text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DANIEL ALDEN, Defendant and Appellant.
    No. 96-324.
    Submitted on Briefs February 6, 1997.
    Decided March 18, 1997.
    54 St.Rep. 234.
    282 Mont. 45.
    934 P.2d 210.

      See C. J.S. Criminal Law § 1553.
    For Appellant: William F. Hooks; Appellate Defenders Office; Helena.
    For Respondent: Hon. Joseph P. Mazurek; Attorney General; Pamela P. Collins; Assistant Attorney General; Helena; Dennis Paxinos; Yellowstone County Attorney; Marcia Good Sept; Deputy County Attorney; Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The defendant, Daniel Alden, was charged by information, filed in the District Court for the Thirteenth Judicial District in Yellowstone County, with two counts of felony sexual assault, in violation of § 45-5-502, MCA (1993). He pled guilty to both charges pursuant to North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162. The District Court accepted his plea and, after a sentencing hearing, sentenced him to a term of imprisonment in the Montana State Prison. He subsequently moved for reconsideration of his sentence and requested the District Court to consider alternatives to imprisonment, pursuant to the nonviolent offender provisions set forth at §§ 46-18-201 and -225, MCA (1993). After a hearing, the District Court denied the motion. Alden appeals. We affirm the judgment of the District Court.

The issue on appeal is whether the District Court erred when it sentenced Alden to a term of imprisonment.

FACTUAL BACKGROUND

On August 16,1994, Daniel Alden was charged by information with two counts of felony sexual assault. The information alleged that he sexually molested two minor girls.

Alden pled guilty to both of the charges pursuant to North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162. The District Court accepted his plea and ordered a presentence investigation report. The State of Montana recommended that he receive a suspended sentence, conditioned upon his successful completion of a sexual offender treatment program. The probation and parole officer who prepared the presentence investigation report, however, recommended the imposition of a term of imprisonment.

At the sentencing hearing, Dr. Judith Starr and Dr. James Selkin testified on Alden’s behalf. Dr. Starr, a licensed professional counselor with expertise in the field of sexual abuse, testified that, in her opinion, the facts in Alden’s case meet the criteria for a false allegation of sexual abuse. Dr. Selkin, a colleague of Alden’s therapist at the Darrow Clinic in Denver, Colorado, testified that, in his opinion, Alden is safe in the community and that incarceration would only serve to disrupt Alden’s treatment.

After the sentencing hearing, the District Court concluded that a term of imprisonment is necessary to protect society and to make Alden aware of the severity of his actions. The District Court’s judgment states, in relevant part:

Sentence was imposed for the following reasons:

1. the contents of the presentence report;
2. defendant’s Sex Offender Evaluation submitted by Michael Sullivan and other reports provided to the Court;
3. the testimony of Judy Starr and James Selkin, Ph.D. presented at the sentencing hearing;
4. apologizes on behalf of society: defendant was abused by father and others later in life which has affected defendant through no fault of his own, however, this is an explanation not an excuse;
5. defendant entered an Alford plea of Guilty to both counts as charged, thereby canceling a public trial and choosing not to have the jury be provided with the State’s proof of facts/information and allow the jury to deliberate on defendant’s guilt or innocence;
6. recognizes defendant did not admit to actual guilt of committing the offenses, however, shall treat rendering judgment like the offenses have been committed: Court personally believes defendant is in denial and committed the offenses charged;
7. notes defendant has participated in sex offender treatment of five plus (5+) years in Colorado and believes treatment is not doing defendant any good concluding children are not safe around defendant who remains a risk to all children; and
8. has no crystal ball to predict the future, however, considering defendant’s past is the best judge of future actions.

Accordingly, the District Court sentenced him to two concurrent fifteen-year terms in the Montana State Prison, with three years of each term suspended.

Alden subsequently moved for reconsideration of his sentence and requested the District Court to consider alternatives to imprisonment, pursuant to the nonviolent offender provisions set forth at §§ 46-18-201 and -225, MCA (1993). After a hearing, the District Corut denied the motion and issued a written order which states, in relevant part, as follows:

(1) the interests of justice and the needs of public safety require the level of security provided by imprisonment of the offender in the Montana State Prison;
(2) the defendant remains in denial and not motivated; therefore the needs of the offender can not be better served in the community or in a facility or program other than the Montana State Prison;
(3) there are no substantial grounds tending to excuse or justify the offense(s);
(4) the defendant was not acting under strong provocation;
(5) restitution was not an issue/argument, therefore not applicable;
(6) the offender has admitted to prior offenses for similar criminal acts;
(7) the defendant’s conduct was the result of circumstances which did occur again even after defendant participated in treatment and defendant remains a high risk to re-offend;
(8) the character and attitude of the offender indicate that he remains a high risk to re-offend;
(9) rehabilitative treatment at the Montana State Prison may be the motivating factor needed for the offender to respond to correctional treatment, thereby protecting children and society;
(10) imprisonment or incarceration of the offender is always a hardship, although the Court believes the hardship to any child victim including defendant’s children far outweigh the hardship the offender’s confinement will create.
Alden appeals from the District Court’s order.

DISCUSSION

Did the District Court err when it sentenced Alden to a term of imprisonment?

In Montana, criminal sentencing alternatives are strictly a matter of statute. State v. LaMere (1995), 272 Mont. 355, 358, 900 P.2d 926, 928. Our standard of review, therefore, includes the question of whether the district court correctly applied the applicable statutes. LaMere, 272 Mont, at 358, 900 P.2d at 928. We review the district court’s findings on which its sentence is based to determine whether they are clearly erroneous. State v. Bower (1992), 254 Mont. 1, 7, 833 P.2d 1106, 1110.

On appeal, Alden contends that the District Court erred when it sentenced him to a term of imprisonment. Initially, we note that he does not assert that the District Court failed to comply with the sentencing procedures mandated by §§ 46-18-201 and -225, MCA (1993). Rather, Alden claims that the District Court’s order is not supported by evidence in the record and that, based on the testimony and evidence he presented, he should not have been sentenced to a term of imprisonment. In essence, he disagrees with the District Court’s final determination that incarceration is necessary and that alternatives to imprisonment are not appropriate in this case.

Section 46-18-201, MCA (1993), provides, in relevant part, as follows:

(10) In sentencing a nonviolent felony offender, the court shall first consider alternatives to imprisonment of the offender in the state prison, including placement of the offender in a community corrections facility or program. In considering alternatives to imprisonment, the court shall examine the sentencing criteria contained in 46-18-225. If the offender is subsequently sentenced to the state prison... the court shall state its reasons why alternatives to imprisonment were not selected, based on the criteria contained in 46-18-225.

Section 46-18-201(10), MCA (1993).

Section 46-18-225, MCA (1993), is entitled “Criteria for sentencing nonviolent felony offenders,” and provides as follows:

Prior to sentencing a nonviolent felony offender to a term of imprisonment in the state prison ... the court shall take into account whether:
(1) the interests of justice and the needs of public safety truly require the level of security provided by imprisonment of the offender in the state prison ...;
(2) the needs of the offender can be better served in the community or in a facility or program other than the state prison ...;
(3) there are substantial grounds tending to excuse or justify the offense, though failing to establish a defense;
(4) the offender acted under strong provocation;
(5) the offender has made restitution or will make restitution to the victim of the offender’s criminal conduct;
(6) the offender has no prior history of conviction for a criminal act or has led a law-abiding life for a substantial period of time before the commission of the present crime;
(7) the offender’s criminal conduct was the result of circumstances that are unlikely to recur;
(8) the character and attitude of the offender indicate that the offender is likely to commit another crime;
(9) the offender is likely to respond quickly to correctional or rehabilitative treatment; and
(10) imprisonment of the offender would create an excessive hardship on the offender or the offender’s family.

Section 46-18-225, MCA (1993).

Sections 46-18-201(10) and -225, therefore, require a district court to: (1) consider alternatives to imprisonment; (2) examine the criteria set forth at § 46-18-225, MCA (1993); and (3) state the reasons for its decision if an alternative to imprisonment is not selected. These statutes, however, do not require a district court to sentence a nonviolent felony offender to an alternative to imprisonment. Instead, they allow a district court to impose an alternative sentence when the circumstances warrant such a disposition.

Likewise, although a district court must examine the criteria set forth at § 46-18-225, MCA (1993), that statute neither provides a formula by which a district court can determine whether an alternative to imprisonment is appropriate, nor does it indicate that greater consideration should be given to any one of the statutory criteria than to the others.

We have held that district courts are consistently granted broad discretion to determine the appropriate punishment, and that we will not review a sentence on appeal for mere disparity or inequity. State v. Graveley (1996), 275 Mont. 519, 521, 915 P.2d 184, 186; State v. DeSalvo (1995), 273 Mont. 343, 346, 903 P.2d 202, 204; State v. Hembd (1992), 254 Mont. 407, 411, 838 P.2d 412, 415. Furthermore, the district court is in the best position to weigh the evidence, judge the credibility of witnesses, and resolve conflicts in the evidence. Bower, 254 Mont, at 8,833 P.2d at 1111. Finally, we have previously held that although “a criminal defendant has a right to a sentence based upon substantially correct information, we will not strain ... to find a mistake. Rather, the District Court is presumed to be correct.” State v. Petroff (1988), 232 Mont. 20, 23, 757 P.2d 759, 761 (citation omitted).

At both the sentencing hearing and the hearing on the motion for reconsideration, Alden presented evidence and witnesses in support of his contention that alternatives to imprisonment were appropriate in his case.

However, the District Court considered alternatives to imprisonment, examined the criteria set forth at § 46-18-225, MCA (1993), and, in its written order, stated its reasons, based on the criteria set forth at § 46-18-225, MCA (1993), why alternatives to imprisonment were not selected.

