text:
    FRED W. MAGERS and Cecila Magers, Donald R. Abrahamson and Louine W. Abrahamson, Thomas Tillman and Thomas Orcutt, and Helen R. Orcutt, Plaintiffs and Respondents, v. NICK MALLAS, Defendant and Appellant.
    No. 89-578.
    Submitted on Briefs June 28, 1990.
    Decided Aug. 7, 1990.
    796 P.2d 571.

      Edmund P. Sedivy, Jr., Morrow, Sedivy & Bennett, Bozeman, for defendant and appellant.
    C. Richard Anderson, John P. Davis, Butte, for plaintiffs and respondents.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from an order of the Fifth Judicial District, Madison County, granting summary judgment in favor of the plaintiffs, Fred Magers, et al. (Residents) and finding defendant, Nick Mallas (Mallas) liable for the debts of the limited partnership, Shining Mountains. We reverse.

The sole issue on appeal is:

Whether a general partner of a limited partnership, who is admitted to that partnership subsequent to its entrance into a contractual obligation, can be held personally hable for breach of that contract.

This is the third time a controversy surrounding this case has been before this Court. We will provide a brief outline of the history of this controversy as it relates to the case now before us.

In the early to middle 1970’s, Shining Mountains, a limited partnership, subdivided and sold lots on a 7,000 acre ranch located in Madison County, Montana. Residential lots were sold pursuant to land contracts which contained covenants that provided, inter aha, that Shining Mountains would oversee and maintain all common areas, including roads within the subdivision. The Residents also maintained that Shining Mountains personnel informed them that roads would be constructed and maintained by the sellers. Shining Mountains failed to build the roads and the Residents sued. The trial court granted summary judgment in favor of the Residents and held that Shining Mountains had an implied covenant to construct the roads which were located on a recorded plat. Shining Mountains appealed and we reversed, holding that the plats, in and of themselves, did not give rise to a promise to construct roads. We held that there were factual issues regarding the use made of these plats and what representations were made in the sale of lots. We directed the lower court in addressing this issue to determine whether the plats were used to induce the purchases. See Majers v. Shining Mountains (1986), 219 Mont. 366, 711 P.2d 1375. (Magers in the case now on review is the same party as Majers which is cited in earlier opinions.)

Upon remand, and subsequent trial, the District Court found that Shining Mountains had represented during sales campaigns that it would construct the roads. It then ordered specific performance of the contract and awarded attorney’s fees. Shining Mountains appealed and we affirmed the findings of the trial court in full. Majers v. Shining Mountains (1988), 230 Mont. 373, 750 P.2d 449.

Following this appeal, Shining Mountains made no meaningful effort to construct the roads. Therefore, after a number of hearings in the lower court, the partnership was ordered to pay the Residents the sum of $565,000, which was the estimated cost of roadway construction. The Residents were unable to execute on the judgment however, and they later learned that the partnership had filed for bankruptcy in the United States Bankruptcy Court District of California.

The Residents then moved the District Court to enter summary judgment against Mallas, who had become a general partner in Shining Mountains on August 28, 1984, after the disputed agreements were executed. The District Court granted the order and found Mallas jointly and personally liable for the costs of the roadways. This appeal followed.

The District Court based its conclusion on two principles of law. First, it held that under § 35-10-309, MCA, Mallas was personally liable for the judgment against Shining Mountains because the judgment was an obligation that only came into existence upon the resolution of the trial, which occurred on September 30, 1986. See Majers v. Shining Mountains (1988), 230 Mont. 373, 750 P.2d 449. Second, the District Court held that Mallas, in his capacity as general partner, personally assumed the obligation to construct roadways. We will address each of these holdings separately.

To begin, we note that under § 35-12-803(2), MCA, a general partner of a limited partnership is liable to the same extent and in the same manner, as a partner in a partnership. Section 35-10-309, MCA, defines this liability:

“A person admitted as a partner into an existing partnership is liable for all the obligations of the partnership arising before his admission as though he had been a partner when such obligations were incurred, except that this liability shall be satisfied only out of partnership property.” (Emphasis added.)

Mallas argues that while he is liable for the debts of the partnership, he is only liable to the extent of his partnership assets. He maintains that the obligation to build the roads devolved upon Shining Mountains when it entered into the various land sales contracts with the Residents. Since these contracts were executed prior to the time he entered into the partnership, he maintains that he cannot be held personally liable.

The lower court disagreed and held that the obligations were not incurred until the court issued its final judgment in the trial, which was held after remand from our reversal of its order for summary judgment. This occurred after Mallas assumed responsibility as a general partner. Under this theory Mallas would be personally hable, in accordance with § 35-10-309, MCA, because the debt only became due and owing when final judgment was entered, and not when the contracts were executed.

We disagree. Ajudgment does not create a new right. Rather, it has long been recognized that a judgment merely defines and determines what rights already exist. Neel v. First Federal Sav. and Loan Assoc. (1984), 207 Mont. 376, 675 P.2d 96. In this case, the judgment rendered by the District Court only had the effect of enforcing an obligation which arose when the sales contracts were executed. As such, the obligation and resultant liability came into existence when the land sales contracts were signed — not when judgment was entered against Shining Mountains. Mallas was not a general partner when the contracts were executed and therefore under § 35-10-309, MCA, he cannot be held personally hable for the debt. His liability only extends to his partnership assets.

The lower court also held that Mallas, in his capacity as general partner, voluntarily assumed the obligations to build the roads. In coming to this conclusion it relied upon a New York case, Wood v. MacAfee (1918), 172 N.Y. Supp. 703, which holds that an incoming partner may voluntarily make himself liable for existing debts of a partnership. The New York court further held that an intent to assume such debts may be inferred from facts and circumstances surrounding the incoming partner’s inception into the partnership. The District Court maintains that, through his actions of continuing the partnership, and in particular through his efforts to build the needed roads, Mallas voluntarily assumed the obligations.

We disagree. There is no evidence offered by the Residents that indicates that Mallas personally assumed the obligations of Shining Mountains. To the contrary, all evidence indicates that Mallas was merely tending to partnership business, and fulfilling his duty to the partnership through his attempts to build the roads and resolve the conflict with the Residents. He cannot, therefore, be held personally liable on the grounds that he assumed any obligation to build the roads.

When this controversy was presented to the District Court, both parties moved for summary judgment. The lower court, in accordance with Rule 56(c), M.R.Civ.P., found that there was no issue of material fact and determined as a matter of law that Mallas was personally hable. We agree there is no material issue of fact; however, we disagree with the lower court’s application of the law. Under § 35-10-309, MCA,

Mallas is only personally liable for debts which arose subsequent to his admittance to the partnership. As stated earlier, the contractual obligations at issue here, arose well before he assumed responsibilities as a general partner. Furthermore, there is no evidence that Mallas voluntarily assumed these obligations. We therefore hold that the lower court erred in failing to grant Mallas’ motion for summary judgment and the judgment is reversed, and the case remanded with instructions to enter judgment in favor of Mallas stating that his personal liability is limited to the extent of his partnership assets.

CHIEF JUSTICE TURNAGE and JUSTICES BARZ, SHEEHY and WEBER concur.


source: Caselaw Access Project

author: JUSTICE SHEEHY

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DOUGLAS RICHARD BOESE, Defendant and Appellant.
    No. 90-042.
    Submitted on Briefs May 30, 1990.
    Decided Aug. 7, 1990.
    795 P.2d 978.

      Antonia P. Marra, Bell & Marra, Great Falls, for defendant and appellant.
    Stephen Hudspeth, Deputy County Atty., Great Falls and Marc Racicot, Atty. Gen., Helena, for plaintiff and respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Appellant Douglas Richard Boese appeals from the District Court, Eighth Judicial District, Cascade County, his convictions of burglary and attempted theft. We affirm the District Court.

