text:
    FROM: THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT, COUNTY OF DEER LODGE.
    STATE OF MONTANA, Plaintiff, vs. KEVIN T. MURPHY, Defendant.
    NO. DC-84-19 AMENDED DECISION
    DATED this 23rd day of April, 1990.
   On June 11,1985, the Defendant was sentenced to Count I, Burglary, ten (10 years; Count II, Theft, ten (10 years; said sentences are to run consecutively; 84 days creditfortime served plus any additional time served after sentencing; dangerous offender.

On March 8, 1990, the Defendants application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court, and a decision was rendered.

On April 23,1990, the March 8,1990 decision was reconsidered by the Sentence Review Board based upon an error of the law.

After careful consideration, it is the decision of the Sentence Review Division that the original sentence imposed on June 11, 1985, shall be affirmed.

The reason for the amendment is based upon an error of law. At the time of the March 8th hearing, Judge Erickson and Judge McLean both agreed that twenty (20 years was an appropriate sentence, but they merely disagreed with the merger of the sentences.


source: Caselaw Access Project

license: Public Domain

text:
    FROM: THE DISTRICT COURT OF THE THIRTEENTH JUDICIAL DISTRICT, COUNTY OF YELLOWSTONE.
    STATE OF MONTANA, Plaintiff, vs. RIGOBERTO ACEVES, Defendant.
    NO. DC-88-238 DECISION
    DATED this 23rd day of April, 1990.
   On May 10,1989, the Defendant was sentenced to thirty (30 years for Sexual Intercourse Without Consent; and was given credit for 302 days served.

On April 23, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Art Hoene, of the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed.

The reason for the decision is based upon Rule 17 of the Rules of the Sentence Review Division.


text:
    FROM: THE DISTRICT COURT OF THE TWENTIETH JUDICIAL DISTRICT, COUNTY OF SANDERS.
    STATE OF MONTANA, Plaintiff, vs. DALE GARBERDING, Defendant.
    NO. DC-89-06 DECISION
   On January 23, 1990, the Defendant was sentenced to Count I, twenty (20 years with ten (10 years suspended plus conditions, and a $10,000 fine for Criminal Possession with Intent to Sell; and Count IV, sixteen (16 months in the County Jail for Criminal Possession of Drug Paraphernalia, to run concurrent to Count I, two days credit for time served. Dangerous Designation.

DATED this 23rd day of April, 1990.

On April 23, 990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Allen M. Ressler, Attorney at raw, from Seattle, Washington. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence imposed shall be affirmed.

The reason for the decision is based in part upon the presumption that the sentence imposed is presumed correct, but also because the police report supports the dangerous offender designation. This Court recognizes that the sentencing court should have included reference to the prior felony offense, not because it occurred within five (5 years, but because it shows a pattern of conduct indicating that the Defendant continues to pose a threat to society.

The Honorable Leif B. Erickson, Acting Chairman, dissenting, the Honorable Robert Boyd, Acting Member, the Honorable Ed. McLean, Judges.


text:
    FROM: THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT, COUNTY OF MISSOULA.
    STATE OF MONTANA, Plaintiff, vs. THOMAS F. KRANTZ, Defendant.
    NO. 7891 DECISION
   On November 13, 1987, the Defendant was sentenced on Count I, Accountability for Robbery and Count TV, Robbery. A thirty (30 years sentence was given on each count plus ten (10 years for the use of a weapon. The sentence imposed for the weapon shall run consecutively on each count; and Count I and Count IV shall be served concurrently to each other. The petitioner shall receive credit for 165 days served. Dangerous Offender.

DATED this 23rd day of April, 1990.

On April 23, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Comb.

The Defendant was present and was represented by William Boggs, Attorney at Law from Missoula. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence imposed shall be affirmed.

The reason for the decision is based upon the presumption of the correctness of the sentence imposed by the District Court.


text:
    FROM: THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT, COUNTY OF MISSOULA.
    STATE OF MONTANA, Plaintiff, vs. DAVID PAUL, Defendant.
    NO. 8425 DECISION
   On November 11, 1989, the Defendant was sentenced to ten (10 years for Sexual Assault, to be served consecutively with Cause No. 7642; and the Court recommends placement in the Intensive Treatment Unit in the Sexual Offender Program; plus credit for 123 days served.

On April 23, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

DATED this 23rd day of April, 1990.

The Defendant was present and was represented by Steve Fletcher, of the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence originally imposed be unanimously affirmed. But in addition, a provision will be added that the Defendant not be eligible for parole until he has successfully completed the sex offender program at Montana State Prison.

The reason for the decision is based upon Rule 17 of the Rules of the Sentence Review Division and the presumption of the validity of the District Court Judgment.


text:
    FROM: THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT, COUNTY OF MISSOULA.
    STATE OF MONTANA, Plaintiff, vs. DAVID A. PAUL, Defendant.
    NO. 7642 DECISION
   On November 15, 1989, the Defendant was sentenced to Count I, 10 years for Theft; Count II, six (6 months in the Missoula County Jail for Theft; said sentences are to run concurrent; and he shall be given credit for 189 days time served.

On April 23, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Steve Fletcher, of the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

DATED this 23rd day of April, 1990.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence originally imposed be unanimously affirmed.

The reason for the decision is based upon Rule 17 of the Rules of the Sentence Review Division and the presumption of the validity of the District Court Judgment.


text:
    FROM: THE DISTRICT COURT OF THE NINETEENTH JUDICIAL DISTRICT, COUNTY OF LINCOLN.
    STATE OF MONTANA, Plaintiff, vs. EDWARD MERLE COUNTS, Defendant.
    NO. DC-88-63 DECISION
   On January 16, 1989, the Defendant was sentenced to Count I, twenty (20 years for Burglary; Count II, ten (10 years for Theft; said sentences are to be served concurrently; with credit for 72 days time served.

On April 23, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Jane Greek, of the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed.

DATED this 23rd day of April, 1990.

The reason for the decision is based upon Rule 17 of the Rules of the Sentence Review Division.


text:
    FROM: THE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT, COUNTY OF LEWIS AND CLARK.
    STATE OF MONTANA, Plaintiff, vs. GEOFREY GUY SWAN, Defendant.
    NO. BDC-88-139 DECISION
   On March 3, 1989, the Defendant was sentenced to forty (40 years for Sexual Intercourse Without Consent plus ten (10 years for the use of a weapon, to be served consecutively; The defendant shall not be eligible for parole until successfully completing the sex offender program; plus conditions when paroled. Dangerous Offender.

On April 23, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Morgan Queal, of the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the case shall be taken under advisement and a copy of the Transcript of the Change of Plea Hearing will be ordered by this Court.

It is the intention of this Division, that if, at the Change of Plea, the defendant admitted inflicting bodily injury, that the Board will affirm the original sentence imposed. If he did not, in the Change of Plea, admit to inflicting bodily injury, then this Board will have a telephone conference call to decide the issue.

DATED this 23rd day of April, 1990.

The probability is that the case will be remanded back to the District Court to make findings as to why the forty (40 year sentence was imposed rather than the twenty (20 years.

The record indicates that in the Change of Plea, the defendant was advised that the maximum sentence was two (2 to forty (40 years, but we find that the law requires there be bodily injury in order for the forty (40 year maximum to apply rather than the twenty (20 years.

The Change of Plea Transcript will be reviewed first, then a decision will be made whether to affirm the original sentence or to remand it back to the sentencing judge.


author: JUSTICE McDONOUGH

text:
    AARON and STELLA LACHENMAIER, Husband and Wife, Plaintiffs and Appellants, v. FIRST BANK SYSTEMS, INC.; and CREDIT SERVICES, member First Bank System, and FIRST STATE BANK OF FORSYTH, Defendants and Respondents.
    No. 90-016.
    Submitted on briefs Aug. 7, 1990.
    Decided Dec. 12, 1990.
    246 Mont. 26.
    803 P.2d 614.

      A. Cliff Edwards and David R. Paoli, Billings, for plaintiffs and appellants.
    Stephen D. Bell, Dorsey & Whitney, Billings, David A. Ranheim, Minneapolis, Minn., for defendants and respondents.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

The appellants Aaron and Stella Lachenmaier initiated this suit against the defendants alleging commercial bad faith and other breaches of contract and tort obligations. The Lachenmaiers appeal the order of the Sixteenth Judicial District Court, Rosebud County, granting the defendants’, First Bank Systems, Inc., FBS Credit Services, Inc., and First State Bank of Forsyth, joint motion for summary judgment on the plaintiffs’ claims of breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty and tortious interference with contract. The District Court also granted the defendants’ motion for summary judgment on their counterclaim to foreclose on the Lachenmaier’s mortgage and promissory notes. We affirm.

