text:
    STATE OF MONTANA, Plaintiff and Appellant, v. JOEL SCHWICTENBERG, Defendant and Respondent.
    No. 88-563.
    Submitted on Briefs March 23, 1989.
    Decided April 27, 1989.
    772 P.2d 853.

      Marc Racicot, Atty. Gen., Helena, Clay Smith, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, County Atty., Craig Friedenauer, Deputy County Atty., Missoula, for plaintiff and appellant.
    Ronald MacDonald, Datsopoulos, MacDonald and Lind, Missoula, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The State of Montana appeals the dismissal of a criminal proceeding against the defendant, Joel Schwictenberg, in the District Court for the Fourth Judicial District, Missoula County. We reverse.

The defendant was charged in justice court with failure to stop at the scene of an accident, in violation of § 61-7-104, MCA, and driving under the influence of drugs or alcohol in violation of § 61-8-401, MCA. At trial, the defendant was found guilty of failing to stop at the scene of an accident, but not guilty of driving under the influence of drugs or alcohol. The defendant then appealed his conviction to the District Court.

At a combined arraignment and omnibus hearing, the defendant pled not guilty and was released on his own recognizance. Later, he agreed to plead guilty to a violation of § 61-7-104, MCA, or failure to stop at the scene of an accident, in exchange for certain recommendations by the prosecution. A plea bargain agreement was entered into between the defendant, his counsel, and the Deputy County Attorney Craig Friedenauer. At the change of plea hearing, Mr. Friedenauer and a legal intern, Robert Long, appeared on behalf of the State. It was at that hearing that the District Court judge dismissed the proceeding against the defendant after the following exchanges:

“THE COURT: State versus Joel Schwictenberg. You are Mr. Schwictenberg?
“MR. SCHWICTENBERG: Correct.
“MR. FRIEDENAUER: This is Robert Long, an intern in our office.
“THE COURT: Long, go get a jacket. The calendar says you are going to change your plea now; is that true?
“MR. SCHWICTENBERG: Correct.
“THE COURT: Is this leaving the scene of the accident?
“MR. SCHWICTENBERG: Yes.
“THE COURT: How do you wish to plead to that?
“MR. SCHWICTENBERG: Guilty.
“THE COURT: Is this in accordance with a plea bargain in this case?
“MR. SCHWICTENBERG: Yes.
“THE COURT: What’s the plea bargain? Has anything pressured you into entering a plea, other than the plea bargain?
“MR. SCHWICTENBERG: Just strictly the plea bargain.
“THE COURT: In exchange for this, you are going to enter a plea, correct?
“MR. SCHWICTENBERG: Correct.
“THE COURT: Have any other promises or threats been made to you?
“MR. SCHWICTENBERG: No.
“THE COURT: Is it true that on or about the 15th of April, 1988, you were driving a Dodge pickup — wait a minute. I’m trying to find somewhere where it tells what you were charged with in practical terms.
“MR. FRIEDENAUER: Do you want a copy of the Complaint?
“THE COURT: There is a Complaint in here that charges him with DUI. This is nuts. The case is dismissed.”
The Minutes and Note of Ruling for that date further state:
“Deputy County Attorney Craig Friedenauer and the Defendant with his counsel, Rebecca Summerville, came into Court.
“Defendant’s motion to change his plea was heard and granted. Thereupon by permission of the Court and consent of the County Attorney the defendant withdrew his plea of ‘Not Guilty’ and entered his plea of ‘Guilty as charged in the Complaint.’
“The Court was advised that a Plea Bargain Agreement had been entered into and is on file herein. Upon questioning, the Court was unable to find the appropriate documents in the Court file and therefore dismissed the case with prejudice.”

Following the State’s appeal of the dismissal, the judge issued an order stating that he had instructed the student intern to remove himself from the courtroom until he was appropriately attired and that he had spent considerable time searching through the court file for the appropriate charge but failed to locate it. The judge offered the following reasons for the dismissal:

“1. The Missoula County Attorney’s Office is responsible for insuring compliance with the Student Practice Rule particularly when students are appearing in District Court proceedings in criminal cases. The Court expects that this supervision will be real and not perfunctory.
“2. The appearance of the student, in clear violation of the District Court Rules, indicates to this Court the supervising responsibility is not being held to sufficient standards.
“3. The Court not being able to proceed in an orderly fashion with the acceptance of a plea as a result of the violation of the District Court Rules by the County Attorney’s Office was disruptive and delayed the Court’s proceedings. No supervisory attorney presented himself to the Court with any familiarity which would have allowed proceeding excepting an offer to get the Court a copy of the Complaint.
“4. The Court finds that in order to communicate to the County Attorney’s Office that this Court is dissatisfied with the degree of preparation and compliance with the Student Practice Rule providing responsible supervisory participation that it is necessary to dismiss the misdemeanor Complaint.”

The issue now before this Court is whether the District Court abused its discretion by dismissing the proceeding, against the defendant with prejudice.

Section 46-13-201(1), MCA, provides that:

“The court may, either on its own motion or upon the application of the attorney prosecuting and in furtherance of justice, order a complaint, information, or indictment to be dismissed; however, the court may not order a dismissal of a complaint, information, or indictment, or a count contained therein, charging a felony, unless good cause for dismissal is shown and the reasons for the dismissal are set forth in an order entered upon the minutes.”

The dismissed charge in this case was a misdemeanor, which could arguably be said not to be subject to the “good cause for dismissal” required for felonies under the statute. As the State points out, that clause addressing felony charges was added to § 46-13-201(1), MCA, in 1985. Prior to that time, no distinction was made between misdemeanor and felony charges and either could be dismissed at the court’s discretion if in furtherance of justice. “In furtherance of justice” remains the standard under the first phrase of § 46-13-201(1), MCA, which we hold to be applicable in this case. That standard has been interpreted in pre-1985 case law as meaning that the authority of the court to dismiss a proceeding is not unbridled, and must be exercised in view of the constitutional rights of the defendant and the interests of society. State v. Roll (1983), 206 Mont. 259, 261-62, 670 P.2d 566, 568. See also State v. Cole (1977), 174 Mont. 380, 571 P.2d 87.

Prior to addressing whether the court’s dismissal was “in furtherance of justice,” the defendant raises several procedural points which he contends render the State’s appeal ineffective. First, defendant contends that at the time of the appeal, no final order or judgment existed as a basis for that appeal since the District Court did not issue its order until after the filing of the State’s appeal.

The District Court’s written order of November 7 did not alter the substantive effect of its September 30 oral dismissal at the change-of-plea hearing. The criminal proceeding against Mr. Schwictenberg was effectively dismissed upon the court’s oral declaration of September 30, which was further reinforced by the entry contained in the minutes for that date. Section 46-20-103(2)(a), MCA, authorizes the State to appeal in a criminal proceeding “from any court order or judgment the substantive effect of which results in . . . dismissing a case.” (Emphasis supplied.) This section does not require that the order be in writing. Section 46-13-201(1), MCA, directs only that the reasons for felony dismissals be set forth in an order entered upon the minutes. We recognize the purpose behind the requirement that reasons for dismissal be set forth, which is to provide this Court with a basis to review whether the trial judge exercised his discretion to dismiss within the “in furtherance of justice” standard. State v. Cole, 571 P.2d at 87. In this case, however, ample basis appears from the District Court’s oral dismissal of September 30, which is accompanied by the transcript of the proceeding and the Minutes and Note of Ruling, to serve as a basis for review. We hold that the State could properly appeal from the court’s order of September 30 dismissing the case against Mr. Schwictenberg, and that the accompanying minutes provide an adequate basis for our review of the matter.

Turning now to the substantive issue of this case, the State argues that the District Court abused its discretion in dismissing the proceeding against the defendant even if the order of November 7 is considered. The defendant argues that the District Court was justified in its action because of the court’s frustration in not being able to locate a particular document which was admittedly in the court file, the appearance of the student intern in violation of the District Court Rules, the failure of the deputy county attorney Craig Friedenauer to identify himself as the supervising attorney, and Mr. Friedenauer’s failure to present himself to the court as being familiar with the case.

The latter two contentions are not supported by the record, which reflects that Mr. Friedenauer was involved in the case from its inception and that the District Court acknowledged his participation. The first sentence of the minutes from the hearing states that, “Deputy County Attorney Craig Friedenauer and the Defendant with his counsel, Rebecca Summerville, came into Court.” Mr. Friedenauer’s name appears on the plea agreement and it is signed by him. Furthermore, it was Mr. Friedenauer who introduced the legal intern to the court at the change of plea hearing. We conclude that these justifications do not find support in the record and do not form a basis for the District Court’s dismissal.

The defendant argues that it was within the court’s discretion to dismiss because of its frustration in not being able to locate a document together with the failure of a student intern to adhere to the rules of decorum. We recognize the broad discretion allowed to the District Court in enforcing its own rules, that discretion must be balanced with the interests of society as outlined in State v. Roll, 670 P.2d at 568. In balancing the absence of a court document and the failure in court decorum against the interests of society in proceeding with a case in which a plea bargain had been arranged, we conclude that the balance comes out in favor of the interests of society. We hold that the dismissal of this case was not “in furtherance of justice” and was an abuse of discretion. We hold that the dismissal is set aside with the result that the prosecution may proceed to trial on the charge of violation of § 61-7-104, MCA, or failure to stop at the scene of an accident.

MR. JUSTICES HARRISON, GULBRANDSON, HUNT and Mc-DONOUGH concur.


source: Caselaw Access Project

author: MR. JUSTICE HUNT

license: Public Domain

text:
    ANNA G. REITER, Plaintiff and Respondent, v. EDWARD L. REITER, Stanley W. Yurian, Barbara Lea Yurian, et al., Defendants and Appellant.
    No. 88-565.
    Submitted on Briefs Feb. 23, 1989.
    Decided April 27, 1989.
    772 P.2d 314.
    Edward L. Reiter, Huntley, pro se.
    Fred E. Work, Jr., Work Law Firm, Billings, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Edward L. Reiter appeals from an order of the District Court of the Thirteenth Judicial District, Yellowstone County, granting summary judgment to plaintiff Anna G. Reiter. We affirm.

