, was denied. Berg appeals the partial summary judgment.

The only issue on appeal is whether the District Court erred in granting plaintiff Nordwick’s motion for partial summary judgment.

If there is no genuine issue of material fact, the prevailing party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. Cer eck v. Albertsons, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 510. This Court will uphold a summary judgment issued by a District Court unless we find it to be clearly erroneous. The District Court determined there was no genuine issue of material fact on the question, of ownership of the property.

Resolution of the question before us turns on whether the agreement between Berg and Nordwick was a valid partnership agreement granting Nordwick a one-half interest in the minerals on the property. We find it was.

Berg argues failure of consideration and failure to provide promised consideration results in an invalid contract. A basic principle of contract law, that there must be consideration to have a valid contract, is codified at Section 28-2-102(4), MCA. The written agreement of June 3 between Berg and Nordwick creates a presumption of consideration. Section 28-2-804, MCA. Consideration is defined as “[a]ny benefit conferred or agreed to be conferred upon the promisor by any other person, to which the promisor is not lawfully entitled, . . .” Section 28-2-801, MCA. The burden of showing a want of consideration sufficient to support the June 3 agreement falls on Berg. Section 28-2-805, MCA. He fails to meet this burden.

Berg asserts the agreement did not “recite” any consideration. The terms of the agreement speak for themselves, however. The agreement provides in pertinent part:

“It is agreed George W. Berg shall pay earnest money in the amount of $1,500, and Ron L. Nordwick will enter into an earnest money and buy-sell agreement with the owner of the property.”

Pursuant to the terms of the agreement, Nordwick agreed to and did negotiate a buy/sell agreement with the seller, Marthens, at a bargained for price. He thereby secured a legal right to buy the property pursuant to the buy/sell agreement between himself and Marthens. Berg agreed to and did pay the earnest money to Marthens. Nordwick then relinquished any rights to the surface to Berg. Each party fulfilled his obligation under the unambiguous terms of the contract. Clearly the agreement “recites” consideration. There is no evidence in the record indicating this was not a fully bargained for exchange between the parties constituting good consideration pursuant to Section 28-2-801, MCA.

If an agreement contains a bargained for exchange in legal position between the parties, the agreement becomes a legally enforceable contract. State ex rel. Stafford v. Fox-Great Falls Theater Corp. (1943), 114 Mont. 52, 67, 132 P.2d 689, 697.

“[Nor] is it essential that the consideration should impose a certain gain or loss to either party. It is sufficient that a party in whose favor the contract is made foregoes some advantage or benefit, or parts with a right he might otherwise exert.”

Schnierle v. Schnierle (Ohio App. 1940), 33 N.E.2d 674, 675.

Berg’s defense that the failure of consideration relates to consideration different than that set forth in the June 3 agreement is totally without merit. This is a misapplication of the defense. Failure of consideration relates to failure of the consideration recited in the written terms of the contract, and not to failure of alleged oral consideration subsequent to and different from the written. Berg is attempting to introduce evidence of terms different than those recited in the contract. This he cannot do.

“The principle is well established and of general application, subject to certain exceptions, that when a contract has been reduced to writing the contents of such writing cannot be added to, contradicted, altered, or varied by parole or extrinsic evidence, and that such writing supercedes all oral negotiations concerning its matter which preceded, accompanied, or led up to its execution. This was the rule of common law, and has been embodied in the statute law of this state. (Emphasis in original.)”

West River Equipment Co. v. Holzworth Const. Co. (1959), 134 Mont. 582, 588, 335 P.2d 298, 302; Perez-Lizano v. Ayers (Mont. 1985), [215 Mont. 95,] 695 P.2d 467, 470, 42 St.Rep. 208, 212-213. The exceptions to this rule are found in Section 28-2-905, MCA, which provides in pertinent part:

“(1) Whenever the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms. Therefore, there can be between the parties and their representatives or successors in interest no evidence of the terms of the agreement other than the contents of the writing except in the following cases:
“(a) when a mistake or imperfection of the writing is put in issue by the pleadings;
“(b) when the validity of the agreement is the fact in dispute.
“(2) This section does not exclude other evidence of the circumstances under which the agreement was made or to which it relates, as described in 1-4-102, or other evidence to explain an extrinsic ambiguity or to establish illegality or fraud . . .”

