author: JUSTICE GRAY JUSTICE TRIEWEILER JUSTICE NELSON,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ROBERT DEAN ROGERS, Defendant and Appellant.
    No. 93-351.
    Submitted on Briefs June 23, 1994.
    Decided October 25, 1994.
    51 St.Rep. 1037.
    267 Mont. 190.
    883 P.2d 115.

      For Appellant: William M. Brooke; Moore, O’Connell & Refling, Bozeman.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Carol Schmidt, Assistant Attorney General, Helena; Mike Salvagni, Gallatin County Attorney, Bozeman.
   JUSTICE GRAY

delivered the Opinion of the Court.

Robert Dean Rogers (Rogers) appeals from an order of the Eighteenth Judicial District Court, Gallatin County, granting the State of Montana’s Motion to Dismiss Appeal. We reverse.

Rogers was charged in Gallatin County Justice Court with the misdemeanor offenses of assault and resisting arrest pursuant to §§ 45-5-201 and 45-7-301, MCA, respectively. He ultimately entered guilty pleas to both charges and was sentenced to six months in jail, suspended on conditions including that he obey all laws.

Rogers subsequently was arrested and charged with driving under the influence, driving without liability insurance in effect, and driving without a valid driver’s license. On the basis of those charges, the State of Montana (State) filed a Petition to Revoke Suspended Sentence in the Justice Court. A revocation hearing was scheduled for, and held on, October 30,1992. The Justice Court Minutes reflect that the State presented evidence via three witnesses; Rogers presented no evidence. The Justice Court found that Rogers had violated the conditions of his suspended sentence. The court again suspended his sentence, adding additional conditions to those originally imposed.

Rogers appealed to the District Court for a trial de novo on the petition for revocation of his suspended sentence. The State moved to dismiss the appeal, arguing that no appeal is available pursuant to § 46-17-311, MCA, because a suspended sentence revocation is an administrative, rather than a criminal, proceeding. Rogers responded that a broader reading of the statute and several Montana Supreme Court cases was appropriate and necessary in order to provide for an appeal de novo under these circumstances. Following a hearing, the District Court granted the State’s motion. Rogers timely filed his notice of appeal to this Court.

In granting the State’s motion to dismiss Rogers’ appeal, the District Court determined that a revocation is an administrative proceeding rather than a criminal adjudication. Thus, the court reasoned, the revocation of a suspended sentence is not a judgment from which an appeal de novo may be taken pursuant to § 46-17-311, MCA.

The procedures to be followed in a proceeding for revocation of a suspended sentence are set forth in § 46-18-203, MCA. It is clear from that statute that a revocation proceeding is not equivalent to a criminal trial: only a hearing, rather than a trial, is required; the prosecution’s burden of proof is only a preponderance of the evidence; and the issue is not one of guilt or innocence, but is whether the person has violated a condition of a suspended sentence. Section 46-18-203, MCA. Our cases recognize these basic differences between revocation proceedings and criminal trials. See, e.g., State v. Watts (1986), 221 Mont. 104, 717 P.2d 24; State v. Robinson (1980), 190 Mont. 145, 619 P.2d 813; State v. Oppelt (1979), 184 Mont. 48, 601 P.2d 394; State v. Ryan (1975), 166 Mont. 419, 533 P.2d 1076. The cases do not, however, characterize revocation proceedings as “administrative” hearings, as the State argues and the District Court concluded.

Section 46-17-311, MCA, provides for appeals from justices’ and city courts to district courts, and requires trial de novo in the district courts. Located as it is in the Criminal Procedure Title of the Montana Code Annotated, the statute can be construed as providing for appeals only in criminal matters. This interpretation is further clarified by the language contained in § 46-17-311(2), MCA, which requires written notice of intention to appeal within 10 days “after a judgment is rendered following trial.” As discussed above, a revocation hearing is not a criminal trial.

Moreover, as the State points out, a “judgment” — as the term is used in § 46-17-311(2), MCA— includes an adjudication of whether a defendant is guilty or not guilty and, if guilty, the pronouncement of sentence. See § 46-1-202(10), MCA. Here, while the multi-purpose form utilized by the Justice Comb indicates that the court “found defendant guilty” of violating the conditions of his suspended sentence, § 46-18-203, MCA, does not speak to “guilt” or “innocence” in the context of revocation hearings. Rather, it simply requires the court to determine whether or not the prosecution has proved a violation of the conditions of the suspended sentence by a preponderance of the evidence. Section 46-18-203(6)-(8), MCA. Thus, a straightforward reading of § 46-17-311, MCA, and our cases, appears to support the District Court’s conclusion that an appeal de novo is not available here.

The problem with that conclusion, however, is that it forecloses any appeal to, or review by, any court from a justice court’s revocation of a suspended sentence. Nor does the conclusion take the legislature’s intent into account. Appeals for de novo proceedings in district courts are statutorily provided for in criminal and civil matters pursuant to § 46-17-311 and Title 25, Chapter 33, MCA, respectively. We conclude that, taken together, these statutes reflect the legislature’s intent to provide for appeals de novo to the district courts from all final justice court proceedings.

The only remaining question, then, is whether the legislature intended appeals de novo from justice court revocations of suspended sentences to be governed by § 46-18-203, MCA, or Chapter 33 of Title 25 of the Montana Code Annotated. The legislature placed § 46-18-203, MCA, governing revocation proceedings in the Criminal Procedure Title of the Montana Code Annotated. It included in that statute the following provisions which are substantially similar to those relating to criminal trials:

1. An arrest warrant may be issued upon the filing of a petition to revoke a suspended sentence;

2. Statutes relating to bail are applicable;

3. The “defendant” must be advised of, and provided, many of the same rights as in criminal proceedings, including the right to court-appointed counsel in the event counsel cannot be afforded; and

4. Jail time may result. Section 46-18-203, MCA.

Furthermore, we have recognized that revocation proceedings are matters over which the original sentencing court in a criminal case “retains jurisdiction.” Oppelt, 601 P.2d at 397. Thus, revocations are a postconviction continuation of criminal cases. Indeed, it is clear that a criminal defendant whose sentence has been suspended has a liberty interest in retaining the suspended nature of his or her sentence, and faces the possibility of a loss of that liberty via a revocation proceeding in justice court. We have specifically recognized that a liberty interest is at stake in revocation proceedings. See, Robinson, 619 P.2d at 814-15.

Based on these cogent and numerous similarities between criminal and revocation proceedings, we hold that appeals de novo from justice court revocations of suspended sentences are available under, and governed by, § 46-17-311, MCA. In this regard, however, the § 46-17-311(1), MCA, language that appeals from justice court to district court “may be tried before a jury ...” clearly is inapplicable to the appeals at issue herein because the issue of whether a suspended sentence will be revoked is not subject to trial by jury initially in the justice court. We conclude by observing that nothing in this opinion impacts on our prior cases distinguishing, for purposes of the issues presented therein, between revocation proceedings and criminal adjudications.

Reversed and remanded for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, and HUNT concur.

JUSTICE TRIEWEILER

specially concurring.

I concur with the result of the majority opinion. However, I do not agree with all that is said in that opinion.

Specifically, I disagree with the majority’s and the dissent’s conclusions that “a straightforward reading of § 46-17-311, MCA, and our cases, appears to support the District Court’s conclusion that an appeal de novo is not available here.”

A straightforward reading of § 46-17-311, MCA, compels the conclusion that an appeal de novo is permitted under the circumstances in this case.

Section 46-17-311(2), MCA, provides in relevant part that “[t]he defendant may appeal to the district court by filing written notice of intention to appeal within 10 days after a judgment is rendered following trial.” (Emphasis added.) Trial is defined in Black’s Law Dictionary as:

A judicial examination, in accordance with law of the land, of a cause, either civil or criminal, of the issues between the parties, whether of law or fact, before a court that has jurisdiction over it. For purpose of determining such issue.
It includes all proceedings from time when issue is joined, or, more usually, when parties are called to try their case in court, to time of its final determination.

Black’s Law Dictionary 1657 (Rev. 4th ed. 1976) (citations omitted).

The defendant’s revocation hearing was a judicial proceeding at which evidence was presented, witnesses were called and cross-examined, and factual issues were resolved by the Justice Court. While it may not have been a “criminal adjudication” for the purpose of requiring the constitutional guarantees considered in our previous cases, see State v. Ryan (1975), 166 Mont. 419, 533 P.2d 1076; State v. Oppelt (1979), 184 Mont. 48, 601 P.2d 394; State v. Robinson (1980), 190 Mont. 145, 619 P.2d 813, it was, nevertheless, a trial as that term is commonly understood in Anglo-American jurisprudence.

There is nothing really complicated or elusive about defining the term “trial.” Most first-year law students could recite that a trial is an adversary proceeding at which evidence is presented, and as a result of which, factual or legal issues are resolved. Defining the term only becomes complicated when someone insists, as the dissent does, on arriving at the word’s meaning by patching together the quilt work of result-oriented decisions in which this Court has created a subspecies of “trial” known as the “criminal trial” or “criminal adjudication” for the purpose of avoiding at a revocation hearing the constitutional protections that apply to the initial determination of a defendant’s guilt. However, those cases have no application here. We are not asked in this case to decide whether this revocation was a “criminal adjudication” for the purpose of applying due process, double jeopardy, or any other constitutional guarantee. We are simply asked in this case whether this adversary proceeding at which evidence was taken and factual issues were resolved was a “trial” within the meaning of our statute which authorizes appeals from decisions of the justice court. Sometimes by trying too hard, we overlook the obvious.

