author: JUSTICE WEBER JUSTICE GRAY

text:
    JACK J. HALVERSON, Plaintiff and Respondent, v. SHIRLEY J. TURNER and HAROLD TURNER, Defendants and Appellants.
    No. 94-227.
    Submitted on Briefs August 25, 1994.
    Decided December 1, 1994.
    51 St.Rep. 1233.
    268 Mont. 168.
    885 P.2d 1285.

      For Appellant: Jeffrey T. Renz, Missoula.
    For Respondent: James R. Halverson, Herndon, Hartman, Sweeney & Halverson, Billings.
   JUSTICE WEBER

delivered the Opinion of the Court.

Defendants appeal the Order of the District Court of the Thirteenth Judicial District, Yellowstone County, which granted plaintiff’s motion for summary judgment declaring that Dahlia Halverson, predecessor in interest of both parties’ tracts, had created an easement across defendants’ property by reservation and necessity for purposes of ingress and egress. The District Court also denied defendants’ subsequent Motion to Reconsider, Amend or Vacate the summary judgment order. We affirm.

We restate the issues as follows:

I. Did the District Court err by finding that Dahlia Halverson created an easement when she conveyed a portion of her property to defendants?

II. Did the District Court err in determining that the easement over defendants’ property was not extinguished by defendants’ actions in keeping a fence in place across the access location?

The two adjacent properties owned by plaintiff Jack Halverson and Shirley J. and Harold Turner (Turners) were once owned by Dahlia Halverson, the mother of Jack Halverson and Shirley Turner. In 1963, Dahlia Halverson filed and recorded Certificate of Survey No. 646 (COS 646) establishing a subdivision located in an area ofYellowstone County known as the Blue Creek area. The tracts from COS 646 with which we are concerned were known as Tract B-l and Tract B-2. Tract B-2 bordered Tract B-l on its eastern boundary line.

Dahlia Halverson transferred title to Tract B-2 to Jack Halverson, who in turn recorded a Certificate of Survey (COS) dividing Tract B-2 into Tract B-2A, which was the northern portion, and B-2B, which was the southern portion. In 1982, Halverson reconveyed Tract B-2A to Dahlia Halverson, who still owned Tract B-l, the adjoining tract. In May of 1987, Dahlia Halverson recorded Certificate of Survey No. 646 2nd Amd. (Amended Tract B-1A), which is referred to as COS 646,2nd Amd. COS 646,2nd Amd. divided Tract B-l (also referred to as B-1A) into two tracts with the northern tract called Tract B1A-1 and the southern tract called Tract B1A-2. COS 646, 2nd Amd. also showed a 30-foot road easement extending from the northeast corner ofTract B1A-1 westerly for a distance of 188.52 feet. This easement was to provide access to a street running to the north from the northerly boundary line ofTract B1A-1.

In June 1987, Dahlia Halverson transferred Tract B1A-1 to Shirley Turner by quitclaim deed, which described the tract as follows:

Tract B1A-1 of Amended Tract B-1A CERTIFICATE OF SURVEY NO. 646,2nd Amd., Yellowstone County, Montana, according to the official plat thereof on file and of record in the office of the Clerk and Recorder of said County, under Document No. 1442776.

On August 30,1991, Dahlia Halverson’s estate transferred ownership ofTract B-2Aback to Jack Halverson. COS 646,2nd Amd. shows a 30-foot road easement at the northern edge of Tract B1A-1 presently owned by the Turners to allow access to Tract B-2A presently owned by Halverson. Without the easement shown on COS 646, 2nd Amd., Tract B-2A is landlocked. Following is a diagram which illustrates the relevant tracts as well as the easement claimed by Jack Halverson over Tract B1A-1:

At all times pertinent to this action, the northern edge of Tract B1A-1 has been fenced. The easement in question, which has never been used by either Dahlia Halverson or Jack Halverson, would of necessity have to pass through a point where the existing fence is located on the northern boundary ofTract B1A-1. Sometime in 1992, the Turners caused another fence to be erected on the eastern boundary of their property which borders Halverson’s Tract B-2A. No suggestion was ever made prior to the erection of this fence in 1992 that there was no valid road easement over B1A-1 to access Halverson’s property. Halverson brought this action to judicially establish the existence of a road easement over the Turners’ property. The District Court granted summary judgment to Jack Halverson, determining that an easement was established by Dahlia Halverson when she conveyed Tract B1A-1 to the Turners in June of 1987.

Our standard for reviewing a grant of summary judgment is the same as that used by the district court. Wild River Adventures, Inc. v. Board of Trustees (1991), 248 Mont. 397, 399-400, 812 P.2d 344, 345. Summary judgment is proper when there are no genuine issues of material fact, as in this case. Rule 56(c), M.R.Civ.P. The parties agree on the material facts of this case. Therefore, our review is limited to a determination of the law applicable to the facts.

ISSUE I

Did the District Court err by finding that Dahlia Halverson created an easement when she conveyed a portion of her property to defendants?

The District Court determined that Dahlia Halverson created an easement by reservation when she quitclaimed Tract B1A-1 to Shirley Turner in 1987 by making reference to COS 646, 2nd Amd. The court further stated that when Jack Halverson received Tract B-2A from the Estate of Dahlia Halverson, he also received the easement in favor of Tract B-2A over Tract B1A-1.

The June 1987 quitclaim deed from Dahlia Halverson to Shirley Turner referred to COS 646, 2nd Amd., as above-mentioned, and included in that reference Document No. 1442776, under which the COS had been recorded. COS 646,2nd Amd. clearly shows the 30-foot road easement, 188.52 feet in length from east to west across Tract B1A-1. No other easements are shown on this document.

The purpose of a land description which is a necessary inclusion in an instrument conveying title is to describe the land so that the extent of the claim to the property may be determined. See City of Missoula v. Mix (1950), 123 Mont. 365, 383-84, 214 P.2d 212, 222. A reference to a map or plat is generally included to express, confirm, or amplify a description. 1 M. Friedman, Contracts and Conveyances of Real Property § 4.9(1) (5th ed. 1991). Although the description of the property being conveyed by the quitclaim deed in this case contains no language expressly reserving an easement to Dahlia Halverson, it does refer to Tract B1A-1 of COS 646, 2nd Amd. and includes the document number for that COS.

An easement by reservation must arise from the written documents of conveyance. In determining the existence of an easement by reservation in documents of conveyance, it is necessary that the grantee of the property being burdened by the servitude have knowledge of its use or its necessity. Graham v. Mack (1985), 216 Mont. 165, 174, 699 P.2d 590, 596. In this case, the reference in the quitclaim deed to Document No. 1442776 gave notice to Shirley Turner that the property was being conveyed pursuant to a particular recorded document. It also put her on “inquiry notice” of the easement and the need for a reservation of a way of ingress and egress. “Knowledge of the existence of a claim will be imputed to a party who has sufficient information to put it on inquiry notice of that claim.” Benson v. Pyfer (1989), 240 Mont. 175, 180, 783 P.2d 923, 926.

Although the District Court’s Order did not allude to an easement by operation of law, Jack Halverson’s motion for summary judgment contended that an easement was created by operation of law, according to § 76-3-304, MCA, which provides in pertinent part:

Where lands are conveyed by reference to a plat, the plat itself or any copy of the plat properly certified by the county clerk and recorder as being a true copy thereof shall be regarded as incorporated into the instrument of conveyance and shall be received in evidence in all courts of this state.

Pursuant to § 76-3-304, MCA, reference in documents of conveyance to a plat which describes an easement establishes the easement. Benson, 783 P.2d at 925. Moreover, according to § 76-3-304, MCA, when land is sold with reference to a properly recorded plat, that plat becomes part of the document conveying the interest in the land.

While the deed to Shirley Turner referred to COS 646, 2nd Amd., it also stated “according to the official plat thereof on file and of record ... under Document No. 1442776.” Under the provisions of the Montana Subdivision and Platting Act, §§ 76-3-101 to -614, MCA, there is a significant difference between certificates of survey and plats, although both “certificates of survey” and “official plats” are filed in the office of the clerk and recorder. We do not conclude that the distinction between “official plats” and “certificates of survey’ is controlling here. While the term “official plat” was used in the above description, the tract is described as being Tract B1A-1 of the COS under Document No. 1442776. The description is sufficient to accurately refer to the COS even though the term “plat” is incorrectly used. We conclude that the reference in the document of conveyance to a recorded COS which adequately described the easement was sufficient to establish the easement.

This Court’s recent opinion in Bache v. Owens (Mont. 1994), 883 P.2d 817, 51 St.Rep. 1001, held that documents of conveyance which incorporated a COS by reference established an easement in favor of the grantors as described in the COS. Our conclusion in this case is consistent with the Bache holding that the incorporation of a COS was sufficient to establish an easement.

Dahlia Halverson had an amended COS prepared pursuant to her division of Tract B-lAinto two smaller tracts. She recorded the COS prior to her conveyance of Tract B1A-1 to Shirley Turner. Her conveyance of this tract to Shirley Turner included a land description and a reference to the recorded Second Amended COS 646 as required by Montana law. Dahlia Halverson created an express easement of reservation for Tract B2-A over Tract B1A-1 when she conveyed Tract B1A-1 to Shirley Turner and retained Tract B-2A. This easementruns with the land, was not personal to Dahlia Halverson and, therefore, entitles Jack Halverson, as successor in interest of Tract B-2A, to the benefit of the easement.

We hold that the District Court correctly concluded that Dahlia Halverson created an easement when she conveyed a portion of her property to defendants.