Berg did not plead any of the exceptions as required by Rule 8(c), M.R.Civ.P. Although he admitted that pursuant to the written terms of the agreement Nordwick had no duty to mine, explore, or otherwise develop the mineral deposits on the property, he also claimed the writing was modified later changing Nordwick’s obligation. “Any matter admitted ... is conclusively established unless the court on motion permits withdrawal or amendment of the admission.” Rule 36(b), M.R.Civ.P.

Even if Berg were allowed to introduce parole evidence that the written consideration was modified orally after June 3, the evidence would have no effect by virtue of Section 28-2-1602, MCA: “A contract in writing may be altered by a contract in writing or by an executed oral agreement, and not otherwise.” Berg did not offer as an affirmative defense and did not allege facts that an oral agreement was in fact executed, altering the June 3 agreement.

The evidence being clear there was a bargained for agreement and valuable consideration, the agreement between Nordwick and Berg is valid. When a contract exists, the duty of the court is to enforce it. Gray v. City of Billings (Mont. 1984), [213 Mont. 6,] 689 P.2d 268, 271, 41 St.Rep. 1910, 1913; Maxted, v. Barrett (1982), 198 Mont. 81, 87, 643 P.2d 1161, 1164. Consequently, because there is no genuine issue of fact as to the ownership of the property, the District Court properly granted summary judgment on the issue of ownership.

We affirm.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES MORRISON, SHEEHY and HUNT concur.


text:
    In re the MARRIAGE OF GEORGE R. HANGAS, Petitioner and Appellant, and JANE H. HANGAS, Respondent and Respondent.
    No. 86-157.
    Submitted Aug. 14, 1986.
    Decided Oct. 2, 1986.
    725 P.2d 1205.

      Snavely and Phillips, Robert J. Phillips, Missoula, for petitioner and appellant.
    Datsopoulos, MacDonald & Lind, David B. Cotner, Missoula, for respondent and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Petitioner George Hangas appeals orders of the Fourth Judicial District Court denying petitioner’s motion to set aside the parties’ marital and property settlement agreement and granting attorney’s fees to respondent Jane Hangas. We affirm the District Court.

The parties were married on December 16, 1967, in Billings, Montana. One child, Tyler, was born of the marriage on August 7, 1969. Jane was graduated from the University of Montana in 1968 with a teaching certificate. George also, attended the university but withdrew prior to his graduation to manage a gas station. George and Jane determined that it would be best for Tyler if Jane devoted all her time to rearing Tyler thereby foregoing employment outside the home.

The Hangas family moved to Missoula in 1971. George and Jane purchased a home near Missoula from George’s father in 1974. The purchase price was $48,000, with $8,000 down.

At approximately the same time, the parties began operating a business known as “Tanzer Kennels”, which provided boarding for dogs and cats. George constructed the kennels with the construction costs covered in part by a mortgage and with $9,000 contributed by Jane from an inheritance.

The kennel business was operated primarily by Jane and had a monthly net income of about $490 through September, 1984. During the parties’ marriage, George held numerous jobs including store manager, insurance salesman, and car salesman. In 1983, George ventured into the cattle business and sustained a loss of approximately $17,000. A loan was taken out in that amount from Security State Bank in Poison, Montana, to cover the loss.

George filed a petition for dissolution October 12, 1983. The parties’ marriage was dissolved by a decree entered March 19, 1984, with all issues but dissolution reserved for a later hearing. Subsequently, the parties attempted to negotiate a property settlement. Contrary to his attorney’s advice, George decided to deed the parties’ real property and kennel business to Jane, in order to secure a quick settlement.

A hearing was scheduled September 24, 1984, to determine temporary maintenance, child support, and payment of the parties’ debt obligations. Shortly before the hearing was scheduled the parties met in the courthouse and reached a verbal agreement which was to be reduced to writing by Jane’s attorney. A copy of the marital and property settlement agreement was prepared and sent to George on October 1, 1984. George consulted with his attorney and requested that three items in the agreement be amended. The parties reached agreement concerning the amendments and the amended marital and property settlement agreement was signed by George on October 18, 1984. The following month George informed his attorney he was not satisfied with the settlement agreement.