Furthermore, we conclude that evidence was presented which supports the findings on which the District Court’s sentence was based, and that its findings were not clearly erroneous. That evidence consisted of the following documents or facts: the presentence investigation report and its attachments; Alden’s admission that he had molested children in the past; the absence of an excuse or provocation for the commission of the acts alleged in this case; the apparent ineffectiveness of prior treatment; the possibility that Alden would re-offend in the future; the need to protect society, particularly children who are at risk; and the seriousness of the crimes charged.

Therefore, we conclude that the District Court did not err when it sentenced Alden to a term of imprisonment. Accordingly, the judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES REGNIER, GRAY and HUNT concur.


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    IN THE MATTER OF DECLARING P.E., A Youth in Need of Care.
    No. 96-347.
    Submitted on Briefs February 13, 1997.
    Decided March 18, 1997.
    54 St.Rep. 237.
    282 Mont. 52.
    934 P.2d 206.
    See C.J.S. Infants § 58.

      For Appellant: Daniel P. Buckley, Berg, Lilly, Andriolo & Tollefsen, Bozeman.
    For Respondent: Joseph P. Mazurek, Attorney General, Tammy Plubell, Assistant Attorney General, Helena; Marty Lambert, Gallatin County Attorney, Gary Balaz, Deputy Gallatin County Attorney, Bozeman.
   JUSTICE HUNT

delivered the Opinion of the Court.

Linda H. (Linda), the natural mother of P.E., appeals the decision of the Eighteenth Judicial District Court, Gallatin County, terminating her parental rights to P.E. due to abandonment. We affirm.

The sole issue presented on appeal is whether the District Court erred in terminating Linda’s parental rights due to abandonment.

In the summer of 1994, Linda and her thirteen-year-old daughter P.E. were traveling through Montana in the company of Paul Cress (Cress) and George Townsell (Townsell). All four people lived in the van in which they were traveling or camped at various campgrounds. In July of 1994, the four were staying at a campground in Gallatin County when P.E. became friends with a girl whose family lived in nearby Three Forks. The two girls began having “sleep-overs,” where either P.E.’s new friend would stay at the campground or P.E. would go to Three Forks to stay with the girl’s family. After one such visit to Three Forks, the family returned to the campground with P.E. to find that Linda and her traveling companions had checked out. The family then notified the state authorities that P.E. had been left with them.

On July 15, 1994, Cress was arrested for misdemeanor theft in Three Forks. Linda and Townsell were taken into custody as well. While interviewing Linda, the Three Forks marshal informed her that P.E. had been referred to the Department of Family Services (now the Department of Public Health and Human Services) (the Department). The marshal also determined that both Cress and Townsell had extensive criminal records. After Cress bonded out on the theft charge, he, Townsell and Linda left the area, leaving P.E. in the custody of the Department.

On July 18, 1994, DeeAnn Diedrich (Diedrich), a Department social worker, was assigned to investigate Linda’s abandonment of P.E. At the same time, the Three Forks marshal was actively looking for Cress, who had failed to appear for his scheduled court appearance regarding the theft charge. The marshal determined that Linda, Cress and Townsell were still traveling together and staying in a motel in Pocatello, Idaho.

On July 25, 1994, Diedrich met with Linda in Three Forks. Linda denied that she was still accompanying Cress until confronted with the information obtained by the Three Forks marshal. She then admitted that she was in fact still traveling with him, but said she had lied because she feared that if the Department knew she was still seeing him they would not return P.E. to her custody. Linda also told Diedrich that she was looking for work and housing in Pocatello. Another meeting was scheduled for August 3,1994, but Linda failed to show up. Instead she called Diedrich, advising that she was still in Idaho but refusing to leave an address or phone number. Linda also called four additional times in August, and was advised that a hearing regarding P.E.’s status was scheduled for August 22, 1994. Linda did not appear for the hearing; instead, she traveled to Kentucky with Townsell and Cress. Again, she refused to give Diedrich either an address or a phone number where she might be reached. Shortly thereafter, Diedrich transferred the case to a second Department social worker, Marsha Brunett (Brunett).

In October of 1994, Linda and Cress traveled from Kentucky to South Dakota. Linda twice contacted Brunett regarding P.E. during October, but Linda still refused to disclose her location. Brunett advised Linda that Linda needed to acquire permanent employment and a stable home environment before P.E. could be returned to her. On November 14,1994, Linda called Brunett and finally reported an address and phone number in Watertown, South Dakota. She also advised Brunett that she had obtained employment with a local motel. On December 7,1994, Brunett requested the assistance of the South Dakota Department of Social Services (South Dakota Department) in doing a home study regarding Linda’s living arrangements. In making her request, Brunett notified the South Dakota Department of the address and phone number given to her by Linda. She was later advised, however, that the South Dakota Department was unable to locate Linda at the address given. Brunett then attempted to call Linda but found that the phone had been disconnected. Nevertheless, Brunett sent Linda a proposed treatment plan to her last known address in Watertown. Linda testified in the District Court that she never received the proposed plan. However, Brunett also testified that the plan was not returned to her office by the post office as undeliverable. Linda also testified that her understanding was that she only had to obtain adequate housing and a steady job as prerequisites for P.E.’s return to her custody. Brunett testified that, to the contrary, she had advised Linda that she would also need to obtain a mental health assessment and family counseling before P.E. could be returned to her. On February 5, 1995, Brunett transferred the case to another Department social worker, Joe Albro (Albro). On February 9, 1995, the Department petitioned the District Court for temporary legal custody of P.E. The District Court scheduled a hearing in the matter for February 23, 1995.

At the time Albro took over P.E.’s case, the Department did not know Linda’s whereabouts; it only knew that she apparently had left the Watertown area. After the February 23, 1995 hearing, which Linda did not attend, the Department was granted temporary custody of P.E. for six months.

On March 2,1995, Linda contacted Albro and advised him that she was living and working in Sioux Falls, South Dakota. Albro informed Linda that, if she wished to have P.E. returned to her, she had to have suitable housing and gainful employment. Linda testified, again, that she understood these two conditions to be the only prerequisites to P.E.’s return. Like Brunett, Albro testified that he informed Linda that she had to obtain a mental health assessment and counseling as well. It is undisputed, however, that Linda made an appointment to see a counselor in Sioux Falls but then did not keep that appointment.

Albro and Linda arranged for a home study with a South Dakota social worker to evaluate Linda’s living arrangements. The social worker found Linda’s apartment to be inadequate because it had only one exit, which presented a fire hazard. Linda then moved to a new apartment and, in May of 1995, the home study was readministered. This time, the South Dakota social worker found the housing to be adequate and recommended that P.E. be returned to Linda. The social worker acknowledged, however, that the determination regarding whether P.E. would be returned to Linda had to be made by the Montana Department, which had temporary custody of the child.

On June 13, 1995, Albro informed Linda that P.E. could not be returned to her care until Linda obtained a mental health assessment and counseling. He further explained that P.E. had been placed in foster care pursuant to the order of the District Court and, therefore, she could not be summarily sent to South Dakota without the prior approval of the court. Albro also advised Linda that the District Court had set a hearing in the matter for August 23, 1995, which he encouraged her to attend.

Linda did not contact Albro again before the August hearing, nor was Albro able to contact her. After checking with her employer, Albro concluded that Linda had again disappeared. She did not attend the August 23, 1995 review hearing, at which the Department advised the District Court that it intended to petition to terminate Linda’s parental rights to P.E. The District Court scheduled another hearing in the case for February 23, 1996.

On September 21, 1995, Linda called Albro and told him that she was in the Bozeman area and wanted to regain custody of P.E. Linda thereafter acquired an apartment and a job in Bozeman and visited P.E. in person for the first time in over fourteen months. P.E. apparently found the meeting very distressing; she informed Albro that she did not want to see Linda again. Thereafter and in accordance with P.E.’s wishes, Albro did not allow visitation despite Linda’s repeated requests. On October 15, 1995, Albro attempted to contact Linda at her place of work and was advised that she had taken an indefinite leave of absence. Again, her whereabouts were unknown. On November 1, 1995, the Department petitioned the District Court to terminate Linda’s parental rights to P.E. due to abandonment.

On December 15,1995, Linda again contacted Albro, informing him that she was again in Bozeman, back at work, and interested in regaining custody of P.E. Albro advised her that the Department had petitioned to terminate her parental rights and urged her to obtain an attorney and attend the hearing. Albro also scheduled another visitation between Linda and P.E. Again, the visitation did not go well and P.E. afterwards said that she did not want to see her mother again.

After rescheduling, a hearing was held on February 28, 1996, regarding the Department’s petition to terminate Linda’s parental rights to P.E. After hearing extensive testimony from all the social workers involved, Linda, and others, the District Court determined that Linda had in fact abandoned P.E. and, on that basis, terminated her parental rights. It should also be noted that, at the same hearing, the District Court terminated the parental rights of P.E.’s natural father. The father never appeared in this action and did not appeal the determination of the District Court.

The standard of review of a district court’s findings of fact in a parental termination case is whether the findings in question are clearly erroneous. In the Matter of J.L., D.L. and A.G. (1996), 277 Mont. 284, 922 P.2d 459, 461 (citing In the Matter of J.S. and P.S. (1994), 269 Mont. 170, 173, 887 P.2d 719,720). The standard of review of a district court’s conclusions of law in such cases is whether the conclusions are correct. Matter of J.L., 922 P.2d at 461 (citing Matter of J.S., 887 P.2d at 720). Furthermore, “because the termination of parental rights involves a fundamental liberty interest, a decree which purports to terminate such rights must be supported by clear and convincing evidence.” In the Matter of the Adoption of Doe (1996), 277 Mont. 251, 921 P.2d 875, 878 (citing In the Matter of the Adoption of S.P.M. (1994), 266 Mont. 269, 271, 880 P.2d 297, 298).