The Lachenmaier’s raise five issues on appeal:

1) Did the District Court err in ruling the defendants did not breach the implied covenant of good faith and fair dealing?

2) Did the District Court err in ruling the defendants owed no fiduciary duty to the plaintiffs?

3) Did the District Court err in ruling as a matter of law that there was no tortious or intentional interference of contract by CSI and First Bank System in regard to the contract between First State Bank of Forsyth and the Lachenmaiers?

4) Did the District Court err in granting summary judgment on the plaintiffs’ claims of intentional infliction of emotional distress?

5) Did the District Court err in granting defendants’ motion for summary judgment on the counter-claim to foreclose mortgages and promissory notes?

The Lachenmaiers owned and operated a farming and ranching business operation near Hathaway in Rosebud County, Montana for approximately twenty years. During this period the Lachenmaiers did their banking exclusively with defendant First State Bank of Forsyth (Bank). The Bank was owned by defendant First Bank Systems, Inc. (FBS) as a wholly-owned subsidiary, until 1986 when it was sold to local investors.

From 1964 to 1971 the Lachenmaiers were consistently satisfactory sugar beet and grain producers. In 1971 the Lachenmaiers lost their sugar beet contract when the Hardin sugar beet factory closed. The Lachenmaiers then focused on raising crops for sale and ran a small cow-calf operation from 1972 through 1978. Also, in the early 1970’s the Lachenmaiers bought some additional 800 plus acres of land, borrowing $40,000 from the Bank.

In 1978, allegedly upon the recommendation of the Bank president at the time, Mr. Thiesen, the Lachenmaiers switched to a feeder cattle operation to make better use of the feed raised on the farm. The Bank basically provided operating funds to the Lachenmaiers on an annual basis. The cattle operation sustained substantial operating losses nearly every year until 1986 when this action was commenced. The losses were a combined result of drought, grasshoppers, poor commodity prices, failure of the cattle to achieve projected weight gains, and increased operating and equipment expenses.

In 1985, as a condition of further financing, the Bank required the Lachenmaiers to apply for a Farmers’ Home Administration (FmHA) guarantee. The FmHA agreed to guarantee to the Bank 90% of the Lachenmaier’s already accrued operating expenses on the $275,000.00 face amount of the loan. The guarantee provided for a twenty year amortization rate with a balloon payment in seven years, with the Bank to provide annual operating funds in accordance with attached budgets.

In the 1985-86 cattle year, as a result of low weight gains and the federal dairy cow buy-out, the Lachenmaiers sustained a $79,000 operating loss and failed to pay their operating loan, due on April 25, 1986. Shortly thereafter, in May, the Bank advised the Lachenmaiers that their loans were being transferred to the other defendant, FBS Credit Services, Inc. (CSI). CSI is also a wholly-owned subsidiary of FBS. The Lachenmaiers’ loans were assigned to CSI as “problem loans” in conjunction with FBS’s divestiture of the Bank in Forsyth. After reviewing a proposed budget provided by the Lachenmaiers — which did not show a positive cash flow — CSI advised the Lachenmaiers that they would only extend additional credit in the amount of $69,000 for a period of six months and any further extension of credit would depend upon the ability of the Lachenmaiers to provide a realistic budget which would provide for a pay-down of the debt.

After negotiations between the Lachenmaiers and CSI through the summer and fall of 1986, the Lachenmaiers referred all further contact and correspondence to their attorney. They filed suit in November, 1986, alleging various breaches of duties sounding in both tort and contract. Following extensive discovery, the District Court entertained defendants’ motions for summary judgment, defendants’ motions in hmine and plaintiffs’ motion in limine. The trial court issued a memorandum and order granting the defendants’ joint motion for summary judgment, dismissing the plaintiffs’ complaint with prejudice, and granting the Bank’s motion for summary judgment on its counterclaim for foreclosure. From this order the Lachenmaiers now appeal.

STANDARD OF REVIEW

In order for summary judgment to issue, the movant must demonstrate that there is no genuine issue as to all facts deemed material in light of the substantive principles entitling the movant to judgment as a matter of law. Rule 56(c), M.R.Civ.P; Cecil v. Cardinal Drilling Co. (Mont. 1990), [244 Mont. 405,] 797 P.2d 232, 234, 47 St.Rep. 1673, 1676. Cereck v. Albertson’s, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 511. If the movant meets this burden, it then shifts to the non-moving party to demonstrate a genuine issue of material fact. Cecil, 797 P.2d at 235, Thelen v. City of Billings (1989), 238 Mont. 82, 85, 776 P.2d 520, 522; Gamble Robinson Co. v. Carousel Properties (1984), 212 Mont. 305, 312, 688 P2d 283, 287. As our forthcoming discussion will indicate, the Lachenmaiers fail to meet this shifted burden.

BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING

In its memorandum opinion accompanying the order granting summary judgment, the District Court relied heavily on the case of Montana Bank of Circle, N.A. v. Ralph Meyers and Son, Inc. (1989), 236 Mont. 236, 245, 769 P.2d 1208, 1214, for the proposition that breach of the implied covenant of good faith and fair dealing can only occur in a commercial setting after a breach of an express term of the underlying contract. In an effort to provide more workable guidelines this Court recently reassessed the implied covenant of good faith and fair dealing. In Story v. City of Bozeman (Mont. 1990), [242 Mont. 436,] 791 P.2d 767, 775, 47 St.Rep. 850, 859, we held that

“[E]very contract, regardless of type, contains an implied covenant of good faith and fair dealing. A breach of the covenant is a breach of the contract. Thus, breach of an express contractual term is not a prerequisite to breach of the implied covenant.”

We also held that for every contract not covered by a more specific provision, the standard of conduct required of contracting parties is “honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.” Section 28-1-211, MCA; Story, 791 P.2d at 775. We then equated this standard to the one applicable to merchants under the uniform commercial code:

“Each party to a contract has a justified expectation that the other will act in a reasonable manner in its performance or efficient breach. When one party uses discretion conferred by the contract to act dishonestly or to act outside of accepted commercial practices to deprive the other party of the benefit of the contract, the contract is breached.”

Story, 791 P.2d at 775.

Here, no evidence was presented that the Bank breached the “honesty in fact” standard. Plaintiff claims that the evidence indicates that the Bank in Forsyth continued to loan and encourage them to borrow more money simultaneous with the regional office’s and CSI’s plans to liquidate their assets and foreclose on the debt. At most, these allegations might indicate FBS’s corporate right hand acting one way and its left hand — without knowing what the right hand was doing — acting in another. It is not, however, proof that the defendants, in particular the Bank, utilized discretion conferred by the loan agreements to act dishonestly or outside of accepted commercial practices to deprive the Lachenmaiers of the benefit of the agreement. The Bank did not stand to gain anything from its actions, it was simply exercising sound business judgment as a creditor in acting to foreclose a “problem” loan. See Tresch v. Norwest Bank of Lewistown (1989), 238 Mont. 511, 778 P.2d 874; Coles Department Store v. First Bank Billings - N.A. (1989), 240 Mont. 226, 783 P.2d 932, Randolph v. Peterson Inc. (1989), 239 Mont. 1, 778 P.2d 879; Blome v. First National Bank of Miles City (1989), 238 Mont. 181, 776 P.2d 525; Central Bank of Montana v. Eystad (1985), 219 Mont. 69, 710 P.2d 710; First National Montana Bank of Missoula v. McGuiness (1985), 217 Mont. 409, 705 P.2d 579.

Furthermore, the parole evidence rule and the statute of frauds, § 28-2-903, MCA, preclude the Lachenmaiers from alleging a course of dealing here amounting to an oral agreement for continued financing. Under the doctrine of merger as enunciated in McGuiness any such oral representations merged with the terms of the note, which then became the final agreement between the parties. Blome, 776 P.2d at 528, Shiplet v. First Security Bank of Livingston, Inc. (1988), 234 Mont. 166, 171, 762 P.2d 242, 245. Thus, the Bank is not precluded by any alleged prior oral representations in exercising its good business judgment in foreclosing on the notes in this case. Also, the Lachenmaier’s reliance on Weinberg v. Farmer’s State Bank of Worden (1988), 231 Mont. 10, 752 P.2d 719, as controlling on the issue of breach of the implied covenant is misplaced. While the factual background of Weinberg is similar, plaintiffs’ attempt to construe the FmHA agreement here as analogous to the one in Weinberg fails. In Weinberg, the guarantee between the Lender and the FmHA was incorporated on the face of the promissory note between the lender and the borrower. See Shiplet, 762 P.2d at 244-245. Furthermore, the bank in Weinberg was found in breach of that agreement when it attempted to vary the interest rates set forth in the original note. Here, there was no incorporation of the FmHA agreement into the notes between the borrower and the lender, thus the borrowers were not a party to the FmHA guarantee and cannot attempt to enforce an alleged promise by the Bank based on the guarantee. Shiplet, 762 P.2d at 245, 246.