Similarly, when the District Court amended defendant’s previously imposed sentence, the District Court amended its judgment, and thereby entered a new judgment. A judgment is commonly understood to be “[t]he official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination.” Black’s Law Dictionary 977 (Rev. 4th ed. 1976) (citations omitted).

While the statutory definition of “judgment” refers to an adjudication of guilt or innocence, that same statutory definition includes the sentence pronounced by the court. Section 46-1-201(10), MCA. Therefore, any amendment to that sentence is no less an amendment to the court’s judgment, and defendant’s right to appeal from the amendment is no less important than his right to appeal from the original judgment. To hold that there is a statutory right to appeal from judgments entered in justice court, but not from amendments to a judgment entered injustice court simply because the Legislature did not spell that fact out, exalts form over substance and would frustrate the purpose for which appeals from justice court judgments are allowed.

Therefore, I too would reverse the judgment of the District Court and allow defendant to proceed with his appeal from Justice Court to District Court. However, for the above reasons, I do not agree with all that is said in the majority opinion.

JUSTICE NELSON,

dissenting.

I respectfully dissent from the Court’s opinion in this case. We conclude that “... a straightforward reading of § 46-17-311, MCA, and our cases, appears to support the District Court’s conclusion that an appeal de novo is not available here.” I agree, and that, necessarily, is where our inquiry in this case must end.

Dissatisfied with the obvious, however, we then step through the looking glass and conclude that “taken together ... [§ 46-17-311 and Title 25, chapter 33, MCA] reflect the legislature’s intent to provide for appeals de novo to the district courts from all final justice court proceedings.” Exactly where that intent is reflected in the otherwise clear and unambiguous statutory scheme at issue, is not evident in our opinion — most likely because the legislature’s expressed intent is quite the opposite. I submit that justifying our decision here on the basis of the legislature’s “intent” merely stands as our testament to the way we wished the law was, rather than a forthright interpretation of what the law actually is.

I begin with the rules of statutory construction so oft repeated by this Court, and most recently so well summarized in our decision in the consolidated cases of Curtis v. District Court and Vilensky v. District Court, (1994), [266 Mont. 231], 879 P.2d 1164. There, we stated:

Our role in construing statutes is clear. We must “ascertain and declare what is in terms or in substance contained therein ...;” we may not insert what has been omitted or omit what has been inserted. Section 1-2-101, MCA. The intention of the legislature is to be pursued. Section 1-2-102, MCA. If that intention can he determined from the plain meaning of the words used, a court may not go further and apply other means of interpretation. (Citation omitted.) Where the statutory language is “plain, unambiguous, direct and certain, the statute speaks for itself and there is nothing left for the court to construe.” (Citation omitted.) (Emphasis added.)

Curtis & Vilensky, 879 P.2d at 1166.

There is no uncertainty or ambiguity in § 46-17-311, MCA, that requires us to divine legislative intent; the statute is clear and direct. The legislature has plainly expressed its intent in the clearest language and has provided for appeals, by trial de novo, from the courts of limited jurisdiction to the district courts only “after a judgment is rendered following trial.” Section 46-17-311(2), MCA. A “judgment” is statutorily defined as the adjudication of guilt or innocence and includes the pronouncement of sentence. Section 46-1-202(10), MCA.

It is undisputed — and our opinion acknowledges the fact — that a probation revocation hearing is not a “trial” and a revocation of probation following a hearing is not a “judgment.” There is absolutely no language in either § 46-17-311, MCA, or § 46-18-203, MCA, by which the legislature has either explicitly or implicitly statutorily provided for the right of appeal de novo to the district court from a probation revocation by a court of limited jurisdiction. The legislature has, to the contrary, clearly limited, by statute, the right of appeal from courts of limited jurisdiction to the district courts in criminal proceedings, to those proceedings involving the adjudication of guilt or innocence and pronouncement of sentence following a trial.

Our cases are legion. The right of appeal exists only by statute or rule. McClurg v. Flathead County Com’rs (1978), 179 Mont. 518, 519, 587 P.2d 415, 416. Appeal is a creature of and exists only by statute, and without supporting statutes, there is no appeal. Matter of Sage Creek Drainage Area (1988), 234 Mont. 243, 248, 763 P.2d 644, 647; State v. District Court (1955), 128 Mont. 538, 544, 279 P.2d 691, 694. The right of appeal is purely statutory. Matter of Sage Creek Drainage Area, 234 Mont. 243, 763 P.2d at 647; Sheridan County Electric Co-op v. Anhalt (1953), 127 Mont. 71, 74, 257 P.2d 889, 890; Corcoran v. Fousek (1951), 125 Mont. 223, 224, 233 P.2d 1040, 1041. (Emphasis added.)

In State v. Hartford (1987), 228 Mont. 254, 256, 741 P.2d 1337, 1338, we stated:

Compliance with the statute is required to perfect an appeal from a Justice Court to the District Court because an appeal is exclusively a statutory right. State v. Province (Mont. 1987), [226 Mont. 425,] 735 P.2d 1128; State v. Mortenson (1978), 175 Mont. 403, 574 P.2d 581. (Emphasis added.)

Moreover, statutes relating to appeals are mandatory and jurisdictional and prohibitory and jurisdictional in that they limit the right of appeal to the method expressly provided by statute. Montana Power Co. v. Dept. of Public Serv. Reg. (1985), 218 Mont. 471, 479, 709 P.2d 995, 999; State v. District Court of the Tenth Judicial District (1955), 128 Mont. 526, 528, 278 P.2d 1000, 1001; In re Malick’s Estate (1951), 124 Mont. 585, 589, 228 P.2d 963, 965.

In this case, there is no statute; there is no rule; there is no procedure by which a defendant can appeal a probation revocation by a court of limited jurisdiction to the district court and receive a trial de novo with respect to the grounds for revocation. That we have now judicially created such a right from whole cloth does not give jurisdiction to the district courts to entertain such an appeal. That right of appeal can be created and that jurisdiction granted only by statute or rule.

Finally, I do not agree with the reasoning of Justice Trieweiler’s special concurrence that, contrary to our opinion, a probation revocation proceeding is a trial. This Court has heretofore defined the word “trial” in the context of criminal cases:

The word “trial,” when used in connection with criminal proceedings, means proceedings in open court, after the pleadings are finished and it is otherwise ready, down to and including the rendition of the verdict.

State v. Spotted Hawk (1899), 22 Mont. 33, 45, 55 P. 1026, 1028. See, also, State v. Koch (1906), 33 Mont. 490, 496, 85 P. 272, 274; State v. Reed (1922), 65 Mont. 51, 56, 210 P. 756, 757; State v. Test (1922), 65 Mont. 134, 137, 211 P. 217, 218; Rosebud County v. Flinn (1940), 109 Mont. 537, 541, 98 P.2d 330, 333, in accord.

A “verdict” is:

The formal decision or finding made by a jury, impaneled and sworn for the trial of a cause, and reported to the court (and accepted by it), upon the matters or questions duly submitted to them upon the trial. The definitive answer given by the jury to the court concerning the matters of fact committed to the jury for their deliberation and determination.

Black’s Law Dictionary, (5th ed. 1979), at 1398. (Citation omitted.)

Whatever might the “commonly understood [definition of a criminal trial] in Anglo-American jurisprudence,” that is clearly not how this Court has defined the term and how that term is commonly understood in Montana. The “trial” portion of a criminal case ends with the determination of the defendant’s guilt or innocence by the finder of fact and the pronouncement of sentence. Spotted Hawk, 55 P. at 1028; §§ 46-17-311(2), MCA and 46-1-202(10), MCA. See also, generally, Title 46, Chapters 16 and 17, MCA.

Despite our best attempts to justify the unjustifiable, the long and short of it is that, we have plainly usurped the prerogative and function of the legislature to statutorily create and define the parameters of and procedures governing appeals from courts of limited jurisdiction to the district courts. Whether there should be a right of appeal under the circumstances, of this case and, if so, what procedures should control the exercise of that right is not the issue here. That is for the legislature to decide, not this Court.

The plain language of § 46-17-311, MCA, does support the District Court’s conclusion; the court was correct; its decision should be affirmed. Accordingly, I respectfully dissent.

JUSTICE WEBER concurs in the foregoing dissent.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE JUSTICE TRIEWEILER

license: Public Domain

text:
    RICK FOLEY, Individually, and as the Personal Representative of the Estate of FLORENCE FOLEY, and RICK FOLEY, as Guardian Ad Litem for the Estate of Nichole Foley, a Minor, Plaintiff and Appellant, v. HARRISON AVENUE MOTOR CO., a Montana corporation; JOHN DOE NO. 1, a foreign corporation, JOHN DOE NO. 2, a foreign corporation; JOHN DOE NO. 3, a Montana corporation; and JOHN DOES NOS. 4 through 8, Defendants and Respondents.
    No. 94-077.
    Submitted on Briefs August 4, 1994.
    Decided October 25, 1994.
    51 St.Rep. 1042.
    267 Mont. 200.
    883 P.2d 100.

      For Appellant: Richard J. Foley, Pro Se, Butte.
    For Respondent: R. D. Corette and William O’Leary, Corette, Pohlman, Allen, Black and Carlson, Butte.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Rick Foley individually, as personal representative of the Estate of Florence Foley, and as Guardian Ad Litem for the Estate of Nichole Foley, a minor, appeals from a jury verdict in the Second Judicial District, Silver Bow County, in favor of defendant Harrison Avenue Motor. We affirm.