Montana statutes provide that consent is not required from a father or mother who has willfully abandoned the child. Section 40-8-lll(l)(a)(iii), MCA. Abandonment is defined as

leaving the child under circumstances that make reasonable the belief that the parent or other person does not intend to resume care of the child in the future or willfully surrenders physical custody for a period of 6 months and during that period does not manifest to the child and the person having physical custody of the child a firm intention to resume physical custody or to make permanent legal arrangements for the care of the child ....

Section 41-3-102(7)(e), MCA. Under this definition, the period for establishing abandonment is six months if the parent willfully abandons the child. Adoption of Doe, 921 P.2d at 879; Adoption of S.P.M., 880 P.2d at 299.

In arguing that the District Court erred in finding that she had abandoned P.E., Linda points out that she remained in contact with both the Department and P.E. throughout the fourteen-month period following her separation from her daughter in Three Forks. She also argues that her efforts in obtaining employment and housing in Sioux Falls, South Dakota and later in Bozeman, Montana, as well as the home study conducted in Sioux Falls, indicated her intention to reclaim custody of P.E. and her willingness to work with the Department in order to do so.

In addition, it is undisputed that Linda repeatedly requested visitation with P.E. once Linda returned to Montana. She argues that such requests were inconsistent with a finding of abandonment. Lastly, Linda expressed at trial, and again on appeal, her willingness to work with the Department to implement and follow a treatment program in order to regain custody of P.E. She argues that this, too, is inconsistent with a finding of abandonment. For these reasons, Linda argues that the District Court erred in terminating her parental rights to P.E. based on abandonment.

In response, the State argues that Linda’s words conflicted with her actions during the fourteen-month period prior to its petition to terminate her parental rights. While acknowledging that Linda made sporadic attempts to contact the Department and P.E. and occasionally expressed an interest in regaining custody of her daughter, the State contends that she took few, if any, concrete steps to accomplish that goal. Instead, the State argues that every step Linda took forward, such as completion of the home study, was followed by a larger step back, such as her then leaving Sioux Falls and disappearing for another three months. The State contends that the circumstances of this case, taken as a whole, confirm that Linda abandoned P.E.

Therefore, this case rests on a factual determination of what actions are sufficient to constitute the manifestation of “a firm intention to resume physical custody.” Section 41-3-102(7)(e), MCA. Such factual determinations are properly left to the District Court and, as noted above, will be upheld unless clearly erroneous. Adoption ofS.P.M., 880 P.2d at 298. Here, the District Court found that Linda’s sporadic attempts to remain in contact with P.E. did not constitute a firm intention to resume physical custody. On the contrary, the District Court found that the Department had made reasonable efforts to facilitate a reunion between Linda and P.E., but that Linda’s actions had frustrated those efforts. The District Court noted that Linda’s claimed concern for P.E. did not prevent her from traveling at length with individuals she knew to have criminal records nor from disappearing for extended periods with no warning or notification to either the Department or her daughter. The District Court further noted that P.E. has had an extremely difficult time dealing with the fact that her mother simply left her with virtual strangers and then did not return to claim her for well over a year. Despite this profound emotional trauma, P.E. is currently thriving in foster placement and, at fifteen, exhibits little desire to see her mother.

This Court has held that “Abandonment is not an ambulatory thing the legal effects of which a parent may dissipate at will by token efforts at reclaiming a discarded child.” In the Matter of the Adoption of C.R.D. (1989), 240 Mont. 106, 110, 782 P.2d 1280, 1283 (quoting In the Matter of the Adoption of David C. (Pa.1978), 387 A.2d 804, 811; In the Matter of the Adoption of Simonton (Neb.1982), 320 N.W.2d 449, 454). In this case, the record is replete with evidence to support the District Court findings that Linda’s efforts at reclaiming P.E. were sporadic and unsubstantial, and did not constitute a firm intention to reclaim physical custody of P.E. These findings are not clearly erroneous and, therefore, the decision of the District Court is affirmed.

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


author: JUSTICE TRIEWEILER

text:
    KEVIN L. WALDHER, Plaintiff and Respondent, v. FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for BANK OF COLUMBIA FALLS, JETTE RANCH, INC., SOGELEASE CORPORATION, 5 P’s COLLECTIONS, INC. d/b/a INTERMOUNTAIN COLLECTIONS, MICHAEL LEAHY, and their assigns or successors in interest, and all persons unknown who claim any right, title, estate or interest in or lien or encumbrance upon the real property described in the Complaint, or any part thereof, adverse to Plaintiff’s ownership or any claim upon Plaintiff’s title thereto, whether such claim or possible claim be present or contingent, including any claim or possible claim of elective share, inchoate or accrued, Defendants and Appellants.
    No. 96-461.
    Submitted on Briefs January 2, 1997.
    Decided March 18, 1997.
    54 St.Rep. 241.
    282 Mont. 59.
    935 P.2d 1101.

      See C.J.S. Judgments § 383.
    For Appellants: Ward E. Taleff; Alexander, Baucus, Taleff & Paul; Great Falls.
    For Respondent: Matthew H. O’Neil; French, Mercer, Grainey & O’Neil; Poison.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Kevin L. Waldher’s predecessor in interest filed a quiet title action in the District Court for the Twentieth Judicial District in Lake County, and served defendant Federal Deposit Insurance Corporation (FDIC) with a summons and complaint. The District Court entered FDIC’s default based on FDIC’s failure to file an answer to the complaint. FDIC moved the District Court to set aside the entry of default. The District Court denied FDIC’s motion. FDIC appeals the District Court’s order which denied its motion to set aside the default. We reverse the order of the District Court and remand to that court for proceedings consistent with this opinion.

On appeal, we address the issue of whether the District Court abused its discretion when it denied FDIC’s motion to set aside the default judgment.

FACTUAL BACKGROUND

On October 12,1993, Lonna Leahy filed a quiet title action in the Twentieth Judicial District Court. Defendant FDIC was served with a summons and complaint on December 14,1993. In early February, Leahy orally granted FDIC a thirty-day extension of time in which to file an answer to the complaint. After the informal extension had expired, Leahy notified FDIC’s attorney that FDIC was in “technical default.” At that time, however, Leahy did not move the District Court for entry of a default, and the parties continued to negotiate Leahy’s quiet title claim. On October 6, 1994, FDIC’s attorney appealed to Leahy for a response to the negotiations “so that we can either dismiss the action or file an answer.”

On May 17, 1995, Leahy moved the District Court for an entry of default against FDIC for its failure to file a timely answer. The District Court granted Leahy’s motion on May 24,1995, and entered default against FDIC. FDIC immediately retained local counsel to continue negotiations with Leahy. On June 13,1995, after conferring with Leahy, FDIC’s local counsel wrote to Leahy:

To confirm our discussion, I informed you of my representation of FDIC. Rather than requiring me to move to set aside the default of FDIC (if you feel you can’t stipulate to that result), we agreed to try to cooperate in the next few weeks to see if there is a way to defeat the Sogelease Corporation judgment hen .... If that isn’t acceptable, or if you would prefer that I take steps now to set aside the default, please let me know immediately.

On August 23,1995, Kevin L. Waldher was substituted for Lonna Leahy as party plaintiff in the quiet title action. When FDIC sought to confirm its understanding about the negotiations with Waldher’s counsel, it was informed that Waldher would not agree to set aside FDIC’s default. Therefore, on February 28,1996, FDIC filed a motion with the District Court to set aside the default. On July 12,1996, the court summarily denied FDIC’s motion.

DISCUSSION

The issue in this case is whether the District Court abused its discretion when it denied FDIC’s motion to set aside the default judgment.

Rule 55(c), M.R.Civ.P., provides that “[flor good cause shown the court may set aside an entry of default.” The policy of law is to favor a trial on the merits. Therefore, no great abuse of discretion need be shown to warrant a reversal of a district court order denying a motion to set aside a default. In re Marriage of Broere (1994), 263 Mont. 207, 209, 867 P.2d 1092, 1093; Hoyt v. Eklund (1991), 249 Mont. 307, 311, 815 P.2d 1140, 1142. Our standard of review of a district court’s refusal to set aside a default is whether there was a slight abuse of discretion by the court. Twenty-Seventh Street, Inc. v. Johnson (1986), 220 Mont. 469, 471, 716 P.2d 210, 211.

In Blume v. Metropolitan Life Insurance Co. (1990), 242 Mont. 465, 467, 791 P.2d 784, 786, this Court set forth the factors necessary to establish good cause to set aside a default. We stated that a defendant must show: (1) that he proceeded with diligence; (2) that his neglect was excusable; (3) that the judgment, if permitted to stand, will affect him injuriously; and (4) that he has a defense to plaintiff’s cause of action on the merits. Blume, 242 Mont. at 467, 791 P.2d at 786. See also Marriage of Broere, 263 Mont. at 209, 867 P.2d at 1094.

In this case, the evidence presented by FDIC demonstrates that it proceeded with diligence to set aside the default entered against it, even though its motion to do so was not filed immediately. In support of its motion to the District Court, FDIC submitted affidavits from two of its attorneys in which they stated there had been an understanding between the parties that FDIC would postpone an effort to set aside the court’s entry of default pending ongoing settlement negotiations. In addition, FDIC submitted correspondence between the parties which illustrated its good faith belief that it would not be prejudiced by a delay in filing a motion to set aside the default. Both the correspondence and the affidavits clearly establish that the parties were attempting to reach a settlement and that FDIC believed that a motion to set aside the default would not be required until its attorneys were advised by the plaintiff’s attorney that such action was necessary. Furthermore, the record is clear that FDIC proceeded with diligence and attempted to set aside the default as soon as it became aware that plaintiff’s new counsel did not share FDIC’s view of the parties’ agreement and intended to enforce the entry of default.