The amended marital and property settlement agreement was incorporated into the supplementary decree of dissolution entered by the district judge on January 4, 1985. George filed a motion to amend judgment on February 8, 1985, alleging the agreement to be unconscionable. Following a hearing on February 28, 1985, the district judge set aside the supplemental decree of dissolution. The judge determined that George had knowingly entered the agreement but he could not determine if it was unconscionable without taking evidence regarding the parties’ economic circumstances.

A hearing was held January 14, 1986, and evidence submitted to the court concerning the parties’ financial condition. On January 20, 1986, the district judge entered an order finding the settlement agreement to be valid; the agreement was incorporated into the supplementary decree of dissolution entered February 10, 1986. Finally, on March 13, 1986, the district judge ruled that Jane was entitled to attorney’s fees pursuant to the settlement agreement. George appeals and raises the following issues:

1. Did the District Court err in ruling that the parties’ marital and property settlement agreement was not unconscionable?

2. Did the District Court err in finding that the Petitioner had knowingly entered into the parties’ marital and property settlement agreement?

3. Did the District Court err in ruling that Jane H. Hangas, Respondent and Respondent on appeal, was entitled to an award of attorney’s fees?

George contends that the property settlement agreement is unconscionable because the equities awarded to Jane amounted to $37,980, while the liabilities assumed by George exceed the value of his assets of $12,900. Further, Jane received the income producing kennel business while George is required to pay $200 monthly child support. The record shows that George’s gross yearly income was $32,000 at the time he signed the agreement. At present, Jane is not qualified to hold a position which would pay greater than minimum wage. Further college education would be required to update her teacher’s certificate.

The District Court found that the disproportionate distribution of property in favor of Jane is not unconscionable because it operates in lieu of maintenance, provides Jane with a reasonable way to earn a living, and the property distribution was proposed by George. We agree with the District Court. While the disparity of $50,000 in the property distribution may appear inequitable on its face, the record reveals substantial credible evidence supporting the distribution. The debt of $16,000 assigned to George arose out of his cattle venture. George initially suggested deeding the parties’ real property to Jane, and in fact, George purchased a new residence for himself and his new wife a month prior to signing the agreement.

The monthly expenses for the minor child were found to be $605. The court ordered George to pay $200 monthly child support, after taking into consideration the factors listed under Section 40-4-204, MCA. We find no abuse of discretion by the District Court in determining the child support award.

George takes issue with the valuation placed on certain items of property, particularly the real property, awarded under the agreement. In In Re Marriage of Rolfe (Mont. 1985), [216 Mont. 39,] 699 P.2d 79, 42 St.Rep. 623, this Court held that when conflicting evidence is presented concerning the valuation of property, the trial court must indicate the basis for the values adopted.

In the present case, the trial court placed a value of $84,130 on the parties’ real property. The property’s appraisal was $89,500. A deduction was made for commission. The court’s finding is supported by the record.

George also disputes the $5,750 valuation for furniture, dogs, and household goods adopted by the District Court, and contends those items are worth $10,000. The failure of the District Court to identify the basis for adopting the $5,750 figure is harmless error in this instance. The pertinent issue addressed by the District Court was whether the property settlement agreement was unconscionable. The $4,250 discrepancy in the parties’ valuation of these items does not affect conscionability.

The next issue raised by George is whether he knowingly entered into the parties’ marital and property settlement agreement. George asserts he signed the agreement believing that it was merely a step in the negotiation process, and that at the time he signed it he left a list of changes he wanted made, but his attorney never incorporated these changes according to his wishes.

The District Court found that George was under stress at the time he executed the agreement yet not such as to deprive him of his ability to act intelligently, and that he was fully advised by his attorney including a recommendation that George not approve the property settlement agreement. There is substantial credible evidence in the record supporting these findings. George was competently represented by an attorney with twelve years experience. The settlement agreement was revised twice, once upon demand by George, before the final document was executed. The language in the agreement is quite clear that the document is a final determination of the marital property distribution.

Finally, George contends the District Court erred in awarding attorney’s fees to Jane. The court made the award pursuant to the following provision in the property settlement agreement: “Should any action be commenced to enforce, modify or interpret any provision contained herein, the court, as a cost of suit, shall award a reasonable attorney’s fee to the successful party.”