Finally, the Lachenmaiers argue that the facts here fit under the “special relationship” tort criteria set forth in Story. In Story we noted that tort damages were only available in breach of implied covenant cases involving “special relationships which are not otherwise controlled by specific statutory provisions.” Story, 791 P.2d at 776. Regardless, for a plaintiff to maintain a cause of action for breach of the implied covenant, whether it is based in contract or based on the “special relationship” criteria giving rise to a tort, the plaintiff must first show a breach of the honesty in fact standard. Kinniburgh v. Garrity (Mont. 1990), [244 Mont. 350,] 798 P.2d 102, 105, 47 St.Rep. 1655, 1658; Story, 791 P.2d at 775. Even if the Lachenmaiers could demonstrate breach of the honesty in fact standard, they failed to set forth evidence of each and every element of the special relationship criteria, particularly the element requiring that the relationship between the parties must be based on a non-profit motivation. See Story, 791 P.2d at 776.

FIDUCIARY DUTY

The Lachenmaiers contend that their fiduciary relationship with the Bank is evidenced by the fact that Lachenmaiers banked with First Bank Forsyth exclusively for over twenty-two years. During this relationship the Lachenmaiers claim that they sought and received the advice and counsel of First Bank Forsyth. The Lachenmaiers also contend that the Bank instructed them to buy more cattle and switch to a feeder operation, and that under Weinberg these alleged facts are sufficient to indicate the existence of a fiduciary relationship.

It is the law in Montana that “[t]he relationship between a bank and its customer is generally described as that of debtor and creditor ... and as such does not give rise to fiduciary responsibilities.” Deist v. Wacholz (1984), 208 Mont. 207, 216, 678 P.2d 188, 193 [citations omitted]. Shiplet 762 P.2d at 248; Simmonds v. Jenkins (1988), 230 Mont. 429, 433, 750 P.2d 1067, 1070. Alimited exception to this general rule has been recognized upon proof of “special circumstances,” as, for example, where a bank is “thrust beyond the role of a simple creditor into the role of an advisor.” Diest, 678 P.2d at 193; Simmons, 750 P.2d at 1070; Pulse v. North American Land Title Co. of Montana (1985), 218 Mont. 275, 283, 707 P.2d 1105, 1110. This Court has recognized that no fiduciary duty arises between a bank and its borrower where the bank did not offer financial advice, its advice was not always heeded, or where the borrower was advised by others, such as legal counsel. Simmons, 750 P.2d at 1070; Shiplet, 762 P.2d at 248.

The District Court concluded there was no special relationship beyond the normal debtor-creditor relationship between a bank and its customer. While noting that the Bank and the Lachenmaiers enjoyed a long and exclusive commercial relationship, the District Court pointed out that neither was tied to the other and the Lachenmaiers were free to transfer their loans to another financial lending institution at any time.

A review of the Lachenmaier’s evidence in the light most favorable to them may indicate the existence of disputed facts regarding whether the Bank did in fact act as a financial advisor during the course of its long relationship with the Lachenmaiers. However, even assuming the defendant Bank owed a fiduciary duty, the bank was under no obligation to loan the Lachenmaiers money under the FmHA guarantee, and there was no breach of fiduciary duty when the Bank acted for solid business reasons. See Tresch v. Norwest Bank of Lewistown supra, 778 P.2d at 876. Thus, any factual issues concerning the existence of a fiduciary relationship here are immaterial for purposes of summary judgment.

INTERFERENCE WITH CONTRACT

The Lachenmaiers contend that both CSI and FBS tortiously interfered with the contracts entered into between the Lachenmaiers and their Bank. The District Court found that "the parties defendant are in a parent-subsidiary relationship and the parent FBS has a right to participate in the affairs of its subsidiary and to make investment and loan decisions that are in the best interests of its shareholders, so long as, in doing so, it does not breach its contractual obligations with its borrowers.”

We agree. In order to make out a claim for tortious interference with the contractual relationship the complaint must allege: (1) that a contract was entered into, (2) that its performance was refused, (3) that such refusal was induced by unlawful and malicious acts of the defendant, and (4) that damages have resulted to the plaintiff. Phillips v. Montana Education Association (1980), 187 Mont. 419, 423, 610 P.2d 154, 157. Here, CSI was acting as a contractual servicing agent of the Bank. An agent is privileged, when acting on behalf of its principal, to interfere with a contract between its principal and a third party. Cotton v. Otis Elevator (S.D. W.Va. 1986), 627 F.Supp. 519, aff’d 841 F.2d 1122 (4th Cir. 1988). An agent’s acts, if motivated and taken in furtherance of the purposes and interests of its principal, will not give rise to a cause of action for tortious interference of a contract between its principal and a third party. Phillips, 610 P.2d at 158. The contractual interference claim against CSI fails.

The Lachenmaiers’ claim against FBS for interference with contract must also fail. At all times relevant to this case First Bank Forsyth and CSI were wholly owned subsidiaries of FBS. A parent corporation is privileged to “interfere” in a contract between its subsidiary and a third party to protect its own legitimate economic interest and such interference will not give rise to tort liability. Bendix Corp. v. Adams (Alaska 1980), 610 P.2d 24, 31-32.

EMOTIONAL DISTRESS

In denying the Lachenmaiers’ claim for intentional infliction of emotional distress the District Court noted that the Lachenmaiers failed to produce evidence of outrageous, extreme, unlawful or unreasonable acts by the defendants. We agree. “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” Restatement 2d of Torts § 46, comment d; Frigon v. Morrison-Maierle, Inc. (1988), 233 Mont. 113, 123-124, 760 P.2d 57, 63-64. Furthermore, the Bank in this case cannot be said to have acted “beyond all possible bounds of decency’ where it merely exercised a legal right to foreclose on the mortgage and notes. “The actor is never liable when he has done no more than to insist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress.” Restatement 2d of Torts, § 46, comment g. See also, e.g., Ledl v. Quick Pick Food Stores, Inc. (1984), 133 Mich.App. 583, 349 N.W.2d 529, 533; Batchelor v. Sears, Roebuck & Co. (E.D. Mich. 1983), 574 F. Supp. 1480, 1489. The District Court correctly held there was no outrageous conduct.

DEFENDANTS’ COUNTERCLAIM

The defendants filed a counterclaim seeking to collect from the Lachenmaiers all amounts presently due and owing the Bank. Finding the Lachenmaiers had defaulted, the District Court granted the defendants’ motion for summary judgment on the counterclaim.

We agree with the District Court’s holding. The Lachenmaiers signed the credit agreement with the Bank dated November 15,1985 and a promissory note dated November 4, 1985. Under the terms of the November 4 note, the Lachenmaiers were obligated to make seven annual payments of $35,990.69 payable on November 4 of each year. On November 15,1985, the Lachenmaiers executed a “Note for Funds to be Advanced in the Future.” The line of credit note was expressly made due and payable in full on April 25,1986.

The Lachenmaiers defaulted on the line of credit note by failing to make payment of $77,064.40 on April 25, 1986. The Lachenmaiers admit their default. The Lachenmaiers also defaulted on the November 4 note by failing to make payments due and owing on November 4,1986, November 4,1987 and November 4,1988. The Lachenmaiers admit the default.

Because the Lachenmaiers defaulted on these written agreements with the Bank the amounts due have been accelerated. The District Court correctly granted summary judgment to the defendants on the counterclaim.

We affirm.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON and WEBER and THE HONORABLE HENRY LOBLE, District Judge, concur.


text:
    FROM: THE DISTRICT COURT OF THE TWELFTH JUDICIAL DISTRICT, COUNTY OF HILL.
    STATE OF MONTANA, Plaintiff, vs. CHAD K. REIMER, Defendant.
    NO. DC-89-010 DECISION
   On November 9, 1989, the Defendant was sentenced to forty (40 years for Mitigated Deliberate Homicide, plus fifteen (15 years for being a persistent felony offender, plus four (4 years for the use of a dangerous weapon; said sentences to run consecutively and 270 days credit for time served. Dangerous Offender.

On April 23, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Comb.

The Defendant was present and was represented by Dave Ohler, of the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence imposed shall be affirmed.

DATED this 23rd day of April, 1990.

The reason for the decision is based upon Rule 17 of the Rules of the Sentence Review Division.


text:
    FROM: THE DISTRICT COURT OF THE EIGHTEENTH JUDICIAL DISTRICT, COUNTY OF GALLATIN.
    STATE OF MONTANA, Plaintiff, vs. DANIEL H. LOPEZ, Defendant.
    NO. 3062 DECISION
    DATED this 23rd day of April, 1990.
   On October 12, 1978, the Defendant was sentenced to Count I, twenty (20 years for Aggravated Assault; Count II, ten (10 years for Attempted Theft, to be served concurrently. Dangerous Designation.