The sole issue raised on appeal is whether the evidence was sufficient to sustain the appellant’s convictions of burglary and attempted theft.

Boese was discovered on the premises of a Great Falls business, the Plush Pillow, sometime after midnight on February 21, 1989. Boese, a former employee, was discovered kneeling down behind the counter where the cash register was located. Boese had gained entrance by a back door left unlocked. Boese was asked by the owner’s husband, Dave McClellan, what he was doing in the store. Boese replied he was waiting for a current employee at the store. McClellan told Boese that that employee was in another state at that time. McClellan then noticed a money bag on the floor near Boese’s feet.

McClellan picked up the phone and informed Boese he was calling the police, whereupon Boese fled. McClellan picked up the bag and pursued Boese, shouting that none of the contents of the bag had better be missing and telling Boese to stop. Boese yelled back “Come on, Dave, give me a break.” McClellan went back to the phone and Boese exited the rear of the building.

City police officers responding to McClellan’s call found Boese in his vehicle behind the store. Boese’s car was stuck in the snow. Boese was then taken into custody.

It had been store policy until shortly before Boese’s arrest to leave money in the store overnight. However, the sales manager, in January or February of 1989, began taking the money home with her. She testified that on the night of February 21, 1989, she took the money with her and left the bag in a drawer in the counter. At that time the bag contained only candy, not money as it did during business hours.

Boese was charged with burglary and attempted theft. A bench trial was held on September 25,1989, and Boese was found guilty on both counts.

Boese contends on appeal that the State did not prove the elements of either burglary or attempted theft. As to the burglary conviction, Boese cites the recent case of State v. Feldt (1989), [239] Mont. [398,] 781 P.2d 255, for the premise that the State must prove an ex-employee entered the business after hours without permission. This mischaracterizes Feldt completely. Feldt was an employee of the business at the time the alleged break-in occurred. Boese was no longer employed at the Plush Pillow when he was found on the premises. It was clear from the testimony that Boese was not authorized to be in the store on the night in question.

Section 45-6-204(1), MCA, defines burglary as follows:

“A person commits the offense of burglary if he knowingly enters or remains unlawfully in an occupied structure with the purpose to commit an offense therein . . .”
“Enters or remains unlawfully’ is defined in sec. 45-6-201, MCA, reading in pertinent part:
“A person enters or remains unlawfully... when he is not licensed, invited, or otherwise privileged to do so.”

Boese cannot sustain his claim that his entry was by right. It was clearly an illegal entry.

Having satisfied one prong of the burglary statute, we now address Boese’s contention that the State failed to prove Boese intended to commit an offense therein. While it is true that no theft occurred, testimony was presented that the money bag had been moved between the closing time and the time when Boese was discovered in the store with the bag at his feet. Further, Boese lied about his reason for being in the store, fled the premises when confronted, and lied to police officers as to his conduct scant minutes later. While these actions constitute circumstantial evidence, that evidence was sufficient for the court to infer that Boese did an act toward the commission of a theft and with such purpose. Section 45-4-103, MCA; State v. Cox (1987), 226 Mont. 111, 733 P.2d 1307. Boese’s conduct by his flight and false statements indicates consciousness of guilt, and supports the court’s conclusion that Boese was interrupted in the commission of a theft from an occupied structure. State v. Walker (1966), 148 Mont. 216, 419 P.2d 300.

Viewed in the light most favorable to the State, the evidence showed that Boese attempted to burglarize the Plush Pillow; that he was not authorized to be on the premises; and that he was interrupted in the commission of a theft. We hold that, based on facts adduced at trial, a rational trier of fact would have found Boese guilty of the essential elements of burglary and attempted theft beyond a reasonable doubt. State v. Moreno (1990), [241 Mont. 359,] 787 P.2d 334.

Affirmed.

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


author: JUSTICE HARRISON

text:
    ARNOLD F. KRUSE and Patricia Kruse, Plaintiffs and Appellant, v. CASCADE COUNTY, A municipal Corporation of the State of Montana, Dick Michelotti, Treasurer, Cascade County and the Department of Revenue, State of Montana, Defendants and Respondents.
    No. 90-152.
    Submitted on Briefs June 14, 1990.
    Decided Aug. 7, 1990.
    796 P.2d 568.

      Dirk Larsen, Larsen and Neill, Great Falls, for plaintiffs and appellants.
    Larry G. Schuster, Dept, of Revenue, Property Assessment Div., Helena, for defendants and respondents.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Arnold and Patricia Kruse appeal the judgment of the Eighth Judicial District Court of Cascade County holding that the Montana Department of Revenue and Cascade County had legal authority to impose back taxes on real property owned by the Kruses. Because they did not prevail in their case, the District Court also denied the Kruses’ request for attorney’s fees and costs pursuant to § 25-10-711, MCA. We affirm the District Court judgment.

Appellants raise two issues for review:

1. Did the District Court err in finding that the Montana Department of Revenue and Cascade County had the legal authority to correct erroneous assessments upon the Kruses’ real property for the tax years 1986 and 1987 pursuant to § 15-8-601, MCA?
2. Did the District Court err in finding that the appellants were not entitled to an award of attorney’s fees and costs pursuant to § 25-10-711, MCA?

Arnold and Patricia Kruse own seven parcels of real property which form a contiguous, irregularly shaped block in Great Falls, Montana. Three of the parcels front 10th Avenue South and four front 11th Avenue South. The property was unimproved and not within the city limits of Great Falls during the tax years at issue.

In 1985 the Department of Revenue (DOR) completed a program of cyclical reappraisals of all taxable real property in Montana. As part of that reappraisal, new appraised values were assigned to the Kruses’ property. The Cascade County Appraisal Office determined that property on 10th Avenue South between 26th Street and 34th Street, including the Kruses’ property identified as Mark 15A, Mark 15B, and Mark 15C, was to be valued at $700 per front foot, and property on 11th Avenue South between 26th Street and 34th Street, including Kruses’ property identified as Mark 18, Mark 18A, Mark 18B and Mark 18C, was to be valued at $160 per front foot.

On January 1,1986, erroneous values were assigned to the Kruses’ seven parcels of rear property. The three parcels fronting 10th Avenue South as well as the four parcels fronting 11th Avenue South were assigned values of $2,500 per acre rather than the previously determined appraised values as set out above. The erroneous values were carried forward for the 1987 tax year. The Kruses paid their 1986 and

1987 real property taxes based on those erroneous values on time and without protest.

In the spring of 1988, a DOR appraiser discovered that the Kruse property had been erroneously assessed. The Cascade County Appraisal Office then reviewed all properties on 10th Avenue South and found that 42 parcels of property fronting 10 th Avenue South had been erroneously assessed. As a result, the DOR and Cascade County set out to correct the erroneous assessments of 10th and 11th Avenues South properties for the tax years 1986 and 1987. To correct the erroneous assessments the Cascade County Treasurer sent supplemental tax bills to the property owners involved. The Kruses received their supplemental tax bill in the amount of $5,316.84 on August 29, 1988 and paid the additional taxes under protest to the Cascade County Treasurer on September 27, 1988.

In their letter of protest the Kruses stated that they had already paid their 1986 and 1987 property taxes in full. They further stated that Cascade County was imposing additional, retroactive taxes unlawfully. The Kruses then brought this suit for return of the taxes paid under protest and for their attorney’s fees and costs.

The appellants contend that the actions of the DOR and Cascade County in 1988 amounted to a reappraisal of the properties in question and resulted in an illegal and unlawful imposition of additional retroactive taxes for 1986 and 1987. The DOR and Cascade County maintain that no new appraisal occurred, but the property had been erroneously assessed and § 15-8-601, MCA, grants authority to correct erroneous assessments.