The evidence presented by FDIC further demonstrates that its failure to file an answer was not due to inexcusable neglect or disrespect for the court or judicial process. See Blume, 242 Mont. at 469, 791 P.2d at 787. An affidavit filed by Leahy’s attorney confirms that Leahy orally consented to a thirty-day extension of time in which FDIC could file an answer to her complaint. In addition, FDIC’s attorney affidavits and correspondence with Leahy demonstrate that the parties continued to negotiate Leahy’s quiet title claim after the expiration of that thirty-day period with the understanding that FDIC could postpone filing its answer. In fact, in a letter dated October 6,1994, FDIC’s attorney appealed to Leahy for a response to the negotiations “so that we can either dismiss the action or file an answer.” (Emphasis added.) When FDIC’s attorney received Leahy’s motion seeking entry of default in May 1995, he was out of his office attending a seminar. The hearing had already occurred by the time FDIC’s attorney was made aware of that motion. The affidavits and exhibits presented by FDIC, which at the very least establish a misunderstanding between the parties regarding the necessity of a timely answer by FDIC, support FDIC’s assertion that its failure to file an answer to Leahy’s complaint was due to excusable neglect.

In addition, at the time FDIC filed its motion to set aside the default, it also filed a proposed answer to the plaintiff’s complaint. In the proposed answer, FDIC asserted two affirmative defenses which, if true, would constitute meritorious defenses to the complaint. It is well established that “[t]he proposed answer does not have to demonstrate the truth of the allegation of the answer, and it is not appropriate to discuss the merits of the answer beyond finding a prima facie defense.” Blume, 242 Mont, at 470, 791 P.2d at 787. We hold that FDIC’s proposed answer constitutes adequate documentation of its defenses to the quiet title action.

Finally, it is clear that if the entry of default is allowed to stand, FDIC will lose any ability to assert its interest in the real property at issue. Such a loss will clearly affect FDIC injuriously.

We hold that FDIC has established that it proceeded with diligence under the circumstances, that its neglect was excusable, that it has a defense to the quiet title action, and that the entry of judgment, if permitted to stand, will affect it injuriously. Therefore, in fight of FDIC’s showing of good cause to set aside the entry of default, and in fight of the clear policy which favors adjudication on the merits, we hold that the District Court abused its discretion when it denied FDIC’s motion to set aside the entry of default. We reverse the order of the District Court which denied FDIC’s motion and remand to that court for proceedings consistent with this opinion.

JUSTICES HUNT, NELSON, LEAPHART and GRAY concur.


text:
    STATE OF MONTANA, ex rel. MOLLY MAFFEI, as Guardian ad Litem for RICKY W. KOSKI, a minor, Relator, v. MONTANA SECOND JUDICIAL COURT, SILVER BOW COUNTY, and the HONORABLE JUDGE JAMES PURCELL, presiding District Judge, Respondents.
    No. 96-517.
    Submitted on Briefs January 16, 1997.
    Decided March 18, 1997.
    54 St.Rep. 244.
    282 Mont. 65.
    935 P.2d 266.
    See C.J.S. Negligence § 169.

      For Relator: William P. Joyce; Burgess, Joyce, Starin & Whelan; Butte; Frank J. Joseph; Attorney at Law; Butte.
    For Respondent: Gary L. Walton; Poore, Roth & Robinson; Butte (for Defendant Public Housing Authority).
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

On August 28,1996, Mollie Maffei, as Guardian ad Litem for Ricky W. Koski, filed an application with this Court for a writ of supervisory control. In her petition, Maffei sought review of an order of the District Court for the Second Judicial District in Butte-Silver Bow County which allowed the defendant, Public Housing Authority of Butte, to amend its answer and allege a nonparty defense pursuant to § 27-1-703(6), MCA. On October 17, 1996, this Court accepted supervisory control for the purpose of determining the constitutionality of the District Court’s order. We now reverse that portion of the District Court’s order which allowed the Public Housing Authority to assert a nonparty defense and remand the case to the District Court for further proceedings consistent with this opinion and order.

FACTUAL BACKGROUND

On July 3,1992, Ricky Koski, then four years old, was struck by a motor home on Arizona Street near the Silver Bow Homes housing complex in Butte. At the time of the accident, Ricky was a tenant of Silver Bow Homes, which is owned and operated by the defendant Public Housing Authority of Butte.

On February 8, 1994, Mollie Maffei, as Guardian ad Litem for Ricky, filed a complaint in the Second Judicial District Court against the Public Housing Authority, the driver of the motor home, the State of Montana, and Butte-Silver Bow County. The plaintiff settled with the driver of the motor home and the State of Montana, and the District Court dismissed both parties. In addition, the District Court granted Butte-Silver Bow County’s motion for summary judgment and dismissed it from the suit.

The plaintiff filed an amended complaint against the Public Housing Authority on March 20, 1995. The Housing Authority’s answer did not include a specific nonparty defense, and it did not amend its pleadings to allege such a defense by the discovery deadline set by the District Court. Nevertheless, the District Court, in a pretrial order addressing the plaintiff’s motion in limine, allowed the Housing Authority to assert a nonparty defense, pursuant to § 27-1-703(6), MCA. The plaintiff has petitioned this Court to reverse that portion of the court’s order which allowed the Housing Authority to assert a nonparty defense.

DISCUSSION

On November 22, 1996, after the District Court entered its order which allowed the Butte Public Housing Authority to assert a non-party defense pursuant to § 27-1-703(6), MCA, this Court issued its decision in State ex rel. Plumb v. District Court (1996), [279 Mont. 363], 927 P.2d 1011. In Plumb, we held that § 27-1-703(6), MCA, violated substantive due process to the extent that it allowed apportionment of liability to parties who were not named in the pleadings and did not have the opportunity to appear and defend themselves. Plumb, 927 P.2d at 1021, 53 St. Rep. at 1194-95. We therefore held that portion of the statute unconstitutional pursuant to Article II, Section 17, of the Montana Constitution. Plumb, 927 P.2d at 1021, 53 St. Rep. at 1195. Maffei now contends that, in light of our decision in Plumb, this Court must reverse that portion of the District Court’s order which allowed the Public Housing Authority to assert a non-party defense pursuant to § 27-1-703(6), MCA.

In Plumb, this Court stated:

[W]e conclude that that part of § 27-1-703, MCA (1995), which allows apportionment of liability to parties who are not named in the lawsuit and who do not have an opportunity to appear and defend themselves (specifically, the quoted portion of subparagraph (4) and all of subparagraph (6)), is not rationally related to the legitimate government objective of fairly apportioning liability among parties based on the degree to which their negligence contributes to another person’s injuries ....

Plumb, 927 P.2d at 1021, 53 St. Rep. at 1194-95 (footnote omitted).

Notwithstanding our holding in Plumb, the Housing Authority contends that the District Court’s decision should be affirmed because evidence of Koski’s parents’ negligence is admissible for other reasons. The Housing Authority contends that Koski’s parents were negligent by failing to properly supervise their child and that that negligence was an intervening and superseding cause of Koski’s injuries. The Housing Authority contends that the jury has a right to consider whether the causal link between its alleged negligence and Koski’s injuries was severed by his parents’ negligent conduct.

In light of our specific holding that subparagraph (6) of § 27-1-703, MCA, is unconstitutional pursuant to the Montana Constitution, we now hold that the Second Judicial District Court erred when it permitted the Housing Authority to assert a nonparty defense pursuant to that statute. We further hold that whether the evidence of a third party’s negligence is admissible on some other basis is a matter better left in the first instance to the discretion of the District Court and therefore, will not be reviewed by this Court pursuant to our original writ of supervisory control. We remand this case to the District Court for further proceedings consistent with this opinion.

ORDER

Based on the foregoing opinion,

IT IS HEREBY ORDERED that that portion of the District Court’s order which permitted the Public Housing Authority to assert a nonparty defense, pursuant to § 27-1-703(6), MCA, is REVERSED. This case is remanded to the District Court for further proceedings consistent with this opinion.

The Clerk of Court is directed to mail a true and correct copy of this opinion order to all parties of record and to the District Court for the Second Judicial District in Butte-Silver Bow County.

DATED this 18th day of March, 1997.

CHIEF JUSTICE TURNAGE, JUSTICES REGNIER, HUNT and LEAPHART concur.


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. KIM MICHAEL SOL, Defendant and Appellant.
    No. 96-219.
    Submitted on Briefs February 20, 1997.
    Decided March 20, 1997.
    54 St.Rep. 246.
    282 Mont. 69.
    936 P.2d 307.

      See C.J.S. Criminal Law § 1500.
    For Appellant: Gary W. Wolfe, Sol & Wolfe, Missoula.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Michael L. Fanning, Assistant Attorney General, Helena; Robert L. Deschamps HI, County Attorney, Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Kim Michael Sol appeals from two orders of the Fourth Judicial District Court, Missoula County, denying his motions to dismiss a charge of driving under the influence of alcohol and/or drugs. We affirm.

The issues are:

1. Did the District Court err when it refused to grant Sol’s motion to dismiss because the Justice Court clerk transmitted the record of the case to the District Court thirty-one days after Sol filed his notice of appeal, instead of within thirty days as required by § 46-17-311(3), MCA?

2. Did the District Court err when it refused to grant Sol’s motion to dismiss based on the State’s failure to supply a witness and exhibit fist?

BACKGROUND

Sol was arrested on June 5,1994, by Missoula County Deputy Sheriff Phil Tillman and was charged with driving under the influence of alcohol in violation of § 61-8-401, MCA. At booking, he submitted to a breath test. The Intoxilyzer 5000 indicated that Sol’s breath alcohol concentration was .184.