Edward raises a myriad of rather unique issues which can be boiled down to one general question:

Does a “general lien” based upon breach of alleged contracts to provide equity in land and to convey land upon the death of the owner constitute a valid, enforceable encumbrance against property?

For a number of years, Edward L. Reiter dwelt with his parents, Alex and Anna Reiter, on the family farm located in Yellowstone County. In 1965, Alex Reiter died, leaving Anna as the sole record owner of the land.

Apparently, in the mid-1980’s, trouble broke out between Anna and Edward. Anna moved off the farm. Edward remained.

On November 7, 1986, Edward filed a lien against the farm in the amount of $50,000, claiming that from January 1, 1967, through November 1, 1986, he “did 4 years of farm work unpaid for guaranteed use of 80 acres of farmland, thereafter.” He took no action to foreclose the lien. In 1987, Anna leased the land to Stanley and Barbara Yurian.

On February 17, 1988, Anna filed a quiet title action against Edward in which she sought to extinguish the 1986 lien. In the complaint, Anna reaffirmed the Yurians’ farm lease.

On September 9, 1988, the District Court granted Anna’s motion for summary judgment. Thereafter, the court entered judgment quieting title in Anna and extinguishing Edward’s lien. Edward appealed to this Court.

In granting summary judgment to Anna, the District Court treated the lien filed by Edward as a farm laborer’s lien. The court concluded that the lien was in violation of § 71-3-401, MCA, as it was not filed within 30 days after the services alleged in the lien were fully performed. The court found, in addition, that the lien was invalid because Edward did not foreclose upon it within the 90-day limitation period provided under § 71-3-405, MCA.

From what we can gather from his briefs, Edward argues that the lien was not a farm laborer’s lien but was instead a “general lien” based on two alleged contracts he had entered into with his mother. One agreement, purportedly created in 1969, granted Edward $10,000 worth of equity in the farm for each year he worked on the land without receiving wages. The other agreement, allegedly entered into in 1972, guaranteed the farm to Edward upon Anna’s death. Edward claims that he is unable to produce the written agreements for the court because the copies have disappeared from his home and he has been denied access to the originals.

Summary judgment is appropriate when a case presents no genuine issues of material fact and the issues raised can be decided as a matter of law. Rule 56(c), M.R.Civ.P. The action at hand presents such a situation. Even assuming, arguendo, that the alleged contracts between Edward and his mother do exist, Edward’s lien must fail as a matter of law.

Edward asserts that he filed a general lien pursuant to § 71-3-101(2), MCA, which provides:

“A ‘general lien’ is one which the holder thereof is entitled to enforce as a security for the performance of all the obligations or all of a particular class of obligations which exist in his favor against the owner of the property.”

In the absence of an express agreement to give a lien, a general lien “can be claimed only as arising from dealings in particular trades or businesses in which the existence of a general lien has been recognized by judicial decisions or where a custom to that effect can be established by evidence.” Deitchman v. Korach (1947), 330 Ill.App. 365, 71 N.E.2d 367, 369.

General liens are looked upon with disfavor. Courts are reluctant to expand them beyond the commercial setting. We have never recognized a general lien for breach of contract to provide equity in land or to convey land upon the owner’s death. We refuse to do so now.

Faced with the rather unusual lien filed by Edward, the District Court chose to interpret the encumbrance as a farm laborer’s lien. The court correctly concluded that as a farm laborer’s lien the encumbrance was invalid and unenforceable because of Edward’s failure to take action upon it within 90 days after filing as provided by § 71-3-405, MCA.

Whether Edward’s lien was a general lien or a farm laborer’s lien, his claim against Anna’s property is invalid and unenforceable as a matter of law. The District Court’s award of summary judgment to Anna Reiter was proper.

Affirmed.

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


author: MR. JUSTICE WEBER

text:
    In re the MARRIAGE OF KATHRYN LOUISE CHASE, a/k/a Kathryn Louise Wise, Petitioner and Respondent, and STEVEN ELL CHASE, Respondent and Appellant.
    No. 88-575.
    Submitted on Briefs Feb. 23, 1989.
    Decided April 27, 1989.
    772 P.2d 1264.

      Michael Sol, Sol & Wolfe, Missoula, for respondent and appellant.
    Gary A. Crowe, Kalispell, for petitioner and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Steven Chase appeals from an order granted by the District Court for the Eleventh Judicial District, Flathead County, modifying certain portions of a divorce decree and a subsequent order relating to visitation of the Chase’s four children. The issue presented for our review is whether the District Court erred in granting respondent’s motion to modify. Steven argues that the motion should have been denied because it had no foundation in statute. He also argues that the motion should have been denied on several procedural grounds. We affirm the granting of the modification order.

Steven and Kathryn Chase were granted a Decree of Dissolution on February 19, 1987. Kathryn was granted sole custody of the parties’ four minor children, with visitation and other matters set forth in the decree. In July, 1987, Steven moved to modify the decree, requesting a reduction in child support and modified terms of visitation. Following a hearing, the parties stipulated to certain modifications, including a joint custody arrangement. At the time of that arrangement, Kathryn lived in Kalispell, Montana, and Steven lived in Thousand Oaks, California.

Pursuant to the court’s order, Kathryn was to remain primary residential custodian, with reasonable rights of visitation granted to Steven in accordance with the original decree and as modified. In the original decree, Steven was entitled to visit every other weekend, every other major holiday, and for 30 days each summer, with 48 hours notice required prior to any visitation. The modification order increased Steven’s summer visitation period to 45 days each year, allowed him one-half the Christmas vacation period each year, and required a 30 day written notice to Kathryn with a 48 hour confirmation prior to and visitation. The court ordered that the parties share equally in the costs of transporting the children.

In June 1988, Kathryn moved for an order to modify or clarify the decree and its subsequent modification. Briefs were submitted and a hearing was held. The parties waived the making of a record at that hearing. In granting the motion, the court identified the splitting of transportation costs as the particular provision requiring modification or clarification. The court did not alter the number of visitation days granted to Steven. Finding Steven in a better position to meet the burden of covering transportation costs, the court ordered that:

“1. Respondent should be entitled to visitation on alternating weekends provided;
“a. that such visitation occur in Flathead County, Montana or such other county as the Petitioner may reside at the time of visitation, and
“b. that notice of such visitation shall be given 10 days in advance of such visitation, in writing, by Respondent to Petitioner.
“2. Respondent shall be entitled to visitation on alternating holidays as provided in the original decree, provided, however, that Respondent shall pay all costs of transportation for such visitation and, further, that notice of such visitation shall be given at least 20 days in advance of such visitation, in writing, by Respondent to Petitioner.
3. The Respondent shall be entitled to a visitation for a total period of 45 days during the summer between June 10 and August 20 of each year provided:
“a. that the parties shall equally share the cost of transportation of the children for that visitation with the Respondent paying the cost of having the children transported from the Petitioner’s residence to his residence and the Petitioner paying the cost of having the children re-transported from the Respondent’s residence to her residence, and
“b. that notice of such visitation shall be given no later than April 15 of each year for which visitation is to be exercised, in writing, by Respondent to Petitioner.”

It is from this order that Steven appeals. He argues that Kathryn’s motion to modify or clarify has no foundation in the statute because she failed to allege how modification would serve the “best interests of the children” as required by § 40-4-217, MCA, nor did the District Court make any findings in that regard. The record before us is incomplete. We cannot determine from the record if there was a hearing held on Kathryn’s motion. No transcript was made. Steven argues that the matter was submitted on briefs without a hearing. The court’s order dated September 15, 1988, indicated that a hearing on the motion had been held and the court had been advised. We therefore consider the issue without the benefit of findings of fact or transcript.

The argument on the part of the Steven that the matter should be returned for further consideration of the best interests of the children disregards the essence of the order of September 15, 1988. The visitation rights on the part of both Steven and Kathryn were not modified by that order. As appears above, the primary purpose of the modification was to establish the manner of sharing the costs of transportation. The aim on the part of the District Court was to clarify a previous custody order so as to make the visitation more workable. The parties had been before the court a number of times requesting the court to judicially resolve various issues upon which they could not reach agreement. We conclude there is no adequate record from which this Court may review the issue of the best interests of the children. We further conclude that the present record does not disclose that the modification affected the best interests of the children. We hold that Steven has failed to demonstrate a basis for reversal of the order of September 15, 1988.

Steven next makes a number of procedural arguments for setting aside the order of the District Court. First, Steven contends that Kathryn’s motion to modify or clarify was not timely. He argues that because no “changed circumstances” were alleged, the motion was actually one to alter or amend the judgment under Rule 59(g), M.R.Civ.P., which must be made within 10 days. Alternatively, he proposes that the motion is one to modify because of a mistake of fact under Rule 60, M.R.Civ.P., which must be made within 60 day’s after entry of judgment. Rule 60(b), M.R.Civ.P. Since Kathryn’s motion was made 120 days after the District Court’s order, Steven argues that it should have been dismissed as untimely under either of the above stated rules.

Kathryn’s motion was brought pursuant to § 40-4-217, MCA, which allows the court to modify a visitation order whenever modification would serve the best interest of the child. Section 40-4-217(3), MCA. There is no requirement that the movant show changed circumstances under this statute, although the court “shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger seriously the child’s physical, mental, moral, or emotional health.” Section 40-4-217(3), MCA. This standard has been held to be the same standard used to judge the modification of custody decrees in § 40-4-219, MCA, which requires a showing of “changed circumstances.” Matter of R.L.S. v. Barkhoff (1983), 207 Mont. 199, 209-10, 674 P.2d 1082, 1087. In this case, however, the District Court was not restricting either parent’s visitation rights. The number of days which Steven was entitled to visit the children remained the same, and only the required notice and transportation costs were altered by the court. We conclude that there is no reason to ignore the form in which Kathryn’s motion was presented to the court. Since § 40-4-217, MCA, contains no time limitations, we hold that Steven’s claim under Rules 59 and 60, M.R.Civ.P. fails.