The trial court entered judgment in favor of Cascade County and DOR, stating that the erroneous assessment was simply a clerical error, and ordered the Cascade County Treasurer to disburse the $5,316.84 of taxes which had been paid under protest for the 1986 and 1987 tax years. The Kruses now appeal that judgment.

Issue 1: Authority to Correct Erroneous Assessments

The controlling statute is § 15-8-601, MCA, which reads, in pertinent part:

“(1) Whenever the department of revenue discovers that any taxable property of any person has in any year escaped assessment, been erroneously assessed, or been omitted from taxation, the department may assess the same provided the property is under the ownership or control of the same person who owned or controlled it at the time it escaped assessment, was erroneously assessed, or was omitted from taxation. All such revised assessments must be made within 10 years after the end of the calendar year in which the original assessment was or should have been made.” (Emphasis added.)

The situation presented by this case is subject to § 15-8-601, MCA, and may be remedied as the statute provides. The trial court heard testimony from four staff members of DOR’s Cascade County Appraisal Office: Mr. Nick Lazanas, Director during the reappraisal; Mr. George Tyner, the lead commercial appraiser; Mr. Joe Seipel, the current supervisor; and Mr. Tom Pysher, the lead residential appraiser. Their testimony clearly indicated that the value of the Kruse property fronting 10th Avenue South had been established at $700 per front foot and that the value of the Kruses’ 11th Avenue South property had been established at $160 per front foot by the 1985 reappraisal, that the erroneous tax assessment of $2,500 per acre was caused by a clerical error, and that no new appraisal was made in 1988.

Erroneous assessments may be corrected if property has been undervalued due to a clerical or appraisal error. Evans Products Co. v. Missoula County (1982), 201 Mont. 337, 654 P.2d 523. Property which has not been fully taxed according to appropriate tax procedures may be properly reassessed pursuant to § 15-8-601, MCA. Balock v. City of Melstone (1980), 186 Mont. 303, 607 P.2d 545.

We agree with the trial court that the Kruses’ seven parcels of real property were erroneously assessed for the tax years 1986 and 1987. The DOR previously determined appraised values of $700 per front foot and $160 per front foot for the Kruses’ properties. Due to an error those values were not transmitted to Cascade County’s assessment rolls. During 1988 the error was discovered. The DOR did not rely on any new appraisal to correct the prior erroneous assessments. Rather, the DOR clearly adhered to previously determined values which had not been entered upon the tax rolls of Cascade County. The seven Kruse parcels were erroneously assessed within the meaning of § 15-8-601, MCA. The DOR and Cascade County acted properly pursuant to § 15-8-601, MCA, in 1988 by assigning the previously determined values to the Kruse real property.

Issue 2: Attorney’s Fees and Costs

The Kruses contend that the DOR’s actions amounted to an illegal imposition of back taxes and its defense of the case was frivolous and conducted in bad faith. The Kruses allege they are therefore entitled to their attorney's fees and costs pursuant to § 25-10-711, MCA. In part, the statute reads:

“(1) In any civil action brought by or against the state, a political subdivision, or an agency of the state or a political subdivision, the opposing party, whether plaintiff or defendant, is entitled to the costs enumerated in 25-10-201 and reasonable attorney’s fees as determined by the court if:
“(a) he prevails against the state, political subdivision, or agency; and
“(b) the court finds that the claim or defense of the state, political subdivision, or agency that brought or defended the action was frivolous or pursued in bad faith.

Section 25-10-711, MCA.

The appellant failed to meet both requirements of § 25-10-711(1), MCA. The Kruses did not prevail against the DOR as required by subsection (a) nor did the trial court find the DOR’s defense of the action frivolous or pursued in bad faith as required by subsection (b). The trial court made specific findings of fact that the DOR’s defense in this case was meritorious, not frivolous or in bad faith. The trial court concluded that the DOR had an absolute duty to defend and refused to award costs and attorney’s fees.

Additionally, § 15-8-115, MCA, requires the DOR to defend any property tax appeal. Where a State agency has a legal duty to provide a defense, there can be no finding of bad faith or a frivolous defense under the statute. Matter of Dearborn Drainage Area (Mont. 1989), [240 Mont. 39,] 782 P.2d 898, 46 St.Rep. 1925.

We hold that the trial court correctly found that the respondents were not liable for attorney’s fees and costs under § 25-10-711, MCA.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, BARZ and WEBER concur.


text:
    EDWARD A. CUMMINGS and Carole J. Cummings, Plaintiffs and Respondents, v. JOSEPH CANTON, a/k/a Joe Canton; Jim Canton; William G. Schiller, Sr.; Clara Schiller, Sr.; Clara Schiller; Ruffatto Land & Cattle Co., a Montana corp.; Loretta C. Ruffatto; Timothy Watson; Wayne A. Herman; Metropolitan Life Insurance Company, a corporation; Ravalli County; John Foley; and all other persons; unknown, claiming or who might claim any right, title, estate or interest in or lien or encumbrance upon the property described in the complaint adverse to Plaintiffs' ownership or any cloud upon Plaintiffs’ title thereto, whether such claim or possible claim be present or contingent, Defendants and Appellants.
    No. 90-085.
    Submitted June 15, 1990.
    Decided Aug. 17, 1990.
    796 P.2d 574.

      Richard R. Buley, Tipp, Frizzell & Buley, Missoula, for defendants and appellants.
    John T. Spangler, Cummings Law Firm, Missoula, for plaintiffs and respondents.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

The plaintiffs, Edward and Carole Cummings (Cummings), filed a quiet title action in Fourth Judicial District Court, Ravalli County. The defendants answered the quiet title complaint by claiming a prescriptive easement over Cummings’ land. The District Court granted Cummings’ quiet title claim, and denied defendants’ prescriptive easement claim. Now the defendants appeal the District Court’s denial of their prescriptive easement claim. We affirm.

Did the District Court err in denying defendants’ prescriptive easement claim?

Cummings own in fee simple the following described property in Ravalli County, Montana:

“The South half of the Northeast quarter (SV2NI/4) of Section 9, the South half (SV2) of Section 9, the North half of the Northwest quarter (NV2NWV4) of Section 9, and the Southeast quarter of the Northwest quarter (SEkiNWt^) of Section 9, all in Township 9 North, Range 20 West, P.M.M., Ravalli County Montana.”

Defendants, Joseph Canton and Jim Canton have an ownership interest in land in two parcels. One parcel is north of Cummings’ property and the other is south. The defendants have access to both of their parcels of land through county roads, however, it would be more convenient for the defendants to travel between their two parcels of land by using abandoned County Road No. 22, which crosses Cummings’ property.

The Cantons own a ranch known as the “Home Place,” which is located in Sections 10 and 15, Township 9 North, Range 20 West, P.M.M., Ravalli County, Montana. The Cummings’ property lies adjacent to the Home Place on the west. The Cantons also own 80 acres in Section 4, Township 9 North, Range 20 West, P.M.M. Ravalli County, Montana. This parcel is known as the ‘Tipper Eighty” or the “Eighty Acres.” It is not contiguous to the Home Place. The Eighty Acres lies approximately one and one-half miles northwest of the Home Place.

The Cantons have sold portions of the Eighty Acres to fellow defendants, William G. Schiller, Sr., Clara Schiller and Timothy Watson. The sale included a transfer to them of all easements appurtenant to the property.

County Roadway No. 22, commonly called Bass Creek Loop Road is the shortest route between the Home Place and the Eighty Acres. County Road No. 22 travels generally north-south for approximately one-half mile through the eastern edge of Cummings’ property, then runs east-west one-half mile along the north border of Cummings’ property to the location of the old Bass School. From the school, the road then turns to run north-south along the western edge of the Eighty Acres. One mile north of the school, the road turns to rim east-west and connects with Highway 93 on the east.