ISSUE II

Did the District Court err in determining that defendants’ actions in keeping a fence in place across the northern boundary of Tract B1A-1 did not extinguish the easement over defendants’ property?

The easement over the Turners’ property has never been improved and has not been used. The Turners contend that any easement created in favor of Tract B-2Ahas since been extinguished by adverse possession. Jack Halverson contends that he was unaware that the Turners contested the easement until the 1992 construction of another fence on the boundary between Tracts B1A-1 and B-2A. At that time, Halverson objected to the new fence and then learned that the Turners contested his easement.

The Turners, however, contend that by keeping and maintaining the fence on the northern boundary of their property since Shirley Turner acquired the property in 1987, the easement has continuously been blocked by the fence. The District Court did not find their maintenance of this fence sufficiently adverse to Jack Halverson’s dominant tenement.

Extinguishment of an easement through adverse use by the owner of the servient tenement is determined by applying the principles that govern acquisition of title by adverse possession and acquisition of an easement by prescription: open, notorious, exclusive, adverse, continuous and uninterrupted use for the full statutory period. Shors v. Branch (1986), 221 Mont. 390, 398, 720 P.2d 239, 244; Warnack v. Coneen Family Trust (Mont. 1994), 879 P.2d 715, 723, 51 St.Rep. 739, 744. A permanent easement by express reservation which is not used is not lost by prescription during a period of nonuse no matter how long it remains unused unless there is adverse use which is clearly inconsistent with the dominant tenement’s future use of the easement. City of Billings v. O. E. Lee Co. (1975), 168 Mont. 264, 268, 542 P.2d 97, 99. Moreover, the owner of the dominant tenement is not required to make use of the easement as a condition to retaining his interest in the easement. Billings, 542 P.2d at 99. Thus, where an easement has been created but no occasion has arisen for its use, the owner of the servient tenement may fence the land and this will not be deemed adverse until such time as the need for the right-of-way arises and the owner of the dominant tenement demands that the easement be opened and the servient tenement owner refuses to do so. City of Edmond v. Williams (Wash. App. 1989), 774 P.2d 1241, 1244, citing Castle Assocs. v. Schwartz (N.Y.1978), 407 N.Y.S.2d 717, 723.

Prior to erecting the boundary fence between the parties’property, both tracts were apparently used as a common pasture. The District Court correctly concluded that the maintenance of the northern boundary fence was not an adverse use and that the newly-constructed fence between the properties at most impeded the use of the easement for a little less than two years. Therefore, the Turners’ claim that the easement was extinguished fails.

We hold the District Court correctly determined that defendants’ actions in keeping a fence in place across the northern boundary of Tract B1A-1 did not extinguish the easement over defendants’property.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON and TRIEWEILER concur.

JUSTICE GRAY

specially concurring.

I specially concur in the Court’s opinion. My disagreements and concerns over the Court’s approach were set forth fully and recently in my dissent in Bache v. Owens (Mont. 1994), 883 P.2d 817, 51 St.Rep. 1001. They need not be repeated here; suffice it to say that those disagreements and concerns have not decreased.

Having failed to persuade a majority of the Corut of my views in Bache, however, that decision is now the applicable law. For that reason, and that reason alone, I specially concur in the Court’s opinion in this case.


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DUANE STUIT, Defendant and Appellant.
    No. 94-228.
    Submitted on Briefs September 22, 1994.
    Decided December 6, 1994.
    51 St.Rep. 1238.
    268 Mont. 176.
    885 P.2d 1290.

      For Appellant: MarkT. Errebo, Deputy Public Defender, Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Patricia Jordan, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Marcia Good Sept, Deputy County Attorney, Billings.
   JUSTICE HUNT

delivered the Opinion of the Court.

Duane Stuit was found guilty of four counts of sexual intercourse without consent of a minor in the Thirteenth Judicial District Court, Yellowstone County. Stuit moved for a new trial on the grounds that the prosecutor made a comment in her opening statement which should have allowed the defense to introduce evidence of the victim’s previous history of sexual abuse. The District Court prohibited the defense from introducing such evidence at trial. The District Court denied the motion for a new trial and Stuit appeals. We affirm.

We frame the issues on appeal as follows:

1. Did the prosecutor’s comment during opening statements open the door to testimony regarding the victim’s history of prior sexual abuse?

2. Was the defendant prejudiced by the prosecutor’s comment during opening statements?

3. Did the District Court properly deny the defendant’s motion for a new trial?

On December 26, 1992, a Billings City Police Officer, Mark Keyes, responded to a domestic disturbance call at the residence where Stuit lived with the mother of S.M., a minor. The police placed Stuit under arrest for assault or domestic abuse and placed him in the Yellowstone County Detention Facility. Officer Keyes then returned to the residence to take an additional report. When he returned, S.M., her mother, her brother, and another person were at the house.

While Officer Keyes was interviewing the mother, S.M. volunteered to him that she had been sexually abused by Stuit earlier that evening. Officer Keyes gathered more information from S.M. regarding the alleged sexual abuse and filed an initial report. Officer Keyes referred the initial report to the detective division for follow-up investigation. The Department of Family Services removed S.M. from the home, and Stuit was subsequently charged by information with four counts of sexual assault without consent and one count of witness tampering.

Prior to trial, the State filed a motion in limine pursuant to Montana’s rape shield provisions under § 45-5-511, MCA, to exclude evidence that S.M. had been sexually assaulted by another person prior to the alleged incidents with Stuit. Counsel met in the judge’s chambers before trial to argue the motion. The transcript of the pretrial proceedings reveals that defense counsel stated:

We agree the Rape Shield Statute prevents us from bringing [S.M.’s prior sexual abuse] up in our case in chief, however, we will notify the court and counsel that we intend to bring that up if the door is opened. We do feel especially medical personnel can open that door, and we feel — our position is that her knowledge of the sexual abuse — of sex itself can open that door through the testimony of the doctor, which is going to be offered here.
We made another motion in limine to keep out the testimony of [Dr. Johnson. If that motion is denied,] however, that testimony let’s [sic] in the doctor’s testimony that the child was honest; that she knew about things about sexual abuse, it’s obvious that she could have gotten that information from her prior perpetrator, so we feel that if the doctor testifies to that, that opens the door and we should be able to mention that, because certainly that is something that obviously we would like to have in evidence, but we are not going to go against the Rape Shield Statute.

(Emphasis added). The State responded:

In response to his arguments that were just made, all of the cases ... that is not admissible to impute knowledge of sexual abuse, simply isn’t a way to get around the Rape Shield Statute.
I think the defense is trying to set up a way itself to violate the Rape Shield Statute through [D]octor Johnson. The state is not going to ask her and can’t ask her, “Do you think [S.M.] is being truthful”?

The District Court then stated, “That certainly would be my ruling. You can’t open the door. If you try, there [are] going to be some repercussions, I can assure you.”

The State then explained that the defendant might try to personally testify regarding S.M.’s prior sexual abuse. The State argued that such testimony would not be admissible. The District Court told defense counsel to instruct the defendant that such testimony “is not permissible, and that there can be other sanctions imposed if he attempts it.” The District Court then granted the State’s motion in limine to prohibit evidence and testimony regarding S.M.’s prior sexual abuse.

At trial, the prosecutor made the following comments in her opening statement:

During this trial you’re going to find [S.M.] got to look back on childhood and get [sic] to remember a mom, as she will tell you, who was in the same bed with her when this man sexually abused her; while the person who was supposedly acting as her father, took away her innocence through sexual acts most consenting adults don’t even engage in.

Neither party made any objections during the other side’s opening statement. At the close of defense counsel’s opening statement, the State asked to approach the bench. Counsel for both parties approached and then met with the judge in chambers.

The transcript reveals that a lengthy discussion took place in chambers. The State expressed its concern over defense counsel’s opening statement, contending that he impermissibly mentioned S.M.’s prior sexual abuse. Defense counsel argued that the State’s reference to S.M.’s innocence, in the context of this case, meant sexual innocence, and therefore, opened the door for testimony regarding S.M.’s prior sexual abuse.

The court then stated:

[W]hat I couldn’t quite understand is why there was no objection from the defense the moment that remark was made. Now the state apparently has got some objection to something you said, yet, there was no objection.

The attorneys attempted to explain their reasons for not objecting in a timely manner. The State argued that it did not want to call undue attention to defense counsel’s mention of prior sexual abuse. Defense counsel stated that he had practiced in another state and did not think it was proper to object during the middle of opening statements. The District Court berated both sides for arguing during their opening statements and for failing to make timely objections. The District Court stated:

You have got to make the objection. If you don’t, then the jury has already been tainted. I can’t direct them to disregard it. Whole thing becomes moot.
You’re going to have to make the objection at the time so that we can handle it then, not come in chambers later in the day.

The District Court finally told the State, “If you’re going to open the door, you came dangerously close to doing that.” However, the court concluded that “I’m not going to make a ruling [that] she opened the door at this time.”

At trial, S.M. testified that during nine or more months when she was nine years old, Stuit sexually abused her approximately three times a week. S.M. testified that Stuit put his fingers and tongue into her vagina, put his penis into her mouth and ejaculated, and put his penis into her rectum. The State additionally called Dr. Linda Johnson and several law enforcement personnel, including Officer Keyes. No physical evidence of sexual abuse was produced by the State. The defense called two witnesses in addition to Duane Stuit. Stuit took the stand and denied committing the alleged acts.

The jury returned guilty verdicts on all four counts of sexual intercourse without consent and a not guilty verdict on the witness tampering count. Stuit moved the District Court for a new trial on the grounds that the prosecutor made an improper comment during opening statements. Both parties submitted briefs. The District Comb denied the motion and issued an order and memorandum on December 17,1993. Stuit appeals the denial of his motion for a new trial.