Sol pleaded not guilty to an amended complaint charging him with driving under the influence of alcohol and/or drugs. The complaint was amended because there was evidence that Sol had inhaled Primatene Mist, in addition to having consumed alcohol, on the evening of his arrest.

Sol initiated discovery regarding the testimony of the State’s proposed expert witness, Phil Lively, of the State Crime Lab. In response to Sol’s discovery motions, the Justice Court ordered the State to make Lively available regarding his knowledge of cases in which the Intoxilyzer 5000 had been shown to be unreliable.

On April 25, 1995, in response to an April 24 letter from Sol’s attorney, Gary Wolfe, asking the State if it maintained that Primatene Mist had no effect on the intoxilyzer, the State’s intern prosecutor, Kirsten LaCroix, informed Wolfe that Sol should obtain his discovery from Lively. The letter stated:

Last fall... Mr. Sol requested that the State provide him with all tests done on the Intoxilyzer 5000 since its purchase. The Court directed Mr. Sol to contact Phil Lively to inquire about relevant testing done. To my knowledge, Mr. Sol has declined to do this. Regardless, Phil will be available after May 8,1995, to answer the questions that you pose.
Please call Mr. Lively after May 8, to discuss the experiments, as well as the citation to the journal you are interested in. His telephone number is ....

Sol was convicted in Justice Court of driving under the influence of alcohol and/or drugs. On June 22,1995, he appealed to the District Court for a trial de novo. The Justice Court clerk transmitted the record on July 25,1995, one day after the thirty-day deadline required by § 46-17-311(3), MCA. After receiving the record, the District Court ordered both parties to submit discovery in compliance with § 46-15-322, MCA.

On August 15, 1995, Sol moved to dismiss the DUI charge, based on the Justice Court clerk’s one-day delay in transmitting the record. He subsequently filed a second motion to dismiss and a motion in limine to prevent the State from calling witnesses or introducing evidence. Sol based this motion on the State’s failure to file notice of witnesses and exhibits, and to disclose witness statements and exculpatory evidence, as directed by the court’s discovery order. The State did not file a witness and exhibit list in District Court because it planned to use the same evidence as in Justice Court.

The court denied Sol’s first motion to dismiss and resolved his second motion at two hearings and dining trial. At the first hearing, the State confirmed that all of the evidence it was going to present was the same evidence used in Justice Court. The District Court denied Sol’s second motion to dismiss, but limited the State’s case to the evidence presented in Justice Court or disclosed in preparation for the Justice Court trial.

At a hearing held on October 10, 1995, Sol attempted to bar evidence concerning tests that Lively performed regarding bronchial dilators on the Intoxilyzer 5000. Sol claimed that the Justice Court had barred similar evidence because the State failed to disclose an expert witness statement and to supply a summary of the tests. The court questioned intern prosecutor Dylan Jackson to determine whether Sol knew about the Primatene Mist tests. The intern explained that the tests had been disclosed, and that LaCroix’s notes indicated that she had written Sol’s attorney on April 25, 1995, explaining how he could obtain information about them. The court granted Sol’s motion to exclude the tests because they were not properly disclosed.

Sol’s case proceeded to trial on October 10,1995. During the State’s direct examination of Lively, Sol objected, arguing that the State’s questions were barred by the court’s earlier ruling. The court ruled that the State could offer evidence which had been disclosed to Sol through direct discovery or during the course of the Justice Court trial.

The court then asked Sol if he was aware of tests Lively had conducted involving Primatene Mist. Sol responded that he was unaware of the tests, their results, or how they were conducted. The court then directed the intern to summarize Lively’s proposed testimony and ordered Sol to raise his hand if he heard something new. Sol did not raise his hand. He eventually admitted that the State had supplied him with the publication about which Lively would testify. He also admitted knowledge of the tests:

I heard — Well, the part about a bunch of tests way in the past that he doesn’t have any results on, I don’t recall that at all. I recall him specifically saying, I did a test with four people a couple of months ago, that was in the May trial.

Sol then argued that the State was required to supply him with its exculpatory evidence in writing. The court concluded that the State had made the reports available for examination and reproduction. It determined that Sol knew there was a test, and that if he went to the Crime Lab and saw there was a written report, he could have obtained a copy. Based on this discussion, the court ruled that the State could question Lively about the Primatene Mist tests because Sol had adequate notice. The court received as exhibits a letter from Sol’s attorney to the State, dated April 24,1995, and LaCroix’s reply letter of April 25,1995.

On October 12, 1995, a jury convicted Sol of driving under the influence of alcohol. Sol appeals from the District Court’s denial of his motions to dismiss.

1. Did the District Court err when it refused to grant Sol’s motion to dismiss because the Justice Court clerk transmitted the record of the case to the District Court thirty-one days after Sol filed his notice of appeal, instead of within thirty days as required by § 46-17-311(3), MCA?

Sol argues that the District Court erred when it denied his motion to dismiss based on the Justice Court clerk’s one-day delay in transmitting the record. The District Court ruled that the transmittal of the record is a statutory obligation imposed on the Justice Court, and that the one-day delay did not prejudice Sol’s speedy trial rights.

The grant or denial of a motion to dismiss in a criminal case is a question of law. City of Helena v. Danichek (1996), 277 Mont. 461, 463, 922 P.2d 1170, 1172. The standard of review of a district court’s conclusion of law is plenary, and we review it to determine whether the conclusion of law is correct. Danichek, 922 P.2d at 1172.

Section 46-17-311(3), MCA, provides:

Within 30 days of filing the notice of appeal, the court shall transfer the entire record of the court of limited jurisdiction to the district court.

This Court has consistently held that strict compliance with § 46-17-311, MCA, is necessary to perfect an appeal. State v. Speith (1990), 244 Mont. 392, 394, 797 P.2d 221, 222. Perfecting an appeal is the duty of the appellant, Speith, 797 P.2d at 222, while physically transmitting the record is the responsibility of the Justice Court. State v. Dubray (1982), 201 Mont. 327, 329-30, 654 P.2d 970, 971-72.

Under § 46-17-311(3), MCA (1989), an appellant was charged with the duty of perfecting the appeal and the consequences for failing to do so. Unlike § 46-17-311(3), MCA (1989), the justice court, not the appellant, now transfers the record to the district court. See § 46-17-311(3), MCA; Cf § 46-17-311(3), MCA (1989). Under § 46-17-311(3), MCA, an appellant perfects an appeal by filing written notice of appeal within ten days of judgment.

Sol cites cases involving appeals initiated by defendants, such as Speith, 797 P.2d at 221; State v. Hartford (1987), 228 Mont. 254, 741 P.2d 1337; and State v. Main (1981), 191 Mont. 304, 623 P.2d 1382, which lead him to assume that § 46-17-311, MCA (1989), has only been strictly construed against defendants. This is incorrect. Based on this assumption, Sol argues that the Justice Court clerk’s failure to comply with § 46-17-311, MCA, should be strictly construed against the State. We disagree.

We have strictly construed § 46-17-311, MCA, against the State when it failed to perfect an appeal. See State v. Province (1987), 226 Mont. 425, 426, 735 P.2d 1128, 1129. The plain language of § 46-17-311, MCA, requires the justice court to transfer the entire record of the court of limited jurisdiction to the district court. The statute does not impose a duty on the prosecution to transmit the record nor does it penalize the prosecution for failing to do so.

Dubray, 654 P.2d at 970, addressed the remedy under § 46-17-311, MCA, for a defendant who filed a timely notice of appeal from justice court and instructed the clerk to transmit the record to district court, but the clerk failed to do so. The district court dismissed the defendant’s appeal as untimely. This Court reinstated the appeal, reasoning that the “justice court has complete control over the record of a proceeding in its court and should be responsible for any physical transmittal of the record.” Dubray, 654 P.2d at 971. Appeal statutes should not be a trap for the unwary but should be a device to assure timely review of a lower court judgment. Dubray, 654 P.2d at 972.

The same reasoning applies here. The Justice Court clerk had complete control over the record in this case, and neither the prosecution nor Sol was responsible for its transmittal. We decline to attribute the Justice Court clerk’s failure to strictly comply with § 46-17-311, MCA, to the prosecution.

Sol claims that the District Court lacked jurisdiction to hear his trial de novo because the record was transmitted one day late. Sol provides no legal authority for his jurisdictional argument. An appellant carries the burden of establishing error by the trial court. Moreover, Rule 23, M.R.App.R, requires the appellant to cite to authority which supports the position being advanced on appeal. Because Sol has failed to do so, we decline to address his jurisdictional argument.

Sol also asserts that under the Fourteenth Amendment and Article II, Section 24, of the Montana Constitution, he has a right to a speedy trial. In his arguments, Sol entwines speedy trial and due process rights. Because he appears tobe arguing that the one-day transmittal delay violated both his right to a speedy trial and to due process, we address both issues.

A. Speedy trial.

A criminal defendant’s right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and Article II, Section 24, of the Montana Constitution. State v. Matthews (1995), 271 Mont. 24, 27, 894 P.2d 285, 287. Once either party appeals a criminal action from a justice court to a district court, speedy trial issues are analyzed under the four-part test established in Barker v. Wingo (1972), 407 U.S. 514, 523, 92 S.Ct. 2182, 2188, 33 L.Ed.2d 101, 112-13. State v. Bullock (1995), 272 Mont. 361, 368-69, 901 P.2d 61, 66-67.

Whether a defendant’s right to a speedy trial has been violated requires a balancing of four factors: 1) length of the delay; 2) reason for the delay; 3) assertion of the right by the defendant; and 4) prejudice to the defendant. Matthews, 894 P.2d at 287. When considering the first factor, the time for calculating the length of delay commences on the date that the defendant files his notice of appeal to district court. See State v. Nelson (1991), 251 Mont. 139, 142, 822 P.2d 1086, 1088. Sol filed his notice of appeal from Justice Court on June 22, 1995. The District Court scheduled the case for trial on October 10,1995 — 110 days later.