In November, 1987, the Ravalli County Commissioners held public hearings on a petition to abandon County Road No. 22. Later, on January 15, 1988, the Ravalli County Commissioners abandoned a portion of County Road No. 22 by adopting Resolution No. 440. The portion of County Road No. 22, which was abandoned by Resolution No. 440, includes all of that portion of road which in the past crossed the Cummings’ property.

Shortly after Ravalli County abandoned County Road No. 22, conflict arose between the Cummings and the Cantons over use of the abandoned portion of County Road No. 22, where it crossed Cummings’ property. The abandoned road provided a short cut for the Cantons traveling between the Home Place and the Eighty Acres. The Cantons in the past used the road to transport cattle and equipment between their properties.

Since January 15,1988, Cantons’ use of the road has been without the permission of the Cummings who have attempted to prevent anyone from using the portion of the abandoned road which crosses the Cummings’property. The Cummings have requested the Cantons to ask permission before using the road through the Cummings’ property. The Cantons have refused.

The Cummings filed their quiet title action on September 14,1988. Defendants claim their previous use of the road created a prescriptive easement. The District Court disagreed with the defendants, and granted Cummings’ quiet title claim.

Whether the District Court erred in denying defendants’ prescriptive easement claim?

To establish a prescriptive easement, the owner of the purported dominant tenement must establish open, notorious, exclusive, adverse, continuous and unmolested use of the servient tenement for the full statutory period of five years required to acquire title by adverse possession. Riddock v. City of Helena (1984), 212 Mont. 390, 396, 687 P.2d 1386, 1389; Garrett v. Jackson (1979), 183 Mont. 505, 508, 600 P.2d 1177, 1179. In order to determine if the defendants meet the above elements, we must first determine if the abandoned section of County Road No. 22 was previously a public road. As shown below, the defendants cannot establish a prescriptive easement by traveling on a public road. The public nature of the road prevents its use from being either adverse or exclusive.

The principal contention of appellants is that the road abandoned by the county and the road over Cummings’ property for which a prescriptive easement is claimed are not the same roads.

The evidence at trial overwhelmingly supports the District Court’s finding that the abandoned portion of County Road No. 22 crossing Cummings’ property was previously a public road. Defendant Joe Canton testified at trial that the road was a public road and that the County maintained the road. When asked about his recollection of the road use during his 69 years of living near the south end of County Road No. 22, Canton stated the following:

“Q. (By Mr. Cummings) Okay. So when you were in the first grade you lived here. A. Yes.
“Q. Okay. The way you got from — and when you were in the first grade, did you attend the first grade at this location? A. Correct.
“Q. Okay. Is it true that the way you got from your home to get to school in the first grade was you went up Shear Brook Lane and up Bass Creek Loop to the Bass Creek School? A. Correct.
“Q. Okay. Is is true that there was also a county mail route along this route? A. Correct.
“Q. Okay. Is it also true that from the time you can remember when you were just starting the first grade that this Bass Creek Loop Road was a very, very old road? A. Yes.
“Q. Is it also true that as long as you can remember the county has maintained that road? A. Yes.
“Q. Is it also correct that all the people, the members of the public, used this section, this three-eighths mile of Bass Creek Loop to get up to the Bass Creek School and back? A. Correct.
“Q. Okay. That’s from as long as you can remember. A. Yes.
“Q. As a matter of fact your understanding was at all times from when you were little that this was a county (road) where it crossed my ground. A. Correct.”

Joe Canton’s testimony reveals that historically County Road No. 22 was used as a public road, and maintained by Ravalli County. “... If the road had been used and traveled by the public generally as a highway, and is treated and kept in repair as such by the local authorities whose duty it is to open and keep in repair public roads, proof of those facts ‘furnishes a legal presumption that such road is a public highway.’” State v. Auchard (1898), 22 Mont. 14, 17, 55 P. 361, 362, overruled on other grounds, Reid v. Park County (Mont. 1981) 627 P.2d 1210, 1213. The defendants have failed to show the road over which they claim an easement was not a public road. The evidence at trial revealed that the public freely traveled on the road. Furthermore, the road was shown on county maps as County Road No. 22, Bass Creek Loop Road. The defendants in their answer to Cummings’ complaint admitted the abandoned portion of County Road No. 22 was previously a public road.

Again, in order for a prescriptive easement to be acquired there must be open, notorious, exclusive, adverse, continuous, and unmolested use. Riddock, 687 P.2d at 1389; Garnet, 600 P.2d at 1179. A public road is one which all people have a right to use. A defendant cannot establish a prescriptive easement by traveling on a public road. The open and public nature of the road forestalls its use from being adverse or exclusive. Thus, the defendants have failed to meet the elements of a prescriptive easement. Accordingly, we affirm the District Court.

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


author: JUSTICE WEBER

text:
    IN RE THE MARRIAGE OF JULIE R. GRAVELEY, Petitioner and Respondent, v. CHARLES A. GRAVELEY, Respondent and Appellant.
    No. 89-330.
    Submitted on Briefs June 20, 1990.
    Decided Aug. 20, 1990.
    796 P.2d 585.

      J. C. Weingartner, Helena, for respondent and appellant.
    Robert J. Sewell, Jr., Smith Law Firm, Helena, for petitioner and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

Charles A. Graveley (Charles) appeals from the valuation of child support awarded against him in the District Court of the First Judicial District, Lewis and Clark County. We affirm.

We restate the issues before us as follows:

1. Whether the District Court’s award of child support was in error?
2. Whether the District Court’s order of child custody was in error?

Charles and Julie Graveley were married on February 18, 1984. They had one child, Morgan, born on October 1,1984. On October 30, 1986, Julie filed an action for dissolution of the marriage. The dissolution was granted on January 3, 1989.

Charles is a self-employed lawyer/farmer. He has been practicing law for more than 15 years. He testified he devotes approximately equal time to each occupation. The record reveals that on various loan applications, Charles reported incomes of $54,800 per year in 1982, $56,580 per year in 1983; and $42,000 per year in September, 1986. Charles paid $500 per month in temporary child support prior to the entry of the final decree. Charles testified that his income over the last year was $3,139, and also testified that the divorce had resulted in a reduced ability on his part to work productively, and a consequent reduction in income.

Julie worked as a secretary and was a licensed real estate agent. The District Court found that Julie had assets of $22,980 and a net monthly income exclusive of child support of $997.08. Child care costs are $240 per month.

The District Court concluded that Charles’ testimony of annual income of $3,139 was unbelievable. In its supplemental decree the District Court ordered Charles to pay child support of $500, and also ordered each party to pay child care costs of $120. Such payments are to continue until the child attains the age of 18 years. Charles appeals that decision.

I

Whether the District Court’s award of child support was in error?

Charles maintains that the District Court erred in its assignment of income to Charles resulting in an inequitable award of child support. He argues that the District Court failed to follow the Child Support Guidelines relative to Julie’s income. He further argues that the lower court erred in awarding child care costs until the child is 18 years old. He maintains that once the child begins school, the cost of child care will cease and he should not have to continue to pay such costs.

Julie maintains that § 40-4-204, MCA, provides the District Court with the discretion to determine a parént’s true disposable income, and is not bound by income tax returns. She urges that it is disposable income and not income tax returns alone which must be considered by a court in determining child support. We agree.

The Child Support Guidelines (1987), [227 Mont. 1,] 44 St.Rep. 828-842, are a form of suggestive procedure which is to be applied by the District Court in the use of its discretion. Absent a clear abuse of discretion, the District Court will not be overruled. See Gray v. Gray (1990), [242 Mont. 69,] 788 P.2d 909, 47 St.Rep. 552. A presumption exists in favor of the judgment, and the lower court will be reversed only if appellant demonstrates that there was a clear abuse of discretion. In re Marriage of Johnson (1987), 225 Mont. 404, 732 P.2d 1345.