Steven also argues that the District Court’s ruling on motions under either Rules 59 or 60, M.R.Civ.P., must be made within 45 days, and since it was not so made in this case, the motion should be deemed denied. Kathryn’s motion to modify was not made pursuant to Rule 59 or Rule 60, M.R.Civ.P. This argument is therefore without merit.

Steven argues that Kathryn’s failure to file a brief in support of her motion until 45 days after the motion was filed should result in a summary denial under Rule 2, Uniform District Court Rules, which states in pertinent part:

“(b) Failure to file briefs may subject the motion to summary ruling. Failure to file a brief within five days by the moving party shall be deemed an admission that the motion is without merit. Failure to file an answer brief by the adverse party within ten days shall be deemed an admission that the motion is well taken. Reply briefs by movant are optional, and failure to file will not subject a motion to summary ruling.”

We note that Steven obtained an extension of time by stipulation of the parties under which his answer brief was filed nearly 60 days after Kathryn’s brief was filed.

The District Court did not specifically rule on the Rule 2 objection. Clearly the District Court did not deem the failure to comply with the filing of the briefs as an admission that the motion was without merit. It considered the matter on the merits. Under subparagraph (d) of Rule 2, the District Court is given the discretion to enlarge the time allowed in which a motion is to be deemed submitted. While the court did not specifically enlarge the time by order, it accepted the briefs on the part of both parties without regard to the time constraints of Rule 2(b). In the absence of any showing by the record that the District Court committed an abuse of discretion, we will not overturn the decision of the lower court. We hold there is no reversible error on the procedures before the District Court.

Affirmed.

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


text:
    E.H. KNIGHT, Plaintiff and Appellant, v. JAMES H. JOHNSON, JR., The Office of Yellowstone County Sheriff; Mike Shafer, Sheriff, and Yellowstone County, Defendants and Respondents.
    No. 88-612.
    Submitted March 16, 1989.
    Decided April 27, 1989.
    773 P.2d 293.
    Cate Law Firm, Jerome J. Cate, Billings, for plaintiff and appellant.
    Crowley, Haughey, Hanson, Toole & Dietrich, Jon T. Dyre, Billings, for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

This appeal arises from a negligence suit brought by Mr. E.H. Knight against Dr. James H. Johnson. The District Court of the Thirteenth Judicial District granted summary judgment in favor of defendant, and Plaintiff appeals. We affirm.

The issue presented for our review is whether a treating physician has a duty to appear and testify at the trial of a patient, when the treating physician was not served with a subpoena.

The plaintiff in this case was injured in a fight at the Seventeen Bar in Billings, Montana. He was treated for injuries by Dr. James H. Johnson. Plaintiff subsequently filed suit against Seventeen Bar and the person who allegedly assaulted him. The plaintiff anticipated that Dr. Johnson would testify at that trial regarding plaintiff’s injuries. However, Dr. Johnson was not served with a subpoena and did not appear at the trial. The plaintiff filed suit against Dr. Johnson on April 13, 1988, alleging that Dr. Johnson negligently breached a duty to testify on his patient’s behalf. Dr. Johnson moved for summary judgment, asserting that a physician has no legal duty to appear at a patient’s trial. The District Court granted the motion for summary judgment.

The facts which give rise to the suit against Dr. Johnson are stated by affidavits from witnesses, and are summarized as follows. Plaintiff’s trial against Seventeen Bar and the defendant involved in plaintiff’s assault charge was set for February 17, 1988. In preparation for trial, Dr. Johnson was deposed by attorneys for the Seventeen Bar on January 30, 1988. Counsel for plaintiff was present at that deposition. There was no further contact between plaintiff’s counsel and Dr. Johnson until plaintiff’s counsel sent a letter dated February 10, 1988 to Dr. Johnson, reminding him of the trial date and of the necessity of his testimony there. The letter stated that Dr. Johnson was scheduled to testify on February 18 at 9:30 a.m. In the letter plaintiff’s counsel also stated that he would subpoena Dr. Johnson because without Dr. Johnson’s testimony the case could be dismissed. This letter arrived at Dr. Johnson’s office on February 12, 1988. When Dr. Johnson’s secretary received the letter from plaintiff’s counsel she called his office and left a message that Dr. Johnson was out of town and would not return until February 17.

The day before the letter arrived, on February 11, a process server from Yellowstone County came to Dr. Johnson’s office with a subpoena. The office was not informed of the purpose of the subpoena. Dr. Johnson’s secretary informed the server that the doctor was with a patient and would not be available for an hour. The process server then left the office without serving Dr. Johnson. The process server returned on February 12, but was informed that Dr. Johnson had left for a seminar in New Orleans and would not return until the late afternoon of February 17, 1988. Thus Dr. Johnson was never served with the subpoena. The subpoena was not returned to plaintiff’s counsel and the Yellowstone County Sheriff’s Office did not notify plaintiff’s counsel of the failure of service.

On the morning of February 18, when Dr. Johnson’s testimony was scheduled, plaintiff’s attorney called Dr. Johnson’s office to see if he had left for the trial. He was told at that time that Dr. Johnson was performing myelograms and would not be available to testify. Plaintiff’s counsel was also informed at that time that Dr. Johnson had not been served with the subpoena. Plaintiff’s counsel testified that “the woman on the phone advised me that Dr. James H. Johnson, Jr. was not going to appear for trial, and that even if he was served with a subpoena, he would not appear and testify on behalf of E.H. Knight.” This statement is disputed by defendant.

Plaintiff alleges that because Dr. Johnson failed to appear at trial, he was forced to accept a settlement of the case for less than the case deserved. The plaintiff urges that the doctor/patient relationship established a duty on the part of Dr. Johnson to testify at his trial, that Dr. Johnson breached this duty, and that plaintiff was damaged by this breach.

On appeal, we are asked to determine whether a physician has a duty to appear and testify at a patient’s trial, even though the doctor was never subpoenaed. While Montana has not previously recognized such a duty, Mr. Knight asks this Court to create this duty.

In considering whether a duty should be created, the initial inquiry is whether there is a need for such duty. As stated by one authority:

“The statement that there is or is not a duty begs the essential question — whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct.”

W. Page Keaton, Prosser and Keaton on Torts, § 53, at p. 357 (5th Ed. 1984).

The plaintiff’s interest in the present case is the need for a process whereby one may compel favorable witness testimony. This need is fulfilled statutorily in Montana through the subpoena process. Compelled attendance and testimony is established pursuant to § 26-2-301, MCA, as follows,

“A witness served with a subpoena must attend at the time appointed, with any papers under his control required by the subpoena, and answer all pertinent and legal questions and, unless sooner discharged, must remain until the testimony is closed.”

Additionally, Rule 45(a), M.R.Civ.P., provides for compelled attendance and testimony of a witness through the issuance of a subpoena. Rule 45(c) states that service of a subpoena “must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance.” The remedy for failure to testify when served with a subpoena is damages through a private cause of action. See, § 26-2-105, MCA.

The subpoena procedure for obtaining witnesses is efficient, orderly, and gives consistent and reliable results. Because the need for compelled testimony already has adequate protection, we conclude that there is no persuasive reason to create a duty which would also satisfy this need.

Plaintiff cites to Spaulding v. Hussain (1988), 229 N.J. Super. 430, 551 A.2d 1022, and Green v. Otenasek (1972), 267 Md 9, 296 A.2d 597, in support of his position. However, these cases do not establish the asserted duty and are not dispositive. Research has disclosed no authority supporting plaintiffs position. We prefer to follow the general rule that “a condition precedent to an action against a witness for breaching his duty to testify is the issuance of a subpoena.” Fletcher v. Bolz (1987), 35 Ohio App.3d 129, 520 N.E.2d 22, 25; 81 Am. Jur.2d, Witnesses § 28.5 (1976).

We decline to create the duty which plaintiff urges. The District Court correctly held that no duty exists for a physician to testify at the trial of a patient, absent compulsory process. We affirm the summary judgment granted by the District Court.

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


author: MR. JUSTICE GULBRANDSON

text:
    HUBERT J. MASSMAN, d/b/a Horsky Block, Hubert J. Massman, d/b/a Massman Law Firm, Miller Enterprises, Inc., a Montana corporation, and Episcopal Diocese of Montana, a corporation, Plaintiffs and Appellants, v. CITY OF HELENA, a Municipal Corporation, Defendant and Respondent.
    No. 88-116.
    Submitted Feb. 21, 1989.
    Decided May 2, 1989.
    Rehearing Denied June 20, 1989.
    773 P.2d 1206.

      Frank B. Morrison, Jr. argued, Morrison Law Firm, Helena, for plaintiffs and appellants.
    Robert Emmons argued, Emmons & Coder, Great Falls, for defendant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Plaintiffs appeal from the jury verdict and subsequent judgment of December 23, 1987, and from the denial of their motion for a new trial by the First Judicial District Court, Lewis and Clark County. The jury found the City of Helena (City) was not negligent in failing to require an operating sprinkler system in the basement of the Spectrum Building prior to the time of the fire in the building. The jury also found that the spread of the fire to the adjacent Horsky Block building was not caused by any negligent firefighting methods or procedures employed by the City. Defendant filed a cross-appeal from the final judgment.

We affirm the jury verdict, judgment entered, and District Court’s denial of the motion for a new trial.

Appellant raised the following issues on appeal:

1. Did the District Court err in refusing plaintiffs’ offered instruction stating that violation of a city ordinance is negligence per se?

2. Did the District Court err in refusing to allow plaintiffs to ask opinion testimony of two people disclosed as witnesses but not as experts?

3. Did the District Court err in refusing the rebuttal testimony of an expert called to dispute the City’s evidence that it was not negligent in fighting the Spectrum Building fire?