The first factor, the length of the delay, must be presumptively prejudicial before the remaining three factors will be analyzed. Matthews, 894 P.2d at 287. A delay of less than six months is not presumptively prejudicial. Bullock, 901 P.2d at 67. We hold that the Justice Court clerk’s one-day delay, which most likely resulted in Sol’s trial being scheduled 110 days later, rather than 109, is not presumptively prejudicial. Therefore, we do not address the other Barker criteria.

Sol’s constitutional right to a speedy trial was not violated when the Justice Court clerk transmitted the record of the case in thirty-one, rather than thirty days. The District Court properly concluded that Sol’s speedy trial rights were not prejudiced.

B. Due process.

Sol cites Province, 735 P.2d at 1128, for his proposition that § 46-17-311, MCA, is a procedural due process statute. In Province, the State failed to provide the defendant with its notice of appeal from justice court. The State argued that § 46-17-311, MCA, meant no more than giving the justice court written notice. We disagreed and held “giving written notice of an intention to appeal” under § 46-17-311, MCA, requires that the defendant receive notice. Province, 735 P.2d at 1129.

That is not the situation here. Procedural due process requires notice and the opportunity to be heard. See State v. Kingery (1989), 239 Mont. 160, 166, 779 P.2d 495, 499. Sol, as appellant, had adequate notice of his own appeal and received numerous opportunities to be heard — at two trials and several evidentiary hearings. Again, we note that Sol suffered no prejudice as a result of the one-day delay in the transmittal of his record. Sol’s procedural due process rights were not violated when the Justice Court clerk transmitted the record of his case to the District Court in thirty-one, rather than thirty days.

We conclude that the District Court did not err when it refused to grant Sol’s motion to dismiss based on the Justice Court clerk’s one-day delay in transmitting the record of the case. We affirm the District Court’s denial of Sol’s first motion to dismiss.

2. Did the District Court err when it refused to grant Sol’s motion to dismiss based on the State’s failure to supply a witness and exhibit list?

Sol argues that the State violated Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and § 46-15-322(l)(e), MCA, when it failed to disclose exculpatory evidence about Lively’s Primatene Mist tests. He cites State v. Dist. Court, Thirteenth Dist. (1990), 245 Mont. 88, 799 P.2d 1056, where we upheld contempt proceedings against an attorney who refused to disclose discovery. He also cites State v. Licht (1994), 266 Mont. 123, 879 P.2d 670, where this Court explained the mandatory duty imposed by § 46-15-322(l)(e), MCA, on the prosecution to disclose exculpatory information. Sol argues that these cases require the State to disclose information about the Primatene Mist tests.

Sol’s argument fails because the State disclosed to Sol that he could discuss the test results with Lively at the Crime Lab. A letter from intern prosecutor LaCroix to Sol’s attorney demonstrates that on April 24 and 25, 1995, Sol had actual notice that the State’s expert witness had conducted tests concerning the effect of Primatene Mist on the Intoxilyzer 5000. Sol knew whom to talk to, where to find him, his phone number, and when he could be contacted. Sol had only to go to the Crime Lab and request copies of the tests that Lively had conducted.

Based on the April 1995 letters, the District Court determined that Sol was on notice of the existence of the challenged evidence. At trial, Sol admitted that the State had supplied him with a publication about which Lively would testify and agreed that Lively could testify about it. He also admitted that he knew about the tests.

Sol had actual notice, as early as April 25, 1995, of the evidence that the State planned to use against him. He cannot claim that on October 10,1995, six months later, he was surprised by the evidence or that it was wrongfully withheld. We conclude that the State did not withhold exculpatory evidence against Sol.

Sol next argues that the State violated § 46-15-322(5), MCA, and the District Corut’s omnibus order, by failing to disclose witnesses, identify experts, and provide summaries of their testimony. He cites the court’s omnibus order, claiming that it states:

I. The State shall immediately, and on a continuing basis: (a) Disclose the names of the State’s witnesses (including experts), their statements, or a short summary of their anticipated testimony if no statement exists. [Emphasis added].

Sol misquotes the order. It states:

1. In compliance with MCA 46-15-322, the State shall immediately and on a continuing basis:
(a) Disclose the names, addresses and statements of the State’s witnesses (including experts) that the State may call as witnesses in their case-in-chief.

When the language of a statute is clear and unambiguous, we look no further than to the plain meaning of the statute for its interpretation. State v. Long (1995), 274 Mont. 228, 237, 907 P.2d 945, 950. We conclude that the language of § 46-15-322(5), MCA, is clear and unambiguous.

Section 46-15-322(5), MCA, does not require a prosecutor to prepare or disclose summaries of witness testimony. On the day of trial, the District Court read Sol a portion of § 46-15-322(5), MCA, and explained to him that the State was not obligated to disclose summaries of witness testimony. We hold that based on the plain meaning of § 46-15-322(5), MCA, that the State was not obligated to provide Sol with summaries of witness testimony.

Sol has been unable to demonstrate that he suffered prejudice or surprise as a result of the State’s alleged discovery violations. The District Court received testimony at two hearings to determine whether Sol knew about Lively’s testimony concerning the effect of Primatene Mist on the Intoxilyzer 5000. It concluded that Sol was aware of the tests and that the State had made the results of the tests “available for examination and reproduction.”

After Sol admitted that he knew of the tests, he claimed that the State was obligated to deliver the results to him. The court offered a reasonable solution by telling Sol that all he had to do was go over and get the reports. We agree.

We find equally unconvincing Sol’s argument that the State’s expert testimony and reports resulted in surprise or prejudice. An appellant is required to order those portions of the transcript that he “deems necessary” for his appeal. Rule 9(b), M.R.App.P. Because Sol did not order a transcript of the District Court trial, we do not have a record of whether the disputed evidence was offered at trial, and if it was, whether it resulted in surprise or prejudice.

We hold that the District Court did not err when it refused to grant Sol’s second motion to dismiss based on the State’s failure to supply a witness and exhibit list.

Affirmed.

JUSTICES GRAY, LEAPHART, NELSON and TRIEWEILER concur.

      . The Justice Court transfer receipt is missing from the record, but the District Court clerk’s file stamp on Sol’s notice of appeal indicates that the file was received on July 25, 1995. Because neither party contests this date, for purposes of this appeal we assume that the Justice Court clerk transmitted Sol’s file on July 25,1995.


author: JUSTICE LEAPHART JUSTICE HUNT

text:
    CLINTON LOSS, Petitioner and Appellant, v. LUMBERMENS MUTUAL CASUALTY COMPANY, Respondent, NABISCO BRANDS, INC., Employer.
    No. 96-710.
    Submitted on Briefs February 27, 1997.
    Decided March 24, 1997.
    54 St.Rep. 251.
    282 Mont. 80.
    936 P.2d 313.
    See C.J.S. Workmen’s Compensation § 296.
    For Appellant: Norman H. Grosfield; Utick & Grosfield, Helena.
    For Respondent: Thomas A. Marra; Marra, Wenz, Johnson & Hopkins, Great Falls.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Clinton Loss appeals from the Workers’ Compensation Court’s grant of summary judgment to insurer Lumbermens Mutual Casualty Company on the question of whether rehabilitation benefits are available under the Occupational Disease Act (ODA). We affirm the decision of the Workers’ Compensation Court.

Clinton Loss suffers from carpal tunnel syndrome. In November of 1991 he became disabled as a result of his carpal tunnel condition and filed an occupational disease claim. The claim was accepted and Lumbermens paid both wage loss and medical benefits. In 1994, Loss also sought an award of $10,000 pursuant to § 39-72-405(2), MCA (1991), and the Workers’ Compensation Court awarded the $10,000 in a lump sum. Loss also sought reinstatement of total disability benefits which the court denied. Neither party appealed the court’s ruling. Subsequently, Loss requested total rehabilitation benefits pursuant to § 39-71-2001, MCA (1991). Lumbermens denied the request and Loss submitted a petition to the Workers’ Compensation Court seeking total rehabilitation benefits. The court granted Lumbermens’ motion for summary judgment.

The standard of review for an appeal from the Workers’ Compensation Court’s grant or denial of a motion for summary judgment is the same as that used by a district court.

We determine whether there is an absence of genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. Our review of the court’s conclusions of law is plenary; we simply determine whether its legal conclusions are correct.

Clarke v. Massey (1995), 271 Mont. 412, 415, 897 P.2d 1085, 1087.

It is undisputed that Loss suffers from an occupational disease. Since that is the only fact relevant to the legal question posed, the matter was ripe for summary judgment.

Loss contends that the statutory provision allowing for rehabilitation benefits to injured workers, § 39-71-2001, MCA (1991), was enacted as a “stand alone” section which, although coincidentally codified in Title 39, Chapter 71 (Workers’ Compensation Act), applies as well to occupational disease claims under Title 39, Chapter 72.

The statutory provision for rehabilitation benefits, § 39-71-2001, MCA (1991), was enacted by the 1991 legislature, which directed that it be “codified as an integral part of Title 39, chapter 71, part 20, and the provisions of Title 39, chapter 71, apply to [the new section].” 1991 Mont. Laws, ch. 574, § 12. The Workers’ Compensation Court con-eluded that it was clear that the legislature intended the new section to be an “integral part of the Workers’ Compensation Act (WCA) and applicable to workers’ compensation claims.” We agree.

Loss contends that the provision for rehabilitation benefits should be read into the ODA since the legislature did not expressly preclude rehabilitation benefits in occupational disease cases. It is not our prerogative, however, to infer such breadth of intent from legislation which does not reference the ODA nor is codified within the ODA.