In Gray, we held that when determining income under the Guidelines, it is disposable income of the parent, and not income tax returns alone, which must be considered by the Court. We conclude that the District Court did not abuse its discretion. In reviewing Charles’ income, it made the following pertinent findings:

“7. [Charles] contends that only $74,425.00 of his $554,542.00 in assets as reported on an [sic] March 1988 financial statement furnished in the fall of 1988, must be recognized under the Support Guidelines adopted by the Supreme Court. [Charles] has reported to local financial institutions total assets of $559,135.00 in September of 1987, $609,197.75 in December 1986, and $906,635.00 in October 1985. [Charles] claims his finances have deteriorated due to the impending dissolution of his marriage.
“8. . . . [Charles] represents his income over the last year to be $3,139.00. The court is hard pressed to believe this figure. [Charles] is a bright, capable attorney and he can earn a substantial living.”

The record before us supports the findings and conclusions of the District Court. Furthermore, the District Court made it very clear in its supplemental decree regarding child custody and support that Charles shall pay $500 per month for child support and $120 per month for child care costs until Morgan is 18 years old. Substantial evidence supports day care costs $240 per month. The District Court ordered each parent to pay half of that amount, or $120 per month. We hold that the District Court’s award of child support was proper.

II

Whether the District Court’s order of child custody was in error?

After making specific findings that Morgan was in good health, well adjusted to her lifestyle, and too young to express an opinion as to her custodial arrangements, the District Court awarded the parties joint custody of Morgan. Charles was awarded custody on alternating weekends from 6:00 p.m. on Friday until 6:00 p.m. on Sunday, plus an additional sixty (60) days during the year at such times and for such period as the parties shall agree.

Charles maintains that the order “totally eliminated any contact between the father and the child on any holidays”. He contends that equity dictates that he be allowed contact at fixed times during nationally recognized holidays on an alternating basis with Julie.

Julie points out that Charles exercised visitation with Morgan only on 35 days out of the 52 days to which he was entitled during the year preceding the hearing. She maintains that the parties have handled the alternation of custody in an amicable manner.

Julie provided the District Court with a visitation schedule for 1988, detailing the date and time Julie left with Charles and the date and time he brought her back. It reveals that Charles had Julie with him on Christmas in 1988.

Section 40-4-212, MCA, provides that a district court shall consider the best interests of the child in determining child custody. Section 40-4-217, MCA, provides that visitation shall be reasonable. Substantial evidence in the record supports the award of custody by the District Court. The record fails to demonstrate any requirement for change. We conclude there has been no abuse of discretion. We hold that the order of child custody was proper.

Affirmed.

JUSTICES BARZ, SHEEHY, McDONOUGH and HUNT concur.


author: CHIEF JUSTICE TURNAGE

text:
    CLAYTON E. DeVOE, Plaintiff and Appellant, v. GUST. LAGERQUIST & SONS, INC., and Jerry Brown, its Western Regional Manager, Defendants and Respondents.
    No. 89-606.
    Submitted on Briefs June 28, 1990.
    Decided Aug. 20, 1990.
    Rehearing Denied Sept. 18, 1990.
    796 P.2d 579.

      David Rodli, George Curtis DeVoe, Missoula, for plaintiff and appellant.
    Kim L. Ritter, Missoula, for defendants and respondents.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

This suit arose out of a contract for the sale and installation of an elevator. A jury in the District Court for the Fourth Judicial District, Missoula County, found for defendants. Plaintiff Clayton E. DeVoe appeals. We affirm.

The issues are:

1. Did the District Court err in refusing to dismiss the lien foreclosure action?
2. Did the court err by denying the motion to alter or amend the verdict?
3. Did the court err in awarding prejudgment interest?
4. Did the court err by granting defendants attorney fees?

In February 1987, Clayton E. DeVoe (DeVoe) contracted to buy an elevator from Gust. Lagerquist & Sons, Inc. (Lagerquist), through its representative, Jerry Brown. The elevator was installed in a building DeVoe owned in Missoula, Montana. DeVoe was dissatisfied with both the installation and the performance of the elevator, which, according to him, remained unusable at the time of trial.

In August 1987, having received no payment for the elevator, Lagerquist filed a lien against DeVoe’s building. At the same time, DeVoe filed a complaint against Lagerquist and Brown, alleging breaches of contract and warranty, negligent or fraudulent misrepresentation, and breach of the covenant of good faith and fair dealing. The following month, Lagerquist filed a complaint against DeVoe to foreclose its lien.

The two actions were consolidated for jury trial, at which the evidence conflicted on several points. The original of the contract, which had been typed by DeVoe’s son, was placed into evidence by DeVoe. It required “[cjompletion to be on or before 11 weeks from this date or date of confirmation of shipping by factory whichever is later, or Seller will reduce cost by $50.00 per day, until completed.” It appeared that the “11” had been typed over a ”13.” DeVoe testified that 11 weeks had been agreed upon. Brown testified that, following negotiations, they had agreed that Lagerquist would have 13 weeks to build and install the elevator.

DeVoe testified that the 11 weeks began to rim on February 12, by agreement. Brown testified that the 13 weeks began to run on February 26, the day he received confirmation of shipping from the factory. DeVoe testified that installation of the elevator was never really completed, and that Lagerquist’s workers left the j ob a few days before May 20 and only came back to answer repair calls after that date. Brown testified that the elevator was completely installed on May 13 and that on May 22 it was retrofitted with a new computer control panel and finally adjusted. The testimony further conflicted on the extent and causes of problems with the elevator.

The jury was given a special verdict form. It found that Lagerquist did not breach the contract, its warranties, or its implied duty of good faith and fair dealing; that Lagerquist did not fraudulently misrepresent material facts; and that Lagerquist’s actions did not damage DeVoe’s business reputation. It also found that Lagerquist was entitled to enforcement of its construction lien, setting the amount of damages at $21,500. The court ordered that DeVoe pay prejudgment interest of $3,762.50 and costs and attorney fees of $30,113.89.

I

Did the District Court err in refusing to dismiss the lien foreclosure action?

After the two separate actions had been filed, DeVoe moved that the lien foreclosure be dismissed, or, in the alternative, that the two actions be consolidated. The court granted the motion to consolidate. DeVoe maintains that the lien foreclosure should have been dismissed under the doctrine of election of remedies. He argues that Lagerquist is precluded from claiming both that it installed the elevator within the time allowed and that it filed its lien in a timely manner. He points out that, in their answer to his complaint, the defendants stated that the elevator was completely installed by May 14.

A lien must be filed within ninety days after the final services or materials were furnished. Section 71-3-535, MCA. The date triggering the ninety-day period is not the date that installation was completed, but the date that work was last done. In addition to stating that the elevator was completely installed by May 14, the answer to DeVoe’s complaint stated that a computer card in the elevator malfunctioned and was repaired subsequent to May 14. The answer to DeVoe’s complaint in tort did not dispose of the issue in the lien foreclosure action of when work was last done on the elevator.

We conclude that the court did not err in granting DeVoe’s motion to consolidate the two actions instead of his motion to dismiss the lien foreclosure action.

II

Did the court err by denying the motion to alter or amend the verdict?

DeVoe contends that the special verdict misled the jury into making inconsistent findings that the elevator was installed within the time allowed and that the lien was timely filed. The jury’s findings are not inconsistent. If the jury believed Brown’s testimony that the shipping date was confirmed on February 26, that 13 weeks were allowed for installation, and that final adjustment work was done on May 22, then the jury properly found that the installation was completed within the time allowed and that the lien filed on August 18 was filed within ninety days of the last services provided.

DeVoe also states that the testimony of one of Lagerquist’s workers conflicted with Brown’s testimony. Brown testified that installation of the elevator was essentially completed on May 13, but that workers returned on May 22 to do the final adjustment and to retrofit the control panel. The worker testified that he did repair work on the elevator on May 22. Resolution of any conflicts in the evidence is in the province of the trier of fact. Gee v. Egbert (1984), 209 Mont. 1, 18, 679 P.2d 1194, 1203.