4. Did the City improperly prejudice the jury by repeated mention of insurance during trial?

Respondent raised numerous cross-appeal issues, which we will address in our discussion of the four above-mentioned appeal issues, including the following:

1. Is the City exempted from any liability for the fire by the Public Duty Doctrine?

2. Is the City exempted from any liability for the fire by the grandfather clause in § 502 of the UBC?

3. Is the City exempted from any liability for the fire by several tort principles extending liability only to foreseeable actions?

On June 17, 1980, a fire started in the basement of the Spectrum Building in downtown Helena. The fire quickly spread to the adjacent Horsky Block Building and completely destroyed it. At the time of the fire, the Spectrum Building was being remodeled by its owner, Ken Brown.

The initial building permit obtained by Brown on May 22, 1979 authorized him to make up to $15,000 in alterations to the building. (Brown subsequently obtained various plumbing, electrical and mechanical remodeling permits.) Lewis Thorne, the building inspector for the City, later determined as a result of his regular biweekly inspections that Brown had exceeded those building alterations authorized. Consequently, Thorne issued a stop order on July 31, 1979. Brown then obtained two additional building permits, one on August 6, 1979 and the other on August 27, 1979, which enabled him to continue remodeling the old Coast to Coast store into various retail shops and a restaurant. These two permits allowed for additional alterations in the sum of $78,000. All building permits required Brown to work in compliance with City Ordinances. One such ordinance, incorporating the 1976 UBC, required an operational sprinkler system in the basements of remodeled buildings having a changed occupational character the same or more hazardous than the prior use. (§ 502, UBC (1976).)

Prior to a final inspection and a final certificate of occupancy, the City issued a temporary certificate which permitted Rose’s Cantina to open its restaurant on the top floor of the remodeled Spectrum Building. This temporary certificate of occupancy was issued prior to the installation of an operational sprinkler system in the basement of the building. Pipes for the sprinkler system were on the basement floor, but not installed at the time of the fire. The riser for the system had been installed but it had not been connected to the sprinkler heads.

The fire was called in at 9:51 p.m. on June 17, 1980. Firefighters arrived on the scene minutes afterwards. Two firefighters attempted to get to the fire, located in the rear of the basement, from the one entrance located at the front of the basement. However, a sheet rocked partition had been placed just inside the basement and this blocked access to the fire. Firefighters thus were unable to directly treat the fire while it still was contained within the basement, and it quickly spread upwards and then to the adjacent Horsky Block Building. John Carroll, one of the two investigators hired to determine the cause of the fire, stated that had fire sprinklers been in place in the Spectrum Building basement, the fire would not have spread to the Horsky Block Building.

A later examination indicated the fire began in a basement storage closet under the stairs. No electrical appliances were in the immediate vicinity of this area. The origin location, the presence of various combustibles in the area of the fire origin, and the erected partition blocking firefighter access led fire investigators to conclude that the fire was incendiary (man-made) in origin. The parties did not dispute the incendiary nature of the fire. Consequently, on December 7, 1987, the District court granted summary judgment on the issue of the cause of the fire. The court, however, denied the City’s motion for summary judgment on the issue of the duty owed to Plaintiffs.

A jury trial began on December 14, 1987. The jury returned a verdict in favor of the City on December 17, 1987. Plaintiffs filed a timely motion for a new trial after final judgment was entered, but the court denied this motion. Plaintiffs then filed this appeal from the court’s denial of a new trial and from the final judgment. Defendant cross-appealed.

I. VIOLATION OF A CITY ORDINANCE AS NEGLIGENCE PER SE

Appellants contend that their damages resulted from the City’s negligence in failing to enforce § 3802(b)(1) of the 1976 UBC. They contend violation of the UBC, expressly adopted by City ordinance, constituted negligence per se and that the City should therefore be held liable for damages arising because of this violation. Appellants thus argue the District court erred in refusing to offer a jury instruction on negligence per se.

Section 104(a) of the 1976 UBC generally requires all buildings altered after 1976, even if the buildings existed prior to 1976, to comply with all new building requirements provided in the UBC. The Spectrum Building as a preexisting building under extensive remodeling thus had to comply with the requirements of the UBC.

UBC requirements mandate the installation and maintenance of an operational, standard automatic fire-extinguishing system in the basement, and on every story, of all buildings such as the Spectrum Building which contained a large basement and was classified as a Group B2 building. See, § 3802(b)(1), UBC (1976). As stated in § 3802(b) UBC:

“Standard automatic fire-extinguishing systems shall be installed and maintained in operable condition . . . [i]n every story, basement or cellar of all buildings except Groups R, Division 3 and M Occupancies when floor area exceeds 1500 square feet and there is not provided at least 90 square feet of opening entirely above the adjoining ground level in each 50 lineal feet or fraction thereof of exterior wall in the story, basement or cellar on at least one side of the building ... If any portion of a basement or cellar is located more than 75 feet from openings required in this Section, the basement or cellar shall be provided with an approved automatic fire-extinguishing system.”

Section 306 of the UBC provides guidance as to when this fire-extinguishing system must be installed. Section 306(a) generally states that a building may not be used or occupied “until the Building Official has issued a Certificate of Occupancy.” Section 306(c), UBC. The Building Official may not issue such a certificate until a final inspection confirms the building’s compliance with UBC requirements. No other UBC provisions expressly require the operation of a fire-extinguishing system prior to issuance of this final Certificate of Occupancy. We therefore hold that although the Building Inspector, acting on behalf of the City, had the duty of enforcing the requirement of an operational fire-extinguishing system, this duty did not arise until such time as the final Certificate of Occupancy was issued.

The remodeling of the Spectrum Building had not been completed at the time of the fire on June 17, 1980. No final inspection or final Certificate of Occupancy had been issued prior to this time. The City had, however, issued a temporary Certificate of Occupancy which permitted the restaurant located on the top floor of the Spectrum Building to open for business. The UBC expressly authorizes the City to issue such a temporary certificate so that the finished portion of a building may be used before completion of the entire building. The UBC does not require the building to be in compliance with UBC requirements prior to issuance of this temporary certificate. Section 306(d), UBC (1976).

Because the City had no duty to ensure the operation of a fire-extinguishing system before it issued the temporary Certificate of Occupancy or until such time as it issued a final Certificate of Occupancy, the City may not be held negligent for failing to enforce the requirement of an operational fire-extinguishing system before June 17, 1980. For this reason, we hold that the failure to offer a jury instruction on negligence per se did not amount to an abuse of discretion.

Having so ruled, we need not address the various other issues raised by the City as further support for its argument that it should not be held liable for damages arising from the fire. These issues included whether the City was protected from liability by the Public Duty Doctrine, by the grandfather clause found in §§ 104 and 502 of the 1976 UBC, or by general tort principles extending liability only to foreseeable actions.

II. ADMISSIBILITY OF EXPERT TESTIMONY

Appellants argue that the District Court erred in refusing to allow John Todd, the assistant fire chief for the City of Helena fire department at the time of the Spectrum fire, and Lewis Thorne, City Building Inspector at the time of the fire, to offer their expert opinions at trial. The court prevented both from giving an expert opinion because they were disclosed only as lay witnesses and not as experts prior to trial. Appellants argue that the City knew the field of expertise of each, and thus it would not have been surprised by the testimony of either. Appellants contend that the exclusion of their expert opinions amounted to a hyper-technical ruling contrary to the holding in Ostermiller v. Alvord, (Mont. 1986), [222 Mont. 208,] 720 P.2d 1198, 43 St.Rep. 1180.

At the outset, we note that the District Court has the discretion to rule on the admissibility of evidence, and we will not reverse the court unless the ruling amounts to an abuse of discretion. Cooper v. Rosston (Mont. 1988), [232 Mont. 186,] 756 P.2d 1125, 1127, 45 St.Rep. 978, 981; Rule 104, M.R.Evid. We hold that the District Court did not abuse its discretion when it excluded the expert opinions of Todd and Thorne.

Rule 26(e)(1) and (2), M.R.Civ.P. requires parties to list all experts they expect to call at trial.

“(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to . . .

“(B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.

“(2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which . . .

“(B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.”

This rule serves to minimize the element of unfair surprise, thereby encouraging a trial on the merits. Consequently, when no surprise arises from a violation of this rule, this Court has viewed the violation as hyper-technical and allowed the previously undisclosed lay or expert witness to testify. See, Ostermiller, 720 P.2d at 1201; Barrett v. Asarco, Inc. (Mont. 1988), [234 Mont. 229,] 763 P.2d 27, 45 St.Rep. 1865. For example, in Ostermiller, the Cdurt allowed the defense to elicit expert testimony from a physician even though the physician was listed in interrogatory answers only as a lay witness, and not as an expert. The Court concluded that no surprise would result from admission of this testimony for the following reasons: The pretrial order and interrogatory answers had listed the physician as a witness; both parties had deposed him prior to trial; and plaintiff had failed to even allege any surprise. Id. at 1201.

The facts in Ostermiller are significantly different from those in the present case. In response to a continuing interrogatory request for the names of all expert witnesses that Massman would call at trial, Massman stated that they had “no proposed expert witness identified.” Appellants did list Todd and Thorne as lay witnesses, but they failed to amend this earlier interrogatory response to list the two as expert witnesses. Moreover, neither party had deposed either proposed expert. Consequently, the City objected when appellants then attempted to elicit an opinion from Todd as to the ultimate effect of the firefighting methods employed by the City upon the containment of the Spectrum Building fire. The City has claimed complete surprise. Given the facts in this case, we hold the District Court did not abuse its discretion when it excluded the proposed expert testimony of Todd.

Appellants also contend the opinion testimony asked of Todd was properly admissible as a lay witness opinion. Rule 701, M.R.Evid., allows for the admission of a lay witness opinion that is:

“(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.”