The issues are:

1. Whether the District Court improperly commented on the evidence during trial in the presence of the jury.

2. Whether the District Court properly instructed the jury based on the evidence presented and the applicable law.

On March 1, 1988, Florence Foley purchased a 1983 Mercury Cougar from Harrison Avenue Motor Co. (Harrison Avenue) in Butte, Montana. The automobile was five years old and the odometer showed approximately 47,000 miles. Prior to placing the automobile on the lot for sale, Harrison Avenue inspected and serviced the vehicle.

Mrs. Foley used the Mercury Cougar to commute between her home in Butte and her place of employment in Fairmont Hot Springs, Montana. Mrs. Foley drove the Mercury Cougar over 21,000 miles in the fifteen months she owned the vehicle.

On June 10, 1989, Mrs. Foley and a co-worker left Fairmont Hot Springs following their shift and went to a bar in Walkerville, a suburb of Butte. The co-worker testified that Mrs. Foley had several drinks between approximately 5:00 p.m. and 9:30 p.m., at which time the co-worker left the bar with her husband.

On the afternoon of June 11, 1989, Mrs. Foley’s dead body was discovered lying next to the 1983 Mercury Cougar in her closed garage. The car’s ignition switch was in the “oft” position and the driver’s seat was partially reclined. An investigation by the Butte-Silver Bow Law Enforcement Agency uncovered no criminal activity. An autopsy determined that Mrs. Foley died from carbon monoxide poisoning.

An inspection of the Mercury Cougar conducted after Mrs. Foley’s death revealed that approximately eighteen inches of the exhaust system had broken from the rear of the vehicle, resulting in the automobile exhaust discharging near the left wheel-well rather than behind the vehicle. The inspection also uncovered several small holes and separations between the trunk and the left rear quarter panel. The Butte-Silver Bow coroner determined the cause of death to be carbon monoxide poisoning resulting from the faulty exhaust system.

Foley brought this action against Harrison Avenue claiming breach of warranty, negligent infliction of emotional distress, strict liability in tort, and negligence. Harrison Avenue moved for summary judgment on all claims. The court granted Harrison Avenue’s motions for summary judgment on all claims except negligence. The negligence claim was tried by a jury, which returned a verdict in favor of Harrison Avenue. Foley appeals.

Issue 1

Did the District Court improperly comment on the evidence during trial in the presence of the jury?

Foley claims that the District Court improperly commented on the evidence during trial and in the presence of the jury. Foley called an expert witness to testify to the carbon monoxide levels recorded in the Mercury Cougar during tests ran after the accident. Counsel for Harrison Avenue objected to a line of questions concerning federal carbon monoxide emission regulations. Counsel claimed the evidence sought was irrelevant and that there was no evidence in the record which established the Mercury Cougar was in the same condition at the time the tests were ran as when Mrs. Foley bought the vehicle. Counsel for Foley responded to Harrison Avenue’s obj ection by stating that Harrison Avenue had admitted it did not test the Mercury Cougar for emission levels prior to selling the vehicle. He insisted that by failing to determine whether or not the vehicle’s emission complied with federal regulations, Harrison Avenue had brought the federal emission regulations into controversy. The District Court sustained Harrison Avenue’s objection, stating:

Now, just a minute. I realize what Mr. Rask [owner of Harrison Avenue Motor] said, but you haven’t shown that he had a duty to buy the equipment and to do that emissions [testing] and so I’m going to sustain the objection at this point. The question here is whether he did a reasonable inspection.... [T]here is no duty that — does a reasonable inspection include the testing of the emissions from every vehicle that he sells or that sort of thing? And there is no evidence in this record that that’s part of the duty. ... So the objection is sustained.

Counsel for Foley immediately objected, claiming the District Court had improperly commented on the evidence. The judge replied, "... I’m explaining to you why I’m sustaining the objection.”

This Court has long held that a judge should refrain from commenting on the evidence in the presence of the jury. State v. Fuller (1906), 34 Mont. 12, 26, 85 P. 369, 374. However, not every statement made by the court constitutes an impermissible comment on the evidence. The fact that a district judge makes incidental remarks concerning evidence presented at trial in the presence of the jury does not by itself entitle the appellant to relief.

In the instant case, the court’s comments consist of the judge’s rationale for sustaining an objection. The court merely explained to Foley’s counsel why it had sustained Harrison Avenue’s objection. Counsel for Harrison Avenue objected to the line of questioning concerning federal emission standards, claiming such standards were irrelevant. The court explained that since Foley had not presented any evidence that a reasonable inspection by a used car dealer included an emissions test, evidence of emission standards at the time of the sale was irrelevant. The court’s statements were permissible to explain why it felt the line of questioning was improper.

We hold that the District Corut did not improperly comment on the evidence during the trial in the presence of the jury.

Likewise, for a comment by the court to give rise to reversible error, such comment must affect the substantial rights of the party. Rule 61, M.R.Civ.P. When reviewing a claim of improper remarks by a trial judge, we must review the comments in relationship to the record as a whole. Adams v. Davis (1963), 142 Mont. 587, 592, 386 P.2d 574, 577. Although the District Court may have been able to explain its ruling in another manner, Foley has failed to establish how the comments substantially prejudiced his case. The record is void of any evidence which creates a duty for a reasonable used car dealer to do emission checks on vehicles before selling them. Foley failed to present an argument that the District Court’s comments substantially prejudiced his rights. See Rule 61, M.R.Civ.P.

We conclude that the District Court’s statement did not constitute reversible error.

Issue 2

Did the District Court properly instruct the jury based on the evidence presented and the applicable law?

The District Court has discretion when deciding how to instruct a jury, taking into account the theories of the parties, and we will not overturn that decision absent an abuse of discretion. Arnold v. Boise Cascade Corp. (1993), 259 Mont. 259, 267, 856 P.2d 217, 222; Mannix v. Butte Water Co. (1993), 259 Mont. 79, 98, 854 P.2d 834, 846. When determining whether a jury was properly instructed, we will consider the instructions as a whole and in light of the evidence presented at trial. Brown v. North Am. Mfg. Co. (1978), 176 Mont. 98, 114, 576 P.2d 711, 721.

Foley takes issue with two jury instructions given by the District Court. First, Foley objects to Instruction No. 17, which states:

A used car dealer owes a duty to discover and repair any defects which are patent or discoverable in the exercise of ordinary care. However, the used car dealer’s duty does not extend to completely dismantling an automobile and then reassembling it before its resale. The duty only requires the used car dealer to use reasonable care to ascertain whether the car it sells is' equipped with the minimum essentials for safe operation.

This instruction was derived from two cases.

In Rogers v. Hilger Chevrolet Co. (1970), 155 Mont. 1, 465 P.2d 834, we held that the defendant, a used car dealer, “had a duty to discover and repair any defects which were patent or discoverable in the exercise of ordinary care.” Rogers, 155 Mont. 1, 465 P.2d at 837. This duty did not, however, extend to “completely dismantling an automobile and then reassembling it” in order to discover such defects. Rogers, 465 P.2d at 838. We reiterated this rule in Kopischke v. First Continental Corp. (1980), 187 Mont. 471, 480-81, 610 P.2d 668, 673.

In view of our previous case law, Instruction No. 17 is an accurate reflection of Montana law and was an appropriate jury instruction in the case at bar. Foley’s own evidence establishes that in order to discover one of the claimed “defects,” namely the cracks and holes in the trunk of the Mercury Cougar, it was necessary to remove the carpet from the floor of the trunk. Jury Instruction No. 17 is thus appropriate as applied to the facts and the law in this case.

Foley likewise claims error with Instruction No. 25, which states:

Florence Foley, as the owner of a motor vehicle, owed a duty to maintain her motor vehicle in a reasonably safe condition.

Foley claims that Instruction No. 25 shifts the burden relating to the safety of the vehicle from the seller to the owner. Foley also claims that the instruction was taken from a case out of context and is not applicable to the facts in this case.

Jury Instruction No. 25 is taken from Aetna Cas. & Sur. Co. v. Condict (S.D. Miss. 1976), 417 F.Supp. 63. Aetna involved a vehicle owner’s duty to maintain his vehicle for the protection and safety of third parties. Aetna, 417 F.Supp. at 69. Harrison Avenue proposed, and the District Court adopted, the language from Aetna to be applicable to the case at bar. We see no reason why the rule from Aetna is not applicable to vehicle owners in general. It is not unduly burdensome to require a vehicle owner to maintain his or her vehicle in a reasonably safe condition. Such a duty is consistent with an individual’s general duty of ordinary care and was appropriate under the circumstances.

Jury Instruction No. 25 does not shift a burden from the seller to the buyer, but rather creates concurrent duties. The seller of used automobiles has a duty to discover and repair defects which are patent and discoverable through a reasonable inspection. After the vehicle has been sold, the owner has a duty to maintain the vehicle in a reasonably safe condition. The jury instructions, when read as a whole, do not shift a burden from the seller to the buyer, but rather suggest separate and distinct duties for each party.

The jury was properly instructed concerning the parties’ respective duties. Jury Instruction No. 17 explained the extent and scope of Harrison Avenue’s duty to inspect and repair its vehicles before sale. Jury Instruction No. 25 explained to the jury Mrs. Foley’s duty to maintain her vehicle after she purchased it. We conclude that Instruction No. 25 did not shift any burden to the plaintiff and that the jury instructions, taken as a whole, are an accurate reflection of the law.

We affirm.

JUSTICES HARRISON, NELSON and WEBER concur.

JUSTICE TRIEWEILER

specially concurring in part and dissenting in part.