On February 8,1985, George filed a motion to alter or amend judgment, asserting a mistake of fact and that he did not knowingly approve the final version of the property settlement agreement. This contention raised the question of enforcement of the agreement. Hearings held on February 25 and 28, 1985, addressed this issue. The District Court ruled that George made a knowing and voluntary execution of the agreement.

George temporarily prevailed in setting aside the agreement because a hearing had not been held on values. However, he ultimately failed in attacking the agreement and fees are awarded to the party who is ultimately successful. Jordan v. Elizabeth Manor (1979), 181 Mont. 424, 593 P.2d 1049. The District Court did not err in awarding attorney’s fees to Jane.

Judgment of the District Court is affirmed.

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


author: MR. CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RONALD ELLINGER, Defendant and Appellant.
    No. 86-205.
    Submitted on Briefs July 17, 1986.
    Decided Oct. 2, 1986.
    725 P.2d 1201.

      Christopher P. Thimsen, Billings, for defendant and appellant.
    Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Helena, John L. Pratt, Co. Atty., Roundup, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Ronald Ellinger appeals from a conviction of driving while under the influence of alcohol, following a bench trial in the Fourteenth Judicial District Court, Musselshell County, on January 30, 1986. Ellinger was sentenced to twenty-four hours in jail and fined $ 310.

We affirm.

Defendant Ellinger raises two issues for our review:

1. Was the arrest valid?

2, If the arrest was not valid, should the charges be dismissed?

At 7:00 p.m. on August 30, 1985, the Musselshell County sheriff’s office received a call from a citizen, who reported a truck being driven in a reckless manner south of Roundup on U.S. 87. The caller said the driver traveled in the wrong lane, nearly caused an accident, and appeared intoxicated. Undersheriff Floyd Fisher received a complete description of the truck and license plate number. He drove to defendant Ronald Ellinger’s residence, after discovering that the suspect vehicle was registered to Ellinger. The vehicle was parked in defendant’s driveway.

The defendant stepped outside his mobile home and leaned against the doorway, while Undersheriff Fisher remained on the walkway outside the home. Defendant was having trouble keeping his balance. Undersheriff Fisher explained that he was investigating the caller’s report and asked if defendant had been drinking. After first denying any drinking, defendant then admitted that he had been drinking and driving. The undersheriff asked the defendant to perform two field sobriety tests. The defendant agreed and failed the tests. Undersheriff Fisher arrested defendant at 7:34 p.m., informed defendant of his Miranda rights, and transported the defendant to the Roundup sheriff’s office.

At the sheriff’s office, the defendant was videotaped, given a breathalyzer test and given two more field sobriety tests. One hour following the phone call, defendant’s blood alcohol level was .22. Based on this evidence, defendant was convicted of driving while under the influence of alcohol, in violation of Section 61-8-401, MCA. The court fined defendant $310 and sentenced him to sixty days in the county jail with fifty-nine days suspended. Defendant appeals, claiming the evidence was obtained pursuant to an illegal arrest.

Issue No. 1

Was the arrest valid?

A. The citizen’s report and defendant’s admissions provided probable cause for the arrest.

The threshold issue for the validity of an arrest is probable cause. The probable cause requirement is satisfied at the time of arrest if the facts and circumstances within the officer’s personal knowledge, or upon information imparted to him by a reliable source, are sufficient to warrant a reasonable person to believe that the suspect has committed an offense. State v. Hamilton (1980), 185 Mont. 522, 528, 605 P.2d 1121, 1125, citing State v. Hill (1976), 170 Mont. 71, 74, 550 P.2d 390, 392.

Undersheriff Fisher had reasonable grounds to suspect that defendant had committed a crime. The sheriff’s office received information from an eyewitness to defendant’s erratic driving. The office dispatched Undersheriff Fisher with a complete description of the truck, its license plate number, and its owner. In State v. Sharp (Mont. 1985), [217 Mont. 40,] 702 P.2d 959, 962, 42 St.Rep. 1009, 1013, this Court held that when information is provided by a citizen informant, such information is presumed to be reliable. In Sharp, the defendant was arrested for driving while under the influence of alcohol, after a citizen reported the erratic driving, complete with a vehicle description and license number. If an officer receives a tip from a reliable informant which includes a complete vehicle description, then the officer has a particularized reason to question a suspect. Sharp, 702 P.2d at 962.