ISSUE 1

Did the prosecutor’s comment during opening statements open the door to testimony regarding S.M.’s history of prior sexual abuse?

The standard of review of discretionary district court rulings is an abuse of discretion standard, and we will affirm the district court’s ruling absent a showing of clear error. State v. Andersen (1993), 260 Mont. 354, 358, 860 P.2d 115, 118.

In its memorandum denying Stuit’s motion for a new trial, the District Court stated:

Had counsel for the defendant made prompt objection to the prosecutor’s statement, requesting either that it be stricken and the jury instructed to disregard it, or for a mistrial, the court would have been able to make a ruling. Moreover, defense counsel did not request such a ruling from the court, even in the hearing in chambers. As shown by the transcript of the hearing in chambers, counsel was more concerned with obtaining a ruling from the court to the effect that the remark had opened the door to evidence of the victim’s past sexual abuse. This, the court denied. (See page 17 of transcript.)
In essence, the defendant’s motion is an attempt to get the court to reconsider its ruling denying counsel the opportunity to put in evidence the victim’s past sexual abuse.
Section 46-20-104(2), MCA, provides that
[u]pon appeal from a judgment, the court may review ... any alleged error objected to which involves the merits or necessarily affects the judgment. Failure to make a timely objection during trial constitutes a waiver of the objection except as provided in 46-20-701(2).

Section 46-20-701(2), MCA, states:

Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. No claim alleging an error affecting jurisdictional or constitutional rights may be noticed on appeal, if the alleged error was not objected to as provided in 46-20-104, unless the defendant establishes that the error was prejudicial as to his guilt or punishment and that.
(a) the right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its application;
(b) the prosecutor, the judge, or a law enforcement agency suppressed evidence from the defendant or his attorney that prevented the claim from being raised and disposed of; or
(c) material and controlling facts upon which the claim is predicated were not known to the defendant or his attorney and could not have been ascertained by the exercise of reasonable diligence.

(Emphasis added.)

We have stated that where a criminal defendant fails to make a contemporaneous objection to the prosecution’s characterization of the facts during trial, this Court is precluded “from addressing the issue under § 46-20-104(2), MCA, unless the criteria under § 46-20-701(2), MCA, can be met or the comments create an exception to the ‘plain error’ doctrine.” State v. Arlington (1994), 265 Mont. 127, 157, 875 P.2d 307, 325 (citing State v. Rodgers (1993), 257 Mont. 413, 417, 849 P.2d 1028, 1031). A contemporaneous objection is one which is made at trial in a timely manner and upon specific grounds, which appears on the record, and which is made as soon as the ground for the objection becomes apparent. See Kizer v. Semitool, Inc. (1991), 251 Mont. 199, 207, 824 P.2d 229, 234; Story v. City of Bozeman (1993), 259 Mont. 207, 217, 856 P.2d 202, 208.

Stuit asserts that “[a]fter the close of opening statements by both sides, Stuit’s counsel objected to the [prosecutor’s] remarks” regarding S.M.’s innocence. Nowhere in the transcript, however, is an explicit statement made by defense counsel objecting to the prosecutor’s remarks regarding S.M.’s innocence and stating the grounds for such objection. In fact, the record reveals that the discussion between counsel and the judge in chambers centered on the State’s objection to defense counsel’s opening statement. Stuit further asserts that the District Court “acknowledged [that] the remarks were objectionable.” While the District Court stated to the prosecutor, “If you’re going to open the door, you came dangerously close to doing that,” the court concluded that “I’m not going to make a ruling [that] she opened the door at this time.” Stuit’s assertion that the court “acknowledged” the prosecutor’s remarks as “objectionable” is a mischaracterization of the record.

We conclude that Stuit’s counsel failed to make a contemporaneous objection to the prosecutor’s comment during opening statements, that Stuit does not meet the criteria under § 46-20-701(2), and therefore, the doctrine of plain error is inapplicable in this case.

Stuit further argues that the reason his

counsel did not move the court for a mistrial or to instruct the jury to disregard the statement [was] that neither [option] was the relief which was proper at the time. ... A new trial ... was not in Stuit’s best interest at the time of the objection because it would only have the effect of putting Stuit back in the same position as he was at the start of the trial, namely, unable to explain to the jury how S.M. could be making these charges.

In essence, the defense chose not to object because it hoped that the prosecution had opened the door for the defense to introduce evidence “to explain to the jury how S.M. could be making these charges,” that is, to explain that she had been sexually abused by another person in the past.

Where the defendant is charged with a sex crime, § 45-5-511, MCA, governs the admissibility of evidence concerning the sexual conduct of the victim. Subsections (2) and (3) of § 45-5-511, MCA, are referred to as the “rape shield” provisions and provide as follows:

(2) No evidence concerning the sexual conduct of the victim is admissible in prosecutions under this part except evidence of the victim’s past sexual conduct with the offender or evidence of specific instances of the victim’s sexual activity to show the origin of semen, pregnancy, or disease which is at issue in the prosecution.
(3) If the defendant proposes for any purpose to offer evidence described in subsection (2), the trial judge shall order a hearing out of the presence of the jury to determine whether the proposed evidence is admissible under subsection (2).

The standard of review for the application of the rape shield provisions is a manifest abuse of discretion standard. State v. Howell (1992), 254 Mont. 438, 445, 839 P.2d 87, 91, cert. denied (1993), 113 S. Ct. 1862, 123 L.Ed.2d 483; State v. Van Dyken (1990), 242 Mont. 415, 435, 791 P.2d 1350, 1362-63, cert. denied (1990), 498 U.S. 920, 111 S.Ct. 297, 112 L.Ed.2d 251.

It is well-settled law that the prior sexual abuse of the victim is inadmissible under the rape shield provisions. Howell, 839 P.2d at 92; State v. Rhyne (1992), 253 Mont. 513, 519, 833 P.2d 1112, 1116; State v. Van Pelt (1991), 247 Mont. 99, 103, 805 P.2d 549, 552; State v. Kao (1990), 245 Mont. 263, 269-70, 800 P.2d 714, 717-18. We have held that

a defendant’s constitutional right to confront witnesses is not violated by the exclusion of evidence of the victim’s prior sexual abuse unless the victim’s accusations or allegations of prior sexual abuse have been proven to be false or are admitted to be false.

Rhyne, 833 P.2d at 1116; Howell, 839 P.2d at 91; Van Pelt, 805 P.2d at 552. Stuit does not allege that S.M.’s allegations of prior sexual abuse are false.

Stuit argues:

[O]bviously, in a case where a 10 year old’s testimony is the only evidence for the state and that child has been a victim of the same crime before, any implication by the prosecutor that the defendant was the only abuser is improper.

In Van Pelt, 805 P.2d at 552, this Court rejected a similar argument:

Appellant cannot argue ... that he does not seek to attack [the child]’s credibility but rather seeks to demonstrate that [the child] could have gained her knowledge of sex outside of her contact with defendant. The major purpose in appellant’s attempt to bring into evidence the incidents of prior abuse is to attack [the child]’s credibility. Whether under the guise of showing the jury how [the child] may have obtained her knowledge of sex, or not, the fact is appellant wished to convince the jury that [the child] fabricated the charges against him. The only way the jury could have found appellant not guilty ... would be by finding that [the child]’s allegations were false. This is not to say that [the rape shield provisions] provide]] an impenetrable wall of protection for [the child] and does not allow for her credibility to be questioned or attacked. The Montana Rules of Evidence certainly allow the credibility of a witness to be attacked, however, these rules are not without limitation. See Rule 608, M.R.Evid. Excluding evidence of alleged specific instances of prior abuse was within the discretion of the District Court.

(Emphasis added.) AccordNbo, 800 P.2d at 718 (rape shield provisions provide no exception to warrant admission of evidence of prior sexual abuse).

We conclude that the District Court properly ruled that the prosecutor’s comment did not open the door to testimony regarding S.M.’s prior sexual abuse. The District Court did not manifestly abuse its discretion in prohibiting under the rape shield provisions testimony regarding S.M.’s prior sexual abuse.

ISSUE 2

Was the defendant prejudiced by the prosecutor’s comment during opening statements?

In Rhyne, 833 P.2d at 1120, this Court rejected a defendant’s claim of prosecutorial misconduct where the prosecutor, in jury voir dire, asked whether the panelists “would feel uncomfortable telling a group of people the details of his or her first sexual experience.” The defendant in that case argued on appeal that the prosecutor’s question implied to the jury panelists that the alleged acts of incest were the child’s first sexual experiences. The defendant argued that “the prosecutor’s comment denied him a fair trial because he was not allowed to present any ‘possible explanation for [the child’s] motives, biases and prejudices other than his guilt to the offense charged.” Rhyne, 833 P.2d at 1120. In rejecting Rhyne’s argument, we cited State v. Miller (1988), 231 Mont. 497, 507, 757 P.2d 1275, 1281, in holding that

“[i]t has long been the law of this state that prejudice in a criminal case will not be presumed, but must appear from the denial or invasion of a substantial right from which the law imputes prejudice.”

Rhyne, 833 P.2d at 1120. In Rhyne, we concluded that the defendant failed to demonstrate that he was prejudiced by the prosecutor’s comment during voir dire.