The role of the Cotut in interpreting statutory language is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.

EBI/Orion Group v. Blythe (1997), [281 Mont. 50], 931 P.2d 38, 41; see also Murer v. State Comp. Mut. Ins. Fund (1994), 267 Mont. 516, 520, 885 P.2d 428, 430.

Loss relies on our decision in Ingbretson v. Louisiana-Pacific Corp. (1995), 272 Mont. 294, 900 P.2d 912, for the proposition that the provisions of the WCA apply to occupational disease claims. Loss’ reading of Inghretson is too broad. As Loss points out, we held that the penalty and attorney fee provisions of the WCA applied to Ingbretson’s occupational disease claim. However, it is imperative to put that holding in its proper context.

The Occupational Disease Act provides that “practice and procedure prescribed in the Workers’ Compensation Act applies to all proceedings under this chapter.” Section 39-72-402(1), MCA. The penalty statute, § 39-71-2907, MCA, was not a part of the original Workers’ Compensation Act, and therefore its application is not limited to cases under the Workers’ Compensation Act. In this instance, we agree with the Workers’ Compensation Court that the “practice and procedure” of penalty imposition applies through § 39-72-402(1), MCA.
We affirm the decision of the Workers' Compensation Court in its entirety. [Emphasis added.]

Inghretson, 900 P.2d at 917.

Clearly in Inghretson, we relied on the fact that the ODA incorporates by reference the “practice and procedure” provisions of the WCA. Section 39-72-402(1), MCA. We held that the penalty provisions of the WCA are part of the “practice and procedure” of the WCA and, therefore, are incorporated into the ODA. The same reasoning does not apply to the case at hand. Here, we are dealing not with “practice and procedure” but rather with rehabilitation benefits. The two acts have separate provisions as to benefits. For instance, unlike the WCA, the ODA contains no permanent partial disability benefits provision. The WCA does not provide, as does the ODA, § 39-72-405, MCA, for an award of up to $10,000 for a non-disabling occupational disease.

It is apparent from a review of the ODA that the legislature did not intend that rehabilitation benefits be incorporated into that Act. First of all, the legislature has been very explicit in spelling out those instances in which it intends that the ODA incorporates provisions from the WCA. By way of example, each of the following sections of the ODA specifically reference the WCA: The definitions set forth in §§ 39-72-102(5) through (11), (14) and (15), MCA; § 39-72-305(2), MCA, pertaining to uninsured employers and benefits due uninsured claimants; § 39-72-310(2), MCA, pertaining to the three compensation plans under the WCA; § 39-72-402, MCA, pertaining to incorporation of the “practice and procedure” of the WCA; § 39-72-405(2), MCA, pertaining to mediation procedures; § 39-72-704, MCA, pertaining to medical and hospital expenses; and § 39-72-705, MCA, pertaining to burial expenses. Furthermore, the ODA specifically defines the benefits which are payable under the ODA: Section 39-72-509, MCA, (benefits for pneumoconiosis); § 39-72-405, MCA, (limitations on payment of compensation); § 39-72-701, MCA, (compensation for total disability or death due to occupational disease other than pneumoconiosis); § 39-72-704, MCA, (medical and hospital expenses); § 39-72-705, MCA, (burial expenses); § 39-72-706, MCA, (aggravation); § 39-72-707 (Silicosis); § 39-72-709, MCA, (diminution of compensation); and § 39-72-711, MCA, (lump-sum and compromise settlements). Rehabilitation benefits are not among the benefits enumerated in this rather extensive fist of ODA benefits.

It is clear from a reading of the two acts in question that the legislature did not intend that rehabilitation benefits provided for in the WCA be incorporated into the ODA. Accordingly, we hold that rehabilitation benefits under § 39-71-2001, MCA (1991), are not available to claimants proceeding under the Occupational Disease Act.

AFFIRMED.

CHIEF JUSTICE TURNAGE, JUSTICES REGNIER and TRIEWEILER concur.

JUSTICE HUNT

specially concurs.

The majority has properly applied the law, and on that basis I agree with the majority opinion. I write separately, however, to express my concern with the law that occupational disease is segregated from our scheme of workers’ compensation which has been applicable in Montana since the Anaconda Company was at its zenith.

The law in Montana that distinguishes occupational disease from compensable injuries under the Workers’ Compensation Act is a hangover from the days when the Anaconda Company strongly influenced legislation. Simply, the distinction was made so that the Anaconda Company would not have to compensate miners suffering from silicosis and other lung diseases according to the workers’ compensation scheme.

It is silly to segregate occupational disease from the workers’ compensation system to the point where a person suffering from an occupational disease is not entitled to rehabilitation benefits. The basis for such segregation has disappeared, and so should the segregation. Montana should join the many other states that include occupational disease within the definition of an injury covered by workers’ compensation.


text:
    MacARTHUR COMPANY, a Minnesota Corporation, Plaintiff and Respondent, v. KARL STEIN, individually and d/b/a MIDLAND ROOFING AND MIDLAND ROOFING AND GUTTERS; JOHN DOES 1-2, individually and d/b/a MIDLAND ROOFING AND GUTTERS, Defendants and Appellants.
    No. 95-516.
    Submitted on Briefs December 12, 1996.
    Decided March 25, 1997.
    54 St.Rep. 254.
    282 Mont. 85.
    934 P.2d 214.
    See C. J.S. Partnership § 3.

      For Appellants: Jock B. West; West, Patten, Bekkedahl & Green; Billings.
    For Respondent: Michael K. Rapkoch; Felt, Martin, Frazier & Nelson; Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

MacArthur Company filed a complaint in the District Court for the Thirteenth Judicial District in Yellowstone County in which it alleged that Karl Stein, Midland Roofing, Midland Roofing and Gutters, and John Does 1 and 2 were jointly and severally hable for an outstanding debt for roofing materials supplied by MacArthur to Midland Roofing and Gutters. Following a nonjury trial held on January 11,1995, the District Court concluded that Stein was a partner in Midland Roofing and Gutters at the time the debt to MacArthur was incurred. The District Court therefore concluded that pursuant to § 35-10-307, MCA, Stein was hable to MacArthur for the amount of $39,875.27, plus interest and attorney fees. Stein appeals from the judgment of the District Court. We affirm the District Court.

On appeal, we address the issue of whether the District Court erred when it concluded that Karl Stein was a partner in Midland Roofing and Gutters and was therefore liable for the partnership’s debt to MacArthur Company.

FACTUAL BACKGROUND

Karl Stein has operated Midland Roofing in Billings since 1974. Prior to July 1991, Midland Roofing was a sole proprietorship owned solely by Stein.

In the summer of 1991, several hail storms occurred in the Billings area. As a result, the demand for roofing services increased significantly in the late summer and fall of 1991. Stein recognized an opportunity to increase his profits because of the sudden demand for roofing services. He sought to take advantage of the business opportunity by seeking a line of credit at a local financial institution, but was unable to secure financing.

John L. Potter and Jesse Beebe approached Stein in late June or early July 1991 with the idea of expanding Stein’s business to take advantage of the increase in roofing demand. Both Potter and Beebe were out-of-state businessmen who engaged in “storm tracking” — the business of traveling to areas where there was increased roofing activity due to storm damage. In early negotiations, Potter asserted that he could handle the general operation of a roofing business and that a third party, Bill Evans, could handle sales and material acquisition. In addition, Beebe represented that he had the ability to secure credit for the expanded business.

In early July, the parties entered into an agreement, some of which was in writing and some of which was not, but which was confirmed by subsequent actions of the parties. Pursuant to the agreement, Stein, Beebe, and Potter agreed to create a new entity which would operate under the name of Midland Roofing and Gutters. The parties expressly intended that the business name would be so similar to Stein’s business name, Midland Roofing, that the public and customers would be unable to distinguish between the two businesses. In addition, both Midland Roofing and the new entity, Midland Roofing and Gutters, were to use the same telephone number and all calls to that number were to be answered by employees of Midland Roofing and Gutters. The parties agreed that a record would be made of all telephone calls and that Stein would be given a first right to accept any potential roofing job. Midland Roofing and Gutters had the option to complete any other jobs.

As part of the parties’ initial written agreement, Stein’s compensation was equal to three percent of total gross charges for all “nail-on roofing” jobs and ten percent of gross charges for “hot roofing” jobs performed by Midland Roofing and Gutters. Midland Roofing and Gutters also agreed to pay one of Stein’s employees a portion of his salary for inspection work and to set aside $.50 per roofing square to be set up in a two-signature account, which would bear the signatures of Stein and Beebe, to cover any warranty work necessary after Midland Roofing and Gutters ceased operation.

In August 1991, Jesse Beebe arranged a line of credit for Midland Roofing and Gutters from MacArthur Company. Stein had previously been denied credit by the company. His purchases from MacArthur were on a “cash only” basis. On the credit application, Beebe listed Midland Roofing and Gutters as the company seeking credit, and named himself as the “principal or officer.” Neither Stein nor Midland Roofing was mentioned on the credit application, and MacArthur was not advised of Stein’s association with Midland Roofing and Gutters. Based solely on Beebe’s credit references, MacArthur granted Midland Roofing and Gutters a line of credit and supplied the company with materials from August 1991 through January 1992.

In January 1992, Jesse Beebe, John Potter, and Bill Evans departed the Billings area without notice, and left an unpaid balance to MacArthur Company in the amount of $39,875.27. On May 12, 1994, MacArthur Company filed a complaint in the Thirteenth Judicial District Court in Yellowstone County against Karl Stein, Midland Roofing, Midland Roofing and Gutters, and John Does 1 and 2. MacArthur alleged that each of the defendants, as partners in Midland Roofing and Gutters, was jointly and severally liable for the outstanding debt to MacArthur.