I concur with the majority’s conclusion that the judicial statements objected to in this case were not impermissible comments on the evidence.

I dissent from that part of the majority opinion which concludes that the jury was properly instructed and that plaintiff was not prejudiced by the instructions given to the jury.

The majority relies on our decisions in Rogers v. Hilger Chevrolet Co. (1970), 155 Mont. 1, 465 P.2d 834, and Kopischke v. First Continental Corp. (1980), 187 Mont. 471, 610 P.2d 668, to support its conclusion that Jury Instruction No. 17 was appropriate. However, neither of these cases were concerned with the appropriateness of similar language in an instruction to the jury. Therefore, they are not authority for the majority’s conclusion.

It is true that in Rogers, this Court included, in dictum, the language complained of by plaintiff. It is also true that that loose language was repeated in a lengthy discussion of used car dealers’ duties found in Kopischke. However, the mere fact that the language was included in discussions found in prior cases does not make it the proper substance of a jury instruction. In fact, by including that language, the District Court disregarded our clear admonition in Hunsaker v. Bozeman Deaconess Foundation (1978), 179 Mont. 305, 333, 588 P.2d 493, 509, where we stated that:

Another problem that this Court frequently confronts is that counsel or the trial bench too often draft instructions in the literal language of the opinions of this Court or the courts of other jurisdictions. While occasionally a statement in an opinion may also be a good jury instruction, we emphasize that opinions are not designed to be jury instructions. We are confident that the trial bench, together with counsel, if they take sufficient time and effort, can draft instructions that are better jury guides to the law than the literal language taken from court opinions. We encourage the bench and the bar to take the time to do so.

In this case, the objectionable language was that part of Instruction No. 17 which stated that: “However, the used car dealers duty does not extend to completely dismantling an automobile and then reassembling it before its resale.”

That language constituted an inappropriate comment by the District Court on plaintiff’s claim and must surely have confused the jury regarding the nature of plaintiff’s claim. It was never plaintiff’s position that the defendant in this case had a duty to dismantle the automobile which it sold to plaintiff’s decedent, then inspect the disassembled parts and reassemble it before resale. It was simply plaintiff’s position that there was technology available which would enable used car dealers to easily inspect for carbon monoxide leakage prior to the sale of used cars.

While the above comment may have been a correct statement of the law based on loose language found in Rogers and Kopischke, it had no relevance to the factual issues in this case, and in fact, implied to the jury that plaintiff’s claim was based on a duty which the law did not impose on defendant. It distracted the jury from the real issues which it should have been deciding, it was not supported by the evidence, and it should not have been given.

Even accurate statements of law should not be given to a jury where to do so creates an issue of fact unsupported by evidence and which would tend to mislead or divert the minds of the jurors from the real factual issues. See Diversified Management, Inc. v. Denver Post, Inc. (Colo. 1982), 653 P.2d 1103, 1110; Koehn v. R.D. Werner Co., Inc. (Colo. Ct. App. 1990), 809 P.2d 1045, 1049.

Jury Instruction No. 17 would have been more appropriately included in defendant’s final argument than in an instruction on the law given by the District Court. It was a perfect example of what we discussed in Hunsaker when we held that:

We note also that counsel frequently draft instructions at the last moment with little thought given as to whether they are fair and accurate statements of the law. They are frequently drafted from an adversary position and as a result they tend to unfairly benefit one of the adversaries. That is not the purpose of jury instructions. Jury instructions are no place to make final arguments. In addition to being easily understood, instructions should be a fair statement of the law and not slanted to the side of one adversary or the other.

Hunsaker, 588 P.2d at 509.

The error of giving Jury Instruction No. 17 was compounded by the District Court’s Instruction No. 25 which set forth the duty of plaintiff’s decedent. That instruction provided that the decedent had an unqualified duty to maintain her vehicle in a reasonably safe condition. It provided no exception where the defect was latent and undiscoverable, other than by dismantling her vehicle.

In other words, the combination of instructions numbered 17 and 25 placed a higher standard of care for inspection and maintenance of the subject vehicle on the unsophisticated consumer than on the defendant who engaged in the business of inspecting and selling vehicles and who employed a full-time mechanic to assist it in discovering and repairing defects. This result is the exact opposite of the respective burdens that were established in Kopischke where we held that:

“The used car dealer is in a better position, by reason of his opportunity, than his average customer to discover what defects might exist in any particular car to make it a menace to the public. We are of the opinion it is not too harsh a rule to require these dealers to use reasonable care in inspecting used cars before resale to discover these defects, which the customer often cannot discover until too late.” Gaidry Motors v. Brannon [(Ky. 1953)], 268 S.W.2d [627] at 628-629.

Further,

“... expectations of quality and durability will be lower for used goods, commensurate with their age, appearance and price. However, safety of the general public demands that when a used motor vehicle, for example, is sold for use as a serviceable motor vehicle (and not as junk parts), absent special circumstances, the seller be responsible for safety defects whether known or unknown at time of sale, present while the machine was under his control. Otherwise, the buyer and the general public are bearing the enterprise liability stemming from introduction of the dangerously defective used vehicle onto the public highways. Public policy demands that the buyer receive a used chattel safe for the purpose intended (where no substantial change will occur prior to reaching the buyer or foreseeable consumer) ...[.]” Turner v. International Harvester Company [(1975)], 336 A.2d [62] at 69.

Kopischke, 610 P.2d at 674.

Other than Jury Instructions No. 17 and 25, and the court’s general standard of care instruction, there were no other instructions to the jury regarding the respective duties of the parties. Therefore, the effect of the court’s instructions was to tell the jury that plaintiff’s decedent was absolutely liable for the safety of her vehicle, but that the dealer, who was in a better position by reason of his training and facilities, was only liable for defects which were readily apparent.

The combination of these instructions did not, as suggested by the majority, create reasonable concurrent duties. They imposed a higher standard of care on this unsophisticated consumer than on the more knowledgeable dealer.

What has, in fact, occurred in this case is that opinion language related to specific facts from previous cases has been taken out of context and used to construct jury instructions which, when applied in the factual context of this case, totally distorted the respective duties of the parties. The majority has unwittingly given its stamp of approval to this rearrangement of the tort law based on nothing more than the premise that if the language was included in prior decisions of this Court, it must be okay. I am anxious to see how they distinguish the next case that comes here under similar circumstances.

The effect of the court’s instructions and the majority’s opinion is to ignore traditional principles of negligence and the effect that a person’s knowledge and training has on the standard of care imposed. Therefore, I dissent from the majority opinion. For the reasons stated, I would reverse the judgment of the District Court and remand this case to the District Court for retrial with proper instructions to the jury.


author: JUSTICE TRIEWEILER

text:
    GARY D. FJELSTAD, as Conservator of MAREIA ELLEN FJELSTAD, a Protected Person, Plaintiff, Respondent, and Cross-Appellant, v. STATE OF MONTANA, Acting Through its Department of Highways, Defendant, Appellant, and Cross-Respondent.
    No. 93-400.
    Submitted on Briefs February 10, 1994.
    Decided October 25, 1994.
    51 St.Rep. 1047.
    267 Mont. 211.
    883 P.2d 106.

      For Appellant: R. H. Bellingham, T. Thomas Singer, and Harlan B. Krogh, Moulton, Bellingham, Longo & Mather, Billings.
    For Respondent: Donald W. Molloy, Molloy Law Offices, Billings; Theodore R. Drum, Goetz, Madden & Dunn, Bozeman; and Lee R. Kerr, Kerr Law Office, Hysham.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Plaintiff Gary D. Fjelstad commenced this action in the District Court of the Sixteenth Judicial District in Treasure County to recover damages for personal injuries sustained by his daughter Mareia as a result of an automobile collision that occurred on December 18,1988. Following trial, a Treasure County jury returned its verdict in favor of defendant State of Montana, finding that it was not negligent. Fjelstad moved for a new trial based on insufficiency of the evidence to support the jury’s verdict and based on newly discovered evidence which the State had known of prior to trial but had not disclosed. Fjelstad also moved the District Court to impose sanctions against the State because of its failure to disclose the newly discovered evidence in response to prior discovery requests. The District Court granted Fjelstad’s motion for a new trial, but denied his motion for sanctions. The State appeals from the District Court’s order granting a new trial. Fjelstad cross-appeals from the District Court’s order which denied his motion for the imposition of sanctions. We affirm the District Court’s order granting a new trial and remand for further proceedings regarding the issue of sanctions.

The issues raised by the parties are as follows:

1. Did the District Court abuse its discretion when it granted Fjelstad’s motion for a new trial based on newly discovered evidence pursuant to M. R. Civ. P. 60(b)?

2. Did the District Court abuse its discretion when it granted Fjelstad’s motion for a new trial pursuant to M. R. Civ. P. 59, and § 25-11-102, MCA, based on insufficiency of the evidence to support the jury’s verdict?

3. Did the District Court err when it refused to impose sanctions pursuant to M. R. Civ. P. 26(g), for defendant’s failure to disclose material evidence in response to written interrogatories?

FACTUAL BACKGROUND

On December 18, 1988, Ellen Fjelstad was operating her motor vehicle in a westerly direction on Interstate Highway 94 at a point approximately 9.7 miles east of Custer in Treasure County, Montana. For some reason, Ellen’s attention was distracted from the highway, she swerved to her right, left the highway, and struck the end of a guardrail while attempting to correct her vehicle and return to the highway.