Finally, DeVoe asserts that the jury should have been asked to make a finding as to the date on which installation of the elevator was completed. The issue of whether the lien was timely filed was argued at trial. Instruction No. 55 stated that to sustain the counterclaim on the construction lien, Lagerquist must prove (among other elements) that the lien was filed within ninety days after the materials and labor were provided. Question 10 on the special verdict form asked, “Is Lagerquist entitled to enforcement of its construction lien?” We hold that the issue was adequately presented to the jury and that the court did not err in denying the motion to alter or amend the verdict.

III

Did the court err in awarding prejudgment interest?

This claim is based upon DeVoe’s position that the lien was not timely filed. Prejudgment interest is allowed under § 27-1-211, MCA, when the amount of damages is certain and the right to damages is vested as of a particular day. In this case, interest was awarded on the contract price of the elevator from the date the construction lien was filed. Because we have concluded that it was not error to enforce the construction lien, we hold that there was no error in the award of prejudgment interest.

IV

Did the court err by granting defendants attorney fees?

Like Issue III, this issue is partially decided by our conclusion that it was not error to enforce the construction lien. Under § 71-3-124, MCA, attorney fees are recoverable in an action to foreclose a construction lien.

DeVoe argues that defendants should have been awarded attorney fees only for work relating to enforcement of their lien and that $31,000 in attorney fees is unreasonable in relation to the size of the lien. The District Court determined that

“[t]his action involved interlocking issues, resulting in litigation far more complicated than a simple foreclosure lien action. It is the Court’s opinion that the inextricability of the issues precludes [separating out expenses relating to proof of the construction lien].”

DeVoe cites precedent which would support the lower court had it separated attorney fees relating to the lien from fees relating to the defense of DeVoe’s claims. Carkeek v. Ayer (1980), 188 Mont. 345, 613 P.2d 1013. However, the same precedent states that this Comb will not disturb the amount of attorney fees fixed by a district court unless it represents an abuse of discretion. Carkeek, 613 P.2d at 1015. “An attorney fee that exceeds the amount in controversy is not per se excessive . . . Each case depends on its own unique set of facts.” Glaspey v. Workman (1988) 234 Mont. 374, 378, 763 P.2d 666, 668. We have reviewed the record and conclude that the lower court did not abuse its discretion in awarding attorney fees.

Affirmed.

JUSTICES BARZ, SHEEHY, HUNT and WEBER concur.


author: JUSTICE HUNT

text:
    GRIMES MOTORS, INC., Plaintiff and Respondent, v. JOSEPH F. NASCIMENTO, Defendant and Appellant.
    No. 90-049.
    Submitted June 20, 1990.
    Decided Aug. 20, 1990.
    Rehearing Denied Sept. 18, 1990.
    796 P.2d 576.

      Dennis G. Loveless, Helena, for defendant and appellant.
    Robert J. Sewell, Jr., Smith Law Firm, Helena, for plaintiff and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Joseph F. Nascimento appeals from the order of the District Court of the First Judicial District, Lewis and Clark County, State of Montana, dismissing his appeal from the Justice Court order, which dismissed his motion for relief from judgment. We affirm.

The determinative issue on appeal is whether Rule 6(e), M.R.Civ.P., and Rule 6 C, M.J.C.R.Civ.P., apply to an appeal from justice court to district court.

On February 22, 1989, appellant tendered a check for $518.90 to respondent for repairs to his pickup. The bank allegedly returned the check for nonsufficient funds. Appellant asserts that he stopped payment on the check because he felt that the repairs should be covered under his new vehicle warranty.

Respondent filed a complaint in the Justice Court of Lewis and Clark County, State of Montana, on April 24, 1989. The complaint named “Manuel A. (Joe) Nascimento” as defendant. Appellant was served with summons and complaint. Appellant then moved to dismiss for lack of service because appellant was incorrectly named in the complaint. On June 8,1989, respondent amended the complaint, this time naming “Joseph F. Nascimento” as defendant. On June 27, 1989, the Justice Court denied the motion to dismiss and allowed appellant five days from that date to answer the amended complaint.

Defendant failed to file an answer. After the five day period, respondent filed a request for default due to defendant’s failure to answer. On July 28,1989, the Justice Court granted the default. That same day, the Justice Court entered a judgment in favor of respondent and against appellant in the amount of $1,081.90, with 10% interest, and costs of $35.00, for a total of $1,116.90.

On August 4, 1989, appellant moved the Justice Court to set the default aside. Appellant’s motion was supported by an affidavit which stated that appellant had filed another lawsuit in District Court which was essentially a counterclaim, and that appellant’s counterclaim, when combined with the original amount in the complaint, exceeded the dollar amount under the Justice Court’s jurisdiction. Appellant further alleged that he had been told by the Justice Court staff that the filing of the counterclaim would automatically transfer the case file to District Court without any additional action on his part. From this conversation, appellant understood that the entire case would be transferred to District Court.

On Aug. 28, 1989, the Justice Court denied appellant’s motion to set aside. On Sept. 29, 1989, 32 days after the denial of appellant’s motion, appellant filed a notice of appeal with the Justice Court.

After a briefing and oral argument schedule, the District Court entered an order on January 12, 1990, dismissing the appeal as untimely and granting respondent $50.00 in costs. On January 19, 1990, the District Court entered an order directing the Clerk of Court to disburse $1,262.89 of the appeal security to respondent and remit the balance to appellant. This appeal followed.

The first issue is whether Rule 6(e), M.R.Civ.P., and Rule 6C, M.J.C.R.Civ.P., apply to an appeal from justice court to district court.

The right of appeal from justice court to district court is purely statutory. Electric Coop. Inc. v. Anhalt, 127 Mont. 71, 257 P.2d 889 (1953). Generally, unless an appeal from justice court is taken within the time and effectuated in accordance with the regulations prescribed by law, the district court has no jurisdiction. See Davis v. Bell Boy Gold Min. Co., 101 Mont. 534, 54 P.2d 563 (1936).

Section 25-33-101 through 104, MCA, exclusively governs appeals from justice and city courts to district court. Section 25-33-102, MCA, provides that a party may appeal the judgment in a civil action in justice court to district court “within 30 days after the rendition of the judgment.”

Although not specifically defined by the Montana courts, numerous other jurisdictions have defined the rendition of a judgment as the judicial act of the court in pronouncing the sentence of the law, as opposed to entry of a judgment which is a ministerial act performed by the clerk of court, such as docketing, entering, or recording the judgment. See Valley Nat’l Bank of Arizona v. Meneghin, 130 Ariz. 119, 634 P.2d 570 (1981); Casati v. Aero Marine Management Co., Inc., 43 Ill.App.3d 1, 1 Ill.Dec. 544, 356 N.E.2d 826 (1976); Carter v. Board of Zoning Appeals, 214 Tenn. 42, 377 S.W.2d 914 (1964). See State v. Mortenson, 175 Mont. 403, 574 P.2d 581 (1978), where, in a criminal case, the time for an appeal from justice court to district court commenced from judgment rendered in open court. See generally Karell v. Amer. Cancer Society, [239 Mont. 168,] 46 St.Rep. 1593, 779 P.2d 506 (Mont. 1989).

In this case, the default judgment against appellant was rendered by the Justice Court on July 28,1989. Appellant then filed a motion to set aside the judgment. This motion suspended the commencement of the 30 day time set for appeal. The Justice Court rendered judgment upon the motion to set aside on August 28,1989. Based upon § 25-33-102, MCA, appellant had 30 days from August 28, 1989, to file his notice of appeal. The 30th day was September 27,1989. Appellant filed his appeal on September 29, 1989, 32 days after the date the judgment was rendered, and two days late.