The scope of arrests has been broadened to allow an arrest for a past misdemeanor not committed in the officer’s presence. Section 46-6-401(1), MCA, states: “A peace officer may arrest when: . . . (d) he believes on reasonable grounds that the person is committing an offense or that the person has committed an offense and the existing circumstances require his immediate arrest.” (Emphasis added.) In this case, the preservation of defendant’s evanescent blood alcohol required immediate arrest.

At a minimum, the citizen’s report provided probable cause to investigate. Upon investigation, defendant voluntarily stepped outside his trailer. He appeared intoxicated and leaned against the door. He admitted drinking and driving. Defendant voluntarily took the field sobriety tests and failed. The citizen’s tip, defendant’s own admissions, and his personal observations gave Undersheriff Fisher full probable cause to arrest.

B. Defendant had a reduced expectation of privacy on his walkway.

Defendant cites only one case on appeal, Welsh v. Wisconsin (1984), 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732. In Welsh, a police officer responded to a report of a nighttime accident. Upon arrival at the scene, the officer found defendant’s car in the ditch. A witness told the officer that defendant had left, but had appeared either very sick or very inebriated. After finding that the vehicle was registered to the defendant, the police proceeded to the defendant’s home without a warrant. The police arrested Welsh for a first offense of driving while under the influence of an intoxicant, which was a noncriminal civil offense, and for which no imprisonment was possible. The Welsh court held that the warrantless, nighttime entry into the defendant’s house to arrest him for a nonjailable traffic offense was prohibited by the Fourth Amendment. Welsh, 466 U.S. at 754, 104 S.Ct. at 2100, 80 L.Ed.2d at 746. Defendant claims Welsh is analogous to the immediate case. However, Welsh is distinguishable on several key points.

First, Undersheriff Fisher never entered defendant’s house. He remained on the walkway outside defendant’s mobile home. In uncontested testimony, Undersheriff Fisher stated that the sobriety tests were “done outside the house on this walkway.” The court in Welsh emphasized that “the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Welsh, 466 U.S. at 748, 104 S.Ct. at 2097, 80 L.Ed.2d at 742, citing United States v. United States District Court (1972), 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752, 764. Defendant Ellinger’s outside walkway did not have the same private sanctity as the interior of his house. Therefore, Ellinger had a reduced expectation of privacy when he stepped outside of his house.

Second, in Welsh, the arrest occurred at night, Welsh was nude, and he was wakened from sleep. In the immediate case, the time of arrest was August 30 at 7:34 p.m., defendant was fully clothed, standing outside his house and responding to the officer’s questions. Defense counsel attempts to invalidate the arrest by characterizing 7:34 p.m. as “night.”

We note Section 46-6-105, MCA:

“An arrest may be made on any day and at any time of the day or night, except that a person cannot be arrested in his home or private dwelling place at night for a misdemeanor committed at some other time and place unless upon the direction of a magistrate endorsed upon a warrant of arrest. [Emphasis added.]”

When viewed in a light most favorable to defendant, 7:34 p.m. on August 30 might be considered twilight, but certainly not “night”. Furthermore, defendant was not arrested in his home or dwelling place but on his walkway. Therefore, defendant’s arrest did not violate the constraints of the statute.

Third, in Welsh, the defendant was charged with driving under the influence of alcohol, which was a nonjailable civil offense in Wisconsin. Welsh, 466 U.S. at 754, 104 S.Ct. at 2100, 80 L.Ed.2d at 746. However, defendant Ellinger was arrested for the criminal offense of driving while under the influence of alcohol, where the penalty for a first offense is a mandatory twenty-four hours imprisonment and up to a $500 fine. The nature of the offense is a factor in the defendant’s privacy expectation.

In summary, an evaluation of the totality of the circumstances determines whether an individual had a reasonable expectation of privacy in the invaded place. Rawlings v. Kentucky (1980), 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633, 641. Welsh is distinguished on the facts. Defendant’s arrest for a criminal offense neither occurred in the defendant’s house nor at night. Therefore, defendant Ellinger’s expectations of privacy were not violated.