The guardrail with which Ellen collided included a concrete end-post reinforced with steel and was anchored to the ground by a steel cable attached to buried concrete. Ellen’s car struck the concrete post, hooked onto the cable and flipped over on top of the guardrail so that it was upside down and facing east. Ellen and Jessica Simenson, a two-year-old passenger in the rear seat, were killed as a result of the collision. Ellen’s daughter, Mareia, who was a passenger in the front seat of the vehicle was thrown from the vehicle for a distance of approximately 50 feet and sustained severe head injuries.

Mareia’s father, Gary, commenced this action against the State of Montana to recover damages which Mareia has sustained because of her injuries. In his complaint, Gary Fjelstad alleged that the guardrail with which his wife Ellen collided was negligently designed, installed, and maintained by the State of Montana, and that the State’s negligence was a cause of Mareia’s injuries.

The State denied that it was negligent and alleged that its conduct with regard to the guardrail conformed to the applicable standard of care at all times prior to the date of this accident.

To understand the nature of Gary Fjelstad’s claim, and the basis for the District Court’s order granting a new trial, it is necessáry to briefly summarize the history of guardrail end treatment in Montana in general, and the history of the involved guardrail in particular.

Interstate Highway 94 through Montana was constructed in 1962. Guardrail was and is used along various locations of the highway to help prevent accidental runoff from the highway and reduce the frequency of physical injury and property damage. However, it was conceded by the Department of Highways that a guardrail itself constitutes a hazard on the highway and that the end treatment of guardrails has evolved over the years out of concern for the hazard it presents. The first guardrails constructed along Interstate 94 used an end known as a “blunt end.” It is more accurate to say the original guardrails involved no treatment at all. The guardrail simply ended. That type of design presented a hazard when struck by vehicles because the rail would enter the passenger compartment of the car and spear the passenger or driver.

During the early 1960s, the state of Texas developed a guardrail end treatment known as the Texas twist. That design featured an end treatment which was twisted 90 degrees and anchored to the ground. It provided several advantages. First, it anchored the entire length of the rail to provide greater longitudinal strength and resistance to damage from collision. Second, the design was more crash worthy than the blunt end because there was no rail with which colliding vehicles could be speared. The Texas twist was adopted by Montana as its standard for guardrail end treatment in 1967 and remained the State’s standard until 1971. Although the date is unclear from the record, a Texas twist end treatment was constructed at the scene of Ellen Fjelstad’s fatal accident in the Hysham hills sometime prior to 1971 and remained there until it was replaced by a buried anchor end treatment in 1977.

In 1971, Montana adopted the buried anchor end treatment as its standard. This design is also referred to as the California end anchorage, indicating the state in which it was developed. This design is similar to the blunt end treatment originally used in Montana. However, additional tensile force was provided by anchoring the guardrail to a concrete slab placed in the ground a few feet from the endpost. The guardrail and the concrete slab were connected by a steel cable attached to the buried concrete slab and connected to the rail between the first and second posts. The buried anchor end treatment was adopted from a California standard which required that the endpost be composed of wood and that the end treatment be flared away from the road so that it was located beyond the clear zone or at least 30 feet from the fog line on the highway. However, when the buried anchor end treatment was installed at the scene of Ellen Fjelstad’s collision, the endpost was constructed from concrete reinforced with steel bars and was located only 20 feet from the travelled portion of the highway.

In the mid-1970s, highway designers began development of an end treatment for guardrails know as the “break away cable treatment” (BCT). The BCT was developed to improve the crash worthiness of guardrail end treatments and became the adopted standard for Montana on June 1,1979. The BCT provided stability to the guardrail by use of longitudinal tension provided by a steel cable which passed through and attached to the first post. However, the first and several subsequent posts are designed to be constructed of wood so that they break away on impact. In theory, when the first post breaks the cable is released and the rail should buckle more easily during impact and reduce the likelihood of spearing the passenger compartment of the vehicle. The State’s experts agreed that penetration of a vehicle with the BCT end treatment is less frequent than with the buried anchor design. They further agreed that the dynamics of Ellen Fjelstad’s accident and the forces which caused Mareia’s injuries would have been different had the BCT been in place at the accident scene in 1988.

In 1984, after the BCT was adopted as the standard for guardrail end treatments in Montana, the State Highway Department engaged in an overlay project on the stretch of highway where Ellen’s accident occurred. In an overlay project, an asphalt mat is placed on top of the roadway to preserve the riding surface. The State offered evidence that while they would occasionally raise guardrails during an overlay project to maintain the necessary height above the travelling surface of the roadway, it was not the State’s policy in 1984 to upgrade end treatments on guardrails to conform to existing standards. However, that policy changed on August 20, 1986, when Steven C. Kologi, a pre-construction engineer for the Montana Department of Transportation, signed a memorandum to the Federal Highway Administration indicating that on future resurfacing projects the State would upgrade all guardrail end treatments for break away cable treatment. That change was to be effective January 1,1987.

At trial, Gary Fjelstad alleged that the State Department of Highways was negligent in several respects with regard to the end treatment that existed at the time of Ellen’s accident.

1. He alleged that the State was negligent for switching from the “Texas twist,” which provided crash worthy features, to the “buried anchor” treatments, which had no crash worthy features;

2. He contended that the State was negligent for failing to replace the unsafe buried anchor treatment with the break away cable treatment during the overlay project which occurred during 1984; and

3. He contended that, even if you assume that the buried anchor treatment was reasonable when installed, the State was negligent for using a reinforced concrete endpost and constructing the dangerous end treatment within the 30 foot “clear zone” recommended by the standard from which the buried end treatment was adopted.

The State, on the other hand, defended on the basis that the Texas twist presented hazards unique to its design; that the federal government at one time encouraged use of the buried anchor design; and that it was not unreasonable to retain that design in 1984 during the overlay project. By its verdict, the jury agreed.

PRETRIAL DISCOVERY

Prior to trial, Fjelstad submitted written interrogatories and requests for production to the State. Interrogatory No. 33 was as follows:

Prior to the date of the accident alleged in the complaint, did any person, organization or any of your employees recommend or advise any repairs, alterations, or changes in guardrails on any interstates in Montana which did not meet standards which were current as of that date? If so, for each recommendation, state:
a. The name of the person, organization or employee;
b. The date made;
c. What the recommendation or advice was;
d. Whether any action was taken by you as a result of such recommendation or advice;
e. The action taken.

On March 20,1991, the State provided the following objection and answer to Fjelstad’s interrogatory:

Defendant objects to this interrogatory on the grounds that it is overbroad, unduly burdensome and oppressive. To answer this interrogatory fully would require this defendant to question every employee who has ever worked for the State of Montana. Without waiving its objections, defendant states that a reasonable search of the record has revealed no complaints responsive to this request.

The State’s answer to Interrogatory No. 33 was never amended prior to trial.

Prior to trial, Fjelstad scheduled depositions of several Highway Department officials. Served with their notices of deposition were subpoenas duces tecum requiring that they produce at the time of their deposition, “any and all documents ... which relate, pertain, or refer to the guardrail design, replacement, or assessment located at Montana interstate highway 94, 9.7 miles east of Custer....” Neither of the documents which were the subject of the District Court’s order granting a new trial were produced in response to those subpoenas.

POST-TRIAL DEVELOPMENTS

The trial of this case began on March 17, 1993, and the jury returned its verdict in favor of defendant on March 19. The jury, by its verdict, found that defendant was not negligent by its installation or maintenance of the guardrail end treatment with which Ellen Fjelstad collided. Judgment was entered for the State on March 29, 1993.

On April 5, 1993, pursuant to M. R. Civ. P. 59, and § 25-11-102, MCA, Fjelstad moved for a new trial based on the insufficiency of the evidence to support the jury’s verdict. The basis for that motion was that the State’s employees admitted that when they adopted the buried anchor end treatment as its standard in 1971, its standard was patterned after design requirements which were not followed in this case.

On April 28,1993, fjelstad filed a second motion entitled “Motion for Relief from Judgment and for Sanctions” pursuant to M. R. Civ. P. 60(b) and 26(g). The basis for his Rule 60(b) motion was that subsequent to trial he discovered relevant evidence which had been in the State’s possession prior to trial and which would have been beneficial to his case but which was not disclosed by the State, in spite requests for its identification and production. In support of that motion, fjelstad filed the affidavit of his attorney who stated that while discussing this case with another Montana attorney following trial, he was provided by that attorney with documents discovered from the State in another case which related to the issue of upgrading guardrails during overlay projects. Those documents, which were attached to that affidavit, included a November 21,1978, memorandum from the Director of Engineering for the Federal Highway Administration’s Department of Transportation to regional Federal Highway Administrators and a December 13, 1978, letter from the Federal Highway Administration’s Division Administrator to the Director of the Montana Department of Highways, which passed on a copy of the November 21, 1978, memorandum. The November 21, 1978, memorandum related to upgrading guardrail installations during overlay projects and stated in relevant part that:

The purpose of this memorandum is to remind personnel responsible for project program and PS&E reviews, construction and final inspections, and maintenance inspections that they should be vigilant for the need to adjust guardrails or other highway appurtenances. They should also be alert to opportunities to upgrade obsolete barrier installations .... [Emphasis added.]

The December 13, 1978, cover letter from the Federal Division Administrator to Montana’s Director of the Department of Highways stated in relevant part that:

When construction and maintenance forces add overlays it is important that the guardrail be corrected to the proper height. Existing substandard guardrails should be upgraded wherever possible. Please take appropriate action necessary to alert your personnel of the importance of obtaining standard guardrail installations. ... [Emphasis added.]