On April 23, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Susan Wordal, ofthe Montana Defender Project. The state was represented by Marty Lambert, Chief Deputy County Attorney from Gallatin County.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the -unanimous decision of the Sentence Review Division that the sentence imposed shall be affirmed.

The reason for the decision is based upon Rule 17 of the Rules of the Sentence Review Board.


text:
    FROM: THE DISTRICT COURT OF THE EIGHTEENTH JUDICIAL DISTRICT, COUNTY OF GALLATIN.
    STATE OF MONTANA, Plaintiff, vs. MICHAEL W. CHURCH, Defendant.
    NO. BC-89-163 DECISION
    DATED this 23rd day of April, 1990.
   On January 12,1990, the Defendant was sentenced to Count I, ten (10 years with three (3 years suspended plus conditions and $ 1,164.75 in restitution for Issuing a Bad Check; Count II, ten (10 years with three (3 years suspended plus conditions, and restitution to be established during a restitution hearing; Counts I and II shall run concurrent but consecutive to DC-88-122. Dangerous Designation.

On April 23, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was represented by Chief Deputy County Attorney, Marty Lambert from Gallatin County.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence imposed shall be affirmed.

The reason for the decision is based upon Rule 17 of the Rules of the Sentence Review Division.


text:
    AUGUST 1990 CALENDAR
    The Honorable C.B. McNeil, Chairman, The Honorable Leif B. Erickson, and The Honorable Ed McLean, Judges.
    FROM: THE DISTRICT COURT OF THE ELEVENTH JUDICIAL DISTRICT, COUNTY OF FLATHEAD,
    STATE OF MONTANA, Plaintiff, vs. ROBERT F. SCHOONOVER, Defendant.
    No. DC-89-029 DECISION
   On May 2, 1989, the Defendant was sentenced to ten (10) years on Count I, Theft; ten (10) years on Count II, Issuing a Bad Check; and ten (10) years on Count III, Issuing a Bad Check. All three sentences shall be served consecutively for a total of thirty (30) years with twelve (12) years suspended. Conditions and requirements are that the petitioner pay restitution, child support, and the expenses of polygraph examinations and psychiatric evaluation. He shall also be given credit for 87 days incarceration in the Flathead County Jail.

On August 3, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Terrance Healow of the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to ten (10) years with fqur (4) years suspended on Count I, Theft; ten (10) years with four (4) years suspended on Count II, Issuing a Bad Check; and ten (10) years with four (4) years suspended on Count III, Issuing a Bad Check. All three sentences shall be served consecutively. The remaining conditions and requirements as imposed by Judge Keedy will remain in effect and the petitioner shall be given credit for the 87 days incarceration in the Flathead County Jail. The reason for the decision is based upon the presumption of validity of the District Court Judgment; and to clarify the wording of the Judgment imposed by Judge Keedy.

DATED this 3rd day of August, 1990.


text:
    FROM: THE DISTRICT COURT OF THE FIFTEENTH JUDICIAL DISTRICT, COUNTY OF SHERIDAN.
    STATE OF MONTANA, Plaintiff, vs. MICHAEL WALTER FRASIER, Defendant.
    No. 938 DECISION
    DATED this 3rd day of August, 1990.
   On April 19, 1990, the Defendant was sentenced to five (5) years for Count II, Criminal Possession of Dangerous Drugs With the Intent to Sell. The sentence shall run consecutively to Cause #880; and he shall receive credit for sixteen (16) days time served.

On August 3, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Francis J. McCarvel, Attorney at Law from Glasgow, Montana. The state was not represented. Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed. After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed and shall be served consecutively with Cause #880 as amended.

The reason for the decision is based upon the presumption of the validity of the District Court Judgment.


text:
    FROM: THE DISTRICT COURT OF THE FIFTEENTH JUDICIAL DISTRICT, COUNTY OF SHERIDAN,
    STATE OF MONTANA, Plaintiff, vs. MICHAEL WALTER FRASIER, Defendant.
    No. 880 DECISION
    DATED this 3rd day of August, 1990.
   On April 19, 1990, the Defendant was sentenced to fifteen (15) years, three (3) days until April 22, 2005, the Defendant’s discharge date under his previous suspended sentence for the revocation of Count I, Theft and Count II, Burglary.

On August 3, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Francis J. McCarvel, Attorney at Law from Glasgow, Montana. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence is amended to provide that in the Revocation Order dated, April 19, 1990, the sentences imposed for Burglary and Theft shall be served concurrently rather than consecutively. Thus the petitioner will serve five (5) years and three (3) days rather than fifteen (15) years and three (3) days. The conditions shall remain the same as originally imposed.

The reasons for the decision are (1) the statute in effect at the time of the original sentencing presumed that the sentence would run concurrently; and (2) to obtain uniformity in sentencing.


text:
    FROM: THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT, COUNTY OF RICHLAND,
    STATE OF MONTANA, Plaintiff, vs. PAUL D. KORDONOWY, Defendant.
    No. DC-89-003 DECISION
    DATED this 3rd day of August, 1990.
   On August 29, 1989, the Defendant was sentenced to twenty (20) years for Count IV, Sexual Intercourse Without Consent; forty (40) years on Count V, Robbery; ten (10) years on Count VII, Aggravated Kidnapping; said sentences are to run consecutively with 220 days credit for time served; Non-Dangerous Designation.

On August 3, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Peter O. Maltese, Attorney at Law from Sidney, Montana. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be modified to change the sentences on Counts IV, V, and VII to run concurrent to each other instead of consecutive. The non-dangerous designation shall be changed to Dangerous. All other portions of the sentence shall remain the same as originally imposed.

The reasons for running the sentences concurrent instead of consecutive are: (1) to achieve uniformity in sentencing and (2) the fact that the offenses arose out of the same circumstances on the same evening.

The reasons for the Dangerous designation status are: (1) because of the commission of another felony, Aggravated Assault, within five (5) years and (2) the board also considered the serious nature of this crime.


text:
    FROM: THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT, COUNTY OF SILVER BOW,
    STATE OF MONTANA, Plaintiff, vs. GARY L. BUTTON, Defendant.
    No. 83-CR-98 DECISION
    DATED this 3rd day of August, 1990.
   On September 25, 1989 the Defendant was sentenced to five (5) years for the revocation of Theft.

On August 3, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Cath Steger, of the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is based upon the presumption of the validity of the District Court Sentence.


author: The Honorable Robert Boyd

text:
    FROM: THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT, COUNTY OF MISSOULA.
    STATE OF MONTANA, Plaintiff, vs. FORTINO VALENCIA Defendant.
    NO. 8684 DECISION
   On July 14,1989 the Defendant was sentenced to five (5) years for Count I, Criminal Possession of Dangerous Drugs; and Twenty (20) years with five (5) years suspended for Count II for Criminal Possession of Dangerous Drugs with Intent to Sell. If the defendant returns to the United States during this period of probation he will be held in violation of probation. The sentences shall be served consecutively and he shall be given 131 days credit for time served; dangerous designation.

DATED this 3rd day of August, 1990.

On August 3, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Joylyn Smith of the Montana Defender Project. The state was not represented.

Mr. Valencia is an Immigrant from Mexico and is unable to speak English. Therefore, Father Henry Cabong, pastor at the Montana State Prison, was present to act as interpreter during the hearing.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, there was a split decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is based upon the presumption of the validity of the District Court Judgment.

DISSENT:

The Honorable Robert Boyd

dissents. He would have amended the sentence to change the status designation from Dangerous to Non- dangerous. This would have conformed with the recommendation in the pre-sentence report.


text:
    FROM: THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT, COUNTY OF MISSOULA.
    STATE OF MONTANA, Plaintiff, vs. BONNYE RED SANDS, Defendant.
    NO. 7836 DECISION
    DATED this 3rd day of August, 1990.
   On April 6,1990 the Defendant was sentenced to ten (10) years for Issuing Bad Checks with a recommendation that she be required to establish a plan to pay restitution while on parole; and was also given credit for 62 days time served.

On August 3, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Dirk Beccari, Attorney at Law from Missoula, Montana. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that she wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to ten (10 years with five (5) years suspended; and as a condition of her parole she shall be required to establish a plan and pay restitution in full. She shall also be given 62 days for time served.