Our review of the record reveals that the prosecutor’s comment did not suggest that the alleged acts were S.M.’s first sexual experiences:

[S.M.] doesn’t care much for girl stuff. Kind of a tomboy at heart. Most of us get to look back on our childhoods; our families with love and affection. During this trial, you’re going to find [S.M.] got to look back on her childhood and get [sic] to remember a mom, as she will tell you, who was in the same bed with her when this man sexually abused her; while the person who was supposedly acting as her father, took away her innocence through sexual acts most consenting adults don’t even engage in.
When we look back to our childhoods, when we were nine, we get to remember things like school, picnics, softball games, being tucked into bed at night, being read bedtime stories by parents who loved us.

Moreover, unlike defense counsel in Rhyne, defense counsel in the instant case failed to object at the time of the comment. Stuit failed to request that the District Court admonish the jury, nor did he request a mistrial. We conclude that Stuit has failed to demonstrate that he was prejudiced by the prosecutor’s comment during her opening statement and that he was not denied a fair trial as a result of the prosecutor’s comments.

ISSUE 3

Did the District Court properly deny Stuit’s motion for a new trial?

“The decision to grant or deny a new trial is within the sound discretion of the trial judge and will not be disturbed absent a showing of manifest abuse of that discretion.” Jim’s Excavating Services, Inc. v. HKM Associates (1994), 265 Mont. 494, 512, 878 P.2d 248, 259. For the reasons enunciated under Issue 1, we conclude that the District Court did not abuse its discretion and properly denied Stuit’s motion for a new trial.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, NELSON and TRIEWEILER concur.


author: JUSTICE TRIEWEILER

text:
    IN RE THE MARRIAGE OF PAMELA ELLEN LONG, n/k/a PAMELA ELLEN MALINIAK, Petitioner and Respondent, and EARL ROBERT LONG, Respondent and Appellant.
    No. 94-312.
    Submitted on Briefs November 3, 1994.
    Decided December 6, 1994.
    51 St.Rep. 1252.
    268 Mont. 187.
    885 P.2d 533.
    For Appellant: C. Mark Hash, Hash, O’Brien & Bartlett, Kalispell.
    For Respondent: Mark R. Sullivan, Attorney at Law, Whitefish.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

On September 14,1993, petitioner Pamela Maliniak filed a motion to modify the decree dissolving her marriage to respondent Earl Long, and a motion to have him held in contempt in the District Court for the Eleventh Judicial District in Flathead County. On March 16, 1994, based on a hearing which Earl did not attend, the court entered its order in which it found Earl in contempt of court; ordered that he pay past due child support; maintain health insurance for the children; and pay Pamela’s attorney fees. Earl moved the court, pursuant to Rule 60, M.R.Civ.R, to set aside, alter, or amend the court’s judgment. The District Court failed to rule on this motion within 45 days, so it was deemed denied. Earl appeals from the court’s order and denial of his motion. We vacate the order of the District Court and remand for further proceedings.

We find the following issue dispositive on appeal:

Does the fact that no record was made of the March 16, 1994, hearing prohibit effective appellate review which requires reversal of the order?

FACTUAL BACKGRO UND

Earl and Pamela’s marriage was dissolved on April 16,1985, in the Eleventh Judicial District Court for Flathead County. Because Earl was unemployed at the time of the dissolution, the court’s findings and conclusions provided that he pay $100 per month as child support for the parties’ three children. The decree also included a condition that Earl report to the court within two weeks after he obtained employment so the court could reevaluate his child support obligation. In approximately December 1985, Pamela began receiving Aid for Families with Dependent Children. Therefore, Earl was required to make future payments to the Child Support Enforcement Division. Both parties remarried and Earl moved to Seattle, where, according to Pamela’s affidavit, he obtained employment with Boeing, which he did not report to the court.

On September 14, 1993, Pamela moved to modify the decree to amend the support obligation pursuant to the Montana Child Support Guidelines, requested that the court find Earl in contempt for failing to abide by the dissolution decree, and requested that Earl be required to maintain health and medical insurance for the three children. Pamela’s affidavit in support of her motion alleged that Earl had been employed by Boeing for at least five years preceding her motion.

Pamela’s initial motion was personally served on Earl with a notice that a hearing would be held on October 12, 1993. The court did not issue a summons or order to show cause. The hearing date was extended and Pamela filed another notice that the hearing was scheduled for March 16,1994. The notice did not include a certificate indicating it was personally served on Earl; rather, it was sent to Sally Rees, a Seattle attorney. Pamela later submitted an affidavit which stated that notice was mailed to Earl’s personal address. Earl did not attend the hearing but sent a response along with financial information directly to the court. The court did not consider Earl’s information because Earl did not send a copy to Pamela’s attorney.

The court held the hearing in Earl’s absence. Based on the evidence presented, the court held that Earl owed $32,044 for past due child support; he must maintain health insurance for the children; the initial decree is modified to require that he pay $756 per month for child support in the future; and Earl must pay Pamela’s attorney fees and costs. No record was made of this hearing.

On April 1, 1994, Earl moved the District Court pursuant to Rule 60, M.R.Civ.P., to set aside, alter, or amend the court’s March 16,1994, order. Pamela filed her objection on April 15, 1994, and the matter was argued on April 25, 1994. Earl’s motion was not ruled on within 45 days so it was deemed denied as a matter of law.

DISCUSSION

Does the fact that no record was made of the March 16,1994, hearing prohibit effective appellate review which requires reversal of the order?

Our standard of review for findings of fact in cases where child support obligations are modified is whether the District Court abused its discretion. In re Marriage of Barnard (1994), 264 Mont. 103, 106, 870 P.2d 91, 93. Earl argues that, absent a record of the proceedings, he is unable to challenge the court’s order. In addition, Earl claims that this Court is unable to effectively review the evidence upon which the court’s modification order is based. Pamela responds that a transcript is not required because the District Court had uncontroverted evidence that Earl failed to notify the court of his employment. Pamela relies on a portion of the transcript from the hearing to consider Earl’s Rule 60, M.R.Civ.P., motion. Earl’s attorney asked the court what evidence it relied on in support of its findings. The court responded, “Undoubtedly it was from a non-contested representation by the petitioner.”

In Malley v. Malley (1980), 190 Mont. 141, 619 P.2d 531, we vacated a district court’s order because no transcript was made of the hearings. In Malley, a petition for dissolution was filed and two hearings were held. The husband appeared pro se and, on appeal, sought to challenge the court’s property distribution decree. The wife moved to dismiss his appeal because he failed to cite evidence in support of his appeal. We denied the motion because no record was made of the proceedings below. “We should not have to remind a successful party to litigation in District Court, that the judgment obtained is placed in jeopardy where there is no record of the proceedings.” Malley, 619 P.2d at 532.

In Malley, we could not effectively review the husband’s contentions without a trial record. In Matter of Geary (1977), 172 Mont. 204, 207, 562 P.2d 821, 823, we noted the necessity of a trial record:

Without a transcript, this Court is placed in the position of attempting to reconstruct a record on appeal. Such a task being often impossible and unnecessary, the right to appeal becomes illusory, a right without substance.

We have previously reversed a contested custody decision because the hearing was not recorded. In re Guardianship of Gullette (1977), 173 Mont. 132, 566 P.2d 396, overruled on other grounds by McDowell v. McDowell (1994), 263 Mont. 252, 868 P.2d 1250. In Gullette, we noted that district courts are, by statute, courts of record, which implies that a record will be made of the proceedings. See § 3-1-102, MCA; Gullette, 566 P.2d at 397.

No record was made of the hearing which served as the basis for the District Court’s order. The District Court file does not indicate why a court reporter was not present. Nonetheless, because no record was made, Earl is denied effective appellate review. The court modified Earl’s support obligation but we cannot determine if its modification was properly based on the Montana Child Support Guidelines or what change in circumstances justified modification. See § 40-4-208(2)(b)(i), MCA. Because there is no record for us to review, the District Court’s order is vacated and this case is remanded for a hearing on the merits of Pamela’s motion. Because we reverse and remand on this basis, we do not address the merits of the other issues raised on appeal.

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


author: JUSTICE TRIEWEILER JUSTICE WEBER

text:
    CURTIS V. UHLER, Plaintiff and Appellant, v. JON E. DOAK, Defendant and Respondent.
    No. 93-651.
    Submitted September 13, 1994.
    Decided December 13, 1994.
    51 St.Rep. 1315.
    268 Mont. 191.
    885 P.2d 1297.

      For Appellant: Larry Jent (argued), Williams, Jent & Dockins, Bozeman.
    For Respondent: George C. Dalthorp (argued) and Neil G. Westesen, Crowley, Haughey, Hanson, Toole & Dietrich, Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Plaintiff Curtis V. Uhler filed his complaint in the District Court for the Thirteenth Judicial District in Yellowstone County on June 1, 1992. He alleged that during 1989, defendant Jon E. Doak, an attorney, had performed legal services for him negligently, and that as a result, he sustained damages. Doak moved for dismissal of the complaint by summary judgment based on his contention that it was barred by the statute of limitations found at § 27-2-206, MCA. The District Court granted Doak’s motion and Uhler appeals. We reverse the judgment of the District Court.

The issue on appeal is whether the statute of limitations for an action based on the negligence of an attorney can begin to run before the cause of action accrues.

FACTUAL BACKGROUND

In May 1986, Curtis V. Uhler went to work for Billings Orthopedic, Inc., as manager of its orthotics division. The principal shareholders in the corporation were Douglas and Linda Hakert.

On December 22, 1986, Uhler and the Hakerts signed a formal shareholders agreement pursuant to which the Hakerts agreed to sell 5500 shares (one-third of the total number) to Uhler. The value assigned to the shares was $150,000. On that same date, the parties signed an employment agreement in which the corporation agreed to pay Uhler $45,000 a year, plus an annual bonus based on a percentage of the orthotic division’s profits. However, a provision in the employment agreement provided that the bonus could be applied by the corporation to Uhler’s debts.