Fjelstad argued that the withheld documents supported his contention that the reasonable practice in 1984, when the Hysham Hills overlay project was completed, was to upgrade substandard guardrail end treatments and that disclosure of the documents would have, in all likelihood, changed the outcome of this trial. He also contended that since the State had these documents in its possession since 1978, and was sufficiently aware of them to disclose them in another case, the State’s failure to do so in this case violated M. R. Civ. P. 26(g) because the State’s response to Interrogatory No. 33 was interposed for an improper purpose and will cause Fjelstad the undue burden and expense of a second trial.

In response to Fjelstad’s Rule 60(b) motion the State acknowledged that on March 10, 1992, nearly one year prior to trial, Carl S. Peel, assistant pre-construction engineer for the Department of Highways, faxed the two documents in question to counsel for defendant but contended that since the documents related only to guardrail height requirements, counsel for defendant correctly concluded that they were irrelevant when he withheld them.

On May 25,1993, the District Court granted Fjelstad’s motion for a new trial based on both the insufficiency of the State’s evidence and the discovery of new evidence. In its order, the District Court found that the documents in question were directly related to Fjelstad’s discovery requests, were known to the State since 1978, and had been provided to defendant’s attorney more than one year prior to trial. The District Court, furthermore, found: that Fjelstad exercised diligence in his efforts to discover the information prior to trial; that given the State’s position, he was unable to discover the documents prior to trial; and that had the documents been provided, the outcome of the trial, in all probability, would have been different.

Without explanation, plaintiff’s motion for sanctions pursuant to Rule 26(g) was denied.

I

Did the District Court abuse its discretion when it granted Fjelstad’s motion for a new trial based on newly discovered evidence pursuant to M. R. Civ. P. 60(b)?

We have previously held that, “[t]he decision to grant a new trial is within the sound discretion of the trial judge and will not be overturned absent a showing of manifest abuse of discretion.” Stanhope v. Lawrence (1990), 241 Mont. 468, 471, 787 P.2d 1226, 1228. We have recently reiterated the “manifest abuse of discretion” standard in Jim’s Excavating Service, Inc. v. HKM Associates (1994), [265 Mont. 494], 878 P.2d 248, 259.

In cases that are more on point, we have previously held that the standard of review of a district court order granting a new trial based on newly discovered evidence is simply whether the district court abused its discretion. In State v. Lewis (1978), 177 Mont. 474, 483, 582 P.2d 346, 352, we held that “the matter of granting or refusing a new trial for newly discovered evidence rests largely in the discretion of the District Court. ...” (Citation omitted.)

Whether or not we specifically intended a less demanding standard of review for orders granting a new trial based on newly discovered evidence, than from orders granting a new trial on some other basis, is unclear. However, for the purpose of consistency we will review the District Court’s order in this case granting Fjelstad’s Rule 60(b) motion, and we will review future orders granting a new trial based on newly discovered evidence consistent with the “manifest of abuse of discretion” standard most recently set forth in Jim’s Excavating Service.

Rule 60(b) provides in relevant part that:

On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons:... (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); ... [t]he motion shall be made within a reasonable time, and for reasons (1), (2), and (3) when a defendant has been personally served... not more than 60 days after the judgment, order or proceeding was entered or taken, or, in a case where notice of entry of judgment is required by Rule 77(d), not more than 60 days after service of notice of entry of judgment.

Our prior decisions establish additional criteria for the consideration of Rule 60(b)(2) motions. We have held that the factors which must be considered by the District Court include:

1. The alleged “newly discovered” evidence came to a party’s knowledge after the trial;
2. It was not a want of diligence which precluded its earlier discovery;
3. The materiality of the evidence is so great it would probably produce a different result on retrial; and
4. The alleged “new evidence” is not merely cumulative, and not tending to impeach or discredit witnesses in the case.

See Kerrigan v. Kerrigan (1943), 115 Mont. 136, 144-45, 139 P.2d 533, 535; Kartes v. Kartes (1977), 175 Mont. 210, 214, 573 P.2d 191, 193; Barmeyer v. Montana Power Company (1983), 202 Mont. 185, 203, 657 P.2d 594, 603.

In this case, the State does not deny that the evidence first came to Fjelstad’s attention after trial, nor does the State contend that by the exercise of diligence he could have discovered it sooner. On appeal from the District Court’s order, the State argues that Fjelstad failed to satisfy the last two requirements for a new trial based on newly discovered evidence.

Specifically, the State contends that (1) the newly discovered documents related only to guardrail height, not to end treatments, and therefore, were not material; (2) if material, the documents were merely cumulative of the State’s own guidelines and recommendations to which the State subscribed; and (3) for the previous two reasons, there was no reasonable probability that the newly discovered documents would produce a different result if this case is retried.

Based upon our independent review of the pre-trial discovery, the trial transcript, and the respective positions of the parties as expressed throughout these proceedings, we disagree with the State’s argument.

First, it is clear that the recommendations included in the documents generated by the federal government pertain to more than simply guardrail height. The November 21, 1978, memo from the Federal Highway Administration was for the stated purpose of reminding highway personnel that “they should also be alert to opportunities to upgrade obsolete barrier installations” and refers State personnel to the AASHTO (American Association of State Highway and Transportation Officials) “Guide for Selecting, Locating, and Designing Traffic Barriers” for that purpose. By that time the AASHTO guide specifically recommended the installation of break away cable design for guardrail end treatment. Furthermore, the Federal Highway Administration’s December 13,1978, memo specifically stated that when overlays are added to existing highways, “substandard guardrails should be upgraded whenever possible.” There was no suggestion in the government’s memorandum that only those guardrails which are substandard due to their height needed to be upgraded. Second, the evidence was not cumulative of the State’s own standards or those standards established by the AASHTO. The State’s witnesses plainly testified that the State had no policies requiring that guardrail end treatments be upgraded until 1986, and that while it occasionally considered AASHTO guidelines, it was not the State’s policy to routinely follow them.

Instead, the State’s witnesses testified that its decisions were more routinely dictated by the Federal Highway Administration and even implied that the FHA approved its failure to upgrade the guardrail end treatment from the buried anchor design that was in place at the time of its overlay project in 1984.

Kologi, who at the time of trial was in charge of planning functions for the Department of Transportation and worked for that department as a pre-construction engineer until 1989, testified that the State originally went to the buried anchor treatment based on the recommendations of the Federal Highway Administration. He explained that recommendations from the FHA were significant to all of the States’ design decisions because on the interstate highway system the federal government paid a little more than 90 percent of the cost.

Kologi testified that anytime there were improvements to portions of the interstate highway system in Montana, the drawings for those improvements had to be submitted to the Federal Highway Administration for their approval. He also stated that Montana originally abandoned the Texas twist end treatment because they were being leaned on by the FHA.

Therefore, we conclude that subsequently discovered evidence which indicated that contrary to Montana’s policy, the Federal Highway Administration had recommended prior to 1984 that guardrail end treatments be upgraded during overlay projects, was neither cumulative nor did it simply tend to impeach the State’s witnesses.

Third, we conclude from our review of the record that there is substantial evidence to support the District Court’s conclusion that the newly discovered evidence would probably produce a different result on retrial. The State defended against Gary Fjelstad’s claim on the bases that: the guardrail end treatment about which he complained had been installed at the suggestion of the federal government; that it was bound to follow the federal government’s recommendations in order to obtain federal funding; and that the federal government approved its 1984 overlay project knowing that a non-crash worthy end treatment would not be upgraded. It can hardly be questioned that that evidence was significant to the jury’s finding that the State was not negligent. Nor can it be questioned that the jury would have given less weight to that evidence had it known that five and one-half years prior to the 1984 overlay project the State had been instructed by that same Federal Highway Administration to upgrade obsolete barrier installations to conform with the AASHTO guidelines which by then called for the installation of break away cable end treatment.

For these reasons, we conclude that there has been no showing of manifest abuse of discretion by the District Court when it set aside the judgment entered in favor of the State of Montana and granted Gary Fjelstad’s motion for a new trial pursuant to M. R. Civ. P 60(b)(2).

II

Did the District Court abuse its discretion when it granted Fjelstad’s motion for a new trial pursuant to M. R. Civ. P. 59, and § 25-11-102, MCA, based on insufficiency of the evidence to support the jury’s verdict?

Based on our discussion in the previous section, and our holding which affirms the District Court’s order granting a new trial based on newly discovered evidence, we see no need, and therefore, decline to discuss whether a new trial was also warranted based on insufficiency of the evidence.

Ill

Did the District Court err when it refused to impose sanctions pursuant to M. R. Civ. P. 26(g) for defendant’s failure to disclose material evidence in response to written interrogatories?

Fjelstad moved for the imposition of sanctions against the State of Montana pursuant to Rule 26(g), which pertains to inaccurate discovery responses, and provides in relevant part that:

The signature of the attorney or party constitutes a certification that the signer has read the request, response, or objection and that to the best of the signer’s knowledge, information, and belief formed after a reasonable inquiry it is: (1) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; (2) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (3) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation....
If a certification is made in violation of the rule, the court upon motion or upon its own initiative, shall impose upon the person who made the certification ... an appropriate sanction. [Emphasis added.]