The reasons for the decision are: (1) to achieve uniformity in sentences; (2) the defendant had no prior offenses; (3) it was a nonviolent crime; and (4) the revocation was based upon a status offense without any new criminal activity.


author: The Honorable Ed McLean

text:
    FROM: THE DISTRICT COURT OF THE TWENTIETH JUDICIAL DISTRICT, COUNTY OF LAKE.
    STATE OF MONTANA, Plaintiff, vs. ROGER LEE GARDIPEE, Defendant.
    NO. DC-88-66 DECISION
    DATED this 3rd day of August, 1990.
   On January 31,1990, the Defendant was sentenced to five (5) years for the revocation of Criminal Possession of Dangerous Drugs; he was given 35 days credit for time served and was designated as a Dangerous Offender.

On August 3, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Cath Steger, of the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, there was a split decision by the members of the Sentence Review Board. The five (5) years for the revocation of Criminal Possession of Dangerous Drugs shall remain the same as imposed, however, the Dangerous Designation shall be changed to Non- Dangerous. The defendant shall be given 35 days credit for time served.

The reason for the decision is based upon State v. Nelson, 246 Montana Reports, (Sentence Review Division), 1990. The change in designation from non-dangerous to dangerous after the date of the offense amounted to an ex post facto application of the law to the detriment of the defendant.

Acting Chairman, Hon. Bart Erickson,

DISSENT:

The Honorable Ed McLean

dissents. He would have left the sentence as originally imposed by Judge McNeil, based upon the presumption of the validity of the District Court Judgment.


author: JUSTICE McDONOUGH JUSTICE WEBER,

text:
    SPENCER SIZEMORE, Plaintiff & Respondent, v. THE MONTANA POWER COMPANY; and DOE I and KEITH KESSEL, individually, and d/b/a KESSEL CONSTRUCTION COMPANY; and KESSEL CONSTRUCTION COMPANY; and DOE II, Defendants and Appellants.
    No. 89-482.
    Submitted Oct. 25, 1990.
    Decided Dec. 13, 1990.
    246 Mont. 37.
    803 P.2d 629.

      Brian Lilletvedt, Bosch, Kuhr, Dugdale, Martin & Kaze, Havre, for defendants and appellants.
    Morton B. Goldstein, Goldstein Law Firm, Havre, for plaintiff and respondent.
    Ira Eakin, Lynaugh, Fitzgerald, Eiselein & Eakin, Billings (Montana Trial Lawyers’ Assn.), Gary L. Graham, Garlington, Lohn & Robinson, Missoula (Montana Defense Trial Lawyers, Inc.), amicus.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Defendant, Montana Power Company (MPC), appeals from a jury verdict of the Seventeenth Judicial District, Blaine County. The jury awarded plaintiff, Spencer Sizemore (Sizemore), damages for injuries sustained when an I-beam he was holding came into contact with a high voltage power line owned by MPC. The jury found that 15% of Sizemore’s injuries was attributable to his own negligence, 20% was attributable to his co-worker, Keith Kessel (Kessel), and 65% was attributable to the negligence of MPC. We affirm.

We rephrase the issues as follows:

1) Whether the District Court erred when it allowed Sizemore’s expert witness to testify concerning sections of the 1977 National Electric Safety Code (NESC);

2) Whether the District Court erred when it ruled as a matter of law that the minimum height requirement set forth in the 1984 edition of the NESC did not apply to this case;

3) Whether the District Court erred when it refused MPC’s proposed jury instructions 15, 15Aand 15B;

4) Whether the negligence of Sizemore, and his co-worker Kessel, was a superseding, intervening event which severed all liability on the part of MPC;

5) Whether the evidence was insufficient to support the jury’s conclusion that MPC was responsible for sixty-five percent of Sizemore’s injury.

The facts are simple. On September 8, 1984, Spencer Sizemore gratuitously agreed to help Keith Kessel move some steel I-beams. Kessel is the owner of Kessel Construction Company. The company constructs concrete buildings, steel buildings and grain bins. It operates out of the Kessel Construction Yard in Blaine County.

On the day of the accident Sizemore and Kessel went to the Kessel Construction Yard, where the I-beams were located. They planned to move the beams with a boom truck. Kessel and Sizemore moved some wooden stubs to the area where they planned to move the beams so that they could set the beams on the stubs. After setting the stubs in place, Sizemore guided Kessel as he backed the boom truck up to the beams and they hooked up the load.

As they hooked an I-beam to the boom truck, Sizemore and Kessel discussed safety. Particularly, they talked about the need to avoid powerlines that ran across and above the Kessel Construction Yard.

After hooking a beam to the boom truck, Kessel began to back up with the load. While backing up, the boom hit one of the powerlines and Sizemore, who was holding on to the beam, received an electrical shock. As a result of the shock, Sizemore received burns to his left leg and right hand. He was hospitalized in Havre and Missoula, where he had surgery to remove the ring finger on his right hand and repair damage to his left leg.

On November 28, 1986, Sizemore filed a complaint against both MPC and Keith Kessel, individually and d/b/a Kessel Construction Company. In his complaint, Sizemore alleged that he suffered permanent injuries as a result of the accident. He farther alleged that MPC negligently placed the power line in such a manner as to grossly and recklessly endanger his life. He also alleged that Kessel negligently operated the boom truck by backing it into the powerline.

MPC answered Sizemore’s complaint and generally denied his allegations as to the cause of his injuries. MPC maintained that Sizemore’s injuries were caused by his own negligence. It therefore filed a motion for summary judgment contending that Sizemore’s injuries were caused by the superseding and intervening negligent acts of Kessel and Sizemore. This motion was denied. At trial the jury found that 15% of Sizemore’s injuries was attributable to his own negligence, 20% ofhis injuries was attributable to Kessel’s negligence and the remaining 65% was attributable to the negligence of MPC. MPC filed its motion for judgment notwithstanding the verdict or in the alternative for a new trial. These motions were denied and MPC filed this appeal.

Issue I

MPC argues that the trial court erred when it allowed Sizemore’s expert witness, Robert Leo, to testify concerning certain safety standards contained in the 1977 edition of the National Electric Safety Code (NESC). These standards set forth height requirements for powerlines. According to MPC, the 1984 edition of the NESC should have been used because Sizemore’s injury occurred in 1984. It argues that the trial court erred in allowing Mr. Leo to refer to the older 1977 version during his testimony.

We need not delve into the merits of MPC’s argument. As Sizemore points out, MPC failed to object to this testimony. Without a proper objection, MPC failed to preserve possible error for purposes of appeal. Matter of B.L.O. (1984), 213 Mont. 164, 689 P.2d 1246. Accordingly, we decline to address this issue or to find reversible error on the part of the District Corut.

Issue II

MPC argues that the NESC provides that a power company need only elevate its power lines twenty feet above the ground in areas such as the Kessel Construction Yard. It supports this contention through reference to section 232 of the NESC, which indicates that the minimum height requirement for powerlines similar to the one involved in this case is 20 feet. Apparently, in cross examining Mr. Leo, counsel for MPC attempted to insinuate that this 20 foot standard was the height required by the NESC.

Upon objection, the trial court ruled that such questioning misrepresented Mr. Leo’s former testimony. The trial court pointed out that this 20 foot figure was modified by a footnote which explained that the figure was based upon vehicle operating heights of less than 14 feet. Therefore, if vehicles, with maximum heights of 14 feet operated under powerlines, the code mandated a minimum height of 20 feet. If vehicles higher than 14 feet operated in the area however, the lines must be at least six feet higher than the maximum operating height of the vehicles. Based upon this interpretation of the NESC, the trial court sustained Sizemore’s objection and forbid MPC’s counsel from asking what it considered misleading questions.

We have reviewed section 232 of the NESC. Obviously, this section was intended to require power companies to provide lines at least six feet higher than the maximum height of vehicles passing underneath. This conclusion comports with Mr. Leo’s testimony We therefore hold that the trial court’s ruling on this issue was a correct interpretation of both Mr. Leo’s testimony and the standards contained in the NESC.

Issue III

Throughout trial and on appeal, MPC has argued that Sizemore’s and Kessel’s negligence was an unforeseeable event. It maintains that because this event was unforeseeable, it should be regarded as a superseding, intervening event which cuts off all legal liability on the part of MPC. See Kitchen Krafters v. Eastside Bank of Montana (1990), 242 Mont. 155, 47 St.Rep. 602, 789 P.2d 567.

In order to emphasize this theory MPC submitted several instructions to the District Court for presentation to the jury These instructions stated:

“PROPOSED INSTRUCTION NO. 15
“If you find the Defendant Keith Kessel’s conduct was the operative conduct or superseding cause which intervened as the proximate cause of Spencer Sizemore’s injuries, you must return your verdict for the Defendant Montana Power Company.
“PROPOSED INSTRUCTION NO. 15-A
“If an act of negligence subsequent to the first act of negligence was of such a character as not reasonably to be expected to happen in the natural sequence of events, such later act of negligence is the independent, intervening cause and, therefore, the sole proximate cause of the injury.
“PROPOSED INSTRUCTION NO. 15-B
“Where one has negligently caused a condition of danger, he is not relieved of responsibility for damage caused to another merely because the injury also involved the later misconduct of someone else, if that conduct was reasonably foreseeable.”