Todd’s proposed testimony as to the ultimate effect of the firefighting methods on the containment of the Spectrum fire was not based on such personal perceptions. Rather, his opinion, about the most effective methods for combating such a fire, was based on that specialized, technical knowledge obtained from his fire training and work as an assistant fire chief. As such, the substance of his opinion constituted an expert opinion rather then a lay witness opinion. An expert opinion generally is one “not within the range of ordinary training or intelligence.” See generally, Kelley v. John R. Daily Co., (1919), 56 Mont. 63, 79, 181 P. 326, 331 (construing Section 7887(9) of the 1907 Revised Codes of Montana, which was the forerunner of the present statutory rule on expert testimony, Rule 702, M.R.Evid.). The District Court thus committed no error when it precluded admission of this expert opinion testimony and advised appellants to limit their questions to those requiring an answer based on personal perceptions.

Appellants did not seek an expert opinion from Thorne during trial because of an alleged ruling by the District Court in advance of trial that any such testimony would not be admissible. No record, however, exists of this ruling. This Court will only take notice of those court rulings attested to by the record or agreed upon by both parties. We will not assume the truth of a contested statement about an allegedly unrecorded prior court order; such a statement would constitute hearsay. See Rule 801(c), M.R.Evid. Procedures exist under Rule 9(d) or (e), M.R.App.P. whereby a party may bring such evidence, which is not a part of the record, to the attention of this Court. Appellants failed to follow this procedure, and we will not now consider the issue of whether the District Court erred in precluding Thorne from testifying as an expert at trial, an issue predicated upon our consideration of an unrecorded ruling and objection.

III. ADMISSIBILITY OF REBUTTAL TESTIMONY

Appellants contend that the District Court erred in refusing to allow a retired Billings firefighter, Melvin LaMotte, to give his expert opinion during rebuttal as to the alleged negligent firefighting by the City on the Spectrum fire. The court precluded the admission of such testimony because appellants failed to disclose LaMotte as an expert witness prior to trial.

The law does not require the advance disclosure of rebuttal witnesses. Wilson v. Swanson (1976), 169 Mont. 328, 546 P.2d 990. Such previously undisclosed rebuttal witnesses, however, may offer testimony only about “that which tends to counteract new matter offered by the adverse party.” Gustafson v. N. Pac. Ry. Co. (1960), 137 Mont. 154, 164, 351 P.2d 212, 217. A determination of whether proposed testimony is admissible as rebuttal testimony in any given case is within the sound discretion of the District Court, and we will not reverse the District Court’s ruling unless it abused this discretion. Spurgeon v. Imperial Elevator Co. (1935), 99 Mont. 432, 438, 43 P.7d 891, 893.

We hold that the District Court did not abuse its discretion when it excluded the rebuttal testimony of LaMotte. LaMotte ‘s proposed testimony related to the issue of whether the City negligently fought the Spectrum fire. This issue was not a new matter raised by the defense; it was one of the main issues raised by appellants in their complaint. Appellants had the burden of proving the allegations in their complaint during their case-in-chief. Appellants attempted, but failed, to meet this burden through the expert testimony of Todd. (The District Court properly excluded Todd’s proposed expert testimony because of appellants’ failure to disclose him as an expert witness prior to trial.) Having failed to meet this burden during their case-in-chief, appellants could not then assert that the City’s alleged negligent firefighting was a “new matter” first raised by the defense and thereafter introduce expert testimony on this issue upon rebuttal. The District Court properly prevented any unfair surprise by excluding the expert testimony of LaMotte.

IV. INTERJECTION OF INSURANCE AT TRIAL.

Appellants contend they were prejudiced by the City’s alleged mention of insurance on five different occasions during trial. They argue this improper mention of insurance constituted reversible error warranting a new trial.

The interjection of liability insurance coverage or noncoverage generally is prohibited at law. Rule 411, M.R.Evid. states:

“Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.”

The District Court is charged with determining if any given mention of liability insurance is sufficiently prejudicial to warrant a new trial. Doheny v. Coverdale (1937), 104 Mont. 534, 555, 68 P.2d 142, 148. This determination depends upon the circumstances and manner in which the subject of insurance is brought into the case. See, e.g., D’Hooge v. McCann (1968), 151 Mont. 353, 360, 443 P.2d 747, 751. We will not disturb a District Court’s determination unless the court abused its discretion in so ruling.

In the present case, we hold that the evidence failed to show that the District Court abused its discretion when it denied appellants’ post-trial motion for a new trial because of the alleged interjection of insurance into the case. The first claim of an improper mention of insurance occurred during the cross-examination of Todd. The City questioned whether Todd was told:

“. . . that there was a conflict of interest in your being someone performing inspections for the city and going out and soliciting insurance for people that you were looking at their homes or buildings

This question was asked to demonstrate Todd’s general lack of judgment and thereby, to undermine his credibility as a witness. As such, it falls within the exception to the Rule prohibiting the introduction of evidence of liability insurance. See Rule 411, M.R.Evid. Further, the question only highlights the conflict of interest arising when one sells insurance and then inspects some of those same insured buildings; it does not specify that the Spectrum building was one of those insured buildings. This general question would be insufficient to prejudice the appellants.

Appellants’ second claim is that respondent improperly raised the issue of insurance while cross-examining the owner of the Horsky Block Building. The City asked the following question:

“Q. And on the real estate, you have stipulated your uncompensated loss was $60,000?”

Appellant immediately approached the bench and objected before the owner of the Horsky Block Building could answer this question indirectly relating to insurance coverage. This question did not directly ask whether the owner was covered by insurance, and no evidence was introduced to indicate that any jury member understood from it that Massman had liability insurance. Questioning proceeded without any other allusion to insurance. Within the total framework of the trial, we hold that the District Court also did not abuse its discretion by holding that this single question alluding to insurance was insufficient to warrant a new trial.

Appellants’ third claim of the improper mention of insurance is totally without merit. We will not discuss it, except to state the+ appellant objected before any portion of John Carroll’s deposition naming the insurance company involved in the Spectrum fire could be read to the jury.

Appellants’ fourth claim is that several jury members saw the cover page of Todd’s final investigative report which listed all the City’s insurance and which was placed on respondent’s counsel table within view of the jury after it was excluded from introduction into evidence. No evidence exists that any jury member in fact saw this cover sheet prior to it being removed from respondent’s counsel table by counsel for appellants.

Finally, appellants claim that the City mentioned insurance during closing argument. No record exists of the closing argument in this case. For the reasons previously stated in § II above, we will not consider this fifth claim which is based upon a nonexistent record. Finding no abuse of discretion, we affirm the District Court’s denial of a new trial.

The jury verdict and judgment of the District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HUNT, WEBER, SHEEHY and McDONOUGH and HON. JOEL G. ROTH, District Judge, sitting for MR. JUSTICE HARRISON, concur.


author: MR. CHIEF JUSTICE TURNAGE

text:
    In the MATTER of C.C., Youth in Need of Care.
    No. 88-214.
    Submitted on Briefs March 31, 1989.
    Decided May 2, 1989.
    772 P.2d 857.

      John Keith, Great Falls, for appellant.
    Marc Racicot, Atty. Gen., Kathy Seeley, Asst. Atty. Gen., Helena, Patrick L. Paul, County Atty., Tammy Plubell, Deputy County Atty., Antonia Marra, Great Falls, for child.
    E. June Lord, Great Falls, for father.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The Youth Court, Eighth Judicial District, determined C.C. to be a youth in need of care. C.C. was removed from her mother’s (K.C.’s) home pursuant to a petition for temporary custody filed by the Department of Social and Rehabilitation Services (SRS) (now Department of Family Services). Later C.C. was taken out of foster care and, after a dispositional hearing, she was placed in the custody of her natural father, B.C. Additionally, K.C. was ordered to pay monthly child support to the youth’s father.

The mother appeals. The respondents are the State of Montana on behalf of the Department of Family Services (Department), the youth, and the father.

The three issues on appeal are stated by the mother as follows:

(1) Did the Youth Court err by transferring custody of C.C. because it had no jurisdiction to do so;

(2) Did the Youth Court err in awarding child support payments to the father;

(3) Did the Department of Family Services act arbitrarily in making its recommendation to the court.

We affirm the custody award and reverse the child support award. The third issue is without merit.

C.C. is a nine-year-old Caucasian female. She first came to the attention of SRS in the spring of 1985 when it was reported that C.C. was left at home alone after preschool every day until 5:00 p.m. when her mother returned home from work. C.C. was just six years old at the time. C.C. was then living in the sole custody of her mother and had been since her parents divorced when she was an infant. Her mother was employed as a phone receptionist at a local business and, in fact, was not providing any supervision of C.C. while the mother was at work.

After being contacted by SRS and advised that this was unacceptable supervision of a minor of C.C.’s young age, K.C. placed C.C. in an SRS-approved daycare at county expense. However, K.C. was defensive and not open to the suggestions of SRS. She was resentful of their interference and told them of her financial inability to provide daycare for C.C. K.C. denied that the previous arrangements she had made for C.C. were harmful to her and explained that she had obtained a large dog to keep C.C. company and that she had instructed her to go to the neighbor’s if she were frightened. Further, C.C. and K.C. had a phone-calling system of daily check-in calls.

C.C. continued in daycare until the next fall, but then was removed by her mother. Her mother again had the child walk home alone from school and remain in the family home alone until the mother returned from work each evening.

C.C. came to the attention of SRS again in March of 1986 when it was reported that C.C. had multiple deep purple bruises on her buttocks from a severe spanking inflicted by her mother. At roughly the same time, C.C. showed a social worker a bump on her head and bleeding gums she had from her mother harshly brushing her teeth as discipline.

This information was outlined in the affidavit filed by SRS in support of its petition seeking temporary custody of C.C. and an investigation. Hearing on that petition was held April 4, 1986, and the Youth Court determined C.C. to be a youth in need of care. She was removed from the temporary receiving home in which she had been staying since the petition was filed and was then placed in a foster home. Foster care continued for about a year. The mother exercised visitation of C.C. throughout these proceedings.

To make a final disposition, the court ordered an investigation and psychological studies. Psychological evaluations of all parties and home studies of each parent were conducted in the months that followed the original hearing.