In its order granting Fjelstad’s motion for a new trial, the District Court found that the newly discovered documents were “directly related” to the information sought by Fjelstad’s written Interrogatory No. 33 and further stated

that the documents, were known to the [State] ... since 1978 and were produced by “fax” transmission to the lawyers for the State in this litigation ... more than a year before trial and well before depositions were taken of the State’s witnesses. The State’s witnesses were questioned during depositions about the existence of a written documents [sic] regarding upgrade of guardrails during overlay projects. They were also asked about the federal government’s role in the guardrail installation and upgrade process. Despite having the documents they were not produced by the State. The Court believes they should have been produced.
The plaintiffs exercised diligence before trial and did not get the documents at issue when they should have been produced. The record shows that the evidence was not discovered, nor could it have been, given the position of the defendant, before the trial. The court believes the documents would have altered discovery, would have led to the disclosure of different or additional witnesses, and would have changed the course of the trial ... [and] that the outcome of the trial probably would have been different.
The plaintiff’s motion for imposition of sanctions is denied.

Although we have previously affirmed the imposition of sanctions pursuant to Rule 26(g), see Jerome v. Pardis (1989), 240 Mont. 187, 783 P.2d 929; Eisenmenger v. Ethicon (1994), 264 Mont. 393, 871 P.2d 1313, and although we have held in Eisenmenger that our standard of review from an order imposing sanctions for discovery abuses is whether the District Court abused its discretion, we have not previously articulated a standard of review from a district court order which denies the imposition of sanctions pursuant to Rule 26(g). Furthermore, there are few decisions from other jurisdictions applying Rule 26(g) since its inclusion in the Federal Rules of Civil Procedure in 1983. There are, however, several cases to which we look for guidance.

In Clipse v. State (Wash. Ct. App. 1991), 808 P.2d 777, the Washington Court of Appeals affirmed the imposition of sanctions pursuant to Rule 26(g) based upon the plaintiff’s misleading and inaccurate disclosure of expert witnesses. Quoting the Advisory Committee Notes (1983), 97 F.R.D. 165, the court noted that the rule “imposes on the attorney a duty to make a ‘reasonable inquiry’into the factual basis of a response, request, or objection ...” and that “what is reasonable is a matter for the court to decide on the totality of the circumstances.” Clipse, 808 P.2d at 779. The court further noted that an objective test is applied and that “[a]lthough the nature of the sanction is a matter of judicial discretion, the rule mandates imposing sanctions if they are appropriate under the rule.” Clipse, 808 P.2d at 779 (emphasis added).

The Washington Supreme Court elaborated upon this standard in Washington State Physicians Exch. & Ass’n v. Fisons Corp. (Wash. 1993), 858 P.2d 1054. That court held that, in addition to application of an objective standard to determine whether an attorney has made a reasonable inquiry, the trial court should determine

whether an attorney has complied with the rule ... [and] consider all the surrounding circumstances, the importance of the evidence to its proponent, and the ability of the opposing party to formulate a response or to comply with the request.

Fisons, 858 P.2d at 1078.

The court further noted that:

In applying the rules to the facts of the present case, the trial court should have asked whether the attorneys’ certifications to the responses to the interrogatories and requests for production were made after reasonable inquiry and (1) were consistent with the rules, (2) were not interposed for any improper purpose, and (3) were not unreasonable or unduly burdensome or expensive.
Instead, the trial court considered the opinions of attorneys and others as to whether sanctions should be imposed. This was error. ... It is the responsibility of the court deciding a sanction motion to interpret and apply the law.

Fisons, 858 P.2d at 1078. As noted in Pardis, 783 P.2d at 922, Montana adopted M. R. Civ. P., 26(g) “in 1984 along with the amendments to its parallel, Rule 11, M.R.Civ.P., which governs abuses in pleadings and motion practice.” For that reason, it is appropriate to look to our standard of review from orders denying Rule 11 sanctions for guidance in this case. That standard, as set out in D’Agostino v. Swanson (1990), 240 Mont. 435, 446 784 P.2d 919, 926, states that: (1) the district court’s findings of fact will not be overturned unless clearly erroneous; (2) the district court’s conclusion that the facts constitute a violation of Rule 11 will not be reversed absent an abuse of discretion; (3) review de novo is appropriate only if the violation is based upon the legal sufficiency of a plea or motion; (4) if Rule 11 has been violated the district court must impose sanctions on the offending party, his counsel, or both; and (5) failure to impose sanctions where the Rule has been violated will be deemed reversible error.

We have held, however, that the type of sanction imposed for violation of Rule 11 is uniquely within the discretion of the district court. D’Agostino, 784 P.2d at 919.

Moreover, the notes of the Advisory Committee for the 1983 Amendments to the Federal Rules of Civil Procedure make clear the mandatory nature of sanctions where the elements of Rule 26(g) have been satisfied. Those notes provide that:

Because of the asserted reluctance to impose sanctions on attorneys who abuse the discovery rules ... Rule 26(g) makes explicit the authority judges now have to impose appropriate sanctions and requires them to use it. ... The new rule mandates that sanctions be imposed on attorneys who fail to meet the standards established in the first portion of Rule 26(g). The nature of the sanction is a matter of judicial discretion to be exercised in light of the particular circumstances.

97 F.R.D. 165, 220 (emphasis added).

Therefore, we adopt the following standard of review from a district court’s order-denying sanctions pursuant to Rule 26(g):

1. The district court’s findings of fact will not be overturned unless clearly erroneous.

2. The district court’s conclusion that the facts do or do not constitute a violation of Rule 26(g) will not be reversed absent an abuse of discretion.

3. If the district court concludes that Rule 26(g) has been violated, sanctions must be imposed upon the offending party and failure to do so will be deemed reversible error.

4. The nature and extent of sanctions imposed by the district court pursuant to a violation of Rule 26(g) will not be reversed absent an abuse of discretion.

In this case, we are unable to review the District Court’s order denying Fjelstad’s motion for sanctions because the District Court did not enter findings specifically pertaining to Rule 26(g), and did not draw any conclusion whether the rule was or was not violated. Therefore, we vacate that part of the District Court’s order which denied Fjelstad’s motion for the imposition of sanctions against the State of Montana pursuant to M. R. Civ. P. 26(g), and remand this case to the District Court for more specific findings and its conclusion whether Rule 26(g) was or was not violated under the circumstances in this case.

The order of the District Court granting plaintiff Gary Fjelstad’s motion for a new trial is affirmed. The order of the District Court denying Fjelstad’s motion for sanctions pursuant to Rule 26(g) is vacated and this matter is remanded to the District Court for further proceedings consistent with this opinion.

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


author: JUSTICE HUNT

text:
    GOODMAN REALTY, INC., a Montana corporation, GERRY L. SMITH and KATHY A. SMITH, husband and wife, Plaintiffs and Appellants, v. LAURA M. MONSON, Defendant and Respondent.
    No. 94-070.
    Submitted on Briefs September 22, 1994.
    Decided October 27, 1994.
    51 St.Rep. 1074.
    267 Mont. 228.
    883 P.2d 121.

      For Appellants: Stephen C. Berg, Warden, Christiansen, Johnson & Berg, Kalispell.
    For Respondent: William E. Astle, Astle & Astle, Kalispell.
   JUSTICE HUNT

delivered the Opinion of the Court.

Goodman Realty, Inc., and Gerry and Kathy Smith jointly filed a complaint in the District Court for the Eleventh Judicial District in Flathead County requesting that Laima Monson execute a document clarifying the Smiths’ rights regarding a drainfield on Monson’s property which services the Smiths’property. Alternatively, if Monson refused to execute the requested document, plaintiffs sought a decree adjudging the location of the drainfield on the Monson property and declaring the existence of an easement for use of the drainfield appurtenant to the Smiths’ property. Pursuant to Mont. R. Civ. P. 12(b), Monson filed separate motions to dismiss as to Goodman Realty and the Smiths. After considering the briefs of parties, the District Court dismissed with prejudice the claims of both Goodman Realty and the Smiths and entered orders. Goodman Realty and the Smiths appeal from those orders. We affirm the District Court.

The parties raise the following issues on appeal:

1. Does the complaint set forth sufficient facts to support a claim for reformation of a written instrument?

2. Did the Smiths acquiesce in the warranty deed?

3. Does Goodman Realty’s pecuniary interest in the outcome of the Smiths’ claim against Monson create a basis upon which Goodman Realty may bring a claim against Monson?

Because this appeal arose from the District Court’s granting of a motion to dismiss, the record in this case consists of the complaint and the exhibits attached to it, which set forth the following facts:

Prior to April 1986, Jean Peterson owned an undivided parcel of land in Flathead County. In April 1986, Peterson divided the parcel into two separate tracts, Flathead County Assessor’s Tract 4D and Tract 4DA. Tract 4D lies immediately east of Tract 4DA and adjoins the easterly property line of Tract 4DA.

In November 1988, Peterson’s successor in interest, Beneficial Montana, Inc., doing business as Beneficial Mortgage Co. (Beneficial), conveyed Tract 4DA to Laura Monson. At the time of the conveyance to Monson, a drainfield servicing Tract 4D physically existed on Tract 4DA. The location of the drainfield is depicted on Flathead County Certificate of Survey No. 8549, dated April 21, 1986. The certificate of survey indicates that a “drainfield easement appurtenant to Tract 4D” existed on Tract 4DA. However, the deed of conveyance from Beneficial to Monson merely refers to the certificate of survey and fails to specifically describe any easement over Tract 4DA.

On May 13,1993, the Smiths purchased Tract 4D by warranty deed from Paul and Phyllis Jenkins. Goodman Realty facilitated the Smiths’ purchase. Prior to the sale, Goodman Realty and the Smiths agreed that Goodman Realty would post a $10,000 indemnity sum with Citizen’s Title and Escrow Company to indemnify the Smiths in the event that Tract 4DA was not subject to a drainfield easement for the benefit of Tract 4D.