On May 28, 1987, Uhler and the Hakerts signed a formal stock purchase agreement which set forth the terms of his payment for the corporation’s stock. He agreed to pay $30,000 at the time the agreement was executed, and also provided a promissory note which obligated him to monthly payments of $2520.13, and interest on the balance due at the rate of nine and one-half percent per annum. The balance of the $150,000 purchase price was due five years from the date of the agreement.

The shareholder agreement which had been executed by the parties in December of 1986 provided that in the event of Uhler’s termination of employment from the corporation, the corporation would buy back his shares of stock at a price to be calculated based on a formula set forth in the agreement.

During the course of the parties’ business relationship, a dispute arose regarding bonuses, which Uhler contended were due him, but which the Hakerts contended could be properly credited against his obligation under the stock purchase agreement. Uhler became concerned about the Hakerts’ use of corporate funds for personal expenses, and a lack of cash with which to pay suppliers on a timely basis; andalsoobjectedto a number ofthe Hakerts’ business practices which he felt reflected negatively on his professional reputation. Therefore, by April 1989, Uhler decided it would be in his best interest to terminate his business relationship with the Hakerts.

On May 11,1989, Uhler first met with Jon Doak. He retained him as an attorney and consulted him for advice regarding termination of his employment relationship and what rights he had under the shareholders agreement to have his stock repurchased by the corporation. By that time, he had invested approximately $90,000 in the stock; he owed a balance of approximately $60,000 for the stock; and the value of the stock was approximately $210,000. According to Uhler’s deposition testimony, he told Doak that he “wanted out of this deal, and [he] wanted [his] money back.”

Uhler and his wife, Cheryl, met with Doak on five occasions in May 1989, and on approximately seven occasions in June 1989, to discuss Uhler’s options and negotiate the terms of the termination of his employment with Billings Orthopedic, Inc.

Doak’s initial advice to Uhler, which the parties agree was communicated by at least May 16, was that to compel the corporation to buy back his stock would require a lawsuit which would be lengthy and very expensive, and that the corporation may not have sufficient assets with which to satisfy any ultimate judgment. Therefore, it was Doak’s recommendation that the effort to recover Uhler’s investment in the corporation’s stock was not a viable alternative.

Both Mr. and Mrs. Uhler were dissatisfied with Doak’s initial advice. Therefore, Doak continued to gather information which would either confirm or disprove his initial impression. His billing notes indicate that from May 19 through June 7 he met with the Hakerts’ accountant and Uhler’s accountant, or talked to them by telephone, on three occasions. During that time, he also gathered financial statements for the corporation and obtained copies of the escrow documents which reflected Uhler’s payments to the corporation for his stock purchase.

Armed with the results of his investigation, Doak and Uhler met with the Hakerts and their accountant on June 7. As a result of that meeting, Doak apparently renewed his recommendation that Uhler not attempt to compel the corporation to buy back its stock as part of any termination arrangement.

On June 14, Doak drafted a letter to the Hakerts from Uhler which set forth terms for termination which would be agreeable to Uhler. The letter was dated, signed, and sent by Uhler on June 16, 1989. In the letter, the Hakerts were advised that Uhler was resigning from his employment with Billings Orthopedic, Inc., effective Friday, June 30, 1989. He stated that he expected to be paid his salary through June 30, but offered to transfer all of his stock to the Hakerts in exchange for a release from any further obligation under the stock purchase agreement dated May 28,1987. He also agreed to waive any claim for bonuses which accrued prior to June 30 but had not been paid. In the letter, Uhler specifically offered to release the Hakerts and the corporation from any obligation to repurchase his stock under the terms of the shareholder agreement dated December 22, 1986.

The terms offered in Uhler’s June 16 letter were apparently acceptable to the Hakerts, and a termination agreement setting forth those basic terms was executed by the parties on June 22, 1989.

On some date subsequent to the termination of his attorney/ client relationship with Doak, Uhler concluded that the termination agreement had been ill-advised, and retained other counsel. On June 1, 1992, this complaint was filed in which Uhler alleged that Doak was negligent in his representation of and advice to Uhler, and that as a result of that negligence, Uhler lost his stock, his accrued bonuses, and the entire value of his investment in Billings Orthopedic, Inc.

Doak appeared and answered the complaint. He admitted that he had represented Uhler through June 1989, but denied that he did so negligently.

Following the depositions of the parties, Doak moved the District Court to dismiss the complaint against him based on his argument that it was barred by the statute of limitations set forth at § 27-2-206, MCA.

In support of his motion, Doak alleged that his office notes establish that he met with the Uhlers on May 16,1989, and gave them the basic advice about which they now complain. He argued that since that advice was basically unchanged throughout the remainder of his representation, Uhler’s cause of action, if any, arose on that date because that was the date on which he first had knowledge of the facts essential to his cause of action. In other words, it was Doak’s position, with which the District Court agreed, that the statute of limitations applicable to Uhler’s cause of action began to run when his advice was initially given, and therefore, had expired by June 1,1992, which was more than three years from that date. In support of his position, Doak relied on this Court’s decisions in Rouane v. Lynaugh (1993), 259 Mont. 171, 855 P.2d 114; Boles v. Simonton (1990), 242 Mont. 394, 791 P.2d 755; Peschel v. Jones (1988), 232 Mont. 516, 760 P.2d 51; and Schneider v. Leaphart (1987), 228 Mont. 483, 743 P.2d 613.

The District Court held that Uhler’s claim was based on advice given by Doak prior to June 1, 1989, and that according to the case law relied on by Doak, discovery of damages was not a prerequisite to the running of the statute of limitations. The District Court did not address whether damages necessarily had to be incurred before the statute of limitations began to run.

DISCUSSION

The issue on appeal is whether the statute of limitations for an action based on the negligence of an attorney can begin to run before the cause of action accrues.

Summary judgment is proper only when no issue of material fact exists and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. Our review of a summary judgment order is de novo. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. We review a summary judgment utilizing the same criteria applied by the district court under Rule 56. Minnie, 849 P.2d at 214.

We conclude that the District Court erred when it held that the period of limitation within which a cause of action must be commenced begins to run before the cause of action accrues. Section 27-2-102(2), MCA, provides that:

Unless otherwise provided by statute, the period of limitation begins when the claim or cause of action accrues. Lack of knowledge of the claim or cause of action, or of its accrual, by the party to whom it has accrued does not postpone the beginning of the period of limitation.

Section 27-2-102(l)(a), MCA, provides that:

A claim or cause of action accrues when all elements of the claim or cause exist or have occurred, the right to maintain an action on the claim or cause is complete, and a court or other agency is authorized to accept jurisdiction of the action ....

The complaint in this case set forth a claim of professional negligence by an attorney. We have previously set forth the necessary elements for such a claim. In Grenz v. Prezeau (1990), 244 Mont. 419, 426, 798 P.2d 112, 116, we noted that:

In a malpractice action, the plaintiff must prove that an attorney-client relationship existed and that the act constituting negligence or breach occurred. The plaintiff must show that “but for” such negligence the client would have been successful in the prosecution or defense of the action. Lorash v. Epstein (1989), 236 Mont. 21, 24, 767 P.2d 1335, 1337. Finally, the plaintiff must establish that the negligent act proximately caused his damages. Thelen v. City of Billings (1989), 238 Mont. 82, 85-86, 776 P.2d 520, 523-24.

Stated more simply, we have held that:

[I]n order to establish a cause of action for legal malpractice, there must be a showing that the attorney owed his client a duty of care, that there was a breach of this duty by a failure to use reasonable care and skill, and that the breach was the proximate cause of the client’s injury and resulted in damages.

Merzlak v. Purcell (1992), 252 Mont. 527, 529, 830 P.2d 1278, 1279-80.

Uhler’s claim is that as a result of negligent advice given to him during May and June 1989, he was led to believe that it was in his best interest to sign a resignation letter which was sent on June 16, and a termination agreement, which was executed on June 22. His contention is that as a result of the terms set forth in that letter and agreement, he waived rights to bonuses and repurchase of his stock, and sustained substantial monetary damages. Prior to publication of the letter and execution of the agreement, he sustained no damages, and therefore, had no cause of action for professional negligence against Doak. Since his cause of action had not accrued, according to § 27-2-102(1), MCA, sooner than June 16, the statute of limitations did not commence to run pursuant to subparagraph (2) earlier than that date.

Since at least some of our prior case law is arguably inconsistent with this result, the following discussion is for the purpose of summarizing our decisions in this area of the law and clarifying, distinguishing, or reversing them where necessary.

The seminal language which discusses the statute of limitations for attorney negligence, and upon which subsequent cases are based, is found in Schneider v. Leaphart (1987), 228 Mont. 483, 743 P.2d 613. In that case, the defendant attorney prepared a property settlement agreement which became part of a dissolution decree entered on November 3, 1979. The agreement provided for payment of maintenance over a period of time which the husband learned, on December 4, 1981, was longer than necessary. He attempted to negotiate a modification of the agreement with his wife, but was unsuccessful. Therefore, the husband filed a claim against his attorney on March 27,1985, in which he alleged that the attorney had been negligent by advising him that the longer schedule of maintenance payments was necessary for tax purposes. The complaint was filed more than three years after the decree was entered, and more than three years after the husband obtained advice from his accountant that the longer maintenance schedule was unnecessary for tax purposes.