Appellant argues that Rule 6(e), M.R.Civ.P., and Rule 6 C, M.J.C.R.Civ.P., are applicable to this case. Appellant is mistaken. As indicated above, §§ 25-33-101 and 25-33-102, MCA, exclusively govern the time for filing the notice of appeal from justice court to district court.

The time for appeal in this case commenced with the “rendition” of the judgment of the justice court as provided in § 25-33-102, MCA. Because appellant filed his notice of appeal 32 days after judgment was rendered, the District Court properly dismissed appellant’s appeal.

The second issue, whether the security posted by appellant and released to respondent should be reinstated pending this appeal and until a final determination of this case, need not be discussed due to the resolution of the first issue.

Affirmed.

JUSTICES BARZ, SHEEHY, HARRISON and WEBER concur.


text:
    In the Matter of the SUSPENSION OF THE DRIVER’S LICENSE OF RONALD DWAIN TURNER, Petitioner and Respondent, v. STATE OF MONTANA, Respondent.
    No. 89-584.
    Submitted May 10, 1990.
    Decided Aug. 28, 1990.
    795 P.2d 982.

      Bradley B. Parrish, Lewistown, for petitioner and appellant.
    Marc Racicot, Atty. Gen., Peter Funk, Asst. Atty. Gen., Helena, and Craig R. Buehler, Fergus County Atty., Lewistown, for respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Petitioner and appellant, Ronald Dwain Turner, appeals from the judgment of the Tenth Judicial District Court, Fergus County, which upheld the suspension of his driver’s license for refusing to submit to a chemical test of his breath as required by § 61-8-402, MCA, the implied consent law. We affirm.

The sole issue raised on appeal is whether the arresting officer had reasonable grounds to believe that Turner was in actual physical control of a vehicle while under the influence of alcohol.

On September 19,1989, at approximately 4:00 p.m., Ronald Dwain Turner drove his 1974 Suzuki motorcycle to the Sportsman Lounge in Lewistown. Sometime around 8:00 p.m., after consuming an undetermined number of beers, he left the bar. Because the motorcycle’s clutch did not work, he began pushing the bike in the direction of his home. He did not get on the motorcycle or start the bike’s engine. He did turn its headlight on.

Turner wheeled the 773-pound motorcycle on city streets for about one mile. At a corner where the street crossed the highway, he slipped on some loose gravel, tipping the motorcycle over. A passing motorist stopped and helped him lift the motorcycle back up. By the time police officers arrived, the bike had been returned to an upright position and Turner was attempting to push it from the middle of the street.

The officers helped Turner roll the bike off of the street and park it. They then arrested him for driving while under the influence and took him to the police station.

At the station, the arresting officer read Turner the implied consent law and asked him to submit to a chemical test of his breath. Although Turner at first agreed to take the test, the officer considered his halfhearted attempts to blow into the breathalizer a refusal to comply. He therefore reported Turner to the Department of Justice, Driver Improvement Bureau.

The Driver Improvement Bureau suspended Turner’s driver’s license for 90 days for failure to submit to the chemical test. Thereafter, Turner petitioned the District Court pursuant to § 61-8-403, MCA, for a hearing on the matter. At the conclusion of the hearing, the District Court denied the petition, holding that Turner had refused to submit to a chemical test of his breath and that the arresting officer had reasonable grounds to believe that he was in actual physical control of the motorcycle. This appeal followed.

The implied consent law, § 61-8-402, MCA, provides that an individual who has been arrested for driving or being in actual physical control of a motor vehicle while under the influence of alcohol is deemed to have given his consent to a chemical test for the purpose of determining the alcoholic content of his blood. An individual who refuses to submit to the test may have his driver’s license seized and his driving privileges suspended by the Department of Justice. The law reads in pertinent part as follows:

“(1) Any person who operates a vehicle upon ways of this state open to the public shall be deemed to have given consent, subject to the provisions of 61-8-401, to a chemical test of his blood, breath, or urine for the purpose of determining the alcoholic content of his blood if arrested by a peace officer for driving or in actual physical control of a vehicle while under the influence of alcohol. The test shall be administered at the direction of the peace officer having reasonable grounds to believe the person to have been driving or in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol. The arresting officer may designate which one of the aforesaid tests shall be administered.
“(3) If a resident driver under arrest refuses upon the request of a peace officer to submit to a chemical test designated by the arresting officer as provided in subsection (1) of this section, none shall be given, but the officer shall, on behalf of the department, immediately seize his driver’s license. The peace officer shall forward the license to the department, along with a sworn report that he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public, while under the influence of alcohol and that the person had refused to submit to the test upon the request of the peace officer. Upon receipt of the report, the department shall suspend the license for the period provided in subsection (5).
“(5) The following suspension and revocation periods are applicable upon refusal to submit to a chemical test:
“(a) upon a first refusal, a suspension of 90 days with no provision for a restricted probationary license;
“(b) upon a second or subsequent refusal within 5 years of a previous refusal, as determined from the records of the department, a revocation of 1 year with no provision for a restricted probationary license.
“(7) All such suspensions are subject to review as hereinafter provided.”

Section 61-8-402, MCA.

Section 61-8-403, MCA, governs the judicial review of the suspension of driving privileges under the implied consent law. The statute provides:

“The department shall immediately notify any person whose license of privilege to drive has been suspended or revoked, as hereinbefore authorized, in writing.and such person shall have the right to file a petition within 30 days thereafter for a hearing in the matter in the district court in the county wherein such person resides or in the district court in the county in which this arrest was made. Such court is hereby vested with jurisdiction and it shall be its duty to set the matter for hearing upon 10 days’ written notice to the county attorney of the county wherein the appeal is filed and such county attorney shall represent the state, and thereupon the court shall take testimony and examine into the facts of the case, except that the issue shall be limited to whether a peace officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public, while under the influence of alcohol, whether the person was placed under arrest, and whether such person refused to submit to the test. The court shall thereupon determine whether the petitioner is entitled to a license oris subject to suspension as heretofore provided.” (Emphasis added.)

Section 61-8-403, MCA.

A hearing held pursuant to § 61-8-403, MCA, is a civil proceeding in which the District Court determines:

“(1) whether the arresting officer had reasonable grounds to believe the following:
“(a) that the petitioner had been driving or was in actual physical control of a vehicle;
“(b) that the vehicle was on a way of this state open to the public; and
“(c) that the petitioner was under the influence of alcohol;
“(2) whether the individual was placed under arrest; and
“(3) whether the individual refused to submit to a chemical test.”

(Emphasis in original.)

Gebhardt v. State, 238 Mont. 90, 95, 775 P.2d 1261, 1265 (1989).

Turner concedes that the motorcycle was on a public way, that he was intoxicated and that he was placed under arrest. At the District Court hearing, he contended that he had not refused to submit to a chemical test of his breath, but that contention has been abandoned on appeal. Therefore, the only issue before us is whether the arresting officer had reasonable grounds to believe that Turner was in actual physical control of the motorcycle.

Turner argues that in this case he was not in “actual physical control” of the motorcycle because he did not straddle the seat of the bike and actually drive it by operation of the motor or by coasting. Turner’s interpretation of actual physical control is much too restrictive. An individual need not be actually sitting atop the seat of a motorcycle in order to be in actual physical control of the vehicle. As long as the individual exercises “present bodily restraint, directing influence, domination or regulation” over a motor vehicle, he exerts actual physical control over the vehicle. State v. Ruona, 133 Mont. 243, 248, 321 P.2d 615, 618 (1958).