The dispositional hearing, which was continued a number of times, began January 8, 1988, and concluded on January 22, 1988. Testimony at trial was undisputed that C.C. had emotional problems that manifested themselves in peculiar behavior. C.C. was extremely afraid to get dirty for fear of being disciplined. She would not play with other children or with toys in order to keep clean. She had trouble completing homework at school, for fear of making a mistake and being disciplined. At the same time, C.C. exhibited some surprising social skills. Although shy and fearful at some times, she became quite talkative at other times and always responded positively to outside nurturing. C.C. impressed everyone as a bright and alert child.

Dr. Kuka, a clinical psychologist, testified at trial as C.C.’s therapist. He relayed many instances of psychological abuse of C.C. by K.C. in addition to the limited physical abuse. C.C. had an older sister, Brenda, who died of cancer. K.C. compared C.C. to Brenda on many occasions in a harsh and detrimental fashion: telling her to behave or she would be in the grave with her dead sister; telling her that she was not as pretty or well-behaved as Brenda. K.C. also instructed C.C. never to get out of bed at night or the “monsters from under the bed would get her.” This terrified her greatly, which led to severe nightmares, headaches, and crying fits.

Dr. Kuka testified that C.C. should not live with K.C. until K.C. could recognize the effect her actions had on C.C. K.C. could not admit that this conduct was harmful to or abusive of C.C. K.C. was defensive and consistently denied responsibility for her actions. At one point, she told Dr. Kuka that it was C.C.’s fault and that C.C. forced K.C. to behave that way. Dr. Kuka recommended that K.C. continue her own psychotherapy program, to continue visitation of C.C. to foster trust and abate the fear in that relationship, and that permanent custody be transferred away from the mother.

Dr. Rushworth, a clinical psychologist, testified at trial as K.C.’s therapist. She testified to K.C.’s progress in the two years since the case began, but expressed reservations about K.C. having custody. Dr. Rushworth ultimately could not recommend that K.C. have custody at that time.

All experts at trial testified that a final disposition of this case would be to C.C.’s benefit. She had been in foster care for a year and had since been living with her father on a “temporary” basis, which had continued for several months. Stability for C.C. and knowing definitely where she would be living permanently were stressed at trial as being in C.C.’s best interest.

B.C., C.C.’s natural father, lived in a different city when these proceedings began and had little contact with C.C. from the time of her birth until the time he became aware of her circumstances. However, B.C. had always provided for the financial support of C.C. and moved to the same city as K.C. during the proceedings.

B.C. testified at trial that he had never been the custodial parent of C.C. and that he hesitated earlier to do so because of his lack of parenting skills. Over the course of the proceedings, however, B.C. sought advice on parenting and began exercising visitation and custody of C.C. He testified that he now wanted custody of C.C., was comfortable in parenting her, and would allow visitation with the mother.

Home study of B.C. as conducted by the Department showed that B.C. had adequate parenting skills; no abusive tendencies; no history of abusive behavior; no alcohol or chemical dependency or tendency for same. The Department concluded that B.C. could receive and care for the youth and recommended to the court in its report and by oral testimony in court that B.C. be awarded custody of C.C.

The Youth Court awarded custody to B.C., awarded him child support and allowed visitation by K.C. K.C.’s parental rights were not terminated. K.C. appeals that judgment and order.

I. Jurisdiction

Appellant’s first challenge to the Youth Court order is that the court erred in transferring permanent custody because it had no jurisdiction to do so. Sole jurisdiction, the mother argues, for that type of action lies exclusively with the district court which originally dissolved the marriage and awarded sole custody to her. (The parties were divorced in Fort Benton less than one year after they married.) She claims that a transfer of custody can only be made by that court, on affidavit, after a change of circumstance, pursuant to the family law statutes set out in 40-4-219 et seq., MCA. We do not agree.

The Youth Court is created and governed by statute in Montana. However, because this case does not involve a youth charged with a violation of law, it is not within the Youth Court Act, § 41-5-101 et seq., MCA. Actions brought under that Act are within the exclusive jurisdiction of the Youth Court.

Rather, in this case, the Youth Court and the District Court have concurrent jurisdiction.

Section 41-3-103, MCA, reads in pertinent part:

“(1) In all matters arising under this chapter, the Youth Court shall have concurrent jurisdiction with the district court over:
“(a) all youths who are within the state of Montana for any purpose;
“(c) any person who is alleged to have abused, neglected, or caused the dependency of a youth who is in the state of Montana for any purpose.”

Thus, the Youth Court had jurisdiction over C.C. and K.C. and any challenge to that jurisdiction is unfounded.

Once a child such as C.C. has been determined to be a youth in need of care, the Youth Court has many options. The award of custody to B.C. is statutorily provided for in § 41-3-406, MCA. That section provides:

“If a youth is found to be abused, neglected, or dependent under 41-3-404, the court after the dispositional hearing may enter its judgment making any of the following dispositions to protect the welfare of the youth:
“(1) permit the youth to remain with his parents or guardian subject to those conditions and limitations the court may prescribe;
“(3) transfer legal custody to ... a relative or other individual who, after study by a social service agency designated by the court, is found by the court to be qualified to receive and care for the youth[.]”

The Youth Court properly took in testimony that B.C. was qualified to receive and care for C.C. The findings made by the court are based on the substantial credible evidence of the experts and of B.C. The transfer of custody was lawful under this statute and no challenge to that transfer can be sustained. The court is affirmed on that issue.

Appellant contends that affirming the Youth Court on that issue would encourage parties who were not successful in obtaining custody pursuant to the family law statutes to try again to get custody through a Youth Court proceeding. That argument has no merit. We note only that this was not a custody battle between two parents. Rather, this action was instituted by the State of Montana when a petition for temporary custody was brought by SRS to protect C.C. The natural father later was apprised of the continued abuse and neglect of his child by his ex-wife. After being investigated and interviewed over many months, the court determined the father to be a qualified person to receive and care for the youth as provided by the statutes and ordered that legal custody be transferred to the father for the welfare of the child. That transfer of custody was lawful, was made to protect the welfare of the child and will not be overturned.

II. Child Support

The court erroneously awarded child support to B.C. That portion of the Youth Court order is reversed.

Child support in Montana is awarded only after the trial court considers “all relevant factors” pursuant to § 40-4-204(1),

MCA. Such factors include, but are not limited to,

(a) the financial resources of the child;

(b) the financial resources of the custodial parent;

(c) the standard of living the child would have enjoyed had the marriage not been dissolved;

(d) the physical and emotional condition of the child and his education needs;

(e) the financial resources and needs of the noncustodial parents

Additionally, in order to award an equitable amount, the court must consider the formula set forth in In Re Marriage of Carlson (Mont. 1984), 214 Mont. 209, 693 P.2d 496. There is no record that the trial judge considered either the factors in § 40-4-204(1) or the Carlson formula, except to note that the father had just started a new business and that the mother was employed as a receptionist.

Where there is insufficient evidence to support a finding that child support is necessary, there has been an abuse of discretion. See for discussion, In re the Marriage of Keel (Mont. 1986), [223 Mont. 305,] 726 P.2d 812, 43 St.Rep. 1742. There is insufficient evidence in this case. The child support award is reversed.

It should be noted here that B.C. did not request an award of child support. If, in fact, he is financially in need of child support from his ex-wife, he could petition the proper forum at a later date and put forth evidence of the factors listed herein.

Lastly, K.C. contends that the Department acted arbitrarily in its recommendation to the court regarding custody of C.C. K.C. bases that allegation on her suspicion that the Department had been following her and just wanted a reason to take her child away. She states that the Department acted arbitrarily in recommending she not have custody because they did not recognize the progress she had made with Dr. Rushworth during the months of therapy. Rather, they had already made their minds up months ago that K.C. should lose custody of her child, K.C. argues. That argument is without merit.

The only proper question for review that K.C. could pose to this Court on appeal is whether the Youth Court acted arbitrarily in following the recommendation of the Department. We have already held that the custody award was both lawful and supported by the substantial credible evidence in this record. We will not discuss further challenges to the custody award.

The custody award to B. C. is affirmed; the order regarding child support is reversed.

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


text:
    BETTY GRABENSTEIN, Plaintiff and Appellant, v. TERRY SUNSTED, Defendant and Respondent.
    No. 88-545.
    Submitted on Briefs April 6, 1989.
    Decided May 2, 1989.
    772 P.2d 865.

      M. Richard Gebhardt, Missoula, for plaintiff and appellant.
    Robert L. Fletcher, Thompson Falls, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The plaintiff, Mrs. Grabenstein, initiated this suit in justice court to recover the value of her dog which was shot and killed by the defendant, Mr. Sunsted, upon discovery of the dog in his chicken coop. Following a trial de novo, the District Court for the Twentieth Judicial District, Sanders County, entered judgment for the defendant and awarded him $30 damages for the loss of his chickens and $45.50 for costs incurred in litigation. From that judgment, the plaintiff appeals. We affirm.

The issues are:

1. Did the District Court err in determining that the defendant had a right to shoot the dog which was killing his poultry?

2. Did the District Court err in its refusal to receive proposed findings of fact or conclusions of law and to waive counsel’s request for oral argument?

Both parties live in a rural setting approximately 5 miles from Heron, Montana. Defendant Sunsted’s property is located just over 1.5 miles from the Grabensteins, where the Sunsteds carry on various agricultural pursuits, including the raising of chickens. The Grabensteins were the owners of a large, black Labrador retriever named Duke, whose fate is the subject of this appeal.

While performing his morning chores on July 16, 1985, Mr. Sunsted heard a dog bark in the vicinity of his chicken coop. Having previously experienced problems with coyotes, Mr. Sunsted grabbed a shotgun from the barn before proceeding to the coop. Outside the coop he found five dead chickens. The door to the coop was broken down. Inside the coop, which was a fully enclosed structure, six more chickens lay dead. The black Labrador, which was later claimed by the Grabensteins to be “Duke,” was found in the corner trying to catch the last remaining live chicken in the coop. Mr. Sunsted shot the dog, killing him instantly, then reported the incident to the deputy sheriff. The deputy traced the ownership of the dog to the Grabensteins, who were notified of the shooting. Mr. Sunsted disposed of the dog himself. The Grabensteins later sought damages for the loss of Duke, estimating his value at $3,500.