The complaint was dismissed by summary judgment based on the bar of the statute of limitations set forth at § 27-2-206, MCA. On appeal, the plaintiff alleged that the statute of limitations did not begin to run until he “discovered” all the elements of his claim, including damages. He alleged that since he did not discover his damages until he learned that the maintenance award was a lien on his property in February of 1984, his claim was timely. We referred to the position being advocated by the plaintiff in that case as the “damage rule,” and held that under our statute of limitations, the time within which to file a complaint is not tolled by failure to discover damages. We held that the only tolling provided for in our statute was by the failure to discover the conduct which caused damages. However, that opinion had nothing to do with a situation where damages have not even been sustained. In fact, we held that the plaintiff’s damages were sustained when the decree of dissolution was entered and became an enforceable judgment and that he was charged, at least, with constructive knowledge of his damage at that time. We held that he had actual knowledge of his damage no later than the date on which he received the opinion from his accountant. Schneider is not authority for the conclusion arrived at by the District Court in this case.

In Peschel v. Jones (1988), 232 Mont. 516, 760 P.2d 51, the plaintiff hired his attorney to assist him with financing difficulties in a construction project he was undertaking.- As a result, his attorney-prepared an agreement on November 10, 1979, which, according to the plaintiff, was negligently prepared and caused additional construction costs. The plaintiff sued his attorney on November 14,1985, for professional negligence. The district court dismissed the plaintiff’s claim based on the statute of limitations. However, on appeal he contended that while he knew of all the facts which were the elements of his claim, he did not know that the acts constituted negligence until an unfavorable district court judgment was entered against him on January 25,1984. For purposes of this case, the important distinction is that the plaintiff in that case did not allege that necessary elements of his claim had not occurred prior to that date. We reaffirmed our rejection of the “damage rule,” which postpones running of the statute until “discovery” of a plaintiff’s damages. We did not reject § 27-2-102(2), MCA, which postpones running of the statute until a cause of action accrues. Therefore, our holding in Peschel is not inconsistent with our holding in this case.

Our first seeming departure from the statutory rules upon which this decision is based occurred in Boles v. Simonton (1990), 242 Mont. 394, 791 P.2d 755. In that case, the plaintiffs hired the defendant attorney to prepare a contract for deed to cover the purchase of a service station in a small town in eastern Montana. The contract was executed on September 22, 1978, and contained a default clause which allowed the seller to accelerate payments in the event of a late payment, and terminate the contract in the event that the balance was not paid on the accelerated due date. In the event they were unable to pay the balance on the contract, the buyers forfeited all rights under the contract. The plaintiffs had difficulty making payments under the contract in 1982 and 1983, more than three years after it was executed, the seller declared the entire balance due within 90 days, and when plaintiffs were unable to pay that amount, the property was repossessed.

In 1986, the plaintiffs sued Simonton based on their allegation that he had negligently drafted the contract by deleting a “saving clause” which would have allowed them to make up late payments prior to acceleration. However, the district court concluded that the cause of action accrued when the contract was signed, and dismissed the plaintiffs’ complaint based on the statute of limitations. On appeal, we correctly cited Burgett v. Flaherty (1983), 204 Mont. 169, 663 P.2d 332, for the principle that:

As a matter of law, what is critical in determining when a legal malpractice action accrues is knowledge of the facts essential to the cause of action, not knowledge of the legal theories upon which an action may be brought.

Burgett, 663 P.2d at 334 (citing McGee v. Weinberg (Cal. App. 1979), 97 Cal. App. 3d 798, 159 Cal. Rptr. 86).

According to the authorities previously cited, “the facts essential to the cause of action” included at least a breach of the attorney’s duty to use reasonable care, and damages as a proximate result of that breach. In other words, the plaintiffs in Boles could not have commenced a cause of action against their attorney at any time prior to their default under the contract because they had sustained no damage. If they had, their claim could have been appropriately dismissed. However, in spite of oar correct citation to the rule in Burgett, we went on to conclude in Boles that the plaintiffs were charged with knowledge of the contract’s content when they signed it, and that “the rule that the statute is not triggered until the client is damaged has been expressly rejected in Montana, as in conflict with the statute.” Boles, 791 P.2d at 759. We cited Schneider as authority for that conclusion.

In effect, we held that Boles’ cause of action was barred by the statute of limitations before it ever accrued, and misapplied our holding in Schneider. As mentioned previously, that case was not concerned with a fact situation where damages had not been sustained. The issue was whether the statute was tolled where damages had been sustained, but not yet discovered.

Our decision in Boles is inconsistent with our statutory law relating to statutes of limitations, and inconsistent with the prior decisions upon which it relied. The purpose of the three-year limitation found at § 27-2-206, MCA, is to bar stale claims against attorneys. The purpose is not to bar claims before they even arise. Therefore, to the extent that our decision in Boles is inconsistent with our holding in this case, our statutory laws, and our prior case law, it is reversed.

Finally, we decided Rouane v. Lynaugh (1993), 259 Mont. 171, 855 P.2d 114. In that case, plaintiffs were injured as a result of an accident which occurred while they were aboard an Eastern Airlines aircraft. They retained the defendant attorney to represent them, and he filed a complaint on their behalf on October 30, 1986. On November 30, 1987, the airline filed its answer and set forth the affirmative defense that the claim was barred by a two-year statute of limitations based on the Warsaw Convention. Shortly thereafter the plaintiffs retained another firm and terminated the services of their Montana attorney. Based on notice of the airline’s defense, and apparently on the advice of other counsel, they filed a complaint with the Commission on Practice on May 30, 1988, indicating that their Montana attorney may have “blown the statute of limitations.”

The plaintiffs’ claim against the airline was dismissed in Florida on October 3, 1988, and dismissed in Federal District Court in Montana on December 14, 1989, based on the bar of the statute of limitations. They then sued their Montana attorney on June 4,1991. However, that suit was dismissed based on the statute of limitations pertaining to claims of attorney negligence, and we affirmed the district court.

On appeal, the plaintiffs contended that they were not aware of their damages until the Florida court granted the airline’s motion for summary judgment on October 4, 1988, and therefore, that their action was timely. We affirmed the district court based on our conclusion that the plaintiffs had discovered their cause of action by at least May 30, 1988, when they wrote to the Commission on Practice, and therefore, that their claim filed more than three years later was barred by the statute of limitations.

Although we cited and relied on Boles in arriving at our conclusion in Rouane, Rouane is distinguishable from Boles, arid from the facts in this case. The elements of the Rouanes’ cause of action, if any, accrued when the time for filing their complaint against the airline expired sometime prior to October 30,1986. By that time, the statute had expired and the plaintiffs were barred from suing the airline. All the elements of the Rouanes’ claim against their Montana attorney existed, and therefore, the cause of action had accrued. The fact that some court had not formally dismissed their claim against the airline simply related to the issue of whether they had notice of their damage, not whether it had occurred. Therefore, our holding in Rouane is consistent with our decisions in Schneider, Peschel, and this case.

For these reasons, we conclude that Uhler’s cause of action against Doak did not accrue until June 16, 1989, at the earliest. This is the date on which Uhler first acted on Doak’s advice to his alleged detriment, and prior to this date, he had no cause of action as a matter of law. Therefore, we conclude that June 16,1989, is the earliest date from which the statute of limitation pertaining to Uhler’s claim could begin pursuant to § 27-2-102(2), MCA. The District Court’s order dismissing plaintiff’s claim by summary judgment is reversed and this case is remanded to the District Court for further proceedings consistent with this opinion.

JUSTICES HARRISON, HUNT, GRAY and NELSON concur.

JUSTICE WEBER

dissents as follows:

As stated in the majority opinion, the issue is whether the statute of limitation for an action against an attorney based on that attorney’s alleged professional negligence, begins to run before the cause of action accrues. The issue is stated in that manner because the majority opinion relies on § 27-2-102(2), MCA, which in substance provides that the period of limitation begins when the “cause of action accrues.” In addition it relies on § 27-2-102(l)(a), MCA, which provides that a cause of action accrues when all elements of the cause exist or have occurred. I disagree with the analysis of the issue before us.

I believe the issue is whether or not the cause of action is barred under the provisions of § 27-2-206, MCA, which applies to actions for legal malpractice only and states as follows:

Actions for legal malpractice. An action against an attorney licensed to practice law in Montana or a paralegal assistant or a legal intern employed by an attorney based upon the person’s alleged professional negligent act or for error or omission in the person’s practice must be commenced within 3 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the act, error, or omission ...

The majority opinion does not analyze the initial language of § 27-2-102(2), MCA, which provides:

Unless otherwise provided by statute, the period of limitation begins when the claim or cause of action accrues ... (Emphasis supplied.)

It is § 27-2-102(2), MCA, upon which the majority opinion relies when it concludes that the plaintiff’s cause of action did not accrue until June 16, 1989, when plaintiff first acted on defendant’s advice to his alleged detriment — prior to that date he had no cause of action as a matter of law. This analysis in the majority opinion has failed to consider the key wording in the statute upon which it relies — “unless otherwise provided by statute” the period of limitation begins when the cause of action accrues. In the case of actions for legal malpractice, there is a specific statute which otherwise provides. I therefore conclude that § 27-2-102(2), MCA, is specifically not applicable in this case.

Clearly, § 27-2-102(2), MCA, is a provision by the legislature which applies only when it has not otherwise been provided by statute. The legislature here has specifically provided otherwise by statute in enacting § 27-2-206, MCA, which sets the statute of limitation for actions for legal malpractice. I conclude there is no proper basis under which the majority opinion can rely on §§ 27-2-102(2) and 27-2-102(l)(a), MCA. I therefore disagree with both the analysis and the conclusion of the majority opinion.