Turner clearly had actual physical control over the motorcycle on the night in question. He exerted dominion over the motorcycle by wheeling it along the city streets of Lewistown for a distance of one mile. His attempt to regulate the motorcycle’s movements by pushing it out of the middle of an intersection was personally observed by the arresting officer. We therefore conclude that the arresting officer had reasonable grounds to believe that Turner was in actual physical control of the motorcycle.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, McDONOUGH and WEBER concur.


text:
    DONALD J. TIGART, Plaintiff and Respondent, v. RICHARD J. THOMPSON, Defendant and Appellant. DOUGLAS C. BROOKINGS, Plaintiff and Respondent, v. DICK THOMPSON, Defendant and Appellant. RICHARD J. THOMPSON, Third-Party Plaintiff and Appellant, v. DONALD J. TIGART, Third-Party defendant and Respondent.
    No. 90-035.
    Submitted July 13, 1990.
    Decided Aug. 20, 1990.
    Rehearing Denied Sept. 7, 1990.
    796 P.2d 582.

      Lon T. Holden, Jardine, Stephenson, Blewett & Weaver, Great Falls, for defendant and appellant.
    Philip J. O’Connell, Thueson Law Office, Helena, Patricia O’Brien Cotter, Cotter & Cotter, Great Falls, for plaintiff and respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Richard J. Thompson appeals from the judgment of the District Court, Ninth Judicial District, Pondera County, awarding respondents attorney fees and costs. We affirm the District Court.

The sole issue is the award of attorney fees and costs under the authority of § 37-61-421, MCA.

The issue of attorney fees and costs was before this Court originally in Tigart v. Thompson (1989), 237 Mont. 468, 774 P.2d 401. That portion of the appeal was dismissed without prejudice for being premature, as the award was not yet in the form of a final order. Rule 1, M.R.App.P. We set out here only those facts necessary for the review of this issue.

Suit was initiated by respondents Donald Tigart and Douglas Brookings as the result of a track accident in Conrad, Montana, on January 4, 1985. Respondents alleged that Richard Thompson negligently entered a highway when the conditions were icy, causing the pickup driver Tigart to slide into a ditch to avoid a collision. Thompson was unaware of any accident until contacted by investigating officers. Thompson maintained throughout discovery and pretrial proceedings that he knew nothing of the accident, had no knowledge of any actions or circumstances of the day in question and had no independent recollection of being in the vicinity of the accident that day. Thompson further denied giving statements to anyone other than the investigating officer. Counsel for Thompson stated that her client would not refute any of Hgart’s contentions of what transpired on the day of the accident. However, at trial, counsel for Thompson took issue in opening statement with Tigart’s contentions as to where and with what care Thompson entered the highway, the road conditions that day, and asserted as a defense that Tigart was driving too fast for conditions.

It came to light after the first week of trial that Thompson had in fact given a statement to his insurance carrier, Safeco Insurance Company, eleven days after the accident. The statement was revealed when counsel for Tigart subpoenaed the insurance adjuster and his records. Defense counsel notified the court and counsel of the statement’s existence just prior to the adjuster’s testimony.

The statement contained several inconsistencies when compared to the contentions made in defendant’s opening statement. As a result, plaintiffs moved for a new trial based on surprise and for personal sanctions against defense counsel for concealment of evidence. No sanction was imposed; however, when a verdict for the defense was returned by the jury, the lower court granted plaintiffs’ motion for a new trial. In addition, the court awarded plaintiffs attorney fees and costs associated with the first trial. The lower court’s award of attorney fees and costs, pursuant to § 37-61-421, MCA, in the amount of $31,275.97 is the subject of this appeal.

In its order of April 24, 1988, the District Court stated:

“It is hereby ordered that the motion to award monetary sanctions against Safeco Insurance Company in favor of Douglas Brookings and Donald Tigart is denied. It is ordered, however, that Safeco Insurance Company is ordered to pay the plaintiffs’reasonable attorney fees and costs incurred during the first trial, including attorney fees and costs incurred between the close of discovery and the commencement of trial (which would be spent primarily in trial preparation), and attorney fees and costs incurred in obtaining a new trial.”

The court based its award on § 37-61-421, MCA, which states:

“An attorney or party to any court proceeding who, in the determination of the court, multiplies the proceedings in any case unreasonably and vexatiously may be required by the comb to satisfy personally the excess costs, expenses, and attorney fees reasonably incurred because of such conduct.”

The District Court went on to state that:

“Here, the failure of Safeco Insurance Company to produce the tape-recorded statement of Thompson, despite multiple requests by the plaintiffs to do so, prevented the plaintiffs from having a fair trial, required the post-trial motions, and necessitated this second trial. The court is convinced had the tape been produced prior to trial, plaintiff may well have altered the presentation of his case with perhaps substantial expectation of different results. Safeco’s conduct was ‘unreasonable’ and therefore, under the statute, it should pay these expenses.”

Appellant contends that such an award, under § 37-61-421, MCA, is improper for a number of reasons: (1) No sanctions were imposed by the District Court; (2) Safeco is not a “party” under the meaning of § 37-61-421, MCA; and, (3) an award of attorney fees is improper where plaintiff is represented on a contingency fee basis.

Appellant asserts that, as the court specifically determined no sanctions to be in order, § 37-61-421 is misapplied in this instance. Appellant states that, as the statute requires an attorney or party to have “unreasonably and vexatiously” multiplied the proceedings, the court’s order is inconsistent. The District Court, states Thompson, neither found that Safeco intentionally withheld the statement nor that it failed to produce it in the proper manner once it was discovered. Therefore, Safeco’s inadvertence cannot be considered to have met the standard of being “vexatious.”

We disagree with appellant’s contention. The District Court, in its order of April 29,1988, stated that “the defendant has prevented the plaintiffs from receiving a fair trial and created unfair surprise at trial by withholding a major item of evidence — The District Court further stated that “Safeco Insurance Company’s tactic of concealing the Thompson statement” violated the principle of pretrial discovery. The District Court’s order does not speak of “inadvertence” as appellant maintains, but of tactical conduct at odds with the letter and spirit of pretrial discovery. Such withholding is certainly both unreasonable and vexatious. It was within the District Court’s discretion to award costs and attorney fees under § 37-61-421, MCA. We find no abuse of that discretion here.

Appellant next contends that Safeco is not a “party” as envisioned by § 37-61-421, and cannot be held responsible for the attorney fees and costs. Again, we must disagree with appellant’s contention.

In Jessen v. O’Daniel (D. Mont. 1962), 210 F.Supp. 317, 331, Judge William Jameson held that insurance contracts “have the effect of placing absolute and exclusive control over the litigation in the insurance carrier.” This Court followed that reasoning in Safeco Insurance Co. v. Ellinghouse (1986), 223 Mont. 239, 725 P.2d 217, holding that the insurance carrier has “the correlative duty to exercise diligence, intelligence, good faith, honest and conscientious fidelity to the common interest of the parties.” If an insurer may be held liable for the actions of its attorney, as was the case in Ellinghouse, under a theory of agency, it is axiomatic that the insurer may be responsible for costs, expenses and attorney fees when the insurer “multiplies the proceedings in any case unreasonably and vexatiously.” Safeco was in possession of Thompson’s statement from two weeks following the accident until the trial, and it was easily discoverable by Safeco.

Appellant next contends that an award of attorney fees was inappropriate in this instance. Appellant states that an award- of attorney fees under § 37-61-421, MCA, is required to satisfy “attorney fees reasonably incurred.” As counsel for both of the respondents were working on a contingency fee basis, and the trial resulted in a defense verdict, appellant maintains that no attorney fees resulted.

We disagree with appellant’s reasoning. The District Corut held that the respondents were denied a fair trial due to appellant’s conduct. The attorney fees and costs were unnecessarily multiplied by that conduct, a situation expressly addressed in the statute. The liability of Safeco for attorney fees arises not from the fee contract between the other parties and their attorneys, but from a liability imposed by statute. It is the multiplication of proceedings unnecessarily that § 37-61-421, MCA, was meant to curb. We affirm the District Court.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, BARZ, HUNT, WEBER and McDONOUGH concur.