The District Court rejected these instructions. It rejected Instruction 15 because it felt that its language would confuse the jury. The lower court stated its belief that the wording of the instruction was inconsistent with Montana’s comparative negligence law.

MPC, on the other hand, argues the instruction is an accurate statement of Montana law. It points out that its language is taken directly out of a decision rendered by this Court in 1986. Dvorak v. Matador Service Inc. (1986), 223 Mont. 98, 727 P.2d 1306. In Dvorak, the plaintiff sued for injuries incurred when his employer ordered him to enter a tank which had previously contained poisonous chemicals. The tank car was owned by Matador Service Inc. We held that the employer’s grossly negligent conduct was the “operative cause” or superseding force of Dvorak’s injuries. Dvorak, 727 P.2d at 1310. Based upon this conclusion we held that Dvorak could not establish proximate cause and therefore affirmed the lower court’s order of summary judgment.

Recently this Court has expanded and modified the law of proximate cause. This trend began in the seminal case of Young v. Flathead County (1988), 232 Mont. 274, 757 P.2d 772, and has continued through our decisions in Kitchen Krafters Inc. v. Eastside Bank of Montana (1990) 242 Mont. 155, 47 St. Rep. 602, 789 P.2d 567; and Thayer v. Hicks (1990), 243 Mont. 138, 47 St.Rep. 1082, 793 P.2d 784. In each of these cases we have set forth the rule that proximate cause has its basis in foreseeability. See Kitchen Krafters, 789 P.2d at 575.

The language from Dvorak, upon which Instruction 15 is based, does not incorporate the doctrine of foreseeability and its relationship to proximate cause as set forth in Young and its progeny. Moreover, the language “operative conduct or superseding cause” indicates that Sizemore’s accident may have had only one cause. Such a connotation is inconsistent with the law concerning comparative negligence. Given these facts, we hold that the instruction is faulty and the District Court could properly refuse its submission to the jury.

Similarly, Instruction 15-A was properly refused. This instruction is based upon Halsey v. Uithof (1975), 166 Mont. 319, 532 P.2d 686. Halsey was decided before Montana adopted comparative negligence. Before this law was adopted a plaintiff could not recover if he was partially responsible for his injuries. Many of the older cases decided under this scheme of liability often denied such plaintiffs recovery on the grounds that their negligence was the sole or proximate cause of their damages. Such language is no longer applicable, however. Under comparative negligence a plaintiff can recover even though the accident causing his injuries is caused by more than one actor, including himself. The language of Instruction 15-A does not adequately set forth this concept. The instruction is also covered by other approved instructions. We hold the instruction was properly denied.

The lower court also denied Instruction 15-B, obviously holding that it was adequately covered by other instructions already approved. Instruction 15-B deals with foreseeability. In order to incorporate foreseeability into the instructions given to the jury, the District Court utilized a modified version of the standard proximate cause instruction, which was used at the time of trial. Instruction No. 13 submitted to the jury states:

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

This instruction when read in conjunction with others, adequately sets forth the concept of foreseeability and its application to proximate causation. The concept of foreseeability was set forth to the jury through Instruction No. 13, instructions on negligence, proximate cause, and the duty of the power company. Also, it was discussed in closing arguments given by counsel. The lower court’s refusal to submit Instruction 15-B to the jury does not constitute reversible error. In light of instructions given regarding negligence and comparative negligence, it was redundant. Furthermore, the instruction is confusing, especially by the use of the word “involved” and the word “conduct.”

However, as an aside, we note that this instruction (15-B) has merit in the use of the word “reasonably’ (the lack of which is not reversible error) as an adverb before the word “foreseeable.” This addition would help explain the concepts of ordinarily prudent person and natural and probable consequences in setting forth the issue of foreseeability in an instruction applicable to the appropriate case. These concepts were included in an instruction recently set forth in Kitchen Krafters v. Eastside Bank of Montana (1990), 242 Mont. 155, 47 St.Rep. 602, 689 P.2d 567.

Issue IV

MPC maintains that the District Court erred when it denied MPC’s motion for summary judgment, motion for directed verdict and motion for judgment notwithstanding the verdict. It bases this argument on its belief that Kessel’s and Sizemore’s negligence was unforeseeable, and that therefore Sizemore cannot establish proximate cause. In support of its contentions, MPC cites a number of cases decided by this Court.

Most of these cases arose before the legislature passed Montana’s comparative negligence statute. See e.g. Halsey v. Uithof (1975), 166 Mont. 319, 532 P.2d 686; Sprankle v. DeCock (1974), 165 Mont. 274, 530 P.2d 457; Turley v. Montana Power Company (1975), 167 Mont. 39, 534 P.2d 1254. Many of these decisions contain language concerning causation which, although relevant in a contributory negligence context, is no longer applicable under our comparative negligence scheme. For this reason, MPC’s reliance upon these cases is misplaced.

However, MPC also relies upon Dvorak v. Matador Services Inc. (1986), 223 Mont. 98, 727 P.2d 1306, which arose after the comparative negligence statute was enacted. Admittedly, this case lends some support to MPC’s arguments. Since Dvorak was decided, however, we have issued a number of opinions which render much of its language obsolete. As stated earlier, this Court has sought in recent decisions, to clarify the doctrine of proximate cause. Therefore, we rely upon these decisions in formulating the holding in the case now before us.

The doctrine of proximate cause has been developed in an effort to prevent unlimited liability. As observed in a recent case “the consequences of a wrongful act can extend in time for years — perhaps (even) beyond the defendant’s lifetime.” Kitchen Krafters Inc. v. Eastside Bank of Montana (1990), 242 Mont. 155, 47 St.Rep. 602, 789 P.2d 567. In recognition of this fact, the courts have sought to devise a means to cut off a defendant’s liability when principles of equity and common sense demand such a result. By far the most common method of achieving this end is through resort to the foreseeability analysis.

This method of analysis requires a trier of fact to determine whether the consequences of a defendant’s actions were reasonably foreseeable. If a plaintiff’s damages were reasonably foreseeable to a man of ordinary prudence, liability will usually follow. However by the same token the law refuses to hold a defendant responsible for consequences which, although possible are not reasonably foreseeable, or are generally regarded as freakish, bizarre or unpredictable. Prosser and Keeton on Torts, 5th Edition § 43 (1984).

Foreseeability can be determined in one of two ways. Some courts analyze the issue under the element of duty. These courts take’ the view that the scope of a defendant’s duty is determined by the foreseeability of any harm which may arise as a result of his negligent conduct. See e.g. Palsgraf v. Long Island Railroad Co. (1928), 248 N.Y. 339, 162 N.E. 99, 100. Other courts have analyzed foreseeability under the issue of proximate cause. In doing so, they have taken the view that all persons owe a duty to the world at large to act reasonably in order to prevent injury to their fellow man. Palsgraf, 162 N.E. at 104 (Andrews dissenting). If this duty is breached, it then becomes necessary to determine whether the consequences of the breach were reasonably foreseeable to the defendant. If the consequences were reasonably foreseeable, proximate cause is established and liability will follow.

In Kitchen Krafters, Inc. v. Eastside Bank of Montana (1990), 242 Mont. 155, 47 St.Rep. 602, 789 P.2d 567, this Court analyzed foreseeability under the doctrine of proximate cause. In the present case, MPC maintains that Sizemore’s injuries were unforeseeable because his negligence combined with Kessel’s was a superseding, intervening event. Therefore, we analyze the facts now before us under this doctrine and apply them to the law established in Kitchen Krafters.

As stated earlier, MPC argues that the events surrounding Sizemore’s accident were unforeseeable. They maintain that it was impossible to foresee that Kessel and Sizemore would be so completely inattentive and negligent so as to run the boom truck into the overhead powerline. They further argue that they had no way of knowing that the truck would be operated in the vicinity of the powerline. Based upon these contentions, MPC maintains that Kessel’s and Sizemore’s acts were unforeseeable and therefore proximate cause cannot be established. Without proximate cause MPC cannot be held liable for any “alleged negligence associated with the height of the powerline.

Simply stated, the issue raised by MPC is whether the subsequent acts of negligence committed by Kessel and Sizemore were superseding, intervening events which cut off legal responsibility on the part of MPC. By definition, a superseding, intervening event is an unforeseeable event that occurs after the defendant’s original act of negligence. Its presence will generally serve to cut oif liability on the part of the defendant. Kitchen Krafters, 789 P.2d at 576.

It is true that sometimes an antecedent act by a third person or by the plaintiff is unforeseeable. For example, numerous courts have held that the criminal or intentional actions of a third person may not be foreseeable. Cole v. German Savings and Loan Society (8th Cir. 1903), 124 F. 113. Similarly, a grossly negligent act on the part of a plaintiff may properly be considered unforeseeable.