I further point out that the majority opinion appears to have adopted “the damage rule” without specifically so stating. In the case of Boles v. Simonton (1990), 242 Mont. 394, 398, 791 P.2d 755, 757, this Court analyzed the occurrence rule, the damage rule and discovery rule in brief, stating:

... The dispositive issue in the present case is when the statute of limitations commenced to run.
In analyzing this issue, we note that traditionally the general rule has been that a cause of action for attorney malpractice accrues when the negligent act or breach occurs, not when it is discovered (the occurrence rule). 54 C.J.S. Limitations of Actions, § 172 (1987). Other theories include: 1) the statute of limitations begins to run when the client has sustained injury or damage (the damage rule)', 2) the statute begins to run when the negligent act is discovered or should have been discovered (the discovery rule). Annotation, “When Statute of Limitations Begins to Run upon Action Against Attorney for Malpractice” 32 ALR 4th 260 § 2 (1984).
Montana has statutorily adopted the discovery rule, stated in § 27-2-206, MCA... (Emphasis supplied.)

In analyzing Boles, the majority opinion states:

... the plaintiffs in Boles could not have commenced a cause of against their attorney at any time prior to their default under the contract because they had sustained no damage. If they had, their claim would have been appropriately dismissed. ...

In substance, the majority opinion here concludes that having sustained no damage, the statute of limitation had not begun to run. Without directly saying so, the majority apparently has thereby adopted “the damage rule” which as above stated in Boles points out that “the damage rule” provides that the statute of limitation does not begin to run until the client has sustained injury or damage. The majority opinion then goes on to conclude that plaintiff’s cause of action did not accrue until June 16,1989, which was the date on which the plaintiff first acted on the advice to his detriment and “prior to this date, he had no cause of action as a matter of law.” Without expressly so stating, it appears to me that the majority opinion has adopted “the damage rule”.

The adoption of “the damage rule” by the majority opinion is in direct contradiction to the Montana statute, § 27-2-206, MCA, as well as in conflict with Boles and earlier cases which conclude that “the damage rule” is not applicable in Montana. I therefore dissent strongly to this adoption of “the damage rule” in Montana and in particular its disregard of the specific statute of limitation applicable to attorneys. As a result of this majority opinion, we now have two conflicting statute of limitation rules in Montana — the one prescribed by the legislature in its statute and “the damage rule” adopted in this opinion.

CHIEF JUSTICE TURNAGE joins in the foregoing dissent.


text:
    LINDA WALLER, Plaintiff and Appellant, v. VIRGIL L. HAYDEN, M.D., Defendant and Respondent.
    No. 93-464.
    Submitted on Briefs July 6, 1994.
    Decided December 13, 1994.
    51 St.Rep. 1291.
    268 Mont. 204.
    885 P.2d 1305.

      For Appellant: Charles L. Neff, Bhella, Neff, Rathert, Wahl & Eiken, Williston, North Dakota.
    For Respondent: John H. Maynard and Ken C. Crippen, Browning, Kaleczyc, Berry & Hoven, Helena.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Plaintiff Linda Waller filed a complaint in the District Court for the Seventh Judicial District in Richland County to recover damages from defendant Virgil L. Hayden, M.D., for what she alleged was negligent surgical treatment, battery, and reckless disregard for her well-being. Waller’s claims were presented to a jury during an eight-day trial. Afterward, a verdict was returned in favor of Hayden on all claims. Waller appeals from the judgment entered pursuant to that verdict, and the District Court’s denial of her motion for a new trial. We affirm the judgment of the District Court.

The only issue on appeal is whether the District Court abused its discretion when it excluded evidence of Hayden’s involvement in disciplinary proceedings which were commenced in another state based on conduct that occurred ten years prior to the conduct which was the subject of Waller’s claim.

FACTUAL BACKGROUND

Since Waller’s appeal is limited to the issue set forth above, a complete record of the trial court proceedings has not been provided, and our summary of the facts is necessarily based on the written pleadings and arguments of the parties and the testimony of defendant Virgil L. Hayden, M.D. However, that record is sufficient for purposes of resolving the issue presented.

On November 18, 1991, Waller filed a complaint in Richland County District Court in which she named Hayden as the defendant. She alleged that Hayden was a physician licensed to practice in Montana, and that he specialized in obstetric and gynecological care. She stated that she first saw Hayden on June 20, 1989, for vaginal discomfort and other complaints; that he performed a surgical procedure known as laparoscopy on July 11, 1989; and that as a result of his initial examination and his observation of Waller’s ovaries during the laparoscopy, he formed the opinion that Waller was suffering from endometriosis affecting her uterus, ovaries, and fallopian tubes. On that basis, he recommended a complete hysterectomy, or removal of her uterus, and a bilateral salpingo oophorectomy, or removal of her ovaries and fallopian tubes. She accepted his advice and underwent both procedures by intra-abdominal surgery on August 11, 1989.

Endometriosis is defined as the presence of tissue similar to the lining of the uterus at other sites in the pelvis. The tissue undergoes periodic changes similar to those of the endometrium and causes pelvic pain throughout and after menstruation. Bantam Medical Dictionary 143 (Rev. ed. 1990).

Waller alleged in her complaint, and it was confirmed at trial, that pathological studies of her ovaries after they were removed did not disclose the presence of endometriosis in those parts of her body. For that reason, she alleged that Hayden negligently formed his pre-operative diagnosis, and was negligent when he removed her ovaries and fallopian tubes. She also alleged that because of the premature removal of her ovaries and fallopian tubes at the age of 38, she suffered a loss of natural estrogen, which exposes her to numerous increased health risks.

For a second cause of action, Waller alleged that because Hayden knew she did not want to have her ovaries removed unless it was absolutely necessary, and because he knew, or should have known, that it was unnecessary when he removed them, he committed a battery upon her person.

For a third cause of action, Waller alleged, and Hayden subsequently admitted, that during the surgical procedure that he performed on August 11,1989, he cut, or in some other way tore, a portion of her bowel, and that although it was surgically repaired, she suffered subsequent restriction of the bowel at that location from stenosis which had to be treated surgically at a later date.

For a fourth cause of action, Waller alleged that during his conversations with her following surgery, Hayden misrepresented or concealed the full extent of damage that was caused to her bowel during surgery; that she suffered more severe health consequences as a result of his concealment, and that because of this reckless disregard for her well-being, she was entitled to actual and punitive damages.

Hayden admitted that he was a licensed physician who specialized in obstetric and gynecological care; that he was consulted by Waller for the complaints she described on June 20,1989; that he performed a laparoscopy on her on July 11, 1989; and that he performed the surgical procedures described previously on August 11,1989. He also admitted that plaintiff’s bowel was damaged and surgically repaired during the August 11 surgery, and that that injury later caused stenosis which had to be surgically treated. However, he otherwise denied her allegations and affirmatively stated that at all times his care for her complied with acceptable standards for members of his profession. He specifically denied that he concealed from her the nature of the injury to her bowel following surgery.

Prior to trial, Waller learned that from 1973 until 1982 Hayden practiced medicine in Pine Bluff, Arkansas, and that while there he was involved in a peer review process which ultimately led to recommendations for supervision of some aspects of his practice and mandatory post-graduate education. She learned that the peer review process in Arkansas began when a fellow physician at the hospital where Hayden worked wrote to the obstetrics-gynecological department and complained that Hayden had performed an unnecessary cesarean section. In response to that complaint, a committee in that department conducted an investigation which ultimately led to its conclusion that Hayden had performed two unnecessary cesarean sections. As a result of the investigation, Hayden was, for a period of time, required to obtain consultation prior to performing any further cesarean sections, and was ordered to obtain additional post-graduate education.

Hayden apparently concluded that he was unable to satisfy the additional education requirement and still maintain his practice. Therefore, he terminated his practice in Arkansas and moved to Sidney, Montana, in 1982.

On November 17, 1982, Hayden filed a complaint in the Federal District Court for the Eastern District of Arkansas in which he named Jefferson Regional Medical Center, its administrator, and eight of the doctors on its medical staff, as defendants. Jefferson Regional Medical Center is the hospital at which Hayden practiced during the disciplinary process previously described. In his complaint, he alleged that the disciplinary action taken against him by the defendants (1) denied him equal protection and due process in violation of the Fourteenth Amendment and 42 U.S.C. § 1983; (2) conspired to form a group boycott against him and combine to a certain monopoly power in violation of §§ 1 and 2 of the Sherman Antitrust Act; (3) made defamatory statements about him; and (4) interfered with and conspired to interfere with his business relationship. See Hayden v. Bracy (8th Cir. 1984), 744 F.2d 1338.

The district court dismissed Hayden’s claims based on 42 U.S.C. § 1983 and the Sherman Antitrust Act by summary judgment, and after a nonjury trial, entered judgment for the defendants on the other claims.

Prior to the trial in this case, Hayden moved in limine for an order precluding Waller from referring to the disciplinary proceedings that occurred in Arkansas, or the litigation commenced by Hayden in the Federal District Court in Arkansas. On April 2, 1993, the District Court granted that motion, except to the extent that Hayden “opened the door” to admission of the Arkansas evidence, or to the extent that it was necessary for impeachment purposes. During the pretrial conference, after Waller requested that the District Court reconsider its order, the District Court clarified that unless the defendant testified and tried to embellish on his qualifications, the Arkansas information was irrelevant to the issues in this case. The District Court reasoned that Hayden’s qualifications for diagnosis of endometriosis had nothing to do with his judgment related to cesarean section procedures performed ten years earlier.