In reviewing a motion to dismiss, we construe the complaint in the fight most favorable to the plaintiffs and take the allegations of the complaint as true. King v. State (1993), 259 Mont. 393, 395-96, 856 P.2d 954, 955 (citing Willson v. Taylor (1981), 194 Mont. 123, 126, 634 P.2d 1180, 1182).

When a case is dismissed pursuant to a pretrial motion and the credibility of witnesses is not an issue, the scope of review is broad and this Court may make its own examination of the entire case and make a determination in accordance with its findings.

King, 856 P.2d at 955. The dismissal will be affirmed only if this Court finds that the plaintiffs are not entitled to relief under any set of facts which could be proved in support of the claim. King, 856 P.2d at 955 (citing Proto v. Missoula County (1988), 230 Mont. 351, 352-53, 749 P.2d 1094, 1095-96).

ISSUE 1

Does the complaint set forth sufficient facts to support a claim for reformation of a written instrument?

The warranty deed conveying Tract 4D from the Jenkinses to the Smiths contains the following description:

SUBJECT TO Drainfield easement over insured property [Tract 4D] for the benefit of Assessors Tract No. 4DA, as disclosed by document recorded July 21, 1988 as Doc. No. 88-203-08470, records of Flathead County, Montana.

The Smiths claim that the described easement is backwards, and that in fact a drainfield easement runs over Tract 4DA for the benefit of Tract 4D. To rectify the alleged error, the Smiths seek the equitable remedy of reformation.

The mistake of the scrivener or draftsperson who prepared the instrument alone is insufficient grounds for reformation. 66 Am. Jur. 2d Reformation of Instruments § 12 (1973). The proper grounds for reformation are set forth in § 28-2-1611, MCA:

When written contract may be revised by court. When, through fraud or a mutual mistake of the parties or a mistake of one party while the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons in good faith and for value.

Absent a satisfactory showing of fraud, mutual mistake, or unilateral mistake, there is no basis for a court in equity to reform a written instrument. Plaintiffs do not allege fraud in the instant case. Therefore, we address only the issues of mutual and unilateral mistake.

Reformation of a written instrument for mutual mistake presupposes a prior complete and mutual understanding between the parties to the instrument. McSweyn v. Musselshell County (1981), 193 Mont. 525, 531, 632 P.2d 1095, 1098. Such a meeting of the minds is necessary because it serves as the standard from which the instrument maybe reformed. Sullivan v. Marsh (1950), 124 Mont. 415, 422, 225 P.2d 868, 872. Mutual mistake, however, is not applicable where the plaintiff knew of the mistake. Schillinger v. Huber (1958), 133 Mont. 80, 85, 320 P.2d 346, 348.

Likewise, a plaintiff who knows of the mistake prior to executing the written instrument cannot sustain a claim for reformation based on unilateral mistake. Schillinger, 320 P.2d at 348. In Story v. City of Bozeman (1993), 259 Mont. 207, 223, 856 P.2d 202, 212, this Court explained that § 28-2-1611, MCA, specifies unilateral mistake as “the mistake of one party while the other at the time knew or suspected.” Additionally,

[i]n interpreting § 17-901, R.C.M. (1947), (the identical predecessor to § 28-2-1611, MCA), we stated that the right to reform a contract for unilateral mistake does not lie for the party who knew of the mistake in the contract; rather, it belongs to the aggrieved party who is laboring under a mistake known or suspected by the other party.

Story, 856 P.2d at 212 (citing Schillinger, 320 P.2d at 348). In Story, the City of Bozeman asserted that a typographical error in its contract with Mark Story Construction provided a sufficient basis for its reformation claim. Instead of listing the unit of measurement for the necessary materials in “CY’ (cubic yards), the contract erroneously fisted the unit of measurement in “CF” (cubic feet). Prior to executing the contract, however, the City of Bozeman had actual knowledge of the typographical error and failed to remedy it. We held that

[a]s such, the City cannot claim that it was laboring under a mistake that the contract read “CY.” Pursuant to Schillinger, the party who knows of the mistake cannot seek to reform the contract based on unilateral mistake.

Story, 320 P.2d at 212.

The pertinent portions of the complaint in the instant case allege as follows:

VI
Through drafting errors, instruments of records subsequent to April, 1986 erroneously described the drainfield easement as being located on the Smith property (Assessor Tract 4D) for the benefit of the Monson property (Assessor Tract 4DA) rather than on the Monson property, where the drainfield is actually located, for the benefit of the Smith property. The deed by which Smith took title, Exhibit A hereto, perpetuates this error ....
VII
As reflected on Exhibit A [Jenkins-Smith warranty deed] hereto, Smith purchased the Smith property by warranty deed dated May 13, 1993. Prior to doing so, Smith understood the location of the drainfield serving the Smith property to be on the Monson property and that the Monson property was subject to an easement for that purpose, which easement was appurtenant to the Smith property. Smith further understood that such belief was not supported by various instruments of record including the deed by which Smith acquired title ....

(Emphasis added).

The complaint clearly demonstrates that the Smiths had actual knowledge of the location and operation of the drainfield on Tract 4DA. Furthermore, the complaint clearly demonstrates that before purchasing Tract 4D the Smiths had actual knowledge that the warranty deed described the alleged easement contrary to their understanding. Therefore, we conclude that the Smiths failed to set forth sufficient facts to support a claim for reformation.

ISSUE 2

Did the Smiths acquiesce in the warranty deed?

This Court reaffirms the longstanding rule of law that a person who is not acting under mistake or fraud and who acquiesces in an error loses his right to object to the error. Schillinger, 320 P.2d at 349; § 1-3-207, MCA. In Schillinger, buyer and sellers entered into a land sale contract in which the sellers reserved 6-1/4 percent of the oil and gas rights and royalties on the land to be conveyed to buyer. Buyer and sellers later met to transfer title by deed; however, no one present had a copy of the land sale contract. Sellers stated to the scrivener preparing the deed that they reserved all but 6-1/4 percent (or 93-3/4 percent) of the oil and gas rights and royalties. Buyer testified that he knew at that time that the terms of the deed varied from the land sale contract. Despite his knowledge of the variance, buyer testified that he voluntarily accepted and executed the deed and paid the balance of the purchase price. Seven years later, buyer found a copy of the land sale contract and brought suit to reform the deed after sellers refused to correct it. This Court held that, because the buyer accepted the deed with knowledge of the mistake, the right of reformation was destroyed. Schillinger, 320 P.2d at 347, 350.

In the instant case, the District Court concluded that the Smiths are not entitled to reformation because they received the deed to Tract 4D with actual knowledge that, although the drainfield was physically located on Tract 4DA, the alleged easement for use of the drainfield was erroneously recorded against Tract 4D. We agree.

In their brief on appeal, the Smiths argue that

[w]hen Monson refused to execute a document clarifying who had an easement on whose property [], the Smiths had to make a decision. The question was whether to go forward, purchase the property from Jenkins and resolve the easement matter later with Monson or the District Court, or refuse to purchase the property. They chose the former alternative ....

The Smiths, therefore, voluntarily accepted the warranty deed from the Jenkinses, knowing that its terms expressly failed to conform with their understanding of their rights. We conclude that, in doing so, the Smiths acquiesced in the warranty deed as executed.

The Smiths argue that the brief length of time between the execution of the deed from the Jenkinses and the filing of the complaint in this case is relevant to show that they did not acquiesce in the warranty deed. However, the length of time between notice of the mistake and application for redress is relevant only to implied acquiescence. Schillinger, 320 P.2d at 349-50. The Smiths’ acquiescence here is direct, not implied. Like the plaintiff in Schillinger, the Smiths knew of the mistake at the time of delivery of the deed, yet voluntarily executed the agreement despite that knowledge. The Smiths’ reasons for doing so are not relevant. This Court, in Schillinger, stated:

Regardless of [the purchaser’s] reasons for doing so, by paying the balance of the purchase price after he knew of the mistake in the deed, and when he was not acting under fraud he can only be held to have acquiesced in the mistake.

Schillinger, 320 P.2d at 350.

We hold that the Smiths acquiesced in the warranty deed.

ISSUE 3

Does Goodman Realty’s pecuniary interest in the outcome of the Smiths’ claim against Monson create a basis upon which Goodman Realty may bring a claim against Monson?

Plaintiff Goodman Realty placed its $10,000 real estate commission for the sale of Tract 4D in escrow to indemnify the Smiths in the event that a drainfield easement over Tract 4DA for the benefit of Tract 4D did not exist. Because the release of the $10,000 depends on the resolution of the dispute between the Smiths and Monson, Goodman Realty argues that its pecuniary interest in the outcome is sufficient to create a cause of action between Goodman Realty and Monson. Goodman Realty argues that

[i]n an action to reform a deed, all parties claiming an interest to the land or any part thereof purportedly conveyed by the instrument sought to be reformed, and whose interests will be affected by the reformation of the instrument, are necessary parties to the action.

66 Am. Jur. 2d Reformation of Instruments § 100 (1973). While this may be a correct statement of the law, Goodman Realty alleges no interest in the property of either the Smiths or Monson. Its only interest is in the $10,000 indemnification sum which is wholly unrelated to the property interests at issue. Further, the complaint does not allege that Monson breached any duty owed to Goodman Realty. In fact, Goodman Realty admits that Monson owes it no legal duty. Goodman Realty clearly does not state a cause of action against Monson, and the District Court correctly dismissed its claim.

We affirm the orders of the District Court dismissing with prejudice the claims of the Smiths and Goodman Realty.

Affirmed.

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