C. Defendant’s consent and evanescent blood alcohol removed the warrant requirement from the arrest.

Section 46-5-103, MCA, states: “No search and seizure, whether with or without warrant, shall be held to be illegal as to a defendant if: (1) the defendant has disclaimed any right to or interest in the place or object searched or the instruments, articles, or things seized

Defendant consented to the pre-arrest investigation. The police may conduct a valid warrantless search if they have a voluntary and intelligent consent to do so. Knowledge of the right to withhold consent, while a factor to be considered, is not a prerequisite to establishing a voluntary and intelligent consent. The police do not have to warn a person of the right to withhold consent. Schneckloth v. Bustamonte (1973), 412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854, 863. The voluntariness is viewed under the totality of the circumstances. State v. Stemple (1982), 198 Mont. 409, 412-413, 646 P.2d 539, 541. Officer Fisher entered the premises upon probable cause to investigate the citizen’s report. He personally observed defendant acting in an intoxicated manner. He asked defendant to take the sobriety tests, and defendant voluntarily consented. Before being placed in custody, defendant freely admitted that he had been drinking and driving.

Although defense counsel failed to raise the issue at trial, defendant alleges in his appeal that his admissions were made without Miranda warnings and are, therefore, inadmissible. However, Miranda only applies to custodial interrogation. Miranda v. Arizona (1966), 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706. An interrogation will not be considered custodial if the individual is free to leave. Berkemer v. McCarty (1984), 468 U.S. 420, 440, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317, 335. When a defendant is the focus of an investigation, the threshold Miranda question is whether the defendant was significantly deprived of his freedom. State v. Lapp (1983), 202 Mont. 327, 332, 658 P.2d 400, 403. Defendant Ellinger was neither deprived of any freedom, nor in custody, during his admissions and sobriety tests outside his house. Defendant voluntarily left the confines of his house. He answered the undersheriff’s questions without objection. Nowhere in the record did defendant indicate that he was unable to withdraw from the conversation, withdraw from the sobriety tests, and retreat into his house. Defendant had multiple opportunities to stop the interrogation and testing, yet freely consented to further proceeding. Therefore, defendant’s Miranda rights did not engage until he had been placed in custody. Upon arrest, Undersheriff Fisher informed the defendant of his Miranda rights.

Undersheriff Fisher also sought to preserve the evidence of evanescent alcohol in defendant’s blood by administering a breathalyzer test. The nearest test facility was in Roundup, which was seventeen miles away. The undersheriff needed to promptly transport the defendant to the facility because the percentage of alcohol in the blood decreases rapidly with time. Although the Welsh court found no need to make a warrantless arrest to preserve evanescent evidence in a civil case, this Court has held that the police may seize any evidence which is likely to disappear before a warrant can be obtained, such as a blood sample containing alcohol. State v. Deshner (1971), 158 Mont. 188, 193, 489 P.2d 1290, 1293; Schmerber v. California (1966), 384 U.S. 757, 771, 86 S.Ct. 1826, 1836, 16 L.Ed.2d 908, 920.

In conclusion, we hold that the arrest was valid. The undersheriff had probable cause with precise information from a citizen’s report. The defendant’s expectation of privacy was not violated on the walkway outside his house. The warrantless arrest preserved evanescent evidence.

Issue No. 2

If the arrest was not valid, should the charges have been dismissed? Defendant claims that his arrest was unlawful and therefore the charges should have been dismissed. However, an unlawful arrest has no impact on subsequent prosecution. This Court has held: “An illegal arrest does not preclude the State from proceeding on a criminal charge against him.” State v. Woods (Mont.1983), [203 Mont. 401,] 662 P.2d 579, 581, 40 St.Rep. 533, 534. Furthermore, an invalid arrest is not a defense to being convicted of the offense charged. “An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction. . .” Woods, 622 P.2d at 581, 40 St.Rep. at 535, citing United States v. Crews (1980), 445 U.S. 463, 474, 100 S.Ct. 1244, 1251, 63 L.Ed.2d 537, 547. If, arguendo, the arrest was invalid, the conviction remains supported on the basis of the defendant’s admissions and his .22 blood alcohol level.

Affirmed.

MR. JUSTICES WEBER, SHEEHY, GULBRANDSON and HUNT concur.


text:
    JEFF D. LAUDERDALE and Marlene V. Lauderdale, Plaintiffs and Appellants, v. H.T. GRAUMAN and Avis M. Grauman, Defendants and Respondents.
    No. 86-219.
    Submitted on Briefs Aug. 7, 1986.
    Decided Oct. 2, 1986.
    725 P.2d 1199.