I

Did the District Court err in determining that the defendant had a right to shoot the dog which was killing his poultry?

The common law rule on this matter is as follows:

“. . . to justify the killing of a dog in defense of property there must be an apparent necessity for the defense, honestly believed to be real, and the acts of defense must in themselves be reasonable, or in other words, it is necessary to show that the danger from its attack was imminent at the time, and that the injury could not otherwise have been prevented.”

Trenka v. Moos (1946), 118 Mont. 607, 613, 168 P.2d 837, 840-41.

Trenka was the first case in Montana involving a “dog in the chicken coop” scenario. This Court stated that a person protecting his property has the right to act upon the reasonable appearance of things and if there is reasonable cause to believe that necessity for killing the dog exists, that person is not liable. 168 P.2d at 841. In Trenka, this Court held that the chicken owner was not reasonably justified in shooting the dog because the dog was not in the act of molesting the fowl at the time the fatal shot was fired. 168 P.2d at 841. Although plaintiff in this case argues that the District Court’s conclusion should have been the same as that reached in Trenka, we conclude that the facts of this case are significantly different from those presented in Trenka so as to justify a different result.

When the defendant was asked to describe what the dog was doing when he first saw him, he stated:

“Well, he was kind of in a pounce position with his front down. And there was a chicken that was in the corner trying to escape his goings on. And he was biting at it and the chicken would fly and he’d reach up — now he was a big dog like, you know, well over 100 pounds I would guess. I really don’t know but that’s what I would guess.
“And he would rise up trying to catch the chicken and the chicken would come down. And of course in that small of confines with water and feeder in there, he had it pretty well, you know, cornered.”

While the defendant did not actually see the chicken in the dog’s mouth, he described the bird as being “poked full of teeth holes and pretty well chewed up” as if “something has had a hold of it . . .” The defendant eventually had to kill the chicken because of its mangled state. Testimony was offered to the effect that Duke was a gentle dog who was accustomed to living and even sleeping with chickens. Regardless of this testimony as to Duke’s stoic character, the lower court found that the defendant had no prior knowledge of the dog’s temperament or disposition toward poultry when he came upon the sight of a dog cornering one chicken surrounded by numerous dead chickens. The evidence supports this finding that defendant had no reason to believe that the dog would just as soon sleep with chickens as terrorize them.

The plaintiff argues that because eleven chickens already lay dead and the only property remaining in peril was a $2.50 chicken, it was not reasonable for the defendant to shoot the dog in what plaintiff characterizes as an act of vengeance. The District Court determined otherwise, and we will not set aside that determination if it is supported by substantial credible evidence. Parker v. Elder (Mont. 1988), [233 Mont. 75,] 758 P.2d 292, 293, 45 St.Rep. 1305, 1307.

Again, the defendant caught the dog later identified as Duke in the act of molesting one of his chickens. The evidence establishes that it reasonably appeared to the defendant that the dog had broken into a fully enclosed chicken house, had killed 11 chickens, was attacking a 12th chicken, could not be contained in the coop because of its broken door, and that the size and unknown temperament of the dog made physical restraint unrealistic and potentially dangerous. Under those circumstances, we conclude that it was reasonable for defendant to shoot the dog under the common law rule as set forth in Trenka. We hold that substantial credible evidence exists to support the District Court’s determination.

The plaintiff argues that the common law rule is abrogated by statute in Montana. The two relevant statutes are §§ 81-7-401 and 402, MCA. The first statute, § 81-7-401, MCA, allows the killing of a dog who kills, wounds, or injures any livestock not belonging to the dog’s master. In Granier v. Chagnon (1949), 122 Mont. 327, 203 P.2d 982, this Court held that the definition of livestock under this statute in effect at that time does not include fowl.

Plaintiff argues that § 81-7-402, MCA, is the applicable statute which subjects the owner of a predator dog to liability for damages only. That statute reads in relevant part:

“(1) The owner of livestock or poultry injured or killed by any dog may recover as liquidated damages from the owner of. the dog the actual value of the animals killed or the value of the damages sustained by reason of the injuries as the case may be.”

Because neither this statute or § 81-7-401, MCA, authorize the killing of a dog who destroys fowl, the plaintiff argues that the common law rule has been abrogated and defendant’s only remedy is that of damages under § 81-7-402, MCA. We disagree.

At common law, an owner of domestic fowl has a right to kill a dog attacking or menacing their safety if such is necessary for their protection, and that common law right “is not abrogated by a statute which creates a right in a nonowner of certain enumerated animals, not including fowls, to kill a dog attacking such animals.” 3A C.J.S. Animals, § 292.

These statutes do not limit, either expressly or impliedly, the poultry owner’s right at common law to kill an attacking dog when such a killing is reasonably justified. Rather, the statutes provide additional relief after the fact and address specific situations not covered by the common law. We hold that the defendant’s common law right to kill plaintiff’s dog was not abrogated by Montana’s statutes on the subject.

II

Did the District Court err in its refusal to receive proposed findings of fact or conclusions of law and to waive counsel’s request for oral argument?

At the closing of the case, plaintiff’s counsel offered to submit proposed findings of fact and conclusions of law which were refused by the court. Instead, the court offered five minutes to each party in which to be heard. Neither party took advantage of that time. We therefore conclude that no basis exists upon which to allege error as to the issue of oral argument.

Furthermore, there is no mandatory requirement that the District Court accept proposed findings of fact or conclusions of law. Rule 52, M.R.Civ.P., provides that:

“The court may require any party to submit proposed findings of fact and conclusions of law for the court’s consideration and the court may adopt any such proposed findings or conclusions as long as they are supported by the evidence and law of the case. (Emphasis added.)” Here, the District Court properly exercised its discretion in declining to accept proposed findings or conclusions.

Affirmed.

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


text:
    AVCO FINANCIAL SERVICES, formerly d/b/a ITT Financial Services, Plaintiff and Respondent, v. DEBORAH H. FOREMAN-DONOVAN, Defendant and Appellant.
    No. 89-15.
    Submitted on Briefs April 6, 1989.
    Decided May 2, 1989.
    772 P.2d 862.

      Deborah H. Foreman-Donovan, Denver, pro se.
    Fred E. Work, Jr., Work Law Firm, Billings, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Appellant Deborah H. Foreman-Donovan appeals a summary judgment granted to Avco Financial Services (Avco) in the District Court for the Thirteenth Judicial District, Yellowstone County.

We affirm.

The issue is whether the District Court erred in granting summary judgment for Avco.

In November 1984, appellant and her husband executed a promissory note to Avco for $2,977.94 plus finance charges of $1,270.06. The note called for thirty-six monthly payments of $118 each and was secured by a purchase money security interest in certain furniture along with a security interest in a Ford pickup truck used in the husband’s business.

In April 1986, appellant was late in two payments on the note. She went to Avco’s office and asked to add these payments to the end of the contract as she claims she had been offered in the past. Avco’s representative refused this request. He stated that either the three payments then due must be made within twenty-four hours or the security interest would be foreclosed. Appellant and her husband chose a third option and executed a renewal note in the amount of $2,411.02 plus finance charges of $1,296.98. This note called for thirty-six monthly payments of $103 each. Appellant claims that in late 1986 Avco again offered to and in fact did defer a payment to the end of her contract. At that time she stopped making payments on the second note.

Avco filed suit to foreclose the security against appellant and her husband in December 1986. Default judgment was taken against the husband in February 1987 and his appeal to this Court was dismissed about one year later for failure to prosecute. Appellant, a law school graduate appearing pro se, answered the complaint. She alleged that the note was voidable at her option, filing counterclaims alleging fraud and economic duress. Avco moved for summary judgment and the motion was granted based on the briefs and affidavits filed.

Did the District Court err in granting summary judgment for Avco?

Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), M.R.Civ.P. Appellant argues that her counterclaims raise material issues of fact concerning Avco’s denial of her request to add the delinquent payments to the end of the first contract. She contends that the statement that Avco would not add delinquent payments to the end of the contract was untrue in light of Avco’s offers in prior and later months to do just that. She also contends that her request was denied so as to extract greater interest payments from her by getting her to sign the renewal note. She asserts that these circumstances amount to both fraud and economic duress, so that summary judgment is not proper.

Fraud is generally a question of fact. Section 28-2-404, MCA. However, summary judgment on the issue of fraud is not precluded where the opposing party has not made out an issue of material fact for fraud. Sprunk v. First Bank Western M. Missoula (Mont. 1987), [228 Mont. 168,] 741 P.2d 766, 44 St.Rep. 1429. The party alleging fraud must make out a prima facie case on nine elements:

1. a representation;
2. its falsity;
3. its materiality;
4. the speaker’s knowledge of its falsity or ignorance of its truth;
5. the speaker’s intent that it should be acted upon by the person and in the manner reasonably contemplated;
6. the hearer’s ignorance of its falsity;
7. the hearer’s reliance upon its truth;
8. the right of the hearer to rely upon it;
9. the hearer’s consequent and proximate injury or damage.

In Gallatin Trust and Savings Bank v. Henke (1969), 154 Mont. 170, 461 P.2d 448, this Court pointed out that the mere making of a promise which the promisor fails to keep is not actionable fraud. Therefore, even taking the allegations in the light most favorable to appellant, as we must in considering a summary judgment, the withdrawal of the “promise” to add delinquent payments to the end of the first contract does not amount to fraud.

Further, appellant has not presented a prima facie case on element number 8 above, that she had the right to rely upon Avco’s representation. A defrauded party has a right to rely on another’s representations when the parties are not on equal footing. Sprunk, 741 P.2d at 770. The evidence here does not disclose two parties on unequal footing. Appellant was a law school graduate and was working as a law clerk for a district judge at the time this action arose. She was in as good a position as was the Avco representative to understand the parties’ contractual rights and obligations.