This case proceeded to trial and Hayden was called by Waller as an adverse witness during the presentation of her case. He was examined at length by her attorney. Near the conclusion of that examination, Waller renewed her request that the court reconsider its order in limine, and if allowed, offered to present the following evidence:

1. Testimony from Hayden in the Arkansas trial that he moved from Arkansas to Montana because of fear that his privileges to practice at the Arkansas hospital were in jeopardy.

2. A certified copy of the complaint filed, by Hayden in the Federal District Court for the Eastern District of Arkansas in which the Jefferson Regional Medical Center and its staff members were named as defendants.

3. A certified copy of the findings of fact and conclusions of law from the Federal District Court in Arkansas which resolved Hayden’s complaint.

4. A certified copy of the published opinion of the United States Court of Appeals for the Eighth Circuit which affirmed the Federal District Court’s disposition of Hayden’s claim against the Jefferson Regional Medical Center and its staff members.

The District Court rejected Waller’s offer of proof for the following reasons:

1. That since the federal litigation related to issues of defamation and wrongful interference with Hayden’s ability to work, it was not directly related to his professional qualifications;

2. That even if his qualifications to perform cesarean sections were at issue in the evidence offered, it had little probative value to the issues in this case, and therefore, was not sufficiently relevant;

3. That the passage of eight to ten years from the events which were the subject of Waller’s offer of proof until the acts complained of in this case, made the prior evidence far too remote and dissimilar to be relevant; and

4. That even if the evidence was somehow relevant, its prejudicial impact outweighed whatever probative value it might have.

Following eight days of trial, the jury returned a special verdict in which it found that (1) Hayden’s diagnosis was not negligent; (2) Hayden’s recommendation for removal was not negligent; (3) Hayden did not commit battery upon Waller; and (4) Hayden was not negligent in his post-operative care and treatment.

On May 27,1993, Waller moved for a new trial pursuant to Rule 59, M.R.Civ.P., and § 25-11-102, MCA, based on the District Court’s refusal to allow her to cross-examine Hayden on his reasons for leaving Arkansas, and based on the District Court’s rejection of her offer of proof.

In its order dated August 10, 1993, in which it denied Waller’s motion for a new trial, the District Court relied primarily on Rule 403, M.R.Evid., for its conclusion that even if relevant, the probative value of the Arkansas evidence was substantially outweighed by the risk of unfair prejudice, and therefore, it was inadmissible.

Waller appeals from the District Court’s April 2, 1993, order in limine; the District Court’s orders during trial excluding evidence related to Hayden’s Arkansas experience; and the District Court’s order denying her motion for a new trial.

DISCUSSION

Did the District Court abuse its discretion when it excluded evidence of Hayden’s involvement in disciplinary proceedings which were commenced in another state based on conduct that occurred ten years prior to the conduct which was the subject of Waller’s claim?

‘We have held that the decision to deny a motion for a new trial is within the sound discretion of the trial court and will not be overturned absent a showing of manifest abuse.” Geiger v. Sherrodd, Inc. (1993), 262 Mont. 505, 508, 866 P.2d 1106, 1108 (citing Tope v. Taylor (1988), 235 Mont. 124, 131-32, 768 P.2d 845, 849-50).

On appeal, Waller argues, as she did in the District Court, that even though she called Hayden as an adverse witness in her own case, he was an expert pursuant to Rule 702, M.R.Evid., based on his knowledge, experience, training, and education, and therefore, that he was subject to impeachment regarding his qualifications as an expert. Waller relies on our decision in Hart-Anderson v. Hauck (1988), 230 Mont. 63, 73-74, 748 P.2d 937, 943-44, for the principle that during cross-examination of an expert witness, parties are entitled to test the knowledge, competency, and qualifications of that witness.

While we have no reservation about concluding that Virgil L. Hayden, M.D., a licensed physician and board certified obstetrician and gynecologist, is an expert witness when testifying about subjects within the scope of his professional knowledge, that does not mean that traditional rules of relevance, remoteness, and fairness are inapplicable to his cross-examination. Furthermore, unless there has been a manifest abuse of discretion, we have traditionally concluded that the district court, which is intimately familiar with the facts and parties in each case, is in the best position to apply those rules.

For example, in Britton v. Farmers Insurance Group (1986), 221 Mont. 67, 721 P.2d 303, we held that the test of relevancy is whether proffered evidence makes a fact in issue more or less likely. We held that “[u]nless evidence naturally and logically tends to establish a fact in issue, it is not admissible.” Britton, 721 P.2d at 315 (citations omitted). We also held that “[i]n the usual case, questions of admissibility of evidence are left largely to the sound discretion of the trial court, subject to review only in case of manifest abuse.” Britton, 721 P.2d at 315 (citing Cech v. State (1979), 184 Mont. 522, 604 P.2d 97).

In Preston v. McDonnell (1983), 203 Mont. 64, 67, 659 P.2d 276, 277, we held that in considering whether evidence was relevant, a trial court could consider the remoteness of the proffered evidence. In that case, the plaintiffs bought a Red Lodge bakery in 1979 and were subsequently unable to obtain a license from the Montana Department of Health. They sued the seller to rescind their contract for purchase, and in an effort to show that he was aware of the conditions which made licensing difficult, they offered to prove that he had received two conditional health licenses in 1968 and 1969. This evidence was excluded by the district court because the prior conditional licenses were too remote in time to have any probative value. We affirmed the district court on appeal and held that:

In determining whether evidence is too remote to be relevant, a trial court is not guided by any fixed rules. Rather, the nature of the evidence and the circumstances of the particular case must control. 2 Wigmore, Evidence § 437 (Chadbournrev. 1979). For this reason, the determination of remoteness is left in great part to the trial court’s discretion. Wigmore, supra; Courtney v. Courtney ([Alaska] 1975), 542 P.2d 164; Gilliland v. Rhoads ([Wyo.] 1975), 539 P.2d 1221; Blankenship v. Brookshier (1966), 91 Ida[ho] 317, 420 P.2d 800; and Morrison v. Bradley ([Colo. Ct. App.] 1980), 622 P.2d 81, cert. granted Dec. 15, 1980. The trial court’s determination of relevancy is subject to review only in the case of manifest abuse. See also Gunderson v. Brewster (1970), 154 Mont. 405, 466 P.2d 589; Cech v. State (1979) [184] Mont. [522], 604 P.2d 97, 36 St.Rep. 2185.
Here, the District Court did not abuse its discretion. The condition of the bakery ten years prior to its sale could easily be considered too remote and irrelevant. Many old deficiencies may have been corrected, while new, yet similar, deficiencies may have arisen. The District Court did not err by refusing admission of the conditional health licenses.

Preston, 659 P.2d at 277-78.

For a similar conclusion and a similar standard of review, based on evidence that was at least seven years old, see In re Marriage of Starks (1993), 259 Mont. 138, 145, 855 P.2d 527, 531-32.

We have applied a similar standard of review to evidence which is excluded because the district court concludes that its probative value is substantially outweighed by the danger of unfair prejudice. In Zeke’s Distributing Co. v. Brown-Forman Corp. (1989), 239 Mont. 272, 277, 779 P.2d 908, 911, we held that:

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Rule 403, M.R.Evid. This determination of admissibility is within the discretion of the trial judge and will not be disturbed unless there is manifest abuse of discretion. Welnel v. Hall (1985), 215 Mont. 78, 694 P.2d 1346, Kimes v. Herrin (1985), 217 Mont. 330, 705 P.2d 108, Dahlin v. Holmquist, (1988), [235 Mont. 17,] 766 P.2d 239.

In this case, we cannot conclude that the District Court manifestly abused its discretion when it held that the evidence of disciplinary proceedings in Arkansas, Hayden’s lawsuit which resulted from those proceedings, and Hayden’s reasons for leaving Arkansas, were either irrelevant because of their remoteness, or if relevant, more prejudicial than probative. The events which led to the Arkansas disciplinary proceedings occurred eight to ten years prior to the acts complained of by plaintiff; those complaints related to Hayden’s judgment about when to perform cesarean sections and his relationships with other staff members; and his federal lawsuit simply resolved whether his accusers had done anything wrong — not whether he was qualified professionally. It is within the range of a district court’s discretion to conclude that there was nothing in the Arkansas evidence which made it more or less likely that Hayden was negligent when he treated Waller in 1989, or that he concealed the true nature of her physical condition following surgery in 1989.

If, as argued by Waller, the Arkansas evidence, and in particular, the judgment of Hayden’s peers that he needed additional education, was relevant to his qualifications, and his qualifications were relevant to the issue of professional negligence, it was still within the discretion of the District Court to exclude the evidence based on its conclusion that it was more prejudicial than probative. We conclude that under the facts in this case a manifest abuse of the District Court’s discretion has not been established. Therefore, we conclude that neither did the District Court abuse its discretion when it denied plaintiff’s motion for a new trial.

However, since cases like this are read by attorneys and district court judges for the purpose of future guidance and the avoidance of future evidentiary errors, it is appropriate to clarify the meaning of our decision. This decision does not mean that businesses or professionals who have been discredited elsewhere can find sanctuary in Montana and that their past will never follow them. Instead, it simply affirms the traditional rules of appellate review, and this Court’s conviction that district courts are the best place to make evidentiary rulings.

The notion that a decision by the district court is discretionary assumes there is no absolutely correct answer for every evidentiary issue. It assumes that the decision is a judgment call best left to the person closest to the case — the district judge. By holding that the District Court did not abuse its discretion when it excluded the evidence proffered by the plaintiff in this case, we do not mean that it would have abused its discretion had it admitted the evidence. We simply conclude that the District Court’s judgment was exercised within that permissible range best left to the district court.

The judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY, HUNT, NELSON and WEBER concur.