The case now before us, however, presents neither of these fact scenarios. Rather, the case requires us to determine whether the circumstances surrounding Sizemore’s accident was a reasonably foreseeable consequence of MPC’s negligent placement of its powerline.

We begin with the premise that “the standard of reasonable conduct may require the defendant to protect the plaintiff against ‘that occasional negligence which is one of the ordinary incidents of human life, and therefore to be anticipated’ ” Prosser and Keeton on Torts, 5th Edition § 44 (1984). Based upon this rule, it is apparent that at times a power company has a duty to maintain its lines in such a maimer as to prevent the type of accident that occurred in this case.

After a careful review of the facts, we conclude that Kessel’s and Sizemore’s actions were not extraordinarily negligent. On the contrary, the boom truck’s contact with the line could be a normal consequence of MPC’s negligent act. It was therefore reasonably foreseeable. This conclusion is supported by testimony presented by expert witnesses at trial. Sizemore’s expert testified that 85% of all electrical injuries are caused by human frailty or mistake. MPC’s witness acknowledged that the majority of such accidents are due to human mistakes.

Given these facts, we hold that the jury could properly conclude that the intervening negligence of Kessel and Sizemore was reasonably foreseeable and proximate cause was established. Therefore, the lower court did not err in refusing to grant MPC’s motions for summary judgment, directed verdict or judgment notwithstanding the verdict.

Issue V

Finally, MPC argues that there was insufficient evidence to support the jury’s conclusion that it was responsible for sixty-five percent of Sizemore’s injury. In support of this contention MPC recites evidence which established both Kessel’s and Sizemore’s knowledge of the location and danger of the powerlines. They maintain that their negligence if any, was in failing to raise or relocate the powerlines. This act constituted mere passive negligence, as opposed to the active negligence of Kessel and Sizemore. Given these facts, the evidence does not support the jury’s apportionment of damages.

We disagree. This Court’s function in reviewing jury verdicts is necessarily very limited. We must review the evidence in a light most favorable to the prevailing party to determine whether substantial evidence supports the jury’s verdict. Anaconda Co. v. Whittaker (1980), 188 Mont. 66, 610 P.2d 1177. This Court cannot reweigh the evidence or disturb the findings of a jury unless that evidence is so inherently impossible or improbable as not to be entitled to belief. Reynolds v. Trbovich Inc. (1949), 123 Mont. 224, 210 P.2d 634.

The evidence presented at trial established that MPC knew that construction activity took place at the Kessel Yard. Apparently, MPC employees had been at the yard approximately 100 times over the years preceding the accident. Evidence was also introduced which established that a similar incident, although with no injuries, occurred a few months prior to Sizemore’s accident. The evidence is conflicting on whether MPC was notified of the incident. However, the incident involved contact with a powerline that was connected to the same power pole that connected the powerlines involved in the Sizemore accident. Finally, the record shows that MPC had been at the construction yard and had buried cables earlier in 1984, several months before the accident.

These facts rise to the level of substantial evidence needed to support the jury’s apportionment of damages. As stated earlier, this Court is precluded from reweighing the evidence. Accordingly, the jury’s verdict is affirmed.

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

JUSTICE WEBER,

dissenting:

My dissent focuses on Issue III in which the majority concludes that it was not error to refuse any of defendant’s proposed Instructions 15, 15-A and 15-B. The majority concludes that the theories on the part of the defendant are adequately set forth in Instruction No. 13 which is set forth as follows:

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

The majority concludes that Instruction No. 13 adequately sets forth the concept of foreseeability and its application to proximate causation. I suggest that the analysis of Instruction No. 13 is not consistent with Kitchen Krafters Inc. v. Eastside Bank of Montana (Mont. 1990), 242 Mont. 155, 789 P.2d 567, 47 St.Rep. 602. Instruction No. 13 speaks of “The” proximate cause in a case where there are three different causes to be considered. The instruction essentially uses the “but for” approach as it states that the proximate cause is that “without which the injury would not have occurred.” As pointed out in Kitchen Krafters, 242 Mont. at _, 789 P.2d at 574, 47 St. Rep. at 610, causation in fact is determined by the “but for,” test where applicable. However, if two causes concur to bring about an event then the “substantial factor” test is used. Under Kitchen Krafters, it appears that Instruction No. 13 improperly focuses on the negligence of the defendant Montana Power Company without reference to any concurring negligence.

The defendant’s problem with Instruction No. 13 is that it contends there is a failure to set forth its theories on foreseeability. The general rule is stated in Kitchen Krafters, 242 Mont. at 155 at_, 789 P.2d at 575, 47 St.Rep. at 611, as follows:

“Proximate cause is normally analyzed in terms of foreseeability. Simply stated, one is only liable for consequences which are considered to be reasonably foreseeable. Prosser and Keeton at § 43. If the consequences of one’s wrongful act are not reasonably foreseeable, then it follows that it was not proximately caused by that act. Using this analysis, one must look forward through the chain of causation in order to determine whether the events which occurred were foreseeable. If they were, the element of proximate cause is satisfied and liability will attach.”

In analyzing the instructions in Kitchen Krafters, the Court concluded that the instructions were inadequate and suggested that on remand a proper instruction on proximate cause with regard to foreseeability would state:

“In order for the defendant’s negligence to be the proximate cause of the plaintiff’s injury, it must appear from the facts and circumstances surrounding the accident that the defendant as an ordinarily prudent person, could have foreseen that the plaintiff’s injury would be the natural and probable consequence of the wrongful act.”

The proposed instruction in Kitchen Krafters would have been much more helpful in the present case because it focuses on the aspect that the defendant as an ordinarily prudent person could have foreseen that the plaintiff’s injury would have been the natural and probable consequence of the wrongful act. Instruction No. 13 as given is much less helpful.

That is particularly true in the present case where we have a passive condition of danger created by the defendant Montana Power Company, which is followed in time by subsequent acts of negligence on the part of both Kessel and the plaintiff. This raises the issue of superseding, intervening causes. The instruction is totally inadequate in articulating the concept of superseding, intervening cause. Instruction No. 15-A as proposed by the defendant properly emphasized that if an act of negligence, such as that of the plaintiff or Kessel, subsequent to the first act of negligence was of such a character as not reasonably to be expected to happen in the natural sequence of events, then that later act is an independent, intervening cause. I believe that instruction to be an accurate statement of the law which cannot be derived from other instructions. It appears to me to be comparable to the instruction suggested in the majority opinion in Kitchen Krafters, which required the jury to determine if the defendant as an ordinarily prudent person could have foreseen that plaintiff’s injury would be the natural and probable consequence of the defendant’s negligence. To restate this in accordance with the factual determination which should have been required of the jury in the present case, the jury should have been instructed in such a manner as to require it to focus on whether or not the Montana Power Company, as an ordinarily prudent person, could have reasonably foreseen that Kessel’s backing into the power line and the plaintiff’s injury would be the natural and probable consequence of its failure to raise the power line above 20 feet in height.

A proper instruction on this aspect was also defined by this Court in Jacobson v. State (1989), 236 Mont. 91, 769 P.2d 694, 698, 46 St.Rep. 207, 212, where this Court approved the following instruction:

“An intervening cause will relieve a Defendant of liability for negligent acts where the cause is one which the Defendant could not reasonably anticipate under the circumstances.”

I conclude that there has been a failure to properly instruct the jury on the defendant’s theory of the case and I would therefore reverse and remand.


text:
    FROM: THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT. COUNTY OF CASCADE,
    STATE OF MONTANA, Plaintiff, vs. PATRICIA ALICE EVANS, Defendant.
    NO. BDC-89-064 DECISION
    DATED this 3rd day of August, 1990.
   On August 7,1989, the Defendant was sentenced to ten (10) years on Count I, Theft; ten (10) years on Count II, Issuing a Bad Check; the sentences shall be served consecutively and the defendant shall be given credit for 34 days time served; Dangerous Designation.

On August 3, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Terrance Healow of the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to run Counts I and II concurrently instead of consecutive to each other. All other portions of the sentence shall remain the same as originally imposed and the dangerous designation shall remain in effect.

The reason £or the dangerous designation is the fact that the defendant had been convicted of a felony within five (5) years.

The reasons for the concurrent sentence instead of consecutive are: (1) to conform to the plea agreement; (2) to obtain uniformity in sentencing; and (3) the crimes were non-violent offenses.


text:
    DECEMBER 1990 CALENDAR
    FROM: THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT, COUNTY OF MISSOULA,
    STATE OF MONTANA, Plaintiff, vs. DOUGLAS L. LAVERDURE, Defendant.
    NO. 8531
    DATED this 6th day of December, 1990.
   OnFebruaiy26,1990, the Defendantwas sentenced to CountH, Aggravated Burglary, fifteen (15) years; Count HI, Criminal Mischief, ten (10) years; the sentences are to run concurrent; with 38 days credit for time served.