Finally, appellant has not presented a prima facie case as to element number 9, consequent and proximate injury or damage. Avco cannot by any stretch be held responsible for appellant’s predicament of being unable to make her payments on the original contract. Also, under the circumstances as alleged by appellant, Avco cannot be said to have induced her to take out a renewal note with it rather than get money from some other source.

Appellant’s second claim of material issues of fact arises from her counterclaim alleging economic duress. She cites cases from Utah and Minnesota which she believes support her position. However, these cases are not controlling. There have been no allegations that Avco threatened to do anything other than that which it was contractually entitled to do in foreclosing the original contract for default. To threaten only those actions which one has a legal right to do under an existing contract does not constitute duress. Pederson v. Thoeny (1930), 88 Mont. 569, 575, 295 P. 250, 252. Further, Avco is not responsible for appellant’s inability to make payments on the original note or to obtain money elsewhere. “It is not duress where a party is constrained to enter into a transaction ... by force of circumstances for which the other party is not responsible.” 25 Am.Jur.2d, Duress and Undue Influence, § 3, p. 357.

As the District Court stated, it was undisputed that from December of 1986 to the time of the June 1988 summary judgment, no payments were made on the second note. This clearly put appellant in breach of the contract, entitling Avco to “declare the entire unpaid balance of the note . . . immediately due and payable.” We conclude that the District Court did not err in ruling that appellant failed to raise an issue of material fact precluding summary judgment for Avco.

We affirm the judgment of the District Court.

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


author: MR. JUSTICE HARRISON

text:
    JOHN W. STRAHAN, Evelyn Strahan, and Jerry W. Strahan, Plaintiffs and Respondents, v. DAVID W. BUSH and Pamela F. Bush, et al., Defendants and Appellants.
    No. 88-589.
    Submitted on Briefs March 23, 1989.
    Decided May 3, 1989.
    Rehearing Denied June 1, 1989.
    773 P.2d 718.

      Sol & Wolfe, Michael Sol, Missoula, for defendants and appellants.
    Boone, Karlberg & Haddon, David J. Dietrich, Missoula, for plaintiffs and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Defendants, David W. and Pamela F. Bush (the Bushes), appeal from a permanent injunction granted in the District Court, Third Judicial District, Granite County, Montana, the Honorable Ted I. Mizner presiding, to the plaintiffs, John W. Strahan, Evelyn Strahan and Jerry Strahan (the Strahans). The injunction ordered the Bushes to refrain from interfering with the Strahans’ ingress and egress from their property. We affirm.

The property involved in the matter is located in Granite County, south of Interstate 90 near Drummond, Montana. In 1977, the parties purchased their respective properties from a common owner, Maxine Burruss. Contained in the conveyance to the Bushes, Burruss reserved an easement “[for purposes of providing ingress and egress to the above described land which easement shall be over and across the existing road . . .” The easement right granted by virtue of the deed provided the Strahans the only access to their sole residence.

At the time of the conveyances, a locked gate existed on the road easement. Burruss controlled the gate and provided the owners access with a combination to the lock. In 1979, the Strahans replaced the combination lock with a key-lock and provided other property owners with keys. The Strahans notified all concerned parties and asked for their cooperation. Shortly thereafter, the Strahans opened the gate. Except for the 1980 and 1981 hunting seasons, the gate remained open for approximately four years without objection from other property owners who used the road. Additionally, the gate was closed when no one was in attendance on any of the properties. As to the operation of the gate, the other property owners testified to a “gentleman’s agreement,” stating that what was best for the Strahans was best for them. In 1984, the Bushes unilaterally closed the gate, initiating the present dispute.

The Strahans reside on the property year-round and have maintained the private road, including snow removal during the winter months. Also, Evelyn Strahan suffers from a back condition which makes opening the gate extremely difficult, if not impossible.

The Bushes are residents of Arizona and spend a few weeks during the summer camping on their property and lease the property to local ranchers for cattle grazing purposes. At trial, David Bush testified that the gate is a necessary part of the grazing operation to prevent cattle from straying and is also needed to protect against acts of vandalism on their property.

On July 2, 1987, the Strahans filed a verified complaint in the District Court, requesting a temporary restraining order and a permanent injunction to enjoin the Bushes from closing the gate. The temporary restraining order was granted on July 31, 1987. After the hearing, the District Court, on July 25, 1988, issued an order permanently restraining the Bushes from interfering with the Strahans’ unrestricted access to their property. The court’s order stated that the Bushes may install a cattle guard at their own expense under the gate controlled by the Strahans.

We rephrase the Bushes’ issues as follows:

1. Did the District Court err in construing the terms of the easement which granted the Strahans’ ingress and egress?

2. Were all necessary parties joined?

3. Does the cattle guard impose an additional burden not contemplated by the easement?

On appeal, we limit our review to the question of whether the District Court abused its discretion in granting the injunction. Sampson v. Grooms (Mont. 1988), [230 Mont. 190,] 748 P.2d 960, 45 St.Rep. 133; Madison Fork Ranch v. L & B Lodge Pole Timber Products (1980), 189 Mont. 292, 615 P.1d 900. To determine if an abuse is present, we review the scope of the injunction. The extent of an easement is governed by § 70-17-106, MCA:

“The extent of a servitude is determined by the terms of the grant or the nature of the enjoyment by which it was acquired.”

In other words,

“[w]here an easement is claimed under a grant . . . the extent of the rights granted depends upon the terms of the grant, . . . properly construed ... If it is specific in its terms, it is decisive of the limits of the easement.” Titeca v. State By And Through Dept. Of Fish (Mont. 1981), [_ Mont__,] 634 P.2d 1156, 1159, 38 St.Rep. 1533, 1537, citing 25 Am.Jur. 2d, Easements and Licenses, § 73, at 479. However, the instant case involves an easement described generally as “an easement for purposes of providing ingress and egress to the above described land which easement shall be over and across the existing road . . .” Given the ambiguous nature of the easement, the court must exercisé a different role:

“If the easement is not specifically defined, it need only be such as is reasonably necessary and convenient for the purpose for which it was created. It is sometimes held . . . where the grant or reservation of an easement is general in.its terms, that an exercise of the right, with the acquiescence and consent of both parties, in a particular course or manner, fixes the right and limits it to that particular course or manner.”

25 Am.Jur.2d, Easements and Licenses, § 73, at 479. What may be considered reasonable is determined in light of the situation of the property and the surrounding circumstances.

Historically, the gate remained closed to discourage trespassers and, in fact, existed when the parties purchased their properties, subject to the mutual lock agreement. The Bushes allege that the Strahans continued the key-lock arrangement in 1979, and coordinated the cooperation of other landowners to keep the gate closed. Because of their use, the Bushes contend that the Strahans waived any claim of a restricted access and are therefore estopped from asserting that the gate should remain open. Finally, the Bushes desire to use the property for cattle grazing, necessitating a closed gate.

On the other hand, the Strahans assert that they took control of the gate in 1979, and continued to monitor access to the easement. The gate was closed during the 1980 and 1981 hunting seasons, or during periods when the Strahans were away from the property for an extended period of time. Further, the other property owners agreed to allow the Strahans to control the gate because the Strahans reside on the property year-round. In addition, the Strahans assert that Evelyn Strahan cannot open the gate due to her back condition.

In City of Missoula v. Mix (1950), 123 Mont. 365, 372, 214 P.2d 212, 216, this Court set forth the limitations on the right of an owner of land subject to an easement to interfere with the use of the reserved easement, stating:

“The owner of a reserved easement may use it to the full use of the right retained. The owner of the servient tenement may make use of the land in any lawful manner that he chooses, which use is not inconsistent with and does not interfere with the use and right reserved to the dominant tenement or estate.”

See also, Flynn v. Siren (1986), 219 Mont. 359, 711 P.2d 1371, and Titeca, supra. While we acknowledge the Bushes’ interest of leasing their property for a cattle grazing operation, nonetheless, the gate unreasonably interferes with the Strahans’ reserved easement rights. As found by the lower court, Evelyn Strahan cannot open the gate without assistance, and is therefore restricted in her movement from the property. Also, the gate must be kept open during the winter months to facilitate snow removal and for maintenance of the road. Because the road is the only access to the Strahans’ sole residence, the District Court denied the Bushes’ contention that the gate should remain closed. Accordingly, the District Court fashioned an injunction which allowed the Strahans’ ingress and egress from their property, and ordered an appropriate solution to address the Bushes’ interest of leasing the property for a cattle grazing operation. To further minimize the impact of his decision, the District Court admonished the Strahans to respect the rights of the Bushes and cooperate by closing the gate whenever it is reasonable to do so. We find the scope of the injunction is proper.

Next, the Bushes contend the court did not join all parties necessary to the controversy. Rule 19(a), M.R.Civ.P., provides:

“A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest ...”

Whenever feasible, persons materially interested in the subject of an action should be joined as parties so they may be heard and a complete disposition made. See, Commission Comments, Rule 19(a), M.R.Civ.P. However, no evidence exists to support the Bushes’ assertions that the other property owners are indispensable. The easement subject to this action lies completely within the perimeter of the land owned only by the Bushes and the Strahans. We find that the District Court rendered a binding decision between the parties.

Finally, the Bushes argue the cattle guard provided for by the District Court’s order imposes an additional burden not contemplated by the original easement. While it may be that the easement did not specifically contemplate the construction of a cattle guard, nonetheless, we note that a court sitting in equity causes is empowered to determine the questions involved in the case and do complete justice. Hames v. City of Polson (1950), 123 Mont. 469, 215 P.2d 950. “The court has all of the power requisite to render justice between the parties. . .” Rase v. Castle Mountain Ranch, Inc. (Mont. 1981), [_Mont__,] 631 P.2d 680, 687, 38 St.Rep. 992, 1000.

Affirmed.

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