      Leaphart Law Firm, W. William Leaphart, Helena, for plaintiffs and appellants.
    Poore, Roth & Robinson, Robert C. Brown, Butte, for defendants and respondents.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Jeff and Marlene Lauderdale appeal from that portion of the March 26, 1986, judgment and memorandum of the Fifth Judicial District Court which orders Lauderdales to pay H.T. and Avis Grauman $12,000 for attorneys’ fees incurred in this suit. We affirm the decision of the trial judge.

Lauderdales purchased Jefferson Valley Grain Company from Graumans by contract for deed executed April 1, 1974. On March 22, 1983, after paying more than 80% of the contract price to Graumans, Lauderdales filed suit against Graumans for breach of contract. Specifically, Lauderdales alleged Graumans acted fraudulently in the sale of their business by failing to disclose that the rear fifteen feet of the building was not on deeded property.

Graumans filed their answer, counterclaim and a third-party complaint on May 26, 1983. The third-party complaint was eventually dismissed and is not at issue here. Graumans’ counterclaim alleges breach of contract by Lauderdales and requests dismissal of Lauderdales’ complaint, compensatory damages, specific performance, punitive damages, costs and attorneys’ fees. Specifically, Graumans allege Lauderdales breached the contract by failing to operate the business in the same manner as Graumans and by failing to provide proof of payment of taxes and insurance premiums to the escrow agent.

Lauderdales and Graumans each filed motions for summary judgment in January of 1984. Following briefing and oral argument, the trial judge denied both motions.

In October of 1984, Lauderdales made their final payment under the contract for deed. Trial commenced January 22, 1986. On that day, Graumans agreed to dismiss their counterclaim, stating that it had been rendered moot when the contract for deed was paid in full and the escrow account closed.

Following trial, the jury found in favor of Graumans. Graumans then filed a memorandum of costs and a motion for determination and assessment of attorneys’ fees based on the following provision in the contract for deed:

“In any litigation arising out of this agreement, the successful litigants shall be entitled to receive from the other parties, in addition to the costs and disbursements provided for by statute, a reasonable attorney’s fee as fixed by the Court.”

Graumans requested $17,895.67 in attorneys’ fees and $343.70 in costs. Lauderdales objected, alleging there was no “successful party” in the litigation. The issue was briefed and a hearing held. Thereafter, the trial judge found Graumans to be the “successful litigants” or “prevailing party.” They were awarded $12,000 in attorneys’ fees and the costs they had requested.

On appeal, Lauderdales again contend there was no “successful litigant.” Lauderdales argue they became the prevailing party on Graumans’ counterclaim when the Graumans voluntarily dismissed it. Thus, since both parties won and lost on claims arising out of the litigation, there was no prevailing party and the parties are responsible for their own attorneys’ fees.

We agree with Lauderdales’ assertion that there are cases where, at the close of all litigation, there is no actual “prevailing party.” “[T]here is no prevailing party where both parties gain a victory but also suffer a loss.” Parcel v. Myers (Mont. 1984), [214 Mont. 220,] 697 P.2d 89, 91-92, 41 St.Rep. 2426, 2429, citing Knudsen v. Taylor (Mont. 1984), [211 Mont. 459,] 685 P.2d 354, 357, 41 St.Rep. 1490, 1493.

However, the case before us is not of that nature. Graumans have suffered no trial loss. They dismissed their counterclaim because it was rendered moot. This is clearly distinguishable from a situation where the jury found against Graumans on the counterclaim. Because Graumans are the prevailing party, they were properly awarded attorneys’ fees. Jordan v. Elizabethan Manor (1979), 181 Mont. 424, 434, 593 P.2d 1049, 1055.

Finally, Graumans request attorneys’ fees incurred as a result of this appeal. Where an award of attorneys’ fees is based on a contract, the award includes attorneys’ fees generated on appeal. Diehl and Associates v. Houtchens (1979), 180 Mont. 48, 53, 588 P.2d 1014, 1017. The District Court judge is ordered to determine the reasonable attorneys’ fees due Graumans.

Affirmed and remanded.

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