QnDecember6,1990,the Defendant’s applicationfor review ofthat sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Joylyn Smith, of the Montana Defender Project. The state was not represented.

Before hearingthe application, the Defendant was advisedthatthe Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it ifsuchis possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After listening to the testimony, Judge Boyd asked the Petitioner

ifhis sister isDebbie Laverdure. The Petitioner responded, “yes”.JudgeBoyd then stated for the record that he tried Debbie Laverdure, and he cannot participate in any decision making in this matter. He recused himself from the case.

Mr. Laverdure was then giventwo choices, (1) Agree to have two judges make a decision in this matter or (2) have the matter continued until the next session ofthe Sentence Review andhave the matter reheard before a three judge panel.

Mr. Laverdure conferred withhis counsel and informed the SentenceReview Board that he would agree to go ahead with a two judge decision.

After careful consideration, it is the unanimous decision of Judge Erickson and Judge McNeil that the sentence shall remain the same as originally imposed.

The reason for the decision is pursuant to Rule 17 of the Rules of the Sentence Review Division.


text:
    FROM: THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT, COUNTY OF MISSOULA,
    STATE OF MONTANA, Plaintiff, vs. SCOTT RAY GLASSCO, Defendant.
    NO. 7410 DECISION
    DATED this 6th day of December, 1990.
   On August, 27,1990, the Defendant was sentenced to five (5) years for the Revocation of Criminal Mischief, and was given credit for 48 days time served.

On December 6, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Dirk Beccari, Attorney at Law from Missoula, Montana. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same.

The reason for the decision is pursuant to Rule 17 of the Sentence Review Division.


text:
    FROM: THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT, COUNTY OF MISSOULA,
    STATE OF MONTANA, Plaintiff, vs. JACKIE WAYNE BURK, Defendant.
    NO. 7257 DECISION
   On July 29, 1987, the Defendant was sentenced to Sexual Intercourse Without Consent, twenty-five (25) years, plus ten (10) years for the use of a weapon. The sentence shall run consecutively but concurrently to the sentence in Idaho; 196 days credit for time served; Dangerous Offender.

On December 6, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Mark English, of the Montana Defender Project. The state was represented by Betty Wing, Deputy County Attorney from Missoula, Montana.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to twenty (20) years for Sexual Intercourse Without Consent plus ten (10) years for the use of a weapon to run consecutively but concurrently to the sentence in Idaho; 196 days credit for time served; Dangerous Offender.

The reason for the decision is because the Sentence imposed by the District Judge exceeds the maximum allowable by statute. It is obvious that the District Court intended to impose the maximum which is twenty (20) years and that is the sentence that has been imposed by the Sentence Review Division. In addition, the sentence is amended to provide that the reasons for the dangerous designation appear from the face of the Judgment, and that is that the Defendant is convicted of a violent offense against a person, the rape, and that that violent offense was committed with a weapon. Even though the Judgment itself did not state the reasons for the dangerous designation, that determination is affirmed by this Division. Another reason for the dangerous designation is the fact that there was a prior felony within five (5) years of this offense.

DATED this 6th day of December, 1990.


text:
    FROM: THE DISTRICT COURT OF THE ELEVENTH JUDICIAL DISTRICT, COUNTY OF FLATHEAD,
    STATE OF MONTANA, Plaintiff, vs. GARY STENSLAND, Defendant.
    NO. DC-90-003B DECISION
    DATED this 6th day of December, 1990.
   On May 25, 1990, the Defendant was sentenced to ten (10) years for Theft with 168 days credit for time served; with one and one-half (11/2) years suspended with conditions.

On December 6, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is pursuant to Rule 17 of the Sentence Review Division.


text:
    FROM: THE DISTRICT COURT OF THE NINETEENTH JUDICIAL DISTRICT, COUNTY OF LINCOLN,
    STATE OF MONTANA, Plaintiff, vs. DOM TUMLIN, Defendant.
    NO. DC-89-37 DECISION
    DATED this 6th day of December, 1990.
   On January 22, 1990, the Defendant was sentenced to ten (10) years for Theft; Dangerous Designation.

On December 6, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Comb.

The Defendant was present and was represented by Cath Steger, of the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the Judgment imposed remain the same except to change the Dangerous Designation to Non-Dangerous for purposes of parole eligibility.

The reason for the decision is that the record does not support the Dangerous Designation as imposed by the District Judge.


text:
    FROM: THE DISTRICT COURT OF THE FOURTH DISTRICT, COUNTY OF MISSOULA, JUDICIAL
    STATE OF MONTANA, Plaintiff, vs. DARRELL M. SHIELDS, Defendant.
    NO. 7312 DECISION
    DATED this 6th day of December, 1990.
   On January 29,1990 the Defendant was sentenced to ten (10) years for the Revocation of Assault; with 6 months and 29 days credit for time served.

On December 6, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Terrance Healow, of the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence imposed shall remain the same.

The reason for the decision is pursuant to Rule 17 of the Sentence Review Division.


text:
    FROM: THE DISTRICT COURT OF THE ELEVENTH JUDICIAL DISTRICT, COUNTY OF FLATHEAD,
    STATE OF MONTANA, Plaintiff, vs. RAYMOND CHARLES OLSEN, Defendant.
    NO. DC-90-081B DECISION
    DATED this 6th day of December, 1990.
   On October 19, 1990, the Defendant was sentenced to Count II, Sexual Assault, sixteen (16) years with six (6) years suspended with conditions; Dangerous Designation.

On December 6, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Patrick D. Sherlock, Attorney at Law from Kalispell, Montana. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence imposed shall remain the same. A condition shall be added, that the Defendant shall not be considered to be eligible for parole until he has successfully completed the inpatient sex offender treatment program at the Prison.

The reason for the decision is based upon Rule 17 of the Sentence Review Division.


text:
    FROM: THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT, COUNTY OF CASCADE,
    STATE OF MONTANA, Plaintiff, vs. HAROLD JAMES SANDERS, Defendant.
    NO. CDC-85-004 DECISION
    DATED this 6th day of December, 1990.
   On February 14, 1990, the Defendant was sentenced to five (5) years for a revoked Theft charge with 30 days credit for time served.

On December 6, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Rod Ermatinger, of the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the Judgment be remanded back to the Sentencing Judge, Joel Roth, for a determination pursuant to Sec. 46- 18-201(3), MCA, as to whether the Defendant should or should not receive credit for the 22 months while he was on probation before his revocation.

This matter will then be returned to the Sentence Review Division after the District Judge has made his findings for further proceedings.

The reason for the decision is the Sentencing Judge should make findings as to why he does receive credit or does not receive credit for the 22 months while Petitioner was on probation prior to his revocation.


text:
    FROM: THE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT, COUNTY OF LEWIS AND CLARK,
    STATE OF MONTANA, Plaintiff, vs. ORVILLE JOHN WRIGHT, Defendant.
    NO. DC-90-52A DECISION
    DATED this 6th day of December, 1990.
   On August 16,1990, the Defendant was sentenced to ten (10) years for Deceptive Practices; with credit given for 127 days time served; Dangerous Designation.

On December 6, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Cath Steger, of the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence imposed shall remain the same.

The reason for the decision is pursuant to Rule 17 of the Sentence Review Division.


text:
    FROM: THE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT. COUNTY OF LEWIS AND CLARK,
    STATE OF MONTANA, Plaintiff, vs. RAYMOND KROLL, Defendant.
    NO. BDC-89-137 DECISION
   On March 30,1990, the Defendant was sentenced to ten (10) years with five (5) years suspended plus conditions for the Revocation of Felony Assault; the Petitioner must successfully complete chemical dependency treatment; as soon as possible be considered for a pre-release or halfway house; $2,114.23 in restitution; 52 days credit for time served.

DATED this 6th day of December, 1990.

On December 6, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Paul Befumo, of the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence imposed shall remain the same.

The reason for the decision is pursuant to Rule 17 of the Sentence Review Division.


text:
    FROM: THE DISTRICT COURT OF THE THIRTEENTH JUDICIAL DISTRICT, COUNTY OF YELLOWSTONE,
    STATE OF MONTANA, Plaintiff, vs. DAVID GORDON DYSON, Defendant.
    NO. DC-90-131
   On May 30, 1990, the Defendant was sentenced to eight (8) years with five (5) years suspended with conditions for Deceptive Practices; credit given for 63 days time served plus $638.33 restitution.

On December 6, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed.

DATED this 6th day of December, 1990.

The Petitioner withdrew his application from Sentence Review.