Following a hearing on January 11, 1995, the District Court concluded that Stein was a partner of Midland Roofing and Gutters at the time the debt to MacArthur was incurred. The District Court therefore concluded that, pursuant to § 35-10-307, MCA, Stein was “jointly liable for all ... debts and obligations of the partnership.” Based on its conclusions, the court ordered Stein to pay $39,875.27, plus interest and attorney fees, for the debt owed to MacArthur by Midland Roofing and Gutters.

DISCUSSION

The issue in this case is whether the District Court erred when it concluded that Karl Stein was a partner in Midland Roofing and Gutters and was therefore liable for the partnership’s debt to MacArthur Company.

Our review of a district court’s order is two-fold. We review a district court’s findings of fact to determine whether the court’s findings are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906. We review a district court’s conclusions of law to determine whether they are correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

Section 35-10-201(1), MCA (1991), defines a partnership as “an association of two or more persons to carry on as co-owners a business for profit.” Section 35-10-202, MCA (1991), provides:

In determining whether a partnership exists, these rules shall apply:
(1) Except as provided by 35-10-308 persons who are not partners as to each other are not partners as to third persons.
(2) Joint tenancy, tenancy in common, tenancy by the entireties, joint property, common property, or part ownership does not of itself establish a partnership, whether such co-owners do or do not share any profits made by the use of the property.
(3) The sharing of gross returns does not of itself establish a partnership, whether or not the persons sharing them have a joint or common right or interest in any property from which the returns are derived.
(4) The receipt by a person of a share of the profits of a business is prima facie evidence that such person is a partner in the business, but no such inference shall be drawn if such profits were received in payment:
(a) as a debt by installments or otherwise;
(b) as wages of an employee or rent to a landlord;
(c) as an annuity to a surviving spouse or representative of a deceased partner;
(d) as interest on a loan, though the amount of payment varies with the profits of the business;
(e) as the consideration for the sale of a goodwill of a business or other property by installments or otherwise.

This Court established the elements for the determination of the existence of a partnership in Bender v. Bender (1965), 144 Mont. 470, 480, 397 P.2d 957, 962: (1) the parties must clearly manifest their intent to associate themselves as a partnership; (2) each party must contribute something that promotes the enterprise; (3) each party must have a right of mutual control over the subject matter of the enterprise; and (4) the parties must agree to share the profits of the enterprise. We have consistently held that each of the four Bender requirements must be established in order to prove the existence of a partnership. See, e.g., Weingart v. C & W Taylor Partnership (1991), 248 Mont. 76, 79, 809 P.2d 576, 578; Montana Bank of Red Lodge v. Lightfield (1989), 237 Mont. 41, 45, 771 P.2d 571, 574; Antonick v. Jones (1989), 236 Mont. 279, 283, 769 P.2d 1240,1242; In re Estate of Smith (1988), 230 Mont. 140, 145, 749 P.2d 512, 515.

In this case, the District Court analyzed the alleged partnership of Stein, Beebe, Potter, and Evans pursuant to both § 35-10-202, MCA (1991), and the elements of partnership set forth in Bender. The court found that the parties’ actions and conduct were sufficient to establish their intent to associate themselves as a partnership. In addition, the court found that each party had contributed something that promoted Midland Roofing and Gutters, that each had a joint proprietary interest and a right of mutual control over the enterprise, and that each had received a share of the profits of the enterprise. Based on its findings, the court concluded that Stein, Beebe, Potter, and Evans had created a partnership and that that partnership was in existence at the time the debt to MacArthur Company was incurred. The court therefore concluded that, as a partner in Midland Roofing and Gutters, Stein was liable “jointly for all ... debts and obligations of the partnership,” pursuant to § 35-10-307, MCA (1991).

The initial test for the determination of whether a partnership exists is the intent of the parties. Antonick, 236 Mont, at 284, 769 P.2d at 1242. At trial, Stein testified that he did not intend to create a partnership through his negotiations with Beebe and Potter. However, as this Court noted in Truck Insurance Exchange v. Industrial Indemnity Co. (1984), 212 Mont. 297, 300, 688 P.2d 1243, 1244-45:

[I]f the facts bring the arrangement within the definition of a partnership, the parties cannot escape liability incident to that relationship merely by saying that no such thing exists. If the intended action of the parties creates a partnership in fact, what the parties call their arrangement or intend their arrangement to be is irrelevant.

(Citation omitted.) Therefore, where intent cannot be directly ascertained, it must be established from all the facts, circumstances, actions, and conduct of the parties. Antonick, 236 Mont, at 284, 769 P.2d at 1242. In this case, then, it is not necessary that Stein intended to be a partner in Midland Roofing and Gutters; it is only necessary that he intended his actions and that his actions created a partnership in fact.

In this case, the District Court found that, regardless of Stein’s intentions, the parties had created a partnership in fact through their actions and conduct. Specifically, the court found that the remaining three elements of Bender — contribution, joint interest and control, and the right to share profits — had been proven and were indicative of the parties’ intent to establish a partnership.

Pursuant to Bender, in addition to the requirement of intent, each of the purported partners must contribute something that promotes the enterprise. Bender, 144 Mont, at 480,397 P.2d at 962. In this case, the District Court found that each of the parties had made a contribution to Midland Roofing and Gutters sufficient to indicate the creation of a partnership. Specifically, the court found that Stein had contributed to Midland Roofing and Gutters the name of his business, his business license, and his goodwill in the community. In addition, the court noted that Stein had agreed to warrant work completed by Midland Roofing and Gutters. The other parties, the court found, had contributed roofing skills, start-up revenue, and sales skills. Based on the substantial contributions of each of the parties, the District Court found that the element of contribution had been established.

The uncontroverted evidence at trial established that Stein lent his business name, his telephone number, his business leads, his good will, his business license, and his expertise to Midland Roofing and Gutters. We hold that such contribution was promotive of the enterprise of Midland Roofing and Gutters. We therefore conclude that the District Court’s finding that the element of contribution had been established is supported by substantial, credible evidence and is not clearly erroneous.

Afurther requirement of Bender is that each party to an enterprise have a joint proprietary interest in, and right of control over the subject matter of the enterprise. Bender, 144 Mont, at 480, 397 R2d at 962. In this case, the District Court found that Stein did have such interest and control. Specifically, the court found that, pursuant to the parties’ agreement, Stein had the right to exercise quality control over the work performed by Midland Roofing and Gutters and, after inspection, could have required that the work conform with his standards. In addition, the court found that Stein had agreed to perform future warranty work for Midland Roofing and Gutters and had established a joint account for the payment for that work. Finally, the court found that Stein had reserved the right to discontinue the parties’ arrangement and prohibit Midland Roofing and Gutters from using his telephone number and business license. Although the court noted that Stein did not specifically hire the employees of Midland Roofing and Gutters or arrange for their work schedule or payment, the court found that “there are sufficient indices of control and proprietary interest to determine that he was in fact a partner.”

In addition to the District Court’s specific findings regarding Stein’s proprietary interest and right of control, the record reflects that Stein was involved in the oversight of the day-to-day workings of Midland Roofing and Gutters. Stein testified at trial that he visited Midland Roofing and Gutter job sites and gave advice on local building code requirements. In addition, Stein testified that he was in the offices of Midland Roofing and Gutters on a daily basis and answered the phones for that entity. Moreover, the evidence presented at trial established that Stein and Midland Roofing and Gutters worked together to contact the general public. This evidence was clearly indicative of Stein’s interest in and control of Midland Roofing and Gutters. We therefore hold that the District Court’s finding of Stein’s right of mutual control and j oint proprietary interest is supported by substantial credible evidence and is not clearly erroneous.

The final element of Bender requires that there must be an agreement to share profits in order to establish a partnership. Bender, 144 Mont, at 480, 397 P.2d at 962. In this case, the District Court found that Stein was entitled to receive a percentage of Midland Roofing and Gutters’ profit. Specifically, the court noted that both the written agreement formalizing the parties’ arrangement and its subsequent modification entitled Stein to a percentage of the gross revenue on all work done by Midland Roofing and Gutters. In addition, the court noted that, according to testimony at trial, Stein earned between $75,000 and $92,000 in both cash and materials from his agreement with Midland Roofing and Gutters. As the District Court correctly stated, “[t]he receipt by a person of a share of the profits of a business is prima facie evidence that such person is a partner in the business.” Section 35-10-202(4), MCA (1991). Based on the evidence at trial, which clearly established that Stein was entitled to share the profits of Midland Roofing and Gutters, we hold that the District Court’s finding that the final element of Bender had been satisfied is not clearly erroneous.

Because we uphold the District Court’s findings regarding the establishment of the four elements of a partnership, we hold that the court’s conclusion that Stein, Beebe, Potter, and Evans had created a partnership is correct. The only remaining question, then, is whether Stein is liable, as a partner, for Midland Roofing and Gutters’ debt to MacArthur Company.

Section 35-10-307(2), MCA(1991), provides that “[a] 11 partners are liable ... jointly for all... debts and obligations of the partnership.” In this case, because we hold that Stein was a partner in Midland Roofing and Gutters, we further conclude he was jointly liable for the partnership’s debt to MacArthur Company. We do not address the issue of whether that makes him individually liable for the entire partnership debt because that issue has been neither raised nor briefed by the parties. Furthermore, we reject Stein’s contention that he is not liable to MacArthur because MacArthur was not aware of his relationship with Midland Roofing and Gutters when it extended credit to the company. Reliance is an element of partnership by estoppel; it is not necessary to the establishment of liability of a partner in fact. Therefore, we hold that the District Court was correct in its conclusion that, pursuant to § 35-10-307, MCA(1991), Stein was jointly hable for the partnership’s debt to MacArthur Company.

We affirm the judgment of the District Court.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, GRAY and LEAPHART concur.